Guo v Culpan - [2020] NZCA 377

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA631/2019
[2020] NZCA 377

BETWEEN	YAN GUO Applicant
AND	STEPHEN JAMES CULPAN First Respondent HUMAN RIGHTS REVIEW TRIBUNAL Second Respondent

Court:	Brown and Collins JJ
Counsel:	Applicant in person
Judgment: (On the papers)	31 August 2020 at 11.00 am

JUDGMENT OF THE COURT

The application for recall is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

In a judgment delivered on 15 July 2020 this Court granted Ms Guo’s application under r 29A of the Court of Appeal (Civil) Rules 2005 (the Rules) for an extension of time to appeal in relation to a judgment of the High Court on a judicial review claim.[1] However the Court declined special leave for Ms Guo to appeal to this Court under s 124(3) of the Human Rights Act 1993 (the Act) in relation to the dismissal by the High Court of her appeal against a decision of the Human Rights Review Tribunal.[2]
[1]Guo v Culpan [2020] NZCA 293.
[2]Guo v Culpan [2019] NZHC 1963 dismissing an appeal from Guo v Culpan [2018] NZHRRT 25.
Ms Guo has filed an application seeking a recall of this Court’s judgment declining to grant special leave to appeal.
In her application she asserts that the Court incorrectly applied s 124(3) of the Act, drawing attention in particular to that part of the subsection which provides that this Court may grant special leave to appeal on application made within 15 working days after the refusal of leave by the High Court “or within such further time as the Court of Appeal may allow”. She further contends that this Court overlooked r 16A(1) of the Rules and r 20.3(6) of the High Court Rules 2016.
Her complaint is that her application filed in this Court did not seek special leave to appeal but only an extension of time within which to apply for special leave. She contends that this Court’s treatment of her application for extension of time as an application for special leave to appeal was unfair as she had not had sufficient time to address her leave application.
The judgment of Palmer J dismissing Ms Guo’s appeal from the decision of the Human Rights Review Tribunal was delivered on 13 August 2019. On 3 September 2019 Ms Guo applied to the High Court for leave to appeal under s 124(2). Her application was dismissed by Palmer J on 11 November 2019 who stated:[3]
[7] I do not consider Ms Guo has identified a question of arguable error of law in the High Court judgment in the appeal proceeding (or the judicial review proceeding, for that matter). And even if the issues she does identify were questions of law, none of them rise to the level of one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision. Neither is there any reason…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Guo v Culpan

Details

AGLC: Guo v Culpan [2020] NZCA 377
Case: [2020] NZCA 377
Decision Date: 31 August 2020 at 11.00 am

CaseChat Overview and Summary

Yan Guo has applied for a recall of the Court of Appeal’s judgment declining to grant her special leave to appeal against the High Court’s dismissal of her appeal against the Human Rights Review Tribunal’s decision. Guo’s application was treated by the Court of Appeal as an application for special leave to appeal, and was dismissed as failing to satisfy the statutory threshold. Guo’s application for recall contends that the Court of Appeal misapplied the statutory provisions and failed to properly consider her application for an extension of time to appeal.

The Court of Appeal considered that Guo’s application for an extension of time to appeal was an application for special leave to appeal. The Court of Appeal had already considered the statutory threshold in the High Court’s refusal of Guo’s application for leave to appeal. The Court of Appeal did not consider that there was any unfairness in treating Guo’s application as an application for special leave to appeal, or that there was any error in its judgment.

The Court of Appeal declined the application for recall, finding no error in the judgment. The Court of Appeal noted that the grant of an extension of time would allow Guo to proceed with an appeal in relation to the judicial review decision.

No orders were made.

Orders