Guo v Culpan
[2020] NZCA 293
•15 July 2020 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA631/2019 [2020] NZCA 293 |
| BETWEEN | YAN GUO |
| AND | STEPHEN JAMES CULPAN |
| Court: | Brown and Collins JJ |
Counsel: | Applicant in person |
Judgment: | 15 July 2020 at 11.30 am |
JUDGMENT OF THE COURT
AThe application for special leave to appeal is declined.
BThe application for an extension of time to appeal in relation to the judicial review proceeding is granted until 12 August 2020.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brown J)
Introduction
In 2016 Ms Guo made a complaint to the Human Rights Review Tribunal (the Tribunal) that the first respondent, Dr Culpan, had breached her right to privacy. In a decision delivered in 2018 the Tribunal struck out Ms Guo’s claim against Dr Culpan for the following reasons:[1]
[38] Given the disputes between Dr Culpan and Ms Guo in this proceeding, Ms Stuart had a duty to cross-examine Ms Guo on the matters concerning which Dr Culpan would be giving contradictory evidence. Ms Guo’s refusal to allow herself to be cross-examined allowed Dr Culpan no fair opportunity to test the veracity of her evidence. This was unfair and prejudicial to Dr Culpan in light of the serious factual allegations made against him in Ms Guo’s evidence in chief.
[39] The refusal to submit to cross-examination effectively prevented the Tribunal from fact-finding in these proceedings and effectively denied Dr Culpan a right to be heard in defence of the allegations made against him by Ms Guo. Accordingly, the Tribunal determined that the evidence of Ms Guo could not be accepted and should be excluded as unfairly prejudicial. In the absence of any evidence that could be accepted, and Ms Guo’s steadfast refusal to be cross-examined, the application to strike out Ms Guo’s proceedings was granted. The proceedings were therefore struck out.
[1]Guo v Culpan [2018] NZHRRT 25.
Ms Guo filed two proceedings in the High Court:
(a)on 18 July 2018 a notice of appeal against the Tribunal’s decision striking out her claim against Dr Culpan on the grounds of her refusal to be cross-examined (CIV‑2018‑404‑1499); and
(b)on 7 December 2018 an application for judicial review of various decisions made by the Tribunal in the period leading up to the Tribunal hearing (CIV‑2018‑404‑2695).
In the appeal, an order was sought that the Tribunal’s strike out decision be reversed. The relief sought in the judicial review proceeding included orders quashing the final decision and directing the Tribunal to rehear the claim with a different chairperson. The Co-Chairperson had declined Ms Guo’s application for recusal.
The appeal and review were heard together by Palmer J in the High Court on 12 March 2019. They were both dismissed in a judgment delivered on 13 August 2019.[2]
[2]Guo v Culpan [2019] NZHC 1963.
On 3 September 2019 Ms Guo filed in the High Court an application for leave to appeal to this Court. She stated that in the proposed appeal she would seek to have overturned the High Court decision dismissing both her appeal and the judicial review application.
On 11 November 2019 Palmer J declined Ms Guo’s application for leave to appeal from the High Court judgment.[3] The Judge pointed out that leave was not required to appeal from the dismissal of the judicial review application but noted that Ms Guo had not filed an appeal in that respect.
[3]Guo v Culpan [2019] NZHC 2935 [Leave decision].
On 29 November 2019 Ms Guo filed in this Court an application for an extension of time both in relation to her intended second appeal and in relation to her appeal against the dismissal of her application for judicial review.
However, an extension of time was only required in respect of the judicial review appeal. Had an application to this Court for leave to bring a second appeal (and not merely an application for extension of time) been filed on 29 November 2019, it would have been within time.[4]
[4]Within 21 days after the refusal of leave on 11 November 2019: Human Rights Act 1993, s 124(3).
In the circumstances we consider the fair course in respect of the proposed second appeal is to treat the extension of time application as an application for special leave under s 124(3) of the Human Rights Act 1993. Hence it is only in respect of the proposed judicial review appeal that it is necessary to address whether an extension of time should be granted.
The High Court proceedings
The circumstances which gave rise to the High Court proceedings were succinctly described by Palmer J in the substantive High Court judgment in this way:[5]
[1] In 2009 and 2010, Ms Sylvia Yan Guo saw Dr Stephen Culpan, a general practitioner, at the request of her employer. In 2015, she requested from him her medical file. In 2016, she complained to the Human Rights Review Tribunal that he breached her right to privacy by deliberately delaying providing her with her medical file and concealing information from her. In 2017 and 2018, the Tribunal made a series of rulings against Ms Guo. Ms Guo challenges the Co-Chairperson’s decisions to strike out portions of Ms Guo’s reply evidence, refuse an application for a witness summons and refuse to recuse herself. A week before the substantive hearing in May 2018, Ms Guo applied for an adjournment to allow her to reformulate her case with her newly appointed senior counsel who was not available on the hearing date. The Co‑Chairperson declined the application, a decision Ms Guo also challenges. At the hearing, Ms Guo refused to be cross-examined without her counsel present. The Tribunal struck out her claim. Ms Guo appeals and applies for judicial review of that decision too.
(Footnote omitted).
[5]Guo v Culpan, above n 2.
It is convenient also to record Palmer J’s summary of his reasons for dismissing the review and appeal:
[2] This claim concerns the right to privacy, so human rights are at stake and the Court is entitled to subject the decision-maker’s reasoning to anxious or heightened scrutiny on judicial review. But I dismiss the applications for judicial review and appeal. The portions of Ms Guo’s reply evidence that were struck out were irrelevant to the issues before the Tribunal. The scope of the substantive merits of a claim must be interpreted with the anxious scrutiny consistent with the Act’s purpose of better protecting human rights in New Zealand. But, once so interpreted, the Tribunal and the parties must stay within that scope. Requiring that is not a technicality. There was also no error in the decision to decline issuing a witness summons to produce documents of dubious relevance just before the hearing after discovery had been completed seven months earlier. There was no reason for the Co‑Chairperson to recuse herself for bias or the appearance of bias. The Co‑Chairperson’s decision not to adjourn the hearing a week beforehand was fair, reasonable and justified. And, whatever the degree of anxiety with which I review it, I consider the Tribunal’s decision to strike out Ms Guo’s claim was fair, reasonable and justified, given Ms Guo’s refusal to be cross-examined.
In declining leave for a second appeal, Palmer J explained that he did not consider Ms Guo had identified a question of law or arguable error of law in the High Court judgment on the appeal proceeding. However, if any of the issues identified did constitute a question of law, the Judge did not consider that any of them reached the threshold for a second appeal to this Court.[6]
The application for special leave to appeal
[6]Leave decision, above n 3, at [7].
The circumstances in which this Court may grant leave to bring a further appeal are spelled out in s 124(3) of the Human Rights Act:
Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that court, for special leave to appeal to that court, and the Court of Appeal may grant leave accordingly if, in the opinion of that court, the question of law involved in the appeal is 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.
In her detailed written submissions in the High Court (comprising some 45 pages) in support of her application for leave to appeal Ms Guo framed a number of questions such as:
(a)Ought a litigant’s right to call evidence be denied?
(b)Ought a litigant’s lawful amendment of claim be declined?
Then, as Palmer J noted in his leave judgment, in response to Ms Stuart’s criticism of the submissions, Ms Guo identified in her oral submissions a number of issues which she submitted were errors of law.
However as noted above,[7] the Judge did not consider that the matters Ms Guo raised were questions of law. In particular he stated that he did not consider she had identified any question of law in relation to the findings about bias, noting that she was not raising any issue with the legal approach to assessing bias but was challenging its application on the facts.[8]
[7]At [12].
[8]Leave decision, above n 3, at [8].
In her submissions to this Court in support of special leave Ms Guo submitted that the High Court judgment raised a number of questions of law, offering as one example:
… [W]hether my protest being cross-examined should lead to my entire evidence in chief and my entire claim in which one of Dr Culpan’s breaches was already established to be struck out when I was only seeking to be legally represented by my instructed counsel because I was unable to handle the hearing in the critical context when my right to be heard and my right to an unbiased decision maker were denied and I was given only 1 working day to prepare for self-representation at the [Tribunal] hearing?
Then, in response to the submission for Dr Culpan that her proposed appeal did not identify any arguable question of law, Ms Guo identified the following questions:
aWhether the High Court’s legal approach to assessing apparent bias and its finding that there was no evidence of bias by the Co-chair were wrong?
bWhether the High Court erred in endorsing the Co-chair’s decision striking out my genuine and meritorious claim?
cWhether the High Court erred in holding that the grounds of my proposed appeal were not arguable errors of law?
dWhether the High Court was wrong to dismiss my appeal and application for judicial review?
We reach the same conclusion as Palmer J that most of the matters which Ms Guo seeks to raise are not truly questions of law. However to the extent that any of these matters (such as the first limb of question (a) and question (c)) identify questions of law, we do not consider that they are of general or public importance or that for any other reason they ought to be submitted to this Court for decision.
Consequently Ms Guo’s application for special leave to appeal to this Court is declined.
The application for an extension of time to file an appeal in relation to the judicial review claim
In relation to the High Court decision on Ms Guo’s judicial review proceeding, Ms Guo had a right to a first appeal to this Court. Hence she was entitled to file an appeal to this Court from the judicial review component of the High Court judgment by 10 September 2019.
Unfortunately, presumably because she was acting at this stage of the matter without legal representation, she proceeded on the erroneous assumption that it was necessary for her to first seek leave to appeal from the High Court. Her confusion may have been caused or at least contributed to by the fact that her two separate proceedings were determined in a single judgment of the High Court.
Ms Stuart makes the point that the notice of opposition in the High Court drew attention to the fact that leave to appeal was required only in respect of the decision dismissing the appeal. However we note that the document went on to state that an appeal against the judicial review decision would be rendered nugatory if Ms Guo was unable to appeal the decision striking out the proceeding.
In the leave judgment Palmer J commented that it was not clear to him that Ms Guo realised she was entitled to appeal the judicial review judgment or that there was a deadline for doing so.[9] Thus it does appear that it was not until in the course of argument before Palmer J on 8 November 2019 that Ms Guo actually became aware that she did not require leave to appeal the judgment to the extent that it addressed the judicial review proceeding.
[9]Leave decision, above n 3, at [3].
Ms Guo then moved reasonably promptly. Fourteen working days following the High Court’s leave judgment she filed in this Court an application for an extension of time to appeal against the High Court judgment. As earlier noted that application is a confusing document because an extension of time was also sought in relation to the application for special leave to appeal.
Ms Guo’s submissions in support of the application for an extension of time was filed in January 2020 with Dr Culpan’s submission in response being filed in February 2020. Subsequently Ms Guo filed submissions in reply although the date of filing is uncertain. The COVID-19 lockdown then intervened.
In Ms Stuart’s submissions in opposition to the extension of time application reliance is placed on the principles applying to applications for extension of time stated in My Noodle Ltd v Queenstown-Lakes District Council.[10] However those principles have been restated by the Supreme Court in Almond v Read.[11] The Court explained that the ultimate question in considering the exercise of the discretion to extend time under r 29A is what the interests of justice require. Factors identified as being likely to require consideration include:[12]
(a)the length of the delay;
(b)the reasons for delay;
(c)the conduct of the parties, particularly by the applicant;
(d)any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome;
(e)the significance of the issues raised by the proposed appeal; both to the parties and more generally.
[10]My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [19].
[11]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.
[12]At [38].
While the Court accepted that the merits of a proposed appeal may, in principle, be relevant to the exercise of the discretion to extend time because there will be occasions where the Court would risk facilitating unjustifiable delaying tactics if the merits are not considered, the Court recorded a number of qualifications including:[13]
(c) Consideration of the merits of an appeal in the context of an application to extend time must necessarily be relatively superficial. In this connection, we agree with the observations of the Court of Appeal of England and Wales in R (Hysaj), to the effect that the court should firmly discourage much argument on the merits and should reach a view about them only where they are obviously very strong or very weak. Moreover, any assessment of the merits must take place against the background of this Court’s description of the nature of a general appeal in Austin, Nichols. Accordingly, a decision to refuse an extension of time based substantially on the lack of merit of a proposed appeal should be made only where the appeal is clearly hopeless. An appeal would be hopeless, for example, where, on facts to which there is no challenge, it could not possibly succeed, where the court lacks jurisdiction, where there is an abuse of process (such as a collateral attack on issues finally determined in other proceedings) or where the appeal is frivolous or vexatious. The lack of merit must be readily apparent. The power to grant or refuse an extension of time should not be used as a mechanism to dismiss apparently weak appeals summarily.
(Footnotes omitted).
[13]At [39]
Ms Guo’s application for an extension of time was filed 57 working days after the prescribed date. That was more than a minor delay. However the reason for the delay appears genuine and explicable. During this stage of the litigation she was self-represented. She took steps within the prescribed 20 working day appeal period but instead of filing a notice of appeal in relation to the judicial review aspect of the judgment she mistakenly applied to the High Court for leave to appeal.
We accept that Dr Culpan will have suffered some hardship arising from the fact of both the Tribunal process and the High Court proceeding. However we do not perceive that he will have suffered significant hardship occasioned by the delay in the filing of an appeal.
The main ground of opposition is that if, as we have ruled, special leave to appeal is declined, then the judicial review challenge will become irrelevant, as foreshadowed in the notice of opposition in the High Court.[14] Reliance is placed on R v Gordon-Smith where the Supreme Court stated:[15]
In general, appellate courts do not decide appeals where the decision will have no practical effect on the rights of parties before the court, in relation to what has been at issue between them in lower courts. This is so even where the issue has become abstract only after leave to appeal has been given. But in circumstances warranting an exception to that policy, provided the court has jurisdiction, it may exercise its discretion and hear an appeal on a moot question.
(Footnote omitted).
[14]At [22] above.
[15]R v Gordon-Smith [2008] NZSC 56, [2009] 1 NZLR 721 at [16].
Because Ms Guo will not be able to pursue an appeal in this Court from the High Court judgment dismissing her appeal, there may well be an issue as to the practicality of any relief which would be available in the event that an appeal in relation to the judicial review proceeding was successful. However the subject matter of the judicial review proceeding is more extensive than the appeal proceeding.[16] We do not consider that the judicial review appeal can fairly be said to be moot in the true sense of the term. Hence this is not a case where it can be said with confidence that the proposed appeal in respect of the judicial review proceeding is hopeless in the Almond v Read sense.
[16]See [3] above.
It is regrettable that this dispute should be prolonged. We endorse the suggestion of Palmer J that Ms Guo put her efforts into more productive directions than this litigation.[17] Nevertheless, having regard to the Almond v Read criteria, we consider that it would not be consistent with the interests of justice for an extension of time to appeal to be declined in the particular circumstances.
[17]Leave decision, above n 3, at [11].
Given that each party has been successful in part, there is no order as to costs.
Result
The application for special leave to appeal is declined.
The application for an extension of time to appeal in relation to the judicial review proceeding is granted until 12 August 2020.
Solicitors:
Wotton + Kearney, Wellington for First Respondent
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