Guo v Culpan

[2019] NZHC 2935

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-1499

CIV 2018-404-2695

[2019] NZHC 2935

UNDER

the Judicial Review Procedure Act 2016, the Human Rights Act 1993 and

the Privacy Act 1993

IN THE MATTER

of an application for review and an appeal

BETWEEN

YAN GUO

Applicant

AND

STEPHEN JAMES CULPAN

First Respondent

AND

THE HUMAN RIGHTS REVIEW TRIBUNAL

Second Respondent

Hearing:	8 November 2019
Appearances:	The applicant in person with McKenzie friend, L Yan H C Stuart for the first respondent
Date of judgment:	11 November 2019

JUDGMENT NO 2 OF PALMER J

The judgment was delivered by me on 11 November 2019 at 3.30pm.

Pursuant to Rule 11.5 of the High Court Rules

……………………………… Registrar/Deputy Registrar

Counsel/Solicitors: Applicant in person

H C Stuart Barrister, Auckland Wotton + Kearney, Wellington

GUO v CULPAN (NO 2) [2019] NZHC 2935 [11 November 2019]

What happened?

[1]    In 2016, Ms Sylvia Yan Guo complained to the Human Rights Review Tribunal (the Tribunal) that Dr Stephen Culpan had breached her right to privacy. In 2017 and 2018, the Tribunal made a series of rulings against Ms Guo. A week before the substantive Tribunal hearing, in May 2018, the Tribunal declined her application for an adjournment to allow her to reformulate her case with her newly appointed senior counsel, who was not available on the hearing date. At the hearing, Ms Guo refused to be cross-examined. The Tribunal struck out her claim.1

[2]    Ms Guo applied to the High Court for judicial review of a number of the Tribunal’s interlocutory decisions and she appealed the Tribunal’s strike out decision. In a judgment of 13 August 2019, I declined both the judicial review and appeal. In summary, I said:2

[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.

[3]         Ms Guo now applies for leave to appeal my judgment to the Court of Appeal. Ms Guo’s written submissions appear to cover most of the facts that were the subject of both proceedings. But she only requires leave to appeal the judgment on the appeal proceeding. She is entitled to appeal the judgment on the judicial review proceeding. But she tells me she has not done so. She submits the context of the previous decisions, of which she sought judicial review, is relevant to the reasons why the strike-out

1      Guo v Culpan [2018] NZHRRT 25.

2      Guo v Culpan [2019] NZHC 1963.

decision was wrong and she wants the two appeals to proceed together. It is not clear to me Ms Guo realised she was entitled to appeal the judicial review judgment or that there is a deadline for doing so.

Law of leave to appeal

[4]        Section 124(1) of the Human Rights Act 1993 provides that any party may appeal from a decision of the High Court on a question of law with leave of the High Court, or special leave of the Court of Appeal. Section 124(2) provides the High Court may grant leave “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”.

Submissions

[5]        Most of Ms Guo’s lengthy written submissions describe factual events, related to her case before the Tribunal, and seek to justify her actions or criticise Dr Culpan’s actions. It is difficult to discern in them questions of law she submits should be considered by the Court of Appeal. In response to that criticism in Ms Stuart’s submissions, Ms Guo identifies, in her oral submissions, a number of issues which she submits are errors of law. Most of these involve allegations that Dr Culpan was wrong to argue various points. I deal with the other issues below. Alternatively, Ms Guo asks me to recall the judgment.

[6]        Ms Stuart, for Dr Culpan, submits Ms Guo’s submissions about the strike-out decision of the Tribunal are that the Tribunal was influenced by bias and her genuine and meritorious claim ought not to have been struck out. In response to those submissions, Ms Stuart submits:

(a)The question of whether the Tribunal was biased is a question of fact, not law. There is no fresh evidence on that. The transcript of the hearing, ordered after the High Court judgment was delivered, is not fresh evidence because it could have been made available before the appeal if requested and, in any case, reveals no bias.

(b)Ms Guo’s claim was struck out because she refused to be cross- examined, meaning there was no evidence upon which the Tribunal could consider her claim. Given a request for an adjournment had been declined the week before the Tribunal hearing, Ms Guo’s attempt to force an adjournment at the hearing amounted to an abuse of process. There was no error of law about this in the High Court judgment.

Should I grant leave to appeal?

[7]        I do not consider Ms Guo has identified a question or 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 to recall the judgment.

[8]        In particular, I do not consider Ms Guo has identified any question of law in relation to the judgment’s findings about bias. Ms Guo is not raising any issue with the legal approach in the High Court judgment to assessing bias, but is challenging its application on the facts. As the Court of Appeal held, in Orlov v New Zealand Lawyers Conveyancers Disciplinary Tribunal, that is not a question of law, “let alone one warranting a second appeal”.3

[9]        The Tribunal made numerous findings against Ms Guo before and at the hearing but I can discern no bias in them. And I do not consider the transcript of the Tribunal hearing, which was not available at the appeal, reveals any bias. The Tribunal’s decisions were just unfavourable to Ms Guo’s case.  When I put that to  Ms Guo at the hearing, she submitted the co-chair appeared to have a pre-determined attitude. The evidence does not persuade me of that. Ms Guo submitted, as an example, the co-chair directed her to read the version of her evidence that had been redacted as Dr Culpan had proposed rather than as the Tribunal had previously decided. But even if that is correct, it may be evidence of a mistake, rather than of bias. And it is not relevant to why the Tribunal struck out Ms Guo’s claim. It did so

3      Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2016] NZCA 224 at [24].

because Ms Guo refused to be cross-examined. Ms Guo has identified no question of law in the High Court judgment regarding that.

[10]      Ms Guo also submits her right to natural justice was unfairly denied because the co-chair denied her right to call evidence and that was determinative of deciding her case. But the High Court judgment rejected that submission on the facts. I cannot identify any legal error in that.

[11]      Ms Guo is clearly an intelligent young woman. It is up to her, of course, but I suggest she put her efforts into more productive directions than this litigation.

Result

[12]      I decline the application for leave to appeal the judgment on the appeal of the Tribunal’s decision. I award costs to Dr Culpan on a 2B basis.

Palmer J