Guo v Human Rights Review Tribunal

[2022] NZHC 2937

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1142

[2022] NZHC 2937

UNDER

the Human Rights Act the Privacy Act

IN THE MATTER OF

of an application for judicial review of

a decision from the Human Rights Review Tribunal dismissing my application for further discovery against the respondent

in [2022] NZHRRT 6

BETWEEN

YAN GUO

Applicant

AND

HUMAN RIGHTS REVIEW TRIBUNAL

First respondent

PRICEWATERHOUSECOOPERS (“PwC”)

Second respondent

Hearing:

On the papers

Appearances:

Applicant in person

T L Clarke and H G Wolk for second respondent

Date of judgment:

9 November 2022

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 9 November 2022 at 3.30pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:

Bell Gully, Auckland

Crown Law, Wellington

Copy to:

The applicant

GUO v HUMAN RIGHTS REVIEW TRIBUNAL [2022] NZHC 2937 [9 November 2022]

[1]                 The second respondent (PwC) seeks the applicant (Ms Guo) pay security for its costs if successful in the proceeding. PwC says Ms Guo has not paid prior costs awards against her and she acknowledges she cannot pay them or security. Ms Guo responds her judicial review claim for imminent hearing has merit and PwC should not be permitted now to divert it.

[2]                 Ms Guo may be ordered to give security for PwC’s costs in terms of the High Court Rules 2016, which provides in part:

5.45 Order for security of costs

(1)    Subclause (2) applies if a Judge is satisfied, on the application of a defendant,—

(a)that a plaintiff—

(i)     is resident out of New Zealand; or

(ii)   is a corporation incorporated outside New Zealand; or

(iii) is a subsidiary (within the meaning of section 5 of the Companies Act 1993) of a corporation incorporated outside New Zealand; or

(b)that there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff’s proceeding.

(2)    A Judge may, if the Judge thinks it is just in all the circumstances, order the giving of security for costs.

(3)    An order under subclause (2)—

(a)requires the plaintiff or plaintiffs against whom the order is made to give security for costs as directed for a sum that the Judge considers sufficient—

(i)     by paying that sum into court; or

(ii)   by giving, to the satisfaction of the Judge or the Registrar, security for that sum; and

(b)may stay the proceeding until the sum is paid or the security given.

(4)    A Judge may treat a plaintiff as being resident out of New Zealand even though the plaintiff is temporarily resident in New Zealand.

(5)    A Judge may make an order under subclause (2) even if the defendant has taken a step in the proceeding before applying for security.

(6)    References in this rule to a plaintiff and defendant are references to the person (however described on the record) who, because of a document filed in the proceeding (for example, a counterclaim), is in the position of plaintiff or defendant.

[3]                 In terms of subclause (1), Ms Guo acknowledges she is unable to pay security for costs. The threshold having been crossed, under subclause (2), I may order the giving of security for costs if I think it is just in all the circumstances. It is a highly discretionary consideration, “not to be fettered by constructing ‘principles’ from the facts of previous cases”.1

[4]                 The overriding consideration is to balance the respective interests of plaintiffs’ access to courts for determination of disputes, and defendants’ protection against unmeritorious litigation.2 The individual matter is to be looked at “in the round”, the “key policy issue” being access to justice.3 Because access to justice is a fundamental human right, I must be slow to make an order for security that will stifle a claim.4 The apparent merits of the claim are a factor to be assessed in conducting the balancing exercise,5 if only to allow an impression of the proceeding’s potential at this stage.6

[5]The Court of Appeal also explained:7

The amount of security is not necessarily to be fixed by reference to likely costs awards (although that may well be relevant). Ultimately, however, it is what the court thinks fit in all the circumstances. Those circumstances will generally include the:

(a)    amount or nature of the relief claimed;

(b)    nature of the proceeding, including the complexity and novelty of the issues, and therefore the likely extent of interlocutories;

(c)    estimated duration of trial; and

(d)    probable costs payable if the plaintiff is unsuccessful, and perhaps also the defendant’s estimated actual (ie solicitor and client) costs.

[6]                 As I previously have said, on judicial review, this Court assesses if susceptible powers are exercised “in accordance with law, fairly and reasonably”.8 ‘Fair’ and

1      A S McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 (CA) at [13].

2      At [15]–[16], endorsed in Easton v Wellington City Council SC 99/2009, 26 February 2010 at [8].

3      Harrison v Harrison [2021] NZSC 115 at [9(c)], citing Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [35]. See also McNaughton v Miller [2022] NZCA 273 at [17], citing Red 9 Ltd v The Learning Ladder Ltd (in liq) [2021] NZCA 284, (2021) 25 PRNZ 780 at [30].

4      Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [3].

5      Ambrose v Pickard [2009] NZCA 502 at [32].

6      McNaughton v Miller, above n 3, at [19], citing Ngai Te Hapu Inc v Bay of Plenty Regional Council

[2018] NZCA 291 at [21] and A S McLachlan Ltd v MEL Network Ltd, above n 1, at [21].

7      At [17], citing A S McLachlan Ltd v MEL Network Ltd, above n 1, at [13] and [27] and Robert Osborne (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HR5.45.07].

8      New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 552.

‘reasonable’ are terms of art in judicial review, respectively broadly meaning procedurally regular and substantively rational. Relief generally is  discretionary.9 For determination here are the allegations set out at paragraphs 77–89 of Ms Guo’s claim.10

[7]                 I have a strong sense from the pleadings and evidence Ms Guo’s application for judicial review of the Human Rights Review Tribunal’s decision is brought for collateral pursuit of PwC. The pleading does not identify anything in the Tribunal’s decision to dismiss Ms Guo’s application for further and better discovery from PwC that is contended to be unlawful, or unfair or unreasonable in judicial review terms. Ms Guo says the Tribunal was wrong to refuse her application, and ‘unreasonable’ in accepting PwC’s affidavit of documents at face value. But the Tribunal is charged with determining such applications, meaning its engagement — even if wrong — may not be unlawful, and there may be nothing irrational in presuming the conclusivity of     a discovery affidavit.11 Rather Ms Guo appears dissatisfied with the Tribunal’s substantive decision rather than any reviewable deficiency in the course of its determination.

[8]                 Nonetheless, Ms Guo’s judicial review proceeding is brought as her only available remedy, if the Tribunal’s decision was not open to appeal.12 There is enough in the pleadings and evidence to enable both PwC to respond (as it has), and this Court to review. By the slimmest of margins, the balance between the parties’ respective interests falls in favour of Ms Guo continuing to have her day in Court, even if at financial risk to PwC. I am reinforced in that view by the once-removed nature of PwC’s interest in this judicial review proceeding, which essentially is a plea for exercise of this Court’s supervisory jurisdiction over the Tribunal.

[9]                 Finally — from that perspective, had the balance favoured PwC — I would not have granted PwC’s claim for $10,000 security on 2B costs calculated slightly in excess of $20,000. I should have to be convinced if more than a comparatively small amount of time was considered reasonable for most if not all of the apprehended

9      Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [112].

10     Guo v Human Rights Review Tribunal CIV-2022-404-1142, 17 August 2022 at [3]–[4].

11     NZ Iron Sands Holdings Ltd v Toward Industries Ltd [2019] NZAR 1199 (HC) at [34].

12     Guo v PricewaterhouseCoopers [2022] NZHC 1117 at [2].

steps,13 particularly given PwC’s indirect interest in the substance of Ms Guo’s proceeding and the question of what might count as its ‘success’ to be entitled to costs.14 Its choice to act as contradictor, if that is what the calculation reflects, should not come at  her  expense  in  security.  I  would  have  ordered  security  be  paid  at a relatively high percentage of 2A costs, excluding for more substantial engagement.

Result

[10]PwC’s application for an order giving security for costs is dismissed.

—Jagose J

13     High Court Rules 2016, r 14.5(2)(a).

14     Rule 14.2(1)(a).