Gwizo v Attorney-General - [2024] NZHC 2082

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2021-404-1583

[2024] NZHC 2082

UNDER The Human Rights Act 1993

IN THE MATTER OF

A decision of the Tribunal striking out a claim

BETWEEN

MALVERN GWIZO

Appellant

AND

ATTORNEY-GENERAL

Respondent

On the papers

Counsel:

The appellant in person

H M Carrad and A P Lawson for the respondent

Judgment:

30 July 2024

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 30 July 2024 at 11.30 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

GWIZO v ATTORNEY-GENERAL [2024] NZHC 2082 [30 July 2024]

[1] On 19 October 2022, this Court dismissed Mr Gwizo’s appeal from a decision of the Human Rights Review Tribunal (the Tribunal) striking out his claim for discrimination and for breach of Te Tiriti o Waitangi.1

[2] In December 2022, Mr Gwizo applied for leave to appeal to the Court of Appeal against this Court’s decision. He subsequently filed submissions in support of his leave application. The Attorney-General, who opposes the grant of leave, filed submissions in opposition on 21 April 2023. Regrettably, the Registry referred the parties’ submissions to me only at the end of last week.2

Law

[3] Mr Gwizo applies for leave under s 124 of the Human Rights Act 1993. Section 124 provides, relevantly:

(1) Any party to any proceedings before the High Court under this Act may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on a question of law arising in those proceedings …

(2) … 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.

[4] The principles for granting leave to bring a second appeal under a provision such as s 124 are well established. In Cook v Housing New Zealand Corp,3 the Court of Appeal addressed the test in s 120(3) of the Residential Tenancies Act 1986, which is in near identical terms to s 124(2) of the Human Rights Act. The Court said:

[3] Section 120(3) provides that leave for a further appeal to this Court may only be granted if, in the opinion of the Court, the appeal involves a question of law that, because of its general or public importance or for any other reason, ought to be submitted to this Court for decision. This is a high threshold. It has been emphasised on many occasions that on a second appeal
… this Court is not engaged in the general correction of errors. Its primary function is to clarify the law. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of…

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.

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Details

Case: [2024] NZHC 2082
Decision Date: 30 July 2024

CaseChat Overview and Summary

The High Court was asked to decide whether to grant Malvern Gwizo leave to appeal to the Court of Appeal against the Court's decision dismissing his appeal from a decision of the Human Rights Review Tribunal (the Tribunal). The Tribunal had struck out Mr Gwizo's claim for discrimination and for breach of Te Tiriti o Waitangi, finding that he had deliberately failed to comply with the Tribunal's direction to file an amended statement of claim. The Tribunal found that Mr Gwizo did not intend to pursue the proceeding conscientiously, and struck out the proceeding as an abuse of process under s 115A of the Human Rights Act 1993. Mr Gwizo's appeal to the Court raised three issues: whether the Tribunal was right to find that Mr Gwizo had consistently and deliberately failed to comply with the Tribunal's direction (and that the proceeding had therefore become an abuse of process); whether the Tribunal was right to find that Mr Gwizo did not intend to pursue the proceeding conscientiously (and that the proceeding had therefore become an abuse of process); and if the proceeding had become an abuse of process, whether the Tribunal appropriately exercised its discretion by striking out the proceeding. The Court found that the Tribunal was right on each issue, and dismissed Mr Gwizo's appeal. Mr Gwizo now applies for leave to appeal to the Court of Appeal.

The legal issue before the Court was whether leave should be granted under s 124 of the Human Rights Act 1993. Section 124(1) allows a party to appeal to the Court of Appeal against "any determination of the High Court on a question of law" with the leave of the High Court. Section 124(2) provides that leave may be granted if, in the opinion of the High 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. The Court found that Mr Gwizo had not identified any determination on a question of law against which he would be appealing. Instead, he proposed to launch a wholesale challenge against the Court's determination on the three issues identified above. The first two issues were solely factual issues, and did not involve any determination on a question of law. The third issue involved one determination on a question of law, but as noted, Mr Gwizo would not be appealing against that determination. The third issue otherwise involved the question whether, on the facts found, the Tribunal appropriately exercised its discretion by striking out the proceeding. Mr Gwizo had not identified any determination on a question of law against which he would be appealing in respect of that question. The Court further found that Mr Gwizo had not explained how any questions (whether of law or fact) that would be raised on his appeal would be of general or public importance or would for some other reason justify a further appeal. For these reasons, leave to appeal should not be granted.

The Court declined Mr Gwizo's application for leave to appeal. The Court further ordered that Mr Gwizo was to pay costs to the Attorney-General on this application.

Orders