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 litigation which has already been considered on a number of occasions.

1      Gwizo v Attorney-General [2022] NZHC 2717.

2      It is not clear when Mr Gwizo filed his submissions (which are undated).

3      Cook v Housing New Zealand Corp [2018] NZCA 270.

Background

[5]                  Mr Gwizo had failed, for over 15 months, to comply with a direction by the Tribunal to file an amended statement of claim identifying the correct defendant and clarifying the grounds of his claim. The Tribunal found that this failure was deliberate, and that Mr Gwizo had declined to provide any real excuse for his non-compliance. The  Tribunal  said   that   this   demonstrated   that   Mr   Gwizo   did   not   intend  to conscientiously pursue his claim. The Tribunal therefore struck out Mr Gwizo’s claim as an abuse of process under s 115A of the Human Rights Act.4

[6]Mr Gwizo’s appeal to this Court raised three issues:5

(a)Did the Tribunal err in finding 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)?

(b)Did the Tribunal err in finding that Mr Gwizo’s failure to comply with the Tribunal’s direction showed that he did not intend to pursue the proceeding conscientiously (and that the proceeding had therefore become an abuse of process)?

(c)If the proceeding had become an abuse of process, did the Tribunal err in exercising its discretion to strike-out Mr Gwizo’s proceeding?

[7]                  These issues raised questions of fact. Under s 126 of the Human Rights Act, this meant that the appeal had to be heard by a Court that included two lay members appointed from the register maintained under s 101. The Court that heard Mr Gwizo’s appeal was so constituted.6

[8]On the three issues raised by the appeal, this Court held:

4      Gwizo v Attorney-General [2021] NZHRRT 20.

5      Gwizo v Attorney-General [2022] NZHC 2717 at [50].

6      Section 126 does not apply to this exercise by the Court of its powers under s 124.

(a)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 for that reason become an abuse of process.7

(b)The Tribunal was right to find that the proceeding had become an abuse of process also on the ground that Mr Gwizo did not intend to conscientiously pursue his claim.8

(c)The Tribunal appropriately exercised its discretion by  striking  out Mr Gwizo’s proceeding.9

[9]                  In the course of the judgment, the Court referred to well-established principles relating to the standard of review applicable to a general appeal and governing strike- out applications. None of those principles had been in dispute.

Should leave to appeal be granted?

[10]              Section 124(1) allows Mr Gwizo to appeal only against “any determination  of the High Court on a question of law”.

[11]              Mr Gwizo does not, in his application and submissions in support, identify any determination on a question of law against which he would be appealing. The only legal principle to which he refers is that there is a two-stage test on an application    to strike out for abuse of process: was there an abuse of process; if so, should the discretion be exercised to strike out the proceeding? But that is a principle that was accepted by this Court in the judgment.10 Mr Gwizo would not be appealing against the Court’s determination on it.

[12]              It appears from Mr Gwizo’s application and submissions that, rather than appeal against any determination on a question of law, he proposes to launch a wholesale challenge against this Court’s determination on the three issues identified above. But the first two issues were solely factual issues. They did not involve any

7 At [61].

8 At [68].

9 At [76].

10 At [47].

determination on a question of law.  The third issue involved one determination     on a question of law (namely, that there was a two-stage test), 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 has not identified any determination on a question of law against which he would be appealing in respect of that question.

[13]              Further, Mr Gwizo has 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.

[14]For these reasons, leave to appeal should not be granted.

Result

[15]I decline Mr Gwizo’s application for leave to appeal.

[16]Mr Gwizo is to pay costs to the Attorney-General on this application.

Campbell J