Gwizo v Attorney-General - [2022] NZHC 2717

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2021-404-1583

[2022] NZHC 2717

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

Hearing: 7 September 2022

Appearances:

The appellant in person

H M Carrad for the respondent

Judgment:

19 October 2022

JUDGMENT OF CAMPBELL J, MS W GILCHRIST AND MS D HART

This judgment was delivered by me on 19 October 2022 a 4.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

GWIZO v ATTORNEY-GENERAL [2022] NZHC 2717 [19 October 2022]

Introduction

[1] Mr Gwizo appeals 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] 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 1993.

[3] Mr Gwizo says that the Tribunal was wrong to find that his claim was an abuse of process. He says that he was substantively in compliance with the Tribunal’s direction and that there was no evidential basis for the finding that he did not intend to pursue his claim. He further says that, even if his claim was an abuse of process, in the exercise of its discretion the Tribunal should have declined to strike it out.

[4] For the reasons that follow, we reject Mr Gwizo’s criticisms of the Tribunal’s decision. We consider the Tribunal was correct to strike out his claim. We therefore dismiss his appeal.

Background

[5] In late 2015, Mr Gwizo applied for a job as an immigration officer at Immigration New Zealand, a business division of the Ministry of Business, Innovation and Employment (MBIE). The recruitment process included a personality assessment using an Occupational Personality Questionnaire (the questionnaire). Mr Gwizo was unsuccessful in his job application.

[6] In January 2016, Mr Gwizo complained to the Human Rights Commission (the Commission) that the questionnaire was culturally biased, that Immigration

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

New Zealand had unfairly relied on the questionnaire in assessing him for the job, and that he therefore had been discriminated against because of his ethnicity or national origin. The Chief Executive of Immigration New Zealand rejected the allegation of discrimination.

[7] Mediation between the parties failed to take place. On 30 May 2016, the Commission advised Mr Gwizo that his complaint was not resolved…

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: [2022] NZHC 2717
Decision Date: 19 October 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Mr Gwizo appealed a decision of the Human Rights Review Tribunal to strike out his claim for discrimination and for breach of Te Tiriti o Waitangi. 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 therefore struck out Mr Gwizo’s claim as an abuse of process under s 115A of the Human Rights Act 1993. Mr Gwizo argued that the Tribunal was wrong to find that his claim was an abuse of process and that, even if his claim was an abuse of process, the Tribunal should have declined to strike it out. The Court rejected Mr Gwizo’s criticisms of the Tribunal’s decision. It considered the Tribunal was correct to strike out his claim and dismissed his appeal. The Court found 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. The Court also found that the Tribunal was right to find that Mr Gwizo did not intend to conscientiously pursue his claim. Finally, the Court considered that the Tribunal appropriately exercised its discretion by striking out Mr Gwizo’s proceeding. The respondent was entitled to costs.

Orders