Gwizo v Attorney-General
[2022] NZHC 2717
•19 October 2022
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 but that he had the right to take the matter to the Tribunal.
[8] Mr Gwizo filed a statement of claim in the Tribunal on 8 December 2016. He alleged that MBIE’s use of the questionnaire in its recruitment process was:
(a)discriminatory on the basis of race, colour, ethnic or national origin and disability; and
(b)in breach of the consultation principle of Te Tiriti o Waitangi.
[9] He named two defendants: the Chief Executive (or Deputy) of Immigration New Zealand and the Governor-General.
[10] On 18 January 2017, the defendants filed a statement of reply denying the claim. The reply also said that Mr Gwizo had named incorrect defendants. The reply said that the sole defendant should be the Attorney-General, on behalf of MBIE, and that the matters at the heart of Mr Gwizo’s claim had no bearing on the role or responsibilities of the Governor-General, who should be removed as a defendant.
[11] Mr Gwizo filed a response to the reply in February 2017. He maintained that the Governor-General was a proper defendant as “the primary custodian of the Treaty of Waitangi” because the claim had come about “as a result of a failure to abide by the Treaty Principles”.
[12] The Tribunal did not hold the first case management conference for the proceeding until 11 October 2018. In a memorandum filed in advance of that conference, the defendants explained (by reference to s 14 of the Crown Proceedings Act 1950) why the Attorney-General (on behalf of MBIE) was the proper defendant.
[13] Ms Roche, a Co-Chairperson of the Tribunal, issued a minute after the conference. The minute recorded that the Tribunal explained two things to Mr Gwizo:
(a)that the Attorney-General was the appropriate defendant and that his claim could not proceed if he maintained the defendants to be the Chief Executive (or Deputy) of Immigration New Zealand and the Governor-
General; and
(b)that the Tribunal had no jurisdiction to deal with Treaty of Waitangi issues, and Mr Gwizo agreed that the primary issue was whether the use of the questionnaire resulted in MBIE refusing to employ him on prohibited grounds.
[14] The minute also recorded that Mr Gwizo required time to reflect and seek advice as to whether he would proceed with his claim. Because Mr Gwizo was going to be away from New Zealand for three months, he requested that a filing date for any amended claim, which “would amend the identity of the defendant to the Attorney- General, and clarify the grounds of his claim”, be deferred until late March 2019.
[15] In light of the above, the Tribunal directed that Mr Gwizo file an amended claim “identifying the Attorney-General on behalf of MBIE as the defendant and clarifying the grounds of the claim” by 29 March 2019. The Tribunal directed that discovery and inspection would then follow.
[16] Mr Gwizo did not file an amended claim by 29 March 2019. On 24 April 2019, a case manager at the Tribunal emailed Mr Gwizo and asked him to advise whether or not his claim was withdrawn. The email noted that in the absence of such advice it would expect that the Crown would consider filing an application to strike out his claim for lack of prosecution and failure to comply with directions.
[17] Mr Gwizo responded to this email on 29 April 2019. He said that his claim “must proceed, it is not withdrawn”. He also said:
The issue of who is the right respondent cannot in all honest [sic] be grounds to suggest a strikeout. I find this suggestion extremely concerning. Crown counsel has offered what it considers to be the correct respondent and I do not
oppose its choice of the right respondent; effectively there is no dispute in regard to one respondent and on that basis, the case should carry on with that agreed respondent. However, that does not translate to - a surrender- on my part of the disputed respondent and I don’t think the fact of dispute on one of the respondent [sic] gives a basis to strike out the case.
I prefer to have both respondents; the disputed and undisputed.
I ask the crown counsel to provide me with a comprehensive discussion on the disputed respondent.
I will be seeking legal representation.
[18] Mr Gwizo’s email, while addressing the question of the correct defendants, did not explain why he had not complied with the direction to file an amended statement of claim. The amended claim was meant not only to identify the correct defendants but also to clarify the grounds of his claim. Nor did Mr Gwizo give any indication that he would be complying with the direction.
[19] By 6 November 2019, Mr Gwizo still had not filed an amended claim. On that date, Ms Foster, a Deputy Chairperson of the Tribunal, issued a minute stating that it was for Mr Gwizo to progress his claim and that he had had plenty of time to obtain legal representation or advice about it. Ms Foster directed that:
(a)the Attorney-General be substituted as the sole defendant;
(b)should the Attorney-General wish to have the proceeding struck out for Mr Gwizo’s non-compliance with case management directions and failure to prosecute his case, a strike-out application was to be filed and served by 6 December 2019;
(c)if Mr Gwizo opposed the strike-out application he was to file and serve a notice setting out his grounds of opposition by 17 January 2020; and
(d)the application would be determined on the papers.
[20] On 12 November 2019, Mr Gwizo emailed the Tribunal asking that another judicial officer be allocated to his case, alleging bias on the part of the current judicial
officer. His allegation of bias was based, in part, on comments made by the judicial officer at the 11 October 2018 case management conference. Mr Gwizo also stated:
A decision has been made about who the right respondent is and in that case what then is a proper (for all practical purposes) basis to repeatedly invite and encourage the respondent based on the issue of the ‘right respondent’
[21] It appears that Mr Gwizo had not noticed that the 6 November 2019 minute was issued by Ms Foster, who was not the judicial officer for the October 2018 conference.
[22] On 20 November 2019, Mr Gwizo emailed the Tribunal again. He said he had re-approached the Director of the Office of Human Rights Proceedings for a review of his application for representation and sought time to allow the Director to consider his application. On 22 November 2019, Ms Foster directed that the directions in the 6 November 2019 minute remained and that, should the Director agree to represent Mr Gwizo, a further application could be made at that time.
[23] By 6 December 2019, Mr Gwizo still had not filed an amended claim. On that day, the Attorney-General filed a memorandum requesting an “unless order”: that Mr Gwizo’s claim be struck out unless by 17 January 2020 he filed an amended claim that named the Attorney-General as the sole defendant and clarified the grounds of his claim.
[24] The Tribunal (Ms Foster) issued a minute on 15 January 2020. The Tribunal, instead of making an “unless order”, gave Mr Gwizo a further opportunity to rectify his delay “and thereby avoid the need for the Tribunal to determine whether the matter should be struck-out for non-compliance with directions and failure to prosecute”. The Tribunal directed that:
(a)Mr Gwizo was to file and serve an amended statement of claim that named the Attorney-General on behalf of MBIE as the sole defendant and clarified the grounds of his claim by 31 January 2020; and
(b)If Mr Gwizo failed to file an amended statement of claim and he opposed the application for strike-out, he was to file a notice setting out the grounds of his opposition by 7 February 2020.
[25] Mr Gwizo did not take up that further opportunity to file an amended claim. Instead, on 17 January 2020, he filed a memorandum opposing strike-out. His memorandum continued to name the Deputy Chief Executive of Immigration New Zealand and the Governor-General as the defendants. Mr Gwizo:
(a)said he had previously consented to “the matter carrying on the Attorney-General as the defendant [sic]”;
(b)said that the law relied on by counsel for the defendant (as to why the Governor-General was not properly a defendant) seemed logical, but “I cannot make a positive statement acquiescing to the opinion until I have heard expert legal opinion”;
(c)submitted that striking out the claim based on amending the claim would be a gross disregard s 105 of the Human Rights Act (which provides that the Tribunal “must act according to the substantial merits of the case, without regard to technicalities”); and
(d)recorded that his delay in progressing his claim was not as long as the Tribunal’s delay (of almost two years) in holding the first case management conference, and that he “might need double the time to get proper legal representation”.
[26] The Attorney-General filed a memorandum in response on 28 February 2020, confirming that he was pursuing his application for strike-out.
The Tribunal’s decision
[27] The Tribunal dealt with the strike-out application on the papers. It delivered its decision on 15 April 2021.2
[28] The Tribunal said that its jurisdiction to strike out a proceeding was found in s 115A of the Human Rights Act. This provides, in part:
(1)The Tribunal may strike out, in whole or in part, a proceeding if satisfied that it—
(a)discloses no reasonable cause of action; or
(b)is likely to cause prejudice or delay; or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of process.
[29] The Attorney-General relied on the last ground, claiming that Mr Gwizo’s proceeding should be struck out as an abuse of process.
[30] The Tribunal said the jurisdiction to strike out was to be used sparingly. The fundamental constitutional importance of the right to access courts and tribunals had to be recognised but nevertheless had to be balanced against the desirability of freeing defendants from the burden of litigation that was groundless or an abuse of process.3
[31] The Tribunal noted that the categories of abuse of process were numerous. The Tribunal said that there were two relevant categories in Mr Gwizo’s case:
(a)A consistent failure to comply with court orders could amount to an abuse of process. The failure to comply had to be deliberate. A consistent failure in the face of repeated warnings could properly be interpreted as wilful, in particular where the plaintiff was conscious of the breach and chose to do nothing.4
2 Gwizo v Attorney-General [2021] NZHRRT 20.
3 At [20].
4 Gwizo v Attorney-General [2021] NZHRRT 20 at [22.1], relying on Yarrow v Finnegan [2017] NZHC 1755 at [11]–[14].
(b)An abuse of process could, alternatively, be found where the plaintiff lacked any intention of bringing the proceeding to a conclusion in a timely way, where there was a long period of inactivity.5
[32] The Tribunal said that a finding of abuse of process on either of these two grounds did not require the defendant to show any prejudice.6
[33] The Tribunal said that Mr Gwizo had over 15 months to file an amended claim and avoid the risk that his claim may be struck out, however he chose not to do so. The Tribunal said the key facts were:
(a)At the October 2018 conference, the Tribunal directed Mr Gwizo to file an amended claim and (at his own request) gave him nearly six months to do so.
(b)When Mr Gwizo failed to comply with that direction, the Tribunal twice (on 24 April 2019 and 6 November 2019) reminded him of the direction and the consequence of non-compliance.
(c)Mr Gwizo was then, on 15 January 2020, given a further opportunity to file an amended claim and thereby rectify his non-compliance with the direction. Instead of filing an amended claim he chose to file a memorandum opposing the strike-out application.
[34] The Tribunal found that Mr Gwizo had deliberately failed to comply with the Tribunal’s direction. This was evident from his memorandum in opposition, which did not attempt to provide any real excuse for his non-compliance. Rather, his memorandum showed that he deliberately chose not to comply because he considered the direction an unnecessary technicality and he was still seeking legal representation.7
[35] The Tribunal said that Mr Gwizo’s failure to comply with the direction could not be attributed solely to ignorance or disorganisation. The Tribunal had, at the
5 At [22.2], relying on Yarrow v Finnegan [2017] NZHC 1755 at [15].
6 At [23].
7 At [30].
October 2018 conference, explained why Mr Gwizo had to file an amended claim; it was not merely technical. Mr Gwizo had over 15 months to obtain legal representation or advice. Mr Gwizo fully understood what the direction required him to do and was aware of the consequences of not complying.8
[36] The Tribunal concluded that Mr Gwizo had consistently and deliberately failed to comply with the Tribunal’s direction. His proceeding had on that basis become an abuse of process and should be struck out.9
[37] The Tribunal was also satisfied that the proceeding had become an abuse of process on the basis that Mr Gwizo’s failure to comply with the direction showed that he did not intend to pursue the proceeding conscientiously. He had, for over 15 months, deliberately and inexcusably failed to file an amended claim as directed.
That was after he had been given six months to comply with the direction.10
[38] As the Tribunal was satisfied that the proceeding had become an abuse of process, it struck out Mr Gwizo’s claim.11
Approach on appeal
[39] Mr Gwizo appeals under s 123 of the Human Rights Act. This provides for a general appeal.12 The standard applicable to a general appeal was set out in Austin, Nichols & Co Inc v Stichting Lodestar.13 This court must arrive at its own assessment of the merits of the case, but Mr Gwizo bears the onus of satisfying the court that it should differ from the Tribunal’s decision. No deference is required beyond the customary caution appropriate if the Tribunal had a particular advantage, such as technical expertise or the opportunity to assess the credibility of witnesses.
[40] In this case the Tribunal did not have any particular advantage in assessing the merits of the strike-out application. The application was based on grounds that did not
8 At [31]–[34].
9 At [35].
10 At [36]–[37].
11 At [46].
12 Wall v Fairfax New Zealand Ltd [2018] NZHC 104 at [14].
13 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [3]–[5] and [16].
call on the Tribunal’s technical expertise. Nor did the Tribunal have to assess the credibility of any witnesses.
Principles applying to strike-out applications in the Tribunal
[41] The Tribunal has jurisdiction under s 115A of the Human Rights Act to strike out a proceeding on several grounds, including that the proceeding is an abuse of process.
[42] The Tribunal’s strike-out jurisdiction in s 115A is equivalent to the strike-out jurisdiction of the High Court under r 15.1 of the High Court Rules 2016.14 The principles adopted by the High Court under r 15.1 therefore inform the approach of the Tribunal to strike-out applications under s 115A, subject to any other relevant provisions of the Human Rights Act.
[43] The High Court’s jurisdiction to strike out a proceeding as an abuse of process is available in several situations. Two are potentially relevant here. Each sets a high threshold.
[44] The first is where there has been a consistent failure to comply with court orders. This will be an abuse of process only where the failure is deliberate. Failures, even repeated ones, and especially where the plaintiff is a lay litigant, will not always be deliberate. They may be a result of ignorance, disorganisation or anxiety. However, a consistent failure in the face of repeated warnings will be regarded as deliberate, particularly where the plaintiff was conscious of the breach and chose to do nothing.15
[45] The second is where a plaintiff lacks any intention of bringing the proceeding to a conclusion in a timely way. This may be evidenced by a long period of inactivity.16
[46] A finding that there has been an abuse of process on either of these two grounds does not (in contrast to some of the other grounds for striking out a proceeding) require the defendant to show any prejudice from the plaintiff’s failures or inactivity.17
14 Williams v Police [2021] NZHC 808 at [75].
15 Yarrow v Finnegan [2017] NZHC 1755 at [11]–[14] and [16], and the authorities there cited.
16 Yarrow v Finnegan [2017] NZHC 1755 at [15].
17 Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015 at [72].
[47] If an abuse of process is found, the Court (or in this case the Tribunal) has a discretion whether or not to strike out the proceeding. As r 15.1 (and s 115A) provide, if there is an abuse of process, the Court (or Tribunal) may strike out the proceeding. We thus accept Mr Gwizo’s submission that there is a two-stage test: was there an abuse of process; if so, should the discretion be exercised to strike out the proceeding?18 At the second stage, any prejudice suffered by the defendant is a relevant consideration.19
[48] The principles adopted by the High Court under r 15.1 must, in applications under s 115A, be applied subject to any other provisions of the Human Rights Act. A provision that will, in some cases, require a softening of the r 15.1 principles is s 105. This provides:
105 Substantial merits
(1)The Tribunal must act according to the substantial merits of the case, without regard to technicalities.
In exercising its powers and functions, the Tribunal must act—
(a)in accordance with the principles of natural justice; and
(b)in a manner that is fair and reasonable; and
(c)according to equity and good conscience.
[49] Section 105 means, among other things, that the Tribunal should not adopt a strict approach to pleadings (given the need for the Tribunal to be accessible to laypeople and self-represented litigants).20 Section 105 is primarily relevant to strike-out applications alleging that a proceeding discloses no reasonable cause of action. Where a strike-out application alleges an abuse of process based on a plaintiff’s failure to comply with court directions, it is difficult to see that s 105 modifies the relevant r 15.1 principles – given the high threshold that must in any case be crossed before an abuse of process is found on that ground.
18 Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015 at [63] (dealing with the Court’s inherent jurisdiction).
19 Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015 at [72].
20 Williams v Police [2021] NZHC 808 at [80].
Issues on appeal
[50]Mr Gwizo’s appeal raises the following issues:
(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?
Did the Tribunal err in finding that Mr Gwizo had consistently and deliberately failed to comply with the Tribunal’s direction?
[51] The direction in issue is the one made by the Tribunal in its minute of 11 October 2018. The Tribunal directed that Mr Gwizo file an amended claim “identifying the Attorney-General on behalf of MBIE as the defendant and clarifying the grounds of the claim”.
[52] Mr Gwizo challenged the Tribunal’s finding that he had consistently and deliberately failed to comply with this direction. He made two broad submissions.
[53] First, he submitted that he was substantively in compliance with the Tribunal’s direction. He said he had accepted the Attorney-General as a defendant and that the Tribunal was able to exclude the Governor-General as a defendant. He said that the Tribunal’s minute did not at any point discuss a lack of grounds of his claim. He said that his statement of claim had more than enough material to establish the grounds of his claim. He said he was “still puzzled, baffled, unsure and confused” by the direction that he clarify the grounds of his claim.
[54] Secondly, Mr Gwizo submitted that the Tribunal did not give sufficient notice as to the “fatality” of his failing to adopt a “technical editing” (Mr Gwizo’s term) of the statement of claim.
[55]We do not accept either of these submissions.
[56] Mr Gwizo’s first submission misses the point. It may have been of interest if Mr Gwizo had filed an amended claim and there had then been a dispute over whether the amended claim complied (substantively or otherwise) with the Tribunal’s direction (namely, whether it identified the correct defendant or clarified the grounds of his claim). But Mr Gwizo never filed any amended claim. He did not in any sense comply with the Tribunal’s direction.
[57] Further, we reject the factual assertions that underpin Mr Gwizo’s first submission. It is not the case that he accepted the Attorney-General as the proper defendant to his claim. On 29 April 2019, Mr Gwizo sent an email to the Tribunal saying that he preferred to have both the Attorney-General and the Governor-General as defendants. As late as January 2020, in his memorandum opposing the strike-out application, Mr Gwizo said to the Tribunal that, although the explanation given for the Governor-General not being a proper defendant “seemed logical”, he could not acquiesce to the position “until I have heard expert legal opinion”. Nor is it the case that the Tribunal’s minute of 11 October 2018 did not identify a problem with the grounds of Mr Gwizo’s claim. The minute had a heading “Clarification of claim”, under which the Tribunal explained that it had no jurisdiction to deal with Treaty of Waitangi issues. The direction that Mr Gwizo amend his claim to clarify the grounds of his claim was directed at that issue.
[58] As to Mr Gwizo’s second submission, the Tribunal repeatedly gave notice to Mr Gwizo that if he failed to comply with the direction there was a risk that his claim would be struck out.
(a)On 24 April 2019, by which time Mr Gwizo had been in default for almost a month, a case manager at the Tribunal emailed Mr Gwizo. The email noted that in the absence of advice from Mr Gwizo as to whether
or not his claim was withdrawn it would expect the Crown to consider filing a strike-out application.
(b)On 6 November 2019, the Tribunal directed that (among other things) should the Attorney-General wish to have the proceeding struck out for Mr Gwizo’s non-compliance with the direction and failure to prosecute his case, a strike-out application was to be filed and served by 6 December 2019.
(c)On 15 January 2020, the Tribunal issued a minute, giving Mr Gwizo a further opportunity to rectify his delay “and thereby avoid the need for the Tribunal to determine whether the matter should be struck-out for non-compliance with directions and failure to prosecute”. The Tribunal directed Mr Gwizo to file and serve an amended statement of claim by 31 January 2020. If Mr Gwizo failed to do so and he opposed the strike-out application, he was to file a notice setting out the grounds of his opposition by 7 February 2020. It was therefore clear that, if Mr Gwizo failed to comply with the direction to file an amended claim, the Tribunal would deal with the strike-out application.
[59] In our view, the Tribunal was correct to conclude that Mr Gwizo had consistently and deliberately failed to comply with its direction. First, his failure was consistent. He had initially (and at his own request) been given over five months to file an amended claim. When he failed to comply with the direction within that generous timeframe, he was given a series of further opportunities to remedy his non-compliance. The last opportunity extended the time for him to amend his claim to 31 January 2020 – ten months beyond the initial time for compliance.
[60] Secondly, his repeated failure to comply with the direction was deliberate. We are satisfied that Mr Gwizo understood that the direction required him to file an amended claim and that he chose not to comply with the direction. The direction was unambiguous. The Tribunal repeatedly invited Mr Gwizo to comply with the direction. Mr Gwizo’s responses to those invitations contained no suggestion that he misunderstood the direction or that his failure to comply was a result of disorganisation
or oversight. Rather, his response (in his memorandum opposing the strike-out application) was that his non-compliance was a failure to meet technicalities and so did not justify striking out his claim. Similarly, in his oral submissions on appeal, Mr Gwizo said that he had not filed an amended claim because, having agreed in correspondence that the Attorney-General could be a defendant, he regarded it as overly-technical to require an amended claim. These were acknowledgements that he had chosen not to comply with the direction.
[61] For these reasons, we conclude that 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.
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?
[62] Given our finding on the first issue, it is not strictly necessary for us to address this issue. We nonetheless deal with it for completeness.
[63] Mr Gwizo submitted that the Tribunal’s finding that he did not intend to pursue the proceeding conscientiously had no evidential foundation. He said that his memorandum opposing the strike-out application showed that he was committed to progressing his claim.
[64] We are satisfied that the Tribunal did not err in its finding. There was ample evidence from which it could conclude that Mr Gwizo did not intend to conscientiously pursue his claim.
[65] First, at the October 2018 case management conference Mr Gwizo requested an extended period in which to file an amended claim. One of the reasons he gave for this request was to allow time for him to reflect and seek advice as to whether he should proceed with his claim.
[66] Secondly, from October 2018 to January 2020 Mr Gwizo took no steps to progress his claim. He failed to comply with the Tribunal’s direction that he file
an amended claim. This was a lengthy period. His inaction was despite the Tribunal repeatedly inviting him to comply with the direction.
[67] Thirdly, in his memorandum opposing the strike-out application, Mr Gwizo sought to justify his inaction by referring to the Tribunal’s almost two-year delay in convening the first case management conference. Mr Gwizo said, in his memorandum, that he might need “double the time” to get proper legal representation on his claim. Effectively, he was suggesting that he should be allowed almost four years to take steps to progress his claim. This was, with respect, an absurd suggestion.
[68] Given these matters, we conclude that 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.
Did the Tribunal err in exercising its discretion to strike-out Mr Gwizo’s proceeding?
[69] Mr Gwizo submitted that the strike-out application gave rise to two questions: was there an abuse of process; if so, as a matter of discretion should the Tribunal strike out the proceeding? It followed that, even if his proceeding had become an abuse of process, that did not mean that it had to be struck out. Such a finding merely engaged the Tribunal’s discretion as to whether or not to strike out the proceeding. Mr Gwizo submitted that the Tribunal should have exercised its discretion by declining to strike out the proceeding. He said there were reasonable alternatives to striking out the entire proceeding.
[70] We have accepted, in our earlier review of applicable legal principles, Mr Gwizo’s submission that the strike-out application gave rise to a two-stage test. It is therefore correct that the Tribunal, having found that the proceeding was an abuse of process, had to consider whether to exercise its discretion to strike out the proceeding.
[71] The Tribunal was aware that it had a discretion. In its review of legal principles, the Tribunal referred to Mackrell v Universal College of Learning, in which Wild J said that the Tribunal had “a wide discretionary power to strike out or dismiss
a proceeding brought before it”.21 The Tribunal also said that “the jurisdiction to strike out is to be used sparingly” and that the fundamental constitutional importance of the right to access courts and tribunals must be balanced against the desirability of freeing defendants from the burden of litigation which is an abuse of process.22 The Tribunal would not have made these statements if it thought that a finding of an abuse of process led inevitably to the proceeding being struck out.
[72] It is clear from the Tribunal’s decision that it considered that the appropriate exercise of its discretion in this case was to strike-out the proceeding. We acknowledge that the Tribunal did not give explicit reasons for exercising its discretion in that way. But we consider that, in the circumstances of this case, strike-out was an appropriate exercise of the Tribunal’s discretion.
[73] First, although the Tribunal noted that the Attorney-General had not set out “serious” prejudice from Mr Gwizo’s non-compliance, some prejudice is inevitable from a delay of the magnitude that had occurred here.
[74] Secondly, Mr Gwizo did not appear to suffer any serious prejudice from his claim being struck out. The strike out meant that, if he wished to pursue his claim, he would have to start a new proceeding.23 That would have required Mr Gwizo to draft another statement of claim. He was already in that position anyway, given the direction that he amend his claim.
[75] Thirdly, in a case of an abuse of process, a relevant consideration (to the exercise of the discretion whether to strike-out) is the effect of the plaintiff’s non-compliance on the tribunal or court itself. The abuse is, after all, an abuse of the tribunal’s or court’s process. The resources of tribunals and courts are not unlimited. In this case, the Tribunal had to become repeatedly and unnecessarily involved in the proceeding as a result of Mr Gwizo’s deliberate failure to comply with a simple direction. Mr Gwizo’s memorandum in opposition to the strike-out application would
21 Mackrell v Universal College of Learning HC Palmerston North, CIV 2005-485-802, 17 August 2005 at [48]. The Tribunal referenced this specific paragraph.
22 Gwizo v Attorney-General [2021] NZHRRT 20 at [21].
23 At least at the date of the Tribunal’s decision, Mr Gwizo did not face any imminent limitation issue on commencing a new proceeding.
have given the Tribunal no confidence that Mr Gwizo intended to actively pursue his claim or that its active role in the proceeding would diminish.
[76] Given these matters, we consider that the Tribunal appropriately exercised its discretion by striking out Mr Gwizo’s proceeding. In particular, we reject Mr Gwizo’s submission that the Tribunal should have exercised its discretion in some other way. Mr Gwizo’s only alternative suggestion was that the Tribunal could have struck out the Governor-General as a defendant. But the Tribunal had already, on 6 November 2019, directed that the Attorney-General be substituted as the sole defendant (a direction that Mr Gwizo sought to re-litigate in his memorandum opposing strike out). Further, Mr Gwizo’s submission ignores that he was directed to file an amended claim that not only identified the correct defendant but also clarified the grounds of his claim. The Tribunal could not clarify the grounds on Mr Gwizo’s behalf.
Result
[77]We dismiss the appeal.
[78] The respondent is entitled to costs. If costs cannot be agreed, memoranda (not exceeding three pages each) may be filed: the respondent by 10 November 2022, Mr Gwizo by 24 November 2022.
Campbell J Ms W Gilchrist Ms D Hart
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