Gwizo v Chief Executive of the Ministry of Business, Innovation and Employment
[2022] NZHC 992
•10 May 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-001583
[2022] NZHC 992
UNDER The Human Rights Act 1993 BETWEEN
MALVERN GWIZO
Appellant
AND
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND
EMPLOYMENT
First RespondentATTORNEY-GENERAL
Second Respondent
Hearing: On the papers Judgment:
10 May 2022
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie On 10 May 2022 at 4.00 pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:…………………………
Solicitors/counsel:
Crown Law, Wellington
Copy to:
M Gwizo, Appellant
GWIZO v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2022] NZHC 992 [10 May 2022]
Introduction
[1] Malvern Gwizo appeals a decision made by the Human Rights Review Tribunal on 15 April 2021.1 The Tribunal struck out a claim Mr Gwizo had brought against the Attorney-General and reserved costs.
[2] There was an initial objection that the appeal was filed out of time but that issue was resolved by Gault J in a decision issued on 6 December 2021.2 The Judge held that Mr Gwizo’s appeal was not out of time. In a separate minute issued on 14 December 2021, Gault J directed, by consent, that Mr Gwizo’s appeal was to be determined on the papers. He put in place a timetable for the filing of submissions.
[3]Those submissions have now been received.
Background
[4] In December 2016, Mr Gwizo filed a claim in the Human Rights Review Tribunal alleging that an occupational personality questionnaire used by the Ministry of Business, Innovation and Employment:
(a)was discriminatory on the basis of race, colour, ethnic or national origin and disability; and
(b)that it breached the Treaty of Waitangi.
Mr Gwizo named the Governor-General and the Deputy Chief Executive of Immigration New Zealand as the defendants.
[5] The Crown filed a reply in January 2017 which recorded its view that the defendants were incorrectly named and that the correct defendant was the Attorney-General, on behalf of the Ministry of Business, Innovation and Employment.
1 Gwizo v Attorney-General (Strike-Out Application) [2021] NZHRRT 20.
2 Gwizo v Chief Executive of the Ministry of Business, Innovation and Employment [2021] NZHC 3306.
[6] Mr Gwizo filed a response in February 2017, maintaining that the Governor-General was a proper defendant, because the claim alleged a failure to abide by Treaty principles and because the Governor-General is the primary custodian of the Treaty.
[7] The Tribunal held a preliminary case management conference on 11 October 2018. At the conference, the Co-Chair of the Tribunal explained to Mr Gwizo:3
(a)that the Attorney-General, on behalf of the Ministry of Business, Innovation and Employment, was the proper defendant;
(b)that the claim could not proceed if Mr Gwizo maintained the named defendants; and
(c)that the Tribunal had no jurisdiction to deal with Treaty of Waitangi issues.
[8] At the conference, Mr Gwizo expressed some reservations about pursuing his claim due to the possible cost implications. He sought time to reflect and to take advice from a lawyer. He requested a date for the filing of any amended statement of claim. As a result, the Tribunal directed Mr Gwizo to file an amended claim by 29 March 2019.
[9]Mr Gwizo did not file anything by this date.
[10] On 24 April 2019, Tribunal staff contacted Mr Gwizo and asked him to advise whether or not his claim was to be withdrawn.
[11] Mr Gwizo responded and confirmed that he was not withdrawing his claim. He also confirmed that he would be seeking legal representation.
[12]On 6 November 2019, the Deputy Chair of the Tribunal issued a minute:
3 Gwizo v Ministry of Business, Innovation and Employment HRRT 086/2016, 11 October 2018.
(a)substituting the Attorney-General as the named defendant;
(b)recording that Mr Gwizo had not complied with the timetable direction for filing an amended claim;
(c)recording that it was for Mr Gwizo to progress his claim; and
(d)directing the Attorney-General, should he seek to have the proceeding struck out for non-prosecution and non-compliance with case management directions, to file an application for strike out by 6 December 2019.
[13] By email dated 12 November 2019, Mr Gwizo objected to the Tribunal’s minute and asked for another judicial officer to be appointed. He followed this up with a further email on 20 November 2019, advising that he had approached the Director of the Office of Human Rights Proceedings seeking representation, and seeking further time to allow the Director to review the proceedings.
[14] On 22 November 2019, Tribunal staff responded, confirming that the Deputy Chair’s minute and timetabling directions remained in place and recording that the Director of the Office of Human Rights Proceedings could make further application at any time.
[15] On 6 December 2019, the Attorney-General filed an application seeking that the claim be struck out under s 115A of the Human Rights Act 1993, on the basis that Mr Gwizo had failed to comply with the Tribunal’s directions for over a year, that he had failed to demonstrate that he was serious about his claim and asserting that the passage of time could have resulted in evidence becoming difficult to compile. The Attorney-General proposed that an unless order be made, to give Mr Gwizo a final opportunity to file an amended statement of claim.
[16] On 15 January 2020, the Deputy Chair of the Tribunal made an unless order and gave various timetable directions. She required Mr Gwizo to file and serve an amended statement of claim on or before 31 January 2020 and advised Mr Gwizo that
if he failed to do so, but wished to oppose the application for strike out, he was to file a notice setting out the grounds of his opposition by 7 February 2020.
[17] On 17 January 2020, Mr Gwizo filed a memorandum opposing the strike out, continuing to name the Deputy Chief Executive of Immigration New Zealand and the Governor-General as respondents, but also recording that he had previously consented to the Attorney-General being named as the defendant. On 28 February 2020, the Attorney-General filed a memorandum in response confirming that he wished to pursue his application to strike out and reiterating his grounds for seeking a strike out order.
[18] The Tribunal dealt with the Attorney-General’s application on the papers and issued its written decision on 15 April 2021. As already noted, the Tribunal struck out Mr Gwizo’s claim against the Attorney-General and reserved costs.
A preliminary issue
[19] A preliminary issue was raised by the Attorney-General in his submissions filed in support of the opposition to the appeal. It was noted that Mr Gwizo has appealed under s 123 of the Human Rights Act and that s 126 of the Act precludes the High Court from dealing with any appeal where a question of fact is involved unless there are two additional members of the Court appointed from a panel maintained by the Minister under s 101 of the Act. Counsel queried whether the Court should decline to deal with the application on the papers and rather direct that it should be heard with two members of the panel established by the Minister under s 101.
[20] Insofar as I can glean from the file, this issue had not previously been raised. The direction made by Gault J that the strike out application be dealt with on the papers recorded that it was made by consent. It does not seem that the matter was raised with the Judge.
[21]Relevantly, the Act provides as follows:
123 Appeals to High Court
(1)Where any party is dissatisfied with any interim order made by the Chairperson or a Deputy Chairperson under section 95, that party may appeal to the High Court against the whole or part of that order.
(2)A party to a proceeding under section 92B … may appeal to the High Court against all or any part of a decision of the Tribunal—
…
(e)constituting a final determination of the Tribunal in the proceeding.
…
[22] Here, Mr Gwizo was a party to the appeal proceeding and it was brought under s 92B. The strike out order made by the Tribunal constituted a final determination in the proceeding.
[23] The Tribunal’s decision, although made on the papers, contained various factual findings. The Tribunal considered that the issue to be determined was whether Mr Gwizo’s failure to comply with its direction to file an amended claim should be struck out, either on the basis that his failure to comply was deliberate or that it showed that he did not intend to pursue the proceeding contentiously.4 The Tribunal found that Mr Gwizo had deliberately made no attempt to file an amended claim and comply with the Tribunal’s directions. It considered that this was clear from Mr Gwizo’s memorandum dated 17 January 2020. It further found that Mr Gwizo’s reasons for non-compliance could not be attributed solely to his ignorance or disorganisation and that Mr Gwizo knew and understood why a direction requiring him to file an amended claim was necessary and not merely technical.5 The Tribunal found that Mr Gwizo fully understood what its direction required him to do and was aware of the consequences of not complying, that he consistently and deliberately failed to comply with the Tribunal’s direction and that his failure to do so showed that he did not intend to pursue the proceeding contentiously.6 The Tribunal commented that Mr Gwizo deliberately chose not to take the further opportunity to show his commitment to
4 Gwizo v Attorney-General, above n 1, at [27].
5 At [29]–[31].
6 Gwizo v Attorney-General, above n 1, at [34]–[36].
advancing the claim by filing an amended claim, and that he instead filed a memorandum opposing the strike out.7 The Tribunal concluded that Mr Gwizo’s consistent non-compliance was deliberate and that he did not intend to pursue the proceeding contentiously; accordingly, it had become an abuse of process.8
[24]All of these various findings involve questions of fact.
[25]Relevantly, s 126 of the Act provides as follows:
126 Additional members of High Court for purposes of Act
(1)For the purpose of the exercise by the High Court of its jurisdiction and powers—
…
(b)under section 123 in respect of any appeal under section 123(2) … in which a question of fact is involved,—
there shall be 2 additional members of the court who shall be persons appointed by a Judge of the court for the purposes of the hearing or appeal from the panel maintained by the Minister under section 101.
…
(3)The presence of a Judge of the High Court and of at least 1 additional member shall be necessary to constitute a sitting of the court.
[26] Section 126(1) is in mandatory terms. If the appeal involves questions of fact, the Court must decline to hear the appeal unless lay members appointed from the register maintained under s 101 have been appointed.9 Here, it is clear that the appeal raises questions of fact. No lay members have been appointed.
[27] Accordingly, I decline to deal with the appeal on the papers. Section 126 provides that the two additional members should be appointed by a Judge. The Registrar is to make enquiry as to who is appropriate and available and arrange
7 At [39].
8 At [45].
9 New Zealand Racing Conference v Proceedings Commissioner [2001] NZAR 659 (HC).
for the appointments to be confirmed by a Judge. The Registrar is then to allocate a telephone conference with the parties.
[28]No question of costs arises and no order is made in this regard.
Wylie J
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