Gwizo v Chief Executive of the Ministry of Business, Innovation and Employment

[2021] NZHC 3306

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1583

[2021] NZHC 3306

UNDER

the Human Rights Act 1993

IN THE MATTER

of a decision of the Tribunal striking out a claim

BETWEEN

MALVERN GWIZO

Applicant

AND

CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND

EMPLOYMENT
First Respondent

ATTORNEY-GENERAL OF NEW ZEALAND

Second Respondent

Hearing:

On the papers

Appearances:

Applicant in person

H M Carrad and A P Lawson for the Respondents

Judgment:

6 December 2021

JUDGMENT OF GAULT J

This judgment was delivered by me on 6 December 2021 at 10:00 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Parties / Solicitors:

The Applicant

Ms H M Carrad and Ms A P Lawson, Crown Law, Wellington

GWIZO v CHIEF EXEUCTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2021] NZHC 3306 [6 December 2021]

[1]    Mr Gwizo seeks to appeal a decision of the Human Rights Review Tribunal dated 15 April 2021 striking out his claim that use of an occupational personality questionnaire by the Ministry of Business, Innovation and Employment to assess applicants for the role of immigration officer is discriminatory on the prohibited grounds of race, colour, ethnicity or national origin and disability in breach of the Human Rights Act 1993 (the Act).1 The Tribunal struck out the claim as an abuse of process on the basis of non-compliance with the Tribunal’s direction that Mr Gwizo file an amended statement of claim, and on the basis that he did not intend to pursue the claim conscientiously.

[2]    Mr Gwizo filed a notice of appeal on 16 July 2021 and then an application for leave to appeal out of time on 5 August 2021.

[3]    Although raised as a leave issue, the issue is whether Mr Gwizo’s appeal is out of time under s 123(4) of the Act. That section limits the time for appealing with no provision permitting an extension. Therefore, if the appeal is out of time, no extension of time is possible.2

[4]    I made timetable directions for the filing of written submissions and for the issue to be determined on the papers. The Attorney-General abides the decision of the Court, but Ms Carrad assisted by providing submissions on the relevant law.

Relevant facts

[5]    The Tribunal’s decision was emailed to email addresses for Mr Gwizo and Crown counsel on 15 April 2021. Mr Gwizo says that he did not receive the email, that he became aware of the decision by chance on the internet and corresponded with the Tribunal and Crown counsel on 19 May 2021 seeking an extension of time to appeal.

[6]    On 20 May 2021 the Tribunal sent Mr Gwizo an email attaching a screenshot of its 15 April 2021 email, but not the attached judgment.

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

2      Attorney-General v Howard [2010] NZCA 58, [2011] 1 NZLR 58 at [105].

[7]    Although the Tribunal’s correspondence with Mr Gwizo maintained that the judgment had been emailed on 15 April 2021, Ms Carrad advised Mr Gwizo that the defendant/respondent would abide the decision of the Court.

Time for appealing

[8]Section 123(4) of the Act provides:

Every appeal under this section shall be made by giving notice of appeal within 22 working days after the date of the giving by the Tribunal in writing of the decision to which the appeal relates.

[9]    The issue is the meaning of the phrase “the date of the giving by the Tribunal in writing of the decision”.3 Does it mean the date of the decision or the date the decision is given to the parties? I have not been referred to any cases dealing with this issue. However, reg 21(1) of the Human Rights Review Tribunal Regulations 2002 provides that a copy of the Tribunal’s decision must be “given” to the plaintiff, defendant and others, and reg 21(2) requires that each copy of the decision must contain, or have attached to it, a statement informing the parties of the right to appeal to the High Court and the procedure for exercising that right.

[10]   I consider the “giving … in writing of the decision” in s 123(4) means giving the decision to the parties. This aligns with the plain meaning of “giving” a decision and a purposive construction of the provision. Time to appeal should not begin to run until the party has been given the decision (by whatever means is permitted as a matter of the Tribunal’s procedure).4 This is consistent with the approach in Buchanan Construction Ltd v Watson,5 albeit that case involved an appeal where the Court could permit an extension of time. Gordon J calculated the delay from the date of receipt of the judgment.6

3      Rule 20.5 of the High Court Rules 2016 similarly states that the appeal period begins when the decision to which it relates is “given”.

4      Just as time only stops running for the purpose of “giving” notice of appeal in s 123(4) when the notice of appeal is filed and served: Attorney-General v Howard [2010] NZCA 58, [2011] 1 NZLR 58 at [97] and [99].

5      Buchanan Construction Ltd v Watson [2019] NZHC 624.

6 At [23].

[11]   Here, Mr Gwizo’s affidavit stating that he did not receive the Tribunal’s email of 15 April 2021 is accepted. Thus, the Tribunal’s decision was not given to him on 15 April 2021. Nor was it given to him on 21 May 2021 when unfortunately only a screenshot of the 15 April email was sent. While Mr Gwizo acknowledges that he became aware of the judgment on the internet by 21 May 2021, it was not suggested that the Tribunal gave its decision to the parties by uploading it to the internet. Accordingly, in the unusual circumstances of this case, Mr Gwizo’s appeal is not out of time under s 123(4) of the Act.

[12]   The appeal is to be listed in the next available civil appeals list to consider directions to progress the appeal by reference to the standard directions in Schedule 6 of the High Court Rules 2016. I will address the issue raised about the correct form of intituling at that conference.

Gault J