Handy v Fire and Emergency New Zealand

[2018] NZHC 2525

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-621

[2018] NZHC 2525

BETWEEN

JARVIS-MONTREL HANDY

Appellant

AND

FIRE AND EMERGENCY NEW ZEALAND

Respondent

Teleconference:

24 September 2018

Counsel:

Mr Handy in Person

G C Davenport for Respondent

Judgment:

26 September 2018

JUDGMENT OF CHURCHMAN J

[1]    The appellant in these proceedings, Mr Jarvis-Montrel Handy, has applied for leave to appeal out of time a decision of the Human Rights Review Tribunal (the Tribunal) dated 26 June 2018.

[2]    Rather than this matter being dealt with in court, as a result of some health issues that Mr Handy has, it was dealt with by way of teleconference.

[3]    By memorandum dated 6 September 2018, supported by an affidavit of Richard James Dagger, also dated 6 September 2018, the respondent raised the issue of the Court’s jurisdiction to grant the remedies sought by Mr Handy.

[4]    Mr Davenport submitted that given the mandatory timeframe for filing an appeal from the decision of the Human Rights Review Tribunal (s 123(4) of the

HANDY v FIRE AND EMERGENCY NEW ZEALAND [2018] NZHC 2525 [26 September 2018]

Human Rights Act 1993 and HCR 20.6) had not been complied with, the Court had no jurisdiction to entertain an appeal.

[5]Section 123(4) of the Human Rights Act provides:

Every appeal under this section shall be made by giving notice of appeal within 30 days after the date of the giving by the Tribunal in writing of the decision to which the appeal relates.

[6]    In the case of Inglis Enterprises Ltd v Race Relations Conciliator,1 the notice of appeal was filed within the prescribed time but notice of the appeal had mistakenly been served on the Race Relations Conciliator instead of the Equal Opportunities Tribunal. By the time this error was rectified, the appeal was well outside the statutory 30-day time limit. In striking out the appeal for want of jurisdiction, Thorpe J preferred a “restrictive” rather than “liberal” construction of the predecessor Act’s right of appeal to the High Court stating:2

[O]verall my view of the proper interpretation of s  63 [the predecessor to     s 123(4) of the Act] is that its language clearly intends that appeals shall be brought by giving notice of appeal within 30 days to the Court and to the Tribunal, and does not in any ordinary and grammatical sense indicate any legislative intention to permit or authorise any extension of that time.

[7]    In Ta’ase v Victoria University of Wellington, Goddard J turned down an application for leave to appeal out of time finding that, while there was authorisation for an extension of time under r 705(1)(a) HCR, there was no such authorisation under s 123(4).3 Similarly, in Tamu v Veda Advantage (NZ) Ltd, Venning J dismissed an appeal on the grounds that the appellant was out of time, and there was no jurisdiction to grant an extension of time in which to appeal, relying on s 123(4) of the Act.4 The Court went on to note:5

While r 20.4(3) of the High Court Rules provides that by special leave, this Court may extend the time prescribed for appealing, it may only do so if the enactment that confers the right of appeal permits the extension; or does not limit the time prescribed for bringing the appeal.

1      Inglis Enterprises Ltd v Race Relations Conciliator (1994) 7 PRNZ 404 (HC).

2 At [407].

3      Ta’ase v Victoria University of Wellington (2000) 5 HRNZ 577, (1999) 14 PRNZ 406 (HC).
4      Tamu v Veda Advantage (NZ) Ltd HC Auckland CIV-2009-404-4069, 28 July 2009.

5 At [9].

[8]    The Court observed that the appeal right provided for under the Act does not include provision for an extension of time for bringing an appeal but rather provides a limitation on the time allowed for bringing an appeal.6

[9]    Mr Handy’s application for leave to appeal out of time was dated on 8 August 2018 and served on the respondent on 27 August 2018. As the Tribunal’s decision is dated 26 June 2018, this is outside the 30-day time limit for giving notice of appeal prescribed by s 123(4) of the Act. Although Mr Handy has health issues and has suffered numerous misfortunes over recent years, it is my view that the Court has no jurisdiction to grant leave to appeal under the Act.

[10]   Although Mr Handy did not consent to his appeal being struck out on the basis of lack of jurisdiction, he appeared to understand why the Court was obliged to do that.

[11]   Mr Davenport indicated that if the appeal was struck out, costs would lie where they fell.

[12]Accordingly, I make the following orders:

(a)that the appeal is struck out for want of jurisdiction; and

(b)costs lie where they fall.

Churchman J

Solicitors:
McBride Davenport James, Wellington for Respondent

6 At [10].