Henry v Minister of Justice

[2020] NZCA 445

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA329/2020
 [2020] NZCA 445

BETWEEN	COLIN SAMUEL HENRY Applicant
AND	THE MINISTER OF JUSTICE First Respondent ATTORNEY-GENERAL Second Respondent

Court:	Kós P and Courtney J
Counsel:	Applicant in Person V McCall and J B Watson for Respondents
Judgment: (On the papers)	22 September 2020 at 3 pm

JUDGMENT OF THE COURT

The application for an extension of time to appeal is granted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

1. In 2018 Mr Henry responded to an advertisement by the Minister of Justice seeking expressions of interest for the position of Race Relations Commissioner at the Human Rights Commission.  Mr Henry was not appointed.  Concerned at aspects of the appointment process, Mr Henry applied for judicial review.  In a decision delivered on 28 June 2019, Gault J dismissed the application.[1]

   [1]Henry v Minister of Justice [2019] NZHC 1493.

2. Mr Henry wishes to appeal the decision on the ground that the Judge erred in concluding that the appointment process did not raise a legitimate expectation of the kind he had asserted.  However, Mr Henry is well out of time to bring the appeal.  He has applied for an extension of time to do so.[2]

   [2]Court of Appeal (Civil) Rules 2005, r 29A.

3. The relevant principles are those set out by the Supreme Court in Almond v Read.[3]  The overarching question in considering the exercise of the discretion to extend time is what the interests of justice require.  Specific factors likely to be relevant are the length of and reasons for the delay, the conduct of the parties (particularly the applicant), prejudice to the respondent or others with a legitimate interest in the outcome and the significance of the issues raised by the proposed appeal both to the parties and generally.[4]  The merits of the proposed appeal may be relevant but since consideration of the merits in this context can only be relatively superficial, refusal of an extension of time on this ground generally ought to be limited to cases where the appeal is clearly hopeless.[5]

   [3]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.

   [4]At [38].

   [5]At [39(c)].

4. The Crown opposes an extension of time being granted.  It says that Mr Henry’s nearly year-long delay is not adequately explained.  Mr Henry has provided a medical certificate and given additional details in his affidavit which confirm that he was quite unwell from the middle of 2019 until the end of April 2020.  He has also explained his difficulties in securing counsel to act for him, which addresses the delay from the end of April 2020 to mid-June 2020 when he filed his notice of application for extension of time to appeal.  Nevertheless, the Crown relies on an affidavit that Mr Henry filed in relation to costs in the High Court in which he referred to the “futility of pursuing any appeal”.  It says this shows that the delay in filing the notice of appeal was really due to a change of mind.  We do not accept that submission.  We view Mr Henry’s comments as an expression of frustration and his low expectation that any appeal might succeed rather than a decision not to appeal.  We are satisfied that the delay, although long, is adequately explained.

5. Secondly, the Crown asserts that there are aspects of Mr Henry’s conduct that should count against an extension being granted.  These relate to applications made in the High Court which were regarded as unusual and misconceived, together with his inclusion of “inflammatory and irrelevant material” in affidavits.  It is said that the Crown ought not be put to the cost of responding to this kind of material.  We agree that respondents ought not have to deal with irrelevant and inappropriate material.  But this is matter that can be addressed by costs.  Given that the delay has been satisfactorily explained we do not consider that ill-judged steps in the High Court ought to preclude time being extended for Mr Henry to exercise his right of appeal.

6. As to any public interest, Mr Henry argues that the case will provide an opportunity for this Court to determine whether the doctrine of legitimate expectation is part of the New Zealand common law.  The outcome of the appeal will not have any direct effect on Mr Henry’s position; notwithstanding his focus on the appointment process, he accepts that the appointment that was made will stand.  But, as the Crown accepts, there is a degree of public interest in the integrity of the appointment process to the office of Race Relations Commissioner.

7. Finally, the Crown says that the proposed ground of appeal appears weak.  We agree.  But it is not completely hopeless.  In the circumstances, where the right to appeal was not exercised as a result of ill-health, this fact should not be determinative against Mr Henry’s application. 

Result

1. The application to extend the time for bringing the appeal is granted.

Solicitors:
Crown Law Office, Wellington for Respondents