Huang v Han
[2020] NZHC 3251
•9 December 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-001818
[2020] NZHC 3251
BETWEEN I-CHIA HUANG
Applicant/Appellant
AND
LEI HAN
Respondent
Hearing: 9 December 2020 Appearances:
Applicant/Appellant in Person (by telephone link) D Beissel for Respondents
Judgment:
9 December 2020
JUDGMENT OF VENNING J
This judgment was delivered by me on 9 December 2020 at 3.45 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Duncan Cotterill, Auckland Copy to: Applicant/Appellant
HUANG v HAN [2020] NZHC 3251 [9 December 2020]
[1] Ms Huang seeks to appeal a decision of the District Court dismissing her application for a rehearing of an appeal from a decision of the Disputes Tribunal.
Procedural background
[2] Ms Huang and Mr Han were involved in a car accident. Ms Huang took proceedings in the Disputes Tribunal. On 28 November 2019 the Disputes Tribunal dismissed her claim and ordered her to pay Mr Han’s insurers IAG New Zealand Limited (IAG) $15,000.
[3] On 6 January 2020 Ms Huang filed a notice of appeal in the District Court. The appeal was dismissed by District Court Judge G Harrison on 19 June 2020 as Ms Huang failed to appear in support of her appeal. Ms Huang then filed a memorandum seeking a rehearing on the basis that she had not received notice from the Court of the hearing date. Judge Harrison treated that as an application for a rehearing and dismissed that on 6 July 2020, noting:
The notice of hearing was sent to the appellant’s nominated email address as for prior notifications. It did not ‘bounce’. The application is accordingly declined.
[4]That decision was notified to Ms Huang on 15 July 2020 by email.
[5]Ms Huang then filed an appeal in this Court on 1 October 2020.
[6] The appeal filed in this Court is out of time. High Court Rule 20.4 applies. The appeal should have been filed within 20 working days of 15 July 2020. That expired on 12 August 2020. The appeal was not filed in this Court until 1 October 2020, some seven weeks out of time. Special leave is required to extend the time for bringing the appeal out of time.
Background to this appeal
[7] Ms Huang’s appeal was first before the Court on 20 October 2020. As Powell J recorded Ms Huang initially indicated she had served the notice of appeal but when
pressed it appeared she had not served the appeal on Mr Han.1 The matter was adjourned. When it was next before the Court on 10 November 2020 Ms Huang appeared by telephone link. Moore J recorded that according to Ms Huang the Tribunal ordered damages in excess of $30,000 and it was that decision she had appealed to the District Court.2 The Judge directed the matter be called again on 1 December 2020. Despite the reference to $30,000 it seems clear the Disputes Tribunal award was for $15,000 as Ms Huang accepted before the Court today.
[8] On 27 November this Court noted that the appeal was filed out of time and that leave would be required. The call for 1 December was vacated and a substantive fixture allocated at 9.00 am on 9 December. The Court directed Ms Huang was to appear in person.
[9] In an earlier email of 27 October 2020 Ms Huang had advised the Court that she would be unavailable from 10 December due to settling and moving house and would be available in February 2021. The date of 9 December accommodated that request.
[10] Despite that, after receipt of the Court’s advice of the fixture on 9 December 2020 Ms Huang advised on 30 November 2020 she was unable to attend in person as she was currently working overseas and not in the country. Ms Huang then filed a memorandum dated 5 December 2020 in which she said she was unavailable on 9 December 2020 “due to a change in my personal circumstance”. The Court declined her application to vacate the hearing, noting that if she did not appear or arrange an appearance the Court would deal with the matter in her absence.
[11] Ms Huang then filed a further memorandum on 7 December 2020 in which she said: “I was required to attend a funeral for my uncle, who passed away unexpectedly on 2 Dec 2020”. She accompanied that memorandum with a draft affidavit, noting that she attended her uncle’s funeral on 5 December 2020 in Zhengzhou, China. The affidavit was not signed. There was no supporting documentation to confirm her absence from New Zealand.
1 Minute of Powell J, dated 20 October 2020.
2 Minute of Moore J, dated 10 November 2020.
[12] In the event the hearing proceeded. Ms Huang was connected by cell phone and addressed the Court in support of her application for leave to appeal and the appeal.
Principles
[13] In considering whether to grant leave to pursue the appeal out of time the Court will consider:3
(a)the length of delay;
(b)the reason and explanation for it;
(c)the parties’ conduct;
(d)the extent of prejudice caused by delay;
(e)the prospective merits of the appeal; and
(f)whether the appeal raises any issues of public importance.
Length of delay
[14] The length of the delay (seven weeks) is significant in the context of an appeal relating to a decision of the District Court concerning an appeal from the Disputes Tribunal. The intent of the procedures in the Disputes Tribunal and the District Court is that disputes are resolved promptly and with a minimum of procedural delay and attendant cost. Over a year has now passed since the Disputes Tribunal hearing.
Reasons/explanation
[15] Ms Huang has purported to provide an explanation for the lengthy delay in filing the appeal in this Court.
3 My Noodle Ltd v Queenstown Lakes District Council (2009) 19 PRNZ 518 (CA).
[16] Ms Huang says that she intended to appeal but the sudden implementation of Level 3 lockdown in Auckland “fell within the 20 working days limit. As a result the High Court was closed for filing in person”.
[17] Ms Huang also noted that the Community Law Centre only reopened when Auckland moved to Level 2.
[18] The Level 3 lockdown in Auckland applied from noon on 12 August 2020. Ms Huang’s suggestion that she was unable to file her appeal because of the movement to Alert Level 3 is misleading and unconvincing. Further, the Court remained open for filing by email, post or courier. In any event, as from 31 August the restrictions were lifted.
[19] Ms Huang also says she lost her job as a result of Covid and was focussed on applying for other jobs. With respect to that submission, she would obviously have had time to file the appeal with this Court within the 20 working days provided.
Prejudice cause by the delay
[20] There is no prejudice to Mr Han’s insurers by the delay. No stay has been granted. It is currently open to the insurers to seek to enforce the decision of the Disputes Tribunal.
Merits of the appeal
[21] The merits of the appeal do not favour granting leave. At the heart of Ms Huang’s claim is that the Disputes Tribunal Referee was wrong in concluding that she was responsible for the accident and that Mr Han was not at least contributory negligent. Ms Huang also wanted to challenge the cost of the repairs claimed by Mr Han. Those were the issues she wished to raise in the District Court appeal.
[22] However, as Ms Beissel submitted, s 50 of the Disputes Tribunal Act makes it clear that appeals to the District Court are restricted to appeals on the grounds that the proceedings were conducted by the Referee in a manner that was unfair and which prejudicially affected the result of the proceedings. Ms Huang clearly wants to
challenge the merits of the decision in the Disputes Tribunal rather than the process. Obviously she considers the result unfair because it has gone against her but that is not the test for unfairness under the Disputes Tribunal Act.
[23] Ms Huang refers to the failure of the Referee to take account of the provisions of the Contributory Negligence Act 1947 which allows for liability to be apportioned between the parties. Section 50(2) provides that if the Referee fails to have regard to a provision of an enactment brought to the attention of the Referee at the hearing and, as a result of that failure, the result of the proceedings is unfair to the appellant that may support an appeal. But the Referee would have been well aware of the need to consider whether Mr Han was contributory negligent. It is an issue which arises in every motor vehicle accident case. Ms Huang did not challenge Ms Beissel’s submission that the Referee heard from both her and Mr Han.
[24] There is, of course, no right of appeal to this Court from a substantive decision of the District Court on an appeal from the Disputes Tribunal.4
[25] Returning to the present, proposed, appeal to this Court. It is against Judge Harrison’s decision to decline the rehearing. The Judge declined the rehearing on the basis that he did not accept Ms Huang’s explanation for her non-appearance. That was on the basis that previous emails had been sent to Ms Huang’s email address and had not bounced back.
[26] Ms Huang wishes to make the point on appeal that from time to time emails suffer from occasional disruptions and outages and there may not be a bounce back message. She also refers to and relies on certain provisions in the Electronic Transactions Act 2002.
[27] Ms Huang’s reliance on the Electronic Transactions Act is misplaced. That Act was repealed on 1 September 2017. In any event it has a carve-out and does not apply to Court proceedings.
4 Disputes Tribunal Act 1988, ss 23 and 50.
[28] The material Ms Huang seeks to rely on in relation to the bounce back of emails is general in the extreme and ambiguous.
[29] The short point is that Ms Huang provided an email address to the District Court as an address for service. The District Court was able to communicate with her by email on two occasions prior to the notification of the fixture date without difficulty and further, Ms Huang clearly received notice of Judge Harrison’s decisions striking out her claim and, later, declining leave, all by email.5 The Judge was entitled to consider that the further email advising Ms Huang of the fixture date had been received by her. For those reasons the merits of her appeal to this Court are not at all strong.
Public interest
[30] There are no public interest issues engaged by the proposed appeal. Rather, there is public interest in finality of litigation and particularly, in avoiding the unnecessary cost that would be incurred by an unmeritorious appeal. For the reasons given above, an appeal to the District Court (even if a rehearing had been granted) would inevitably fail on the basis of the matters Ms Huang wishes to raise in any event.
Result
[31] Considering the above matters, particularly the delay in appealing to this Court and the lack of merits in the proposed appeal, the application for leave to appeal must be declined. The application for leave to appeal is dismissed accordingly and the purported appeal is struck out.
[32] I amend the intituling to remove reference to IAG as a respondent. It is subrogated to Mr Han’s rights and should not be cited as a party.
Costs
Costs on a 2B basis to the respondent.
Venning J
5 Ms Huang received email from the Court Registry on 12 February 2020 advising her appeal was set down on 15 May and then another email on 8 May advising the hearing would not proceed on that date. She also received notice on 23 June 2020 advising the appeal had been struck out.
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