Jeffries v The Privacy Commissioner - [2007] NZCA 506

IN THE COURT OF APPEAL OF NEW ZEALAND
CA233/07
[2007] NZCA 506
UNDERthe Judicature Amendment Act 1972
IN THE MATTER OF an appeal from a decision of the High Court

BETWEENWILLIAM PATRICK JEFFRIES

Appellant

ANDTHE PRIVACY COMMISSIONER

Respondent

Hearing:12 November 2007

Court:Arnold, Panckhurst and Keane JJ
Counsel:D H O'Leary for Appellant

D Baltakmens and C Gwyn for Respondent

Judgment:16 November 2007 at 10 am

JUDGMENT OF THE COURT

A        THE APPEAL AGAINST AN ENLARGEMENT OF TIME FOR REVIEW IS DISMISSED.
B        THE RESPONDENT IS AWARDED COSTS OF $2,000 AND USUAL DISBURSEMENTS.
____________________________________________________________________
REASONS OF THE COURT
(Given by Panckhurst J)
Introduction
[1]       This is an appeal against a discretionary decision of Gendall J, by which he granted an enlargement of time to review a decision of an Associate Judge (Associate Judge Gendall) declining an application for further particulars.
[2]       The substantive proceeding is an application for judicial review whereby Mr W P Jeffries, as plaintiff, challenges the validity of certain decisions of the Privacy Commissioner. It is not necessary to refer to the substance of that proceeding in any detail. In a decision dated 20 October 2006 Associate Judge Gendall ruled on three interlocutory applications, two brought by the plaintiff seeking an order for the decision of preliminary questions of law and for further discovery, and one by the Privacy Commissioner for further particulars of the claim. In essence, all three applications failed.
[3]       The plaintiff filed an application to review the first two aspects of the Associate Judge’s decision within time. Until that point the Privacy Commissioner was not minded to seek a review of the decision concerning further particulars, but upon service of the plaintiff’s application for review, she decided to follow suit. Four days out of time, the Privacy Commissioner filed applications for enlargement of time and to review the particulars decision. The application for enlargement was dealt with on the papers. By a memorandum dated 21 May 2007 Gendall J extended time.
[4]       This decision in turn resulted in the filing of an appeal to this Court.
Basis of the appeal
[5]       Mr O’Leary advanced the appeal by reference to the considerations identified in Sutton v New Zealand Guardian Trust Co Ltd (1989) 2 PRNZ 111 (HC) as relevant to the general power of the Court to enlarge time pursuant to r 6 of the High Court Rules. These are the extent of the delay, the explanation (if any) for it, whether the other party has been occasioned prejudice and the merits of the issue for which an enlargement is sought.
[6]       Whilst acknowledging that the delay in this instance was minimal, counsel submitted that in several respects the Judge’s decision was challengable on available grounds for impeaching a discretionary decision.
[7]       After brief mention of the Sutton factors, Gendall J said this:
[5]     It is not clear to me whether the plaintiff is intending to pursue his original application for review of the Associate Judge’s decision. Whether or not it is to be pursued, I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NZCA 506
Decision Date: 16 November 2007

CaseChat Overview and Summary

In Jeffries v The Privacy Commissioner, William Patrick Jeffries appeals against the decision of Gendall J to grant an enlargement of time for the Privacy Commissioner to review a decision declining an application for further particulars. The substantive proceeding is a challenge by Jeffries against certain decisions of the Privacy Commissioner. The appeal is from a discretionary decision by Gendall J, who granted the Privacy Commissioner an enlargement of time to review the Associate Judge's decision.

The legal issues in this case revolve around whether the enlargement of time granted by Gendall J was plainly wrong. The considerations for enlarging time include the extent of the delay, the explanation for it, whether the other party has been prejudiced, and the merits of the issue for which an enlargement is sought. Jeffries argued that Gendall J's decision was based on an omission to apply the recognised criteria and relied on irrelevant speculation about the possible future interlocutory conduct of the parties.

The Court of Appeal found that Gendall J's decision was not plainly wrong. The Court recognised that the delay in this case was minimal, there was no prejudice to Jeffries, and the pendency of a review hearing made an enlargement of time appropriate. Gendall J focused on the practical aspect of avoiding further interlocutory delay and inconvenience. The Court concluded that Gendall J's decision was tailored to the particular situation of the case and represented a view that was available in light of the circumstances.

The appeal is dismissed, and the appellant is to pay the respondent's costs of $2,000 with usual disbursements. The Court reiterates that appeals against decisions granting enlargements of time are not to be encouraged.

Orders