L v Chief Executive of Oranga Tamariki
[2024] NZHC 3266
•7 November 2024
INTERIM ORDER PROHIBITING PUBLICATION OF THE APPELLANT’S NAME AND IDENTIFYING PARTICULARS AS SET OUT IN [32] OF THIS JUDGMENT
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2024-419-273 [2024] NZHC 3266
UNDER s 123 of the Human Rights Act 1993 IN THE MATTER of an appeal against the decision of the
Human Rights Review Tribunal and for
orders for non-publication and for damages
BETWEEN L
Appellant
ANDCHIEF EXECUTIVE OF ORANGA TAMARIKI
Respondent
Hearing: On the papers
Counsel: Self-represented Appellant
S O’Connor and B Kalach for Respondent
Judgment: 7 November 2024
JUDGMENT OF BECROFT J
[As to application to dismiss self-represented litigant’s appeal]
This judgment was delivered by me on 7 November 2024 at 4pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
L v ORANGA TAMARIKI/MINISTRY FOR CHILDREN [2024] NZHC 3266 [7 November 2024]
The application
[1]This matter comes before me in chambers.
[2] Oranga Tamariki, the respondent, applies to dismiss Ms L’s appeal against the decision of the Human Rights Review Tribunal (the Tribunal).
[3] The ground for the dismissal application is under r 20.12(1) of the High Court Rules 2016 in that Ms L has failed to comply with this Court’s direction under r 7.15 by failing to adequately specify her grounds of appeal.
[4] Each side has filed written arguments. I am asked to decide the matter on the papers.
The Tribunal’s decision
[5] Ms L appeals the decision of the Tribunal dated 9 August 2024.1 In that proceeding, she alleged that Oranga Tamariki had unlawfully interfered with her privacy in breach of the Privacy Act 1993.2
[6] In its decision, the Tribunal made various findings; some in favour of Ms L, others not. Oranga Tamariki was directed to release a small amount of information previously withheld from Ms L. Ms L was awarded $10,000 in damages.3
Notice of appeal
[7] Ms L’s initial notice of appeal filed in this Court sets out the entire procedural history of her Tribunal claim with her own views of the Tribunal’s decision. Ms L’s notice of appeal ran to 10 pages with 26 paragraphs.
[8] With respect to Ms L, it is difficult to decipher exactly what it is she points to as being wrong with the Tribunal’s decision. It seems to me that she is dissatisfied with the decision as a whole.
1 [L] v Chief Executive of Oranga Tamariki [2024] NZHRRT 38.
2 At [15]–[16].
3 At [76].
[9] She also takes issue with the $10,000 award to her which, in her view, is “beyond disrespectful, and holds no comparison to being denied information for two to five years, to verify my refutes and innocence and to bring my son home”.
[10] Ms L is also clearly concerned that the material ordered to be provided to her is not meaningful and, as I take it, is regarded as being quite insufficient.
[11] Ms L also wishes for her name to be redacted from the decision. As I understand it, she seeks to have the High Court review the decision and make whatever orders in substitution it thinks appropriate.
[12] So to that extent some of her concerns are inferentially clear. But clearly, she has more concerns than I have been able to identify.
Directions for Ms L to specify points of appeal at case management conference
[13] At the case management conference on 2 October 2024, counsel for Oranga Tamariki submitted that Ms L’s grounds of appeal lacked clarity. Gordon J agreed.4 Gordon J explained to Ms L that it was necessary for her to specify the part or parts of the Tribunal’s decision she claims are wrong and why.5 Ms L was subsequently directed to file and serve her specific points on appeal clearly stating the issues.6
[14] Gordon J granted Oranga Tamariki leave to apply to dismiss Ms L’s appeal prior to hearing should she fail to adequately specify her grounds of appeal.7
[15] On 16 October 2024, Ms L filed a document titled “specified points of appeal”. The document runs to 73 paragraphs. In fact, Ms L points out that Oranga Tamariki miscalculates that the document runs to 15 pages—she emphasises that it is 16 pages long.
4 [L] v Oranga Tamariki HC Hamilton CIV-2024-419-273, 2 October 2024 at [3].
5 At [4].
6 At [5].
7 At [8].
Power to dismiss
[16] The power of the Court to dismiss or stay an appeal is provided by r 20.12 of the High Court Rules:
20.12 Dismissal or stay or abandonment of appeal or cross-appeal
(1)The court may, on application, dismiss or stay an appeal or a cross-appeal if the court is satisfied that the appellant or the respondent has failed to proceed with it, or has failed to comply with a direction under rule 7.15.
(2)The appeal is taken to have been dismissed, subject to the respondent’s right to apply for an order as to costs, if the appellant signs, files, and serves on every other party a statement to the effect that the appellant abandons the appeal.
(3)The cross-appeal is taken to have been dismissed, subject to the appellant’s right to apply for an order as to costs, if the respondent signs, files, and serves on every other party a statement to the effect that the respondent abandons the cross-appeal.
(emphasis added)
Oranga Tamariki’s argument
[17] Counsel for Oranga Tamariki respectfully submits that the appeal should be dismissed for failure to comply with the Court’s directions made under r 7.15, on the following grounds:
(a)The appellant’s specified points of appeal fail to articulate any identifiable grounds of appeal or specific errors she identifies in the decision.
(b)The appellant had what was required of her explained on two separate occasions so she could not have misunderstood the Court’s directions:
(i)first, when Gordon J informed the appellant in person what was required in order to adequately specify grounds of appeal at the case management conference on 2 October 2024; and
(ii)second, in her minute issued on 2 October 2024 Gordon J stated that the appellant needed to “specify the part or parts of the decision of the HRRT which she says is or are wrong and why
the decision is wrong in that or those respects (namely the grounds for the appeal)”.8
(c)The latest specified points of appeal is 15 pages long. [Actually 16 pages as Ms L has noted]. However, counsel for Oranga Tamariki maintain that they are unable to discern what parts of the decision are being appealed against, and why.
(d)Should the matter proceed to hearing on the current grounds, the Court will require more than the half day allocated for this hearing.
(e)It is not just, speedy, inexpensive, nor within the interests of justice, for the appellant’s appeal to proceed in its current form.
Discussion
[18] It can be very difficult for a government department, such as Oranga Tamariki, to deal with a self-represented litigant. Here, Ms L clearly feels strongly that the system has miscarried in respect of her role as a foster carer for a child placed in her care by Oranga Tamariki.
[19] That said, on the current state of Ms L’s appeal points, it will be virtually impossible for Oranga Tamariki to understand the nature of Ms L’s appeal. It would also be quite impossible for the Court to meaningful conduct the appeal hearing within the half day allowed. On the current state of the papers the appeal would not be a useful application of the Court’s time.
[20] Ms L may not understand what is meant by “points on appeal”. I will try to explain. The points should simply list, in summary form, where she believes the Tribunal has erred or made a mistake on the facts and/or on the law. Each appeal point should be clear and self-contained. The complete document need not, and should not, be longer than a page or two. Without such specificity as I say, any appeal would be wastage of valuable Court time.
8 At [4].
[21] I understand that Ms L thinks the whole of the Tribunal’s decision is wrong. Nevertheless, she should point out in brief and succinct form exactly where she believes the Tribunal went wrong. One of her points is clearly that the award of
$10,000 was insufficient. That should be made clear. Another of her points is that her name should be removed from the decision, and it should be anonymised. If I understood that correctly, that too, should be made clear. I note that Ms L does not appear to have sought non-publication orders in the Tribunal. Another point is that the Tribunal should have ordered that more documents be released to her. If I have got this right, then Ms L should briefly list these matters and any other errors she alleges the Tribunal has made.
[22] To further assist Ms L, can I explain in lay person’s terms what is required. Ms L should imagine how she would explain to a friend what is wrong with the Tribunal’s decision. That would involve listing a series of points/concerns that the friend would readily understand.
[23] If it meets that standard, then Oranga Tamariki and the Court will be able to understand her points also. Ms L should imagine herself saying to a friend “this is the first error by the Tribunal …”, “this is my second concern about the Tribunal’s decision
…”, “this is my third concern with the Tribunal’s decision” and so on. Finally, she should say, “this is what I want the High Court to do”. It need not be any more sophisticated than that. But given the appeal is set down for a half day, Ms L will be restricted to only those points of appeal.
[24] In her written opposition to this application, Ms L has done her best to explain and justify the length of her “points on appeal” document and, in my view, is taking the matter seriously. As a lay litigant, there is the possibility that she simply does not understand what a “points on appeal” document is.
[25] However, Ms L is also concerned that Oranga Tamariki is too quick to seek dismissal of the case considering that “they haven’t provided their submission, nor detailed their side of the case, and evidence, regarding their defence”.
[26] Ms L seems to miss the point that this is her appeal. It is her obligation first to set out what it is that specifically concerns her about the Tribunal’s decision. Only then is Oranga Tamariki obliged to respond, and indeed only then can it respond.
Conclusion
[27] Given Ms L is a private litigant, I am not satisfied that it is in the interests of justice to dismiss the appeal at this stage.9 Oranga Tamariki’s application is adjourned.
[28] I give Ms L leave to file a further and final notice of her appeal points. That document is to be no longer than three pages.
[29]Ms L has 10 working days from the date of this decision to do so.
[30] If she does not file appeal points, or if the appeal points are again unsatisfactory, then Oranga Tamarki’s application can be brought on at counsel’s request for final determination. In that eventuality, Ms L needs to know that it is highly likely her appeal would be dismissed.
[31] I add for the sake of completeness, that Oranga Tamariki’s consequential application to extend the time for it to file the common bundle of documents on behalf of both parties is granted. That common bundle must be filed within 14 working days of Ms L satisfactorily filing a further and final notice of her appeal points.
[32] Given my understanding that one of Ms L’s grounds of appeal is that the Tribunal erred in not removing her name from the decision and anonymising it, I make an interim order prohibiting the publication of her name or identifying particulars until final determination of this dismissal application. If Ms L has complied with [29], the interim order will continue until the final determination of the appeal.
Becroft J
9 The interests of justice are the ultimate consideration: Gibson v Dental Disciplinary Tribunal (2005) 17 PRNZ 669 and the commentary to r 20.12 in Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR20.12.01].
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