Mihaka v Housing New Zealand Corporation

[2018] NZHC 539

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV 2017-485-736

[2018] NZHC 539

BETWEEN

TE RINGA MANGU NATHAN MIHAKA

Appellant

AND

HOUSING NEW ZEALAND CORPORATION

Respondent

Hearing:

28 February 2018

Counsel:

Appellant in Person

F J Cuncannon for Respondent K J Raue as McKenzie Friend

Judgment:

26 March 2018

JUDGMENT OF ELLIS J

[1]                  Mr Mihaka appeals a  decision  of  the  Human  Rights  Review  Tribunal  (the HRRT) striking out a discrimination claim he had brought  against  Housing New Zealand Corporation (HNZ) for want of prosecution.1

[2]The matter has a complicated factual and procedural history.

Background

[3]In 2003, HNZ granted Mr Mihaka a tenancy of a property in Michael Road,

Paraparaumu Beach.

1      Mihaka v Housing New Zealand Corporation [2017] NZHRRT 29. A right of appeal exists under s 123 of the Human Rights Act 1993.

MIHAKA v HOUSING NZ CORP [2018] NZHC 539 [26 March 2018]

[4]                  On 31 October 2014,  HNZ issued a termination notice to Mr Mihaka under   s 51(l)(d) of the Residential Tenancies Act 1986 (the RTA). This notice provided that his tenancy would expire on 11 February 2015.

[5]                  On 21 November 2014, an application was made under s 56(1) of the RTA to terminate Mr Mihaka’s tenancy on an earlier date. This was sought on the basis that he had allegedly assaulted his neighbour, in breach of his tenancy agreement, and that the breach was incapable of remedy.

[6]                  I interpolate here that Mr Mihaka was also charged and, later, convicted in relation to the assault.2 His appeal against that conviction was unsuccessful.3 He nonetheless continues to harbour a sense of injustice about it. It is that sense of injustice that seems to lie at the heart of the present matter.

[7]                  On 2 December 2014, the adjudicator issued an order terminating Mr Mihaka's tenancy  and  granting   possession   to   the   Respondent   effective   from   midday 3 December 2014.4 Mr Mihaka did not vacate the premises by that date and nor had he left by 11 February 2015, which was the date the first termination notice expired.

[8]                  In April 2015, HNZ filed an application in the Tenancy Tribunal seeking a Possession Order. That application  was  heard  on  24 April.  After  hearing  from Mr Mihaka, the adjudicator ordered that the tenancy be terminated and specified a time within which Mr Mihaka was required to move out. On 8 May 2015, she made a direction granting possession to HNZ. This order was not based not on the termination notice which was based on the allegation of the breach/alleged assault but on the earlier notice issued on 31 October 2014.

[9]                  On 28 April 2015, before the possession order took effect, Mr Mihaka filed in the Porirua District Court a notice of appeal against the Tenancy Tribunal decision. In November 2015, Mr Mihaka filed a statement of claim in the HRRT. It alleged that

2      NZ Police v Mihaka [2015] NZDC 6404.

3      Mihaka v Police [2015] NZHC 1318. Leave to bring a second appeal was declined by the Court of Appeal in Mihaka v R [2015] NZCA 560.

4      There was no appearance by Mr Mihaka at the hearing.

HNZ’s decision to terminate his tenancy had discriminated against him on the grounds or age and ethnicity. The relevant pleading was as follows:

[1]     It is therefore alleged that HNZ  has  indirectly  discriminated  against Mr Mihaka in terms of s 21(1)(i) of the Human Rights Act 1993 in that their practices in evicting Mr Mihaka amount to indirect/disparate impact discrimination by virtue of the disproportionate adverse impact on a person in a protected class (here Mr Mihaka having s 21(1) Human Rights Act 1993 characteristics, relevantly age).

[2]   Further, given the over-representation of Maori males in criminal justice statistics in New Zealand, it is alleged that the eviction of Mr Mihaka on account of a conviction for a criminal offence disproportionately/disparately impacts on Maori and as such constitutes indirect discrimination on the basis of race from which Mr Mihaka is protected by s 2(1)(f) of the Human Rights Act 1993.

[10]Mr Mihaka’s appeal from the Tenancy Tribunal decision was adjourned

pending the resolution of the HRRT complaint.

[11]              On 8 August 2017 (more than 19 months after the commencement of the claim, and almost three years after HNZ served the original 90-day notice on Mr Mihaka) the HRRT dismissed Mr Mihaka’s claim for want of prosecution. I shall summarise its reasons, shortly, below.

[12]                HNZ then invited the Porirua District Court to set down a hearing for the appeal against the Tenancy Tribunal’s decision granting the possession order. The appeal was heard by Judge Carruthers on 2 November 2017. The Judge dismissed Mr Mihaka’s appeal and granted HNZ 90 days from 2 November 2017 to enforce its possession  order  (ie  to  30  January  2018).5  In  the  course  of  his  decision,   Judge Carruthers expressly addressed the relevance of the assault allegation. After noting that Judge Walker had already recorded that the assault matter was irrelevant and the earlier termination notice was both valid and operative, he said:

[20]      Mr Mihaka and his agent have found this difficult to accept. The allegation that Mr Mihaka assaulted his neighbour is vigorously denied and is still moving its way ponderously through the system. There has been a recent application for the Judge at first instance to recall her decision on the criminal charge. There have been appeal proceedings. A further appeal is pending and

5      For reasons that are unclear, the decision  takes  the  form  of  a  (30  paragraph)  minute:  Mihaka v Housing    New    Zealand     Corporation     DC     Porirua     CIV-2015-091-000165, 2 November 2017.

has been adjourned until November. The criminal proceedings are still the subject of contest which continues.

[21]      Ms Raue, with permission of the Court acted as Maori agent for    Mr Mihaka and spoke eloquently in his support, referring to various instances of inconsistencies and procedural matters including disclosure failures and difficulties about legal representation relating to the alleged assault which had not been attended to. She made the major point in a very forceful way that Mr Mihaka had always denied such an assault and his denial continues.

[22]      I accept her submissions about that. Mr Mihaka confirmed again in this Court his denial. Those matters are still current as I have said.

[23]      What is, however, now clear looking back is that when the Respondent saw that the matter of its initial notice was intimately linked to the assault allegation, it repented of having made that link and proceeded on the original Notice giving 90 days' notice of termination which, as Mr Mihaka and his agent accept, was perfectly valid for them to do.

[24]       It is that Notice and the Order based upon it which is now the subject of the appeal; the matter of assault which clouded the issue at the beginning is now no longer relevant.

[25]      I find the foregoing as a fact because it is something which has dogged this matter considerably. It is the second order for possession made by the Tenancy Tribunal based on the Notice of the 31 October 2014 which is the relevant document now. There is no doubt that was validly made and validly served.

[13]              HNZ has not, however, taken any further steps to enforce the possession order subsequent to Judge Carruthers’ decision and Ms Cuncannon advised that does not intend to do so. Mr Mihaka therefore continues to reside at Michael Rd and is no longer in jeopardy of eviction.

The HRRT decision

[14]              The decision dismissing Mr Mihaka’s claim is lengthy and thorough. It begins by detailing some of the background I have touched on above, and noting:

[6]    This   history   is   mentioned   because   at   times   the   conduct   of Mr Mihaka’s case before the Tribunal suggested he mistakenly viewed the present proceedings as an opportunity to re-litigate issues already determined by the Tenancy Tribunal, by the District Court, by the High Court and by the Court of Appeal.

[15]Next, the Tribunal records:

(a)The history of Mr Mihaka’s legal representation in the proceedings (the upshot  being  that  he  had  not  had  legal  representation  since  6 April 2016).

(b)The initial allocation of a hearing date 4 and 5 July 2016 (then changed at HNZ’s request to 3 and 4 August 2016) and the making of directions as to the filing of evidence.

(c)Ms Raue’s involvement as Mr Mihaka’s McKenzie friend or “Maori agent” and the extension of the timetable for filing evidence at her request to 1 July 2016.

(d)At the commencement of the hearing on 3 August 2016, Mr Mihaka had still filed no evidence and sought an adjournment on a number of grounds. These included that the proceedings had been brought without his knowledge or consent and that he had only just learned that he could seek assistance with his claim from the Director of Human Rights Proceedings (the Director).

(e)An adjournment was granted, with notice to Mr Mihaka that the HRRT was unlikely to be sympathetic to further delays, particularly given the stay of the appeal in the District Court.

(f)A further timetable was directed as to initiating contact with the Director and as to the filing of evidence and a new hearing date of    28 and 29 September was allocated.

(g)Further minutes containing advice to Mr Mihaka about how to progress matters were issued.

(h)The 28 and 29 September hearing date was changed to 28 September as a result of advice that Mr Mihaka  had a medical appointment on  29 September.

(i)There  were  some  IT  difficulties  (at   the   Director’s  end)   with  Mr Mihaka’s initial application to the Director for assistance and he was asked to resubmit it.

(j)The day before Mr Mihaka was due to file his evidence, Ms Raue sought an extension of time on the grounds of the confusion about the application and on medical grounds.

(k)A further adjournment was granted, with the hearing rescheduled for 15 and 16 November 201. Mr Mihaka was put on notice that he needed to arrange his medical appointments so that that fixture was not jeopardised.

(l)The November hearing had to be cancelled because of the Kaikoura earthquake, but Mr Mihaka did not respond to requests as to his future availability.

(m)Mr Mihaka intermittently raised an issue about whether one of the HRRT members, Mr Shirley, should recuse himself. But, despite being asked to do so, Mr Mihaka did not file any formal application for recusal. He advised in August 2016 that he did not intend to pursue the matter but raised it again in November 2016. Despite again being invited to file a proper application, he did not do so. Ms Raue advised by email in February 2017 that recusal was sought but that was declined, with reasons on 2 March 2017.6

[16]              The Tribunal goes on to note that Mr  Mihaka filed  his brief of evidence  on 3 April 2017. It focused on the Police prosecution on the assault charge, alleging discrimination on their part. He also alleged discrimination on the part of HNZ by “ignoring” his version of those events. The HRRT commented:

6      Mihaka v Housing New Zealand Corporation (Recusal Application) [2017] NZHRRT 7.

[44]      This "discrimination" claim is not the one advanced in the statement of claim and is in any event devoid of particulars and supporting evidence. The proposed evidence cannot, even if accepted  at  face  value,  establish Mr Mihaka's case as pleaded in the statement of claim.

[45]      What the statement of evidence shows is that Mr Mihaka and Ms Raue have little or no understanding of the nature of the proceedings before the Tribunal. Most importantly, there is little understanding that Mr Mihaka is the plaintiff and that he carries the burden of establishing the two causes of action pleaded in the statement of claim. They have singularly failed to grasp that the hearing before the Tribunal is not a rehearing of the Police prosecution or of  the  Tenancy   Tribunal   hearing.   As   noted   in   the   Minute   dated   13 October 2016 at [9] this fundamentally misconceived understanding of the Tribunal proceedings has persisted from the beginning to the end despite repeated efforts by the Tribunal to explain that the Tribunal has no jurisdiction to revisit the criminal case or the tenancy hearing.

[17]The decision then continues with the chronological narrative. It records that:

(a)The substantive hearing began on 3 April 2017.

(b)Mr Mihaka sought again to pursue the issue of recusal. The argument consumed most of the morning. To avoid further unnecessary distraction, Mr Shirley volunteered to (and did) step aside. This necessitated a replacement panel member to travel from Christchurch to enable the HRRT to sit on the second day.

(c)Despite confirming that they would be ready to proceed on 4 April, at just before 8 am Ms Raue left a message on the case manager’s phone that Mr Mihaka was unwell and therefore unable to attend.7 Despite a direction that any adjournment application was to be made in person, neither she nor he appeared that day;

(d)HNZ opposed any adjournment but one was granted, on the condition that by 11 April, Mr Mihaka provide a medical certificate from a registered medical practitioner setting out the reasons why Mr Mihaka was unable to attend the hearing on 4 April 2017. The certificate was

7      The HRRT notes that no mention had been made of this in a lengthy email Ms Raue had sent about an hour earlier.

also to advise the length of time that Mr Mihaka was deemed to be medically unfit to participate in the hearing.

(e)A sparse medical certificate was not provided until 18 April. It did not contain the detail directed and did not bear out Ms Raue’s advice as to why Mr Mihaka had been unwell. A direction was made that the previously requested information be provided.

(f)On 16 May 2017, a new hearing date on 17 and 18 July was set.

(g)On 1 June, Ms Raue advised by email that she could not attend on either day. The Secretary of the HRRT advised that she was to provide supporting information by 9 June although it was foreshadowed that the dates could be changed to 19 and 20 July to accommodate her.

(h)None of the further information sought was provided. The hearing dates were nonetheless changed to 19 and 20 July.

(i)On 18 July, Ms Raue emailed the Tribunal seeking an adjournment on the grounds that Mr Mihaka was unwell and would not be able to attend the hearing the following day. Attached to the email was a document purporting to be a medical certificate to that effect, although it was dated 5 days earlier, was unsigned and contained no detail.

(j)On 19 July, Ms Raue was advised that the HRRT had directed that all parties (including Ms Raue) attend that day at 10 am.

(k)Neither Mr Mihaka nor Ms Raue appeared. An adjournment was opposed by on a number of obvious (in light of the history above) grounds.

(l)The Tribunal determined that an adjournment should not be granted and Mr Mihaka’s claim should be dismissed.

[18]              After that decision had been made, Ms Raue emailed the Tribunal saying that she had also been too unwell to attend on 19 July and she was trying to get a medical certificate. None was ever received.

[19]              In the course of its reasons for dismissing the claim, the HRRT made it clear that it attached no blame to Mr Mihaka for the adjournments in September or November 2016. The Tribunal also acknowledged that allowances should be made for the fact that he had been essentially self-represented. But, it noted that:

(a)on at least three separate occasions, Mr Mihaka had emphatically stated that the proceedings had been brought without his knowledge or consent, that he did not know why the case had been brought and did not understand what the case was about;

(b)Mr Mihaka’s bafflement as to why the proceedings had been brought might explain his indifference to the multiple timetable directions and his responsibility to attend hearings and the absence of any focus on the actual issues raised by it;

(c)the failure to attend the hearing on 4 April 2017 was particularly egregious given that following the  stepping aside of Mr  Shirley on   3 April 2017, Mr Mihaka and Ms Raue:

(i)explicitly confirmed they would be ready to proceed when the hearing resumed at 9am the following morning; and

(ii)knew a new Tribunal member would be travelling overnight to Wellington for the hearing the next day.

(d)the failure to turn up on 19 and 20 July 2017 was also particularly egregious, given those dates had been allocated expressly to accommodate  Ms   Raue’s   asserted   unavailability   on   17   and   18 July 2017;

(e)the evidence filed by Mr Mihaka could not possibly establish a discrimination claim;

(f)the medical certificates filed in support of the adjournment requests were inadequate and did not comply with the Tribunal’s express directions; and

(g)Mr Mihaka’s pursuit of the recusal application was cavalier in that he failed to file a formal application when directed and pursued the issue even after the Tribunal had given a reasoned ruling on the issue.

[20]Then, the Tribunal said:8

The resources of the Tribunal are presently under sustained pressure. The reasons are set out in Wall v Fairfax New Zealand Ltd (Delay) [2017] NZHRRT 8. Briefly, in 2015 the number of new cases filed with the Tribunal increased 113% over 2014 and in 2016 that increase was 145%. Owing to legislative oversight, the Human Rights Act does not allow the appointment of a deputy chair (or chairs) to assist the Chairperson to keep pace with a large inflow of new cases. Consequently the Tribunal has a backlog of cases awaiting hearing as well as a backlog of cases awaiting determination. Because the Tribunal's resources are limited it has a responsibility to all litigants to ensure those resources are employed effectively and not needlessly wasted. The substantial time consumed by Mr Mihaka’s case could have been applied to other cases in which the parties want the earliest hearing of their claim.

[21]              And lastly, the Tribunal noted the ongoing real prejudice to HNZ. As well as wasted the legal costs and the continued stay of the Tenancy Tribunal appeal in the District Court (pending the resolution of the discrimination claim), the HNZ witness had been put under real and repeated strain whilst undergoing medical treatment herself.

The appeal

[22]              Against that rather lengthy background, the present appeal can shortly be disposed  of.  Notwithstanding  Ms  Raue’s  articulate  submissions   on  behalf  of Mr Mihaka, they largely failed to address the matter in hand, namely whether the HRRT’s decision was wrong. Those submissions made it clear beyond doubt that his

8      Mihaka, above n 1, at [79.7].

principal concern continues to be with the assault prosecution and the circumstances giving rise to it. The merits of the assault charge and Mr Mihaka’s conviction has been fully ventilated in other, appropriate, fora.

[23]              The only other matter raised by Ms Raue that arguably went to the decision of the HRRT was her submission that the Tribunal’s directions that she and Mr Mihaka should provide more particularised medical certificates in support of their adjournment applications breached his privacy rights. I am unable to agree. Mr Mihaka’s repeated defaults and non-appearances were undoubtedly of some real consequence to the Tribunal in terms of its valuable and scarce resources. Moreover, the narrative I have summarised above, objectively gives rise to real doubt as to either the genuineness or the acuteness of some of the relevant medical conditions put forward by Mr Mihaka and Ms Raue as justifying their non-attendance. In my view, the Tribunal was more than justified in requiring proper, detailed and authenticated, supporting material.

[24]Beyond those points, it is also quite apparent that:

(a)as the HRRT said, Mr Mihaka had little appreciation of the proper ambit of a discrimination claim;

(b)there was nothing in the material before the Tribunal or this Court that suggests that there was ever a proper basis for such a claim; an allegation of general “unfairness” (in relation to the way in which the assault was handled) does not suffice; and

(c)the Tribunal went to great lengths to accommodate Mr Mihaka despite his almost complete and longstanding disregard of timetable directions and fixture dates.

[25]              And lastly, there is the important practical point that Mr Mihaka’s tenancy continues and is likely to remain in place. Any wider concern that something unfair or wrong has happened here (and I am not to be taken as suggesting that there are any grounds for such a concern) is necessarily considerably diminished by the absence of any real, ongoing prejudice to him.

Result

[26]The appeal is dismissed.

Rebecca Ellis J