Mitchell v Chief Executive of the Department of Corrections

[2023] NZHC 3305

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2023-485-467

[2023] NZHC 3305

BETWEEN

KERRYN MITCHELL

Applicant

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:

20 November 2023

Appearances:

Applicant in person

S L K Shaw for the Respondent

Judgment:

21 November 2023

JUDGMENT OF PALMER J

Solicitors

Meredith Connell, Wellington

MITCHELL v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZHC 3305 [21

November 2023]

What happened?

[1]    On 11 July 2023, the Human Rights Review Tribunal dismissed Ms Keryn Mitchell’s claim against the Department of Corrections for breach of her privacy.1 It held that Ms Mitchell had proven a breach of an Information Privacy Principle 11 but that Corrections had successfully proven the breach was not an interference with privacy.2 The Tribunal made non-publication orders in relation to a medical report and ordered that its file not be searched without leave, with the parties having the opportunity to be heard on any application. I make the same orders regarding the High Court file.

[2]    Ms Mitchell sought to appeal. There is no dispute about the timeframes. On Sunday 13 August 2023, 23 working days after the Tribunal’s decision Ms Mitchell emailed the High Court advising that she intended to appeal the decision and apply for an extension of time to do so. The application itself was not filed until 17 August 2023, 26 working days after the Tribunal’s decision, and served on 30 or 31 August 2023, 35 or 36 working days after the Tribunal’s decision.

Relevant law

[3]Relevantly, s 123(4) of the Human Rights Act 1993 (the Act) states:

(4) Every appeal under this section shall be made by giving notice of appeal within 22 working days after the date of the giving by the Tribunal in writing of the decision to which the appeal relates.

[4]Rule 20.4 of the High Court Rules 2016 (the Rules) provides:

20.4     Time for appeal if there is right of appeal

(1)This rule applies if a party has a right of appeal to the court.

(2)An appeal must be brought—

(a)within the specified period if the enactment that confers the right of appeal specifies a period within which the appeal must be brought; or

1      Mitchell v Chief Executive of the Department of Corrections [2023] NZHRRT 18.

2 At [63].

(b)in every other case, within 20 working days after the decision appealed against is given.

(3)By special leave, the court may extend the time prescribed for appealing if the enactment that confers the right of appeal—

(a)permits the extension; or

(b)does not limit the time prescribed for bringing the appeal.

…

[5]    In Attorney-General v Howard, the Court of Appeal made clear that the 22-day timeframe to appeal, set out in the Act, cannot be extended by the Courts:3

[100] As the time frames for filing and service [of an appeal] are set out in the [Act], they are mandatory. They cannot be extended by the courts as there is nothing in the [Act] authorising such an extension . . .

Submissions

[6]    Ms Mitchell acknowledges that it appears she is time-barred from bringing her appeal out of time. But she submits the New Zealand cases are distinguishable. In particular, she submits the appeal in Attorney-General v Howard had no merit. She asks the Court to exercise its inherent power to remedy an error or fault under the doctrine of loss of a chance, on the basis it is an application for relief from a sanction, under r 1.9 of the Rules. This would accord with r 3.9 of the Civil Procedure Rules 1998 (UK) and British case law.4 She submits r 20.4(3)(b) of the High Court Rules applies because the Act is silent on limiting the time prescribed for bringing the appeal

— it does not say what happens if the time is not met. To the extent the 22-day time limit in the Act is related to the timeframes for government action in response to a declaration of inconsistency, that does not involve her case. The Court should bring the situation to Parliament’s attention.

[7]    Ms Shaw, for the respondent, submits the Court has no jurisdiction to grant an extension of the time limit in s 123 of the Act. The English decisions Ms Mitchell relies upon are based on a different legislative framework.

3      Attorney-General v Howard [2010] NZCA 58, [2011] 1 NZLR 58 per Glazebrook J. William Young and Robertson JJ agreed, at [168] and [183] respectively.

4      Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795; Denton v TH White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3926; and In Re H (Children) [2015] EWCA Civ 583.

Can the time to bring an appeal be extended?

[8]    It is clear the appeal was both filed and served outside the 22-day period for appeal, which expired on Friday 11 August 2023. It is also clear that the Court of Appeal’s decision in Attorney-General v Howard means that the High Court cannot extend that time. That conclusion has been consistently applied by the High Court and recently confirmed again by the Court of Appeal in Singh v Auckland District Health Board.5 Wylie J held in Director of Civil Aviation v Shahroodi that an argument based on inherent jurisdiction fails.6 The only right of appeal is that conferred by s 123 and Howard deals with the timeframes.7 The Act does not permit the extension and the Act does limit the time prescribed for bringing the appeal. Rule 20.4(3) does not apply.

[9]    Ms Mitchell’s argument based on the authorities from England and Wales is inventive. But those decisions are ultimately based on the Civil Procedure Rules (UK) which makes explicit provision for granting relief from sanctions imposed under those Rules. In New Zealand, neither r 1.9 of the High Court Rules nor the inherent power of the Court can displace the statutorily mandated deadline required by s 123 of the Act. The Court is not able to extend Ms Mitchell’s time to bring an appeal.

Result

[10]   The application is dismissed. The same suppression orders apply to the High Court file as apply to the Human Rights Tribunal file. The High Court file is not to be searched without leave of a Judge, with the parties having the opportunity to be heard on any application.

Palmer J

5      See: Murray v Gisborne District Council [2011] NZCA 282 at [8]–[9]; and Singh v Auckland District Health Board [2023] NZCA 391 at [9] and [16]. The Supreme Court recently declined leave to appeal the latter decision: Singh v Auckland District Health Board [2023] NZSC 152.

6      Director of Civil Aviation v Shahroodi HC Auckland CIV-2011-404-2337, 4 October 2011.

7 At [58].