Murray v Human Rights Review Tribunal - [2013] NZCA 441

IN THE COURT OF APPEAL OF NEW ZEALAND

CA212/2013
[2013] NZCA 441

BETWEEN

JOHN CARNE MURRAY
Applicant

AND

THE HUMAN RIGHTS REVIEW TRIBUNAL
First Respondent

GISBORNE DISTRICT COUNCIL
Second Respondent

Hearing:	16 September 2013
Court:	O’Regan P, Ellen France and Wild JJ
Counsel:	Applicant in person No Appearance for First Respondent D J O'Connor for Second Respondent
Judgment:	25 September 2013 at 11 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is dismissed.

BThe applicant must pay the second respondent costs for a standard application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Introduction

Mr Murray seeks an extension of time to appeal against a decision of Williams J delivered in the High Court on 18 December 2012.[1] The application is opposed by the second respondent, the Gisborne District Council (the Council). The first respondent, the Human Rights Review Tribunal (the Tribunal), abides the Court’s decision and was not represented at the hearing of the application.

Relevant law

[1]Murray v Human Rights Review Tribunal [2012] NZHC 3423.

The application is made under r 29A of the Court of Appeal (Civil) Rules 2005. As this Court said in My Noodle Ltd v Queenstown Lakes District Council, a number of factors are relevant to a decision whether to extend time.[2] These factors include the reason for the delay, the length of the delay, the conduct of the parties and the extent of any prejudice caused by the delay. However, an applicant for an extension of time is seeking an indulgence from the Court, and the Court will not grant such an indulgence in a case where the proposed appeal has no merit.[3] As was also made clear in Havanaco Ltd v Stewart, the ultimate test is whether granting the extension of time would meet the overall interests of justice.[4]

Background

[2]My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [19].

[3]Havanaco Ltd v Stewart (2005) 17 PRNZ 622 (CA) at [22].

[4]At [5].

There is a protracted history to the litigation involving the parties to the present application. It is not necessary for us to traverse it in this judgment, but the judgment of Williams J gives a summary of the particular concern which appears to have motivated Mr Murray.
For present purposes all that needs to be said is that Mr Murray had commenced judicial review proceedings against the Tribunal. Because the Council had been involved in the Tribunal proceedings, it was also a defendant in those judicial review proceedings.
Mr Murray’s judicial review application was motivated by his concern that the Tribunal had treated as facts certain allegations that had been made against him. In a statement of claim in the High Court, the relief he sought was an “order for the Tribunal to rescind their decision”.
The Court appointed Mr Hodson QC as amicus curiae (counsel to assist the Court).…

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: [2013] NZCA 441
Decision Date: 25 September 2013 at 11 am

CaseChat Overview and Summary

In the New Zealand Court of Appeal, Mr John Carne Murray sought an extension of time to appeal against a decision of the High Court. The Human Rights Review Tribunal and the Gisborne District Council opposed the application. The Tribunal was not represented, while the Council was represented by D J O'Connor. The Court dismissed the application and ordered Mr Murray to pay the Council costs. The Court held that the application was made outside the time limit and there was no reason to grant an extension of time. The Court considered a number of factors in reaching its decision, including the length of the delay, the reason for the delay, the conduct of the parties, the extent of any prejudice caused by the delay, and whether granting the extension of time would meet the overall interests of justice. The Court held that Mr Murray's delay was considerable, and while it accepted that he was confused about the length of the hearing, this would not prevent an extension of time being granted. The Court found that Mr Murray's conduct was verging on vexatious and that he had a cavalier attitude to the decisions of the Court. The Court held that the appeal was without merit and that there was no public importance in the matters which Mr Murray wished to contest. The Court held that it was not prepared to grant the extension of time that Mr Murray sought. The Court ordered Mr Murray to pay costs to the Council for a standard appeal on a band A basis as well as usual disbursements.

Orders