Murray v Human Rights Review Tribunal - [2012] NZHC 3423

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-2459 [2012] NZHC 3423

UNDER the Judicature Amendment Act

IN THE MATTER OF an application for a Judicial Review

BETWEEN JOHN CARNE MURRAY Applicant

ANDHUMAN RIGHTS REVIEW TRIBUNAL First Defendant

ANDGISBORNE DISTRICT COUNCIL Second Defendant

Hearing: 5 December 2012

Counsel: C J Hodson QC for Applicant
D M Consedine for First Defendant
D J O'Connor for Second Defendant
K Evans for Privacy Commissioner (Appearance) Judgment: 18 December 2012

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 12.30pm on the 18th December 2012.

JUDGMENT OF WILLIAMS J

Solicitors:
C J Hodson QC, Wellington, email: chodson@xtra.co.nz
Crown Law, Wellington, email: Danielle.consedine@crownlaw.govt.nz
D J O’Connor, Barrister, Napier, email: david@davidoconnor.co.nz
K Evans, email: katrine.evans@privacy.org.nz

JOHN CARNE MURRAY V HUMAN RIGHTS REVIEW TRIBUNAL HC WN CIV-2011-485-2459 [18
December 2012]

[1] The application before me is yet another attempt to strikeout yet another judicial review proceeding commenced by Mr Murray in person. In the substantive proceeding, he seeks various orders in an attempt to limit the publication of adverse findings of the Human Rights Review Tribunal to the effect that he had levelled threats against an officer of the Gisborne District Council (Council), Mr Birt. The Council has applied to strike-out this claim insofar as it relates to it.

[2] The application before the Tribunal was for the Council to provide full disclosure of a memorandum dated 11 December 2008 that had been partially redacted. Prior to the hearing, the Council agreed to provide full disclosure of the memorandum, but the hearing went ahead anyway, Mr Murray seeking additional relief including damages. He was represented by a lay advocate who was formally qualified as a legal executive.

[3] On the Friday before the hearing was to commence, a fresh statement of grounds of defence was filed by the Council. This added significant new grounds changing the complexion of the Council’s defence. Fresh evidence was also filed. The Council also advised that a bundle of undisclosed documents would be filed at the hearing. At the hearing the following Monday, Mr Murray’s advocate consented to these late changes. An adjournment was apparently offered by the Tribunal but Mr Murray’s advocate declined. These concessions on behalf of Mr Murray were, it transpires, strategic errors.

[4] The newly filed evidence contained allegations that Mr Murray had threatened to kill Mr Birt on more than one occasion, once “on about” 3 December
2008 and again on 11 December. Mr Murray’s advocate did not challenge any of

this material or cross-examine relevant Council witnesses in that respect.

[5] The Tribunal’s eventual judgment then (perhaps understandably) traversed all of these allegations as if they were fact, even though the allegations were largely untested. To be fair, Mr O’Connor appearing for the Council, did put these allegations to Mr Murray when he gave evidence (he denied them). So there was at least some contestation over them, but they were not comprehensively tested before finding their…

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: [2012] NZHC 3423
Decision Date: 18 December 2012

CaseChat Overview and Summary

The applicant, John Carne Murray, has brought this action against the Human Rights Review Tribunal and the Gisborne District Council. The dispute centres on the publication of adverse findings by the Tribunal that Murray had threatened an officer of the Council, Mr Birt. Murray seeks to limit the publication of these findings. The Council has applied to strike out the claim as it relates to them. The court was required to decide whether Murray’s application should be struck out and whether the publication of certain findings by the Tribunal could be suppressed. The court considered Murray’s representation, the peripheral nature of the findings in question, and the consent of all parties to suppress the findings. The court found that the suppression of the findings was a practical and just way to resolve the dispute and bring it to a close.

The court found that Murray’s representation was lacking and that his advocate had made strategic errors by consenting to late changes to the Council’s defence and additional evidence. These errors meant that untested allegations of threats by Murray against Mr Birt were treated as fact in the Tribunal’s judgment. The court noted that while these findings were not directly relevant to the issues before the Tribunal, they were peripheral and not comprehensively tested. The court considered that in basic justice, there was something to be said for Murray’s underlying complaint. The court accepted a proposal by Mr Hodson QC, appearing as amicus, to suppress the offending paragraphs on the condition that Murray did not bring further proceedings relating to the Tribunal’s decision. The court concluded that this was a robust and common sense way to bring the grievance to a close.

The application to strike out the proceeding was dismissed by consent. Final orders were made suppressing certain paragraphs of the Tribunal’s decision and requiring that any published form of the judgment be redacted accordingly. The suppression is to remain in place on the condition that Murray does not bring any further proceedings relating directly or indirectly to the Tribunal’s decision. There will be no award of costs.

Orders