Tan v Chief Executive, Ministry of Social Development
[2020] NZHC 546
•18 March 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-000325
[2020] NZHC 546
UNDER The Human Rights Act 1993 BETWEEN
KONG HWEE TAN
Appellant
AND
CHIEF EXECUTIVE
MINISTRY OF SOCIAL DEVELOPMENT
Respondent
Hearing: 17 March 2020 Appearances:
Appellant in person
N Fong for Respondent
Judgment:
18 March 2020
JUDGMENT OF LANG J
[on application to strike out appeal]
This judgment was delivered by me on 18 March 2020 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
Solicitors:
Crown Law, Wellington Copy to:
Appellant
TAN v CHIEF EXECUTIVE MINISTRY OF SOCIAL DEVELOPMENT [2020] NZHC 546 [18 March 2020]
[1] Mr Tan filed a proceeding in the Human Rights Review Tribunal (the Tribunal) alleging the Ministry of Social Development (the Ministry) had discriminated against him because he is a citizen of Singapore. He says the discrimination occurred when the Ministry made decisions about his entitlement to monetary benefits in New Zealand that took account the fact that he also had an entitlement to receive funds from the Central Provident Fund Board of Singapore.
[2] The Tribunal struck Mr Tan’s claim out on 29 January 2020 because he had failed to comply with discovery orders made by the Tribunal.
[3] Mr Tan filed an appeal to this Court against the Tribunal’s decision. He initially named the Director of Human Rights Proceedings and the Privacy Commissioner as respondents to the appeal. When the appeal was first called on 10 March 2020, Mr Fong appeared for the Chief Executive of the Ministry of Social Development. He submitted the Chief Executive should be substituted as sole respondent to the appeal because the Chief Executive was the opposing party in the proceeding before the Tribunal. I agreed that this was appropriate and duly substituted the Chief Executive as respondent.
[4] The Chief Executive contends the Court has no jurisdiction to hear the appeal because Mr Tan failed to comply with mandatory statutory procedural requirements after he lodged his appeal in the Court. This judgment deals with that issue and not the merits of the proposed appeal.
The statutory requirements
[5] Section 123 of the Human Rights Act 1993 (HRA) provides for appeals to this Court from decisions of the Tribunal. Section 123(4) provides:
123 Appeals to High Court
…
(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.
…
[6] Section 123(8) of the HRA provides that, subject to the provisions of the HRA, the procedure to be adopted in any appeal shall be in accordance with the rules of Court. This is a reference to the High Court Rules 2016.
[7]Rule 20.6(1) of the High Court Rules provides:
20.6 When appeal brought
(1)An appeal is brought when the appellant—
(a) files a notice of appeal in the court; and
(b)files a copy of the notice of appeal in the administrative office; and
(c)serves a copy of the notice of appeal on every other party directly affected by the appeal.
[8] It is now well established that an appeal to this Court will not have been “brought” until all three steps prescribed by r 20.6(1) have been completed. In Attorney-General v Howard, the Court of Appeal observed:1
Under r 706 [predecessor of r 20.6] an appeal is not “brought” until filed in the High Court and the Tribunal and served on the respondent(s). There is nothing in the High Court Rules which allows a differentiation between those three requirements. The appeal is not “brought” until all three are satisfied. Further, no extensions of time for appealing are possible under r 704(3) [predecessor of r 20.4(3)], as s 123 [of the HRA] limits the time for appealing and there is no provision permitting an extension.
...
[9] The decision in Howard therefore stands as clear appellate authority for the proposition that it is not possible for this Court to cure the late filing or service of an appeal under the HRA. Furthermore, the respondent cannot waive this requirement because it is imposed by statute.2
[10] It follows that, in order to bring a valid appeal under s 123 of the HRA, Mr Tan was required to complete the three steps mandated by r 20.6(1) within 22 working days of the Tribunal’s decision. If he failed to do so, this Court has no jurisdiction to hear and determine the appeal.
1 Attorney-General v Howard [2010] NZCA 58, [2011] 1 NZLR 58 at [97].
2 At [127].
Mr Tan’s position
[11] At the hearing Mr Tan advised me that he filed the appeal in this Court on 24 February, which was well within the 22 working day time limit imposed by the HRA. He said the person with whom he dealt at the Registry counter told him he would take copies of the notice of appeal and post them to Mr Tan so as to enable Mr Tan to provide copies to the Tribunal and the respondents. Mr Tan said he did not receive copies of the notice of appeal back from the Court until late in the afternoon of 3 March 2020. He then immediately took steps to courier copies of the documents to the Tribunal and the respondents in Wellington.
Decision
[12] The Tribunal gave its decision on 29 January 2020. This meant the time for bringing an appeal to this Court expired on 3 March 2020.3
[13] The affidavit filed in support of the present application confirms that the Tribunal forwarded a copy of its decision to Mr Tan by email on 29 January 2020 at
4.39 pm. The email attached both the Tribunal’s decision together with advice as to Mr Tan’s rights of appeal. This was as follows:
How to bring an appeal
To bring an appeal, an appellant must –
(a)file a notice of appeal in the registry of the High Court nearest to the place where the hearing of the Tribunal took place; and
(b)file a copy of the notice of appeal in the office of the Tribunal; and
(c)serve a copy of the notice of appeal on every other person who was a party to the proceedings before the Tribunal.
The notice of appeal must not name the Tribunal as a respondent to the appeal.
Time limit for bringing an appeal
An appellant must bring an appeal (that is, complete each of the above three steps) within 22 working days after the date of the Tribunal’s decision.
3 This is calculated on the basis of the two working days remaining in January 2020 after delivery of the decision, 19 in February (allowing for Waitangi Day) and the final day on 2 March 2020.
Neither the Tribunal nor the High Court can extend this time. Failure to bring an appeal within the 22 working day time period will mean the High Court lacks jurisdiction to hear the appeal.
[14] Mr Tan lodged his appeal in this Court on 24 February 2020. This was obviously well within the required 22 working day period. It seems, however, that the Tribunal has never received the copy of the notice of appeal. Mr Tan says he sent it by courier on the afternoon of 3 March 2020. The evidence filed in support of the present application reveals that on 4 March 2020 the Tribunal received a courier package from Mr Tan addressed to the Director of Human Rights Proceedings. The package enclosed a copy of the notice of the case management conference scheduled to be held in this Court in relation to the appeal on 10 March 2020. The package did not contain a copy of the notice of appeal or any communication from Mr Tan about the appeal he had lodged.
[15] The Ministry has also taken steps to ascertain whether it received a copy of the notice of appeal. Those enquiries have not failed to unearth a copy of the notice of appeal or any other communications from Mr Tan. It is not known whether the Privacy Commissioner received a copy of the notice of appeal.
[16] Although enquiries have not been made to verify Mr Tan’s version of events it seems inherently unlikely. An appellant is normally responsible for providing photocopies of any notice of appeal. That is not the responsibility of the Court with whom the document is filed. Furthermore, it seems far more likely that the document Mr Tan received from the Court on 3 March 2020 was the notice advising the date of the first case management conference for the appeal. This ties in with the Tribunal receiving a courier package from Mr Tan on 4 March enclosing a copy of that notice.
[17] Even assuming Mr Tan sent copies of the notice of appeal by courier late in the afternoon of 3 March 2020, it would not have been possible for the documents to arrive at the offices of the Tribunal and the Privacy Commissioner in Wellington on the same day. It follows that, even on Mr Tan’s version of events, he filed and served copies of the notice of appeal on the Tribunal and Privacy Commissioner outside the statutory time limit.
Result
[18] This Court has no jurisdiction to hear Mr Tan’s appeal because it has not been properly brought. The appeal is therefore struck out.
Costs
[19] The Chief Executive is the successful party and would ordinarily be entitled to an award of costs and disbursements in its favour. My tentative view is that costs should lie where they fall in the present case given that both parties co-operated to have the strike out application to be argued at the first opportunity and before either party incurred significant costs in relation to the appeal.
[20] If the Chief Executive takes a different view her counsel should file and serve a concise memorandum and I will then give directions for Mr Tan to file a memorandum in response.
Lang J
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