GREENSLADE v COMMISSIONER OF POLICE [2022] NZHC 1153

GREENSLADE v COMMISSIONER OF POLICE [2022] NZHC 1153 [24 May 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2022-485-34[2022] NZHC 1153IN THE MATTER of appeal under s 123(2) of the HumanRights Act 1993BETWEEN GUY GREENSLADEAppellantAND COMMISSIONER OF POLICERespondentHearing: 23 May 2022Appearances: M Timmins and G J Robins for the AppellantD L Harris and A P Lawson for the RespondentJudgment: 24 May 2022JUDGMENT OF COOKE J(Leave to file new evidence)[1] The appellant appeals against the decision of the Human Rights Tribunaldismissing his claim that the Commissioner's decision not to accept him into PoliceCollege involved prohibited discrimination under the Human Rights Act 1993.1[2] To be accepted into Police College candidates must satisfy a number of tests.One of them is a typing test. The appellant failed the typing test three times and hewas accordingly declined entry to Police College. The appellant suffers from dyslexia,and it is accepted that dyslexia is a disability.[3] The key finding of the Tribunal is that s 22 of the Human Rights Act applieson the basis that the appellant was not "qualified" for work by reason of his typing1 Greenslade v Commissioner of Police [2021] NZHRRT 53.deficiency. The Tribunal held that his rejection was not the consequence of aprohibited ground of discrimination arising from a disability, but arose from a failureto meet a necessary qualification for employment.[4] By application dated 20 April 2022 the appellant now seeks leave to file furtherevidence on appeal. In particular he wishes to file evidence relating to the trainingthat may or may not have been available to him at Police College. In an affidavit froma solicitor at the office of Human Rights Proceedings sworn 20 April 2022 documentsthat have been exchanged about the nature of the training, and the extent to which itcould encompass training in relation to typing skills, are exhibited. The applicationrelates to these documents.[5] There is no difference between the parties in relation to the standards to beapplied on the admission of fresh evidence on appeal. Rule 20.16 of the High CourtRules 2016 provides:20.16 Further evidence(1) Without leave, a party to an appeal may adduce further evidence on aquestion of fact if the evidence is necessary to determine aninterlocutory application that relates to the appeal.(2) In all other cases, a party to an appeal may adduce further evidenceonly with the leave of the court.(3) The court may grant leave only if there are special reasons for hearingthe evidence. An example of a special reason is that the evidencerelates to matters that have arisen after the date of the decisionappealed against and that are or may be relevant to the determinationof the appeal.(4) Further evidence under this rule must be given by affidavit, unless thecourt otherwise directs.[6] The application here falls to be determined under r 20.16(2) and (3). Theapproach was summarised by Wylie J in B v A in the following terms:2The relevant principles governing the receipt of further evidence arestraightforward:32 B v A [2020] NZHC 580, (2020) 26 PRNZ 58 at [25].3 Hodgson v Hodgson [2015] NZCA 404 at [45], [2015] NZFLR 979 at [39]-[44]; And see Nationv Nation [2005] 3 NZLR 46 (CA); Telecom Corp of NZ Ltd v Commerce Commission [1991] 2NZLR 557 (CA); Comalco NZ Ltd v TVNZ Ltd (1996) 10 PRNZ 573; Complaints Committee No1 of the Auckland District Law Society v P (2007) 18 PRNZ 760.(a) the Court can receive further evidence if it thinks that the interests ofjustice require it to do so;(b) it is wrong to allow an appellant to bolster his or her case withadditional evidence that was available at the lower Court hearing, butnot adduced because of the particular view of the case being taken atthe time;(c) admitting further evidence on appeal is exceptional rather thanroutine. A change of heart about how a case should have been run willnot suffice. The prospect of further evidence triggering a substantialre-litigation before the appellate Court of the substantive case willcount against admitting the further evidence;(d) generally, the further evidence must be fresh, credible and cogent;(e) evidence will not be regarded as fresh if it could, with reasonablediligence, have been produced at the trial;(f) the absence of freshness is not an absolute disqualification. When thefurther evidence is not fresh, it will not generally be admitted unlessthe circumstances are exceptional and the grounds compelling. Inaddition, the further evidence needs to pass the tests of credibility andcogency;(g) the interests of justice require the parties to put their best case forwardat trial, in order to avoid wasting the Court's limited time andresources. A high value is placed on finality when the parties havebeen afforded the opportunity and failed to take it; and(h) the standard to be met is "rightly high".[7] In light of those principles I am not persuaded that the application should begranted.[8] First, I do not accept that the proposed evidence is fresh. Documentation aboutthe training available at Police College could have been obtained by the appellant andreferred to the Tribunal if he had raised it as part of his case. The appellant did notcontend before the Tribunal that he had a typing deficiency as a result of his dyslexia,and that this deficiency could have been remedied by training made available afteracceptance into the College. Yet this is the argument that the appellant now wishes toinclude as part of the appeal by reference to the additional evidence. The appellantcould have pursued this allegation before the Tribunal, and then sought by way ofdiscovery any documentation about the training, or the limits of it, at Police College.But the appellant did not do so. The only proposition advanced by Mr Timmins andMr Robins explaining why he had not done so was their argument that acceptance atthe College would itself be acceptance into employment, and that the only relevantqualification would be those relevant to acceptance on the course, rather than thequalifications required to be a Police Constable. As I understand this point it is saidthat it was not appreciated that it was the qualifications required of Police Constablesthat were in issue. I see that as a very subtle distinction that does not respond to theargument advanced by Ms Harris that this evidence is not fresh. Had an argumentabout training formed part of the appellant's case the evidence could have beenobtained. This evidence is not new, and would have been freely available to beintroduced before the Tribunal had this issue been pursued.[9] The second point is that the evidence is not cogent. The documents referred toare limited in number and contain only oblique references to the training that is, or isnot, available at Police College. None of them mention typing training. There isreference to computer training, and to training that may be needed by particularcandidates, but little more than that. I accept Ms Harris' argument that if this issue isproperly to be explored more direct evidence would need to be obtained from theCommissioner. It is also significant that other important evidence is not presentlyavailable. There is no evidence that the appellant was unable to meet the requirementsto pass the typing test because of his dyslexia, or that he could have overcome thatdifficulty with training. Indeed his evidence before the Tribunal was that he couldhave met the typing test if he had properly understood its significance, and hadproperly prepared for it, but that he had been deprived of a fair opportunity to do so.So it seems to me that the evidence before the Tribunal, and accordingly the Court,that a lack of subsequent training (and his rejection without the consideration of thattraining) involved discriminatory decision-making does not have a satisfactoryevidential foundation. The documents the appellant now wishes to adduce are notcogent given the lack of more fundamental evidence about this issue. As I suggestedto Mr Timmins and Mr Robins in argument, the documents the appellant seeks tointroduce could only be regarded as scratching the surface.[10] As Ms Harris accepted in argument the appellant will be able to advancearguments on appeal that the Tribunal has misinterpreted or misapplied s 22 of theHuman Rights Act in relation to a person being "qualified for work". This judgmentshould not be interpreted as confining the available argument. But I am not satisfiedthat the evidence the appellant now wishes to adduce meets the requirements ofr 20.16. It is neither fresh nor cogent, and there are not compelling reasons to allow itto be admitted.[11] The application is accordingly dismissed. The respondent will likely beentitled to costs of this application on a 2B basis. It may be that these costs can beaddressed in the context of a final costs award for the appeal, but if there is any disputeas to costs the parties may file memoranda.Cooke JSolicitors:Crown Law, Wellington for the Respondent