HANDY v FIRE AND EMERGENCY NEW ZEALAND [2018] NZHC 2525

HANDY v FIRE AND EMERGENCY NEW ZEALAND [2018] NZHC 2525 [26 September 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2018-485-621[2018] NZHC 2525BETWEEN JARVIS-MONTREL HANDYAppellantAND FIRE AND EMERGENCYNEW ZEALANDRespondentTeleconference: 24 September 2018Counsel: Mr Handy in PersonG C Davenport for RespondentJudgment: 26 September 2018JUDGMENT OF CHURCHMAN J[1] The appellant in these proceedings, Mr Jarvis-Montrel Handy, has applied forleave to appeal out of time a decision of the Human Rights Review Tribunal (theTribunal) dated 26 June 2018.[2] Rather than this matter being dealt with in court, as a result of some healthissues that Mr Handy has, it was dealt with by way of teleconference.[3] By memorandum dated 6 September 2018, supported by an affidavit ofRichard James Dagger, also dated 6 September 2018, the respondent raised the issueof the Court's jurisdiction to grant the remedies sought by Mr Handy.[4] Mr Davenport submitted that given the mandatory timeframe for filing anappeal from the decision of the Human Rights Review Tribunal (s 123(4) of theHuman Rights Act 1993 and HCR 20.6) had not been complied with, the Court had nojurisdiction to entertain an appeal.[5] Section 123(4) of the Human Rights Act provides:Every appeal under this section shall be made by giving notice of appealwithin 30 days after the date of the giving by the Tribunal in writing of thedecision to which the appeal relates.[6] In the case of Inglis Enterprises Ltd v Race Relations Conciliator,1 the noticeof appeal was filed within the prescribed time but notice of the appeal had mistakenlybeen served on the Race Relations Conciliator instead of the Equal OpportunitiesTribunal. By the time this error was rectified, the appeal was well outside the statutory30-day time limit. In striking out the appeal for want of jurisdiction, Thorpe Jpreferred a "restrictive" rather than "liberal" construction of the predecessor Act'sright of appeal to the High Court stating:2[O]verall my view of the proper interpretation of s 63 [the predecessor tos 123(4) of the Act] is that its language clearly intends that appeals shall bebrought by giving notice of appeal within 30 days to the Court and to theTribunal, and does not in any ordinary and grammatical sense indicate anylegislative intention to permit or authorise any extension of that time.[7] In Ta'ase v Victoria University of Wellington, Goddard J turned down anapplication for leave to appeal out of time finding that, while there was authorisationfor an extension of time under r 705(1)(a) HCR, there was no such authorisation unders 123(4).3 Similarly, in Tamu v Veda Advantage (NZ) Ltd, Venning J dismissed anappeal on the grounds that the appellant was out of time, and there was no jurisdictionto grant an extension of time in which to appeal, relying on s 123(4) of the Act.4 TheCourt went on to note:5While r 20.4(3) of the High Court Rules provides that by special leave, thisCourt may extend the time prescribed for appealing, it may only do so if theenactment that confers the right of appeal permits the extension; or does notlimit the time prescribed for bringing the appeal.1 Inglis Enterprises Ltd v Race Relations Conciliator (1994) 7 PRNZ 404 (HC).2 At [407].3 Ta'ase v Victoria University of Wellington (2000) 5 HRNZ 577, (1999) 14 PRNZ 406 (HC).4 Tamu v Veda Advantage (NZ) Ltd HC Auckland CIV-2009-404-4069, 28 July 2009.5 At [9].[8] The Court observed that the appeal right provided for under the Act does notinclude provision for an extension of time for bringing an appeal but rather provides alimitation on the time allowed for bringing an appeal.6[9] Mr Handy's application for leave to appeal out of time was dated on 8 August2018 and served on the respondent on 27 August 2018. As the Tribunal's decision isdated 26 June 2018, this is outside the 30-day time limit for giving notice of appealprescribed by s 123(4) of the Act. Although Mr Handy has health issues and hassuffered numerous misfortunes over recent years, it is my view that the Court has nojurisdiction to grant leave to appeal under the Act.[10] Although Mr Handy did not consent to his appeal being struck out on the basisof lack of jurisdiction, he appeared to understand why the Court was obliged to dothat.[11] Mr Davenport indicated that if the appeal was struck out, costs would lie wherethey fell.[12] Accordingly, I make the following orders:(a) that the appeal is struck out for want of jurisdiction; and(b) costs lie where they fall.Churchman JSolicitors:McBride Davenport James, Wellington for Respondent6 At [10].