SINGH v AUCKLAND DISTRICT HEALTH BOARD [2023] NZCA 391

SINGH v AUCKLAND DISTRICT HEALTH BOARD [2023] NZCA 391 [24 August 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA185/2023[2023] NZCA 391BETWEEN JASBIR BALBIR SINGHAppellantAND AUCKLAND DISTRICT HEALTHBOARDRespondentCourt: Cooper P and Gilbert JCounsel: Applicant in personR M Rendle and T J Bremner for RespondentJudgment:(On the papers)24 August 2023 at 3 pmJUDGMENT OF THE COURTA The application for review of the decision of Brown J directing that theseapplications be dealt with on the papers is declined.B The application for an extension of time to appeal is declined.C The application for name suppression is declined.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Ms Singh applies for an extension of time to appeal against a decision of theHigh Court delivered on 2 September 2022 striking out proceedings she had issued inthat Court against her former employer, the Auckland District Health Board (ADHB)(High Court judgment).1 She also applies for name suppression.[2] We deal at the outset with a preliminary procedural issue. Ms Singh asked foran oral hearing of these applications. This was declined by Brown J on 18 July 2023.Ms Singh seeks review of that decision.[3] Ms Singh says she suffers serious physical and mental injuries. She requestsan oral hearing for all matters before this Court due to "ongoing human rightsviolations involving the Ministry of Justice of New Zealand and Government ofNew Zealand".[4] We are not persuaded that this unsubstantiated claim justifies a departure fromthis Court's usual practice of dealing with applications for extensions of time to appealon the papers. The application for name suppression was made informally. Ms Singhhas filed numerous documents explaining her position in connection with bothapplications and we are satisfied that these can properly be dealt with on the paperswithout putting the parties to further delay and expense. We agree with Brown J'sdirection that these applications should both be heard on the papers.Application for an extension of time to appeal[5] The relevant background is set out in the High Court judgment. Ms Singh wasemployed by ADHB from 9 December 2013 until she resigned on 25 February 2015.Following her resignation, she commenced proceedings against ADHB in theHuman Rights Review Tribunal (the Tribunal). She also filed an application withthe Employment Relations Authority, but this was dismissed for lack of jurisdiction.2[6] ADHB applied to strike out the proceedings in the Tribunal. The applicationwas eventually set down for a hearing on 1 February 2018. Ms Singh did not appearat this hearing. However, she contacted the Tribunal and requested that her claim bewithdrawn. The Tribunal responded by dismissing her claim on 8 February 2018.31 Singh v Auckland District Health Board [2022] NZHC 2229 [High Court judgment].2 Balbir Singh v Auckland District Health Board [2016] NZERA Auckland 382.3 Balbir Singh v Auckland District Health Board HRRT 003/2016, 8 February 2018.[7] Almost four years later, on 14 January 2022, Ms Singh commencedproceedings in the High Court seeking:(a) leave to appeal out of time against the Tribunal's decision;(b) judicial review of the Tribunal's decision; and(c) damages against ADHB in respect of claims made under theHuman Rights Act 1993, the New Zealand Bill of Rights Act 1990, thePrivacy Act 1993, the Privacy Act 2020, and the Employment RelationsAct 2000 (described in the High Court judgment as "the GeneralProceedings").[8] ADHB applied to strike out these proceedings. Following a hearing on18 August 2022, Harvey J struck out the proceedings for the reasons detailed in hisjudgment delivered on 2 September 2022.[9] The Judge noted that the 30-day time limit for appealing against the Tribunal'sdecision set by s 123 of the Human Rights Act cannot be extended.4[10] The Judge considered the judicial review application was an attempt tocircumvent the prescribed appeal rights which had expired years before.5 It wasMs Singh's decision to withdraw her complaint, and this led to the Tribunal's decisionto dismiss it. For these and other reasons, the application for judicial review wasuntenable and had to be struck out.6[11] Finally, it was not open to Ms Singh to attempt to re-litigate matters that hadbeen finally determined in another forum through fresh proceedings in the High Court.The General Proceedings were an abuse of process and accordingly should be struckout.74 High Court judgment, above n 1, at [28].5 At [40].6 At [46].7 At [55].[12] The time within which Ms Singh could appeal against the High Court judgmentas of right was 20 working days from the date of the decision. The last day forappealing was therefore 3 October 2022. Ms Singh's notice of appeal was not filed inthis Court until six months later, on 6 April 2023. Ms Singh attaches a "statement ofappeal" to her notice of appeal which sets out the relief she is seeking:(a) Revoking the decision to withdraw the case from the Tribunal,reinstating the case and having it reviewed by the High Court.(b) Compensation in the sum of $980,000 for loss of income, loss ofreputation and injury to feelings.(c) Compensation in the sum of $950,000 for her significant loss offunction as a woman and doctor, and acquisition of health injuries in2014/15.(d) Compensation in the sum of $920,000 for unconsented privacybreaches.(e) Compensation in the sum of $321,400 for her mother's health injuries,exposure to infections, defamation, stress, and injury to feelings inNew Zealand in 2014.[13] The principles to be applied on an application for an extension of time to appealunder r 29A of the Court of Appeal (Civil) Rules 2005 are well established and weresummarised by the Supreme Court in Almond v Read.8 Relevant considerations arelikely to include the length of the delay, the reasons for it, the conduct of the parties(particularly the applicant), any prejudice or hardship to the respondent or others witha legitimate interest in the outcome, and the significance of the issues raised by theproposed appeal, both to the parties and more generally.9 The merits of an appeal maybe relevant but a decision to refuse an extension of time based substantially on thatground should only be made where the proposed appeal is clearly hopeless.108 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.9 At [38].10 At [39].[14] The delay in bringing the present appeal is lengthy and has not been adequatelyexplained. The delay in bringing the appeal compounds the prejudice arising out ofthe earlier delays that have occurred in this matter and for which Ms Singh isresponsible. The lapse of time inevitably causes significant prejudice to ADHB,particularly given the employment relationship giving rise to the underlying disputeceased upon Ms Singh's resignation in February 2015, eight and a half years ago.[15] We are also satisfied that the appeal has no realistic prospect of success.Ms Singh chose to pursue her complaint in the Tribunal. She then asked for it to bewithdrawn. It is hard to see how she can now complain about the Tribunal's decisionto dismiss it.[16] Ms Singh did not appeal against the Tribunal's decision within the statutorytimeframe. Her attempt, some four years later, to reinvigorate the claim bycommencing proceedings in the High Court was clearly an abuse of process.We consider the High Court judgment striking out the proceeding was inevitable.The further delay in seeking to appeal to this Court against that judgment is lengthyand not adequately explained. ADHB is entitled to finality. The interests of justicestrongly favour the present application for an extension of time being declined.Application for name suppression.[17] Ms Singh applied for name suppression in the High Court. This applicationwas dealt with at the same time as the strike-out application and was dismissed byHarvey J. The Judge considered that publication is an ordinary consequence ofcommencing proceedings unless the high bar for suppression is met. Ms Singh'sreasons for seeking suppression were that she was unrepresented, and the proceedingshave been disadvantageous to her. The Judge was not satisfied that suppression couldbe justified when balanced against the principle of open justice.11[18] Ms Singh did not signal in her notice of appeal that she wished to appeal againstthe Judge's decision to refuse name suppression. However, she applied informally by11 High Court judgment, above n 1, at [60]–[62].way of memorandum dated 16 May 2023 for suppression of her name. She advancedthe following reasons for seeking name suppression:(a) She has multiple serious injuries and a lack of legal knowledge.(b) She is at a disadvantage because she is not represented by a lawyer.(c) She has not been legally represented at most stages and the processeshave been disadvantageous for her. She should not be "persecuted" asthe only doctor named in the High Court judgment. The case involves"human rights violations" against her and involved "significantamounts of workplace, personal and health information which iscompromising" for her if the High Court judgment is published withoutname suppression.(d) Publication of the High Court judgment without name suppression mayaggravate her injuries.[19] It would be wrong in principle for this Court to grant name suppression incircumstances where we have declined to grant an extension of time to appeal againsta High Court judgment which refused an almost identical application for suppression.In any case, we do not consider a proper basis has been made out for the making of anorder for name suppression. There is no apparent flaw in the High Court's analysis.Further, the High Court judgment was delivered 11 months ago and has been publishedwithout name suppression. Ms Singh has not provided any evidence to show thatpublication of the judgment has caused any significant hardship to her or her mother.For these reasons, the application for name suppression must be declined.Result[20] The application for review of the decision of Brown J directing that theseapplications be dealt with on the papers is declined[21] The application for an extension of time to appeal is declined.[22] The application for name suppression is declined.Solicitors:Simpson Grierson, Wellington for Respondent