BHANA v THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2023] NZHC 3466

BHANA v THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION ANDEMPLOYMENT [2023] NZHC 3466 [1 December 2023]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECIV-2022-463-000101[2023] NZHC 3466IN THE MATTER of an interlocutory application for review ofregistrar's decision declining to accept anappeal for filingBETWEEN JASU MATI BHANA and STEPHENCHIMAN BHANAApplicantsAND THE CHIEF EXECUTIVE OF THEMINISTRY OF BUSINESS, INNOVATIONAND EMPLOYMENTRespondentHearing: 27 November 2023Appearances: Mr Bhana, Applicant in PersonM L Brown for the Respondent (via VMR)Judgment: 1 December 2023JUDGMENT OF HARVEY JThis judgment is delivered by me on 1 December 2023 at 5.30 pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarSolicitors:Ministry of Business, Innovation Employment Legal Services, AucklandAnd to:Jasu and Stephen Bhana, AppellantsIntroduction[1] Jasu and Stephen Bhana appeal against the decision of Judge G CHollister-Jones of the District Court dismissing their application for a review of theRegistrar's decision not to accept for filing a notice of appeal out of time against aTenancy Tribunal decision.1[2] The Ministry of Business, Innovation and Employment (MBIE) opposes theappeal on the grounds that the Registrar acted correctly in refusing to accept theoriginal appeal because it was out of time. Consequently, the learned Judge was alsocorrect to dismiss the application to review that decision.Background[3] This summary is taken largely from the MBIE chronology. On21 September 2021, the Tenancy Tribunal issued a decision against the appellantsordering them to pay $16,472.22 to the respondent (the Substantive TribunalDecision).2 The Tribunal also ordered the appellants to complete work on the subjectproperties. The appellants had 10 working days to file an appeal in the District Court.A week later, on 28 September 2021, the appellants sought a rehearing in the Tribunal.[4] Then on 30 September 2021, a stay was granted by the Tribunal pendingdetermination of the application for a rehearing. On 6 October 2021, at 12.08 am, theappellants filed an appeal against the Substantive Tribunal Decision. The Registrarrefused to accept it for filing as it was out of time (the Registrar's Filing Decision).Following that, on 10 November 2021, the Tribunal declined the application for arehearing and the stay lapsed.[5] On 24 November 2021, the appellants filed an appeal against the Tribunal'sdecision not to grant a rehearing along with an application in the District Court for astay of enforcement of the Substantive Tribunal Decision.3 The District Court declinedthe application for a stay on 9 December 2021. Then on 12 January 2022, the1 Bhana v Ministry of Business, Innovation and Employment [2022] NZDC 17110.2 Ministry of Business, Innovation and Employment v Bhana [2021] NZTT Rotorua 4273958.3 This notice of appeal purported to also appeal the Substantive Tribunal Decision by including both"21 September 2021" and "10 November 2021" as the "date of decision appealed".appellants filed an appeal in this Court against the District Court's decision to declinethe application for a stay and the Registrar's Filing Decision.[6] Following that, on 22 February 2022, this Court allowed the appeal against thedecision not to grant the application for stay and remitted that matter back to theDistrict Court for a rehearing. The Court concluded it had no jurisdiction to considerthe Registrar's Filing Decision and struck that aspect of the appeal out.[7] On 26 July 2022, the appellants filed an interlocutory application in the DistrictCourt for review of the Registrar's Filing Decision. Then on 29 July 2022, therespondent filed a notice of opposition to that application. Following that, at a hearingon 30 August 2022, the appellants abandoned their appeal against the Tribunal'sdecision not to grant a rehearing. This was accepted by the Court and recorded in aMinute.4[8] Then on 5 September 2022, the District Court dismissed the appellants'application for review of the Registrar's Filing Decision.5 This is the decision onappeal. Following that, on 28 September 2022, the respondent filed an interlocutoryapplication to dismiss or strike out the appellants' application for a stay.[9] The appellants then filed a notice for the present appeal on 3 October 2022.Procedural history[10] On 9 November 2023, Woolford J noted that the first call for a casemanagement conference of the appeal was set for 8 November and that when contactedby the registry, Jasu Bhana expressed surprise even though they had been served byemail on 21 and 27 October 2022. Mr Bhana's request for an adjournment to 22November 2022 was then granted.[11] At a second conference held on 22 November 2022, Jagose J noted that MrBhana was no more prepared than he had been on 8 November, citing instead an4 Bhana v Ministry of Business, Innovation and Employment DC Rotorua CIV-2021-063-621, 30August 2022.5 Bhana v Ministry of Business, Innovation and Employment [2022] NZDC 17110.application for a stay in the District Court to be heard in February 2023. Jagose Jconfirmed to Mr Bhana that the stay was immaterial to the present appeal. He directedthat Mr Bhana address the respondent's request for refinement of the appeal and failingthat, any such unresolved issues would be heard and determined at the substantiveappeal hearing.[12] In addition, Jagose J recorded that he "directed in terms of paragraphs 1 and 2of the Ministry's memorandum". Paragraph 1 included "In the event this matterproceeds to hearing, the appellants must pay security in the sum of $2,390 not laterthan 10 working days after the conference."[13] Following that, on 28 June 2023, Ms Brown filed a memorandum confirmingthat attempts to resolve outstanding issues over refinement of the appeal had beenunsuccessful. A hearing date for the appeal was sought. On 30 June 2023 Mr Bhanafiled a memorandum and repeated his earlier assertion that the appeal could not beheard until the stay application had been determined, even though this had been dealtwith by Jagose J in his earlier minute.[14] A conference was held before me on 1 August 2023. It was evident that, fromMr Bhana's perspective, the situation had not changed. He referred to hismemorandum filed at 5.00 pm on 31 July 2023 where he mentioned illness affectinghis ability to properly engage with the process. He made several other submissionsincluding references to the stay, the orders issued by Jagose J, the New Zealand Billof Rights Act 1990, costs and a request for a further case management conference.[15] Ms Brown submitted that Jagose J issued an order for payment of security forcosts of $2,390. Under r 20.13(4) of the High Court Rules 2016, she contended thatsecurity for costs must be paid within 10 working days. Rule 20.15 provides that,except in the case of an appeal under the District Court Act 2016, and wherenon-compliance with the security order results in a deemed abandonment of the appealunder section 126 of that Act, if the security is not paid within the time specified undersubclause (4), the respondent may apply for an order dismissing the appeal.[16] Mr Bhana made two points in reply. First, that as a lay litigant, he did notunderstand that security had to be paid within the time required. Second, that he wasin a position to pay security for costs. However, he maintained his argument that thestay needed to be dealt with first.[17] I pointed out in a subsequent minute that there was nothing in Mr Bhana'ssubmissions that affected Jagose J's orders issued on 22 November 2022. I thenconfirmed that, given Mr Bhana's failure to attempt a refinement of the appeal issues,consistent with the minute of Jagose J, they would be dealt with at the substantivehearing. I then noted that, as to Mr Bhana's submissions on the disadvantages of beinga lay litigant, a review of the file demonstrated that he had clear understanding of theissues. After noting that the appeal was brought under s 124 of the District Courts Act2016, and citing s 126(3), I extended the order for payment of security for costs by afurther 10 working days.6 It was also noted that if payment was not received withinthat timeframe, then the appeal would be deemed abandoned.[18] Then on 16 November 2023, the appellants field a memorandum seeking tohave the fixture vacated and for the appeal to be dealt with on the papers. Counsel forMBIE opposed that request. In a subsequent minute issued later that day, I confirmedthat the appeal would proceed as scheduled on 20 November 2023. For completenessI note that the appellants had been in breach of earlier directions regarding definingthe issues on appeal as well as for the filing of documents.[19] Unfortunately, when the appeal was called, after a short time listening toMr Bhana and Ms Brown, it was obvious that the appellants had not understood whichmatter was being heard. Due to confusion on their part, they indicated that they didnot realise that the appeal hearing was about the Judge Hollister-Jones decision. Thisis despite the fact that the notice from the Registrar, along with counsel's memorandumand minutes from the Court, made it plain as to which appeal was being heard. Evenso, it was evident to me—and Ms Brown did not disagree—that the appellants wereconfused and therefore unprepared for the appeal hearing. The result was that withthe agreement of the parties the appeal was adjourned to 27 November 2023.6 High Court Rules 2016, r 1.19(1).District Court decision[20] The Judge recorded the appellants' view that time did not begin to run on thefiling for the notice of appeal until 10 November 2021 when the application for arehearing was dismissed by the Tenancy Tribunal. The appellants also asserted thatthey had received conflicting information from the Ministry of Justice helplineregarding the date of filing for any appeal.[21] He then cited s 117 (6) of the Residential Tenancies Act 1986 which set out theappeal time frame of "10 working days after the date of the decision to which theappeal relates". The Judge highlighted the last five words of that sentence froms 117(6). He then underscored that the date of the decision was when the Tribunalissued its determination, or 21 September 2021 in this case. This meant that the appealhad to be filed by 5 pm on 5 October 2021.7 It was not, and therefore it was out oftime. The Judge concluded that the Registrar acted correctly in refusing to accept thenotice of appeal. He then dismissed the application for review of the Registrar'sdecision while setting down the application for a stay of the decision for 12 October2022.SubmissionsAppellants' submissions[22] The appellants filed written submissions and related documentation bothbefore and after the hearing. That included medical information, emailcorrespondence, court minutes and decisions. In summary, from the outset theappellants submitted that "due to the misunderstanding' of the earlier appeal hearing,their submissions may not be complete due to "the short timeframe". They alsopointed out that the respondent's bundle of documents was "not totally in order' andthat there may be additional and incomplete documents filed. They pointed out thatthey were lay litigants which they submitted the courts had to take into account. Theappellants highlighted that they had paid into Court security for costs.7 Referring to District Court Rules, r 2.4(1).[23] In any event, the appellants referred to a number of related proceedings andapplications which they saw as relevant to the present appeal. In summary, the salientpoints were that (a) there was a stay operating over the proceeding which also meantthe time for filing an appeal was "stayed"; (b) there was a further notice of appeal filed24 November 2021 which remained valid and was not addressed by the Judge and (c)the time for filing did not begin to run until after the application for rehearing wasresolved on 10 November 2021.Respondent's submissions[24] In summary, Ms Brown argued three principal points. First, the appellants havefailed to adequately set out the grounds for their appeal or the relief sought. Secondly,the appellants were out of time to file an appeal against the Tribunal's decision.Therefore, the District Court Registrar acted correctly and lawfully when refusing toaccept the appeal for filing. Thirdly, there is no scope to extend the time for filing theappeal. Accordingly, counsel submitted that the appeal should be dismissed.Discussion[25] In the period surrounding the issue of the original decision of the TenancyTribunal and given subsequent applications for a stay, for review and for appealing outof time, it is not surprising that there appeared to have been some confusion as to theeffect of each application on the Tenancy Tribunal decision and everything thatfollowed from that. This was also evident from the first attempt to hear that appeal,as foreshadowed. The appellants say that they may have been confused and that theCourt must take account of the fact that they are lay litigants and that Mr Bhana hasbeen suffering from illness for a lengthy period of time. That too has impacted on theappellants' ability to properly engage with the appeal, they say. This does highlightthe risks of lay advocacy when important procedural and legal issues are involved.[26] Yet none of that detracts from the principal point which is the failure to file theappeal from the Tenancy Tribunal decision within the relevant timeframe of 10working days. None of the appellants' submissions effectively addresses this point.The appellants even refer to the first application to appeal as the "out of time appeal".[27] Any appeal had to be filed by 5 pm on 5 October 2021. So even 5.01 pm wouldbe out of time, let alone early the next morning. My conclusion is that the appealshould have been filed by 5 October 2021. It was not and therefore I agree with theJudge that the registrar was correct to reject its filing.[28] The appellants also argued that the Judge did not refer to their 24 November2021 appeal "which is also relevant". I disagree. As is clear from the proceduralhistory, the 24 November 2021 notice of appeal was ultimately abandoned and cannotproperly be the subject of this appeal. In any event, it is hard to see why a notice ofappeal that is even further out of time would have any bearing on this appeal.[29] I agree with Ms Brown's submission that the effect of r 18.4(3) of the DistrictCourt Rules 2014 is that there is no discretion to extend the time for filing.[30] One the issue of a stay, the appellants did not appear to understand that the staywould apply, if granted, to the implementation of the decision. It did not, however,contrary to their belief, mean that the time running for the filing of the appeal was also,in effect "stayed". That is not what s 117(6) contemplates at all. If the appellants hadobtained legal advice then this confusion might not have arisen.[31] In summary, I accept the submissions of Ms Brown. Accordingly, I detect noerror in the approach of the learned Judge to his dismissal of the application to reviewthe Registrar's decision not to accept for filing the appeal out of time.[32] One last point. As to any suggestion of a lack of preparedness, the proceduralhistory demonstrates that the appellants were well aware of the relevant issues as earlyas the first minutes issued by Woolford and Jagose JJ, as those minutes confirm. Therespondent had repeatedly sought confirmation from the appellants of the appealissues but without success and despite directions from the Court that they needed todo so. Failing that, the parties were notified that the appeal issues would be dealt withat the substantive hearing. The short point is that I do not accept the suggestion thatsomehow the appellants may have been disadvantaged by the "short notice" as theyclaim between the original appeal hearing and the date it was eventually heard. Giventhe history to these proceedings, that would be an inexplicable suggestion.Decision[33] The appeal against the District Court decision to refuse to allow an appeal outof time is dismissed.[34] Counsel may file a memorandum as to costs within 10 working days of up tothree pages. Mr Bhana will have a further 10 days to file any response. Costs willthen be dealt with on the papers._____________________________Harvey J