JOHN CARNE MURRAY v GISBORNE DISTRICT COUNCIL COA CA224/2011

JOHN CARNE MURRAY v GISBORNE DISTRICT COUNCIL COA CA224/2011 21 June 2011IN THE COURT OF APPEAL OF NEW ZEALANDCA224/2011[2011] NZCA 282BETWEEN JOHN CARNE MURRAYApplicantAND GISBORNE DISTRICT COUNCILRespondentHearing: 14 June 2011Court: Chambers, Ellen France and Stevens JJCounsel: Applicant in personD J O'Connor for RespondentJudgment: 21 June 2011 at 3:00 PMJUDGMENT OF THE COURTA The application for special leave to appeal is dismissed.B The applicant must pay the respondent costs for a standard application on a band A basis plus usual disbursements.REASONS OF THE COURT(Given by Ellen France J)Introduction[1] Mr Murray applies for special leave to appeal to this Court against a decision of Joseph Williams J striking out Mr Murray's application for an extension of time tofile an appeal against the decision of the Human Rights Review Tribunal (theTribunal).1 Special leave is necessary as Joseph Williams J declined to grant leave to appeal.2Background[2] The factual background is set out in Joseph William J's decision striking out Mr Murray's appeal.3 For present purposes, we need only note that through his involvement with a company called Origen Technology Limited in 2001 Mr Murrayhad undertaken work on the Gisborne District Council's computers. Mr Murray wassubsequently taken off the job and there followed "a lengthy period of conflict between [Mr Murray] and Origen, and [Mr Murray] and the Council".4 The parties'respective positions were summarised by Joseph Williams J in these terms:5Mr O'Connor [for the Council] says that [Mr Murray] has been engaged in a one-man vendetta against the Council since 2001. Mr Murray says [the] actions [of a council officer] have cost him his house, his livelihood and even his friends.[3] The proposed appeal to the High Court, which is the subject of the present application, related to an internal memorandum dated 11 December 2008. The memorandum was prepared by the Council officer responsible for its computers and was addressed to the Council's chief executive. The memorandum explained theofficer's recollection of events leading to Mr Murray being excluded from the work for the Council. Mr Murray sought disclosure of documents about his removal held by the Council. The memorandum of 11 December was one of the documents disclosed. Before disclosing the memorandum, the Council redacted 14 lines from it. Mr Murray complained to the Ombudsman and the Privacy Commissioner about the redaction. When these complaints did not bear fruit, Mr Murray issued proceedings in the Tribunal. Mr Murray sought disclosure of the document in its un- redacted form and $20,000 damages.1 Murray v Gisborne District Council HC Wellington CIV-2010-485-743, 3 June 2010.2 Human Rights Act 1993, s 124(1) and Murray v Gisborne District Council HC WellingtonCIV-2010-485-743, 30 March 2011.3 At [1]–[3].4 At [1].5 At [1].[4] The Tribunal upheld the application for full disclosure but declined to award damages.6 Mr Murray appealed to the High Court but his appeal was out of time because he failed to serve the Council with notice of the appeal within the 30 day period prescribed in the Human Rights Act 1993. On the Council's application,Joseph Williams J struck out the appeal on the basis that failure to serve the Council within the time period was fatal. In reaching that view, the Judge applied the decision of this Court in Attorney-General v Howard.7[5] As we have noted, Mr Murray's application for leave to appeal wasunsuccessful. Joseph Williams J considered there was no question of law capable of bona fide and serious argument.The application for special leave[6] Under s 124(3) of the Human Rights Act, this Court may grant special leave to appeal if, in the opinion of the Court, the question of law involved in the appeal is one which, by reason of its general public importance or for any other reason, ought to be submitted to this Court for its decision.[7] As this Court said in Dawson:8This section follows a well-known formula in New Zealand law. The question of law or fact that is sought to be raised must be capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to out-weigh the costs and delay of a further appeal (Snee v Snee (1999) 13 PRNZ 609 (CA) and Waller v Hider [1998] 1 NZLR 412 at 413 (CA)).[8] As we explained to Mr Murray in the course of the hearing, the application must fail. That is because, as this Court said in Howard, the Court has no power to extend the time for filing and serving the notice of appeal beyond that fixed by s 123(4) of the Human Rights Act. Mr Murray accepts that he did not meet that time limit.6 Murray v Gisborne District Council [2010] NZHRRT 7.7 Attorney-General v Howard [2010] NZCA 58, [2011] 1 NZLR 58. The same approach wastaken in Dawson v Chief Executive of the Ministry of Social Development [2007] NZCA 94.8 At [10].[9] Mr Murray says his failure to meet the timeframe resulted from his misunderstanding of the technical procedures. He also submits he was not helped by the assistance he says he received from the High Court registry, namely, provision of an envelope in which to post the notice of appeal. It may seem harsh to Mr Murray in the circumstances as he sees them that time cannot be extended. However, the matters raised do not alter the fact that he was out of time and that the time limit was not one that can be extended by the Court.[10] In addition, the reality is that the sorts of issues Mr Murray wants to raise in his proposed appeal do not arise from the decision of the Tribunal. That is apparent from the terms of the relief Mr Murray would seek from this Court. This is another reason telling against a grant of special leave.[11] It follows that there is no issue before us capable of serious or bona fide argument. The application for special leave is accordingly dismissed. The respondent, having succeeded, is entitled to costs for a standard application on a band A basis together with usual disbursements.Solicitors:Elvidge & Partners, Napier for the Respondent