MITCHELL v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZHC 3305

MITCHELL v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZHC 3305 [21November 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2023-485-467[2023] NZHC 3305BETWEEN KERRYN MITCHELLApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 20 November 2023Appearances: Applicant in personS L K Shaw for the RespondentJudgment: 21 November 2023JUDGMENT OF PALMER JSolicitorsMeredith Connell, WellingtonWhat happened?[1] On 11 July 2023, the Human Rights Review Tribunal dismissed Ms KerynMitchell's claim against the Department of Corrections for breach of her privacy.1 Itheld that Ms Mitchell had proven a breach of an Information Privacy Principle 11 butthat Corrections had successfully proven the breach was not an interference withprivacy.2 The Tribunal made non-publication orders in relation to a medical report andordered that its file not be searched without leave, with the parties having theopportunity to be heard on any application. I make the same orders regarding the HighCourt file.[2] Ms Mitchell sought to appeal. There is no dispute about the timeframes. OnSunday 13 August 2023, 23 working days after the Tribunal's decision Ms Mitchellemailed the High Court advising that she intended to appeal the decision and apply foran extension of time to do so. The application itself was not filed until 17 August2023, 26 working days after the Tribunal's decision, and served on 30 or 31 August2023, 35 or 36 working days after the Tribunal's decision.Relevant law[3] Relevantly, s 123(4) of the Human Rights Act 1993 (the Act) states:(4) Every appeal under this section shall be made by giving notice ofappeal within 22 working days after the date of the giving by theTribunal in writing of the decision to which the appeal relates.[4] Rule 20.4 of the High Court Rules 2016 (the Rules) provides:20.4 Time for appeal if there is right of appeal(1) This rule applies if a party has a right of appeal to the court.(2) An appeal must be brought—(a) within the specified period if the enactment that confers theright of appeal specifies a period within which the appealmust be brought; or1 Mitchell v Chief Executive of the Department of Corrections [2023] NZHRRT 18.2 At [63].(b) in every other case, within 20 working days after the decisionappealed against is given.(3) By special leave, the court may extend the time prescribed forappealing if the enactment that confers the right of appeal—(a) permits the extension; or(b) does not limit the time prescribed for bringing the appeal.[5] In Attorney-General v Howard, the Court of Appeal made clear that the 22-daytimeframe to appeal, set out in the Act, cannot be extended by the Courts:3[100] As the time frames for filing and service [of an appeal] are set out in the[Act], they are mandatory. They cannot be extended by the courts as there isnothing in the [Act] authorising such an extension . . .Submissions[6] Ms Mitchell acknowledges that it appears she is time-barred from bringing herappeal out of time. But she submits the New Zealand cases are distinguishable. Inparticular, she submits the appeal in Attorney-General v Howard had no merit. Sheasks the Court to exercise its inherent power to remedy an error or fault under thedoctrine of loss of a chance, on the basis it is an application for relief from a sanction,under r 1.9 of the Rules. This would accord with r 3.9 of the Civil Procedure Rules1998 (UK) and British case law.4 She submits r 20.4(3)(b) of the High Court Rulesapplies because the Act is silent on limiting the time prescribed for bringing the appeal— it does not say what happens if the time is not met. To the extent the 22-day timelimit in the Act is related to the timeframes for government action in response to adeclaration of inconsistency, that does not involve her case. The Court should bringthe situation to Parliament's attention.[7] Ms Shaw, for the respondent, submits the Court has no jurisdiction to grant anextension of the time limit in s 123 of the Act. The English decisions Ms Mitchellrelies upon are based on a different legislative framework.3 Attorney-General v Howard [2010] NZCA 58, [2011] 1 NZLR 58 per Glazebrook J. WilliamYoung and Robertson JJ agreed, at [168] and [183] respectively.4 Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795; Denton vTH White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3926; and In Re H (Children) [2015] EWCACiv 583.Can the time to bring an appeal be extended?[8] It is clear the appeal was both filed and served outside the 22-day period forappeal, which expired on Friday 11 August 2023. It is also clear that the Court ofAppeal's decision in Attorney-General v Howard means that the High Court cannotextend that time. That conclusion has been consistently applied by the High Court andrecently confirmed again by the Court of Appeal in Singh v Auckland District HealthBoard.5 Wylie J held in Director of Civil Aviation v Shahroodi that an argument basedon inherent jurisdiction fails.6 The only right of appeal is that conferred by s 123 andHoward deals with the timeframes.7 The Act does not permit the extension and theAct does limit the time prescribed for bringing the appeal. Rule 20.4(3) does not apply.[9] Ms Mitchell's argument based on the authorities from England and Wales isinventive. But those decisions are ultimately based on the Civil Procedure Rules (UK)which makes explicit provision for granting relief from sanctions imposed under thoseRules. In New Zealand, neither r 1.9 of the High Court Rules nor the inherent powerof the Court can displace the statutorily mandated deadline required by s 123 of theAct. The Court is not able to extend Ms Mitchell's time to bring an appeal.Result[10] The application is dismissed. The same suppression orders apply to the HighCourt file as apply to the Human Rights Tribunal file. The High Court file is not to besearched without leave of a Judge, with the parties having the opportunity to be heardon any application.Palmer J5 See: Murray v Gisborne District Council [2011] NZCA 282 at [8]–[9]; and Singh v AucklandDistrict Health Board [2023] NZCA 391 at [9] and [16]. The Supreme Court recently declinedleave to appeal the latter decision: Singh v Auckland District Health Board [2023] NZSC 152.6 Director of Civil Aviation v Shahroodi HC Auckland CIV-2011-404-2337, 4 October 2011.7 At [58].