BROWN v NEW ZEALAND POST LIMITED [2018] NZHC 2994

BROWN v NEW ZEALAND POST LIMITED [2018] NZHC 2994 [19 November 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2017-485-517[2018] NZHC 2994UNDER the Human Rights Act 1993, theNew Zealand Bill of Rights Act 1990, theEvidence Act 2006 and ProsecutionGuidelines 2013IN THE MATTER of the decision of the Human Rights ReviewTribunal given in the Minutes of QC HainesBETWEEN MATTHEW RICHARD BROWNAppellantAND NEW ZEALAND POST LIMITEDRespondentHearing: 14 November 2018Counsel: Appellant in PersonO E Jaques for the RespondentJudgment: 19 November 2018JUDGMENT OF CHURCHMAN JIntroduction[1] By notice dated 5 February 2018, Mr Brown, who is self-represented, hasapplied for leave to appeal Cull J's judgment of 31 October 2017 in which shedismissed his appeals against two interlocutory decisions of the Human Rights ReviewTribunal (the Tribunal).1 Cull J found that they could not succeed as the decisions inquestion were not final determinations of the Tribunal, so were not subject to appealto the High Court under s 123(2) of the Human Rights Act 1993 (the Act).21 Brown v New Zealand Post Ltd [2017] NZHC 2670.2 At [46].[2] Mr Brown applies for leave to appeal to the Court of Appeal on the ground thatCull J failed to acknowledge evidence demonstrating that the chairperson of theTribunal should have been disqualified from presiding over his case before theTribunal.[3] New Zealand Post Limited (NZ Post) opposes his appeal on the grounds that:(a) Mr Brown has identified no question of law;(b) the appeal is redundant; and(c) the appeal is out of time.Leave to appeal[4] Further appeals to the Court of Appeal are addressed in s 124 of the Act, whichrelevantly provides:124 Appeal to Court of Appeal on a question of law(1) Any party to any proceedings before the High Court under this Actmay, with the leave of the High Court, appeal to the Court of Appealagainst any determination of the High Court on a question of lawarising in those proceedings:provided that, if the High Court refuses to grant leave to appeal to theCourt of Appeal, the Court of Appeal may grant special leave toappeal.(2) A party desiring to appeal to the Court of Appeal under this sectionshall, within 21 days after the determination of the High Court, orwithin such further time as that court may allow, give notice of his orher application for leave to appeal in such manner as may be directedby the rules of that court, and the High Court may grant leaveaccordingly if in the opinion of that court the question of law involvedin the appeal is one which, by reason of its general or publicimportance or for any other reason, ought to be submitted to the Courtof Appeal for decision.[5] Appeals under s 124 of the Act require that the applicant raise a question oflaw capable of bona fide and serious argument in a case involving some interest, publicor private, of sufficient importance to outweigh the costs and delay of a further appeal.3Mr Brown's submissions[6] In his submissions dated 23 October 2018, Mr Brown raises a number ofconcerns he has regarding various members of the New Zealand judicial system,including court registrars and presiding judges, who he claims have failed to upholdhis civil rights and the rule of law. In particular, he challenges Thomas J's refusal torecuse herself from presiding over a telephone conference on 8 October 2018 dealingwith directional matters.[7] Mr Brown continued in a similar manner with his oral submissions made to theCourt. None of the matters covered in either his written or oral submissions wererelevant to the issues that the Court is required to consider in relation to the applicationfor leave to appeal. When invited to focus on the issue of why leave should be granted,Mr Brown was unwilling or unable to do so.NZ Post's submissions[8] Counsel for NZ Post, Mr Jaques, submitted in his written submissions thatMr Brown's application for leave to appeal fails to identify either a relevantdetermination of the High Court or a relevant question of law, but rather refersprimarily to factual material that Mr Brown says ought to have been taken intoaccount. Mr Jaques submits that an appeal based solely on an asserted factual errorsimply cannot meet the jurisdictional requirements of s 124, citing the Court of Appealin Ministry of Health v Atkinson in which it was held, regarding factual matters that:4[P]rovided the High Court has not overlooked any relevant matter or takenaccount of an irrelevant matter, "the conclusion is a matter for the fact-findingcourt, unless it is clearly insupportable".3 Child Poverty Action Group Inc v Attorney-General [2012] NZHC 675 at [7], citing the Court ofAppeal decisions of Waller v Hider [1998] 1 NZLR 412 and Snee v Snee (1993) 13 PRNZ 609.4 Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456 at [146], citing Bryson vThree Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [25].Therefore, he submitted, leave cannot be granted.[9] Mr Jaques also submitted that, as the application for leave does not seek tochallenge the High Court's finding that the decisions of the Tribunal were decisionson preliminary matters and not final determinations, and so were not subject to appealto the High Court pursuant to s 123(2)(e) of the Act, the appeal is redundant as it doesnot seek and cannot achieve a different result in this proceeding.[10] Finally, Mr Jaques submitted that Mr Brown's notice of application for leaveto appeal was not filed until 5 February 2018, over three months after the decision ofthe High Court was delivered and, as s 124 provides that any such application must bemade within 21 days of the determination of the High Court or such further time asthe Court may allow, Mr Brown's appeal is out of time.Analysis[11] It is my view that, as Mr Brown's application does not appear to raise anyquestion of law that is of relevance to the decision under appeal, let alone one that issufficient to justify the cost and delay of a second appeal, leave should not be granted.Furthermore, this appeal has been brought out of time and, given that it fails to meetthe jurisdictional threshold for leave to appeal to the Court of Appeal, I am notprepared to extend time.Result[12] For the reasons given above, leave to appeal is declined.Churchman JSolicitors:Russell McVeagh, Wellington for the Respondent