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IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA543/2019[2020] NZCA 163BETWEEN NEIL MARTIN CLARKEApplicantAND RACING INDUSTRY TRANSITIONAGENCY (FORMERLY NEW ZEALANDRACING BOARD)RespondentCourt: Brown and Clifford JJCounsel: Applicant in personR J Gordon for RespondentJudgment:(On the papers)15 May 2020 at 2.00 pmJUDGMENT OF THE COURTThe application for an extension of time is granted for a period of 20 workingdays from the date of this judgment.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)[1] On 16 October 2019 the applicant filed an appeal in this Court from a judgmentof the High Court declining his claim against the Racing Industry Transition Agency(the Agency) and three other defendants.1 He did not file a case on appeal or applyfor the allocation of a hearing date by 16 January 2020, being the date three months1 Foster v Racing Industry Transition Agency (formerly New Zealand Racing Board)[2019] NZHC 2362.after bringing his appeal as required by r 43(1) of the Court of Appeal (Civil) Rules2005 (the Rules). He now applies for an extension of time under r 43(2).The application is opposed by the respondent.Background[2] As a result of various incidents of alleged abuse and overtly sexualisedapproaches towards its staff members, the Agency refused to accept bets whichMr Clarke wished to place at the Trax Bar TAB.[3] Mr Clarke brought a proceeding alleging that his rights under s 42 of theHuman Rights Act 1993 (which relates to a refusal to allow a person to use any placewhich members of the public are entitled to enter or use, or to refuse use of anyfacilities in such a place), s 8 of the New Zealand Bill of Rights Act 1990 (NZBORA)(the right not to be deprived of life), s 14 of NZBORA (freedom of expression), s 17of NZBORA (freedom of association) and s 18 of NZBORA (freedom of movement).He sought a declaratory judgment that the Agency must accept the bets he wished toplace there. He contended that by refusing to accept bets which he wished to place atthat branch the Agency had illegally discriminated against him in breach of the HumanRights Act.[4] In support of his claim that he had been discriminated against, Mr Clarkesubmitted that he had sustained a mental injury and implied that it was a result of thatdisability that the Agency and its staff had conspired to discriminate against him.[5] Dismissing the claim, Churchman J recorded that there was no evidence beforethe Court confirming the nature of Mr Clarke's claimed disability. The Agency's staffdenied any knowledge of any such disability. The Judge concluded that the Agency'srefusal to allow the applicant to place bets at the relevant branch was not because ofany disability he might have but on account of his obnoxious behaviour.22 At [31].[6] Mr Clarke appealed from that judgment on the following grounds:1 That the defendants did not present any of the defendants' witnessesto be cross-examined.2 That the Judge erred in numerous areas of the case.3 There are further submissions to be made in this case.Relevant principles[7] The principles applicable to applications for extensions of time under r 43 areessentially the same as those explained by the Supreme Court in Almond v Readrelating to applications under r 29A of the Rules for leave to file appeals out of time.3The ultimate question when considering the exercise of a discretion is what theinterests of justice require. Factors identified as likely to require considerationinclude:4(a) the length of delay;(b) the reasons for delay;(c) the conduct of the parties, particularly of the applicant;(d) any prejudice or hardship to the respondent or to others witha legitimate interest in the outcome; and(e) the significance of the issues raised by the proposed appeal, both forthe parties and more generally.[8] While the Court recognised that the merits of a proposed appeal may,in principle, be relevant to the exercise of the discretion to extend time, a decision torefuse an extension of time based substantially on that ground should be made onlywhere the appeal is clearly hopeless. The lack of merit must be readily apparent.53 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801; and Yarrow v Westpac New Zealand Ltd[2018] NZCA 601 at [4].4 At [38].5 At [39](c).The application and grounds of opposition[9] Mr Clarke's application for extension of time under r 43 filed on16 January 2020 simply stated:1 That I am applying for legal aid.2 That due to the Christmas period that I have been unable to get legaladvice.[10] Mr Clarke did not file any written submissions in support of the applicationdespite the Registry sending a letter to him reminding him of the need to do so.The only communication received from him is a document filed on 18 February 2020which records:1 That none of the defendants did not turn up in person so I was unableto question them about the questions that were in my Statement ofClaim.2 That I did not receive the respondent's defence until the day after thehearing, by this occurring I was unable to see their defence.[11] In its opposition to the application the Agency submits that Mr Clarke is aprolific lay litigant who has simply failed to prosecute his appeal diligently althoughhe has had ample time to apply for legal aid. It further submits leave should bedeclined for the reason that the appeal is without merit and has no prospects of success.Discussion[12] We first address the merits-based ground of opposition. The Agency contendsthat the appeal is rendered clearly hopeless because s 65 of the Racing Act 2003provides a complete defence to the claim. Section 65 states:Bets may be refusedThe Agency of any racing club may refuse to accept all or any part of a betwithout giving any reason for doing so.[13] The High Court concluded that Mr Clarke's claim could not succeed in the faceof s 65. The Court reasoned that there is no right under NZBORA or any other statutefor a person to be able to place a bet wherever they choose. But even if there weresuch a right, it would be subject to such limitations identified in s 5 of NZBORA ands 65 is one such limitation.[14] A decision on a leave application determined on the papers is not the mostsuitable vehicle for a determination of such a significant issue. Suffice to say that wedo not consider that s 65 should necessarily be construed in the absolute way that theAgency advances. Consequently we doubt that the appeal reaches the high thresholdwhich the Supreme Court explained in Almond v Read:6Moreover, any assessment of the merits must take place against thebackground of this Court's description of the nature of a general appeal inAustin, Nichols. Accordingly, a decision to refuse an extension of time basedsubstantially on the lack of merit of a proposed appeal should be made onlywhere the appeal is clearly hopeless. An appeal would be hopeless, forexample, where, on facts to which there is no challenge, it could not possiblysucceed, where the Court lacks jurisdiction, where there is an abuse of process(such as a collateral attack on issues finally determined in other proceedings)or where the appeal is frivolous or vexations. The lack of merit must bereadily apparent. The power to grant or refuse an extension of time should notbe used as a mechanism to dismiss apparently weak appeals summarily.[15] We turn to consider the other relevant factors. The application for an extensionwas made at the end of the three month period prescribed in r 43(1). With referenceto the two reasons advanced in Mr Clarke's application, the Christmas period mightlegitimately be invoked so far as the third month is concerned but does not explainwhy legal advice could not have been taken earlier.[16] Mr Clarke has not provided any verification of the fact of his application orany report as to its progress. An inquiry by the Registry of the Legal Aid Servicesdiscloses that Mr Clarke is not in receipt of legal aid and has no pending applicationfor legal aid.[17] We do not consider that there is anything about Mr Clarke's conduct specificto the present application which should weigh against granting an extension of timeand there is no suggestion that the Agency would suffer prejudice or hardship if furthertime was permitted for Mr Clarke to comply with r 43.6 Almond v Read, above n 3, at [39](c) (footnote omitted).[18] The reasons which Mr Clarke has advanced in support of his application areweak. Furthermore he has failed in the four month period since the date of hisapplication to take any steps to remedy the position. However in the overall interestsof justice having regard to the fact that he is self-represented, we are prepared to extendone further opportunity for him to get his appeal on track.[19] Mr Clarke is to file the case on appeal and apply for a hearing date within20 working days from the date of delivery of this decision. Failure to comply withthis timetable will result in his appeal being deemed to be abandoned.Result[20] The application for an extension of time is granted for a period of 20 workingdays from the date of this judgment.Solicitors:Minter Ellison Rudd Watts, Wellington for Respondent