GRUPEN V THE DIRECTOR OF HUMAN RIGHTS PROCEEDINGS HC AK CIV-2010-404-008332

GRUPEN V THE DIRECTOR OF HUMAN RIGHTS PROCEEDINGS HC AK CIV-2010-404-008332 15 March 2011IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2010-404-008332BETWEEN RUTH MARIE GRUPENAppellantAND THE DIRECTOR OF HUMAN RIGHTSPROCEEDINGSRespondentHearing: 14 March 2011Appearances: Appellant in PersonR Stevens for RespondentJudgment: 15 March 2011 at 2:15 PMJUDGMENT OF VENNING JThis judgment was delivered by me on 15 March 2011 at 2.15 pm, pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateCopy to: Office of Human Rights Proceedings, AucklandR M Grupen, AucklandCrown Law, Wellington (P Gunn)Introduction[1] Ms Grupen seeks to appeal against a decision of the Human Rights Review Tribunal. A preliminary issue arises. The respondent takes the view the appeal is out of time. Although the appeal document was filed with the Court and served on the Tribunal within time the respondent says it was not served on him within time.Jurisdiction[2] Mr Stevens drew the Court's attention to a preliminary point arising froms 126(1) of the Human Rights Act 1993. The section requires two additional members of the Court to sit in respect of appeals under s 123 of the Act in which a question of fact is involved.[3] The current application before the Court is a legal matter. It is whether the appeal has been brought within time. The facts are not in dispute. It cannot have been the intention of the legislature that it would be necessary to constitute a panel with two lay people to determine such a legal issue. In the event the Court rules the appeal has been brought within time then the panel will be constituted for the substantive hearing.Background[4] The Tribunal's decision was delivered on 19 November 2010. The time forappealing under s 123(4) of the Act expired 19 December 2010. 19 December was a Sunday. The next working day was 20 December 2010. Section 35(6) of the Interpretation Act 1999 applies:A thing that, under an enactment, must or may be done on a particular day or within a limited period of time may, if that day or the last day of that period is not a working day, be done on the next working day.[5] The last day for bringing the appeal was therefore 20 December 2010. The appeal was filed with this Court within time. The Tribunal does not wish to be heard on this issue. Counsel for the Tribunal has filed a memorandum in which he confirms the Tribunal considers service was effected upon it within time on 20 December 2010.[6] However, the respondent says the appeal is out of time because he did not receive the appeal document until 21 December 2010.[7] The respondent relies on the wording of s 123(4) and the recent Court of Appeal decision of the Attorney-General v Howard.1 Section 123(4) reads:Every appeal under this section shall be made by giving notice of appeal within 30 days after the date of the giving by the Tribunal in writing of the decision to which the appeal relates.[8] The Court of Appeal held that the notice of appeal had to be given not only to the Tribunal, but also served on interested parties within the statutory timeframe and that the timeframes were mandatory. The timeframes could not be extended as there was nothing in the Act authorising such an extension. The Court also concluded that as the obligation to file and serve derived from the statute then the High Court Rules could not be applied to regularise service out of time.[9] As noted, the facts are not in issue. On 20 December the appellant sent an email to the respondent at 4.48 p.m. referring to an attached notice of appeal. The document attached was, unfortunately, an application for discovery rather than a notice of appeal. That email could not constitute service of the notice of appeal.[10] However, the appellant had also arranged for a courier pack containing the notice of appeal to be delivered by a courier company to the post office box of the respondent. The courier records note that the pack was delivered to the respondent'spost office box at 7.00 a.m. on 20 December 2010.[11] The respondent's argument is based on the evidence of Ms Rowe, a legal executive employed by the office of the Human Rights Proceedings. She deposes as1 Attorney-General v Howard [2010] NZCA 58, [2011] 1 NZLR 58.to the practice within the office as to receipt of mail. Mail is collected for the respondent from its post office box by a courier company, TNT, on a daily basis. The courier pack enclosing the notice of appeal was not uplifted from therespondent's post office box and delivered by TNT to the respondent until 21 December 2010.[12] The short point is that as the courier pack was not opened by the respondent until 21 December the respondent says the appeal is out of time.[13] While relying on Attorney-General v Howard, Mr Stevens conceded that the High Court Rules did apply insofar as the issue of the method of service was concerned. He also conceded that, as the letter from the Tribunal's unit to the appellant attaching the decision stated:... please ensure that both the Director and the Privacy Commissioner are served with copies of the notice of appeal, in addition to the parties referred to in Rule 20.6 of the High Court Rules.Their addresses for service are:The Director of Human Rights ProceedingsPO Box 6751Wellesley StreetAUCKLAND...the appellant was entitled to treat the post office box as the address for service.[14] However, Mr Stevens submitted that r 6.6(1) applied so that the appeal document was served:(a) if posted to a post office box address, ... on the earlier of—(i) the third working day after the day on which it was posted; or(ii) the day on which it was received;He noted that three working days expired on 22 December 2010 and submitted that the notice of appeal was not received until it was opened by the respondent on 21 December 2010.[15] I am unable to accept that submission. The purpose of r 6.6(1) is to avoid debate about service and to ensure that if documents are posted to an address for service (being a post office box), then the documents are deemed to be received within three working days or when received (if earlier). But the deeming provision does not prevent proof of service of the documents by other means. In this case the post office box was the address for service under r 6.1. The documents were served when delivered to that address for service. The evidence is that the courier pack was received at that address for service on 20 December 2010 at 7.00 a.m. Given that evidence the service was within time. The documents were received at the address for service within time.[16] A similar situation arose in Steinborn v Minister of Immigration.2 TheTribunal's agent had sent out forms giving the wrong address for service. The Court of Appeal held that the appeal ought to be taken to have been brought when the appeal forms were delivered by courier to that address. The Tribunal should not be permitted to depart from the advice mistakenly given by its agent for that purpose.[17] In the present case the Tribunal's division has advised the appellant the postoffice box was its address for service. The appellant has produced evidence the appeal documents were received at that address for service on 20 December 2010. Service was effected at that time.[18] The matter could be approached another way. Rule 6.7 reads:Service by a method agreed to in writing by a party is sufficient service on that party.[19] The letter from the Tribunal's division noted the address for service as the post office box. In this case the notice of appeal was served at the respondent's postoffice box on 20 December 2010. I accept the appeal has been brought within time.[20] For completeness I record that during the course of argument I raised with Mr Stevens the application of r 20.7. That rule provides that despite r 20.6(1)(c) the Court may dispense with service on a party of a notice of appeal on any terms the2 Steinborn v Minister of Immigration [2001] NZCA 302, [2002] 1 NZLR 639.Court thinks just. The rule has been applied where parties are not prejudiced. Mr Stevens accepted that there could be no prejudice in the present case but submitted that the decision of the Court of Appeal in Attorney-General v Howard precluded the application of r 20.7. I accept Mr Stevens' submission on that point. It appears that as the decision of the Court of Appeal in Attorney-General v Howard excludes the application of r 20.6 it would also exclude the application of r 20.7.[21] However, for the reasons given above I find that service was effected on the respondent within time.[22] I make the following directions for the appeal.(a) The appeal will be heard on Tuesday 26 July 2011 at 10.00 a.m.(b) The time for the hearing is estimated to be one day.(c) The appeal is classed as category 2 for costs purposes.(d) The appellant is to pay security in the sum of $1,880.00(e) If the appellant wishes to file any further details points on appeal they are to be filed and served by 28 March 2011.(f) I understand the Tribunal is in the process of preparing a transcript of the hearing. That is to be filed by 8 April 2011.(g) The appellant is to file and serve a common bundle of any numbered and indexed copies of all relevant documents in addition to the transcript by 15 April 2011.(h) The appellant is to file and serve the appellant's submissions by 6May 2011.(i) The respondent is to file and serve respondent's submissions by 20May 2011.[23] In the circumstances and given that Ms Grupen represents herself I make no order for costs on this application.__________________________ Venning J