GUO v CULPAN [2020] NZCA 377

GUO v CULPAN [2020] NZCA 377 [31 August 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA631/2019[2020] NZCA 377BETWEEN YAN GUOApplicantAND STEPHEN JAMES CULPANFirst RespondentHUMAN RIGHTS REVIEW TRIBUNALSecond RespondentCourt: Brown and Collins JJCounsel: Applicant in personJudgment:(On the papers)31 August 2020 at 11.00 amJUDGMENT OF THE COURTThe application for recall is declined.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)[1] In a judgment delivered on 15 July 2020 this Court granted Ms Guo'sapplication under r 29A of the Court of Appeal (Civil) Rules 2005 (the Rules) for anextension of time to appeal in relation to a judgment of the High Court on a judicialreview claim.1 However the Court declined special leave for Ms Guo to appeal to thisCourt under s 124(3) of the Human Rights Act 1993 (the Act) in relation to the1 Guo v Culpan [2020] NZCA 293.dismissal by the High Court of her appeal against a decision of the Human RightsReview Tribunal.2[2] Ms Guo has filed an application seeking a recall of this Court's judgmentdeclining to grant special leave to appeal.[3] In her application she asserts that the Court incorrectly applied s 124(3) of theAct, drawing attention in particular to that part of the subsection which provides thatthis Court may grant special leave to appeal on application made within 15 workingdays after the refusal of leave by the High Court "or within such further time as theCourt of Appeal may allow". She further contends that this Court overlooked r 16A(1)of the Rules and r 20.3(6) of the High Court Rules 2016.[4] Her complaint is that her application filed in this Court did not seek specialleave to appeal but only an extension of time within which to apply for special leave.She contends that this Court's treatment of her application for extension of time as anapplication for special leave to appeal was unfair as she had not had sufficient time toaddress her leave application.[5] The judgment of Palmer J dismissing Ms Guo's appeal from the decision of theHuman Rights Review Tribunal was delivered on 13 August 2019. On 3 September2019 Ms Guo applied to the High Court for leave to appeal under s 124(2).Her application was dismissed by Palmer J on 11 November 2019 who stated:3[7] I do not consider Ms Guo has identified a question of arguable errorof law in the High Court judgment in the appeal proceeding (or the judicialreview proceeding, for that matter). And even if the issues she does identifywere questions of law, none of them rise to the level of one which, by reasonof its general or public importance or for any other reason, ought to besubmitted to the Court of Appeal for decision. Neither is there any reasonto recall the judgment.[6] On 29 November 2019 Ms Guo filed in this Court applications for extensionsof time in respect of both her appeal against the dismissal of her application for reviewand in relation to her intended second appeal. An extension was required in respect of2 Guo v Culpan [2019] NZHC 1963 dismissing an appeal from Guo v Culpan [2018] NZHRRT 25.3 Guo v Culpan [2019] NZHC 2935.the former because she was well out of time. However she was still within time inrespect of the latter.[7] The judgment of this Court which Ms Guo seeks to recall stated:4[8] However, an extension of time was only required in respect of thejudicial review appeal. Had an application to this Court for leave to bringa second appeal (and not merely an application for extension of time) beenfiled on 29 November 2019, it would have been within time.5[9] In the circumstances we consider the fair course in respect of theproposed second appeal is to treat the extension of time application as anapplication for special leave under s 124(3) of the Human Rights Act 1993.Hence it is only in respect of the proposed judicial review appeal that it isnecessary to address whether an extension of time should be granted.[8] We do not consider that there was any unfairness in proceeding in that way.The question whether Ms Guo's proposed appeal involved a question of law which byreason of its general or public importance or for any other reason ought to be submittedto this Court had already been the subject of Ms Guo's application to the High Courtfor leave to appeal. Ms Guo had had ample time since the delivery of the substantivejudgment on 13 August 2019 to consider the statutory threshold and take advice ifnecessary.[9] Furthermore her application for an extension of time was a detailed documentwhich elaborated at some length on the formulation of possible questions of law.Like Palmer J in the High Court, we did not consider that Ms Guo's proposed appealreached the prescribed threshold. Hence the statutory precondition for the grant ofspecial leave was not satisfied.[10] We do not accept there was an error in the judgment of the nature asserted byMs Guo. Nor do we consider there was any unfairness in the course adopted.We remain of the view that the statutory threshold is not met in this case. Nor do weconsider that there is any prejudice to Ms Guo from that decision. As a consequenceof the grant of an extension of time Ms Guo can proceed with an appeal in this Court4 Guo v Culpan, above n 1.5 Within 15 days after the refusal of leave on 11 November 2019: Human Rights Act 1993, s 124(3).in relation to the judicial review decision which, as noted in this Court's judgment,is more extensive in its scope than the appeal proceeding.6[11] The application for recall is declined.6 Guo v Culpan, above n 1, at [31].