Murray v Human Rights Review Tribunal [2013] NZCA 441 (25 September 2013)

Last Updated: 2 October 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA212/2013 [2013] NZCA 441
BETWEEN	JOHN CARNE MURRAY Applicant
AND	THE HUMAN RIGHTS REVIEW TRIBUNAL First Respondent GISBORNE DISTRICT COUNCIL Second Respondent

Hearing:	16 September 2013
Court:	O’Regan P, Ellen France and Wild JJ
Counsel:	Applicant in person No Appearance for First Respondent D J O'Connor for Second Respondent
Judgment:	25 September 2013 at 11 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is dismissed.

2. The applicant must pay the second respondent costs for a standard application on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by O’Regan P)

Introduction

[1] Mr Murray seeks an extension of time to appeal against a decision of Williams J delivered in the High Court on 18 December 2012.^[1] The application is opposed by the second respondent, the Gisborne District Council (the Council). The first respondent, the Human Rights Review Tribunal (the Tribunal), abides the Court’s decision and was not represented at the hearing of the application.

Relevant law

[2] The application is made under r 29A of the Court of Appeal (Civil) Rules 2005. As this Court said in My Noodle Ltd v Queenstown Lakes District Council, a number of factors are relevant to a decision whether to extend time.^[2] These factors include the reason for the delay, the length of the delay, the conduct of the parties and the extent of any prejudice caused by the delay. However, an applicant for an extension of time is seeking an indulgence from the Court, and the Court will not grant such an indulgence in a case where the proposed appeal has no merit.^[3] As was also made clear in Havanaco Ltd v Stewart, the ultimate test is whether granting the extension of time would meet the overall interests of justice.^[4]

Background

[3] There is a protracted history to the litigation involving the parties to the present application. It is not necessary for us to traverse it in this judgment, but the judgment of Williams J gives a summary of the particular concern which appears to have motivated Mr Murray.
[4] For present purposes all that needs to be said is that Mr Murray had commenced judicial review proceedings against the Tribunal. Because the Council had been involved in the Tribunal proceedings, it was also a defendant in those judicial review proceedings.
[5] Mr Murray’s judicial review application was motivated by his concern that the Tribunal had treated as facts certain allegations that had been made against him. In a statement of claim in the High Court, the relief he sought was an “order for the Tribunal to rescind their decision”.
[6] The Court appointed Mr Hodson QC as amicus curiae (counsel to assist the Court). Mr Murray appeared to think Mr Hodson was appointed as his lawyer. That was not the case.
[7] The Council sought to have the proceedings struck out. The file had been case managed by Ronald Young J, and Mr Murray had anticipated that Ronald Young J would be conducting the hearing that led to the decision against which he wishes to appeal. In fact, there was nothing in the minutes issued by Ronald Young J that indicated that he would be dealing with any substantive hearings, and it is not uncommon for substantive hearings to be undertaken by a Judge who has not previously been involved in the case management of the file.
[8] Mr Murray thought that the case had been set down for a five day hearing to deal with his judicial review application. In fact it had been set down for a half day hearing to deal with the Council’s application to strike out the judicial review proceeding. Mr Murray seems to have been confused by the reference in the fixture notice to “.5 days”, which indicated that a half day hearing was proposed, not a five day hearing. This was clarified by the Registry but that clarification appears to have escaped Mr Murray’s attention.
[9] At the High Court hearing of the Council’s application to strike out the proceeding, the counsel assisting the Court, Mr Hodson, proposed a compromise solution aimed at bringing the protracted history of litigation to an end and obviating the need for the Court to address the Council’s application to strike out. That involved the Court making an order by consent in favour of Mr Murray that resolved his application for judicial review. The consent order did not quash the decision of the Tribunal, but ordered suppression of those aspects of the decision that were of concern to Mr Murray. Mr Murray accepted in the hearing before us that he had, in fact, consented to the resolution of his judicial review proceedings by the order made in the High Court, but said that he now wished to obtain different relief from that which he obtained by virtue of the consent order made in the High Court.
[10] The proposal made by Mr Hodson had already been canvassed at a conference of counsel and Mr Murray before Ronald Young J on 26 March 2012. This is recorded in the minute issued by Ronald Young J on 27 March 2012 as follows:

When discussing Mr Murray’s complaint with Mr Hodson, other counsel and Mr Murray it became apparent that Mr Murray would discontinue these proceedings against both the Human Rights Review Tribunal and the Gisborne District Council if the Human Rights Review Tribunal would agree to remove the relevant decision relating to Mr Murray from his website and thereby ensure their decision was not publicly accessible. This would remove what Mr Murray regards as the offensive claims that he acted improperly when none were proven.

My Noodle factors

[11] We now consider the factors identified in My Noodle.

Length of delay

[12] The length of the delay is considerable. Judgment was given on 18 December 2012 so the time for appealing ended on 7 February 2013. The application for extension of time to appeal was filed on 11 April 2013. So the applicant is out of time by more than two months.

Reasons for the delay

[13] Two reasons for the delay that were given by Mr Murray. First, he says that he did not receive the judgment until early January 2013. Second, he asserts that he was given incorrect information by the Registry staff of the High Court. Mr Murray asked us to make enquiries of the High Court about his dealings with its Registry. We do not intend to do so. Rather, we give due allowance for the difficulties faced by a litigant in person and give him the benefit of the doubt that the delay in his receipt of the judgment and the communications he had with the High Court were the cause of some delay. Whether they were the cause of two months’ delay is another matter, but we will proceed on the basis that the delay itself and the reasons for the delay would not, of themselves, prevent an extension of time being granted.

The parties’ conduct

[14] Mr Murray has engaged in a prolonged litigation campaign against the respondents. He has had costs awarded against him in favour of the Council on more than one occasion and has failed to pay them. His conduct is verging on vexatious. This is a factor that tells against an extension of time being granted.

Extent of prejudice

[15] The prejudice to the respondents from the delay is not significant. The Council objects to the continuation of Mr Murray’s litigation against it, but Mr Murray could have appealed as of right if he had done so in time. The delay in doing so does not cause the Council additional prejudice.

Prospective merits of the appeal

[16] The appeal is without merit. Although the decision which would be the subject of the appeal if an extension of time were granted did not lead to the “rescission” of the Tribunal’s decision, it did lead to the suppression of the aspects of the decision about which Mr Murray was concerned. As mentioned earlier the decision was in Mr Murray’s favour and was made with his consent. It resolved the proceeding in his favour. In effect, he seeks to appeal against a decision where he was the successful party. There is no reason to anticipate that such an appeal would be seen as having merit.

Public importance?

[17] The matters which Mr Murray wishes to contest are obviously important to him, but they have no public importance at all.

Disposition

[18] We see this decision as clear cut. There is no reason why the Court should give an extension of time to someone who has engaged in a prolonged litigation campaign and refuses to accept decisions that go against him to pursue an appeal from a decision in which he was the successful party. His failure to pay costs that have been awarded against him indicates a cavalier attitude to the decisions of the Court. Mr Murray is well out of time and is not a deserving candidate for an indulgence. We are not prepared to grant the extension of time that he seeks.

Litigation at an end

[19] Mr Murray should accept the fact that this litigation is now at an end. He should not attempt to file fresh proceedings which traverse the same ground as the current proceedings. That would be an abuse of the Court’s process.

Costs

[20] Costs should follow the event. We order that Mr Murray pay costs to the second respondent for a standard appeal on a band A basis as well as usual disbursements.

Solicitors:
Crown Law Office, Wellington for First Respondent
Elvidge and Partners, Napier for Second Respondent

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^[1] Murray v Human Rights Review Tribunal [2012] NZHC 3423.

^[2] My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [19].

^[3] Havanaco Ltd v Stewart [2005] NZCA 158; (2005) 17 PRNZ 622 (CA) at [22].

^[4] At [5].