Guo v Culpan [2020] NZCA 377 (31 August 2020)

Last Updated: 8 September 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA631/2019 [2020] NZCA 377

	BETWEEN	YAN GUO Applicant
	AND	STEPHEN JAMES CULPAN First Respondent HUMAN RIGHTS REVIEW TRIBUNAL Second Respondent

Court:	Brown and Collins JJ
Counsel:	Applicant in person
Judgment: (On the papers)	31 August 2020 at 11.00 am

JUDGMENT OF THE COURT

The application for recall is declined.
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REASONS OF THE COURT

(Given by Brown J)

• [1] In a judgment delivered on 15 July 2020 this Court granted Ms Guo’s application under r 29A of the Court of Appeal (Civil) Rules 2005 (the Rules) for an extension of time to appeal in relation to a judgment of the High Court on a judicial review claim.^[1] However the Court declined special leave for Ms Guo to appeal to this Court under s 124(3) of the Human Rights Act 1993 (the Act) in relation to the dismissal by the High Court of her appeal against a decision of the Human Rights Review Tribunal.^[2]
• [2] Ms Guo has filed an application seeking a recall of this Court’s judgment declining to grant special leave to appeal.
• [3] In her application she asserts that the Court incorrectly applied s 124(3) of the Act, drawing attention in particular to that part of the subsection which provides that this Court may grant special leave to appeal on application made within 15 working days after the refusal of leave by the High Court “or within such further time as the Court 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 special leave 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 an application for special leave to appeal was unfair as she had not had sufficient time to address her leave application.
• [5] The judgment of Palmer J dismissing Ms Guo’s appeal from the decision of the Human Rights Review Tribunal was delivered on 13 August 2019. On 3 September 2019 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 error of law in the High Court judgment in the appeal proceeding (or the judicial review proceeding, for that matter). And even if the issues she does identify were questions of law, none of them rise to the level of one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision. Neither is there any reason to recall the judgment.

• [6] On 29 November 2019 Ms Guo filed in this Court applications for extensions of time in respect of both her appeal against the dismissal of her application for review and in relation to her intended second appeal. An extension was required in respect of the former because she was well out of time. However she was still within time in respect 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 the judicial review appeal. Had an application to this Court for leave to bring a second appeal (and not merely an application for extension of time) been filed on 29 November 2019, it would have been within time.^[5]

[9] In the circumstances we consider the fair course in respect of the proposed second appeal is to treat the extension of time application as an application 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 is necessary 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 by reason of its general or public importance or for any other reason ought to be submitted to this Court had already been the subject of Ms Guo’s application to the High Court for leave to appeal. Ms Guo had had ample time since the delivery of the substantive judgment on 13 August 2019 to consider the statutory threshold and take advice if necessary.
• [9] Furthermore her application for an extension of time was a detailed document which 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 appeal reached the prescribed threshold. Hence the statutory precondition for the grant of special leave was not satisfied.
• [10] We do not accept there was an error in the judgment of the nature asserted by Ms 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 we consider that there is any prejudice to Ms Guo from that decision. As a consequence of the grant of an extension of time Ms Guo can proceed with an appeal in this Court 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.

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^[1] Guo v Culpan [2020] NZCA 293.

^[2] Guo v Culpan [2019] NZHC 1963 dismissing an appeal from Guo v Culpan [2018] NZHRRT 25.

^[3] Guo v Culpan [2019] NZHC 2935.

^[4] 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).

^[6] Guo v Culpan, above n 1, at [31].