Singh v Auckland District Health Board [2023] NZCA 391 (24 August 2023)

Last Updated: 28 August 2023

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

CA185/2023 [2023] NZCA 391

	BETWEEN	JASBIR BALBIR SINGH Appellant
	AND	AUCKLAND DISTRICT HEALTH BOARD Respondent

Court:	Cooper P and Gilbert J
Counsel:	Applicant in person R M Rendle and T J Bremner for Respondent
Judgment: (On the papers)	24 August 2023 at 3 pm

JUDGMENT OF THE COURT

1. The application for review of the decision of Brown J directing that these applications be dealt with on the papers is declined.
2. The application for an extension of time to appeal is declined.

100. The application for name suppression is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

[1] Ms Singh applies for an extension of time to appeal against a decision of the High Court delivered on 2 September 2022 striking out proceedings she had issued in that Court against her former employer, the Auckland District Health Board (ADHB) (High Court judgment).^[1] She also applies for name suppression.

[2] We deal at the outset with a preliminary procedural issue. Ms Singh asked for an oral hearing of these applications. This was declined by Brown J on 18 July 2023. Ms Singh seeks review of that decision.

[3] Ms Singh says she suffers serious physical and mental injuries. She requests an oral hearing for all matters before this Court due to “ongoing human rights violations involving the Ministry of Justice of New Zealand and Government of New Zealand”.

[4] We are not persuaded that this unsubstantiated claim justifies a departure from this Court’s usual practice of dealing with applications for extensions of time to appeal on the papers. The application for name suppression was made informally. Ms Singh has filed numerous documents explaining her position in connection with both applications and we are satisfied that these can properly be dealt with on the papers without putting the parties to further delay and expense. We agree with Brown J’s direction that these applications should both be heard on the papers.

Application for an extension of time to appeal

[5] The relevant background is set out in the High Court judgment. Ms Singh was employed by ADHB from 9 December 2013 until she resigned on 25 February 2015. Following her resignation, she commenced proceedings against ADHB in the Human Rights Review Tribunal (the Tribunal). She also filed an application with the Employment Relations Authority, but this was dismissed for lack of jurisdiction.^[2]

[6] ADHB applied to strike out the proceedings in the Tribunal. The application was eventually set down for a hearing on 1 February 2018. Ms Singh did not appear at this hearing. However, she contacted the Tribunal and requested that her claim be withdrawn. The Tribunal responded by dismissing her claim on 8 February 2018.^[3]

[7] Almost four years later, on 14 January 2022, Ms Singh commenced proceedings in the High Court seeking:

(a) leave to appeal out of time against the Tribunal’s decision;

(b) judicial review of the Tribunal’s decision; and

(c) damages against ADHB in respect of claims made under the Human Rights Act 1993, the New Zealand Bill of Rights Act 1990, the Privacy Act 1993, the Privacy Act 2020, and the Employment Relations Act 2000 (described in the High Court judgment as “the General Proceedings”).

[8] ADHB applied to strike out these proceedings. Following a hearing on 18 August 2022, Harvey J struck out the proceedings for the reasons detailed in his judgment delivered on 2 September 2022.

[9] The Judge noted that the 30-day time limit for appealing against the Tribunal’s decision set by s 123 of the Human Rights Act cannot be extended.^[4]

[10] The Judge considered the judicial review application was an attempt to circumvent the prescribed appeal rights which had expired years before.^[5] It was Ms Singh’s decision to withdraw her complaint, and this led to the Tribunal’s decision to dismiss it. For these and other reasons, the application for judicial review was untenable and had to be struck out.^[6]

[11] Finally, it was not open to Ms Singh to attempt to re-litigate matters that had been finally determined in another forum through fresh proceedings in the High Court. The General Proceedings were an abuse of process and accordingly should be struck out.^[7]

[12] The time within which Ms Singh could appeal against the High Court judgment as of right was 20 working days from the date of the decision. The last day for appealing was therefore 3 October 2022. Ms Singh’s notice of appeal was not filed in this Court until six months later, on 6 April 2023. Ms Singh attaches a “statement of appeal” to her notice of appeal which sets out the relief she is seeking:

(a) Revoking the decision to withdraw the case from the Tribunal, reinstating the case and having it reviewed by the High Court.

(b) Compensation in the sum of $980,000 for loss of income, loss of reputation and injury to feelings.

(c) Compensation in the sum of $950,000 for her significant loss of function as a woman and doctor, and acquisition of health injuries in 2014/15.

(d) Compensation in the sum of $920,000 for unconsented privacy breaches.

(e) Compensation in the sum of $321,400 for her mother’s health injuries, exposure to infections, defamation, stress, and injury to feelings in New Zealand in 2014.

[13] The principles to be applied on an application for an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005 are well established and were summarised by the Supreme Court in Almond v Read.^[8] Relevant considerations are likely to include the length of the delay, the reasons for it, the conduct of the parties (particularly the applicant), any prejudice or hardship to the respondent or others with a legitimate interest in the outcome, and the significance of the issues raised by the proposed appeal, both to the parties and more generally.^[9] The merits of an appeal may be relevant but a decision to refuse an extension of time based substantially on that ground should only be made where the proposed appeal is clearly hopeless.^[10]

[14] The delay in bringing the present appeal is lengthy and has not been adequately explained. The delay in bringing the appeal compounds the prejudice arising out of the earlier delays that have occurred in this matter and for which Ms Singh is responsible. The lapse of time inevitably causes significant prejudice to ADHB, particularly given the employment relationship giving rise to the underlying dispute ceased upon Ms Singh’s resignation in February 2015, eight and a half years ago.

[15] We are also satisfied that the appeal has no realistic prospect of success. Ms Singh chose to pursue her complaint in the Tribunal. She then asked for it to be withdrawn. It is hard to see how she can now complain about the Tribunal’s decision to dismiss it.

[16] Ms Singh did not appeal against the Tribunal’s decision within the statutory timeframe. Her attempt, some four years later, to reinvigorate the claim by commencing proceedings in the High Court was clearly an abuse of process. We consider the High Court judgment striking out the proceeding was inevitable. The further delay in seeking to appeal to this Court against that judgment is lengthy and not adequately explained. ADHB is entitled to finality. The interests of justice strongly favour the present application for an extension of time being declined.

Application for name suppression.

[17] Ms Singh applied for name suppression in the High Court. This application was dealt with at the same time as the strike-out application and was dismissed by Harvey J. The Judge considered that publication is an ordinary consequence of commencing proceedings unless the high bar for suppression is met. Ms Singh’s reasons for seeking suppression were that she was unrepresented, and the proceedings have been disadvantageous to her. The Judge was not satisfied that suppression could be justified when balanced against the principle of open justice.^[11]

[18] Ms Singh did not signal in her notice of appeal that she wished to appeal against the Judge’s decision to refuse name suppression. However, she applied informally by way of memorandum dated 16 May 2023 for suppression of her name. She advanced the following reasons for seeking name suppression:

(a) She has multiple serious injuries and a lack of legal knowledge.

(b) She is at a disadvantage because she is not represented by a lawyer.

(c) She has not been legally represented at most stages and the processes have been disadvantageous for her. She should not be “persecuted” as the only doctor named in the High Court judgment. The case involves “human rights violations” against her and involved “significant amounts of workplace, personal and health information which is compromising” for her if the High Court judgment is published without name suppression.

(d) Publication of the High Court judgment without name suppression may aggravate her injuries.

[19] It would be wrong in principle for this Court to grant name suppression in circumstances where we have declined to grant an extension of time to appeal against a High Court judgment which refused an almost identical application for suppression. In any case, we do not consider a proper basis has been made out for the making of an order for name suppression. There is no apparent flaw in the High Court’s analysis. Further, the High Court judgment was delivered 11 months ago and has been published without name suppression. Ms Singh has not provided any evidence to show that publication of the judgment has caused any significant hardship to her or her mother. For these reasons, the application for name suppression must be declined.

Result

[20] The application for review of the decision of Brown J directing that these applications be dealt with on the papers is declined

[21] The application for an extension of time to appeal is declined.

[22] The application for name suppression is declined.





Solicitors:
Simpson Grierson, Wellington for Respondent

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^[1] Singh v Auckland District Health Board [2022] NZHC 2229 [High Court judgment].

^[2] Balbir Singh v Auckland District Health Board [2016] NZERA Auckland 382.

^[3] Balbir Singh v Auckland District Health Board HRRT 003/2016, 8 February 2018.

^[4] High Court judgment, above n 1, at [28].

^[5] At [40].

^[6] At [46].

^[7] At [55].

^[8] Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.

^[9] At [38].

^[10] At [39].

^[11] High Court judgment, above n 1, at [60]–[62].