Jeffries v The Privacy Commissioner

[2007] NZCA 506

IN THE COURT OF APPEAL OF NEW ZEALAND

CA233/07
[2007] NZCA 506

UNDERthe Judicature Amendment Act 1972

IN THE MATTER OF     an appeal from a decision of the High Court

BETWEENWILLIAM PATRICK JEFFRIES

Appellant

ANDTHE PRIVACY COMMISSIONER

Respondent

Hearing:12 November 2007

Court:Arnold, Panckhurst and Keane JJ

Counsel:D H O'Leary for Appellant

D Baltakmens and C Gwyn for Respondent

Judgment:16 November 2007 at 10 am

JUDGMENT OF THE COURT

A        THE APPEAL AGAINST AN ENLARGEMENT OF TIME FOR REVIEW IS DISMISSED.

B        THE RESPONDENT IS AWARDED COSTS OF $2,000 AND USUAL DISBURSEMENTS.

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REASONS OF THE COURT

(Given by Panckhurst J)

Introduction

[1]       This is an appeal against a discretionary decision of Gendall J, by which he granted an enlargement of time to review a decision of an Associate Judge (Associate Judge Gendall) declining an application for further particulars.

[2]       The substantive proceeding is an application for judicial review whereby Mr W P Jeffries, as plaintiff, challenges the validity of certain decisions of the Privacy Commissioner.  It is not necessary to refer to the substance of that proceeding in any detail.  In a decision dated 20 October 2006 Associate Judge Gendall ruled on three interlocutory applications, two brought by the plaintiff seeking an order for the decision of preliminary questions of law and for further discovery, and one by the Privacy Commissioner for further particulars of the claim.  In essence, all three applications failed.

[3]       The plaintiff filed an application to review the first two aspects of the Associate Judge’s decision within time.  Until that point the Privacy Commissioner was not minded to seek a review of the decision concerning further particulars, but upon service of the plaintiff’s application for review, she decided to follow suit.  Four days out of time, the Privacy Commissioner filed applications for enlargement of time and to review the particulars decision.  The application for enlargement was dealt with on the papers.  By a memorandum dated 21 May 2007 Gendall J extended time. 

[4]       This decision in turn resulted in the filing of an appeal to this Court.

Basis of the appeal

[5]       Mr O’Leary advanced the appeal by reference to the considerations identified in Sutton v New Zealand Guardian Trust Co Ltd (1989) 2 PRNZ 111 (HC) as relevant to the general power of the Court to enlarge time pursuant to r 6 of the High Court Rules.  These are the extent of the delay, the explanation (if any) for it, whether the other party has been occasioned prejudice and the merits of the issue for which an enlargement is sought.

[6]       Whilst acknowledging that the delay in this instance was minimal, counsel submitted that in several respects the Judge’s decision was challengable on available grounds for impeaching a discretionary decision. 

[7]       After brief mention of the Sutton factors, Gendall J said this:

[5]     It is not clear to me whether the plaintiff is intending to pursue his original application for review of the Associate Judge’s decision.  Whether or not it is to be pursued, I am satisfied the defendant should be able to have its review application heard.  Otherwise the defendant could file an application for further particulars of the amended claim, it be determined, by the Associate Judge, and then if anyone disagrees, be a decision the subject of review itself.  That sort of delay and inconvenience is to be avoided.

Mr O’Leary argued that this reasoning involved an omission to apply the recognised criteria and evinced reliance upon an irrelevant matter, being speculation as to the possible future interlocutory conduct of the parties, such that the enlargement decision was plainly wrong.

Was the enlargement decision plainly wrong?

[8]       We are not persuaded that the Judge erred in granting an enlargement of time.  This was not a situation where a party sought the indulgence of an enlargement to bring an application for review where, otherwise, there was no challenge to the Associate Judge’s interlocutory decision.  Here, the plaintiff had applied to review other aspects of that decision.  Initially the Privacy Commissioner, although dissatisfied with the particulars decision, was not minded to review that aspect. 

[9]       But, when it became known that a review was in train, the Commissioner had a change of heart and applied to review the particulars aspect as well.  Hence, the belated further application for review was in the nature of a cross appeal and in circumstances where additional delay was not at stake. 

[10]     Gendall J recognised as much.  He approached the enlargement application on a practical basis, correctly recognising that a literal application of the Sutton factors was less appropriate in a situation where delay would occur on account of the plaintiff’s review application anyway.  Instead, the Judge focused on the circumstance that an amended statement of claim had been filed since the Associate Judge’s decision and he expressed himself satisfied that the preferable course was to enlarge time, so that any argument seeking further particulars of the amended claim could be heard at the same time as the other aspects.  His concern was to avoid the possibility of further interlocutory delay and inconvenience.

[11]     Given the minimal delay, the absence of prejudice to the plaintiff, the pendency of a review hearing anyway and the potential for further delay absent an enlargement, we are not persuaded that Gendall J was plainly wrong in deciding to enlarge time.  His decision was one tailored to, and represented a view which was available in light of, the particular situation of the case.

[12]     We reiterate what this Court said in Simes v Tennant (2005) 17 PRNZ 684 at [48], that appeals against decisions granting enlargements of time are not to be encouraged.

[13]     For these reasons the appeal is dismissed.  The appellant is to pay the respondent costs of $2,000 with usual disbursements.

Solicitors:
Duncan Cotterill, Wellington, for Appellant
Crown Law Office, Wellington