Human Rights Act 1993

A   B   C   D   E   F   G   H   I   J   K   L   M   N   O   P   Q   R   S   T   U   V   W   X   Y   Z

A

Access to Tribunal file – application by plaintiff for return of certain documents – allegation by plaintiff of theft and destruction of documents – importance of maintaining Tribunal’s file intact – Public Records Act 2005, ss 17 and 18

Access to Tribunal file – complaint referred back to Human Rights Commission for mediation – statutory attachment of confidentiality to mediation – effect on open justice principle and on media access to Tribunal file during mediation process – Human Rights Act 1993, ss 75, 83, 85, 86, 87, 92D and 107(1) – High Court Rules, Part 3, Subpart 2, rr 3.13 and 3.16

Access to Tribunal file – law to be applied – application by media – Human Rights Act 1993, ss 105, 107(1) and 108(1) – High Court Rules, Part 3, Subpart 2, rr 3.5 to 3.16

Access to Tribunal file – non-party – law to be applied – Human Rights Act 1993 ss 105, 107(1) and 108(1) – High Court Rules, Part 3, Subpart 2, rr 3.5 to 3.16

Access to Tribunal file – non-party – law to be applied – whether principle of open justice to be turned into an enforceable right to fair and accurate reporting – whether discretion to control access a discretion to control reporting by media – Human Rights Act 1993, ss 105, 107(1) and 108(1) – High Court Rules, Part 3, Subpart 2, rr 3.5 to 3.16

Address for service – withdrawal of lawyer  – effect  – High Court Rules, r 5.41

Adjournment – multiple adjournment applications – inadequate medical certificates – accumulating delays – repeated non-compliance with case management directions – Tribunal resources under sustained pressure – prejudice to defendant – whether further adjournment to be granted – dismissal of proceedings

Agent – representation by – whether party has unqualified right to assistance of a particular agent – right of court or tribunal to regulate its own procedure in the interests of the proper administration of justice – whether fair or unfair to deny litigant in person a particular form of assistance – circumstances in which particular agent not be permitted to represent a party – Human Rights Act 1993, ss 104(5) and 108(3) – Human Rights Review Tribunal Regulations 2002, reg 16(1)

Apparent bias – recusal – test for

Appeal – stay of decision – whether Tribunal has jurisdiction to order stay – principles to be applied – Human Rights Act 1993, s 123(9)

Authorised or required by an enactment or otherwise by law – application of Human Assisted Reproductive Technology Act 2004 – guiding principles – whether to be taken into account – Human Rights Act 1993, s 21B(1) – Human Assisted Reproductive Technology Act 2004, s 4 – Health and Disability Services (Safety) Act 2001 – NZS 8181 Fertility Services – Code of Health and Disability Services Consumers’ Rights, Rights 1, 2, 4 and 6

Authorised or required by an enactment or otherwise by law – duty of health care provider to exercise reasonable care and skill – whether duty to decline to provide services if provision of services sought beyond experience and skill levels – Human Rights Act 1993, s 21B(1) – Code of Health and Disability Services Consumers’ Rights, Right 4

Authority to bring proceedings – authority to act – when necessary to file – lawyer’s authority to file documents – authority of lay agent or representative – whether necessary to establish – Human Rights Act ss 104(5) and 108(3) – Lawyers and Conveyancers Act 2006, ss 27(1) and 39(1) – High Court Rules, r 5.37

Authority to bring proceedings on behalf of disabled plaintiff – failure to establish – whether proceedings to be struck out

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B

Bankruptcy – effect of defendant’s bankruptcy – whether proceedings before Tribunal halted – provable debt – Insolvency Act 2006, ss 76, 231 and 232

Bias – apparent bias – recusal – test for

 

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C

Causation – by reason of – whether prohibited ground of discrimination required to be only a material ingredient rather than a substantial and operative factor – Human Rights Act 1993, s 22(1)(c)

Children – litigation guardian – appointment of – right to be heard – High Court Rules, rr 4.29, 4.30, 4.31 and 4.32 – Convention on the Rights of the Child 1989, Article 12

Communication assistance – provision of – party with a communication disability – second plaintiff with Autistic Spectrum Disorder, intellectual disability and co-morbid anxiety disorder – whether communication assistance to be provided – Evidence Act 2006, s 80

Comparator group – employment – termination of – proper comparator group – Human Rights Act 1993, s 22(1)(c)

Comparator group – employment – termination on grounds of pregnancy, physical disability or impairment – Human Rights Act 1993, s 22(1)(c)

Comparator group – Part 1A claim – principles to be applied in identifying comparator

Consolidation – proceedings brought variously under Human Rights Act 1993 and Privacy Act 1993 – whether commonality between proceedings – whether consolidation would serve a useful purpose – Human Rights Review Tribunal Regulations 2002, reg 16(ii)

Costs – incapacitated person represented by litigation guardian – whether such representation to be disregarded in making an award of costs in favour of or against the incapacitated person – High Court Rules 2016, r 4.41

Costs – litigant in person delusional – relevance of mental disability in context of costs application – successful party represented by agent, not lawyer – whether costs other than disbursements could be awarded

Costs – litigant in person – preserving access to justice

Costs – principles to be applied – Human Rights Act 1993, s 92L

Costs – principles to be applied – indemnity costs – costs awarded against person represented by Director of Human Rights Proceedings – Human Rights Act, ss 92C(4) and 92L

Costs – principles to be applied – whether compassion relevant – Human Rights Act 1993, s 92L

Costs – principles to be applied – whether costs to punish unsuccessful party – whether costs to discourage party from bringing or defending proceedings – whether litigants in person who engage in needless and inexcusable conduct enjoy immunity – whether understanding and compassion relevant – Privacy Act 1993, s 85(2)

Costs – principles to be applied – whether Tribunal to depart from civil rule that costs follow the event – whether costs discretion must promote, not negate objects of Human Rights Act 1993 – whether discretion to be exercised in a way which may discourage individuals from bringing proceedings – plaintiff filing discontinuance – whether presumption costs to be awarded defendant – Human Rights Act 1993, s 92L

Costs – relevance of implementation at domestic level of international obligations – responsibility of State to respect and ensure – principle of access to justice – relevance of public importance of case – public interest and the award of costs by the Tribunal – relevance of motivation of unsuccessful plaintiff – Human Rights Act 1993, s 92L

Costs – representation on a fee paying basis but quantum not fixed and if plaintiff unsuccessful fee would be waived – whether necessary for successful party to have received or paid a bill of costs – impecunious plaintiff – whether withholding costs would discourage – Human Rights Act 1993, ss 92L and 105

Costs – settlement offer – Calderbank offer – whether defendant should have accepted – relevance of 

Costs – unsuccessful litigant in person refused legal aid – litigant in prison and without funds – relevance to award of costs

Costs – unsuccessful plaintiff a litigant in person – need for Tribunal’s processes and procedures to be adapted to ensure lay litigants not unduly deterred by prospect of adverse award of costs – access to justice – withholding provisions – challenge to application of – role of Tribunal in withholding cases – importance of Tribunal’s oversight – relevance of when agency applies for costs – Privacy Act 1993, ss 27 to 29 and 85(2)

Costs – whether principles to be applied different where Director of Human Rights Proceedings involved in proceedings – Human Rights Act 1993, ss 92C(4) and (5) and 92L(1)

Crown – the Crown – the Attorney-General – the Solicitor-General – the Crown Law Office – meaning of terms – Crown Proceedings Act 1950, s 14(2)

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D

 Declaration of inconsistency made – Human Rights Act 1993, ss 20J(1) and 92J(1)

Delay by Tribunal issuing decision – reasons for – unprecedented increase in workload – need for Deputy Chairperson(s) to be appointed – Human Rights Act in urgent need of amendment to allow this to be done – Human Rights Act 1993, s 102(1)

Dignity – interpretation of – persons with disabilities – plaintiff lacking capacity to know breach of right has taken place – whether loss of dignity assessed subjectively or objectively – basis on which damages for loss of dignity to be assessed – assessment of quantum – discretion to grant remedy – Human Rights Act 1993, s 92M – Privacy Act 1993, s 88 – Health and Disability Commissioner Act 1994, s 57

Director of Human Rights Proceedings – costs – principles to be applied when costs awarded against person represented by Director – Human Rights Act 1993, s 92C(4) and 92L

Director of Human Rights Proceedings – costs – principles to be applied when costs awarded in favour of Director – Human Rights Act 1993, ss 92C(5) and 92L

Discontinuance of proceedings by second plaintiff – whether reinstatement possible – obligation of Tribunal to act according to equity and good conscience – Human Rights Act 1993, s 105(2)(c)

Discovery – confidentiality claim – determining challenge – application of High Court Rules – application of Evidence Act 2006 – High Court Rules, r 8.25 – Evidence Act 2006, ss 69 and 70

Discovery – continuing process – whether ruling on one aspect of discovery inhibits ruling on different aspect – confidentiality interests – whether such interests trump need for Tribunal to get at the truth and need to combat discrimination – whether confidentiality concerns can be addressed by different mechanisms – significance of undertaking – Human Rights Act 1993, ss 105 and 107 – Evidence Act 2006, s 69

Discovery – discovery against non-party – application to cross-examine non-party – grounds to be shown

Discovery – discovery against non-party – jurisdiction to order – procedure to be followed – whether order for particular discovery against non-party the only means to gain access to documents held by non-party – subpoena duces tecum – witness summons requiring production of papers, documents, records or things – Human Rights Act 1993, ss 104(5), 106(1)(a), (b) and (c) and 109 – Human Rights Review Tribunal Regulations, reg 16(1) – High Court Rules, rr 8.21 and 9.52

Discovery – further and better discovery – onus on party seeking – whether there must be grounds for believing the other party has not discovered documents that should have been discovered – High Court Rules, r 8.19

Discovery – implied undertaking that discovered documents and information will be used only for the purpose of the proceedings – whether express undertaking required

Discovery – jurisdiction to order – structure of discovery before Tribunal – Human Rights Act 1993, s 104 – Human Rights Review Tribunal Regulations 2002, reg 16(1)

Discovery – legal professional privilege – whether possible to go behind claim to privilege made by solicitor in affidavit of documents – High Court Rules, r 8.25 – Evidence Act 2006, ss 53, 54 and 56

Discovery – rationale for

Discovery – right to be free from discrimination versus confidentiality interests of third party – assessment of – whether probative value outweighed by confidentiality interest – relevance of redaction of document and the giving of undertaking by party seeking discovery – Evidence Act 2006, s 69

Discovery – the importance of relevance to the matters in issue as defined by the pleadings

Discovery – whether a duty to preserve documents that are, or are reasonably likely to be, discoverable in the proceeding – whether Tribunal has jurisdiction to make interim preservation order – High Court Rules, r 8.3 – IPP 5

Discrimination – access to public place refused – indirect discrimination – whether by reason of prohibited ground of discrimination – Human Rights Act 1993, ss 42 and 65

Discrimination – accommodation – refusal to rent by reason of plaintiff’s reliance on a guide dog – Human Rights Act 1993, ss 21(1)(h)(vi) and 53(1)

Discrimination – age – whether established on facts – choice of comparator – material disadvantage – whether disadvantage beyond direct loss must be established – Accident Compensation Act 2001, Schedule 1, Part 4, cl 68

Discrimination – age – whether proxy for capacity and maturity – need for expert evidence – stereotypical application of presumed personal or group characteristics – Human Rights Act 1993, s 21(1)(i)

Discrimination – disability – attribution of characteristics of disabled person to comparator group – taking away characteristics of disabled person from disabled group – Human Rights Act 1993, s 21(1)(h)

Discrimination – employment – whether priests employees – Human Rights Act 1993, s 22

Discrimination – exception where qualification needed for a calling for the purposes of an organised religion and limited to one sex or to persons of that religious belief so as to comply with the doctrines or rules or established customs of that religion – meaning of – Human Rights Act 1993, ss 38 and 39(1)

Discrimination – family status – being married to a particular person – whether means more than just “married to” – New Zealand superannuation – spousal deduction – selection of comparator group – Human Rights Act 1993, s 21(1)(l)(iii)

Discrimination – indirect discrimination – whether applies only to members of groups – whether impact on solitary person sufficient to found a claim.

Discrimination – marital status – unmarried de facto relationship – sexual orientation – Human Rights Act 1993, s 21(1)(b) and (m) – Marriage Act 1955, s 29(2) – Marriage (Definition of Marriage) Amendment Act 2013, s 4

Discrimination – marital status – whether different to family status – New Zealand superannuation – spousal deduction – selection of comparator group – Human Rights Act 1993, s 21(1)(b)

Discrimination – physical disability or impairment – whether necessary to prove intention in sense of motive or purpose to engage in prohibited discrimination – termination of employment – whether relevant that procedure fair or reasonable – relevance of 90 day trial period – remedy – Human Rights Act 1993, s 22(1)

Discrimination – provision of goods and services – whether comparator required – by reason of – whether causative link required – whether material factor test to be applied – selection of comparator group – Human Rights Act 1993, ss 21(2)(b) and 44(1)(a) and (b)

Discrimination – race – ethnic or national origins – whether established on the facts – Human Rights Act 1993, s 21(1)(f) and (g)

Discrimination - religion – whether religious belief includes both the belief itself and the manifestation of that belief – whether a distinction between the law’s protection of the right to hold and express a belief and the law’s protection of that belief’s substance or content – whether New Zealand Bill of Rights Act 1990, s 19 imposes obligation to accommodate a religious belief – Human Rights Act 1993, s 21(1)(c) – New Zealand Bill of Rights Act 1990, ss 13, 15 and 19.

Discrimination – sex – family status – eligibility for sole parent support benefit – whether indirect discrimination against male parents – whether ability to complain about legislation under Part 1A restricted to persons affected by it – whether Social Security Act 1964, s 70B discriminates against men in favour of women – Human Rights Act 1993 – Part 1A – Social Security Act 1964, s 70B(3)

Dismissal of proceedings – proceedings brought before Tribunal in relation to matter not the subject of a complaint to the Human Rights Commission – whether Tribunal had jurisdiction – Human Rights Act 1993, ss 76(2)(a) and 92B

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E

Employment - applicant for employment – discrimination on family status - whether material ingredient in employment being declined was conflicts of interest policy or family status – costs principles – Human Rights Act 1993, s 22.

Employer – vicarious liability of – thing done “as” employee – act done “by” an employee – meaning of – distinction between – whether employer took steps that were reasonably practicable – whether employer who is vicariously liable for actions of employee can rely on employee’s belief on reasonable grounds that non-compliance with IPP 11 necessary for conduct of proceedings before a court – Privacy Act 1993, s 126 – Human Rights Act 1993, s 68 – IPP 11(e)(iv)

Employment – applicant for employment – whether declined on grounds of disability – credibility – Human Rights Act 1993, s 22

Employment – applicant for employment – whether formal application for employment necessary – Human Rights Act 1993, s 22(1)

Employment – discrimination – religious practice – observance of Sabbath – employer’s duty to accommodate – Human Rights Act 1993, ss 22, 28 and 35

Employment – discrimination – religious practice – observance of Sabbath – employer’s duty to accommodate – unreasonably disrupt employer’s activities – interpretation of – whether evidential foundation required – nature of duty on employer – relevance of detrimental effect on employee morale – whether account to be taken of need to provide equal access to workforce of people who would otherwise encounter barriers to entry – burden of proof – Human Rights Act 1993, ss 22, 28(3), 35 and 92F(2)

Employment – meaning of “qualified” – whether means both competency to do the work and any formal qualifications required for the work – how genuine occupational requirement to be determined – whether anticipation of future acquisition of required qualification sufficient – Human Rights Act 1993, s 22(1)(a)

Employment Relations Authority – lodging of application with ERA – effect of application on jurisdiction of Human Rights Review Tribunal – Human Rights Act 1993, s 79A – Employment Relations Act 2000, s 158

Employment – termination of – discrimination – comparator group – Human Rights Act 1993, s 22(1)(c)

Enforcement – non-compliance with orders made by Tribunal – whether Tribunal has inherent jurisdiction – whether power to enforce orders – whether High Court has inherent jurisdiction to uphold authority of tribunals – Human Rights Act 1993, s 121 – Senior Courts Act 2016, s 12(b)

Equity and good conscience – application where plaintiff has delayed filing of proceedings – application of Limitation Act 1950 and Limitation Act 2010 by analogy to equitable claims – Human Rights Act 1993, s 105(2)(c) – Limitation Act 1950, s 4 and Limitation Act 2010, ss 8, 9, 10 and 11

Evidence – admissibility – discretion to admit evidence – test – relationship between Human Rights Act 1993 and Evidence Act 2006 – Human Rights Act 1993, ss 106(1) and (4) – Evidence Act 2006, s 5(1)

Evidence – admissibility – relationship between Human Rights Act 1993 and Evidence Act 2006 – Human Rights Act 1993, s 106 – Evidence Act 2006, s 5

Evidence – appearance of witness or participant by audio-visual link (AVL) – whether jurisdiction to permit – principles and criteria to be applied – Human Rights Act 1993, s 104(5) – Courts (Remote Participation) Act 2010, ss 5 and 7 – Evidence Act 2006, ss 102 to 105

Evidence – civil judgment – whether admissible as evidence of facts found in judgment – Human Rights 1993, s 106(1)(d) – Evidence Act 2006, s 50

Evidence – confidentiality – jurisdiction of Tribunal to determine – Evidence Act 2006, s 69 – High Court Rules, r 8.25

Evidence – counsel appearing by audio-visual link (AVL) – whether jurisdiction to permit – principles and criteria to be applied – Courts (Remote Participation) Act 2010, ss 5 and 7 – Evidence Act 2006, ss 102 to 105

Evidence – discovery – extent of – public interest in full and vigorous investigation of alleged unlawful discrimination – claim to confidentiality – grounds for determining

Evidence – pre-trial ruling on admissibility of evidence – whether appropriate when Human Rights Review Tribunal will not, until the substantive hearing, be in a position to determine whether proffered evidence may assist it to deal effectively with the matter before it – whether admissibility to be determined in context – provisional admission of evidence – Human Rights Act 1993, s 106(1)(d) – Evidence Act 2006, ss 5(1) and 14

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F

Freedom of expression – importance of – permissible restrictions – framework of analysis – Moonen or Hansen – Human Rights Act 1993, s 61 – Interpretation Act 1999, s 5 – New Zealand Bill of Rights Act 1990, ss 4, 5, 6, 14 and 19 – International Convention on the Elimination of All Forms of Racial Discrimination, 1965, Articles 4 and 5 – International Covenant on Civil and Political Rights, 1966, Article 19 – European Convention on Human Rights, 1950, Article 10

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G

Granting of remedies by High Court on reference from Tribunal – decision of High Court on remedies to be included and given effect to as part of Tribunal’s determination – Human Rights Act 1993, s 92T(5) and 92U(1)

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I

Immigration – prohibition on bringing of complaint under Human Rights Act 1993 in respect of content or application of Immigration Act 2009 or immigration instructions – whether prohibits also access to Tribunal – Human Rights Act 1993, s 92B – Immigration Act 2009, s 392

In-Court media coverage – camera in court – filming of witnesses while in court or giving evidence – filming of balance of proceedings – whether permitted – In-Court Media Coverage Guidelines 2012 – Human Rights Act 1993, ss 105(2)(b) and 107 – New Zealand Bill of Rights Act 1990, s 14

In-Court media coverage – NZME application to take photographs and make audio recording in court granted, subject to conditions. Media Guide for Reporting the Courts and Tribunals, edition 4.1 - In-Court Media Guidelines 2016 – Human Rights Act 1993, ss 105(2)(b) and 107 – New Zealand Bill of Rights Act 1990, s 14

Indemnity costs – principles to be applied – Human Rights Act 1993, s 92L

Indirect discrimination – Part 1A claim – test – whether Human Rights Act 1993, s 65 a useful guide – Human Rights Act 1993, s 65

Interim order application – consent orders regarding provision of kosher food to prisoner – Human Rights Act 1993, s 95

Interim order application – interim orders against the Crown – jurisdiction to make – whether mandatory orders against the Crown can be made by Chairperson on interim order application – Human Rights Act 1993, s 95 – Crown Proceedings Act 1950, s 17

Interim order application – principles to be applied

Interim order application – provision of kosher food to prison inmate – terms of consent order – Human Rights Act 1993, s 95(1)

Interim order application – that the Ministry of Health reverse a direction to decline new referrals for Ministry-funded day services – that the Tribunal confirm that certain service users were eligible for needs-based referral for Ministry-funded day services – reference made to High Court – whether power to make interim order affected by reference to High Court – Human Rights Act 1993, ss 92R and 95

Interim order application – whether orders limited to preserving status quo – whether purpose to relieve applicant from adverse effects of a challenged decision until the challenge is heard and determined – whether purpose to preserve ability of Tribunal to grant effective relief if challenge successful – Human Rights Act
1993, s 95

Interpretation – ambulatory – application of always speaking principle – Interpretation Act 1999, s 6

Interpretation – ambulatory approach – Interpretation Act 1999, s 6

Interpretation – special character of human rights legislation – interpretation in a manner that will provide better protection of human rights particularly the right to non-discrimination – Human Rights Act 1993, Part 3 and ss 20I, 75, 76 and 77 – International Covenant on Civil and Political Rights, 1966, Article 2(3)

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J

Jurisdiction – identifying the “complaint” lodged with the Human Rights Commission – certificate from Human Rights Commission – effect of – Human Rights Act 1993, ss 76(2)(a) and 92B

Jurisdiction – inherent jurisdiction – inherent powers – whether possessed by Tribunal – delay or refusal to comply with orders made by Tribunal – whether Tribunal has jurisdiction to make enforcement orders – whether Tribunal a court – jurisdiction of High Court to uphold authority of tribunals – Human Rights Act 1993, ss 105, 114 and 121 – Senior Courts Act 2016, s 12(b) – High Court Rules, r 11.10

Jurisdiction – justiciability of social, economic and fiscal policies – Human Rights Act 1993, Part 1A and ss 92I(3)(f) and (g) and ss 92O and 92P

Jurisdiction – requirement of a complaint – notification of complaint to person complained against – whether jurisdiction of Tribunal confined to complaint as lodged with Human Rights Commission – Human Rights Act 1993, Part 3 and ss 75, 76 and 92B

Jurisdiction – strike-out application – claim statute barred – complaint about a judgment or other order of a court or an act or omission of a court affecting conduct of any proceedings – whether proceedings can be brought before Tribunal – Human Rights Act 1993, ss 79(3) and 92B(7)

Jurisdiction – strike-out application – claim statute barred – New Zealand Public Health and Disability Act 2000, s 70E

Jurisdiction – whether Tribunal has jurisdiction in relation to New Zealand Bill of Rights Act 1990 and other statutes over and above its jurisdiction under the Human Rights Act 1993, Privacy Act 1993 and Health and Disability Commissioner Act 1994

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L

Limitation Act 1950 and Limitation Act 2010 – application to proceedings before Human Rights Review Tribunal – Human Rights Act 1993, s 105(2)(c) – Limitation Act 1950, s 4 and Limitation Act 2010, ss 8, 9, 10 and 11

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M

Media – access to Tribunal file – interim orders in operation – grant of access subject to conditions – application of Senior Courts (Access to Court Documents) Rules 2017, rr 12 and 13

Media – access to Tribunal file – whether principle of open justice to be turned into an enforceable right to fair and accurate reporting – whether discretion to control access a discretion to control reporting by media – Human Rights Act 1993, ss 105, 107(1) and 108(1) – High Court Rules, Part 3, Subpart 2, rr 3.5 to 3.16

Media – In-Court media coverage – camera in court – filming of witnesses while in court or giving evidence – filming of balance of proceedings – whether permitted – In-Court Media Coverage Guidelines 2012 – Human Rights Act 1993, ss 105(2)(b) and 107 – New Zealand Bill of Rights Act 1990, s 14

Media – In-Court media coverage – NZME application to take photographs and make audio recording in court granted, subject to conditions. Media Guide for Reporting the Courts and Tribunals, edition 4.1 - In-Court Media Guidelines 2016 – Human Rights Act 1993, ss 105(2)(b) and 107 – New Zealand Bill of Rights Act 1990, s 14

Media – whether possible to close a hearing to forestall possibility media reporting might be unfair or unbalanced

Mediation – confidentiality – rationale for duty of confidentiality – Human Rights Act 1993, ss 75, 83, 85, 86 and 89

Mediation – confidentiality – rationale of duty of confidentiality – significance to dispute resolution process under Part 3 Human Rights Act 1993 – significance of Tribunal’s power to refer complaint back to Human Rights Commission – Human Rights Act 1993, ss 75, 83, 85, 86, 87, 92D and 107(1)

Mediation – enforcement of terms of settlement agreed by parties – application of Contractual Remedies Act 1979 – Human Rights Act 1993, s 89

Mootness – application of doctrine of mootness – whether Tribunal bound to refuse to adjudicate claim which is moot – whether jurisdiction to deliver decision in exceptional circumstances – power to regulate own procedure – Human Rights Act 1993, s 104(5)

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N

Name suppression – disclosure of information regarding state of health – whether a highly personal matter – recognition of wish to maintain the confidentiality of that information – Human Rights Act 1993, s 107(3) and the Privacy Act 1993, s 89

Name suppression – health professionals not parties to the proceedings

Name suppression – interests of justice – relevance of delay by applicant – relevance of public interest where Pharmacy Council has placed conditions on plaintiff’s participation in the pharmacy industry requiring plaintiff to disclose to any employer that he is under investigation by a Professional Conduct Committee and that he must work under a Council-approved supervisor at all times – Human Rights Act 1993, ss 95(1) and 107(2) and (3) – Health Practitioners Competence Assurance Act 2003, s 3

Name suppression – open justice principle – countervailing interests – principles to be applied – relevance of confidentiality obligation in mediation context – relevance of interim order decision in determining whether final order to be made – public interest in knowing mediated settlements may be enforced by Tribunal – weight to be given to damage to political career and reputation – Human Rights Act, s 107(3)

Name suppression – open justice principle – freedom of speech – whether relevant to consider whether there are alternatives to suppression orders when addressing conflicts between rights

Name suppression – open justice principle – interests of justice – principles to be applied – interpretation and application of s 107 Human Rights Act 1993 – meaning of “special circumstances” and “desirable” – summary of correct approach to applications for name suppression – Human Rights Act 1993, s 107(2) and (3) – Senior Courts (Access to Court Documents) Rules 2017, rr 12 and 13

Name suppression – plaintiffs unable to establish case – relevance of interests of family members – children as vulnerable persons with severe disabilities – Human Rights Act 1993, s 107(3)

Name suppression – principles to be applied – Human Rights Act 1993, ss 95(1) and 107(3)

Name suppression – principles to be applied – open justice principle – effect of recent Court of Appeal judgments – whether exceptional circumstances must be established to justify suppression – whether threshold high – Human Rights Act 1993, ss 95(1) and 107(3)

Name suppression – principles to be applied – plaintiff – witnesses – defendants – Human Rights Act 1993, s 107

Name suppression – prior publication of name – whether precludes making of suppression order

Name suppression – protection of right to fair trial – whether right applies in context of civil proceedings – test for when right at risk – reconciling right to fair trial and freedom of expression – who to decide – powers of High Court compared with powers of Tribunal – Human Rights Act 1993, ss 95(1) and 107(3) – Human Rights Committee, General Comment No. 32 (Article 14: Right to equality before courts and tribunals and to a fair trial) (2007) at para [2]

Name suppression – rescission of order where protection no longer sought

Name suppression – sexual harassment proceedings – reasons why non-publication order often required in such cases – Human Rights Act 1993, s 95(1)

Non-Party – application to appear and to call evidence by person with interest in the proceedings greater than the public generally – factors to be taken into account – Human Rights Act 1993, s 108

Non-party – whether jurisdiction for Tribunal to provide plaintiff with information about defendant and aggrieved person – Human Rights Act 1993, s 115

Non-party – whether jurisdiction to compel non-party to provide the residential address or phone number of a potential witness or of his or her counsel – information privacy Principle 11(e)(iv)

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O

Omission by legislative branch of the Government – whether Human Rights Act 1993, s 61 discriminatory because the actions made unlawful in relation to the grounds of colour, race, or ethnic or national origins are not also made unlawful in respect of sexual orientation – selection of appropriate comparator – whether s 61 a measure taken in good faith – application of New Zealand Bill of Rights Act 1990, s 19(2) – whether proper justification for the legislative branch to not include in HRA, s 61 the protected ground of sexual orientation – remedy – whether in an “omission” case a declaration of inconsistency can be made given the enactment itself is not in breach – whether a declaration of inconsistency to be made in relation to a statutory provision which implements a longstanding human rights treaty obligation of the first importance, being the International Convention on the Elimination of all Forms of Racial Discrimination, 1965 – Human Rights Act 1993, s 61 – New Zealand Bill of Rights Act 1990, ss 5 and 19(2)

Ombudsmen – whether Tribunal has jurisdiction to hear complaints against – whether Tribunal an inferior court – Ombudsmen Act 1975, s 25

Order removing proceedings to High Court – leave of High Court required – procedure for obtaining – Human Rights Act, s 122A

  

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P

Part 1A – alleged breach – analytical framework – Hansen test – discrimination test – comparator – justified limitations test – Human Rights Act 1993, ss 19 and 20L – New Zealand Bill of Rights Act 1990, s 6

Particulars - duty of plaintiff to provide - requirements

Parties – application by Attorney-General to be added as defendant when Attorney-General able under s 92G to exercise statutory right to appear and to adduce evidence and to cross-examine witnesses – whether relevant that Attorney-General should have been joined as a party from the outset – whether relevant joinder as a party confers the wider rights and obligations than s 92G – Human Rights Act 1993, s 92G – High Court Rules, r 4.56

Parties – joinder – adding defendants – principles to be applied – Human Rights Review Tribunal Regulations 2002, reg 16(1) – High Court Rules, rr 4.3 and 4.56

Police – no enactment giving Police the power to sue or enabling it to be sued – whether Attorney-General appropriate Crown defendant – Crown Proceedings Act 1950, s 14(2)

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R

Race – ethnic or national origins – discrimination - whether established on the facts – Human Rights Act 1993, s 21(1)(f) and (g)

Racial disharmony – history of provision – whether under ICERD 1965 and ICCPR 1966 right to be free from hate speech and right to freedom of expression absolute rights – permissible restrictions – framework of analysis – Moonen or Hansen – meaning of "insult", "contempt" and "likely" – whether an objective test – Human Rights Act 1993, s 61 – Interpretation Act 1999, s 5 – New Zealand Bill of Rights Act 1990, ss 4, 5, 6, 14 and 19 – International Convention on the Elimination of All Forms of Racial Discrimination, 1965, Articles 4 and 5 – International Covenant on Civil and Political Rights, 1966, Article 19 – European Convention on Human Rights, 1950, Article 10

Racial harassment – elements to be established – vicarious liability –Human Rights Act 1993, ss 63 and 68

Racial harassment – remedies – damages – assessment of – restraining order – training order – Human Rights Act 1993, s 92I(3)(b), (c) and (f)

Recall of decision once sealed and published – whether jurisdiction – Human Rights Act 1993, ss 104 and 105 – Interpretation Act 1999, ss 13 and 16

Referral of complaint back to Human Rights Commission – Human Rights Act 1993, s 92D

Referral of complaint back to Human Rights Commission – mediation – proceedings under Part 1A alleging statutory provision imposes unlawful limitation on freedom from discrimination – application by Ministry of Social Development – MSD having previously refused to mediate – whether referral to HRC appropriate to assist parties to prepare for litigation before Tribunal – advancing age of plaintiffs – whether referral will contribute constructively to resolving the complaint or be in the public interest – Human Rights Act 1993, s 92D(1)

Religion – religious liberty as a collective right – International Covenant on Civil and Political Rights, Article 18 – New Zealand Bill of Rights Act 1990, ss 13, 15 and 20

Religion – right to manifest – observance of the Sabbath – International Covenant on Civil and Political Rights, Article 18 – Human Rights Committee General Comment No. 22 – New Zealand Bill of Rights Act 1990, ss 13 and 15

Religion – whether court or tribunal should determine ecclesiastical disputes where matters of faith or doctrine at issue – doctrine of Anglican Church on Christian marriage – sexual orientation and the ordination of deacons and priests

Religion – whether religious belief includes both the belief itself and the manifestation of that belief – whether a distinction between the law’s protection of the right to hold and express a belief and the law’s protection of that belief’s substance or content – whether New Zealand Bill of Rights Act 1990, s 19 imposes obligation to accommodate a religious belief – Human Rights Act 1993, s 21(1)(c) – New Zealand Bill of Rights Act 1990, ss 13, 15 and 19.

Remedy – breach of mediation settlement – factors to be taken into account – Human Rights Act 1993, ss 92B(4) and 92I

Remedy – damages – whether plaintiff can recover more than once

Remedy – declaration of inconsistency made – Human Rights Act 1993, ss 20J(1) and 92J(1)

Remedy – declaration – whether to be denied – Human Rights Act 1993, s 92I(3)(a)

Remedy – delay – discretion to refuse relief on grounds of delay by plaintiff – equity and good conscience obligations of Tribunal – whether factors relevant to the exercise of the discretion to dismiss a monetary claim for undue delay have the same application to a claim for non-monetary relief such as a declaration – Human Rights Act 1993, s 105(2)(c) – Health and Disability Commissioner Act 1994, ss 50 and 51 – Limitation Act 1950, s 4 and Limitation Act 2010, ss 8, 9, 10 and 11

Remedy – humiliation, loss of dignity and injury to feelings – quantum – assessment of – Human Rights Act 1993, ss 92I(3)(c) and 92M(1)(c) – Prostitution Reform Act 2003, s 3

Remedy – humiliation, loss of dignity or injury to feelings – whether award of damages premised on the humiliation, loss of dignity or injury to feelings experienced by the aggrieved individual or on the experiences of a person of ordinary fortitude

Remedy – humiliation, loss of dignity or injury to feelings – whether can be inferred – whether inference can only be drawn in limited cases – whether higher awards require third party evidence

Remedy – loss of dignity – interpretation of – persons with disabilities – plaintiff lacking capacity to know breach of right has taken place – whether loss of dignity assessed subjectively or objectively – basis on which damages for loss of dignity to be assessed – assessment of quantum – discretion to grant remedy – Human Rights Act 1993, s 92M – Privacy Act 1993, s 88 – Health and Disability Commissioner Act 1994, s 57

Remedy – Part 1A – enactment in breach of Part 1A – whether declaration of inconsistency to be withheld – whether need for extremely strong reasons – claim of political character – whether reason for withholding declaration – Human Rights Act 1993, ss 20J(1) and 92J(4) – New Zealand Bill of Rights Act 1990, s 4

Remedy – restraining order – whether to be made – Human Rights Act 1993, s 92I(3)(b)

Remedy – training order – whether to be made – Human Rights Act 1993, s 92I(3)(f)

Removal of proceedings to High Court – leave of High Court required – procedure for obtaining – Human Rights Act, s 122A

Required standard of care – duties at common law – whether patient has right to demand services

Required standard of care – duty of health care provider to exercise reasonable care and skill – whether duty to decline to provide services if provision of services sought beyond experience and skill levels – Human Rights Act 1993, s 21(1)(h)(ii) – Code of Health and Disability Services Consumers’ Rights, Right 4

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S

Search order – jurisdiction to make

Service of statement of claim – defendant member of Parliament – Parliamentary Privilege Act 2014 – Human Rights Review Tribunal Regulations 2002, regs 12 and 13 – 2014 Standing Orders, Orders 409 and 410(c)

Setting aside decision – defendant not given notice of proceedings or of date of hearing – jurisdiction to set aside – miscarriage of justice – Human Rights Act 1993, s 105 – Human Rights Review Tribunal Regulations 2002, regs 12, 13, 18 and 19(3) – High Court Rules, r 15.10

Sexual harassment – elements to be established – use of language of a sexual nature – unwelcome or offensive to that person – either repeated or of such a significant nature – that it has a detrimental effect – employment – employer – vicarious liability – Human Rights Act 1993, ss 2, 62 and 68

Sexual harassment – employment – credibility of plaintiff – Human Rights Act 1993, s 22

Sexual harassment – employment – harassment by customer or client – whether breach of Act – Human Rights Act 1993, ss 62(2) and 69

Sexual harassment – whether spiritual counselling a service – elements to be established – whether use of language or physical behaviour of a sexual nature must be related or associated with the provision of services – whether test for unwelcome or offensive subjective – meaning of detriment – relevance of objection or toleration by victim – relevance of delay by victim – application of Limitation Acts of 1950 and 2010 – whether delay undue – Human Rights Act 1993, ss 62(2)

Standard of behaviour to be observed by litigants – opposing party behaving in threatening manner – whether counsel can be allowed to participate by AVL – appropriate standard of behaviour to be observed by litigants – Human Rights Act 1993, s 104(5) – Courts (Remote Participation) Act 2010, ss 5 and 7 – Evidence Act 2006, ss 102 to 105

Standing – plaintiff not the victim of alleged sexual harassment – proceedings not brought with knowledge or consent of alleged victim – person aggrieved refusing to cooperate with plaintiff in bringing of claim – whether aggrieved person to be advised of opportunity to be heard under s 108 Human Rights Act 1993 – whether direction to be given that aggrieved person to be served with statement of claim as precursor to exercising right to apply under s 108 – Human Rights Act 1993, s 108

Standing – whether a standing requirement before Human Rights Commission or Human Rights Review Tribunal – whether necessary for plaintiff to have personally suffered discrimination or to be acting on behalf of a person who has suffered discrimination – whether any person may complain of discrimination – importance of power to strike out where proceedings trivial, vexatious or not brought in good faith

Statement of claim – requirements of

Statement of claim – requirement to be in correct form – informal application – discretion to determine proceedings commenced by – whether plaintiff must be entitled to bring the intended proceedings – whether proceedings brought under Human Rights Act 1993 can be used to make claim under Privacy Act 1993 – Privacy Act 1993, s 83 – Human Rights Review Tribunal Regulations 2002, regs 5, 7, 8, 9, 10 and 11

Statement of reply – failure to file within 30 days after service of statement of claim – whether discretion to grant leave to file out of time – circumstances in which leave may be granted – Human Rights Act 1993, ss 105 and 108 – Health and Disability Commissioner Act 1994, s 58 – Human Rights Review Tribunal Regulations 2002, reg 15

Statutory interpretation – primary principle of interpretation – whether meaning of text to be cross-checked against purpose – whether regard to be had to the immediate and general legislative context – relevance of New Zealand’s international obligations – whether a presumption Parliament does not intend to legislate contrary to those obligations – Interpretation Act 1999, s 5

Strike-out application – abuse of process – employment dispute settled by an agreement in full and final settlement of all matters between parties – whether employee thereby prevented from subsequently making information privacy request – whether statutory right to personal information held by a public sector agency can be defeated by a private settlement – whether issue suitable for determination on strike-out application – Privacy Act 1993, s 11(1)

Strike-out application – agreement between parties in full and final settlement of employment relationship problem which included a privacy complaint – whether proceedings before Tribunal to be struck out as abuse of process – Privacy Act 1993, s 115

Strike-out application by defendant living overseas and not intending to appear at the hearing – whether agency can contract out of obligations under Information Privacy Principles

Strike-out application – claim statute barred – New Zealand Public Health and Disability Act 2000, s 70E

Strike-out application – failure to comply with case management directions – failure to communicate with the Tribunal for almost twelve months – failure to notify Tribunal of address to which communications about the case to be addressed – whether claim to be struck out – Human Rights Act 1993, s 115

Strike-out application – jurisdiction to determine

Strike out application – jurisdiction to strike out – principles to be applied – proceedings clearly untenable in law – Privacy Act 1993, s 7(2) and Parole Act 2002, s 13(4)

Strike-out application – no arguable case – abuse of process – vexatious – not brought in good faith – meaning of – Human Rights Act 1993, s 115 – High Court Rules, r 15.1

Strike-out application – no cause of action disclosed – no arguable case – Human Rights Act 1993, s 115 – High Court Rules, r 15.1

Strike-out application – non-compliance with timetable directions – prisoner reliant on counsel to prepare case – lawyer responsible for non-compliance with directions – no prejudice to defendant – whether proceedings to be struck out

Strike-out application – no steps taken by plaintiff to pursue claim – whether claim to be struck out – Human Rights Act 1993, s 115

Strike-out application – on the same facts defamation proceedings filed in the High Court and proceedings filed in the Employment Relations Authority – in each case causes of action different – whether proceedings before Tribunal under Privacy Act 1993 an abuse of process – test – Human Rights Act 1993, s 115

Strike-out application – principles to be applied – matter not the subject of complaint to the Human Rights Commission – jurisdiction – Human Rights Act 1993, ss 76(2)(a) and 92B

Strike-out – principles to be applied –non-compliance with timetable directions - two stage test – first whether abuse of process – secondly whether to exercise of discretion to strike out – Human Rights Act 1993, s 115A(1)(d).

Strike-out application – principles to be applied – statutory scheme for making complaints and bringing proceedings – whether person aggrieved must articulate with reasonable clarity what complaint is – whether no arguable cause of action – failure of pleadings to disclose cause of action – Human Rights Act, ss 76(2)(a) and 92(b)

Strike-out application – principles to be applied – whether proceedings clearly untenable in law – whether jurisdiction to be exercised sparingly – Human Rights Act 1993, ss 63 and 65

Strike-out application – principles to be applied – whether Tribunal must be satisfied it is certain the claim cannot succeed – whether care required in areas where the law is confused or developing – whether discrimination claim to be excluded or defeated at an early stage on account of the apparent novelty of the claim – whether an expansive interpretation of Human Rights Act 1993, s 21(1)(g) to be adopted – whether seemingly adventurous claim should be heard

Strike-out application – proceedings fundamentally misconceived – statement of claim prolix and unintelligible to degree impossible for defendants to respond – no realistic prospect of plaintiff establishing a viable cause of action – Human Rights Act 1993, s 115

Strike-out application – refusal by plaintiff to answer questions in cross-examination – purpose of cross-examination – whether defendant denied right to be heard – whether proceedings to be struck out – Human Rights Act 1993, s 106 – Evidence Act 2006, ss 6, 84 and 92

Strike-out application – re-litigation of issues previously determined by courts – collateral attack – abuse of process – Human Rights Act 1993, ss 79(3) and 115

Strike-out application – re-litigation of issues previously determined by courts – delay in bringing claim – no arguable cause of action – whether statement of claim to be struck out as abuse of process – Human Rights Act 1993, s 115

Strike-out application – whether application to be by way of in-person hearing and cross-examination of witnesses – whether such order justifiable

Strike-out application – whether claim statute-barred on grounds of delay – whether limitation issues should be decided in interlocutory proceedings in advance of hearing – Human Rights Act 1993, s 105(2)(c) – Limitation Act 1950, s 4 and Limitation Act 2010, ss 8, 9, 10 and 11

Strike-out – jurisdiction – principles – Human Rights Act 1993, s 115 – High Court Rules, r 15.1

Strike-out – jurisdiction – whether extends to abuse of process – proceedings seriously and unfairly burdensome, prejudicial or damaging or productive of serious and unjustified trouble and harassment – requirements of statement of claim – whether jurisdiction to dismiss to be used sparingly – fundamental importance of right of access to courts – whether necessary or appropriate to assume truth of pleaded allegations where statement of claim prolix, unintelligible and an abuse of process – whether there can be more than one strike out application – Human Rights Act 1993, ss 105 and 115 – Human Rights Review Tribunal Regulations 2002, reg 4 – Interpretation Act 1999, s 16 – High Court Rules, r 15.1

Strike-out – principles to be applied – no arguable case – meaning of vexatious, not brought in good faith and abuse of process – whether jurisdiction to strike out where no strike out application filed – alleged discrimination not occurring in context of any of the seven areas of discrimination prohibited by Human Rights Act 1993 – whether lawyer representing a defendant sued by plaintiff also providing services to plaintiff – no arguable case of discrimination disclosed by statement of claim – bringing proceedings before Tribunal to re-litigate issues determined by civil courts and Family Court – whether abuse of process – relevance of long and unexplained delay in commencing proceedings – Human Rights Act 1993, ss 21B(1) and 115

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T

Transcript – application for – whether Tribunal must be satisfied there is good reason in the interests of justice before a direction to provide is made

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V

Victimisation – whether arguable case – strike-out application – Human Rights Act 1993, ss 66 and 115

Victimisation – whether on the ground plaintiff had made use of his rights under the Human Rights Act – Human Rights Act s 66

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W

Withdrawal of lawyer  – procedure for  – effect on address for service  – High Court Rules, r 5.41

Witness summons – application for – whether opposing party has right to be heard on application – control of abuse and wrongful use of subpoenas – “will say” statement – Human Rights Act 1993, ss 109, 110 and 111 – High Court Rules, r 9.52

Witness summons – control of abuse and wrongful use of subpoenas – Human Rights Act 1993, ss 109, 110 and 111

Witness summons – subpoena duces tecum – witness summons requiring production of papers, documents, records or things – Human Rights Act 1993, ss 106(1)(a), (b) and (c) and 109 – High Court Rules, r 9.52

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