Attorney-General on behalf of the Ministry of Health v Idea Services Limited HC Auckland CIV 2011-485-1562
[2011] NZHC 1803
•16 December 2011
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2011-485-1562
UNDER The Human Rights Act 1993
BETWEEN THE ATTORNEY-GENERAL ON BEHALF OF THE MINISTRY OF HEALTH
Appellant
ANDIDEA SERVICES LIMITED Respondent
Hearing: 25 October 2011
Counsel: I C Carter and G J Robins for Appellant
A S Butler and O C Gascoigne for Respondent
Judgment: 16 December 2011
JUDGMENT OF MALLON J
Contents
Introduction ....................................................................................................................................... [1] The legislation .................................................................................................................................... [5] The Tribunal decisions .................................................................................................................... [15] The 11 April 2011 decision ........................................................................................................... [15] What happened after the 11 April 2011 decision .......................................................................... [17] The 13 July 2011 decision ............................................................................................................ [20] Decision dated 28 September 2011............................................................................................... [22] Steps taken in the High Court ........................................................................................................ [23] Collateral attack? ............................................................................................................................ [31] Is there jurisdiction to determine a preliminary question ........................................................... [35] Is there any other reason to decline to determine the preliminary question at this point ......... [39] Determination of the preliminary question ................................................................................... [45] Result ................................................................................................................................................ [63]
Other matters .................................................................................................................................. [65]
THE ATTORNEY-GENERAL ON BEHALF OF THE MINISTRY OF HEALTH v IDEA SERVICES LIMITED HC WN CIV 2011-485-1562 16 December 2011
Introduction
[1] This is another case where difficulties have arisen because of the strict time limit Parliament has set for the bringing of an appeal from a decision of the Human Rights Tribunal.1 In this case the difficulty has arisen because the Tribunal heard the question of whether there was a breach of the Act separately from what remedies should be ordered in respect of the breach. The parties have different views as to whether the 30 day time period for bringing an appeal runs from the finding on breach or from when an order is made granting or refusing remedies.
[2] The context in which this difficulty has arisen relates to Government funding provided to intellectually disabled people for community activities.2 Up until March
2005 the Ministry of Health had provided this funding for intellectually disabled people 65 years or over and the Ministry of Social Development had provided the funding for intellectual disabled people under 65 years. In March 2005 the Ministry of Health decided to cut the funding it had provided with the result that those under
65 years old had government funding for these activities, but those who were
65 years or older did not.
[3] The respondent (Idea Services) is a subsidiary of IHC New Zealand Incorporated which is a provider of services to people who have an intellectual disability. Most of the services are provided by Idea Services. Idea Services brought a claim before the Tribunal contending that the Ministry of Health’s decision was unjustified age discrimination in breach of Part 1A of the Human Rights Act.
[4] The issue about the time for making the appeal arose because the parties agreed to split the proceedings before the Tribunal in two parts. The first part was to deal with ―both the s 19 and s 5 NZBORA aspects of the case‖. The second part was
to deal with ―any issues of remedy‖. The hearing on the first part took place in
1 See Attorney-General v Howard [2010] NZCA 58, [2011] 1 NZLR 58; Child Poverty Action
Group Inc v Attorney-General (2009) 19 PRNZ 689 (HC).
2 These activities include programmes providing support in recreation and leisure activities, socialisation, daily living skills, education and learning, exercise and fitness, and vocational and work experience. Examples include supervision for a trip to the swimming pool or the library.
September and October 2010 and the decision, finding a breach of Part 1A, was given on 11 April 2011. The Ministry of Health wishes to appeal that decision but Idea Services says that the appeal has been made too late. The issue is whether the time period for lodging an appeal commenced on the date of that decision or whether it did not arise until there had been a decision about remedy.
The legislation
[5] Part 1A of the Human Rights Act provides for the Government to be subject to the Human Rights legislation, but to the standard set out in the New Zealand Bill of Rights Act 1990 (NZBORA).
[6] Accordingly, s 20J provides that Part 1A applies ―only in relation to an act or
omission of a person or body referred to in section 3 of [NZBORA...]‖. Section
20L(1) provides that an act or omission is in breach of Part 1A ―if it is inconsistent with section 19 of [NZBORA]‖. Section 20L(2) provides that an act or omission will be inconsistent with s 19 of NZBORA if it ―limits the right to freedom from discrimination affirmed by that section‖ and ―is not, under s 5 of [NZBORA], a justified limitation on that right‖.
[7] Therefore, when a claim is brought under this Part, the Tribunal must decide whether there is an infringement of the right in s 19 of NZBORA (ie prima facie discrimination). The right in s 19 of NZBORA is ―the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act‖. Those grounds of discrimination include age.
[8] If there is a prima facie discrimination the Tribunal must consider whether it is justified under s 5 of NZBORA. Section 5 of NZBORA provides that the rights in NZBORA (ie here, the right to be free from discrimination on the grounds of age)
―may be subject to only such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.‖ If the discrimination is not justified in these terms then there is a breach of Part 1A of the Human Rights Act.
[9] Where there has been a breach of Part 1A the Tribunal may grant one or more of the remedies set out in s 92I of the Human Rights Act. These remedies include a declaration and damages. By s 92O the Tribunal is given power to take various actions instead of or in addition to granting any other remedy. These actions include, for example, the power to adjourn the proceeding to enable further consideration of the remedies and to put limits on the time at which the remedy is to have effect. By s 108B, before the Tribunal grants any remedy, it must give the parties to the proceeding an opportunity to make submissions on the implications of granting that remedy and the appropriateness of it.
[10] Section 116 provides that, if the Tribunal grants any remedy, or makes a declaration or dismisses proceedings, it must make its decision in writing and it must show the reasons for the decision. It further provides that the reasons must include relevant findings of fact, explanations and findings on relevant issues of law, and conclusions on matters or issues it considers require determination in order to dispose of the matter.
[11] By s 92Q there is a monetary limit on the amount of damages the Tribunal may award. That monetary limit is the same monetary limit that applies to the District Court. Section 92R provides that the Tribunal must refer the granting of a remedy to the High Court ―if the Tribunal is satisfied on the balance of probabilities that a defendant in the proceedings has committed a breach of Part 1A...but that...the granting of the appropriate remedy‖ would be outside the monetary limits. The same applies where ―the granting of a remedy...would be better dealt with by the High Court.‖
[12] Section 92S(1) provides that, where a reference is made to the High Court, there is to be a report on the proceedings which ―sets out the Tribunal’s finding with regard to the breach of Part 1A...‖. Section 92T(2) provides that the High Court may direct the Tribunal ―to amplify any report under s 92S(1).‖ Section 92T(3) provides the parties with the right to be heard and to tender evidence ―as to the remedy (if any) to be granted on the basis of the Tribunal’s finding that the defendant has committed a breach of Part 1A...‖. Section 92T(4) provides that no party may
―challenge the finding of the Tribunal‖ referred to in s 92T(3). And s 92T(5)
provides that the High Court ―must decide, on the basis of the Tribunal’s finding that the defendant has committed a breach of Part 1A...whether 1 or more of the remedies...is to be granted.‖
[13] Section 92U provides:
High Court's decision on remedies to be included in, and given effect to as part of, Tribunal's determination
(1) Every decision of the High Court under section 92T(5)—
(a) must be remitted to the Tribunal for inclusion in its determination with regard to the proceedings; and
(b) has effect as part of that determination despite the limits imposed by section 92Q.
(2) Nothing in subsection (1)—
(a) limits sections 123 to 125; or
(b) prevents the making of an appeal in accordance with section
123 in respect of a determination of the Tribunal in which a decision of the High Court is included in accordance with
subsection (1)(a).
[14] Sections 123 to 125 are concerned with appeals to the High Court, appeals to the Court of Appeal on a question of law and the costs of appeal respectively. For present purposes the relevant one is s 123 which provides:
Appeals to High Court
(1) Where any party is dissatisfied with any interim order made by the Chairperson under section 95 of this Act, that party may appeal to the High Court against the whole or part of that order.
(2) A party to a proceeding under section 92B or section 92E may appeal to the High Court against all or any part of a decision of the Tribunal—
(a) dismissing the proceeding; or
(b) granting one or more of the remedies described in section
92I; or
(c) granting the remedy described in section 92J; or
(d) refusing to grant the remedy described in section 92J; or
(e) constituting a final determination of the Tribunal in the proceeding.
(2A) For the purposes of subsection (2)(d), the Tribunal does not in a proceeding refuse to grant the remedy described in section 92J unless—
(a) a party to the proceeding expressly applies to the Tribunal for the remedy in relation to a particular enactment; and
(b) the Tribunal does not grant the remedy in relation to that enactment.
(3) Where any party is dissatisfied with any decision of the Tribunal making a declaration under section 97 of this Act, that party may appeal to the High Court against the whole or any part of that decision.
(4) Every appeal under this section shall be made by giving notice of appeal within 30 days after the date of the giving by the Tribunal in writing of the decision to which the appeal relates.
(5) In determining any appeal under this section the High Court shall have the powers conferred on the Tribunal by sections 105 and 106 of this Act, and those sections shall apply accordingly with such modifications as are necessary.
(6) In its determination of any appeal, the Court may—
(a) Confirm, modify, or reverse the order or decision appealed against, or any part of that order or decision:
(b) Exercise any of the powers that could have been exercised by the Tribunal in the proceedings to which the appeal relates.
(7) Notwithstanding anything in subsection (6) of this section, the Court may in any case, instead of determining any appeal, refer to the Tribunal, in accordance with the rules of Court, for further consideration by the Tribunal, the whole or any part of the matter to which the appeal relates.
(8) Subject to the provisions of this Act, the procedure in respect of any such appeal shall be in accordance with the rules of Court.
(9) Notice of appeal shall not operate as a stay of proceedings in respect of the decision to which the appeal relates unless the Tribunal or the High Court so orders.
The Tribunal decisions
The 11 April 2011 decision
[15] The 11 April 2011 decision of the Tribunal was in respect of the hearing that was to decide the issue of breach. The decision discussed the evidence and submissions on each of the matters that had been raised at the hearing. The Tribunal concluded as follows:3
Overall, we have concluded:
[a] The [Ministry of Health’s] decision to stop funding for intellectually disabled people requiring access to day services after their retirement from the [Ministry of Social Development] amounted to prima facie discrimination;
[b] The [Ministry of Health’s] decision is not justified under s 5 of the
NZBORA.
In our view the [Ministry of Health’s] decision was a breach of Part 1A of
the HRA.
...
As noted at the outset, it was agreed that all questions of remedy should be left to be determined at a later stage. We therefore make no final orders; not even a declaration.
We recognise the possibility that the parties may want to seek a further opinion in respect of the conclusions we have reached at this stage. In that case there may be an issue as to whether this decision should be regarded as a final decision, or an interlocutory one only.123 Judicial review may be considered. Alternatively the parties may want the Tribunal to deal with the issues of remedy.
...
In the meantime, costs are reserved.
Footnote 123 - See, eg Director of Human Rights Proceedings v Smith (Wellington High Court, CIV 2004-409-480, 23 April 2004 per Chisholm J) and Attorney-General v Child Poverty Action Group Inc (2006) PRNZ 288 and also at [2007] NZAR 67. If there is to be an appeal, then it will have to be initiated within 30 days of the date of this decision: see s123(4) of the HRA, and the Court of Appeal’s decision in Attorney-General v Howard [2010] NZCA
58.
[16] With the decision the Tribunal sent a covering letter which set out s 123 of the Human Rights Act and stated:
3 At [195]-[200].
For reasons given in the decision, no final orders have been made. At the same time, the decision determines many of the significant issues between the parties. In the circumstances there may be a question as to whether the decision is properly regarded as an interlocutory decision (from which there is no right of appeal: see, eg, Child Poverty Action Group Inc v Attorney- General (2006) 18 PRNZ 295), or as a final determination of the issues that have been dealt with (thus giving rise to appeal rights under s123 of the Human Rights Act 1993 – ―the Act‖).
The Tribunal takes no position on that issue, but this letter is provided in case the enclosed decision is thought to give rise to a right of appeal.
If there is to be an appeal, then it is to be made by giving notice of appeal within 30 days after the date of the giving of the written decision (see section
123(4) of the Act). It is essential to the validity of any appeal that the steps required to commence it are taken within the 30 day period allowed by
s123(4) of the Human Rights Act 1993: see Attorney-General v Howard
[2010] NZCA 58.
What happened after the 11 April 2011 decision
[17] The Ministry of Health did not lodge a notice of appeal within 30 days of the
11 April 2011 decision. There is no affidavit on behalf of the Ministry explaining why that was. If there was, I was not referred to it. I was advised from the Bar that the view was taken that the appeal right had not yet arisen. I do not know whether there was any correspondence between the Ministry and Idea Services within the 30 days provided by the Tribunal about the timing of an appeal.
[18] The next step seems to have been a telephone conference on 19 May 2011 about what steps needed to be taken next. There was then an exchange of memoranda by counsel and a minute issued by the Tribunal on 26 May 2011. That minute identified the questions at that point as being:
a.Notwithstanding that no formal declaration was made, was the Tribunal’s decision of 11 April 2011 a final decision in respect of the issues it dealt with (with a result that it is now too late for the defendant to pursue an appeal in respect of it)?
b.If not, then should the Tribunal now make a declaration for the purpose of bringing the matter to a point at which an appeal can be filed? If so, how should that be worded?
c.If there is no appeal (or if any appeal is dismissed) then should the remedy issues be removed to the High Court for determination at first instance in that jurisdiction?
d.If so, what process is involved in achieving that and what timeframes should apply?
e.In the meantime, should the Tribunal decide how costs should be awarded at this stage? Or should it simply given an indication? Can the Tribunal give an indication only? If costs are to be considered at this point, then what principles should apply?
[19] The parties filed submissions with the Tribunal about these matters. On the question of when the appeal time period commenced, the Ministry of Health’s view was that, because no remedy had been granted, it was at least doubtful that there was a ―final determination‖ from which an appeal could be brought. It submitted that the Tribunal should ―finalise its decision in the form of a declaration‖ which would certainly trigger an appeal right. Idea Services’ submitted that the appeal period commenced from the date of the 11 April 2011 decision because there had been a
―final determination‖ on the issue of breach. It submitted that if the Tribunal were to make a declaration the appeal would lie only as to whether the Tribunal properly exercised its discretion to make a declaration on the basis of the findings made.
The 13 July 2011 decision
[20] The Tribunal issued a decision on 13 July 2011. It was common ground that the question of damages needed to be referred to the High Court because of the monetary limit on the Tribunal’s jurisdiction. The Tribunal considered that the High Court should also then deal with the remaining remedy questions as well. It was also common ground that the question of whether the High Court had jurisdiction to hear an appeal from the 11 April 2011 decision was a matter for the High Court. There was therefore a common objective to move the issues into the High Court in a way that preserved the present position of both parties. In light of these matters the Tribunal made the following orders:
[a] Pursuant to s.92I(3)(a) of the Act, and for the reasons set out in the substantive decision, we declare that the Ministry of Health has committed a breach of Part 1A of the Act in that the decision of the Ministry of Health’s senior management team on 21 March 2005 (namely, that no new referrals for day services for Idea Services’
service users over the age of 65 would be accepted) was inconsistent with s.19 of the New Zealand Bill of Rights Act 1990, and was not within any justified limitation prescribed by law under s.5 of the New Zealand Bill of Rights Act 1990.
[b] We make this declaration without prejudice to Idea Services’ position that the defendant is out of time to bring an appeal in respect of the substantive decision;
[c] Pursuant to s.92R of the Act we refer all questions relating to the granting of remedies in this case to the High Court.
[21] The Tribunal also considered that it should determine costs at this point rather than await the outcome in the High Court. Submissions were to be filed so that costs could be determined.
Decision dated 28 September 2011
[22] The Tribunal issued a third decision on 28 September 2011. This decision dealt with the mechanics of referring the remaining issues to the High Court, an application by the Ministry of Health to defer the effect of the declaration, and costs. The first of those matters was dealt with by consent. The Tribunal declined the Ministry of Health’s application to defer the effect of the declaration. The Tribunal awarded costs to Idea Services in the sum of $165,000.
Steps taken in the High Court
[23] On 11 August 2011 (that is within 30 days of the 13 July 20l1 decision but not within 30 days of the 11 April 2011 decision) the Ministry of Health filed a notice of appeal. The appeal is said to be ―against the decision of the [Tribunal] in paragraph [7](a) [ie at [20][a] above] of the Tribunal’s decision of 13 July 2011..., the reasons for which are given in the decision of 11 April 2011...‖. The grounds of appeal all relate to findings made in the 11 April 2011 decision.
[24] Specifically the grounds allege errors as to the finding that the Government accepted a responsibility to fund the services for those aged over 65; as to the findings made about the contract for services between the Ministry of Health and Idea Services; as to the legal test for a breach of s 19 of NZBORA; as to the
Tribunal’s approach to deference; as to the finding that the Ministry of Health’s
decision was not prescribed by law; and as to the legal test under s 5 of NZBORA.
[25] The notice of appeal stated that it was seeking a judgment reversing the Tribunal’s decision and finding that the Ministry of Health’s decision did not breach Part 1A of the Human Rights Act.
[26] On 30 August 2011 Idea Services filed an application seeking to strike out the appeal. The strike out was brought on the basis that the appeal sought to challenge the findings in the 11 April 2011 decision and as such was out of time. The application was opposed. It came before the High Court (Ronald Young J) for
hearing. Judgment was given on 19 September 2011 dismissing the application.4
[27] The key parts of that judgment were as follows:5
At the commencement of the hearing of this application I raised with counsel the following propositions as a preliminary view:
(a) that whatever view I took of the competing arguments on abuse of process the appellant had filed a timely appeal with respect to the 13 July decision which it could pursue;
(b) the argument between the parties was effectively an argument about the extent of the appeal which was properly dealt with by the Judge who was to hear the substantive appeal.
Counsel had the opportunity to make submissions on these propositions. After hearing counsel I advised that my preliminary view was now my confirmed view and that I would subsequently release a short judgment which I now do.
I consider the respondent’s application to strike out this appeal is misconceived. There can be no doubt that the appellant was entitled to appeal the order of the Tribunal of 13 July. The Tribunal made particular orders. Section 123 of the Act gives a right of appeal to the High Court from such orders. There is, therefore, in my view, no basis on which to strike out such an appeal as being an abuse of process. The appellant is entitled at the very least to argue on appeal the correctness of the orders of 13 July.
The extent of the appeal that the High Court has jurisdiction to hear in this case is, however, entirely another matter. It would be
4 Attorney-General on behalf of the Ministry of Health v Idea Services Ltd HC Wellington
CIV 2011-485-1562, 19 September 2011.
5 At [14]-[21].
inappropriate for me to express any view in this decision as to that. The extent of the appeal will be a matter for the Judge hearing the appeal. For those reasons the application to strike out this appeal is dismissed.
...
I note that I discussed with counsel whether the Crown might also file judicial review proceedings relating to the decision of 11 April as a concurrent challenge. Should they wish to do so then in my view they should immediately file such proceedings. I consider any such judicial review proceedings should be heard at the same time as this appeal. This is preferable because it is the most efficient use of time for the parties and the Court but more importantly the appeal/judicial review issues are likely to be intertwined.
The respondent’s concern throughout the Tribunal hearing and this appeal has been to minimise legal costs. I foreshadow for the Judge who is to hear the substantive appeal that the respondents may ask that Judge to hear, as a preliminary point, the arguments which underlie this strike out application and thus the extent of the appeal. I express no view on the merits of such an approach.
I consider this case should have a Judge assigned to it to facilitate its early hearing. Given the subject matter and the remedy issues still to be dealt with an expedited hearing is called for, I have, therefore, referred this case to the List Judge.
...
Although the respondent’s strike out application was dismissed the argument which underlay it remains for resolution on another day. In those circumstances the best course is to reserve costs.
[28] After that, I was assigned to the proceeding. Following a telephone conference on 29 September 2011, timetable orders were made for various steps which the parties indicated they wished to take. In accordance with these orders, Idea Services filed an application that the Court determine a preliminary question. It also filed an appeal from the judgment of Ronald Young J. The Ministry of Health filed an application for judicial review of the Tribunal’s decisions of 11 April and
13 July 2011. It also filed an appeal from the Tribunal’s decision of 28 September
2011 in relation both to the refusal to defer the declaratory orders taking effect and on the quantum of costs ordered in favour of Idea Services.
[29] Idea Services’ application for determination of a preliminary question seeks
an order as follows:
(a) that the Court determine that the following question be determined separately from any other question and before any substantive hearing in this proceeding:
Do the terms of section 123 of the Human Rights Act 1993 mean that the points 1 to 6 of the Appellant’s Notice of Appeal dated 11
August 2011 against the Human Rights Review Tribunal’s decision of 13 July 2011 cannot be raised on the hearing of the appeal in that they purport to appeal against a final determination of the Human Rights Review Tribunal on those matters in a decision dated 11 April 2011, made more than 30 days prior to the filing and service of the Notice of Appeal?
[30] Idea Services’ application is opposed. A hearing of the application took place before me. It is that application which is before me for decision. Additionally, I am to decide whether the Ministry of Health’s appeal from the Tribunal’s decision of
28 September 2011 should be heard in advance of the other appeal from the other decisions and the judicial review application.
Collateral attack?
[31] The Ministry of Health submits that the preliminary question application is in substance an attempt to apply to a different judge to strike out the notice of appeal that relates to the 11 April and 13 July 2011 decisions. It submits that this is an impermissible collateral attack on a final judgment. As such, it submits that it is an abuse of process. It submits that the ―abuse of process arises from an attempt to raise a question already decided, albeit dressed up in a different form.‖
[32] Idea Services submits that there is no collateral attack or abuse of process. It says that Ronald Young J declined to give any view on the issue and said that it would be for the Judge hearing the appeal to determine the extent of the appeal. It says that the application it has made is entirely consistent with what Ronald Young J considered to be appropriate.
[33] While I agree that Idea Services’ application raises the same question as its strike out application I do not agree that the question has been determined. All Ronald Young J decided was that he would not strike out the appeal. His reason for that was that there was no doubt that the Ministry of Health could appeal the 13 July
2011 decision and an appeal from that decision had been brought in time. The Judge
expressly did not decide whether the appeal from the 13 July 2011 decision could raise issues of alleged error in the 11 April 2011 decision. The Judge considered that the scope of the appeal was more appropriately considered by the judge hearing the substantive appeal (and judicial review application if made). He expressly contemplated that this might be considered as a preliminary question. Although he did not say when he envisaged that the application would be made or considered, he did not rule that it could not be determined in advance of the substantive hearing.
[34] The Ministry of Health expressed concern that, if the preliminary question application was decided against it, Idea Services would be able to bring two appeals: one appeal against the judgment of Ronald Young J (an appeal from that judgment has already been lodged); and another appeal against my judgment. That may be so but the appeal from Ronald Young J’s decision would be about whether the Judge was in error in declining to determine the underlying issue, whereas the second appeal would be concerned with whether the determination of the underlying issue was in error. The second appeal may obviate the need to pursue the first appeal but the two appeals could be heard together if Idea Services wished to pursue them both.
Is there jurisdiction to determine a preliminary question
[35] The application is made under r 10.15 of the High Court Rules. It provides:
Orders for decision
The court may, whether or not the decision will dispose of the proceeding, make orders for—
(a) the decision of any question separately from any other question, before, at, or after any trial or further trial in the proceeding; and
(b) the formulation of the question for decision and, if thought necessary, the statement of a case.
[36] The Ministry of Health submits that this rule does not apply to appeals because ―appeals‖ are not ―trials‖. This is said to be because appeals exercise appellate jurisdiction rather than original jurisdiction. In support of this submission
the Ministry of Health refers to Geerkins v Noovao.6 In that case, in respect of an issue arising on an appeal from a summary judgment decision, the Judge’s view was that ―trial‖ as referred to in what was then rule 4867 referred only to the Court sitting in its first instance jurisdiction.
[37] Rule 1.3(1) of the High Court Rules provides that ―[i]n these rules, unless the context otherwise requires - ...trial includes a hearing before a Judge alone‖. This definition appears intended to make it clear that a hearing can still be a trial if there is no jury. It might be said that ―trial‖ in rule 10.15 means the substantive, as opposed to any interlocutory, hearing. Although Part 20 of the High Court Rules sets out rules that apply to appeals, it is not a code. There is no reason in principle to restrict rule 10.15 only to hearings involving the exercise of the Court’s original jurisdiction. There may be situations where ―the just, speedy, and inexpensive determination‖ of an appeal is secured by the determination of a preliminary question as per the objective of the rules set out in rule 1.2. Even if this interpretation of ―trial‖ is not correct the same outcome would be achieved via rule
1.6. That rule provides that in a case where no form of procedure is prescribed the Court must dispose of the case ―as nearly as may be practicable in accordance with the provisions of these rules affecting any similar case‖.
[38] I therefore reject the Ministry of Health’s submission that there is no
jurisdiction to determine the preliminary question.
Is there any other reason to decline to determine the preliminary question at this point
[39] The Ministry of Health submits that even if rule 10.15 applies, the discretion to determine the preliminary question should be exercised against making the order.
It submits that:
6 Geerkins v Noovao (2003) 16 PRNZ 644 (HC) at [27].
7 Rule 486 (in the previous High Court Rules) provided that: ―Any verdict or judgment obtained where one party does not appear at the trial may be set aside or varied by the Court on such terms as may seem just if it appears to the Court that there has, or may have been, a miscarriage of justice.‖
(a) The usual practice is for appellate courts to determine the scope of an appeal as part and parcel of the substantive appeal;
(b)A key purpose of rule 10.15 is to enable issues of liability and quantum to be determined separately although, as the proceedings before the Tribunal has shown, that can give rise to procedural complexity;
(c) The application may lengthen the proceeding because the unsuccessful party may appeal. That in turn might jeopardise the prompt hearing of the substantive appeal.
(d)Idea Services is responsible for a number of procedural complexities in the proceeding and as such it does not appear that it wishes to proceed to a prompt hearing of the substantive appeal.
(e) The supposed time and cost savings, which so far have eluded the parties, do not justify departure from the usual appellate practice of determining the scope of any appeal as part of the overall determination of the substantive appeal on the merits.
[40] Idea Services submits that the question for determination is a discreet question of law which could determine the outcome of the appeal. It says that if the question is determined in its favour then the parties will not have to prepare for a substantive hearing on the issues decided in the 11 April 2011 decision. It says that if the question is determined against it, the Ministry of Health will suffer no prejudice.
[41] I accept Idea Services’ submissions. Rule 10.15 is not confined to cases where it is desirable to separate liability issues from quantum issues. Its purpose is to ―expedite proceedings by limiting or defining the scope of the trial in advance or obviating the need for a trial altogether‖.8 The issue Idea Services raised is a discreet
legal issue. It is not one that needs to be assessed in the context of the other issues.
8 Innes v Ewing (1986) 4 PRNZ 10 (HC) at 18.
It could be heard at the outset of the substantive hearing. But there is no prejudice to either party in hearing it now, whereas there are potential advantages.
[42] That is because, if Idea Services’ is correct, the appeal will not deal with whether the Ministry of Health’s decision breached Part 1A of the Human Rights Act. As the appeal grounds in relation to the 11 April and 13 July 2011 decisions relate only to that issue (as distinct from the appropriateness of making the declaration) the appeal from those decisions may fall away altogether. That would leave the judicial review proceeding; the appeals from the refusal to defer the effect of the declaration and the quantum of costs; and the reference to the High Court on remedies. Conversely, if Idea Services is not correct, the judicial review proceeding may fall away (since all matters raised in that proceeding would be dealt with in the appeal).
[43] I consider the submission made at [39](d) above does not outweigh the potential advantages of determining the preliminary questions now. Idea Services is able to take whatever procedural steps are open to it that it considers best advance its interests. As the substantive hearing of the appeal and the judicial review application is set down for five days commencing on 30 April 2012, it is possible that any appeal of my decision on the preliminary question may be disposed of by then. If it is not, at least the proper scope of the substantive hearing will have been determined when it does take place.
[44] I therefore proceed to determine the question.
Determination of the preliminary question
[45] Idea Services submits that the 11 April 2011 decision is a ―final determination‖ in terms of s 123(2)(e) of the Human Rights Act. It submits that it finally determined ―in the proceeding‖ whether there had been a breach of Part 1A of the Human Rights Act. It says that it substantively determined the rights and liabilities of the parties on that issue. It says that it is difficult to see what more the Tribunal could have done in respect of the question of breach without traversing into
the question of remedies (which had been expressly reserved for determination at a later hearing).
[46] In support of its position, Idea Services relies on Strathmore Group Ltd v Fraser.9 That case was concerned with appeal rights to the Privy Council. The plaintiff had brought a claim for breach of fiduciary duty. A preliminary trial was held on the issue of whether the claim was the subject of a settlement agreement and, if it was, whether the settlement agreement had been cancelled. On appeal from the High Court determination on that issue, the Court of Appeal held that there was a
settlement agreement and that it had not been cancelled. It therefore held that ―there will be judgment for‖ the defendants. That brought an end to the claim.
[47] The rules provided that there was an appeal to the Privy Council ―as of right,
from any final Judgment of the Court of Appeal [in the circumstances set out]‖ and
―at the discretion of the Court of Appeal from any other Judgment of that Court, whether final or interlocutory [in other circumstances set out]‖. The Court of Appeal had taken the view that there was not a ―final Judgment‖ and therefore there was no appeal as of right. In its discretion it declined to grant leave. The consequence was that the plaintiff could not appeal even though, if there had been no preliminary trial, there would have been a right of appeal for the unsuccessful party.
[48] It was in this context that the Privy Council said ―[i]t seems to their Lordships that [the plaintiff] cannot be deprived of a right of appeal solely because the trial was divided into two parts.‖ The Privy Council went on to cite the following passage from White v Brunton:10
It is plainly in the interests of the more efficient administration of justice that there should be split trials in appropriate cases, as even where the decision on the first part of a split trial is such that there will have to be a second part, it may be desirable that the decision shall be appealed before incurring the possibly unnecessary expense of the second part. If we were to hold that the division of a final hearing into parts deprived the parties of an unfettered right of appeal, we should be placing an indirect fetter upon the ability of the court to order split trials. I would therefore hold that where there is a split trial or more accurately, in relation to a non-jury case, a split hearing, any party may appeal without leave against an order made at the end of one part if he could have appealed against such an order without leave if both parts
9 Strathmore Group Ltd v Fraser [1992] 3 NZLR 385 (PC).
10 White v Brunton [1984] QB 570 (EWCA) at 573.
had been heard together and the order had been made at the end of the complete hearing.
[49] Idea Services relies on these comments to say that there is a right of appeal when there is a split hearing. However in Strathmore, ―judgment‖ had been given in favour of the defendants. There was nothing more to occur. The importance of that point is apparent from the Privy Council going on to say, that the Court of Appeal decision declining leave, was made on the mistaken understanding that the issue of whether the settlement agreement had been cancelled had yet to be determined. It was because the Court of Appeal had been given to understand that there were remaining live issues about that, that it said that there had not been a ―final judgment‖.
[50] As the Ministry of Health submissions point out, subsequent cases have explained that Strathmore ―was a straightforward final judgment case where an appeal lay as of right‖.11 So, for example, in Langham v Seed12 an application for leave to appeal to the Privy Council was declined in respect of a judgment which had determined liability on four of the five pleaded causes of action, and had granted an injunction. There remained for determination other issues in respect of the fourth
cause of action, the fifth cause of action, and remedies (in addition to the injunction already granted). The Court of Appeal said the situation was quite different from Strathmore because there could be ―no suggestion that the judgment of this Court disposed of the proceeding‖.13 It noted that no appeal rights would be lost if leave to appeal was not granted at this point. It said that there would not be a final judgment until damages had been assessed and judgment entered.14
[51] The situation in Strathmore is therefore not the same as here. Here the losing party is not deprived of a right of appeal merely because of the split hearing. If the Ministry of Health’s position is correct, there remains a right of appeal when remedies have been ordered or declined at or following the second part of the
hearing (the remedies hearing). The case therefore does not support Idea Services’
11 Wilding v Attorney-General 16 PRNZ 974 (CA) at [9].
12 Langham v Seed (1994) 8 PRNZ 8 (CA).
13 At 10.
14 At 10. The same view was taken as to the meaning of ―final‖ in Ngati Kahu Trust Board (In
Liquidation) v Southern Lights Floral Exports Ltd (1995) 8 PRNZ 320 (CA).
submission that the appeal right accrued when (and only when) the 11 April 2011 decision was given.
[52] The other point made by the Ministry of Health about Strathmore is that the passage cited from White refers to an appeal from an ―order‖. The Ministry of Health says that it is the order, not the reasons in the judgment, that give rise to the source of the appeal right. It says that the 11 April 2011 contained no appealable
―order‖.
[53] In support of this point the Ministry of Health refers to Right to Life New Zealand Inc v Abortion Supervisory Committee.15 In that case the High Court determined that the applicant’s judicial review application should succeed. The Judge determined that mandamus was not an appropriate remedy and reserved the question of whether there should be declaratory relief for the parties to make further submissions about that. One of the parties appealed and the other cross-appealed. Without giving reasons, the Court of Appeal dismissed the appeal and cross-appeal for want of jurisdiction.16 The Court of Appeal’s jurisdiction to hear and determine
appeals is in respect of ―any judgment, order or decree‖17 of the High Court (but
subject to some limits). In dismissing the appeal in Right to Life the Court of Appeal must have taken the view that there was no ―judgment‖ even though the grounds for judicial review had been substantively determined. After the Court of Appeal had dismissed the appeal, the High Court determined the issue of relief, the appeal and cross-appeal were brought and these were determined by the Court of Appeal.18
[54] The same issue arose in FB Duvall Ltd v Commissioner of Inland Revenue.19
In that case there was an application by the Commissioner to appoint a liquidator on the ground that the debtor was insolvent. The Associate Judge delivered a judgment in which he found that he was not satisfied that the debtor could pay its debts but he
nevertheless declined to appoint a liquidator.20 The Associate Judge adjourned the
15 Right to Life New Zealand Inc v Abortion Supervisory Committee [2008] 2 NZLR 825 (HC).
16 Abortion Supervisory Committee v Right to Life New Zealand Inc [2009] NZCA 181.
17 Section 66 of the Judicature Act 1908.
18 Abortion Supervisory Committee v Right to Life New Zealand Inc [2011] NZCA 246.
19 FB Duvall Ltd v Commissioner of Inland Revenue [2009] NZCA 413, (2009) 20 PRNZ 3.
20 Commissioner of Inland Revenue v FB Duvall Ltd HC Auckland CIV-2007-404-2708,
13 November 2008.
proceeding to give the debtor the opportunity to make payment before ordering the appointment of liquidators. The debtor appealed. The Court of Appeal dismissed the appeal for want of jurisdiction because there was no ―judgment‖. In doing so the Court of Appeal said ―a party appeals the judgment, not any observations in it, provisional findings of a Judge, or even the reasons of the Judge.‖21
[55] The question here, though, is not whether there is a ―judgment‖, but whether there is ―a final determination in the proceeding‖. Idea Services says that ―a‖ (in contrast with ―the‖) and ―in‖ (in contrast with ―of‖) are significant. It sees this wording as contemplating the possibility of more than one final determination in the proceeding. However, I do not need to decide this because I agree with the Ministry of Health’s submissions that:
(a) the 11 April 2011 decision was not ―a final determination in the
proceeding‖; and
(b)even if it was, an appeal made against a decision of the Tribunal granting a remedy can raise all the reasons for that remedy (which in this case are set out in the 11 April 2011 decision).
[56] As was said by the Supreme Court in Arbuthnot v Chief Executive of the
Department of Work and Income:22
It is fundamental that an appeal must be against the result to which a decision maker has come, namely the order or declaration made or other relief given, not directly against the conclusions reached by the decision maker which led to that result, although of course any flaws in those conclusions may provide the means of impeaching the result ... In short, there is no right of appeal against the reasons for a judgment, only against the judgment itself.11
Footnote 11: Lake v Lake [1955] P 336 (CA) at pp 343 – 344 per Evershed MR.
[57] In the 11 April 2011 decision there was no ―order or declaration made or other relief given‖. The Tribunal expressly said that it was making ―no final orders,
not even a declaration‖. The 11 April 2011 decision contained a finding of breach
21 At [3].
22 Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55, [2008] 1
NZLR 13 at [25].
and the reasons for that finding, but there was no ―result‖ as explained in Arbuthnot. It was not until the Tribunal made a declaration that there was an appealable decision. In appealing that decision all the reasons which have led to that decision can be challenged. I consider that this approach is consistent with the authorities discussed above as to what constitutes a ―final‖ judgment.
[58] I consider that the words of s 123, read in context and in light of their purpose, do not require any different interpretation. Section 123 sets out a list of outcomes (or ―results‖) that may be appealed. Together they are directed at final outcomes (from the Tribunal’s perspective), rather than interlocutory decisions or findings that will lead to final outcomes. The 11 April 2011 decision made findings but there was no outcome/result. The proceeding remained on foot for the question of remedies to be determined.
[59] Both parties referred to s 92U. I agree with the Ministry of Health that it
supports their position. By providing that the High Court’s decision on remedies
―must be remitted to the Tribunal for inclusion in its determination with regard to the proceedings‖ it seems that Parliament intended that the Tribunal’s ―final determination‖ would be made up of the Tribunal’s conclusion on the question of breach together with the High Court’s decision on remedies. That determination could then be appealed.
[60] Section 92U(2)(a) says that this does not limit sections 123 to 125. In using the word ―limits‖ it seems intended to ensure that appeal rights remain in tact and unaffected by a reference to the High Court. It does not seem intended to restrict appeal rights on a finding of breach to a right that accrues prior to a reference to the High Court on remedies. It does seem intended to permit an appeal on one remedy (say a declaration) that may be granted prior to a reference (say on damages) being determined by the High Court. Section 92U(2)(b) seems intended to make it clear that, even though remedies have been referred to the High Court, that does not prevent an appeal to the High Court from the Tribunal’s ―final determination‖. That aligns with s 92T(4) and (5) which prevent the Tribunal’s findings being challenged at the time of and in the context of a reference to the High Court on remedies.
[61] I also agree with the Ministry of Health’s submissions that other provisions also indicate that the 11 April 2011 decision was not a ―final determination‖ in the proceeding. In particular, s 116 requires the Tribunal to include its reasons on all relevant matters in its decision granting any remedy or in dismissing proceedings. And s 108B contemplates the possibility of a time gap between a finding of breach and a decision on remedy so that submissions can be made. These provisions are consistent with the position that the appealable decision is the result (a remedy, a dismissal of the proceeding or the final determination of the proceeding) and not the findings. This approach is not inconsistent with the strict 30 day time limit for appeals. The time period remains strict (ie not capable of extension) regardless of the decision to which it applies.
[62] In my view, therefore, the time period for an appeal did not commence on
11 April 2011. There was no final determination at that point. There was an appeal right in respect of the 13 July 2011 decision. The appeal from that decision was brought within 30 days and so was within time. That appeal may challenge the findings in the 11 April 2011 decision as those findings are the reasons for the remedy granted in the 13 July 2011. The answer to the preliminary question is therefore ―no‖.
Result
[63] The preliminary question is answered ―no‖. Points 1 to 6 of the appellant’s notice of appeal dated 11 August 2011 against the Tribunal’s decision dated 13 July
2011 can be raised on the appeal.
[64] As the successful party in substance on this application, it is appropriate to award costs in favour of the appellant in accordance with the High Court Rules. If there is any issue about that the parties may submit brief memoranda on that issue.
Other matters
[65] On 17 October 2011 I heard submissions on whether the Ministry of Health’s
appeal against the Tribunal’s decision on 28 September 2011 should be heard in
advance of the substantive hearing on the appeal and judicial review of the 11 April and 13 July 2011 decisions. The parties agree that the 28 September 2011 decision is
―a final determination in the proceeding‖ which can be subject to an appeal at this point. I am not so sure about that (particularly, in relation to the refusal to defer the effect of the declaration). It seems to me that the proper procedure is for the appellant to seek a stay. This is contemplated by s 123(9) of the Human Rights Act.
[66] In relation to costs no sufficient reason has been advanced for hearing the costs appeal ahead of the other matters. Costs are best assessed having heard the substance of the matter. If there is jurisdiction to hear an appeal from the refusal to defer the effect of the declaration ahead of the other matters then I agree that this is sensible. This was not in the end vigorously opposed by Idea Services. If there are to be any further interlocutory hearings or appeals which may affect the timing of the substantive hearing, there is some sense in having this issue determined without delay. It can be dealt with as a discreet issue. There is time available to hear it on 2
February 2012. However, for the avoidance of any issue arising about jurisdiction, I consider that the Ministry of Health should file an application for a stay. The parties are to agree a timetable for the steps that will need to be taken to have the issue (of deferral of effect of declaration/stay) heard on that day.
Mallon J
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