B v Waitemata District Health Board - [2013] NZHC 852

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-351 [2013] NZHC 852

UNDER the Judicature Amendment Act 1972, Part
30 of the High Court Rules, the New Zealand Bill of Rights Act 1990, Declaratory Judgments Act 1908 and the Common Law

IN THE MATTER OF an action for judicial review and declarations

BETWEEN LANCE JEREMY BOLER Applicant

ANDWAITEMATA DISTRICT HEALTH BOARD
Respondent

Hearing: 10 April 2013

Counsel: R K Francois for Applicant
P W Le Cren for Respondent
M Headifen for Intended Applicant, G W Judgment: 10 April 2013

Reasons: 22 April 2013

REASONS FOR JUDGMENT OF KATZ J

Counsel/Solicitors:
Mr R K Francois, Barrister Auckland
Mr J Coates/Mr P Le Cren, Claro Law, Wellington
Mr M Headifen, Barrister, Auckland
Mr K Nally, Barrister and Solicitor, Auckland
Mr W Simpson, Solicitor, Papakura, Auckland

BOLER V WAITEMATA DISTRICT HEALTH BOARD HC AK CIV-2013-404-351 [10 April 2013]

Introduction

[1] These proceedings seek (amongst other things) to challenge, by way of judicial review, the legality of the Waitemata District Health Board’s (“WDHB”) smoke free policy in its mental health facilities. A substantive hearing has been scheduled for 20 and 21 May 2013.

[2] On 10 April 2013, I delivered an oral judgment in relation to three interlocutory applications filed by the applicant, being:

(a) an application to join Jensina Steele, a retired nurse, to the proceedings as an applicant in both a personal capacity and in a representative capacity for Mr W, a mental health patient;

(b)an application to join Ms B, also a mental health patient, to the proceedings as an applicant; and

(c) an application to consolidate these proceedings with other proceedings, involving the same counsel but a different applicant, which raise largely similar issues.

[3] I granted the application to join Ms Steele in her personal capacity (by consent) but declined the application for an order allowing her to also appear in a representative capacity for Mr W. I declined the application to join Ms B to the proceedings. I granted the consolidation application (by consent). I subsequently made directions as to the ongoing conduct of the proceedings, in particular directions relating to which causes of action were to be heard at a substantive hearing scheduled for 20 and 21 May 2013, and which causes of action were to be adjourned to a subsequent hearing.

[4] I now give my reasons for those decisions.

[5] A Judge may, at any stage of a proceeding, order that the name of a person be added as a plaintiff because that person “ought to have been joined” or “the person’s presence before the court may be necessary to adjudicate on and settle all questions involved in the proceeding”.1

[6] The number of persons named or joined as parties to proceedings must be limited, as far as practicable, to:2

(a) Persons whose presence before the Court is necessary to justly determine the issues arising; and

(b) Persons who ought to be bound by any judgment given.

[7] There must also be a common…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 852
Decision Date: 10 April 2013

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Boler v Waitemata District Health Board (WDHB) involved an application for judicial review and declarations against WDHB's smoke-free policy in its mental health facilities. The applicant sought to join Jensina Steele and Ms B to the proceedings and consolidate the case with another proceeding involving Ms Cunningham. The legal issues involved determining whether the additional applicants should be joined to the proceedings, and if so, under what capacity, and whether the proceedings should be consolidated.

The Court granted the application to join Ms Steele in her personal capacity, but declined to allow her to join as a representative of Mr W, an incapacitated patient. The Court found that a welfare guardian appointed under the Protection of Personal and Property Rights Act 1988 was the appropriate litigation guardian for Mr W and that his decision not to consent to Mr W's involvement in the proceedings should be reviewed in the Family Court. The Court also declined to join Ms B to the proceedings, finding that she lacked capacity to engage in the legal proceedings and that her involvement would not add anything material to the Court's consideration of the issues at stake. The Court granted the consolidation application, subject to specific terms aimed at protecting the substantive fixture scheduled for 20 and 21 May 2013.

The Court's reasoning was based on the need to limit the number of parties to those necessary to determine the issues and ensure that all questions involved in the proceeding could be adjudicated. The Court also considered the importance of appointing a litigation guardian for incapacitated persons and the potential negative impact on a patient's mental health if they were to participate in the proceedings. The Court found that consolidation of the proceedings would ensure efficient use of judicial resources and allow for common questions of law to be determined together.

Orders