Carter v Hutt Valley District Health Board
[2021] NZHC 2857
•26 October 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-A-TARA ROHE
CIV-2020-485-529
[2021] NZHC 2857
BETWEEN JOHN CARTER
Applicant
AND
HUTT VALLEY DISTRICT HEALTH BOARD
First Respondent
CAPITAL AND COAST DISTRICT HEALTH BOARD
Second Respondent
ATTORNEY-GENERAL (for the Ministry of Health)
Third Respondent
Hearing: 26 October 2021 Counsel:
Applicant in person
I H V Reuvecamp for First and Second Respondents M L Clarke-Parker for Third Respondent
Judgment:
26 October 2021
JUDGMENT OF CHURCHMAN J
Introduction
[1] Mr Carter (the applicant) brings proceedings against the Hutt Valley District Health Board (the first respondent), the Capital and Coast District Health Board (the second respondent), and the Attorney General (the third respondent) on the grounds that a summary of patient’s rights contained in a guideline document known as the “YOUR RIGHTS statement” under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the Act) does not correctly represent the scheme under Part 5 of the Act.
CARTER v HUTT VALLEY DISTRICT HEALTH BOARD [2021] NZHC 2857 [26 October 2021]
[2] The guideline document in dispute was issued by the Director-General of Health in 2007 and is published by the Ministry of Health. Mr Carter’s position is that the guideline document is overly broad in describing when treatment is given compulsorily.
[3] The hearing for this application was originally set down for 30 August 2021 but was adjourned as a result of the COVID-19 lockdown. Following this, Mr Carter has filed documents making three additional applications:
(a)leave to file a seventh amended statement of claim;
(b)transfer of the proceeding out of the Wellington Registry of the High Court and into the Supreme Court (in part on the basis of an application for recusal); and
(c)adjournment of the proceeding pending resolution of criminal prosecution of various officials and medical practitioners.
Relevant background
[4] The background to Mr Carter’s application stretches back to 2010, and has been detailed by both Mr Carter and counsel assisting, Mr Orpin-Dowell. On 25 May 2010, Mr Carter’s son Christopher committed suicide at his home while subject to an inpatient order under s 30 of the Act. Since that point, Mr Carter has raised a number of concerns about the care Christopher received, including with the Health and Disability Commissioner and the District Inspector.
[5] Mr Carter has now brought this proceeding challenging the accuracy of the “Your Rights” document, particularly in relation to the rights around compulsory medication. According to Mr Orpin-Dowell, his position is that patients may refuse treatment in a wider range of circumstances than those described in the document.
[6] Mr Carter first filed his statement of claim in this Court in September 2020. The respondents’ statements of defence were filed in November 2020. Since then, Mr Carter has filed a number of amended statements of claim, until Associate Judge
Johnston, by way of a minute dated 14 April 2021, made an order directing that Mr Carter’s most recent statement of claim (the “Sixth Amended Statement of Claim”) was not to be further amended without leave of the Court.1
[7] In a later minute dated 5 May 2021, Associate Judge Johnston noted that Mr Carter had identified the core issue in the case as being:
Question:Is the third respondents’ “YOUR RIGHTS” statement under s 64(1) of the [Mental Health (Compulsory Assessment and Treatment) Act 1992 a clear and accurate result of a proper construction of pt 5 of the Act?
[8] Although in that minute Associate Judge Johnston was not minded to allow for an amicus curiae to be appointed, Mr Orpin-Dowell was eventually appointed in that role following a minute of Isac J dated 30 July 2021.
[9] On 4 October 2021, Isac J convened a teleconference with the parties, following an adjournment of the hearing on 30 August 2021. As set out at [3] above, since the adjournment of the hearing, Mr Carter had filed three additional applications. Isac J therefore directed that a half-day interlocutory hearing be allocated on 26 October 2021, to determine those additional applications.
Position of the parties
Mr Carter
[10] Mr Carter’s submissions in relation to his interlocutory applications detail a number of unproven allegations, predominantly targeted at Collins J, who was Solicitor-General at the time of Christopher’s death. Mr Carter accuses Collins J of perjury in relation to his alleged involvement in an Ombudsman’s investigation before Christopher died and of manslaughter, and also accuses Crown Law of acting illegally and unethically.
[11] Mr Carter’s position is that as Collins J was a Judge of the High Court and now a Judge of the Court of Appeal “it is virtually impossible to obtain a fair and impartial hearing anywhere in any higher court in New Zealand”, except for the Supreme Court.
1 Minute of Associate Judge Johnston, 14 April 2021 at [5].
Mr Carter also seeks for the hearing to be adjourned, so that the “relevant criminal issues” are investigated. In his oral submissions to the Court, in response to a query as to whether there were actually any criminal proceedings being investigated, Mr Carter referred to correspondence with the police about matters to do with an employment issue which he said had been ongoing for some 37 years. There is no obvious connection between the employment issue and these proceedings.
[12] Mr Orpin-Dowell filed a memorandum on 19 October 2021. He informed the Court that he was not presently minded to file any submissions as amicus for the interlocutory hearing, and did not see that there was anything he could do to further assist the Court in relation to resolving the interlocutory applications. Mr Orpin- Dowell sought leave to be excused from the hearing on 26 October 2021, in order to attend an urgent judicial review on the same day. I granted him that leave by way of a minute on 19 October 2021.
The Attorney-General
[13] The Attorney-General (on behalf of the Ministry of Health) opposed all of Mr Carter’s interlocutory applications.
[14] In terms of Mr Carter’s application seeking leave to file a seventh amended statement of claim, Mr Clarke-Parker, counsel for the Attorney-General stressed that this proceeding has had a protracted procedural route to hearing, with Mr Carter filing a number of amended statements of claim since commencement. The Attorney- General’s position is that the amendment adds nothing of consequence to the proceeding, and the respondents are prejudiced by being required to consider and respond to ongoing irrelevant amendments to the pleadings. An additional amended statement of claim would only further protract the pleadings to this proceeding, which is otherwise ready for hearing.
[15] In terms of Mr Carter’s application to transfer the proceeding, counsel submitted that the allegations of criminal conduct raised by Mr Carter were without proper foundation, and that there was no merit to the suggestion that the High Court was unable to determine his application. It was also submitted that there was no jurisdiction available for the High Court to transfer proceedings to the Supreme Court
at first instance, and the Senior Courts Act 2016 only provides for the transfer of a proceeding to the Court of Appeal in exceptional circumstances.
[16] Finally, in terms of Mr Carter’s application to adjourn the hearing while the alleged criminal conduct is investigated, counsel noted that there was no indication that criminal conduct would be investigated by the police, or that any such investigations would have any impact on the judicial review application.
Analysis
[17] I will deal with each of the applications in turn. First, I consider that neither the Court nor the parties will be assisted by the filing of a seventh amended statement of claim. I agree with counsel for the Attorney-General that any amendment would add nothing of consequence to the proceedings, and would only further hinder their resolution by requiring the respondents to respond. The close of pleadings date has long since passed and it is not appropriate for the allegations that the respondents have to meet to be constantly changing. I therefore decline to grant leave to Mr Carter to file a seventh amended statement of claim.
[18] Second, I note that counsel are correct in stating that there is no means by which these proceedings can be transferred directly to the Supreme Court. As stated by the Supreme Court in Jones v R:2
All appellate jurisdiction, including that of the Supreme Court, is statutory. This Court is accordingly unable to grant any application for leave to appeal against the judgment of the Court of Appeal, or other court, unless it is satisfied it has statutory jurisdiction to do so.
[19] The High Court does not have jurisdiction to transfer proceedings to the Supreme Court.3 Furthermore, under s 59 of the Senior Courts Act 2016, where a party to a civil proceeding in the High Court applies for an order transferring the proceeding to the Court of Appeal, the Court of Appeal must be satisfied that the circumstances of the proceeding are exceptional.
2 Jones v R [2014] NZSC 85 at [12].
3 Clements v Queen of England [2018] NZHC 2244 at [14].
[20] In terms of Mr Carter’s argument that the entirety of the High Court and Court of Appeal bench ought to recuse themselves from the proceedings, I consider that this is without merit. The High Court recusal guidelines issued by the Chief High Court Judge state that a Judge should recuse him or herself if, in the circumstances, a fair- minded, fully informed observer would have a reasonable apprehension that the Judge might not bring an impartial mind to the resolution of the question the judge is required to decide.4 This entails a two stage test:5
(a)first, what it is that might possibly lead to a reasonable apprehension by a fully informed observer that the judge might decide the case other than on its merits; and
(b)second, whether there is a “logical and sufficient connection” between those circumstances and that apprehension.
[21] The issue here is whether Collins J’s presence on the Court of Appeal, and former presence on the High Court, might possibly lead to a reasonable apprehension by a fully informed observer that the Judge of this Court might decide the case other than on its merits. I consider that there is no possibility of that occurring here. The allegations against Collins J are simply allegations at this stage. It is not obvious what evidence could be relied upon to support them. I am confident that the Judges on the High Court and Court of Appeal bench are able to decide this case fully on its merits, without any risk of not being able to bring an impartial mind to the task.
[22] I therefore decline, and indeed have no jurisdiction or ability to grant, Mr Carter’s application to transfer proceedings to the Supreme Court.
[23] Finally, I decline Mr Carter’s application to adjourn the proceeding. As discussed above, the allegations of criminal conduct in this case are no more than allegations. There is no evidence that the police are actively investigating any of them.
4 High Court of New Zealand | Te Kōti Matua o Aotearoa Recusal Guidelines (12 June 2017).
5 See Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72; and
Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2009] NZSC 122.
I agree with counsel for the Attorney-General that there is no reason to continue to delay the determination of Mr Carter’s application.
Result
[24]Mr Carter’s three interlocutory applications are dismissed.
Costs
[25] If there is to be any application for costs, the respondents are directed to file memoranda no more than three pages in length within five working days and the applicant is to file a reply, no longer than three pages within five working days of receipt of the respondents’ memorandum and I will decide the matter on the papers.
Churchman J
Solicitors:
Mental Health, Addiction and Intellectual Disability Service, Porirua for First and Second Respondents
Meredith Connell, Wellington for Third Respondent cc: J Carter
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