Crown Health Financing Agency v P
[2008] NZCA 362
•16 September 2008
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PUBLIC VERSION: INFORMATION THAT IS CONFIDENTIALTO ONE OR MORE PARTIES HAS BEEN REMOVED
IN THE COURT OF APPEAL OF NEW ZEALAND
CA173/07
[2008] NZCA 362
BETWEENCROWN HEALTH FINANCING AGENCY
Appellant
ANDP
First RespondentANDB AND ORS
Second Respondents
CA149/07 & CA376/07
AND BETWEEN P
Appellant
ANDCROWN HEALTH FINANCING AGENCY
Respondent
CA150/07 & CA383/07
AND BETWEEN B AND ORS
Appellants
ANDCROWN HEALTH FINANCING AGENCY
Respondents
Hearing:9, 10 and 11 June 2008
Court:Glazebrook, Hammond, O'Regan, Robertson and Baragwanath JJ
Counsel:Dr D B Collins QC, Solicitor-General, L M Hansen and J D Kerr forAppellant in CA173/07 and Respondent in CA149/07, CA376/07,CA150/07 and CA383/07
R Chapman and L M McKeown for First Respondent in CA173/07and Appellant in CA149/07 and CA376/07
S M Cooper and K R Ross for Second Respondents in CA173/07 andAppellants in CA150/07 and CA383/07
Judgment:16 September 2008 at 10 am
JUDGMENT OF THE COURT
AThe appeal of the Crown Health Financing Agency in CA173/07 is allowed to the extent set out at [77] ‑ [80].
BThe appeals of Mr P and Mr B and others in CA149/07, CA376/07, CA150/07 and CA383/07 are dismissed.
CThe proceedings before us are remitted to the High Court for resolution in terms of this judgment.
DThere are no costs orders.
ENone of the names of or other identifying information about the parties (other than the Crown Health Financing Agency) or any persons named in this judgment or in any documents filed in these appeals are to be published in any media reports or in publicly available databases. Publication in Law Reports or Law Digest is, however, permitted.
____________________________________________________________________
REASONS
Glazebrook J [1]
Hammond J [87]
O’Regan and Robertson JJ [280]
Baragwanath J [291]
Appendix I: Statutory Provisions
Appendix II: Pleadings
Appendix III: Cases on Leave Provisions
GLAZEBROOK J
Table of Contents
Para No
Introduction [1]
Retrospectivity [2]
Extent of requirement to seek leave and procedure to be followed [14]The parties’ submissions [14]
Associate Judge Abbott’s approach [16]
Simon France J’s approach [17]
Hammond J’s approach [20]
The legislation [23]Issues [25]
What is the correct approach to interpreting immunity and
associated leave provisions? [27]
Are the immunity and leave provisions limited to committals
or acts otherwise expressly covered by the legislation? [31]Is the interpretation of the phrase “in pursuance or intended
pursuance of any of the provisions of this Act” coloured by the
exclusions from the immunity? [35]Should the CHFA’s formulation of the test be accepted? [43]
What is the correct interpretation of the phrase “acts in
pursuance or intended pursuance” of the provisions of the Act? [48]Summary of the test to be applied [62]
What is the procedure that should be followed in these cases? [63]
How does my suggested procedure differ from that of the other
Judges? [70]What should happen in these appeals? [77]
Result and costs [81]
Introduction
[1] Hammond J’s judgment sets out the background to these appeals and identifies the issues. I agree with his judgment on the status of informal patients and vicarious liability and have nothing to add. I also agree with his conclusions on retrospectivity, but for reasons that differ in some respects from his. On the extent of the requirement to seek leave, I agree with Hammond J’s judgment but add some observations of my own. My judgment also deals in some detail with the test to be applied when deciding whether or not leave is required. Hammond, O’Regan, Robertson and Baragwanath JJ agree with that test. On the final issue, the correct procedural approach, I take a different view from that of Hammond J. O’Regan, Robertson and Baragwanath JJ also differ from Hammond J with regard to procedure.
Retrospectivity
[2] The issue is whether the leave provisions in the Mental Health Amendment Act 1935 (MHAA 1935) and the Mental Health Act 1969 (MHA 1969) survived the coming into force of the Mental Health Act 1992 (MHA 1992). Hammond J refers to the general principle that statutory provisions dealing with procedural matters (as opposed to substantive rights and obligations) would be regarded as operating “retrospectively” unless a contrary intention is expressed or implied in the repealing statute. He goes on to comment on the difficulties in applying such a principle and on what he calls the more modern approach of inquiring into whether a new statute, applied retrospectively, would impair accrued rights and obligations.
[3] While there are difficulties at the margins in drawing the distinction between substantive and procedural provisions, I consider the distinction still useful. It will provide the answer in most cases and there is no need to recast the test totally, merely to deal with the marginal cases. If the more expansive approach is taken, there is the danger that almost anything (however clearly procedural) could be regarded as an accrued right or obligation.
[4] Hammond J has explained the role of the Crown Health Financing Agency (CHFA) at [93] below. In this case, the CHFA has argued that there are three accrued rights or immunities: the right not to be sued without leave, the time bar and the substantive immunity. Were it merely a case of a leave provision, I do not consider that this could be characterised as a right. It would have been a purely procedural requirement, only operational while the statute containing it was in force. Contrary to the argument put forward on behalf of the CHFA, the leave provision can be separated from the substantive immunity. It may be that the leave provision would not exist independently of the substantive immunity but the reverse is not the case. Further, the leave requirement, as pointed out by Hammond J, was merely a filter for weeding out vexatious claims. This could now be effectively achieved by other means, such as an application by a defendant for summary judgment. That the leave requirement was no major hurdle reinforces the view that the leave requirement would not by itself have constituted an accrued right.
[5] The provisions in the MHAA 1935 and the MHA 1969 are not, however, mere leave requirements. They are also limitation provisions in that leave cannot be granted if an application is made outside the time frames set in the relevant leave provision – see at [23] below. The parties are agreed that the limitation period has already expired in the cases at issue in these appeals (and that this has been the position for some years). The question is whether time bars can also be seen as procedural and no longer operational once repealed. In this regard, I prefer the reasoning in the Privy Council case of Yew Bon Tew v Bas Mara Kenderaan [1983] 1 AC 553 to that of this Court in Davies v Public Trustee [1957] NZLR 1021.
[6] The provision at issue in Yew Bon Tew was a straight substitution of a three year limitation period for the previous twelve month period. The new provision contained no discretionary element. The question in Yew Bon Tew was whether the new limitation period applied to cases where the twelve month period had expired before the amending legislation was passed. The Privy Council held that an accrued right to plead a time bar, once the statutory period has lapsed, is a right – at 563. It said that in most cases the loss, as distinct from curtailment, of the right to sue is equivalent to the loss of the cause of action itself. It also pointed to the injustice of the contrary view. Potential defendants should, when a period of limitation has expired, be able to assume that they are no longer at risk from a stale claim. They should be free to destroy any papers that might relate to any such claim and to order their affairs on the basis that their potential liability has gone.
[7] The amending provision at issue in Davies was of a different character from that in Yew Bon Tew. The new provision gave the court jurisdiction, “if it thinks it is just to do so”, to grant leave to bring proceedings outside the twelve month period prescribed by the legislation, provided an application for leave was made within six years of the date when the cause of action arose. The question was whether the court could give leave in a case where the twelve month period had already expired when the amending Act was passed.
[8] Finlay ACJ, at 1023, held that a time bar is procedural and that an expired time bar confers no existing right or immunity. McCarthy J would also have been of that view, had it been necessary to express an opinion on that question – see at 1037 ‑ 1038. Turner J, at 1034 and 1036, was also of the view that the amending Act was procedural and operated retrospectively. North J’s judgment is less categorical – see at 1032 - 1033. He held that there is no vested right in a defence and that “generally speaking” amendments to limitation periods are matters of procedure only. He did not consider, however, that changes to limitation provisions should be read in a way that took a vested cause of action away from a potential plaintiff – see at 1032. Hutchison J did not find it necessary to pronounce on whether the new provision was procedural or substantive as the rule on retroactive effect does not apply when the words of Parliament are clear. He saw, at 1025, the task as being that of construction of the new provision which he found to be clear and unambiguous.
[9] In fact, the result in Davies seems to have turned mostly on the construction of the new provision and, to this extent, it can be distinguished from Yew Bon Tew. Finlay ACJ, at 1022, saw the statute as conferring a new right upon an applicant and a new jurisdiction for the court. He said, at 1023, that the new provision gave present and subsisting rights. This gave a claimant a right to apply and the courts an ability to grant leave in respect of a cause of action which was complete but unenforceable before the amending Act was passed. North J relied on the fact that the amending statute did not extend the period in which actions may be brought. It merely enabled the court to grant an indulgence, at 1033. This, North J held, meant that there were sound reasons for regarding the new provision as procedural in nature. This was also important to Turner J – see at 1036.
[10] Hutchison J, with whom McCarthy J agreed, considered that while a draftsman might normally include express words to make it clear that the power to extend time covered cases where the limitation period had already expired, this was already covered in the general wording of the new provision – at 1030. The new provision expressly stated that it operated “notwithstanding anything in subsection three of this section”. Subsection 3 contained the twelve month time bar. Those words were also important in Finlay ACJ’s analysis – see at 1022.
[11] The majority of the judges in Davies also referred to the discretionary nature of the power of the court to grant leave and the ability to impose conditions. They considered that this would enable the court to take into account any injustice that may arise for a defendant (which was of course the concern of the Privy Council in Yew Bon Tew). See at 1028 per Hutchison J (with whom McCarthy J agreed), at 1033 per North J and at 1037 per Turner J. Hutchison J commented, at 1028, that, had the amending provision directly extended the limitation period, then the appellant may have had a better foundation for arguing that the new limitation period did not apply to cases where the previous limitation period had already expired.
[12] Although it is uncertain whether Yew Bon Tew, being an appeal from another jurisdiction, is directly binding on this Court (see R vChilton [2006] 2 NZLR 341 at [112] ‑ [113]), it is a later decision of (at least) highly persuasive authority. To the extent, therefore, that Davies held, contrary to the reasoning in Yew Bon Tew, that time bars are procedural and cannot give rise to any accrued right or immunity once the time bar has expired, I would overrule it. To the extent that the reasoning in Davies relied on the wording of the new provision at issue in that case, however, it may well have been correctly decided.
[13] It has not been suggested by any of the parties that the MHA 1992 directly confers any new right on the claimants in these cases. Nor does it confer any new jurisdiction on the courts. Indeed, the parties accept that the terms of the MHA 1992 throw no light on whether or not the earlier leave provisions survive. This case, therefore, comes squarely within the Yew Bon Tew principles. I regard the expired limitation period in this case as akin to an existing accrued absolute immunity from suit for those causes of action that came within the leave provisions. This “immunity” would be preserved by virtue of s 18 of the Interpretation Act 1999. The time bar in this case is inextricably linked to the leave requirement and cannot sensibly be separated from it. This means that if the time bar remains, as it must, the associated leave provision must necessarily also survive.
Extent of requirement to seek leave and procedure to be followed
The parties’ submissions
[14] The CHFA submits that the leave provision contemplates that an “act in pursuance or intended pursuance” of the legislation could be done in bad faith or negligently so as to give rise to civil or criminal liability. In its submission, an act is to be regarded as one in pursuance or intended pursuance of the legislation if, stripped of motive and any allegations of want of care, it could properly be described as being an act of treatment, care or control of a type which hospital staff have express or implied authority to perform. In this regard, the CHFA supports the three-pronged categorisation set out by Lord Widgery CJ in Pountney v Griffiths [1976] AC 314 at 319 (HL). The CHFA submits that the effect of this test is that the allegations of sexual abuse in these cases did not require leave as such abuse could never be an act of treatment, care or control (although the question will remain whether such abuse actually occurred). The CHFA also accepts that allegations of gratuitous physical assaults, coming into Lord Widgery’s third category in Pountney v Griffiths, would not have required leave.
[15] Subject to their argument set out below at [26], the claimants argue first that acts or omissions in pursuance or intended pursuance of the legislation are limited to acts or omissions relating to the committal process and not to claims arising from abuse or ill-treatment. Even if this is wrong, they argue that acts can only be in pursuance of the legislation if they are expressly authorised by it. Even if the coverage is wider, they submit that abuse, ill-treatment and punishment can never be in pursuance of the legislation. In many cases such conduct would be an offence under the legislation. The claimants submit further that, if a defendant wishes to argue that such acts or omissions were nevertheless in intended pursuance of the legislation and that there was an honest, but mistaken belief that the statute conferred such authority, the onus is on the defendant to prove this.
Associate Judge Abbott’s approach
[16] Associate Judge Abbott held that the immunity and leave provisions were not limited to the committal process. The Associate Judge followed the three-pronged test in Pountney v Griffiths and held that an act which is reasonably capable of being done for some purpose provided for by the legislation or reasonably incidental to the carrying out of a task under the legislation (which includes any treatment, care or control) is an act “in pursuance or intended pursuance”. To avoid strike out, it was held that the plaintiff must show that there is an arguable case that the act in question cannot reasonably be linked to the carrying out of a task contemplated by the legislation.
Simon France J’s approach
[17] Simon France J held that the immunity (and therefore the leave provision) covered omissions to act. He also rejected the submission that the immunity protected only conduct done pursuant to an express statutory duty. In his view the statutory scheme showed that the immunity was intended to provide general protection for staff working within the institution and covered all conduct that was reasonably incidental to the care and treatment of admitted patients, including necessary coercive conduct.
[18] Simon France J rejected the view, which had been accepted by Associate Judge Abbott, that it is the claimants’ responsibility to show that it is reasonably arguable that the allegations do not come within the immunity. In his view, the defendant on a strike out application must show that the impeached conduct necessarily falls within the leave provision. While he accepted that this had the effect of limiting the usefulness of the filtering function of the leave provision, its impact should not be overstated. The leave provision will still apply in that, if ultimately the conduct does fall within the immunity, the proceedings will fail for want of leave without any consideration being required of bad faith or negligence.
[19] Applying this approach to the particular allegations in this case, Simon France J considered it at least arguable that, if a medical person, in administering medical treatment, was motivated by a desire to hurt or punish rather than treat, that would not be conduct covered by the immunity. The same applied with even more force to allegations of physical assault because although it might fall within the immunity as being proper restraint, a conclusion on that could not be made on a strike out application. Accordingly he reinstated a number of causes of action that had been struck out by the Associate Judge. Simon France J saw allegations concerning assaults by other patients or staff allowing smoking and tattooing as being allegations of failure to implement proper systems. In his view, this necessarily fell within the immunity and he held that the Associate Judge was correct to strike out those allegations.
Hammond J’s approach
[20] Hammond J agrees with Simon France J that the immunity and leave provisions were not confined to the committal process nor to express statutory duties but that they covered omissions and all conduct reasonably incidental to the care, treatment and control of patients.
[21] Where no leave application has been made by a claimant, Hammond J would, of the Court’s own motion, grant a conditional stay. This would be done in all cases even those where it is clear, if the pleadings are accepted at face value, that leave is not required because the alleged acts are wholly unconnected with the care, treatment or control of patients, such as allegations of sexual abuse.
[22] The claimant would then have an opportunity to file an originating application under Part 4A of the High Court Rules either applying for leave or seeking a determination that any particular acts complained of were not within the leave provisions. The claimant would be obliged to file affidavit evidence sufficient to allow a judicial determination of whether or not leave was required and, if so, whether it should be granted. The defendant would have the opportunity to file evidence in reply. It is contemplated that the issues would usually be decided on the papers but in rare circumstances a Judge might decide that a full “trial” is required.
The legislation
[23] It suffices for these purposes to set out the immunity in the MHA 1969 as there are no relevant differences in the provisions contained in the MHAA 1935. Section 124 of the MHA 1969 states:
124. Protection of persons acting under authority of Act–
(1)Neither the Crown nor any person who does any act in pursuance or intended pursuance of any of the provisions of this Act shall be under any civil or criminal liability in respect of any such act, whether on the ground of want of jurisdiction, or mistake of law or fact, or any other ground, unless the person has acted in bad faith or without reasonable care.
(2)No proceedings, civil or criminal, shall be brought against the Crown or any person in any Court in respect of any such act [ie an act in pursuance or intended pursuance of the provisions of this Act] except by leave of a Judge of the [High Court]. Such leave shall not be given unless the Judge is satisfied that there is substantial ground for the contention that the person in respect of whose act or omission it is sought to bring the proceedings has acted in bad faith or without reasonable care.
…
(4)Leave to bring such proceedings shall not be granted unless application for such leave is made within six months after the act complained of, or, in the case of a continuance of injury or damage, within six months after the ceasing of such injury or damage:
Provided that in estimating the said period of six months no account shall be taken of any time or times during which the person injured was detained, whether lawfully or unlawfully, as a mentally disordered person, or was ignorant of the facts that constitute the cause of action, or of any time or times during which any defendant was out of New Zealand.
(Emphasis added).
[24] It is common ground, based on the wording of the leave provision, that the leave provision applies only if an act was “in pursuance or intended pursuance of any of the provisions of this Act.” At the risk of stating the obvious, this means that, if the acts or omissions complained of were not in pursuance or intended pursuance of the provisions of the Act, then leave is not required and the time bar in s 124(4) is also inapplicable. The leave provisions and the time bar would therefore provide no impediment to bringing the proceedings. By contrast, if leave was required, the claims cannot proceed. The claimants do not have leave. They are far too late now to apply for it and they were far too late to do so even at the time the proceedings were first filed.
Issues
[25] I propose to deal with the issues that arise in the following order:
(a)What is the correct approach to interpreting immunity and associated leave provisions?
(b)Are the immunity and leave provisions limited to committals or acts otherwise expressly covered by the legislation?
(c)Is the interpretation of the phrase “in pursuance or intended pursuance of the provisions of this Act” coloured by the exclusions from the immunity?
(d)Should the CHFA’s formulation of the test be accepted?
(e)If not, what is the correct interpretation of the phrase “acts in pursuance or intended pursuance of the provisions of the Act”?
(f)Summary of the test to be applied.
(g)What is the procedure that should be followed in these cases?
(h)How does my suggested procedure differ from that of the other Judges?
(i)What should happen in these appeals?
[26] The claimants point out that Simon France J did not give leave to appeal on the question of which acts require leave and thus whether he was correct to reinstate certain causes of action that had been struck out by Associate Judge Abbott. Further, this Court did not give special leave on that question. Simon France J did, however, give leave on the correct approach to strike out applications. I accept the CHFA’s submission that it is not possible to deal with that question without also considering the test to be applied when considering if leave is required. If, however, special leave to argue this question is required then I would grant it. There is no unfairness in granting special leave. The CHFA dealt with the acts which it says required leave in its submissions. The claimants thus had notice that the CHFA considered that this question needed resolving. The claimants presented submissions on that issue before us.
What is the correct approach to interpreting immunity and associated leave provisions?
[27] I largely agree with Hammond J’s outline of the applicable principles of construction. Immunity and leave provisions should not be interpreted any more widely than is strictly necessary for meeting the purposes for which the immunity was granted. This is because of the presumption that Parliament did not intend to intrude any more than was necessary on the long-standing principle of equality before the law – see the discussion of this principle in the Law Commission’s paper, Crown Liability and Judicial Immunity: A response to Baigent’s case and Harvey v Derrick (NZLC R37 1997) at [15] - [19]. See also Rishworth and others The New Zealand Bill of Rights (2003) at 765, McEvoy v Dallison [1997] 3 NZLR 11 at 21 (CA) and Lai v Chamberlains [2007] 2 NZLR 7 at [1] (SC).
[28] While courts may adopt a jealous and strict approach to the meaning of immunities, however, they must give effect to them, even if they disagree with the policy behind them – see Kirby J in Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575 at 598 and 603.
[29] I would add five further observations. First, the provisions must, as must any legislation, be interpreted in accordance with the provisions of the New Zealand Bill of Rights Act 1990 (Bill of Rights). Secondly, the provisions should be presumed to be consistent with New Zealand’s obligations at international law, including under the human rights covenants to which it is a party – New Zealand Air Line Pilots’ Association Inc v Attorney-General [1997] 3 NZLR 269 at 289 (CA) and Burrows Statute Law in New Zealand (3ed 2003) at 341 – 342.
[30] Thirdly, the provisions must be interpreted in accordance with the principle set out in s 6 of the Interpretation Act: that enactments apply to circumstances as they arise. This means that the courts should not take what Hammond J calls a narrow, historical approach to the interpretation of the provisions. Changing societal conditions and the changed perceptions of the mentally ill can be factored into the interpretation – see Burrows at 174 - 177, McCartan Turkington Breen (A Firm) v Times Newspapers Ltd [2001] 2 AC 277 at 296 (HL) and the discussion of this aspect in Baragwanath J’s judgment at [317] - [318] below. Fourthly, my view that the leave provisions survive only because of the time bar may be an added reason not to construe those leave provisions too liberally. Lastly, as stated in s 27(3) of the Bill of Rights, every person has the right to bring civil proceedings against the Crown and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals. This must also be part of the interpretive matrix when construing immunities.
Are the immunity and leave provisions limited to committals or acts otherwise expressly covered by the legislation?
[31] The claimants argue that the protection of the immunity and leave provisions should be limited to acts relating to the committal process or, if wider than that, to acts specifically authorised by the legislation.
[32] There are respectable arguments in favour of that approach. The strongest argument relates to the words of the provisions themselves. They do not protect “acts in pursuance or intended pursuance of the Act”. They protect acts “in pursuance or intended pursuance of any of the provisions of the Act.” The very strict time limits for bringing an application for leave may also give some support to a narrow interpretation. Further, the legislative history shows that the primary concern was for the protection of medical personnel with regard to the committal process. The claimants’ argument is also aided by the principle of construction that would construe immunity provisions in a way that recognises the principle of equality and access to courts as far as is possible – see above at [27].
[33] Ultimately, however, I consider that the argument must fail for the reasons given by Simon France and Hammond JJ. The provisions are expressed in general terms. They were certainly not limited, as they could have been, to what was the primary concern at the time of original enactment; the committal process. Further, while the provisions refer to acts in pursuance or intended pursuance of “any of the provisions of the Act”, this must include not only acts expressly covered by the provisions but also those acts that are covered by any of the provisions of the Act by necessary implication, taking into account the purpose of the Act and the other provisions of the Act.
[34] Taking this approach, I agree with Simon France and Hammond JJ that “acts in pursuance of any of the provisions of the Act” must include not only those relating to committal but extend to all conduct reasonably incidental to the care and treatment of patients and to the running of the institution (including the control of patients). This was also the approach taken by the House of Lords to the United Kingdom provision in Pountney v Griffiths at 318 ‑ 319 (although, as I note below, because of differences in the statutory wording, the reasoning in that case is not totally applicable to New Zealand provisions).
Is the interpretation of the phrase “in pursuance or intended pursuance of any of the provisions of this Act” coloured by the exclusions from the immunity?
[35] The issue arose in argument as to whether the interpretation of the phrase “act in pursuance or intended pursuance” of the legislation should be coloured by the exclusions from the immunity: bad faith and negligence.
[36] In order to assess this submission, it is helpful to examine the form of immunities in other New Zealand statutes. The Law Commission, in its survey of the 200 or so immunity provisions contained in New Zealand statutes at the time of the Law Commission’s report – Crown Liability and Judicial Immunity – splits the provisions into four elements: the person protected, the protection from liability or proceedings, the acts covered and the exclusions – see at C24 ‑ C51. The Law Commission found a number of internal variations within these elements in the statutes it surveyed.
[37] Under the provisions at issue in this case, the person protected is “any person”. There is a hybrid with regard to protection from liability or proceedings. The substantive immunity is a protection from liability, while the leave provision (as is logical) is a protection against proceedings being brought without the procedural leave requirements being met. The acts covered are those in pursuance or intended pursuance of the statute. Exclusions are for negligent actions and those in bad faith.
[38] The Law Commission comments, at C48 ‑ C49, that it is relatively unusual for a good faith element not to be expressly stated in statutory immunities. This suggests that it is a standard provision included for the avoidance of doubt. It would thus be dangerous to rely on it too heavily as an interpretative aid in construing the legislation at issue in this case.
[39] The Law Commission comments that the preceding element of the immunity may not have been satisfied if there was bad faith: the actions would not be in pursuance or intended pursuance of the statute in question. The Law Commission points out, however, that this is not necessarily so. The actor might have dual motives or motive may not be relevant once the threshold test for the exercise of the power is satisfied. In my view, this means that the exclusion of bad faith is not necessarily duplicative of the preceding element. Its purpose is to cover those limited cases where bad faith actions may nevertheless be in pursuance of the legislation. The Law Commission, however, comments that the courts would likely read in a good faith requirement even if the statute was silent and bad faith was not expressly excluded from the immunity.
[40] With regard to the reasonable care element, the Commission says, at C50 ‑ C51, that it is not at all clear what protection, if any, a protective provision provides where there is an exclusion for negligence. In its view, compliance with the statute should provide a sufficient defence and it should not be necessary to show that reasonable care has been exercised as well. The Commission does, however, note the contrary view that statutory authority can only succeed as a defence if the defendant has acted, where a duty of care exists, without negligence. This is because a statute can never authorise negligence.
[41] I accept that in some circumstances exclusions from immunity provisions can help to identify the extent of the immunity that would otherwise apply. However, in this case, the immunity covers acts in pursuance of the statute. To allow the exclusion in the immunity and leave provisions to colour the interpretation of the immunity would be to allow the exclusion from one provision of the statute to determine the extent of the powers under the statute itself. Further, if the phrase, “acts in pursuance of any of the provisions of the Act”, is interpreted as including actions done in bad faith, this is tantamount to saying that the statute authorises bad faith actions. A statute would not be interpreted in this manner, as the Law Commission points out, except in the very limited circumstances of mixed motive and where motive is irrelevant (such as possibly in relation to actions taken during the committal process if the criteria for committal were satisfied).
[42] In this case, I consider that the exclusion for bad faith was included as a standard provision for the avoidance of doubt and also to cover the cases, identified by the Law Commission, where actions in bad faith and negligence might be nevertheless in pursuance or intended pursuance of the statute. It follows that I would reject the CHFA’s submission that the interpretation of the immunity and leave provisions should be coloured by the exclusions.
Should the CHFA’s formulation of the test be accepted?
[43] The CHFA submits that an act is to be regarded as one in pursuance or intended pursuance of the provisions of the legislation if, stripped of motive and any allegations of want of care, it could properly be described as being an act of treatment, care or control of a type which hospital staff have express or implied authority to perform.
[44] To the extent that this submission rests on the proposition that the meaning of the immunity and leave provisions is coloured by the exclusions, it must be rejected for the reasons set out in the previous section of this judgment. However, I apprehend that the submission is wider than that. It is based on the submission that the leave provisions must be interpreted broadly to accord with their purpose of providing a shield from vexatious claims to those working in institutions for the mentally ill.
[45] To the extent that the CHFA’s submission is that the provisions should be interpreted in a manner that does not rob them of all force, I accept it. After all, if the impugned conduct was totally lawful and ethical and performed with due care, there would be no need for the immunity – see for example the comments of Dixon J in Little v Commonwealth (1947) 75 CLR 94 at 108. I also have some sympathy for the proposition that a claimant should not be able to avoid the leave provisions and time bar merely by adding an adjective, such as “gratuitous”, to describe an action that would otherwise clearly be within the legislation.
[46] On the other hand, what the CHFA is asking the court to do is to approach the issue by imagining some way that the actions pleaded, however seemingly outside the contemplation of the Act, could be in pursuance or intended pursuance of the Act. For example, it suggests that even serious physical assaults, such as those set out in Mr P’s statement of claim at [9.3.2] (reproduced at Appendix II to our judgments), could be explained as being actions taken in self-defence or in defence of another and therefore in pursuance of the legislation. This is in the absence of any pleading by the CHFA that this was the case.
[47] It would be unusual for courts to approach a situation on the basis of a totally hypothetical construct and I see no need to do so here, particularly in light of the principles of construction discussed above. The test is not whether an act, if imagined to have taken place in a totally different manner from that pleaded, could conceivably be in pursuance or intended pursuance of the legislation. I discuss the proper interpretation of the phrase in the next section.
What is the correct interpretation of the phrase “acts in pursuance or intended pursuance” of the provisions of the Act?
[48] Starting with acts in pursuance of the legislation, I have already indicated that these would cover acts or omissions in the course of the committal process as well as acts and omissions relating to care and treatment of all patients (including voluntary and informal patients). It would also include all acts and omissions reasonably incidental to the committal process, to the running of the institution and to the care and treatment of patients. This would include any issues of control of patients or the protection of others, both within and outside the institution. I do not consider, however, that the phrase could include acts or omissions that constitute an offence under the legislation. To hold otherwise would be akin to holding that the legislation authorises offending against the legislation.
[49] Moving now to acts in intended pursuance of the legislation, the first point is that in this respect the test in New Zealand is not the same as the test that was at issue in Pountney v Griffiths. This limits the applicability of that decision in New Zealand. The immunity provision at issue in Pountney v Griffiths protected “any act purporting to be done in pursuance of this Act.” This phrase appears to contemplate that actions or omissions are covered, as long as they appear to be in the course of carrying out functions under the legislation, even if there is some ulterior motive or the actions in question are quite clearly excessive and outside the contemplation of the legislation. Indeed, this was the interpretation put on the provision by the House of Lords.
[50] In Pountney v Griffiths, the House of Lords, at 319, accepted the submission of Mr Slynn QC that the words used were wide and unqualified and that the test was whether the nurse was on duty and carrying out duties as a nurse. It was only where a nurse was not on duty or where the actions of the nurse could not be justified as an act of control in the course of his or her duties as a nurse that they would come outside the immunity and leave provisions. This meant that any actions relating to the control of patients or purportedly for the control of patients were protected by the section. Mr Slynn had, in answer to a question from the Bench, submitted that even blows, if struck in the course of trying to persuade a patient to return to a house (the fact scenario at issue in the case), were one aspect of control and detention – see at 316. This submission must have been accepted by the House of Lords. I do not consider that the case would necessarily have been decided the same way under the New Zealand wording.
[51] In my view, the New Zealand wording, “intended pursuance of the Act”, creates a subjective test. To adapt the words quoted by Mason, Deane and Dawson JJ in Webster v Lampard (1993) 177 CLR 598 at 605, the cases on similarly worded immunities suggest a clear conception of a person intending and trying to do his or her duty. See also Duport Steels Ltd v Sirs [1980] 1 WLR 142 (HL). In that case, the immunity applied to acts done in contemplation or furtherance of a trade dispute. It was held that, provided the doer of the act honestly thought that it might help one of the parties to a trade dispute and he or she did the act for that purpose, the immunity provided protection.
[52] In this case, therefore, the immunity and associated leave provisions would include all acts and omissions honestly (even if mistakenly) thought to be in pursuance of the legislation. In this context, acts or omissions that are offences against the legislation could be in intended pursuance of the legislation. This would apply if such actions or omissions were undertaken in good faith (or if good faith predominated in the case of mixed motives) and in an honest (even if mistaken) belief that they were in pursuance of the committal, protection, care or treatment of patients and the necessary auxiliaries such as control or protection. I consider that, depending on the circumstances, it is possible for a person to be acting honestly even if the person may know that he or she is acting without statutory authority or even that he or she was committing an offence against the legislation. The person could still honestly consider that he or she was acting in the interests of patients or for the protection of others.
[53] I do not consider, however, that a person could honestly believe that sexual abuse, serious physical assaults (unless in self-defence or in defence of others) or, torture or cruel or degrading punishment were necessary for the care, treatment or control of a patient. Even if a defendant maintained that he or she had such an honest belief, that assertion could not be countenanced for public policy reasons. In the case of torture and degrading punishment, this would, in any event, be contrary to s 9 of the Bill of Rights. All legislation must, according to s 6 of the Bill of Rights be interpreted to accord with the Bill of Rights if possible. In this regard, there may be an issue with forced medical treatment in the case of voluntary or informal patients – see s 10 of the Bill of Rights.
[54] In coming to my view on the scope of the test, I do not find it necessary to rely on s 6 of the Interpretation Act. While attitudes to those suffering from mental illness have changed, I have no doubt that, had Miss Lawrence been asked, in the course of the debate on the first introduction of the corresponding United Kingdom provisions, whether she intended the leave provisions to give complete immunity (once the time bar had passed) in cases where staff had committed (for example) serious and unjustified physical assaults on patients in the hospital setting, she would have answered with a resounding negative. See the judgments of Hammond and Baragwanath JJ at [177] and [296] respectively below. The claimants also point to the 1963 Health Department publication Ethics and Rules of Conduct for Staff (1963 Code of Ethics), where it is stated that (at 17):
It is much better to forestall trouble than to deal with it when it happens. If patients are treated courteously and calmly, if they are not frightened, or antagonised by tactless handling, any use of physical force will very seldom be necessary. On the rare occasions when it is, it must be used reluctantly and to the minimum extent possible. Except in dire emergency, a nurse should never engage in a single-handed struggle with a patient, and a struggle should be avoided. When sufficient staff arrive it is easier to control the patient without violence. Heavy-handed methods are wrong. Any suggestion of assault, brutality, or unnecessary single-handed intervention physically will be dealt with severely.
[55] So how is the test applied? I have already accepted the CHFA’s submission that the provisions should be interpreted in a manner that does not rob them of all force. I have also indicated sympathy for the proposition that a claimant should not be able to avoid the leave provisions and the associated time bar merely by adding an adjective, such as “gratuitous”, to describe an action that would otherwise clearly be within the legislation.
[56] I consider that the exercise should be approached in the following manner. The actions or omissions, any accompanying words, the circumstances in which they allegedly occurred, and any motivation ascribed should be examined. The first question will be whether those actions were in pursuance of the legislation in the sense set out at [48] above. If not (because, for example, they would constitute an offence against the legislation), then the test, applied in a relatively liberal manner, is as set out at [52] ‑ [53]: whether a person could honestly (even if mistakenly) have considered that the actions or omissions were ones that related to the committal process, to the running of the institution and to the treatment and care of patients or to necessary auxiliaries, such as control or the protection of others, both inside and outside of the institution.
[57] If a person could honestly believe that the actions or omissions were for these purposes, then leave is required. Assessing whether there could be honest belief will necessarily be a hypothetical exercise. Whether or not to apply for leave is a decision that has to be made by a plaintiff before instituting proceedings. The leave provisions would be rendered nugatory if they depend on what belief a defendant actually had; a finding that can only be made after a full trial.
[58] It is worth saying something about allegations of actions allegedly administered as punishment. The claimants argue that it can never be acceptable to punish patients and that therefore any actions taken for punishment must be outside the immunity and leave provisions. I do not accept the proposition that a motivation to “punish” will always take the actions outside the legislation. All institutions must have rules, at the least to protect the safety of all those within the institution. Rules to promote the smooth running of the institution and the comfort of its occupants (including staff) would also, however, be legitimate. If there are rules, there must also be consequences of breaking such rules. As a generalisation, the consequences must be proportionate to the breach and take into account any special characteristics of the person who has broken the rules. An institution that cares for the mentally ill is no exception. Thus merely characterising acts or omissions as punishment would not of itself take any actions outside the statute.
[59] The claimants, however, point to the following paragraph in the 1963 Code of Ethics, which proscribes seclusion being used for punishment purposes (at 18):
Seclusion is the enforced isolation of a patient in a single room between the hours of 7.30 a.m. and 6 p.m. … Seclusion is seldom necessary. It is used reluctantly and for the shortest possible period. … Patients must never be secluded for punishment. They must never be threatened with seclusion. Seclusion must be used only when the patient is so disturbed by an abnormal mental state that, in his own interests or for the protection of other patients, he must be isolated. The physical and psychological needs of every patient in seclusion must always be remembered and it is the duty of the Charge to ensure that toilet needs are attended to and that if the patient can appreciate such things, he has something to read or do. …
[60] While the ethical rules can provide some assistance in determining the scope of the immunities, I do not accept the submission that these rules govern the interpretation of the provisions. As indicated above at [45], if conduct was totally lawful and ethical, there would be no need for an immunity. In any event, the ethical rules may be more stringent than the legislation. Thus a breach of the ethical rules may not take an action outside of what is authorised by the legislation. In addition, the rules set out in the 1963 Code of Ethics would not necessarily, in my view, prevent a person honestly considering that seclusion was necessary in order to modify behaviour that was a danger or major inconvenience to others. There is a fine line between ordering seclusion in order to protect staff or other patients and so-called punishment.
[61] What all this means is that most allegations of minor assaults and seclusion for reasonable periods will require leave, even if it is said that they were for punishment. A person could still honestly believe in such cases that their actions or omissions were for legitimate purposes. Whether the particular defendant so believed would be a matter for trial, if the time bar does not apply and leave is granted. By contrast, I do not consider that a person could honestly think that it was legitimate to administer electro-convulsive therapy (ECT) for punishment or control and not for treatment – see [9.3.1] of Mr P’s pleadings set out in Appendix II to our judgments. The same clearly applies to sexual assaults and major physical assaults, unless they were in self-defence or in defence of others. Whether something is in self-defence or in defence of others is not “imagined” by the courts, however. It must be alleged specifically and with particularity by the defendant ‑ see at [43] ‑ [47] above.
Summary of the test to be applied
[62] In deciding whether or not leave is required, the actions, any accompanying words, the circumstances in which they allegedly occurred and any motivation ascribed must be examined. The first question is whether those actions or omissions were in pursuance of the legislation, being acts or omissions that related to the committal process, to the running of the institution, to the care and treatment of patients or to necessary auxiliaries, such as control and protection of those both inside and outside of the institution. This would not include acts or omissions that constitute an offence under the legislation. The second question is whether the acts or omissions could be in intended pursuance of the legislation. This requires an assessment of whether a person could honestly, even if mistakenly, believe that the acts or omissions related to the committal process, to the running of the institution, to the care and treatment of patients or to necessary auxiliaries such as control and protection of those both inside and outside of the institution.
What is the procedure that should be followed in these cases?
[63] My approach to this issue necessarily follows from my view that what is preserved is an accrued limitation defence and not the leave provisions per se. The appropriate procedure, where a defendant considers that he or she has a good limitation defence, is either to plead the defence and seek trial of the defence as a preliminary issue or, in a clear case, to apply to strike out the plaintiff’s claim on the grounds that it is frivolous, vexatious and an abuse of process – see Murray v Morel & Co Ltd [2006] 2 NZLR 366 at [59] (CA). In any strike out application, the onus is on the defendant to show that the claim is statute-barred. Evidence can be tendered by both parties by affidavit.
[64] There must nevertheless be strong grounds before a claim is struck out as being time barred. In the course of the appeal from this Court’s decision in Murray v Morel & Co Ltd [2007] 3 NZLR 721 (SC), Tipping J said, at [33], that, in order to succeed in striking out a cause of action as time barred, the defendant must satisfy the Court that the plaintiff’s cause of action is so clearly time barred that it can properly be regarded as frivolous, vexatious or an abuse of process. While the other Judges in the Supreme Court did not comment on this point, that proposition clearly follows from the nature of the strike out jurisdiction.
[65] If I am wrong in seeing these cases as primarily involving limitation issues, then I would uphold Simon France J’s application of normal strike out principles.
[66] As well as, or as an alternative to, strike out, a defendant may apply to have the leave question determined as a preliminary issue – see High Court Rules r 418. As leave, by its very nature, should be a preliminary issue then such applications might be looked on more favourably than they might usually be. As the issue is whether leave is required, I consider that a judge would be entitled to require any evidence to be put before the Court in affidavit form rather than orally (so as to avoid, if possible, a de facto trial of the substantive issues).
[67] If the leave question is tried as a preliminary issue, then, as with any issue in the case, the onus is on the claimants to “prove” that leave was not required. This means that the claimants must “prove” that what they allege took place were not acts or omissions that related to the committal process, to the running of the institution, to the care and treatment of patients or to necessary auxiliaries, such as control and the protection of those both inside and outside the institution. If they succeed in this, they must also “prove” that a person could not honestly have thought the actions or omissions were for one of those purposes.
[68] I put “prove” in inverted commas because deciding whether or not a leave application was required is an evaluative (and, to a degree, hypothetical) exercise that the court will have to undertake. Further, it might be expected that the claimants will only have to show at any preliminary issue hearing that, on the basis of the evidence they have put before the court, leave was not required. The parties are unlikely to want a mini-trial, which might have to be conducted again if the court finds that leave was not required. Thus a defendant may well accept, for the purpose of the preliminary issue hearing, that matters occurred as the claimant alleges unless clear evidence of a positive “defence” can be put before the court – for example that the ECT was given for treatment purposes and not punishment or that any serious assault was in self-defence or in defence of others.
[69] Where an application has been made for the question of leave to be tried as a preliminary issue and conflicting evidence is put before the court, the court may, however, decide that the matter of leave is not suitable for preliminary determination and that it should be decided at the substantive trial. Even if there is an attempt to try the matter as a preliminary issue, in cases of conflicting evidence, the judge may (unless there has been cross-examination) still decide that the outcome should await trial. Further, where the defendant has accepted the claimant’s account as correct for the purposes of the preliminary issue, any decision that the leave provisions did not apply may have to be provisional, with a final decision awaiting the outcome of the trial.
How does my suggested procedure differ from that of the other Judges?
[70] Hammond J would grant a conditional stay on application by a defendant in all cases. As I understand it, Hammond J’s rationale is that the scheme of the leave provisions in the MHAA 1935 and the MHA 1969 require an application by the claimants, either for leave or for a judicial determination, made after consideration of affidavit evidence rather than merely on the pleadings, that leave was not required.
[71] I do not consider that the provisions mandate such an approach. If leave is not required under the legislation then claimants should be free to bring their proceedings in the normal way. If the defendant considers that leave is required then he or she can, in the normal way, apply to strike out the proceedings and/or apply to have the question of leave dealt with as a preliminary issue. If Parliament had intended to introduce a requirement that all mental health patients make an application to the court before filing any proceedings at all then it could easily have said so. Instead, it required leave to be sought only if the acts or omissions were in pursuance or intended pursuance of the legislation.
[72] To support his approach, Hammond J relies on the decision of the House of Lords in Seal v Chief Constable of South Wales Police [2007] 1 WLR 1910. I do not find that case helpful in ascertaining the proper process for deciding whether or not leave is required. In Seal, it was accepted that leave should have been applied for and therefore process issues, in cases where there is uncertainty whether the leave provisions applied, were not discussed. The issue was the effect of failure to apply for leave when a leave application had clearly been required. In that regard, like Hammond J, I prefer the minority view in Seal. I do not consider that failure to apply for leave should render the proceedings a nullity, contrary to what was held by Lord Bingham of Cornhill in Seal at [15].
[73] If, in this case, leave was required and the substantive proceedings had been filed within the six month time frame (or within the statutory extension period) I would, like Hammond J, have issued a stay in order to allow the claimants to file a leave application. I would then have treated that subsequent leave application as having been filed, for the purposes of the time bar, at the same time as the substantive proceedings had been filed. That approach would not help the current claimants, however. With regard to the causes of action that require leave, the claimants in these appeals are well out of time on any measure.
[74] As I understand Baragwanath J’s judgment, he considers that conventional strike out procedures do not provide a proper means of balancing the policy of the leave provisions and the claimants’ right of access to the courts. He thus considers that an alternative procedure should be adopted, which he sets out in his judgment.
[75] If Parliament had intended there to be a special procedure then it would, in my view, have set that out in the legislation. I consider that the normal procedures in fact produce about the right balance between the varying interests involved. Further, it seems to me that Baragwanath J’s suggested procedure is very similar to what would occur if an application to have the leave question tried as a preliminary issue was made.
[76] O’Regan and Robertson JJ agree that the appropriate course is for a defendant to apply to have the leave question tried as a preliminary issue or to apply to strike out the proceedings. They, however, like Simon France J, consider that normal strike out principles should be applied. As they are in the majority of those who consider that there should be no special procedures in these cases, their view on this issue prevails. The only real difference between their approach to strike out and my limitation approach, however, is that no evidence is filed in a normal strike out application and it is considered on the basis that the allegations in the statement of claim are capable of proof.
What should happen in these appeals?
[77] The Court is unanimous with regard to the following:
(a) All informal patients are within the leave and immunity provisions;
(b)The leave and immunity provisions apply to proceedings that allege the CHFA is vicariously liable;
(c)The leave and immunity provisions in MHA 1969 and MHAA 1935 were not repealed by the MHA 1992;
(d)The leave and immunity provisions cover more than acts or omissions in the committal process or acts or omissions expressly authorised by the legislation; and
(e)The test for whether or not leave is required is as set out at [62] above (as explained in more detail at [48] ‑ [61]).
[78] By majority (Glazebrook, O’Regan and Robertson JJ), the following procedure should apply. If a defendant considers, in relation to any relevant proceedings, that leave should have been applied for, then he or she should apply either to have the question of leave dealt with as a preliminary issue and/or to strike out the proceedings. In deciding any application to strike out the proceedings, normal strike out principles apply.
[79] The Court is unanimous, however, that, should leave be required and any leave application would have been timeous when the proceedings were filed, then such proceedings should not be struck out. They should be stayed until a leave application is filed and dealt with. This does not apply in any of the appeals before us, however.
[80] It is the unanimous view of the Court, that, if needed, special leave should be granted on the question of the test to be applied for deciding if a leave application was necessary. The Court is of the view, however, that it would not be appropriate for us to apply the test, set out above at [62], to the cases at hand as the parties have not had an opportunity to address us on the application of the test. The cases are therefore remitted to the High Court to be resolved in accordance with this judgment. There will also be other matters to be resolved in the High Court consequent on the conclusions set out at [77].
Result and costs
[81] The appeal of the CHFA in CA173/07 is allowed to the extent set out at [77].
[82] The appeals of Mr P and Mr B and others in CA149/07, CA376/07, CA150/07 and CA383/07 are dismissed.
[83] The proceedings before us are remitted to the High Court for resolution in terms of this judgment.
[84] As all parties had a measure of success and the claimants are legally aided, there are no costs orders.
[85] Orders suppressing the names of the claimants and any individual named in the statements of claim and defence and in the affidavits were made by Associate Judge Abbott, Simon France J and in the leave decision of this Court ([2007] NZCA 298). These orders remain in force unless lifted by the High Court or this Court.
[86] We add a similar suppression order with regard to this judgment. Accordingly, an order is made that none of the names of or other identifying information about the parties (other than the CHFA) or any persons named in this judgment or in any documents filed in these appeals are to be published in any media reports or in publicly available databases. Publication in Law Reports or Law Digest is, however, permitted.
HAMMOND J
Table of Contents
Para No
INTRODUCTION
THE APPEALS [87]
A LARGE NUMBER OF CLAIMANTS [88]The nature of the claims [91]
The Crown Health Financing Agency [93]
The applicable legislation [94]
The forensic problems for claimants [98]
The P and B claims [106]
The Crown’s strike-out application[111]
Associate Judge Abbott’s judgment [114]
Simon France J’s judgment [115]
The issues on appeal [117]
The CHFA’s position [120]
The order of proceeding [123]
THE STATUS OF INFORMAL PATIENTS
Introduction [125]
The Crown submissions [128]
The claimants’ submissions [129]
Discussion [130]
VICARIOUS LIABILITY
Introduction[150]
The High Court judgments [152]
The submissions of the parties [156]
Discussion [158]
RETROSPECTIVITY
Introduction [164]
The Crown submissions [169]
The claimants’ submissions [170]
The Parliamentary history [172]
The concept of “retrospectivity”: general principles [187]
Section 18 of the Interpretation Act 1999 [192]
Section 7 of the Interpretation Act 1999 [194]
Prior authority [198]
Conclusion [201]
COVERAGE
Introduction [205]
The High Court determinations [208]
The Crown submissions [215]
The case for the claimants [218]
Discussion [221]
PROCESS
THE PROBLEM[240]
THE TEST FOR LEAVE [241]
THE TIME BAR [244]
A NULLITY IF NO APPLICATION? [246]
AN ALTERNATIVE: A STAY [258]
A REMISSION TO THE HIGH COURT [268]
THE MAJORITY APPROACH[269]
CONCLUSION [271]Introduction
The appeals
[87] These appeals from strike-out proceedings in the High Court concern the scope and application of immunity and leave provisions contained in s 6 of the Mental Health Amendment Act 1935 (MHAA 1935) and s 124 of the Mental Health Act 1969 (MHA 1969).
A large number of claimants
[88] The claimants in this case are only some of a large number of former patients of Porirua and Lake Alice psychiatric hospitals, who allege that they were abused while resident in those institutions in the late 1960s and early 1970s.
[89] A retired High Court Judge, Sir Rodney Gallen, undertook a limited inquiry into the allegations of abuse at the Lake Alice child and adolescent unit. Following his report, the government issued an apology in 2001 and eventually paid out $10.7 million compensation to 183 former residential patients.
[90] In the absence of a more widespread governmental inquiry into allegations of abuse at these hospitals, as a forerunner to the sort of official settlement process that followed the Gallen inquiry, a significant number of former patients have now commenced litigation. We were advised by the Solicitor-General that 281 proceedings have been filed in the High Court as at 31 March 2008.
The nature of the claims
[91] The statements of claim filed by these many claimants advance various causes of action including assault, battery, breach of fiduciary duty, breach of statutory duty, and negligence.
[92] Particulars of the claims vary in each case, but they include allegations of physical assault, sexual abuse, the inappropriate use of electro-convulsive therapy (ECT), and solitary confinement as punishment. Both general and exemplary damages are claimed.
The Crown Health Financing Agency
[93] Prior to the enactment of the New Zealand Public Health and Disability Amendment Act 2005, the Crown Health Financing Agency (CHFA) was known as the Residual Health Management Unit (RHMU). The CHFA is the Crown entity that has inherited the historic liabilities of the various hospitals in respect of which claims have been made. It is accepted that the CHFA is the correct defendant. The claimants say the CHFA is vicariously responsible for the wrongs done to them.
The applicable legislation
[94] Historic claims of abuse in mental health institutions face difficult preliminary hurdles in New Zealand. This is because s 124 MHA 1969 and s 6 MHAA 1935 contain certain leave and immunity provisions.
[95] This legislation lies at the heart of the appeals. The functional effect of s 124 MHA 1969 and s 6 MHAA 1935 is two-fold:
(a)First, the provisions bar proceedings in respect of acts done in pursuance or intended pursuance of the Acts unless the High Court grants leave to a claimant to proceed. The High Court can only grant leave if substantial grounds for allegations of bad faith or negligence are shown. Further, leave must be sought within six months of the act complained of or, in the case of a continuance of injury or damage, within six months after the ceasing of such injury or damage.
(b)Secondly, the provisions provide an immunity from civil and criminal liability in respect of any acts done in pursuance or intended pursuance of the Acts unless those acts were done in bad faith or without reasonable care.
[96] Put shortly for introductory purposes, these provisions were enacted to protect mental health professionals against meritless or insubstantial claims by current or former patients of psychiatric hospitals.
[97] Appendix I to our judgments sets out s 124 MHA 1969, s 6 MHAA 1935, s 131 of the Mental Health Act 1911 (MHA 1911) and the comparable UK provision, s 16 of the Mental Treatment Act 1930 (MTA 1930). As a matter of convenience, I now set out s 124(1)(2) and (4) MHA 1969 to which reference will frequently be made in this judgment. The immunity, leave and time bar provisions in s 6 MHAA 1935 are to similar effect.
124. Protection of persons acting under authority of Act –
(1)Neither the Crown nor any person who does any act in pursuance or intended pursuance of any of the provisions of this Act shall be under any civil or criminal liability in respect of any such act, whether on the ground of want of jurisdiction, or mistake of law or fact, or any other ground, unless the person has acted in bad faith or without reasonable care.
(2)No proceedings, civil or criminal, shall be brought against the Crown or any person in any Court in respect of any such act except by leave of a Judge of the [High Court]. Such leave shall not be given unless the Judge is satisfied that there is substantial ground for the contention that the person in respect of whose act or omission it is sought to bring the proceedings has acted in bad faith or without reasonable care.
…
(4)Leave to bring such proceedings shall not be granted unless application for such leave is made within six months after the act complained of, or, in the case of a continuance of injury or damage, within six months after the ceasing of such injury or damage:
Provided that in estimating the said period of six months no account shall be taken of any time or times during which the person injured was detained, whether lawfully or unlawfully, as a mentally disordered person, or was ignorant of the facts that constitute the cause of action, or of any time or times during which any defendant was out of New Zealand.
The forensic problems for claimants
[98] The significant number of claims presently before the High Court relate to events which took place literally decades ago. Quite apart from the difficulties of proof associated with the effluxion of time, the claims are confronted by the distinct impediments created by the mental health legislation referred to above.
[99] Counsel for the claimants in this case have endeavoured to avoid the application of the statutory provisions in several ways.
[100] First, in what I will term “status” arguments, it is said that the legislation does not apply at all to informal (or voluntary) patients, as opposed to committed (or special) patients.
[101] Secondly, in what can be described conveniently, although not completely accurately, as “retrospectivity” arguments, counsel suggest that s 6 MHAA 1935 and s 124 MHA 1969 were repealed by the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MHA 1992), with the consequence that they do not apply to claims filed after the MHA 1992 came into force.
[102] Thirdly, in what I will term “coverage” arguments, counsel’s main point is that the immunity and leave provisions apply narrowly to conduct relating to the committal and appropriate care and treatment of a patient. For instance, it is argued that sodomising a patient, as is alleged in some statements of claim, could not possibly amount to treatment, and therefore the protective provisions of the Acts do not apply.
[103] Fourthly, there is a “process” concern, as to the procedure and adjectival aspects that should attend these claims. The claimants say they do not need to apply for leave. The position of the Solicitor-General is that if leave is not applied for, the claims are liable to be struck out. Of course, even if a leave application is filed, the claim may well be struck out on the basis of the requirements contained in s 124 MHA 1969 and s 6 MHAA 1935.
[104] The litigation to date confirms the formidable obstacles faced by claimants. Some claimants have successfully applied for leave, but there has been no success on the substantive merits for them. We have heard an appeal from a leave application – Longman v Residual Health Management Unit [2008] NZCA 363 – which we will dismiss contemporaneously with the delivery of this judgment.
[105] The failure of claimants to apply for leave has imposed significant and some might say unjustified externalities on the public purse and the legal system as a whole. I refer in particular to J v CHFA HC WN CIV-2000-485-876 8 February 2008. The CHFA submitted:
J v CHFA provides an example of how … the straightforward inquiry envisaged by Parliament for triggering a leave application is subverted and defendants deprived of any benefit from the leave provision. At the culmination of a long series of pre-trial applications and reformulated pleadings, Gendall J ultimately declined to strike out allegations of punishment because he viewed those pleadings as essentially ones of “improper motive or malfeasance” … When the proceedings finally went to substantive trial, the Judge dismissed all the allegations of punishment. Because the claim was barred on Limitation Act grounds, the Judge’s comments regarding the immunity and leave provision[s] were obiter … if the plaintiff’s allegations had been subjected to a leave filter at the outset, as Parliament intended, the [CHFA] may have been able to demonstrate in the leave hearing that there were no substantial grounds for alleging bad faith and negligence, and thereby have avoided the great expense of a trial brought on ultimately meritless allegations.
See also M v Capital Coast Health Ltd & Ors HC WN CP 70/00 25 June 2001 (per Durie J), a review of a decision granting leave under MHA 1911 to commence proceedings.
The P and B claims
[106] The P and B claims have been advanced to this Court as test cases in which leave was not applied for, on the basis that answers given to the issues raised in those claims will substantially resolve like issues in a large number of other claims.
[107] Mr P’s initial statement of claim against the RHMU and the Attorney-General was filed at the Wellington High Court in July 2003. Amongst other things, he averred that he had been assaulted, given ECT, and put in solitary confinement as punishment.
[108] Mr B’s initial statement of claim was filed in April 2004. It contained causes of action in relation to the alleged mistreatment of Mr B and five other former patients. The causes of action are broadly comparable to Mr P’s claims, albeit the B claims include more varied particulars ranging from the less serious (such as permitting other patients to tattoo the claimants and the supply of cigarettes resulting in nicotine addiction) to deeply serious alleged incidents of sexual assault.
[109] An indication of the length and complexity of the pleadings can be gained from Appendix II.
[110] In both the P and B claims, counsel made no application for leave to bring proceedings under s 124 MHA 1969 or s 6 MHAA 1935. Counsel contended that leave was not required because they considered that the nature of the allegations were such that they did not come within the protective provisions of s 124 and s 6. On the other hand, the Solicitor-General argued that claimants should have filed an application for leave to commence proceedings, and that proceedings commenced without leave are susceptible to being struck out as a nullity. Even if a leave application had been filed, the Solicitor-General argued that the claims may be struck out on the basis that the immunity in s 124(1) and s 6(1) applied, or that the six month time bar in s 124(4) and s 6(4) had expired.
The Crown’s strike-out application
[111] On 31 March 2005, the RHMU applied to strike out the P and B claims on the grounds that they disclosed no reasonable cause of action and were otherwise an abuse of process. This application was based on a raft of statutory provisions (s 4(7) Limitation Act 1950; s 317 Injury Prevention and Rehabilitation Compensation Act 2001; and s 124 MHA 1969) and the premise that exemplary damages are unavailable in vicarious liability proceedings. This last point is not before us in these proceedings.
[112] The RHMU’s position was that it had statutory immunity under s 124 MHA 1969 and s 6 MHAA 1935 and that the claims should be struck out because the claimants required the leave of the High Court to bring proceedings, and they are now significantly out of time for obtaining such leave.
[113] On 23 June 2005, counsel for the claimants filed a notice of opposition to this strike-out application. Their argument was that s 6 MHAA 1935 and s 124 MHA 1969 had no application to claimants who were not committed patients at the time of the alleged acts; the RHMU as vicarious tortfeasor; and acts or omissions which could not reasonably be said to have formed part of a claimant’s treatment as a patient.
Associate Judge Abbott’s judgment
[114] The CHFA’s (previously the RHMU’s) strike-out application was heard by Associate Judge Abbott: HC WN CIV 2003-485-1625 / CIV 2004-485-746 23 June 2006. He concluded that the CHFA was covered by the immunity in s 124 and s 6, but that the immunity did not apply in relation to informal patients. He also held that, with the exception of sexual assaults and gratuitous physical assaults, the acts complained of could reasonably be linked to the carrying out of tasks contemplated by the Acts, and leave was required if the claims were to proceed. In the result, the P and B claims were struck out in respect of all alleged acts except for those done to claimants whilst informal patients and those particulars pertaining to sexual or gratuitous physical assaults.
Simon France J’s judgment
[115] Simon France J reviewed Associate Judge Abbott’s decision: HC WN CIV 2003-485-1625 19 December 2006.
[116] He held that:
(a)The immunity applies to informal patients, except those admitted subsequent to 1 April 1972 because they were no longer being treated under the MHA 1969.
(b)Leave is not required where the CHFA is sued vicariously for conduct covered by MHAA 1935.
(c)The immunity covers all acts and omissions reasonably incidental to the care and treatment of admitted patients.
(d)The CHFA, as the strike-out applicant, carried the onus of showing that the alleged conduct necessarily fell within the leave provision.
In the result, Simon France J agreed with the Associate Judge in some respects and disagreed in others as to what should be struck out in the pleadings. Appendix II to our judgments sets out a representative sample of the outcome, on the pleadings, of the two High Court hearings.
The issues on appeal
[117] Both the CHFA and the claimants applied for leave to appeal. On 3 April 2007, Simon France J granted leave to appeal on the following issues:
(a)Do s 6 MHAA 1935 and s 124 MHA 1969 apply to informal patients, or are they confined to committed patients? Do s 6 and s 124 apply to informal patients after 1 April 1972?
(b)Does the leave requirement in s 6(2) MHAA 1935 apply to proceedings that allege the CHFA is vicariously liable?
(c)What is the correct approach to strike-out where leave has not been obtained under MHAA 1935 or MHA 1969 before commencing proceedings and what must the applicant establish to achieve a strike-out?
[118] This Court granted the claimants special leave to appeal on the issue of whether the leave provisions of MHAA 1935 and MHA 1969 were repealed by MHA 1992 and do not apply to a proceeding commenced after the date on which that Act came into force: [2007] NZCA 298.
[119] A further issue on appeal is the test to be applied when considering if leave is required. This turns on the meaning of “pursuance or intended pursuance” in s 6(1) MHAA 1935 and s 124(1) MHA 1969.
The CHFA’s position
[120] The Solicitor-General sought the following orders from this Court:
(a)That the immunity and leave provisions contained in MHAA 1935 and MHA 1969 apply to voluntary or informal patients, including voluntary patients admitted to psychiatric hospitals administered by Hospital Boards after 1 April 1972.
(b)That where the CHFA is sued vicariously in respect of conduct in pursuance of MHA 1911, leave is required under s 6(2) MHAA 1935.
(c)That the immunity and leave provisions in s 124 and s 6 were not retrospectively repealed by the MHA 1992.
(d)That the question for the Court at this stage of the proceeding is whether each act complained of is, if done in good faith and without negligence, properly described as an act of treatment, care or control of the type which hospital staff have express or implied authority to perform. If so, s 6(2) MHAA 1935 or s 124(2) MHA 1969 applies.
(e)To resist strike-out, the claimant must plead acts of a type that could not in any circumstances constitute treatment, care or control. Pleading that a type of act was done in a particular way, over a particular period or for a particular purpose is not sufficient.
In other words, it is generally permissible and indeed necessary to take into account the place of the statutory provision in controversy in the broad context of the basic principles of the legal system as it has evolved. If this proposition is right, as I believe it to be, it follows that on ordinary principles of construction the question before the House must be considered in the light of the law of freedom of expression as it exists today. The appeal to the original meaning of the words of the statute must be rejected.
[319] A similar approach is seen in international law. In McLachlan “The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention” (2005) 54 ICLQ 279 Professor Campbell McLachlan QC stated at 318 – 9:
The principle of systemic integration in treaty interpretation operates before an irreconcilable conflict of norms has arisen. Indeed, it seeks to avert apparent conflicts of norms, and to achieve instead, through interpretation, the harmonisation of rules of international law. In this way, the principle furnishes the interpreter with a master key which enables him, working at a very practical level, to contribute to the broader task of finding an appropriate accommodation between conflicting values and interests in international society, which may be said to be the fundamental task of international law today.
Such approach was adopted by an Arbitral Tribunal of the Permanent Court of Arbitration chaired by Judge Rosalyn Higgins in Belgium v The Netherlands (The Iron Rhine) 24 May 2005 (available at < (last accessed 1 September 2008)). It concerned a treaty of 1839. The Tribunal stated:
57 … the Tribunal wishes to draw attention to a matter which in its view is of great importance in this case: the problem of intertemporality in the interpretation of treaty provisions.
…
59 Since the Stockholm Conference on the Environment in 1972 there has been a marked development of international law relating to the protection of the environment. Today, both international and EC law require the integration of appropriate environmental measures in the design and implementation of economic development activities … The Tribunal would recall the observation of the International Court of Justice in the Gabčíkovo-Nagymaros case that“[t]his need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development” (Gabčíkovo-Nagymaros (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7 at p. 78, para. 140). And in that context the Court further clarified that “new norms have to be taken into consideration, and . . . new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past” (Ibid.). In the view of the Tribunal this dictum applies equally to the Iron Rhine railway.
[320] The domestic law authorities are discussed by Mark Bradley in “The Ambulatory Approach at the Bottom of the Cliff: Can the Courts Correct Parliament’s Failure to Update Legislation?” (2003) 9 Canta LR 1. He properly warns against judicial intrusion into Parliamentary territory. But the judicial contribution to lawmaking extends to construction of legislation. In this case Parliament’s direction in s 6 of the Interpretation Act, that changed circumstances should receive recognition, receives emphasis from its rejection of the policies underlying the legislation of which ss 124 and 6 formed part.
[321] The repeal of first the MHAA 1935 and, in 1992, the MHA 1969 evidenced a major change in the way New Zealand society views the intellectually handicapped and those with mental illness. It entailed a change of Parliamentary policy which informs the approach the Courts should adopt to ss 124 and 6 insofar as they remain in force. While the status their continued operation preserves is to be protected, that protection must be assessed according to current rather than outmoded tenets of how mental disorder should be viewed.
[322] Mental disorder is common in New Zealand. The Ministry of Health’s 2006 report Te Rau Hinengaro: The New Zealand Mental Health Survey (September 2006) reported that 46.6 per cent of the population are predicted to meet criteria for a disorder at some time in their lives, with 39.5 per cent having already done so and 20.7 per cent having a disorder in the past 12 months (at xix).
[323] The protection of the vulnerable, mentioned in passing by Lord Simon of Glaisdale at 329 of Pountney and again by Baroness Hale of Richmond in Seal at 1922, which is a facet of dignity as the basic human right, has assumed major importance. Viewed through that lens, ss 124 and 6 now assume a different perspective from when they were enacted.
[324] Such alteration of approach is now conventional in matters of human rights. In R v HM Coroner for North Humberside and Scunthorpe, ex parte Jamieson [1995] QB 1 the Court of Appeal had taken a narrow approach to the ambit of a coroner’s jurisdiction under s 11 of the Coroners Act 1988 to consider how a death had occurred. Sir Thomas Bingham MR undertook a meticulous historical examination of the legislation and, as a result, held at 24:
“how” is to be understood as meaning “by what means”. It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and far-reaching issues, but “how … the deceased came by his death,” a more limited question directed to the means by which the deceased came by his death.
Lord Bingham’s then approach was similar to that adopted in by Lord Hoffmann in the limitation context of Hoare, where the past authorities relied upon included Cartledge.
[325] But in R (Middleton) v West Somerset Coroner [2004] 2 AC 182 the House of Lords, in an opinion also delivered by Lord Bingham, took a very different approach and departed from prior authorities. It held that the approach in Jamieson is not sufficient to discharge the United Kingdom’s obligation under the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) to hold an investigation which will encompass the possibility that failures of public authorities contributed to the death. Middleton held that in an investigation required by art 2 of the European Convention (right to life) “how” the deceased died means “by what means and in what circumstances”. This was consistent with the decision of the European Court of Human Rights in McCann v United Kingdom (1995) 21 EHHR 97 which held that art 2 requires that, when a person has been killed by the use of force by state agents, there be an effective official investigation. This is the procedural element of the state’s obligation under art 2. So outmoded English law has been brought into line with New Zealand law: see Re Hendrie HC CHCH CP 445/87 12 January 1988.
[326] The fundamental principle was stated by Lord Hoffmann in R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 at 131:
Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights … . The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.
(Emphasis added.)
It is of equal application in New Zealand. As was suggested in Baragwanath “The Dynamics of the Common Law” (1987) 6 Otago LR 355 at 367, while the true will of the electorate as expressed through its delegates in Parliament in legislation is determinative:
The process is like that of a spring: as the Crown attempts to depress the court’s powers of constitutional balance the court’s resistance increases progressively …
[327] It is therefore the function of the Court to devise and adapt procedures that will achieve the result later described in [340] - [341] in a practical and just fashion.
[328] In Pountney in the Court of Appeal, Lord Widgery CJ at 319 formulated three categories of case:
a)where a nurse uses no more force than is reasonably necessary (ie no wrong);
b)where the nurse uses more force than needed while acting in pursuance or intended pursuance of the Act (protected by bar);
c)where force is used unrelated to nursing, as where the nurse lies in wait for a patient in order to have revenge for some supposed grievance.
But he did not descend to the detail of who must prove what, and how. On appeal, the House of Lords upheld Lord Widgery CJ’s approach but did not expressly approve these categories (at 336).
[329] The same rubric “unless the person has acted in bad faith or without reasonable care” appears in both subs (1) of s 124, which expresses the circumstances in which a claim is not excluded, and subs (2) which prohibits the grant of leave unless substantial ground for such contention is established.
[330] The Crown correctly contends that the presence in subs (2) of the phrase “unless the person has acted in bad faith or without reasonable care” means that at least some cases will require leave where bad faith or lack of reasonable care exist: that only after the determination of the leave application is “the case” allowed to proceed to trial to determine whether in fact the person has acted in bad faith or without reasonable care so as to come within the proviso to subs (1).
[331] As the Law Commission reasoned in the passage discussed by Glazebrook J at [39], the legislation must deal with dual motives. The administration of discipline cannot become subject to litigation because of allegations that the nurse or doctor has performed an otherwise lawful act for reasons that do not meet administrative law standards and are thus, in law, in bad faith.
[332] But the Court must not impose constraints which do not satisfy the conditions imposed upon them by Parliament. It is at this point that I find it necessary to go beyond the judgment of Glazebrook J, with whose judgment I otherwise agree.
[333] She states at [56]:
The actions or omissions, any accompanying words, the circumstances in which they allegedly occurred, and any motivation ascribed should be examined.
I respectfully agree. But the question that remains for answer is, how?
[334] Disputes must be dealt with by due process and by application of settled principle.
[335] For that reason, it is always necessary to determine whether a particular case falls within s 124 at all. The Solicitor-General argues that every case other than sex claims, which he excepts, must be the subject of an application. Hammond J’s proposal is to go further and order a stay of every proceeding by a patient concerning the conduct of the authorities for which the appellant is responsible.
[336] But to accept that argument would in my view be to assume the answer to the question whether the subject case is in fact arguably within s 124. That is to beg what in most, if not all, of the present cases will be the critical question. Indeed the Crown’s concession of exception proves the rule: there can be no principled reason to exclude sex claims as distinct from other claims which may assert equally outrageous conduct.
[337] It is for the Crown to show, on the plaintiff’s pleading or by evidence (as contemplated in McVeagh at 566), that the claim is in respect of “an … act [done] in pursuance or intended pursuance of … [the] Act”. If it can, the claim will be struck out unless application has been made.
[338] To adjudicate on whether there is an arguable “act in … intended pursuance” makes two demands on the Court:
a)One, derived from s 16 of the Judicature Act 1908, is to employ settled procedures or, if the justice of the case requires, devise modified procedures that will give effect to the whole law: both what Parliament has enacted and the underlying common law principles that must also receive effect unless there is clear expression of a contrary intent.
b)The other is to apply such procedures in order to appraise the conduct alleged.
[339] The Court must in each of these two exercises recognise both the reality of the difficulty of dealing with such patients and the policy of s 124 to require the control of leave in disputed cases. What the Crown must show and how the case should proceed in order to establish that the conduct was “in pursuance or intended pursuance of … this Act” will in the first instance depend on the plaintiff’s pleading and any Crown evidence.
Plaintiff’s pleading
[340] One begins with the statement of claim. If it alleges such conduct as is asserted in some of the present cases:
a)sexual abuse;
b)throwing a patient in the air to crash to the ground;
c)violent beating;
d)absence of toileting facilities for days;
and there is no denial, the case will fall outside the leave requirement. The Court will not impute to Parliament an intent that such conduct could be “in pursuance or intended pursuance of the [Mental Health] Act”.
[341] Equally, if no case is made by the plaintiff that the claim falls outside the leave requirement, it will be been struck out, as has already occurred with a number of claims.
Defendant’s pleading
[342] If the defendant’s pleading asserts, with whatever particularity is appropriate to the circumstances, that the case falls within s 124 (or s 6), and if nothing more occurs, the case will be struck out because leave under the section has not been sought.
[343] Where the defence is a denial that the episode occurred, that should be made plain. Rule 4 of the High Court Rules requires the rules to be so construed as to secure the just, speedy and inexpensive determination of any proceeding interlocutory application. Rule 130 states:
130 Requirements as to statement of defence
(1) The statement of defence shall either admit or deny the allegations of fact in the statement of claim but no defendant shall be required to plead to an allegation that does not affect him.
(2) Where the defendant denies any allegation of fact in the statement of claim he must not do so evasively but must answer the point in substance. Thus … when a matter is alleged with circumstances it shall not be sufficient to deny it as alleged with those circumstances, but a fair and substantial answer must be given.
In Solicitor-General v Miss Alice [2007] 2 NZLR 783, a full Court of the High Court stated of the obligations of the Crown:
[42] It is the constitutional role of the state, represented by the Crown, to safeguard and promote the interests of its citizens. It has no other justification.
Those citizens include mental health patients, who are among the most vulnerable members of the community. As the argument before us demonstrated, the Crown as defendant, like the Court, will take care to ensure that plaintiffs in such cases are treated fairly. That will include meticulous compliance with r 130.
Adapt or devise procedures
[344] It is at this point the Court should, in my view, consider whether to adapt or devise procedures that will give effect to both important interests recognised by ss 124 and 6.
[345] Other members of the Court consider that, had Parliament contemplated such specific procedures, it would have provided expressly for them. My own experience is that Parliament does not concern itself with matters of such fine detail and leaves them to the judiciary or, where necessary, the Rules Committee to resolve. As Jeremy Bentham observed in his Theory of Legislation (Etienne Dumont ed translated and edited by CM Atkinson, 1914) at 62, cited in Chief Executive of the Department of Labour v Yadegary [2008] NZCA 275 at [33]):
… the legislator, who cannot pass judgment in particular cases, will give directions to the tribunal in the form of general rules, and leave them with a certain amount of latitude in order that they may adjust their decision to the special circumstances.
[346] It is ultimately the responsibility of the High Court to devise procedures that will do justice in the particular case. In McKnight v Davis [1968] NZLR 1164 at 1170, Turner J stated for this Court:
But we think that the Court must always be the master of its own procedure, and must when necessary use its inherent jurisdiction to ensure that justice is done. Due inquiry for the truth is not to be stifled by outmoded procedural restrictions.
The suggestions that follow are made with that in mind.
[347] Other members of the Court propose recourse to conventional strike out procedures. But as is shown by Couch v Attorney-General [2008] NZSC 45, those have proved an insufficiently refined procedure for dealing with issues of subtlety or complexity, with which the present cases abound.
[348] Another option is a preliminary issue on the topic of whether the case is one requiring leave. But the considerations advanced by Hammond J raise the concern that such a course is inconsistent with the statutory procedures of s 124. Implicit in that course is a proceeding otherwise than by the application prescribed by s 124, in order to determine whether the claim may proceed. Such course would infringe the code of s 124.
[349] It may be retorted that the preliminary issue is not determining any issue for which Parliament has said that application is to be made, but a different preparatory question. There is force in the point, but the distinction is subtle. Indeed the reasons for the decisions in Pountney may include a proper reluctance of the English courts to risk collision with Parliamentary policy.
Direct plaintiff to advance case on oath
[350] It may therefore be tidier for the Judge seized of a case or series of cases to devise an alternative procedure. It is open to the High Court as a matter of case management to clear away meritless claims simply by directing the plaintiff to provide on oath particulars of the claim and the evidence supporting it. Or the plaintiff might anticipate or respond to a strike-out application by seeking directions proposing such a procedure. That is indeed analogous to the course to be adopted in the pending reform of District Court procedures. Failure by a plaintiff to conform with such directions would result in dismissal of the claim.
[351] If however the plaintiff were to go on oath to assert facts of the kind listed in [340] and there was no defence affidavit, there is nothing to establish a defence that the conduct was “in pursuance or intended pursuance”. Indeed (subject to other defences such as the Limitation Act) summary judgment on liability might be justified.
Consequences of defence affidavit
[352] If the defendant filed an affidavit that established the existence of an issue the Court would have to make a judicial evaluation. Its options would be:
a)Strike out the claim as brought without leave;
b)Adopt the course frequently seen in summary judgment litigation of rejecting the case of one side or the other in accordance with the judgment in Eng Mee Yong v V Letchumanan s/o Velayutham [1980] AC 331 (PC);
c)Order trial of an issue whether leave is required; or
d)In an exceptional case, allow the case to go to trial to allow facts to be found in order to determine whether the absence of leave is fatal.
Result
[353] I would allow the appeals and direct that the cases be dealt with by the High Court in the manner summarised at [291] above.
Solicitors:
Crown Law Office, Wellington
Johnston Lawrence, Wellington for First Respondent in CA173/07 and
Appellant in CA149/07 and CA376/07
Sonja M Cooper, Wellington for Second Respondents in CA173/07 and
Appellants in CA150/07 and CA383/07APPENDIX I: STATUTORY PROVISIONS
Mental Health Act 1969
124.Protection of persons acting under authority of Act –
(1)Neither the Crown nor any person who does any act in pursuance or intended pursuance of any of the provisions of this Act shall be under any civil or criminal liability in respect of any such act, whether on the ground of want of jurisdiction, or mistake of law or fact, or any other ground, unless the person has acted in bad faith or without reasonable care.
(2)No proceedings, civil or criminal, shall be brought against the Crown or any person in any Court in respect of any such act except by leave of a Judge of the [High Court]. Such leave shall not be given unless the Judge is satisfied that there is substantial ground for the contention that the person in respect of whose act or omission it is sought to bring the proceedings has acted in bad faith or without reasonable care.
(3)Notice of any application under subsection (2) of this section shall be given to the party against whom it is sought to bring the proceedings, and that party shall be entitled to be heard against the application.
(4)Leave to bring such proceedings shall not be granted unless application for such leave is made within six months after the act complained of, or, in the case of a continuance of injury or damage, within six months after the ceasing of such injury or damage:
Provided that in estimating the said period of six months no account shall be taken of any time or times during which the person injured was detained, whether lawfully or unlawfully, as a mentally disordered person, or was ignorant of the facts that constitute the cause of action, or of any time or times during which any defendant was out of New Zealand.
(5)In granting leave to bring any proceedings as aforesaid, the Judge may limit the time within which such leave may be exercised.
(6)No claim or demand or action for damages in respect of any wrongful act or default committed by any person at any time during his absence on leave from any hospital or house in which he has been a patient under this Act, or at any time after his discharge therefrom, shall be made or brought against the Crown or against any person acting under the authority of this Act in the matter of the grant of leave of absence to or the discharge of the patient:
Provided that nothing in this subsection shall be construed to limit the provisions of the Criminal Injuries Compensation Act 1963, so far as it is applicable.
Mental Health Amendment Act 1935
6.Protection from civil or criminal liability of persons acting under authority of principal Act.
(1)A person who does any act in pursuance or intended pursuance of any of the provisions of the principal Act shall not be under any civil or criminal liability in respect thereof, whether on the ground of want of jurisdiction, or mistake of law or fact, or any other ground, unless he has acted in bad faith or without reasonable care.
(2)No proceedings, civil or criminal, shall be brought against any person in any Court in respect of any such act except by leave of a Judge of the Supreme Court, and such leave shall not be given unless the Judge is satisfied that there is substantial ground for the contention that the person against whom it is sought to bring the proceedings has acted in bad faith or without reasonable care.
(3)Notice of any application under the last preceding subsection shall be given to the person against whom it is sought to bring the proceedings, and that person shall be entitled to be heard against the application.
(4)Leave to bring such proceedings shall not be granted unless application for such leave is made within six months after the act complained of, or, in the case of a continuance of injury or damage, within six months after the ceasing of such injury or damage:
Provided that in estimating the said period of six months no account shall be taken of any time or times during the person injured was in confinement, whether lawfully or unlawfully, as a mentally defective person, or was ignorant of the facts which constitute the cause of action, or of any time or times during which the defendant was out of New Zealand.
(5)In granting leave to bring any proceedings as aforesaid, the Judge may limit the time within which such leave may be exercised.
(6)No proceedings shall be taken against any person on the ground merely that any mentally defective person was certified or detained as belonging to any one class instead of to another class.
(7)This section is in substitution for section one hundred and thirty-one of the principal Act, and that section is hereby accordingly repealed.
Mental Health Act 1911
131.
(1)A person who does any act in pursuance or intended pursuance of any of the provisions of this Act shall not be under any civil or criminal liability in respect thereof, whether on the ground of want of jurisdiction, or of mistake of law or fact, or on any other ground, if he has acted in good faith and with reasonable care.
(2)In any proceedings taken against any such person for any such act the burden of proving that he acted without good faith or without reasonable care shall lie upon the plaintiff.
(3)Any such proceedings taken against any such person for any such act may, upon application to the Court in which they are taken, be stayed if the Court is satisfied that there is no reasonable ground for alleging want of good faith or reasonable care, or that the proceedings are frivolous or vexatious.
(4)No such proceedings shall be commenced unless within six months after the act complained of, or in the case of a continuance of injury or damage, during the continuance or within six months after the ceasing thereof:
Provided that, in estimating the said period of six months so limited for the commencement of proceedings, no account shall be taken of any time or times during which the person injured was in confinement, lawfully or unlawfully, as a mentally defective person, or was ignorant of the facts which constitute the cause of action, or during which the defendant was out of New Zealand.
(5)Nothing in this section shall be so construed as to deprive any person of any defence which he would have independently of this section.
(6)No proceedings shall be taken against any person on the ground merely that any mentally defective person was certified or detained as belonging to any one class instead of another class.
Mental Treatment Act 1930 (UK)
16.
(1)Where a person has presented a petition for a reception order, or signed or carried out, or done any act with a view to signing or carrying out, an order purporting to be a reception order or any report, application, recommendation, or certificate purporting to be a report, application, recommendation, or certificate under this Act, or any Act amending this Act, or has done anything in pursuance of this Act, or any Act amending this Act, he shall not be liable to any civil or criminal proceedings whether on the ground of want of jurisdiction or on any other ground unless he has acted in bad faith or without reasonable care.
(2)No proceedings, civil or criminal, shall be brought against any person in any court in respect of any such matter as is mentioned in the last preceding subsection, without the leave of the High Court, and leave shall not be given unless the court is satisfied that there is substantial ground for the contention that the person, against whom it is sought to bring the proceedings, has acted in bad faith or without reasonable care.
(3)Notice of any application under the last preceding subsection shall be given to the person against whom it is sought to bring the proceedings, and that person shall be entitled to be heard against the application.
(4)Where on an application under this section leave is given to bring any proceedings, and the proceedings are commenced within four weeks after the date on which leave was so given, the proceedings shall for the purposes of the Public Authorities Protection Act, 1893, be deemed to have been commenced on the date on which notice of the application was given to the person against whom the proceedings are to be brought.
APPENDIX II: PLEADINGS
P
[1] The whole of Mr P’s claim was struck out by Associate Judge Abbott.
[2] Simon France J reinstated the following allegations:
9.1 Administered electro-convulsive therapy to the plaintiff as punishment:
9.1.1 The plaintiff was given electro-convulsive therapy on 22, 25, 27 and 29 September and 2 and 4 October 1972, and on a number of occasions, the dates of which he does not recall;
9.1.2On all but two occasions he was given no anaesthetic or muscle relaxant;
9.1.3There was no clinical reason to administer electro-convulsive therapy;
9.1.4 The plaintiff was told by a charge nurse, [], that he was being punished by the administration of electro-convulsive therapy;
9.1.5 Neither the plaintiff nor any person competent to give consent on his behalf consented to the administration of electro-convulsive therapy.
9.2Kept the plaintiff in solitary confinement:
The plaintiff was between 22 March and 1 August 1972, between 19 September and 24 October 1972, and between 2 and 16 February 1973 confined in a locked room as a punishment.
9.3 Assaulted and/or battered the plaintiff:
9.3.1 On dates which the plaintiff does not now recall nurses threatened to give the plaintiff electro-convulsive therapy or medication as punishment;
9.3.2 On one occasion when the plaintiff was a patient in Craig A Ward, a male nurse named [] punched the plaintiff repeatedly with his fists, and then kicked the plaintiff while he was lying on the floor;
9.3.3 On one occasion when the plaintiff was in solitary confinement in Craig A Ward, a male nurse named [] hit him with a bunch of keys.
33.1Kept plaintiff in solitary confinement.
33.1.1 The plaintiff was on or about 27 December 1975, between 1 and 3 January 1976, on or about 8 January 1976 and on other occasions, the dates of which he does not recall, confined in a locked room in Villa 8 as punishment;
33.1.2.1Left in complete darkness;
33.1.2.2Provided with no bed or bedding other than a mattress and one blanket;
33.1.2.3Not permitted to wear any clothing other than a pair of underpants;
33.1.2.4Was given no food in the evening;
33.1.2.5Was permitted to leave the room only to go to the bathroom or toilet, and then only in the company of a member of the staff.
33.2 Assaulted and battered the plaintiff or permitted members of its staff to assault and batter him.
33.2.1 On or about 17 December 1975 two male nurses, named [], dragged the plaintiff by the hair and neck up a flight of stairs to a seclusion room in Villa 8; and there gave him an injection of paraldehyde as punishment;
33.2.2 On various occasions, the dates of which the plaintiff does not now know, Dr [] and male nurses threatened to give the plaintiff electro-convulsive therapy or place him in solitary confinement as punishment;
33.2.3 On several occasions (the dates of which the plaintiff does not know) while the plaintiff was in the open ward, he was punched by male nurses.
B
[1] The allegations not struck out by Associate Judge Abbott or Simon France J are as follows:
27. On dates that the first plaintiff does not now recall, but which were probably between 4 April 1972 and 13 April 1972 when the first plaintiff was in seclusion, he was beaten by staff nurses who would wrap towels around their fists and hit the first plaintiff on the body.
28. On a date that the first plaintiff does not now recall, the plaintiff was punched by a staff nurse, [], in the side of the head and then dragged by staff nurse [] to a room. Thereafter, staff nurse [] and other staff nurses beat the first plaintiff until he was unconscious.
29. On dates that the first plaintiff does not now recall he was beaten by staff nurses, [] and a staff nurse with the first name [].
30. On dates that the first plaintiff does not now recall, he was hit on the back of the head by the nurses’ keys.
33. On dates that the first plaintiff does not now recall, he would be agitated by nursing staff to pick a fight with other patients.
[2] The allegations struck out by Associate Judge Abbott, but reinstated by Simon France J are:
47. On about 20 May 1971, August 1971, 4 April, 13 April 1972 and other dates that the first plaintiff does not now recall he was locked alone in a dirty, dark and unheated room for various periods of a day or more, often as punishment.
48. During some of these periods, he would be left in a cell, naked and with just a mattress on the floor, and would be deprived of toileting facilities.
49. The first plaintiff was often physically restrained by staff and administered injections of sedative drugs such a fluphenazine before being taken to solitary confinement.
50. On about 20 May 1971, the first plaintiff was grabbed by a staff nurse around the neck and hit two or three times in the stomach.
51. On the same day, that is 20 May 1971, the first plaintiff was taken to a seclusion room, grabbed around his neck, and injected with a needle into the side of his bottom as punishment.
65. On many dates, including September 1971, February 1972, September 1972 and other dates that the first plaintiff does not now recall, he was required to stay in pyjamas and was confined to the ward as punishment for misbehaviour.
66. On dates that the first plaintiff does not now recall, but which include September 1972 and September 1972, he was required to clean the ward and undertake domestic work as punishment.
67. On a date that the plaintiff does not now recall, the first plaintiff was required to clean faeces left by an adult patient off the hospital wall.
W
[1] It is worth setting out the allegations in the W claim because they contain allegations of sexual abuse.
[2] The allegations not struck out by Associate Judge Abbott or Simon France J were:
248. On dates that the sixth plaintiff does not now recall, her stepfather [], a nurse at Porirua Hospital, raped the sixth plaintiff. This occurred on many occasions.
249. On a date that the sixth plaintiff does not now recall, she was raped by another male nurse in a shed on the hospital campus.
250. On 27 July 1970, the sixth plaintiff was pushed against a wall and on to the floor by her stepfather [].
251. On dates that the sixth plaintiff does not now recall, she was pushed around by male staff nurses and hit across the head with their keys.
252. On a date that the sixth plaintiff does not now recall, she was restrained by two male nurses and a male patient so she could be administered tattoos.
255. On a date that the sixth plaintiff does not now recall, she was raped by a male nurse on the Porirua Hospital Campus.
[3] The allegations struck out by Associate Judge Abbott but reinstated by Simon France J were:
355. On dates that the sixth plaintiff does not now recall, she was locked alone in a dark, dirty and unheated room for various periods of the day or more, often as punishment.
356. During some of those periods, the sixth plaintiff would be left in a cell with a mattress and would be deprived of toileting facilities.
357. During some periods in solitary confinement, the sixth plaintiff would be denied meals.
360. On 27 July 1970, the sixth plaintiff was pushed against a wall and on to the floor by her stepfather [].
370. The sixth plaintiff was, from time to time, administered ECT as punishment for perceived misdemeanours such as escaping from Porirua Hospital.
372. On the dates that the sixth plaintiff does not now recall, but certainly in the month of August 1970, she was required to remain in pyjamas as punishment and to prevent her from attempting to leave Porirua Hospital.
APPENDIX III: CASES ON LEAVE PROVISIONS
Case Brief facts Angland v Payne [1944] NZLR 610 (SC and CA) Application under MHAA 1935 for leave to bring action for false imprisonment against police officer who apprehended respondent on warrant for purpose of examination. Flanagan v Morrison [1967] NZLR 558 (SC and CA) Application under MHAA 1935 for leave to bring action for negligence against doctor who applied for reception order and doctor who completed medical certificate to support application. Mitchell v Allen [1969] NZLR 110 Application under MHAA 1935 for leave to bring action for negligence against two doctors who completed medical certificate to support application for reception order. Commissioner of Police v Hastwell [1987] 1 NZLR 468 (CA) Application under MHA 1969 for leave to bring action for wrongful arrest and false imprisonment against police assisting in admission to hospital on application for reception order. Bravenboer v Finlayson, HC Auckland, M 1216/85, 21.5.87, Wylie J Application under MHA 1969 for leave to bring action for breach of contract, negligence, false imprisonment and malicious procurement of arrest warrant against doctor who completed medical certificate to support application for reception order and doctor’s employer. P v C, HC Palmerston North, CP 330/888, 18.10.91, Wylie J Application under MHA 1969 for leave to bring action for negligence and/or bad faith against two doctors who completed medical certificate to support application for reception order, and against hospital for wrongful detention. Attorney-General v McVeagh [1995] 1 NZLR 558 (CA) Application to strike out claim by patient for unlawful detention, negligence in placement in secure unit, and keeping him in confinement. Patterson v RHMU, HC Wellington, CP 805/92, 4.12.95, Master Thomson Application to strike out claim by estate of former patient for damages for unlawful detention, false imprisonment and unlawful issue of reception order. McInroe v Leeks, HC Wellington, CP 12/94, 2.8.96, Master Thomson Application to strike out claim by former patient for damages for unlawful detention, incorrect medication, inappropriate treatment as punishment, and treatment without consent. Patterson v RHMU, HC Wellington, CP 805/92, 22.8.96, Ellis J Application to review Master’s decision (above). M v Capital Coast Health Limited, HC Wellington, CP 70/00, 25.6.01, Durie J Claim by former patient for damages for improper admission, exposure to ECT and insulin therapy as punishment, physical abuse and confinement. M v Attorney-General, HC Wellington, CP 70/00, 25.10.02, Goddard J As above.
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