Dawson v Chief Executive, Ministry of Social Development HC Wellington CIV-2005-485-548

[2005] NZHC 191

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2005-485-548

UNDER  The Human Rights Act 1993

BETWEEN  NIGEL DAWSON Plaintiff

ANDCHIEF EXECUTIVE, MINISTRY OF SOCIAL DEVELOPMENT

Defendant

Hearing:         10 October 2005 and 4 November 2005

Appearances: Plaintiff in person

B. Keith for Defendant

Judgment:      8 November 2005 at 3.30pm

In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 3.30pm on the 8th day of November 2005.

JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

Introduction

[1]      This is an application pursuant to Rule 477 by the defendant to dismiss the plaintiff’s proceeding on the basis that it discloses no reasonable cause of action and/or otherwise is an abuse of process of the Court.   It is accepted that the application is treated as having been made by the defendant in certain memoranda filed in this proceeding, and in particular in the memorandum dated 5 September

2005.

[2]      Before me the plaintiff indicated that he opposes the application.

DAWSON V CHIEF EXECUTIVE, MINISTRY OF SOCIAL DEVELOPMENT HC WN CIV-2005-485-548 8

November 2005

[3]      In his amended Statement of Claim filed on 31 August 2005 the plaintiff seeks damages of $US13,000,000.05 against the defendant under s92M(1)(c) Human Rights Act 1993.

[4]      This provision provides for the payment of compensation for breach of Parts

1A and 2 Human Rights Act 1993 in respect of “humiliation, loss of dignity, and injury to the feelings” of the person whose rights have been found to have been breached.   Parts 1A and 2 Human Rights Act 1993 are concerned with the rights against discrimination and against sexual or racial harassment.

[5]      As best as I can tell from the plaintiff’s amended Statement of Claim, there seem to be two issues of concern to the plaintiff:

(a)      Medical Certificate Forms

[6]      The  first  issue  raised  by the  plaintiff  (appearing  in  paragraph  13  of  his amended  Statement  of  Claim) concerns  the  wording  of  forms  used  for  medical certificates  provided  in  support  of  applications  by  potential  beneficiaries  for disability payments.

[7]      Under s69C(8) Social Security Act 1964 the meaning of disability for the purpose of disability payments is that given in s21(1)(h) Human Rights Act 1993, which is:

(i)       Physical disability or impairment: (ii)      Physical illness:

(iii)     Psychiatric illness:

(iv)     Intellectual or psychological disability or impairment:

(v)      Any other loss or abnormality of psychological , physiological, or anatomical structure or function:

(vi)     Reliance on a guide dog, wheelchair, or other remedial means: (vii)         The presence in the body of organisms capable of causing illness.

[8]      The words “psychiatric illness” provided for in s21(1)(h (iii) were omitted from several editions of the medical certificate forms.  This has now been rectified, but it is this omission from the earlier editions which is the subject of the plaintiff’s complaint.   As I understand the position, the Ministry of Social Development has advised the plaintiff on a number of occasions that this omission was due simply to a clerical error.   In submissions before me counsel for the defendant confirmed this and reiterated that the defendant’s position is clearly that this was a mere unintentional oversight.  The plaintiff says he does not accept this.

(b)      Payment of disability allowance/sickness benefit to the plaintiff

[9]      The second issue which the plaintiff appears to raise (alluded to in paragraphs

17, 18 and 20 of his amended Statement of Claim) relates to the plaintiff being paid a disability allowance from 1998 to 2001.  This is referred to in a decision dated 11

February 2003 in which the Social Security Appeal Authority found against the plaintiff on a similar complaint.

[10]     Specifically, the plaintiff pleads in paragraphs 17, 18 and 20 of his amended

Statement of Claim:

17.The plaintiff never was on disability nor sickness where the medical certificate is to accompany the application.

18.The   plaintiff   considers   the   Ministry   of   Social   Development incorrectly placing, naming, calling, paying this title to be accusing the plaintiff non-compos mentis.

20.Money incorrectly paid unto the plaintiff because of this has been repaid by the plaintiff legally, in view of a differing opinion by M.S.D.

[11]     From this, it appears the plaintiff objected to having been paid the allowance in question for some or all of the period 1998-2001, and indeed he returned the payment  for  the  second  half  of  2001.    He  seems  to  link  these  payments  to  a suggestion that thereby the defendant is in some way accusing him of being “non- compos mentis”.

[12]     The defendant’s application is made under Rule 477 High Court Rules, which states:

477.      Summary stay or dismissal

Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding –

(a)  No reasonable cause of action is disclosed; or

(b) The proceeding is frivolous or vexatious; or

(c)  The proceeding is an abuse of the process of the Court, -

the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.

[13]     As to this Rule, McGechan on Procedure notes at HR477.03:

HR477.03       No reasonable cause of action disclosed

The jurisdiction under r477(a) to dismiss has been treated as applying the same principles as under r186: Marshall Futures Ltd v Marshall  [1992] 1

NZLR 316; (1991) 3 PRNZ 200, at p 323; p 206.  The power to dismiss is to

be exercised sparingly, and only in clear cases, where it is beyond repair and so untenable that it could not succeed: Electricity Corp Ltd v Geotherm Energy Ltd [1992] 2 NZLR 641.

[14]     In addition, McGechan on Procedure at para HR477.05 notes in part:

HR477.05       Abuse of the process of the Court

This involves use by a litigant of the processes of the Court for an ulterior motive or improper purpose (so defined in Commerce Commission v Giltrap City Ltd (1997) 11 PRNZ 573 (CA), at p 579).  The separate tort of abuse of process was considered in Ullrich v Ullrich (1996) 10 PRNZ 253.

The phrase covers a variety of criticisms, including:

(1) Administrative law

Attempt to relitigate the same complaint: Fraser v Robertson [1991] 3

NZLR 257; (1991) 3 PRNZ 175(CA), where it was held that it was an abuse of  process to  raise issues that  were  so  clearly  part  of  earlier litigation that they could and ought to have been raised therein.

In Maddever v Umawera School Board of Trustees [1993] 2 NZLR 478, applications under rr186 and 477 and the Court’s inherent jurisdiction included argument that the proceedings were an abuse because the

Ombudsman had already ruled on the issues raised by the plaintiff.  The claims were struck out as it was very unlikely that any cause of action could be made out, and inconceivable that relief would be granted.

[15]     I need to say at the outset that there can be no doubt that the plaintiff Mr Dawson is passionate and committed to what he sees as a worthy cause first in issuing this proceeding, and secondly in pursuing in the past other proceedings I will mention shortly.  Before me Mr Dawson described himself as a “law advocate” and claimed that as an unemployed beneficiary he was in effect acting here as a legal advocate for all beneficiaries.  He has filed an extensive amount of material in this Court.   The present proceeding follows a protracted history in this whole matter, including approaches to the Ombudsman, and unsuccessful proceedings by the plaintiff in the Social Security Appeal Authority on 11 February 2003, in the Human Rights Appeal Tribunal in August 2004 and in this Court, all dealing with the present or related issues.  That the plaintiff holds firm beliefs about these issues cannot be doubted.  But whether those beliefs from a legal perspective might sustain a proper and tenable cause of action against the defendant is another matter.  It is that enquiry that I am required to undertake in considering the R.477 application before the Court.

No reasonable cause of action disclosed

[16]     I turn to consider the first ground for dismissal set out in R.477(a) that no reasonable cause of action is disclosed in the plaintiff’s proceeding here.

[17]     As to the plaintiff’s claim concerning the wording of the medical certificate forms outlined at paragraphs [6], [7] and [8] above, the plaintiff does not in any way identify the basis upon which the omission of the words “psychiatric illness” from these forms provides any cause of action or establishes a claim to the damages sought here.   Nor does it appear that the plaintiff in any way alleges that he or anyone else was wrongly denied a disability payment or some entitlement as a result of the omission of these words.

[18]     And, it is difficult to see, in any event, how this omission could provide the plaintiff with a cause of action in damages or for any other form of relief for the following reasons:

a)       In terms of the plaintiff’s claim under s92M of the Human Rights Act, as  I  see  it,  the  plaintiff  does  not,  and  could  not,  allege  that  the omission amounted to discrimination against him contrary to Parts 1A or 2 of that Act;

b)In addition, in my view, the omission does not amount to any other form of actionable wrong against the plaintiff; and

c)       While it is clear that the plaintiff’s proceeding is a claim for damages rather than an application for judicial review, I am satisfied that the plaintiff would not in any event, as an unaffected party, have standing to bring such an application.

[19]     Turning now to the second issue raised by the plaintiff’s Statement of Claim relating to the payment to him of a disability allowance from 1998 to 2001, the plaintiff again does not in any way identify in his pleading or otherwise a basis upon which the payment amounted to discrimination against him contrary to s92M Human Rights Act.

[20]     In addition, I am satisfied that this payment does not provide the plaintiff with a tenable cause of action here on any other basis because:

a)       The payment did not amount to any form of actionable wrong against the plaintiff.  Indeed it was a payment to his benefit; and

b)The plaintiff’s proceeding here is a claim for damages rather than an application  for  judicial  review.    In  any  event,  an  application  for judicial review of the payment would, it seems to me, be of little practical purpose, and it might be seen as an improper attempt to reopen  the  plaintiff’s  appeal  on  this  point  to  the  Social  Security

Appeal Authority, which appeal was dismissed in March 2003, and which decision the plaintiff did not seek to appeal.

[21]     In summary then, none of the concerns raised by the plaintiff in his Statement of Claim, in my view, give rise to any arguable issue under the Human Rights Act. It follows, too, that the plaintiff’s claim to damages under s92M Human Rights Act as set out in his amended Statement of Claim does not comply with Rule 108 High Court Rules, as it does not identify any tenable cause of action against the defendant providing a basis for the claim to the $US13,000,000.05 damages sought.

[22]     That  said,  I  have  no  difficulty  in  finding  that  this  proceeding  does  not disclose any “reasonable cause of action” against the defendant in terms of Rule

477(a) and that the plaintiff’s pleading, despite a number of attempts in the past to remedy deficiencies, in terms of the decision in Electricity Corp Ltd v Geotherm Energy is beyond repair and so untenable that it could not succeed.

[23]     That is enough to dispose of the defendant’s present R.477 application.  But, before me, the plaintiff endeavoured to raise a number of ancillary matters, all of which had little merit.  But for the sake of completeness, I now mention each.

[24]     The first related to an argument the plaintiff endeavoured to mount that given the omission made from the medical certificate form in question he was in some way a party to an illegal contract under the Illegal Contracts Act 1970.  Where this leads matters in terms of the plaintiff’s submissions was entirely unclear.  Suffice it to say that I reject this submission.  I am satisfied that the plaintiff could not be said to be a party to an illegal contract under the Illegal Contracts Act 1970 here and I reject any suggestion that he is entitled to compensation under a contract affected by that Act.

[25]    Secondly, as I understand submissions made to me by the plaintiff, he endeavoured to draw some linkage between medical certificates made for the purposes of the Social Security Act 1964 and certification of mentally disordered persons within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992.

[26]     Although the relevance of this here is somewhat marginal, I am satisfied, in any event, that a medical certificate or disability certificate for the purposes of the Social Security Act 1964 is not  a  certificate  provided  under  the  Mental  Health (Compulsory Assessment and Treatment) Act 1992.   Under the latter Act, an assessment is made of “mental disorder” for assessment and treatment purposes. Section 2 Mental Health (Compulsory Assessment and Treatment) Act 1992 defines “mental disorder” in the following way:

“Mental disorder” in relation to any person, means an abnormal state of mind (whether of a continuous or an intermittent nature), characterised by delusions, or by disorders of mood or perception or volition or cognition, of such a degree that it –

(a)  Poses a serious danger to the health or safety of that person or of others; or

(b) Seriously diminishes the capacity of that person to take care of himself or herself; -

and   “mentally   disordered”,   in   relation   to   any   such   person,   has   a corresponding meaning.

[27]     Significantly, this definition is only concerned with disorders of the mind which have a serious quality.   Although there are some similarities between this definition and that contained in the Human Rights Act 1993, there is a significant disconnection between issues of disability for the purposes of the Social Security Act

1964  and  for  the  purposes  of  the  Mental  Health  (Compulsory  Assessment  and

Treatment) Act 1992.

[28]     That said, the plaintiff’s argument on this point, which as best as I can tell, appears to be based on a mistaken belief that the grant of a disability allowance under s69C(2) Social Security Act 1964 which refers to a person eligible for a disability allowance as requiring “ongoing support to undertake the normal functions of life” or “ongoing supervision or treatment” also entails a finding of mental disorder.  Further, and in any event, as I see it, the claim does not give rise to any issue under the Human Rights Act.

[29]     The third additional assertion made by the plaintiff before me was that in terms of 8(1) Juries Act 1981, recipients of invalid’s, sickness and disability benefits are thereby disqualified from serving on juries.   According to the plaintiff, this is

because they must be regarded as mentally disordered persons within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992.  In my view, this assertion is simply wrong.  As I have noted in paragraphs [22], [23], [24] and [25] above it is based upon a misunderstanding as to the provisions of the relevant legislation.

[30]     And finally before me the plaintiff endeavoured to raise an issue concerning grants of sickness benefits to pregnant women.  As I understand his argument here, it was that the grant of sickness benefits to women who were unable to obtain work by reason of pregnancy amounted to discrimination on the grounds of sex.

[31]     Although it is difficult to tell where this claim might fall within the plaintiff’s Statement  of  Claim,  nevertheless  for  the  sake  of  completeness,  I  note  several matters:

(1) Theclaim appears to be quite unrelated to the plaintiff’s claim for damages for loss suffered personally by him as noted in his Statement of Claim.

(2) The plaintiff  has  not  established  that  he  has  been  in  any  way disadvantaged by the grant of sickness benefits to pregnant women who are unable to obtain work.

(3) In any event, as I see it, the grant of sickness benefits to pregnant women who are unable to obtain work cannot be considered as discriminatory, not least because it is based not upon the fact of their pregnancy but rather on the recipient’s inability to obtain work due to pregnancy, sickness, injury or disability.

Proceeding is an abuse of process of the Court

[32]     To  complete  matters,  I  turn  now  to  the  defendant’s  application  under

R.477(c).

[33]     This case has  a protracted and  complex  history.   I am satisfied that the plaintiff has been given repeated opportunities in both the Human Rights Review Tribunal,  Social  Security Appeal  Authority,  and  in  the  High  Court  to  file  new documents to clarify his claims and concerns, and on many occasions he has been advised in this Court to seek appropriate legal assistance.

[34]     It is clear that any claim for compensation under the Human Rights Act must be commenced by way of complaint to the Human Rights Commission and proceedings before the Human Rights Review Tribunal in terms of s92B(1) Human Rights Act.

[35]     Some time ago the plaintiff brought such proceedings, but these were struck out in August 2004, and an appeal to this Court was declined as out of time in December 2004.

[36]   The first occasion upon which the plaintiff claimed $US13,000,000.05 compensation over payment of the disability allowance and over the wording of the disability application forms was an appeal to the Social Security Appeal Authority which was dismissed on 11 February 2003.

[37]     As I have noted, the plaintiff then brought proceedings through the Human Rights Appeal Tribunal claiming a similar sum in damages which culminated in a strike out decision of that Tribunal made in August 2004.

[38]     In November 2004 the plaintiff endeavoured to appeal to this Court that

Human Rights Review Tribunal decision, but this appeal was dismissed in December

2004 by Justice MacKenzie as being out of time.

[39]     I  am  satisfied  that  the  present  proceeding  is  in  substance  an  attempt  to relitigate the Social Security Appeal Authority and the Human Rights Review Tribunal decisions, and the decision of this Court to dismiss the plaintiff’s appeal from the Tribunal.   The deficiencies and inappropriateness of the plaintiff’s claim were noted in both the Authority and Tribunal decisions.  It is clear that they have also been raised with the plaintiff in this Court.

[40]     Moreover, as I have noted above, the issues raised by the plaintiff in his Statement of Claim could not, however, reformulated establish a tenable cause of action for damages against the defendant or otherwise.

[41]     The plaintiff has been given a number of opportunities in the past to re-plead his Statement of Claim.  I am satisfied that the deficiencies cannot be cured by any re-pleading here.

[42]     I find that, for the reasons noted above, the plaintiff’s proceeding is also an abuse of process of the Court in the sense that it is an attempt to relitigate the same complaints which have already been ruled upon in the sense noted in Maddever v Umawera School Board of Trustees.

Conclusion

[43]     It will be apparent from what I have noted above that, in my view, it is appropriate here for the plaintiff’s proceeding to be dismissed pursuant to Rule

477(a) and (c) on the basis both that it discloses no reasonable cause of action, and also that it is an abuse of the process of the Court.

[44]   An order is now made pursuant to Rule 477 dismissing the plaintiff’s proceeding.

[45]     One additional matter requires consideration.  Before me the plaintiff sought an order suppressing the names of all parties to this proceeding.  As I see it, there is no basis for any suppression order to be made and this application by the plaintiff fails.

[46]     As to costs, counsel for the defendant indicated before me that the defendant was not seeking an order for costs against the plaintiff.

[47]     Costs are to lie where they fall.

Associate Judge D.I. Gendall

Solicitors:

Crown Law Office, Wellington for Defendant