Dunn v Accident Compensation Corporation

[2025] NZHC 2189

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-593 [2025] NZHC 2189

UNDER  the Human Rights Act 1993

IN THE MATTER             of an appeal under s 123 of the Human

Rights Act 1993

BETWEEN  TROY DUNN

Appellant

ANDACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:                   24 February 2025 Appearances:  Appellant in Person (via VMR)

R L Roff for Respondent

Judgment:                6 August 2025

JUDGMENT OF McQUEEN J

Introduction

[1]    Mr  Dunn  appeals  a  decision  of  the  Human  Rights  Review  Tribunal  (the Tribunal) striking out his claim for damages and declarations that the Accident Compensation Corporation (ACC) has victimised him in breach of s 66 of the Human Rights Act 1993 when he was exercising his rights to take steps to obtain his full ACC entitlement. The Tribunal struck out Mr Dunn’s claim because it found that Mr Dunn’s claim disclosed no reasonable cause of action (the Tribunal Decision).1

1      Dunn v Accident Compensation Corporation [2024] NZHRRT 41 (Decision under appeal).

DUNN v ACCIDENT COMPENSATION CORPORATION [2025] NZHC 2189 [6 August 2025]

[2]    On appeal, Mr Dunn argues that there is a reasonable cause of action for discrimination and victimisation, the Tribunal breached natural justice in its decision, his claim is not an abuse of process, and the Tribunal has jurisdiction to hear his claim.

[3]    ACC opposes the appeal, saying the Tribunal correctly determined Mr Dunn’s claim discloses no reasonable cause of action and properly invoked its discretion pursuant to s 115A of the Human Rights Act to strike the claim out.

[4]For the reasons that follow, the appeal is dismissed.

Background

[5]    The Tribunal Decision conveniently outlines the background to Mr Dunn’s claim as follows:2

[5]To understand Mr Dunn’s claim some further background on the unhappy interaction between him and ACC and the nature of Mr Dunn’s allegations of victimisation are needed.

[6]Mr Dunn had an accident on 16 April 2013, injuring his back. Thereafter, at different times Mr Dunn received ACC entitlements, had those entitlements suspended and, in some instances, had those suspensions overturned.

[7]ACC first granted Mr Dunn cover for treatment and rehabilitation under the Accident Compensation Act 2001 (ACC Act) but, in July 2013, declined him entitlement to weekly compensation. On 13 August 2013 Mr Dunn applied to review ACC’s decision under Part 5 of the ACC Act and the decision to decline his entitlement to weekly compensation was overturned on 26 September 2013.

[8]ACC did, however, suspend Mr Dunn’s entitlement to weekly compensation in August 2014 on the basis that he was ready to return to his pre-injury employment. On 10 September 2014 Mr Dunn lodged a complaint about the timeliness of ACC’s actions, the inadequacies of a particular report, and ACC’s lack of transparency. On 13 October 2014 Mr Dunn applied to review ACC’s suspension decision and, in December 2014, the decision was upheld. Mr Dunn then appealed the review decision to the District Court. In May 2017 ACC agreed to overturn the suspension decision and  Mr  Dunn  withdrew  his District Court appeal.

[9]Subsequently, on 12 January 2018, Mr Dunn and ACC agreed an individual rehabilitation plan under Part 4 of the ACC Act (Rehabilitation Plan). That plan provided that further vocational

2      Decision under appeal, above n 1 (footnotes omitted).

rehabilitation for Mr Dunn was not required and noted that he had obtained full time work.

[10]On 19 January 2018 ACC decided Mr Dunn’s vocational independence was complete and declined to provide him further vocational rehabilitation. On 23 January 2018 Mr Dunn applied to review ACC’s

19 January 2018 decision and also ACC’s implementation of the Rehabilitation Plan.

[11]On 6 May 2018 Mr Dunn lodged a complaint with ACC in respect of various matters, principally that ACC had assigned a particular manager to his case, that ACC did not listen to him and dismissed his opinions, and that pressure was applied to him to comply with ACC directions.

[12]On 3 September 2018 Mr Dunn’s review application in relation to ACC’s implementation of the Rehabilitation Plan was dismissed on the basis his vocational rehabilitation was complete.

[13]In December 2018 Mr Dunn appealed ACC’s 3 September 2018 review decision to the District Court.

[14]On 18 January 2019 ACC again suspended Mr Dunn’s entitlement to weekly compensation.

[15]In April 2020 Mr Dunn and ACC attended mediation in respect  of  Mr Dunn’s ACC entitlements. On 29 May 2020 Mr Dunn’s then counsel emailed ACC noting that Mr Dunn had not heard from ACC since the mediation.

[16]In a letter dated 24 June 2021 ACC notified Mr Dunn it had revoked the Rehabilitation Plan, revoked its 18 January 2019 suspension decision and reinstated his weekly compensation payments back to January 2019.

[17]On 22 November 2021 Mr Dunn lodged a complaint  with  the  Human Rights Commission. The Commission did not notify ACC of the complaint. The Commission subsequently advised the Tribunal that it declined to offer mediation due to a lack of information pointing to victimisation under s 66 of the [Human Rights Act 1993 (HRA)].

[18]On 14 July 2022 Mr Dunn filed this claim in [the] Tribunal.

[19]On 16  November  2022,  ACC  filed  an  application  to  strike  out Mr Dunn’s claim. On the same day Mr Dunn filed a notice opposing the strike out application and, on 22 November 2022, Mr Dunn filed an amended statement of claim. Both parties have made submissions in relation to the strike out application on the basis of Mr Dunn’s amended statement of claim of 22 November 2022.

[6]    In a memorandum filed after receipt of the submissions for ACC on this appeal, Mr Dunn disputed that these facts are accurate, suggesting they were misleading for this Court and provide no context for decisions made by ACC. Mr Dunn sought to clarify these matters at the hearing, but the short point is that what is relevant for the

present appeal is Mr Dunn’s amended statement of claim. The extract from the Tribunal Decision set out above remains  a useful  overview  of the background to Mr Dunn’s appeal.

The Tribunal Decision

[7]    Before the Tribunal, ACC advanced its application to strike out on the grounds that Mr Dunn’s claim raised no reasonable cause of action and was an abuse of process.

[8]    As recorded above, Mr Dunn filed a notice of opposition to the strike out application and then an amended statement of claim. The Tribunal received written submissions from ACC and Mr Dunn then determined the application for strike out on the papers.

[9]The Tribunal Decision describes Mr Dunn’s claim as follows:

[20]      Mr Dunn alleges ACC subjected him to victimisation in breach of s 66 of the [HRA] in respect of him exercising what he describes as his ‘protected rights’, being his rights to seek reviews of ACC decisions under Part 5 of the ACC Act and make complaints under the Code of ACC Claimants’ Rights (Code).

[21]      The particular actions which Mr Dunn describes as the exercise of his ‘protected rights’ are:

[21.1] His application to consider eligibility for ACC cover based on a medical Certificate dated 5 July 2013.

[21.2] His ACC review application dated 13 August 2013.

[21.3] His email complaint to ACC, dated 22 August 2013, regarding ACC not providing cover and delays.

[21.4] His ACC complaint dated 10 September 2013.

[21.5]   His ACC review application dated 13 October 2014.

[21.6]   His ACC review application dated 23 January 2018.

[21.7] His ACC complaint dated 6 May 2018.

[22] Mr Dunn’s claim (comprising 81 pages with 329 pages of appendices) breaks down each of his allegations of victimisation into the identification of his ‘protected rights’ (being those actions he took which he says give rise to the claims of victimisation, as described at [21] above), a discussion of the

unfavourable treatment he alleges arose from the exercise of those protected rights and an analysis of how he says he was treated differently to others in the same or similar circumstances, as a result of exercising his ‘protected rights’.

[23]      Explaining his claim of victimisation, on the fourth page of his claim Mr Dunn says:

ACC’s “Client Legislative Rights and Responsibilities” Policy’s purpose is to ensure the Client (or Claimants) legislation rights and legal entitlements are in general, protected and adhered to.

Specifically, Section 15.0 “Guidelines to Human Rights Issues” states “All legislation and civil practice, including our case management processes, must comply with the public law rights contained in the [HRA]. You must be sufficiently familiar with this legislation to ensure that you comply with it.

In the “Client Legislative Rights and Responsibilities” Policy section 15 above, ACC plainly and clearly references three items to the [HRA].

ACC state in this Policy that “All legislation…must comply with the public law rights contained in the [HRA]. Plainly by “legislation” means the ACC Act. ACC are plainly and clearly referencing the ACC Act to the [HRA].

…

Therefore, by reference to the [HRA] any victimisation of the person asserting the above ACC legislated rights actions (e.g. lodging a review or cover rights) would make it unlawful for ACC to victimise the Client/Claimant, as per s 66(1)(a)(v), against these ACC legislated rights actions.

ACC have made a deliberate, direct, and specific connection by the above reference to the [HRA] to underpin their Clients ACC rights, legislated in the ACC Act (e.g., right to review, etc), to their Human Rights. This clear, deliberate, and direct reference to the [HRA] meets the requirements of s 66(1)(a)(v)…

[24]On the fifth page of his claim Mr Dunn says:

[Section] 66(1)(a)(v) does not specify which party needs to reference the [HRA] to engage the clause and make these actions unlawful to be victimised against. The requirement of the s 66(1)(a)(v) clause is that one party must have referenced actions to the [HRA] to ensure it is unlawful to be victimised against these [HRA] referenced actions…

(footnotes omitted)

[10]   The Tribunal then identified that its power to strike out a claim is contained in s 115A of the Human Rights Act. That section provides, relevantly:

115A Tribunal may strike out, determine, or adjourn proceedings

(1)The Tribunal may strike out, in whole or in part, a proceeding if satisfied that it—

(a)discloses no reasonable cause of action; or

(b)is likely to cause prejudice or delay; or

(c)is frivolous or vexatious; or

(d)is otherwise an abuse of process.

[11]   The Tribunal outlined the following principles in relation to striking out a claim where there is no reasonable cause of action:

[27.1] Pleaded facts, whether or not admitted, are assumed to be true.3 However, where the factual allegations are plainly incorrect it is not appropriate to assume their truth and a court or tribunal is not required to assume the correctness of factual allegations obviously put forward without any foundation.4

[27.2] The cause of action or defence must  be  clearly  untenable.5  In  Couch v Attorney-General, Elias CJ and Anderson J said: “It is inappropriate to strike out a claim summarily unless the court can be certain that it cannot succeed.”6

[27.3] The jurisdiction is to be exercised sparingly, and only in clear cases. This reflects the Court’s reluctance to terminate a claim or defence short of trial. Nevertheless, the cautious approach to striking out a claim needs to be balanced against the desirability of freeing defendants from the burden of litigation which is groundless.7

[12]   The Tribunal considered whether Mr Dunn’s claim disclosed a reasonable cause of action by examining Mr Dunn’s sole cause of action, being victimisation under s 66 of the Human Rights Act. That section relevantly provides:

3      Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267.

4      See Collier v Panckhurst CA136/97, 6 September 1999 at [19].

5      Attorney-General v Prince and Gardner, above n 3, at 267.

6      Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].

7      Parohinog v Yellow Pages Group Ltd [2015] NZHRRT 14 at [22]–[28].

66 Victimisation of whistleblower or person making use of rights prohibited

(1)It is unlawful for any person (A) to treat, or threaten to treat, another person (B) less favourably than A would treat other persons in the same or substantially similar circumstances because—

(a)B (or a relative or associate of B)—

(i)   intends to make, or has made, use of their rights under this Act; or

(ii)     has encouraged another person to make use of their rights, or has promoted the rights of another person, under this Act; or

(iii)   has given information in support of, or relating to, any complaint, investigation, or proceeding under this Act; or

(iv)    has declined to do an act that would contravene this Act; or

(v)   has otherwise done anything under or by reference to this Act; or

(b)A believes or suspects that B (or a relative or associate of B) intends to do, or has done, anything mentioned  in  paragraph (a).

[13]   The Tribunal recorded ACC’s submission that the elements for victimisation under the Human Rights Act are not made out. ACC submitted:

[31.1] Mr Dunn’s claim  is flawed because there is no connection between the alleged victimisation and the HRA. There is no suggestion that Mr Dunn exercised or intended to exercise or assert any rights under or by reference to the HRA prior to the alleged victimisation taking place.

[31.2] Mr Dunn’s argument that the mere mention of or “reference” to the HRA in ACC internal policy documents provides the necessary connection to the HRA to bring him within the ambit of s 66(1)(a)(v) is untenable.

[31.3] The suggestion that s 66(1)(a)(v) would be engaged when a perpetrator of alleged  victimisation  mentions  the  HRA  is  not  correct.  Mr Dunn’s contention that s 66(1)(a)(v) only requires one party to have referenced actions to the HRA is also not correct. For HRA victimisation to be actionable under s 66(1)(a)(v) it is plainly the alleged victim’s acts and/or intentions that are to be “under or by reference to” the HRA, not those of the alleged perpetrator.

[14]The Tribunal recorded that Mr Dunn submitted in response:

[32.1] ACC’s internal policies relating to the handling of claims specifically provide that ACC case management processes must comply with the public

law rights including those contained in the HRA. The ACC Code of Conduct also provides a requirement to treat others without discrimination or harassment and to act in accordance with the HRA and other relevant legislation.

[32.2] Section 66(1)(a)(v) does not state how many parties can make the “reference” as required by the HRA. It would be reasonably arguable that only one party must make reference to the [HRA] under s 66(1)(a)(v). The “reference to the HRA in two internal ACC policy documents provides the necessary connection to the HRA to bring the alleged victimisation within the ambit of s 66(1)(a)(v).

[32.3] In addition, s 66(1)(a)(v) is engaged if, in exercising his protected rights, Mr Dunn is treated less favourably and differently to others who have exercised a protected right and that amounts to “discrimination by way of victimisation”.

[32.4] ACC had knowledge of actions under or by reference to the HRA by reason of Mr Dunn’s exercise of his protected rights. ACC’s clear, deliberate and direct references to the HRA in its policy documents meet the requirements of s 66(1)(a)(v), so that his victimisation claim can proceed.

[33]     Mr Dunn acknowledges that if the s 66(1)(a)(v) HRA requirement of a link or connection between him exercising his ACC legislated rights for rehabilitation services “by reference to” the HRA cannot be established on the basis advanced by him then “all causes of action for victimisation would in all likelihood fall over”.

(footnotes omitted)

[15]   The Tribunal described its task as to consider (assuming the pleaded facts are true) whether the elements required for a consideration of the alleged victimisation under s 66 are present.

[16]   The Tribunal referred to caselaw confirming that for victimisation under s 66 there must be a link between a person exercising (or intending to exercise) rights under or by reference to the Human Rights Act and the action alleged to be victimisation of that person.8 The Tribunal referred to this Court’s decision in Fehling v Appleby as it considered s 66(1)(a)(v).9 Fehling makes it clear that the exercise of rights or the taking of actions must be under, or by reference to, the Human Rights Act and not under any other statute.10 The Court said:11

8      Rossi v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZHRRT 18 at [37]–[38]; and Fehling v Appleby [2014] NZHRRT 24 at [45].

9      Fehling v Appleby [2015] NZHC 75, [2015] NZAR 547.

10     Fehling v Appleby, above n 9, at [64].

11     At [64] (footnotes omitted).

… I am prepared to accept (for [argument’s] sake) that Mr Fehling may have been treated less favourably by Mr Appleby because of his Privacy Act complaint, but I do not accept that Privacy Act victimisation per se engages  s 66(1)(a)(v). That section stipulates that it shall be unlawful to treat any person less favourably than he or she would treat other persons on the ground that he or she has “done anything under or by reference to this Act.” Plainly the reference to “this Act” means the [Human Rights Act]. While “by reference to” means something broader than “under”, there must be a logical connection to the prohibited grounds of discrimination, being the focal point of Part 2. Conversely, there is no obvious reason to expand the reference to “this Act” to include anything done by reference to the Privacy Act which is not concerned with prohibited grounds of discrimination and which provides its own broad scheme of relief in relation to privacy rights infringements…

[17]   The Tribunal stated that knowledge on a defendant’s part that a person intends to take action or do anything under the Human Rights Act is necessary to establish liability for victimisation.12

[18]   The Tribunal concluded that for s 66(1)(a)(v) to be engaged there must be one of a prescribed number of actions by the person making a claim of victimisation. A reference to a need to comply with legislation in the policy documents of an alleged perpetrator of victimisation could not be equated with the alleged victim having done anything under or by reference to the Human Rights Act. Therefore, the Tribunal concluded that Mr Dunn’s submission, that the mere mention of the Human Rights Act in internal ACC policy documents or the Code of Conduct provides the necessary connection to an action taken under or by reference to the Human Rights Act, is not supported by the statutory language. The actions taken by Mr Dunn were not actions under or by reference to the Human Rights Act, rather they were under or by reference to the Accident Compensation Act.

[19]   The Tribunal rejected Mr Dunn’s submission that s 66 only requires one party to have “referenced actions” to the Human Rights Act to ensure unlawful victimisation. It was the victim’s acts and/or intentions that are to be “under or by reference to” the Human Rights Act, not those of the alleged perpetrator.

[20]   The Tribunal also rejected Mr Dunn’s submission that ACC had sufficient knowledge of an action under or by reference to the Human Rights Act, as required for a claim of victimisation under the Human Rights Act, as it found that Mr Dunn had

12     Harrison v Department of Technical and Further Education (1992) EOC 92-429 (NSW).

not done anything (or indicated he would do anything) under or by reference to the Human Rights Act until well after ACC had made all determinations in relation to Mr Dunn’s exercise of his ‘protected rights’.

[21]   The Tribunal was satisfied that Mr Dunn’s claim disclosed no reasonable cause of action, and therefore considered it was not necessary to address the abuse of process ground advanced by ACC.

[22]   As to whether the Tribunal had jurisdiction to hear claims relating to ACC’s decisions and/or alleged breaches of the Code of Conduct, the Tribunal stated that it is a fundamental principle of the Accident Compensation Act that personal injury cannot be the subject of proceedings or damages outside of that scheme.13 The Tribunal noted that a fair reading of Mr Dunn’s substantive complaints and the remedy sought illustrate his dissatisfaction with decisions made by ACC, matters which are not within the jurisdiction of the Tribunal.

[23]   The Tribunal, having determined that Mr Dunn’s claim disclosed no reasonable cause of action, then considered whether to  exercise  its  discretion  to  strike out  Mr Dunn’s claim. The Tribunal indicated that if a defect in the pleadings can be cured, an amendment to the statement of claim will normally be ordered.14 As Mr Dunn was fully aware of the basis of which ACC was seeking to strike out his claim, and he had filed an amended statement of claim after the strike out application was made which did not cure the fundamental defect in the pleading that no reasonable cause of action was disclosed, the Tribunal considered it was appropriate to exercise its discretion under s 115A(1)(a) to strike out Mr Dunn’s claim.

Approach on appeal

[24]   Appeals from the Tribunal to the High Court are governed by s 123 of the Human Rights Act. Section 123 provides a general right of appeal that is conducted as

13     Accident Compensation Act 2001, s 317(2) and subs (4); see also  Austin v Roche Products  (New Zealand) Ltd [2021] NZSC 30, [2021] 1 NZLR 294.

14     Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89].

a rehearing.15 The Court must arrive at its own assessment of the merits of the case, but the appellant bears the onus of satisfying the Court that it should differ from the Tribunal’s decision. No deference is required beyond the customary caution appropriate if the Tribunal had a particular advantage, such as technical expertise or the opportunity to assess the credibility of witnesses. It is only if the Court considers that the Tribunal’s decision is wrong that it is justified in interfering with it.16

[25]   Under s 123(5), when determining an appeal from a decision of the Tribunal, the High Court has the powers conferred on the Tribunal by ss 105 and 106, and those sections apply with such modifications as are necessary.

[26]   Section 105 provides that the Tribunal must act according to the substantial merits of the case and without regard to technicalities, and, in exercising its powers and functions, the Tribunal must act in accordance with the principles of natural justice, in a manner that is fair and reasonable, and according to equity and good conscience. This has been taken to mean the Tribunal should not adopt a strict approach to pleadings given the need for the Tribunal to be accessible to laypeople and self-represented litigants.17 However, this Court has also held this must be balanced against the need to free defendants from litigation which amounts to an abuse of process, and s 105 does not override s 115A of the Act or otherwise limit the ability of the Tribunal to strike out claims where it determines they are an abuse of process.18

[27]   Under s 123(6), in its determination of the appeal, the Court may confirm, modify or reverse any order or decision of the Tribunal and exercise any of the powers that could have been exercised by the Tribunal in the proceeding to which the appeal relates.

15     Wall v Fairfax New Zealand Ltd [2018] NZHC 104 at [14]; and Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

16     Austin, Nichols & Co Inc v Stichting Lodestar, above n 15, at [3]–[5].

17     Greer v Commissioner of Police [2024] NZHC 104 at [29].

18 At [30]. The Tribunal’s jurisdiction under s 115A is equivalent to the strike out jurisdiction under r 15.1 of the High Court Rules 2016: Williams v Police [2021] NZHC 808, [2021] 2 NZLR 292 at [75]. The principles applicable to r 15.1 inform the approach of the Tribunal to strike out applications under s 115A, subject to any other relevant provisions of the Act: Gwizo v Attorney- General [2022] NZHC 2717 at [42].

The appeal

[28]   On his appeal, Mr Dunn seeks orders to overturn the Tribunal’s strike out decision and that this Court hears his claim. Mr Dunn’s notice of appeal identifies nine grounds of appeal but his submissions condense those grounds into the following four points:

(a)there is a reasonable cause of action for both discrimination and victimisation on the pleaded facts;

(b)the Tribunal’s process was unfair and defective, and ultimately breached natural justice;

(c)there is no abuse of process; and

(d)the Tribunal has jurisdiction to hear his claim.

[29]   ACC opposes the appeal on the basis that Mr Dunn’s claim does not disclose a reasonable cause of action and/or is an abuse of process. ACC says the Tribunal has not erred in striking out Mr Dunn’s claim, and the appeal should be dismissed, with costs awarded to ACC on a category 2B basis.

Is a reasonable cause of action disclosed?

Mr Dunn’s position

[30]   Mr Dunn says the Tribunal made two crucial errors in determining that his claim disclosed no reasonable cause of action. First, in its finding that Fehling means that the Accident Compensation Act could not refer to the Human Rights Act, and second, that s 66(1)(a)(v) requires his actions to be made under or by reference to the Human Rights Act, rather than ACC’s reference to the Human Rights Act.

[31]   Mr Dunn accepts that he was exercising his rights for review and appeal under pt 5 of the Accident Compensation Act but submits that by virtue of s 317(4) of the Accident Compensation Act his rights to services provided by ACC are protected

under the Human Rights Act.19 Therefore, his rights and requests for services from ACC are protected specifically under s 44(1) of the Human Rights Act from discrimination. Mr Dunn submits this is the causal link between the Human Rights Act and his alleged less favourable treatment from ACC, and he provides examples of alleged discrimination he has faced in trying to obtain ACC cover.

[32]   Mr Dunn claims he was unlawfully victimised under s 66(1)(a)(v) of the Human Rights Act. He says there is no requirement to specify which party needs to reference the Human Rights Act to engage s 66(1)(a)(v), and that ACC deliberately engaged that provision because there is direct mention of the Human Rights Act in the Accident Compensation Act, and in ACC’s internal policies and Code of Conduct.

[33]   Mr Dunn asks the Court to infer that, because ACC did not provide services at some points for his injury, and Mr Dunn considers he had a right to them, there was no legitimate reason for unfavourable treatment by ACC and the reason is discrimination by ACC  based on his  physical disability, which is prohibited under  s 44(1) of the Human Rights Act.

[34]   Mr Dunn submits that ACC was required to provide services to him for his disability once they found it was caused by an accident.20 However, relying on McAlister v Air New Zealand Ltd, Mr Dunn accepts that if ACC had a legitimate reason for the less favourable treatment, then it would not be discrimination.21 Mr Dunn submits that, in light of McAlister, the Court must be satisfied that there are legitimate reasons for the less favourable treatment, otherwise a reasonable cause of action for victimisation under s 66 can be established. Mr Dunn says this requires ACC to provide reasons and justification for their actions to the Court.

ACC’s response

[35]   Counsel for ACC, Ms Roff, submits that there is no error in the Tribunal’s conclusion that no reasonable cause of action is disclosed.

19     Section 317(4) of the Accident Compensation Act 2001 preserves a person’s ability to bring proceedings under certain sections of the Human Rights Act 1993.

20     Accident Compensation Act 2001, ss 73(1)(a), 77(2)(c) and 85, and sch 1 cls 1 and 2.

21     McAlister v Air New Zealand Ltd [2008] NZSC 76.

[36]   Ms Roff  submits  that  the  Tribunal  was  correct  in  its  interpretation  of    s 66(1)(a)(v) of the Human Rights Act. There must be a connection between the person exercising (or intending to exercise) rights under or by reference to the Human Rights Act, and the action alleged to be victimisation of that person. It is the victim’s acts and/or intentions that are to be under or by reference to the Human Rights Act, not those of the alleged perpetrator.

[37]   Ms Roff submits that while Mr Dunn’s claim alleges he was unlawfully victimised by ACC when he asserted his rights under pt 5 of the Accident Compensation Act, that is, when reviewing and appealing ACC decisions, the exercise of such rights are not actionable under s 66. Ms Roff says the flaw in this claim is that there is no connection at all between the alleged victimisation and the Human Rights Act. Rather, the connection is to the Accident Compensation Act. She says there is no discrimination pleaded in Mr Dunn’s claim nor is there any suggestion that Mr Dunn exercised or intended to exercise or assert any rights under or by reference to the Human Rights Act prior to the alleged victimisation taking place.

[38]   Ms Roff says the Tribunal was right to reject Mr Dunn’s submission that ACC had sufficient knowledge of an action under or by reference to the Human Rights Act. Although she acknowledges that on a strike out there is an assumption that pleaded facts are true, she submits it was open to the Tribunal to reject statements of fact/submission it considered to be plainly incorrect and/or made without any foundation.22 It was also available to the Tribunal to find that Mr Dunn had exercised his statutory challenge rights under the Accident Compensation Act at a time when there had been no suggestion that any discrimination, victimisation or other potential claims under or by reference to the Human Rights Act.

[39]   Having reached that conclusion, Ms Roff says the Tribunal was correct to strike out the claim on the basis that the claim remained fatally flawed, even after  Mr Dunn had an opportunity to file an amended statement of claim, and it could not be cured.

22     Collier v Panckhurst, above n 4, at [19].

Analysis

[40]   For Mr Dunn to succeed in his claim for victimisation under s 66, he must prove that ACC has treated him less favourably than ACC would treat other persons in the same or substantially similar circumstances because Mr Dunn has “otherwise done anything under or by reference to the Human Rights Act”. Put in the context of his claim, the question is whether Mr Dunn has, by seeking reviews and appeals of ACC’s decisions in relation to his ACC cover and entitlement, exercised his rights under or by reference to the Human Rights Act, and because of that ACC has treated him less favourably than they would treat other persons in similar circumstances.

[41]   I agree with the conclusion reached by this Court in Fehling that the exercise of rights or the taking of actions must be under, or by reference to, the Human Rights Act and not under any other statute.23 It is the actions of Mr Dunn that are to be under or by reference to the Human Rights Act, not internal policies of ACC that had to reference that Act. Mr Dunn was not exercising his rights under or by reference to the Human Rights Act, and instead at the time he exercised his rights of review and appeal of those ACC decisions he did so under or by reference to the Accident Compensation Act.

[42]   It appears that Mr Dunn is saying that because s 317(4) of the Accident Compensation Act says that any person can bring proceedings under the Human Rights Act (albeit limited to those listed in subs (4)(b)) that this is the necessary connection between the actions he has taken under the Accident Compensation Act and the Human Rights Act.

[43]   I accept, as does Ms Roff, that conceptually a person could make a claim that ACC discriminated against them under s 317(4)(b) of the Human Rights Act. However, there is no discrimination pleaded by Mr Dunn. Nor does he plead he exercised his rights under or by reference to the Human Rights Act at the time he either reviewed or appealed ACC’s decisions. Rather, Mr Dunn was plainly exercising his rights of review and appeal under pt 5 of the Accident Compensation Act. There is no suggestion that Mr Dunn intended to take any action under or by reference to the

23     Fehling v Appleby, above n 9, at [64].

Human Rights Act until after  ACC  had  made  all  determinations  in  relation  to Mr Dunn. There is therefore no connection between the alleged victimisation and the Human Rights Act.

[44]   I agree with the Tribunal that Mr Dunn’s claim, as pleaded, discloses no reasonable cause of action. Mr Dunn has had the opportunity to improve his claim against ACC, including filing an amended statement of claim after receiving ACC’s application to strike out. The Tribunal correctly concluded that the amended statement of claim did not cure the fundamental defect in the pleading. I can see no error in the Tribunal’s conclusion that it was therefore appropriate to exercise its discretion to strike out the claim on the basis it disclosed no reasonable cause of action.

Was there a breach of natural justice by the Tribunal?

[45]   Mr Dunn’s second point on appeal is that the Tribunal reached an unfair decision that breached his right to natural justice under the Human Rights Act and the New Zealand Bill of Rights Act 1990. Mr Dunn says the Tribunal followed a process which resulted in a decision that was defective and unfair. Mr Dunn submits that the Tribunal did not explore, nor were they transparent in their decision on, the issue of determining ACC’s actions of discrimination and victimisation against him.

[46]   Ms Roff submits that Mr Dunn’s submissions in relation to this point largely repeat his submissions already advanced. This illustrates Mr Dunn’s dissatisfaction with the result and legal reasoning applied by the Tribunal, rather than with the Tribunal’s processes when reaching its decision. In any event, Ms Roff submits that the Tribunal dealt with Mr Dunn’s submissions and rejected them. ACC does not accept that the Tribunal’s process or decision was unfair, defective, biased or discriminatory.

[47]   I consider that the Tribunal correctly set out the law applicable to the strike out application, namely s 115A of the Human Rights Act. It then followed the process as required by that section including by applying relevant case law principles.24 In this

24     Decision under appeal, above n 1, at [27]. I have set out that passage of the decision in full above at [11].

regard, I do not consider that the Tribunal ignored Mr Dunn’s contention that his actions were connected to the Human Rights Act. The Tribunal set out Mr Dunn’s submissions that were relevant to the decision they were required to make in relation to the strike out application by ACC. Therefore, I am satisfied that the outcome reached by the Tribunal was not unfair, in that it followed the process as required by the law relating to strike out applications.

[48]   Mr Dunn also alleges that the Tribunal showed bias towards him. Mr Dunn used a hypothetical situation to explain this submission. The Tribunal was dealing with the case before it, not a hypothetical one. As already mentioned, the Tribunal considered and addressed Mr Dunn’s submissions on the application. Mr Dunn has not established bias on the part of the Tribunal.

[49]   Related to this point is Mr Dunn’s concern that the Tribunal did not consider his submissions and examples of how he alleges ACC has discriminated and victimised him. I am satisfied that it was open to the Tribunal to stop at the point it reached, which is that there was not the necessary link between the Accident Compensation Act and the Human Rights Act. The Tribunal was not required to look beyond that point to the specific contentions of discrimination and victimisation that Mr Dunn raised given they were therefore moot.

[50]   Mr Dunn also asserts that the Tribunal’s decision has wide ramifications for the public in that this decision illustrates anyone with an ACC claim will not have their human rights upheld. This assertion overstates the significance of the Tribunal’s decision. As mentioned, it is entirely possible that a person could bring a claim of discrimination by ACC under the Human Rights Act. It is just that Mr Dunn’s claim is not made out here.

[51]   For these reasons, I am satisfied that the Tribunal followed the correct process in relation to the strike out application, and no breach of natural justice has been established.

Is Mr Dunn’s claim an abuse of process?

[52]   Mr Dunn’s next point is that as he believes there is a reasonable cause of action then there cannot be an abuse of process. Mr Dunn repeats his submissions in relation to s 317(4) of the Accident Compensation Act. Mr Dunn further submits that all of his pleaded facts are relevant to his claim, including those in relation to his ACC claims and the evidence in relation to the hypothetical comparator (being the Code of ACC Claimants’ Rights) as to how he should have been treated.

[53]   Ms Roff submits that there are deficiencies in Mr Dunn’s claim that do not provide sufficient particulars to enable ACC to be fairly informed of the case to be met, and if it was to attempt to do so it will cause significant prejudice and delay. For those reasons, ACC’s position is that the claim should be struck out as an abuse of process. Ms Roff points specifically to the following errors of Mr Dunn’s claim:

(a)It is not possible to identify from the claim what the material facts are.

(b)The claim contains submission, and extensive evidential and irrelevant material.

(c)The claim is highly repetitive and parts of it are contradictory and do not make sense.

(d)The claim does not sufficiently plead or particularise the specific instances of victimisation that are alleged to have occurred.

(e)The claim fails to disclose a reasonable cause or action.

(f)The claim makes a number of baseless allegations against ACC without providing any factual foundation to support these allegations.

[54]   The Tribunal did not consider whether the claim was an abuse of process following its conclusion that there was no reasonable cause of action. However, as ACC raises this point in its application for strike out, I briefly address it for completeness.

[55]   I accept that some leeway is needed for self-represented litigants, as accepted by Ms Roff and reinforced by s 105 of the Human Rights Act. However, I agree with Ms Roff that in its current form, Mr Dunn’s amended statement of claim is prolix, difficult to follow and not appropriately particularised so that there is no comprehensible case to which ACC can meaningfully respond. I accept that there are multiple instances within the pleadings where there are allegations without a factual foundation. And, although, pleaded facts are assumed to be true, the Court is not required to assume the correctness of factual allegations that are asserted without any foundation.25

[56]   Ms Roff also submits that even if the Court accepts Mr Dunn was treated less favourably than other claimants due to his disability, it is difficult to articulate the grounds for discrimination in this context because ACC is dealing with claims from people who are all injured and by default have a disability. Ms Roff also says that s 133 of the Accident Compensation Act prohibits a person who is unhappy with an ACC decision seeking relief from the Court when it is covered by that Act. She says that Parliament did not intend s 66 to be used in the way Mr Dunn pleads in his claim. To allow such a claim would be to circumvent the rights of review, appeal and remedies available under the Accident Compensation Act. Ms Roff says for this reason, and because it appears Mr Dunn’s claim for victimisation is a recent invention after all the ACC decisions have been decided, Mr Dunn’s claim is plainly an abuse of process.

[57]   I am satisfied that Mr Dunn has exercised his rights of review and appeal of ACC decisions under the Accident Compensation Act. In those circumstances, and against the fact Mr Dunn now seeks to bring a claim of victimisation after all the ACC decisions have been decided, I am satisfied that to allow Mr Dunn to bring his claim would be an abuse of process.

Did the Tribunal have jurisdiction to hear Mr Dunn’s claim?

[58]   Mr Dunn’s remaining point on appeal, again relying on s 317(4) of the Accident Compensation Act, is that ACC claimants have the right to take human right proceedings.

25     Siemer v Stiassny HC Auckland CIV-2008-404-6822, 30 November 2009 at [21].

[59]   As mentioned earlier, Ms Roff accepts s 317 does not prevent proceedings being brought in the Tribunal where those proceedings relate to or arise from matters covered by the Human Rights Act.26 However, she says that Mr Dunn’s essential position is his dissatisfaction with ACC’s decisions over the years in relation to his cover and entitlements and the case management of his ACC claim. Ms Roff reiterates that Mr Dunn had a right of review or appeal in relation to all of these decisions and therefore this claim is a collateral attack on those decisions, which is not permissible.

[60]   I agree with the Tribunal’s finding that a fair reading of Mr Dunn’s claim and the remedies sought go to his dissatisfaction with decisions made by ACC, which are not matters within the jurisdiction of the Tribunal pursuant to s 133(5) of the Accident Compensation Act.

Result

[61]   I am satisfied there is no error in the Tribunal Decision. Accordingly, the appeal is dismissed.

Costs

[62]   ACC has been successful in the appeal, and in the ordinary course would be entitled to costs.

[63]   If the parties cannot agree on costs, ACC is to file a memorandum as to costs within ten working days of the date of this judgment and Mr Dunn is to file any memorandum in response within a further ten working days. No memorandum (excluding a schedule of costs) is to be more than five pages in length. I will then determine costs on the papers.

McQueen J

Solicitors:
Accident Compensation Corporation, Wellington for Respondent

26     Austin v Roche Products (New Zealand) Ltd, above n 13.