Forrest v Capital and Coast District Health Board

[2020] NZHC 3305

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2020-485-125

CIV-2020-485-183 [2020] NZHC 3305

BETWEEN

BRENDON DOUGLAS FORREST

Plaintiff

AND

CAPITAL AND COAST DISTRICT HEALTH BOARD

Defendant

Hearing:

14 December 2020

Appearances:

Plaintiff (respondent) in person

I Reuvecamp for defendant (applicant)

Judgment:

14 December 2020

EX TEMPORE JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]    In these proceedings, which are being managed and dealt with together, the plaintiff, Mr Brendon Forrest, sues the defendant, Capital and Coast District Health Board (DHB). Very broadly speaking, Mr Forrest  says  the  DHB  breached  the New Zealand Bill of Rights Act 1990 in dealing with him as a patient in the DHB’s Kenepuru Hospital in Porirua. In the earlier (125) proceeding he alleges that the DHB subjected him to an unlawful search contrary to s 21 of the Act. In the later (183) proceeding he says that the DHB subjected him to degrading treatment contrary to ss 9 and 23(5).

[2]    In his written synopsis of submissions, Mr Forrest informed the Court that he wished to “withdraw” the 183 claim. At his invitation, therefore, I dismiss that claim. I will not refer to it further in this judgment.

FORREST v CAPITAL AND COAST DISTRICT HEALTH BOARD [2020] NZHC 3305 [14 December 2020]

[3]    Before the Court for determination is an application by the DHB for an order striking out the 125 claim, or alternatively ordering security for costs. Mr Forrest opposes the DHB’s applications. In this judgment, I propose to take my lead from Ms Reuvecamp for the DHB and Mr Forrest by focussing my attention on the application for an order striking out the claim, and will only deal with the alternative application for security for costs if that becomes necessary.

[4]    In a minute dated 14 September 2020, I made directions for the disposal of the DHB’s application (then of course relating to both claims). Both parties have complied meticulously with those directions, and I express the Court’s appreciation to Ms Reuvecamp and Mr Forrest for the helpful way they have approached the matter.

[5]    Applications to strike out pleadings are governed by r 15.1 of the High Court Rules 2016 which provides:

15.1     Dismissing or staying all or part of proceeding

(1)The court may strike out all or part of a pleading if it—

(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

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

(c)is frivolous or vexatious; or

(d)is otherwise an abuse of the process of the court.

(2)If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.

(3)Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.

(4)This rule does not affect the court’s inherent jurisdiction.

[6]    Here,  the  application  is  founded  on  r 15.1(1)(a).  The  DHB  says  that  Mr Forrest’s statement of claim (in the 125 claim) discloses no arguable cause of action.

[7]    As Ms Reuvecamp submits, the approach that the Courts take to applications pursuant to r 15.1(1)(a) is well settled. The leading case is the Court of Appeal’s judgment in Attorney-General v Prince.1

[8]Ms Reuvecamp summarised the position as follows:

(a)Pleaded facts, whether or not admitted, are assumed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation;

(b)The cause of action or defence must be clearly untenable. In Couch, Elias CJ and Anderson J, at [33], said:

It is inappropriate to strike out a claim summarily unless the Court can be certain that it cannot succeed;

(c)The jurisdiction is to be exercised sparingly, and only in clear cases;

(d)The jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument; and

(e)The Court should be particularly slow to strike out a claim in any developing area of the law, perhaps particularly where a duty of care is alleged in a new situation. In Couch, at [33], Elias CJ and Anderson J said:

Particular care is required in areas where the law is confused or developing.

[9]I could not improve on that summary.

[10]   The starting point, then, is to identify the basis or bases on which Mr Forrest’s claim proceeds.

[11]   Mr Forrest’s statement of claim dated 1 March 2020 is commendably succinct, and it appears to me that the most efficient way of describing his case is to quote the material paragraphs:

3.The plaintiff is a patient at a Porirua Mental Health Unit.

4.From 3 October 2019 to the present [1 March 2020] the plaintiff has been housed in Room 13 of Pūrehurehu Unit.

1      Attorney-General v Prince [1998] 1 NZLR 262; see also Couch v Attorney-General [2008] NZSC 4 at [33].

on the Friday 21st February 2020 while in Pūrehurehu Unit at approx

1.00 pm the Plaintiff was informed all clients were required to go to their rooms.

5.The reason being was that staff were required to search and scan the plaintiff’s room as well as other clients’ rooms as well.

6.The clients were informed that a set of keys were missing.

7.A search was carried out but nothing was found;

8.The plaintiff says staff failed to query other staff to see whether if they had the keys or contact the previous days staff to see if they took the keys home or to ensure the key register was correctly filled out by previous staff.

9.The plaintiff was advised by a staff member later on in the day that a female staff member had taken the keys home the day prior and did not fill the mandatory key register out the day prior.

10.The plaintiff says a search must be carried out in the least last opportunity where staff must exhaust all other options available prior to commencing a search.

11.The plaintiff says the search was unreasonable and in breach of s 21 of the New Zealand Bill of Rights Act 1990.

A.FIRST GROUND OF RELIEF – BREACH OF SECTION 21 OF THE NEW ZEALAND BILL OF RIGHTS ACT 1990

12.The plaintiff’s right to be secure from unreasonable search was breached by the defendant.

RELIEF SOUGHT

13.A declaration that the plaintiff’s right to be secure from unreasonable search on 21st February 2020 at Pūrehurehu Unit, Porirua Hospital was breached by the defendant;

14.NZBORA damages in the sum of $600;

15.Costs.

[12]   As I read this pleading – and I sought Mr Forrest’s confirmation of this during the course of the hearing – he effectively says (in paragraphs 8 and 10) that the DHB did not adhere to its own policies or procedures in carrying out the search and on that basis that the search was unlawful.

[13]   On the DHB’s behalf Ms Reuvecamp says that it is not accepted that its published procedure requires that all other options be exhausted before a search is undertaken or that doing so is a necessary precondition to a search. Nor does the DHB

accept that it did not exhaust all other options in this case. However, she submits that even if the DHB’s procedure – expressly or by necessary implication – does contain such a requirement, and even if that requirement was not adhered to, that in itself would not render any search unlawful in terms of s 21 of the Act, provided there was a genuine reason for the search and the search was conducted appropriately.

[14]   Affidavit evidence can be received and considered on any application for an order striking out a pleading for contextual or explanatory purposes. It must not, however, contradict the fundamental allegation or allegations made in the pleading which, the authorities indicate, must be assumed to be correct other than in exceptional circumstances which do not apply here. In this case, both parties offered affidavit evidence. Neither raised objection, and I regard it as compliant evidence helpfully clarifying the context for the determination of the DHB’s application.

[15]   The  DHB’s  evidence  was   in   the   form   of   an   affidavit   sworn   by   Dr Jacqueline Short dated 19 October 2020. Dr Short readily accepted the essential assertion that the DHB staff carried out a search of the Pūrehurehu Unit around the date and time alleged by Mr Forrest, including of the patients’ rooms. She explained that a set of keys and a key card were thought to be missing and that because that the Pūrehurehu Unit is a secure one it was important to locate the keys as their absence presented a serious risk to the safety and security of the public, staff and patients.   Dr Short also explained that Mr Forrest had exercised his rights to make a complaint about this matter which had been investigated or considered by a District Inspector. The finding was apparently that the search was not unlawful or unreasonable.

[16]Ms Reuvecamp concluded her submissions in the following terms:

17.Assuming, for the purposes of this application, that the search undertaken was one to which s 21 of the NZBORA applies, and even if there were failures in applying the policy/procedure after the keys were not able to be located and it is the case that, as pleaded by the plaintiff, “staff did fail to query other staff to see whether if [sic] they had the keys or contact the previous day’s staff to see if they took the keys home or to ensure the key register was correctly filled out by previous staff”), it is submitted that this would not render the search unreasonable. The fact remains that there was a clear need to search the patients’ rooms, as a set of keys and a keycard had gone missing; there was a risk that the keys and keycard were unsecured on the unit; and it was necessary to locate the keys because lost keys pose a

significant and serious risk to the safety and security of patients, staff and the wider public.

18.It is submitted that this cause of action is therefore clearly untenable and ought to be struck out.

[17]In response to this submission Mr Forrest’s written synopsis says:

6.The claim is not untenable and that the defendant is wrong to assume this nor is it likely to cause prejudice or delay nor is it vexatious or frivolous.

[18]   In the course of his oral submissions Mr Forrest expanded on this, emphasising how upsetting it was for him to feel that he was being accused of being responsible for the missing keys and how unpleasant the experience of the search was, or at least that is what I infer from what he said. Mr Forrest also referred to earlier litigation in which he was successful in a claim for breach of s 21 of the Act following a search. However, as I read the case, Forrest v Department of Corrections2, it has no application here.

[19]   It is not obvious to me on the material before the Court that Mr Forrest will be able to establish that the carrying out of a search was contrary to the DHB’s policies for procedures. But even if that could be established I accept the submission made on behalf of the DHB that it would not be a breach of s 21 (or any other section of the Act) for the DHB to conduct a search where there were reasonable grounds for doing so and assuming that the search was conducted in an appropriate way. The only allegation made by Mr Forrest in this proceeding is that the DHB did not adhere to its own procedures. There is no allegation in his pleading or his affidavit evidence that the search was carried out in a way which might give rise to an independent cause for complaint.

[20]   In those circumstances, adopting the terminology used by the Supreme Court in Couch v Attorney-General, this is a case which the Court can be certain cannot succeed, on the existing pleading or on any amended pleading that might be possible having regard to the plaintiff’s own description of his case.

2      Forrest v Department of Corrections [2012] NZCA 125.

[21]   In those circumstances, the proper course is to strike out the plaintiff’s statement of claim and I make an order pursuant to r 15.1(1)(a) doing so.

[22]   It is unnecessary, therefore, to deal with the DHB’s application for security for costs.

[23]   The DHB does not seek costs on the dismissal of the 183 proceeding or the striking out of this (125) proceeding.

Associate Judge Johnston

Solicitors:
Iris Reuvecamp, Porirua for Capital and Coast District Health Board