Guo v Culpan

[2019] NZHC 1963

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1499

CIV-2018-404-2695 [2019] NZHC 1963

UNDER

the Judicial Review Procedure Act 2016, the Human Rights Act 1993 and the Privacy Act 1993

IN THE MATTER

of an application for review and an appeal

BETWEEN

YAN GUO

Applicant

AND

STEPHEN JAMES CULPAN

First Respondent

HUMAN RIGHTS REVIEW TRIBUNAL

Second Respondent

Hearing:

12 March 2019 and supplementary submissions 15, 18 and 22

March 2019

Appearances:

F M Joychild QC for the applicant H C Stuart for the first respondent

Appearance excused for the second respondent

Judgment:

13 August 2019

JUDGMENT OF PALMER J

This judgment was delivered by me on 13 August 2019 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

GUO v CULPAN [2019] NZHC 1963 [13 August 2019]

Summary

[1]    In 2009 and 2010, Ms Sylvia Yan Guo saw Dr Stephen Culpan, a general practitioner, at the request of her employer. In 2015, she requested from him her medical file. In 2016, she complained to the Human Rights Review Tribunal that he breached her right to privacy by deliberately delaying providing her with her medical file and concealing information from her. In 2017 and 2018, the Tribunal made a series of rulings against Ms Guo. Ms Guo challenges the Co-Chairperson’s decisions to strike out portions of Ms Guo’s reply evidence, refuse an application for a witness summons and refuse to recuse herself. A week before the substantive hearing in May 2018, Ms Guo applied for an adjournment to allow her to reformulate her case with her newly appointed senior counsel who was not available on the hearing date. The Co-Chairperson declined the application, a decision Ms Guo also challenges. At the hearing, Ms Guo refused to be cross-examined without her counsel present. The Tribunal struck out her claim.1 Ms Guo appeals and applies for judicial review of that decision too.

[2]    This claim concerns the right to privacy, so human rights are at stake and the Court is entitled to subject the decision-maker’s reasoning to anxious or heightened scrutiny on judicial review. But I dismiss the applications for judicial review and appeal. The portions of Ms Guo’s reply evidence that were struck out were irrelevant to the issues before the Tribunal. The scope of the substantive merits of a claim must be interpreted with the anxious scrutiny consistent with the Act’s purpose of better protecting human rights in New Zealand. But, once so interpreted, the Tribunal and the parties must stay within that scope. Requiring that is not a technicality. There was also no error in the decision to decline issuing a witness summons to produce documents of dubious relevance just before the hearing after discovery had been completed seven months earlier. There was no reason for the Co-Chairperson to recuse herself for bias or the appearance of bias. The Co-Chairperson’s decision not to adjourn the hearing a week beforehand was fair, reasonable and justified.…