Kalinowski v Te Tatau o te Whare Kahu Midwifery Council
[2023] NZHC 3045
•31 October 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-268
[2023] NZHC 3045
BETWEEN IRENE CHAIN KALINOWSKI
Plaintiff
AND
TE TATAU O TE WHARE KAHU – MIDWIFERY COUNCIL
First defendant
SUSAN CALVERT
Second defendantJESSICA SCHREIBER
Third defendantPHYLLIS HUITEMA
Fourth defendantBOARD MEMBERS NIKITA TAIAPA, KAREN DANIELLS, DAN MOORE, NGARANGI PRITCHARD, KERRY ADAMS, CHRIS MALLON, MELANIE TARRANT, MAHIA WINDER, JUDE COTTRELL, BEA LATHAM
Fifth defendants
Hearing: 24 August 2023 Appearances:
Applicant in person (with support person T Lynch) J L Schwarcz for First Defendant
Judgment:
31 October 2023
JUDGMENT OF GRICE J
(Application for strike out)
KALINOWSKI v MIDWIFERY COUNCIL [2023] NZHC 3045 [31 October 2023]
Introduction
[1] Te Tatau o Te Whare Kahu Midwifery Council of New Zealand (the Council) applies to strike out the statement of claim filed by Ms Irene Kalinowski, whom I will refer to as Irene at her request. Under the Health Practitioners Competence Assurance Act 2003 (the Act), the Council is the registration authority and is responsible for determining whether a person is fit to practice as a midwife in New Zealand. Irene, a midwife, is presently suspended from her registration as a midwife and faces disciplinary charges.
[2] The statement of claim as pleaded alleges that the Council has acted unlawfully in suspending Irene from her registration as a midwife. The relief sought, among other things, is:
(a)removal of the suspension notice;
(b)a public apology;
(c)damages of $750,000 (which appears to be five years’ loss of earnings);
(d)consequential damages of $1 million, together with $500,000 per annum until the matter is resolved; and
(e)exemplary damages.
[3] The strike out application is made on the basis that the claim is likely to cause prejudice or delay to the Council given the nature of the pleadings; it is an abuse of process; it is frivolous or vexatious; and it discloses no reasonably arguable cause of action. In addition it says the relief sought is not available to the plaintiff.1
1 The application to strike out is made under r 15.1 of the High Court Rules 2016.
Background
[4] Before the COVID-19 pandemic, Irene had been a midwife for many years. She has practised in the United Kingdom and had been a registered midwife with the New Zealand authorities since 1995. Until January 2021 she was registered with the Council as required under the Act.
[5] On 5 December 2021, Irene requested that the Council remove her name from the midwives register in an email to the Council’s generic email address.
[6] Before the Council responded, on 22 December 2021, the Council received a notification from Ms Emma Farmer, the Director of Midwifery at the Waitematā District Health Board (the DHB) that Irene had not received her COVID-19 vaccinations as required by the COVID-19 Public Health Response (Vaccinations) Order 2021 (the Order). Irene was copied into this email correspondence. Ms Farmer noted that Irene believed that she was “able to legitimately practice via the auspices of the Wakaminega Health Council.” Ms Farmer stated she did not believe this organisation had any legal standing and advised the Council that Irene’s maternity facility access agreement had been suspended and she had been notified.
[7] The Council acknowledged the notification and indicated that the matter had been referred to the Ministry of Health for investigation.
[8] Later that day, Dr Calvert asked Ms Farmer to confirm for the Ministry of Health’s enforcement team that Irene did not provide care to a patient who Irene had earlier advised the DHB she was bringing into the hospital to provide care for. Ms Farmer confirmed that the patient’s care had been transferred to another practitioner upon the patient’s admission to hospital.
[9] On 31 December 2021, the Council received a letter from Irene dated 7 December 2021 that again requested the Council remove her name from the register, which provided:
As Settlor I: :Irene-chain: …Kalinowski. (Irene Chain Kalinowski) hereby annul, abrogate and cancel this trust registration No.15-111-93 of the
Te Tatau o te Whare Kahu Midwifery Council under the rules and principles of Equity.
Any further attempts of communication In regards to my obligation to Registration No:15-111-93 of the Te Tatau o te Whare Kahu Midwifery Council shall determine that the named person in communication has interpreted the documents in their own interest to become a constructive trustee.
Your Sincerely,
:Irene-chain: …Kalinowski. Irene Chain Kalinowski
[10] On 10 January 2022, the Council received another notification from a midwife that alleged Irene was “practising working for Wakaminenga Health Council” and was “charging women and that babies were not being registered so no NHI or birth certificate would be issued.”
[11] The notifications of concern from the two midwives about Irene alleged that she was practising midwifery while not vaccinated. This would have been in breach of the Order in force. It is common ground that Irene was not vaccinated.
[12] On 12 January 2022, the Council considered the notifications from the midwives and decided to propose suspending Irene’s Annual Practising Certificate (APC) under s 69 of the Act.
[13] On 13 January 2022 the Council emailed a letter to Irene outlining the Council’s proposal to suspend her APC and the reasons for it. It advised that she should make any response or submissions on the proposal to suspend the APC by 12pm on 20 January 2022. The letter went on to say that the Council would then consider whether to refer the allegations that Irene was practising midwifery in the clinical environment while unvaccinated to a Professional Conduct Committee (PCC) for investigation under s 71 of the Act.
[14] The Council responded to Irene’s requests to remove her name from the register on 18 January 2022, following the Christmas break. The Council advised Irene that the process required including completing the form.
[15] Having received no response from Irene about her proposed suspension, the Council finalised the suspension under s 69 of the Act and referred her to a PCC under s 68. The Council informed Irene of her suspension on the date it took effect, 25 January 2022. Pursuant to this suspension, Irene was prohibited from performing any aspect of the midwifery scope of practice. Dr Calvert updated the register to reflect Irene’s suspension.
[16] On 26 January 2022, the Council emailed letters to the Health and Disability Commissioner, the Accident Compensation Corporation and the Director-General of Health informing them of Irene’s suspension and the Council’s view that Irene’s practice may pose a risk of harm to the public.
[17] Following that, the Council received a letter by post on 11 February 2022 from Irene titled “Notice”, dated 4 February 2022, which contained information concerning vaccination deaths and injuries. It also referred to Dr Calvert as attempting to:
… enforce statutes against Beneficiary and has therefore interpreted documents in her own interest to become a constructive trustee … and also admit to conspiracy and coercion Re; Imperial Laws Application Act 1988, Section 5 Common Laws of England apply to which a sentence of 7 years jail applies.
[18] The document attached the Council notification to her of 25 January 2022 advising Irene of its decision as well as Irene’s notice of 7 December 2021.
[19] The document referred to the board and its employees in their capacities as “conspiring and coercing Beneficiary to be party in the deception of mandate to procure the administration of a substance officially recorded to cause death and serious injury”.
[20] The document was signed in the signature block following the words “Without Prejudice - Without Recourse - All Rights Reserved” followed by “Non-Assumpsit - Errors & Omissions Excepted”. It was signed by “:irene-chain: (Beneficiary)” with a thumb print on the signature line and the description after her name of “NAME, Sui Juris In the role of Beneficiary-Settlor”.2
2 Emphasis in original.
[21] Irene was also apparently in correspondence with the DHB. Ms Farmer forwarded the Council letters the DHB had received from Irene which were signed off:3
Irene Chain Kalinowski
Head of Wakaminenga Midwifery Council Wakaminenga Health council.
[22] On 15 March 2022 the Council advised Irene of the members of the PCC that would be investigating the allegations against her. It noted she had five working days in which to raise any objections to the proposed membership and if no objections were raised the membership would be confirmed. The Council received no response to the letter.
[23] On 17 June 2022 the convener of the PCC wrote to Irene advising her that the investigation had been commenced and seeking information. This included the names of clients seen by Irene from 1 October 2021 to 15 November 2021 and their records. On 11 August 2022 the Council received a letter from Irene addressed to the convener apparently relating to a letter sent by the investigating committee asking a number of questions and advising that it was a advising there was a cease and desist order until the dispute was finalised” and advising there was a “lien lodged against the PPSP” of one of the panel members”.
[24] In June and July 2022, the Council received notifications from third parties, including the DHB, that led to the expansion of the PCC investigation. Notice of the expanded scope of the PCC was sent to Irene on 18 August 2022.
[25] From August 2022, Irene sent a number of letters and documents to the Council and the convener of the PCC as well as Council staff. The gist of that material was that the Council, the Ministry of Health and others had acted unlawfully in relation to the vaccination rules and regulations and the enforcement of regulatory and investigatory processes against her.
3 Emphasis in original.
[26] Included in that material was a “Notice to cure” dated 2 December 2022 to the Council and board members stating that they had had more than 30 days to rebut an affidavit sent by Irene and this “unrebutted Affidavit stands is Truth at Law and Judgement in Commerce.” The notice purported to require the curing of “this deficiency within 7 days” or the “Settlor: :Irene-chain:…Kalinowski. And IRENE CHAIN KALINOWSKI may terminate for default under the terms and conditions of the Termination clause of this contract.” The affidavit referred to a document headed “Notice of Liability & Cease and Desist” dated 2 November 2022 which refers to the “correction of unlawful processes and misleading information” as well as the wrongful and unlawful actions of the Ministry of Health and the Council relating to vaccination requirements. Reference was made to a number of sources including the “United Nations Declaration of Indigenous Peoples”4 and the “Crimes act 1961: section 20: Act of Necessity.”
[27] The affidavit referred to Irene being a midwife under “Wakaminenga Hauora Health Council under Māori Jurisdiction”.
Principles relating to striking out claims
[28] Rule 15.1 of the High Court Rules 2016 (the Rules), insofar as is relevant here, 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.
…
(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 I infer Irene was referring to the United Nations Declaration on the Rights of Indigenous Peoples GA Res 61/295, A/Res/61/295 (2007).
…
[29] Where a pleading discloses no reasonably arguable cause of action or is otherwise an abuse of process, an order striking out the whole or part of pleading may be appropriate.5 A court will not strike out a claim summarily unless it can be sure that it cannot possibly succeed.6
[30] Typically, in strike out hearings the court assumes that pleaded facts, whether or not admitted, are true.7 That does not, however, include pleaded allegations which are entirely speculative and without foundation.8
[31] In relation to striking out a claim as an abuse of process in Commissioner of Inland Revenue v Chesterfields Preschools Ltd, the Court of Appeal said:9
[89] The grounds of strike out listed in r 15.1(1)(b)–(d) concern the misuse of the court’s processes. Rule 15.1(1)(b), which deals with pleadings that are likely to cause prejudice or delay, requires an element of impropriety and abuse of the court’s processes. Pleadings which can cause delay include those that are prolix; are scandalous and irrelevant; plead purely evidential matters; or are unintelligible. …
The statement of claim
[32] On 2 June 2023, the Council received documents including the statement of claim. In the claim, Irene names the Council as first defendant. The second to fifth defendants include employees of the Council, the chair of the PCC and board members. It appears of the defendants only the Council has been served to date.
[33]The intituling refers to the following:
In the Matter of: 1. Un Rebuttal of Sworn Affidavit,
2. Default of 3 attempts of Notice to Cure.
3. Breach of Contract.
4. Deceit.
5. Constructive Trustees.
6. Conspiracy and Coercion.
5 High Court Rules 2016, r 15.1(1)(a) and (d); and Dotcom v District Court at North Shore [2018] NZCA 442, [2018] NZAR 1859 at [14].
6 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33] per Elias CJ and Anderson J.
7 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.
8 Dotcom v District Court at North Shore, above n 5, at [15].
9 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 (footnotes omitted).
7. Harm to professional reputation and
standing NEW ZEALAND and Global.
8. Demise of Health.
9. Obstruction to Right to life and to earn a living.
UNDER Civil law, Contract and Commercial Law Act 2017, Rules and principals of Equity, Ture Tikanga, He Wakaputanga, Common Law England & Magna Carta 1215, Crimes act 1961 95B, HPCAA
2003, Trusts Act 2019, Fair trading act 1986, UN CEDAW 1981
Imperial Laws Application Act 1988. UNDRIP. Employment Relations Act, 2000.
[34] The pleading is difficult to follow. It is largely narrative and annexes 27 documents. The documents include articles about the effects of COVID-19 vaccines and misinformation on those vaccines. Also included is a document claiming Wakaminenga Hauora “is officially endorsed by the Taumata National Wakaminenga Confederation of the United Tribes.”
[35] While the paragraphs in the statement of claim are numbered, the paragraph numbers are repeated, in some cases three times.
[36]The claim alleges among other things:
(a)The Council and/or the other defendants have breached the “Trustee Act 2019”,10 ss 41, 42 and 142 of the Act, Employment Relations Act 2000, s 95B of the Crimes Act 1961 and the Contract and Commercial Law Act 2017.
(b)The Council and/or the other defendants have defaulted on three “notices to cure”.
(c)The Council and/or the other defendants have failed to respond to a sworn affidavit.
(d)The Council is a constructive trustee and Irene is a beneficiary.
10 I infer Irene is referring to the Trusts Act 2019.
(e)The Council has made false statements about unvaccinated midwives putting the public at risk. The vaccination requirements are unlawful and have caused her loss due to having to cease practice.
(f)The Council “has no jurisdiction of : Irene-Chain: …Kalinowski. Living wo(man) under Māori Jurisdiction in which the Wakaminenga Hauora Health Council, endorsed by the Northern United Chief Tribes.”
The Council’s submissions
[37] Mr Schwarcz, for the Council, submitted that it was difficult to identify discrete causes of action in the claim. He noted various areas of concern, including that the proceedings were an abuse of process. Apart from the fact that the relief sought was outside the power of the Court in the judicial review proceedings, he pointed out that the proceedings were filed for an improper purpose, namely to frustrate the disciplinary proceedings which were in progress. He further says the claim raised arguments that had no logic, appearing to suggest that the applicant was not subject to court authority. He submits an appeal from the outcome of the disciplinary proceedings would provide the more appropriate pathway to a remedy.
Irene’s submissions
[38] Irene’s written submissions affirmed on 21 July 2023 are referred to as auxiliary to her submissions affirmed 26 June 2023. Like the statement of claim, the submissions are difficult to follow. They attach 11 appendices, including Irene’s CV and references in relation to Irene’s work as a midwife. Irene made oral submissions which went some way to clarify her claim.
[39] At the outset of her submissions, Irene handed up a “Trust:Deed Certificate” which purported to certify that Irene was a “soul [sic] beneficiary to this legal name: IRENE CHAIN KALINOWSKI”. The certificate:
… confirms the notice of intent to restate trust by a TRUST. By being sole beneficiary to this legal name, promises not to participate in the “fraud” as they are not a legal practitioner.
[40] It is signed by Tracy Lynch, Linda Reid and Irene. Attached to it as a “Claim: Deed Claim by Beneficiary over the Legal Name” which appears to give Irene the legal name Irene Chain Kalinowski and is sealed by a seal engraved “the customary seal of Poupatate”.
[41] In her oral submissions Irene indicated she did not wish to pursue any arguments that related to her having the right to practise under an alternative authority to that of the Council. Her statement of claim and written submissions had said that she had authority to practise as a midwife from the “Wakaminenga Māori Government”. Since writing those she said she had found out that she had been decieved by that organisation and she and other midwives had not received their “cards” from that organisation.
[42] Irene gave an explanation as to the circumstances that gave rise to the charges she was facing now. For instance, she and other midwives had received the notice that they were required to stop working because they were not vaccinated. This required her and other midwives to move a number of women that they were looking after to new midwives. They were unable to find new carers. She therefore gave the women post-dated laboratory forms so at least they could get their required tests and scans as needed. Irene said she was now in a position where she could not “look or speak” to a pregnant woman.
[43] Irene said that she had taken no payment from the woman it was alleged that she had been caring for. She also said that in one case she had been seen in a clinical setting but she had only been supporting a friend who had no family. Irene was just sitting with her and had not been acting professionally in the role of a midwife.
[44] Irene said at the time she was ill in any event and she had decided she no longer wished to practise, which was why she sent in her letter purporting to cancel her registration.
[45] Irene also said that she had not received a response to a number of her queries to the Ministry of Health questioning research supporting mandating of the COVID-19 vaccines for midwives. She also questioned the right of the DHB to suspend her contract.
Analysis
[46] The claims in the statement of claim disclose no reasonably arguable cause of action. They appear to be in the nature of judicial review but seek damages. They referred to Irene having another legal identity, although the effect of that is not clear. They allege that the Council is a constructive trustee, that it has failed to desist and respond to affidavits and therefore the claims are made out.
[47] The pleadings do not disclose a viable cause of action. They are prolix, irrelevant and plead purely evidential matters or are unintelligible.11
[48] Irene was a practising midwife and using that title. She is subject to the authority and disciplinary procedures established by the Council. The Council has the ability to suspend a midwife’s APC if the conduct of the midwife, in the opinion of the Council “held on reasonable grounds, casts doubt on the appropriateness of the [midwife’s] conduct in his or her professional capacity.”12 The authority of the Council over midwives practising and/or using that title is not dependent on the practitioner’s agreement.
[49] The Council must follow processes, such as telling the midwife why it is proposing to suspend them pursuant to s 69 of the Act and giving the midwife a reasonable opportunity to make written submissions and be heard on the question. The midwife under s 106 of the Act has the right to appeal the s 69 suspension to the District Court.13 The fact that Irene had surrendered or attempted to surrender her APC prior to receiving notice of the intention to suspend her does not take her outside the authority of the applicant nor the application of the disciplinary processes.
11 Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 9, at [89].
12 Health Practitioners Competence Assurance Act 2003, s 69(1)(b).
13 Section 106(1)(d).
[50] I am satisfied that the required processes appear to have been followed. Irene said she did not read the letter advising her of the proposal to suspend and giving her time to make submissions until some time after it was received. However, the Council has filed an affidavit of service of the letter. It was served on the email address that she had provided as her address for service in her registration details. I am satisfied that it was duly served on her.14
[51] That the applicant had not directed the Registrar to cancel Irene’s entry in the register immediately upon her request does not affect the applicant’s authority to suspend Irene. Irene had not provided the information required for the authority to act on the cancellation and by the time it considered the request it could not act upon it. It has a discretion as to whether to direct the cancellation of the registration.15 The applicant must not direct the Registrar to cancel the entry in the register relating to a health professional if there are criminal or disciplinary actions pending against the practitioner.16
[52] Irene makes allegations against the Ministry of Health concerning the COVID-19 vaccination requirements, and against the DHB staff for making complaints against her. Neither the Ministry of Health or the DHB nor its staff are parties to these proceedings.17
[53] Irene also makes allegations against staff and members of the board disciplinary committee. The claims made against these defendants are similar to those made against the applicant. They include acting on “unsubstantiated evidence”. For the same reasons the claim must be struck out against the applicant, it should be struck out against the other defendants. In addition the defendants have no civil liability for acts done in the course of the performance of their duty.18 The acts alleged fall within this immunity.
14 Section 156(1)(c) and (2A) provide that service may be effected by sending it to the electronic address provided by the person as an address for service. It is treated as having been received by the person on the working day after which it was sent.
15 Section 142(1).
16 Section 142(2).
17 The validity of the Order requiring midwives to be vaccinated was upheld in the decision of Four Midwives v Minister for COVID-19 Response [2021] NZHC 3064, [2022] 2 NZLR 65 at [3].
18 Health Practitioners Competence Assurance Act, s 119(1).
[54]I strike out the claim in its entirety.
[55] Irene had also filed an interlocutory application without notice dated 10 August 2023 which referred to being unable to serve board members personally. However, Irene had served the Council.19 The memorandum set out grounds which repeated in some respects those pleaded in the statement of claim. It is not necessary to deal with that interlocutory application given that I have struck out the statement of claim.
Costs
[56] If costs are sought any application must be filed and served by memorandum on or before five days from the date of this judgment. Any response must be filed and served by memorandum within a further five days. Any reply must be filed and served within a further three days.
Further submissions
[57] On 19 September 2023, following the hearing, Irene filed further submissions which related to the scope of practice for midwives.20 No leave had been granted for the filing of further submissions. The Council opposed the granting of leave for further submissions by memorandum dated 23 September 2023. It noted that Irene had been suspended for actions alleged to have taken place within the scope of practice. The further submissions do not raise any pertinent considerations and are not relevant to the issues before the Court.21 For that reason leave is not granted.
Grice J
Solicitors:
Luke Cunningham Clere, Wellington
19 Referred to in Kalinowski v Te Tatau o Te Whare Kahu Midwifery Council HC Wellington CIV- 2023-485-268, 16 August 2023 (Minute of Grice J).
20 “Notice of Scope of Practice and Related Qualifications Prescribed by the Midwifery Council” (13 August 2004) 120 New Zealand Gazette 2956.
21 Practice Note [1968] NZLR 608.
0
2
0