Lohr v Accident Compensation Corporation

[2016] NZHC 1154

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2015-470-59 [2016] NZHC 1154

UNDER

the Judicature Amendment Act 1972

IN THE MATTER

of an Application for Judicial Review

BETWEEN

DANIEL LOHR First Applicant

AND

ADVENT MANAGEMENT LIMITED Second Applicant

AND

ACCIDENT COMPENSATION CORPORATION

First Respondent

AND

CHIROPRACTIC BOARD Second Respondent

AND

A PROFESSIONAL CONDUCT COMMITTEE OF THE CHIROPRACTIC BOARD

Third Respondent

Hearing:

30 May 2016

Counsel:

First applicant in Person (via AVL) No appearance for second applicant

A K Miller and C D Boyce for second and third respondents
No appearance required for first respondent

Judgment:

31 May 2016

JUDGMENT OF SIMON FRANCE J

LOHR v ADVENT MANAGEMENT LTD [2016] NZHC 1154 [31 May 2016]

Introduction

[1]      The second and third respondents (“the respondents”) apply to strike out judicial review proceedings filed by Dr Lohr and which the respondents say have been conclusively settled.   The second applicant is a business owned by Dr Lohr. Dr Lohr  has  previously  been  refused  leave  to  act  for  the  company  in  these proceedings.  It is therefore to be treated as unrepresented.

Background

[2]      Dr Lohr  practised  as  a  chiropractor.    Consequent  upon  complaints  being made by the first respondent and another, the Chiropractic Board referred the complaints to a Professional Conduct Committee which proceeded to investigate. Prior   to   the   completion   of   its   investigation,   Dr Lohr   filed   judicial   review

proceedings.1

[3]      On 8 October 2015 the Chiropractic Board wrote with a settlement offer. After some discussion, settlement was reached.  A Deed of Settlement was executed. The relevant terms of the settlement were:

(a)      the Board would revoke the appointment of the Professional Conduct Committee.  This was to have the effect that the Board would take no further  action  on  any  complaint  it  had  received  to  that  point concerning Dr Lohr;

(b)Dr Lohr agreed that the Board could initiate a competence review of his practice.  This process was to be initiated by the Board within 10 working days of settlement;

(c)      the existing complainants would be notified that investigation of their complaints had come to an end, and that a competence review was to

be initiated; and

1      Amended  statements  of  claim  have  been  filed  on  21 April 2015,  11 August 2015  and

17 May 2016.

(d)within five working days of settlement, the applicants were to file a notice of discontinuance.

It is to be noted a competence review does not involve consideration of any complaints.  Rather, nominated reviewers observe the practice and can make orders as to changes to processes and practices.

[4]      Consequent upon the settlement, the Board revoked the appointment of the Professional Conduct Committee, and notified the complainants as required.  It also initiated the competence review process, although that is not complete.

[5]      Dr Lohr has refused to file a notice of discontinuance which is what lies behind the present application by the respondents to strike out the proceedings.

Why the notice of discontinuance has not been filed

[6]      Dr Lohr filed no evidence for this hearing.  A few days prior, he emailed the Registry to request attendance by AVL.  It transpires he is presently residing in the United States of America.  The respondents did not oppose provided the fixture was not lost, and Dr Lohr made arrangements to appear. What follows is taken from such written material as has been filed and his oral submissions.

[7]      It seems that Dr Lohr took advice from a barrister whom he has now learnt did work (Dr Lohr believes) at some stage for the Professional Conduct Committee. Dr Lohr considers this invalidates his signing of the settlement deed.

[8]      Issues have arisen about the competence review.  Evidence filed by the Board makes it plain the Board initiated the process as the settlement required it to do. Draft terms of reference were prepared for approval by the Board and subsequently sent to Dr Lohr.  Senior chiropractors were approached concerning availability.

[9]      It  seems  that  by  December 2015,  settlement  having  been  reached  on

3 November,  Dr Lohr  was  living  overseas.    Of  his  own  motion  he  returned  to New Zealand in early December having first requested on 23 November that the review occur in the week of 7 December.   He arranged to have patients for the

purpose (he is otherwise not presently practising in New Zealand).  The Board said (quite reasonably) that it could not arrange it in time.  No date had been agreed, and the process required the professional reviewer to arrange time off from their own business. A January date was proffered, but was unacceptable to Dr Lohr.

[10]     Dr Lohr complains generally about the settlement not being effected in good faith, and cites the continued pursuit of the competence review as a sign of this. Dr Lohr submits there is no agreement because he has terminated it.   It is also suggested there was no consideration because the competence review is a vehicle by which the complained about process against him can continue.

Decision

[11]     It is settled that if there has been a settlement to end proceedings, and that settlement has not otherwise been vitiated, it is an abuse of process to continue the proceedings.2

[12]     I have no doubt the respondents’ application to strike out the proceedings must be allowed.  There is no question that the agreement is valid, and no tenable argument that the respondents have not complied with their obligations under it.  On the evidence the failure to complete the competence review cannot be laid at the respondents’ door.   Further, the settlement requirement was  only that the Board within 10 working days begin the process, and that was done.   Obviously it is implicit in the settlement provision that the Review thereafter be pursued in good faith, but there is no basis to consider otherwise.

[13]     Solely for the purpose of responding to Dr Lohr’s oral submission on this point,  I  note  that  the  competence  review  exercise  is  something  that  Dr Lohr expressly agreed to as part of the settlement.   It was the quid pro quo for the discontinuation of the Professional Conduct Committee.  It is clear Dr Lohr regrets the  agreement  he  struck,  but  the  review  was  part  of  the  settlement,  and  the

respondents have completed their part.

2      See Peterson and Ors v Lucas Mill Pty Ltd [2012] NZHC 1101 at [34] and the cases cited there.

[14]     The issue about Dr Lohr’s barrister, for which there is no evidential support before the Court, could not impeach the agreement.   The letter from the Board proposing the settlement and Dr Lohr’s replies, which are contained in personal emails, suggest no confusion or misunderstanding.  Further, the source of the alleged conflict remains unclear.  The material filed for the respondents makes it plain the barrister and solicitor in question had no involvement in this case.  There is no basis for the proposition he was acting to curry favour with the Board.

[15]     The claim by Dr Lohr to a wider public interest in his proceeding is not relevant to the issue of whether it has been validly settled.  This comment applies equally to submissions about the general merits of the proceeding.

[16]     I am satisfied Dr Lohr is in breach of a valid settlement by not filing a notice of discontinuance and no valid reason is available to him not to have done so.  The respondents have acted on the settlement to their detriment by withdrawing the appointment of the Professional Conduct Committee and advising the complainants the investigation of their complaint is at an end.

[17]     The  continuation  of  the  proceedings  is  an  abuse  of  process  and  the application to strike the proceedings out will be allowed.  The reality is that Dr Lohr has changed his mind, but that is not an option open to him.

[18]     Both the respondents in correspondence with Dr Lohr, and Dobson J in a Minute,3 advised Dr Lohr of the risk of indemnity costs should he be found to have wrongly failed to file a notice of discontinuance.  I am satisfied there is no basis for him not to have done so, and the costs of this application have been wholly unnecessary.  Dr Lohr submits this would be unfair to him as a lay litigant battling to do his best, but I cannot agree.  He is aware of his obligation but satisfied himself he could simply not complete the agreement.  The respondents were entitled to have the

notice of discontinuance filed, thereby avoiding any of this cost, which has been

unreasonably incurred.   The situation comes with High Court Rule 14.6(4)(a).   I

3      Lohr and Ors v Accident Compensation Corporation and Ors HC Wellington CIV-2015-470-59,

27 January 2016.

accordingly award reasonable indemnity costs and reasonable disbursements to be

fixed by the Registrar if necessary. The costs cannot of course exceed actual costs.4

Simon France J

4      High Court Rules, r 14.6(1)(b).