Ministry of Health v Atkinson HC Auckland CIV 2010-404-287
[2010] NZHC 1216
•30 June 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2010-404-287
UNDER Part 1A Human Rights Act 1993
BETWEEN MINISTRY OF HEALTH Appellant
ANDPETER ATKINSON (ON BEHALF OF THE ESTATE OF SUSAN ATKINSON) First Respondent
ANDGILLIAN BRANSGROVE Second Respondent
ANDJEAN BURNETT Third Respondent
ANDLAURENCE CARTER Fourth Respondent
Hearing: 29 June 2010
Appearances: M Coleman for the Appellant
F Joychild and D Pierse for the Respondents
Judgment: 30 June 2010
JUDGMENT OF ELLIS J
This judgment was delivered by me on 30 June 2010
at 10.00 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Crown Law, PO Box 2858, Wellington 6140
Office of Human Rights Proceedings, PO Box 6751, Auckland 1144
Counsel: F Joychild, PO Box 47947, Auckland 1144
MINISTRY OF HEALTH V ATKINSON AND ORS HC AK CIV 2010-404-287 30 June 2010
ANDPETER HUMPHREYS Fifth Respondent
AND CLIFFORD ROBINSON Sixth Respondent
ANDLYNDA STONEHAM Seventh Respondent
ANDSTUART BURNETT Eighth Respondent
ANDIMOGEN ATKINSON Ninth Respondent
[1] On 8 January 2010 the Human Rights Review Tribunal issued a decision on a claim made by Mr Atkinson and others (the respondents in the present appeal) in relation to a Ministry of Health policy that affects the way in which disabled people are assessed as being in need of disability support services funded by the Ministry. In that decision the Tribunal declared, pursuant to s 92I of the Human Rights Act, that the Ministry’s policy was discriminatory on the grounds of family status. This decision marks the first occasion on which a “declaration of inconsistency” has been made in relation to government policy under the Act and is necessarily of considerable consequence to all the parties involved.
[2] The claim originally filed by the respondents in the Tribunal was effectively split by consent (albeit in a discovery context) and with the concurrence of the Tribunal. This meant that the first part of the hearing, to which the 8 January 2010 decision relates, dealt only with the question of the lawfulness of the Ministry’s policy and the issue of whether a declaration should be issued.
[3] The Tribunal hearing occurred in September and October 2008 (the year is mistakenly recorded in the reported version of the decision as 2009), although the original claim had been filed in 2005. While some of the events forming the background to the claim go back as far as 2001 it is appropriate to record that counsel did not seek before me to attribute blame to any of the parties for the various delays that have occurred.
[4] Issues relating to remedies other than the declaration that was granted did not form part of the hearing and were not dealt with in the decision. Such remedies include, most significantly, the prospect of damages that might potentially be payable as a consequence of the inconsistency. Those other issues remain at large and only limited and preliminary steps towards a determination of them have so far been taken. For example discovery is sought from, and potentially by, the Ministry in that respect.
[5] The Ministry says that the declaration issued by the Tribunal has very significant consequences for both the Ministry itself and the DHBs, which operate the same policy in respect of the disability support services they fund. There is effectively a state of policy limbo as a result of the decision as the Ministry understandably wishes to resolve finally the question of the correctness of the declaration before taking significant steps to address the issues raised by it.
[6] For that reason, on the day that the Tribunal issued its judgment the Ministry filed an application in the Tribunal to suspend the operation of the declaration. The suspension sought would operate until the resolution of the appeal and other issues arising from the Tribunal’s declaration. Subsequently, with the consent of the respondents, suspension on an interim basis (until further order of the Tribunal) has been granted.
[7] On 21 January 2010, the Ministry of Health also filed a notice of appeal in this Court pursuant to s 123(6) of the Human Rights Act 1993. The notice advanced a very considerable number of grounds of appeal of both a factual and legal nature. Current estimates are that the appeal would take 10 days to be heard. Two lay members would be required to sit with the High Court Judge who hears the appeal.
[8] On 29 January 2010, the respondents filed an application to dismiss the Ministry’s appeal for want of jurisdiction or in the alternative to adjourn the hearing of the appeal. The jurisdictional point was principally focused on the fact that the decision of the Tribunal related to only some of the matters in issue between the parties, as reflected in the split hearing, and the fact that significant remedies issues have yet to be heard and determined. By the time the matter came before me,
however, that point had been abandoned and the respondents now accept that there is jurisdiction to hear the appeal. This concession was in my view rightly made.
[9] The remaining application for adjournment is opposed by the Ministry, principally on grounds relating to the immediate consequences for it of the Tribunal’s declaration but also because of the likely nature and scope of the remedies claim which, I have said, is at a comparatively nascent stage. In particular Ms Coleman has advised that the Ministry is likely to apply to have the remedies hearing transferred to the High Court on the grounds of the important constitutional issues raised by the damages aspect of the claim.
[10] The Ministry has also asked the Tribunal to defer the hearing of the remaining relief claims pending resolution of the appeal in this Court and any subsequent appeal, due to the costs and time that they are likely to involve. My understanding is that the Tribunal has not yet heard that application.
[11] In determining whether or not the hearing of the Ministry’s appeal should be adjourned pending resolution of the outstanding remedies issues before the Tribunal my principal concern is that, within the realms of the possible, the proceedings overall be managed and determined as expeditiously and efficiently as possible. That is in the interests of all parties.
[12] Ms Joychild submitted that there was a commonality between the issues that the Tribunal will be required to consider in the remedies hearing and the issues that underlie the declaration of inconsistency. In particular she sought to draw parallels between matters going to justification of the Ministry’s policy that were taken into account by the Tribunal when it made its determination of inconsistency under s 20L and the matters listed in s 92P as potentially relevant to the grant of other remedies. She referred by way of example to the likelihood in a remedies context of further evidence about the social and financial implications of the remedies sought: s 92P(1)(d). She said it would be undesirable for an appellate court charged with determining the inconsistency appeal not to have such further relevant evidence before it.
[13] Ms Coleman for the Ministry did not accept that such an overlap was likely to exist. She did not accept that social and financial implications (for example) were relevant to the question of whether damages should be awarded. It is certainly apparent that the Crown’s position on that issue is of a rather more fundamental constitutional kind than Ms Joychild’s submission contemplates.
[14] Even putting that to one side, however, I do not consider the point to be a persuasive one. In my view the starting point is that the appeal should be determined on the basis of the evidence that was before the Tribunal at the time it made the declaration. Ms Coleman accepted that this was at least the prima facie position, as indeed it is, in terms of rule 20.16. In fact, the prospect of the Tribunal receiving, in the remedies context, more evidence that might somehow be relevant to the inconsistency decision it has already made is a troubling one. In my opinion, Ms Joychild’s submission gives rise to a concern that adjourning the appeal in order that the remedies hearing can proceed is likely to create more problems than it solves in terms of the future orderly conduct of these proceedings.
[15] I have formed the view that the application for adjournment should not be granted provided that the appeal can be heard and determined as soon as possible. I am swayed in addition by the fact that the outcome of the appeal may (if the Ministry is successful) completely obviate the need for the remedies hearing in the Tribunal. This factor must necessarily be of some consequence in terms of the potential expenditure of public money involved.
[16] I am also influenced by the fact that the remedies aspect of the proceeding in the Tribunal is not particularly well advanced and I accept Ms Coleman’s submission that a hearing in that respect could not take place this year. There is, as well, the prospect of the application for transfer to this Court which, on the basis of my very limited knowledge of the matter, would appear to have some foundation. By contrast, my understanding is that the Case on Appeal has already been prepared, subject to the respondents’ sign-off.
[17] Thus while I accept that proceeding with the appeal now may be perceived by the respondents as productive of more delay, I doubt very much that this is the case
when compared with the alternatives. And even if the Crown ultimately fails in its appeal it seems to me that any subsequent remedies hearing would be likely to be more tightly focused as a result of the refinement of the underlying issues that one would expect to result from appellate scrutiny.
[18] The application for adjournment of the appeal is declined accordingly.
[19] Counsel were advised at the hearing before me of the possibility of a 10 day appeal fixture in this Court commencing on 13 September 2010. Ms Joychild acknowledged the desirability of obtaining that fixture if at all possible and helpfully proposed what I perceived to be a tenable timetable for the exchange of submissions in that context. Ms Coleman advised that such a fixture would clash with her present commitments in relation to a three week hearing in the Tribunal but said she would explore the possibility of alternative counsel being available either in relation to the appeal or in relation to that hearing.
[20] In light of my decision on the adjournment and the present, but limited, availability of Court time I direct that a further telephone conference is to be convened at the earliest opportunity in order to timetable the appeal to hearing. In what I trust will be the unlikely event that the Crown will not be able to accommodate the proposed September fixture there will need to be further
discussions with the Registry about dates in early 2011.
Rebecca Ellis J
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