P v F
[2015] NZCA 317
•22 July 2015 at 1 pm
| NOTE: LOWER COURT ORDERS PROTECTING IDENTITIES OF BOTH PARTIES REMAIN IN FORCE. |
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA190/2014 [2015] NZCA 317 |
| BETWEEN | P |
| AND | F |
| Hearing: | 21 May 2015 |
Court: | Harison, White and Cooper JJ |
Counsel: | H J P Wilson and A James for Appellant |
Judgment: | 22 July 2015 at 1 pm |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
B The appellant must pay the respondent costs for a standard appeal on a band A basis with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Harrison J)
Introduction
P, the appellant, was present at the birth of his daughter Jennifer in 2001. As a result of complications in that process, Jennifer suffered oxygen deprivation and later developed cerebral palsy. She died in 2009.
As a result of witnessing the trauma of Jennifer’s birth, P suffered various forms of adjustment and post traumatic stress disorders with depression, mania and psychosis. He was hospitalised for periods.
The Health and Disability Commissioner (the Commissioner) investigated the circumstances surrounding Jennifer’s birth. He found that the doctor responsible had breached two of Mrs P’s rights under the Code of Health and Disability Services Consumer Rights (the Code)[1] and ordered her to apologise and undergo further medical training. However, the Commissioner did not exercise any additional powers against the doctor.
[1]Established by the Health and Disability Commissioner (Code of Health and Disability Services Consumers Rights) Regulations 1996 [Code].
In 2007 P commenced proceedings in the Human Rights Review Tribunal (the Tribunal) against the hospital board and the doctor. He claimed compensation for the injury which he suffered consequent upon witnessing the trauma of Jennifer’s birth on the ground that he was an “aggrieved person” within the meaning of s 51 of the Health and Disability Commissioner Act 1994 (the HDC Act). The Tribunal upheld an application by the board and the doctor to strike out P’s claim because he was not an “aggrieved person” within s 51.[2]
[2]P v Iyengar [2011] NZHRRT 2.
P instructed his counsel, the respondent F, to file an appeal against the Tribunal’s decision. F failed to discharge those instructions within the prescribed time period with the result that P’s appeal was irretrievably out of time. P sued F for negligence. F responded by applying to strike out P’s appeal on the ground that, even if she was negligent, it did not cause P a loss because he was unable to establish that he was an “aggrieved person”. Ronald Young J granted F’s application.[3]
[3]P v F [2014] NZHC 456.
P appeals. It is common ground that the result of his appeal will be determined by whether he is an aggrieved person, the same issue which the Tribunal and the High Court decided against him. If he is an aggrieved person, he has an arguable claim against F; if he is not, he cannot prove a loss suffered as a result of F’s negligence.
Appeal
Mr Wilson presented a carefully structured argument in support of P’s proposition that he is an aggrieved person within s 51. However, his argument faced a formidable hurdle. In Marks v Director of Health and DisabilityProceedings[4] this Court held that, while the term “aggrieved person” is not defined in the HDC Act, it is limited to those who are “health consumers” or “disability services consumers” as defined in the HDC Act. Mr Wilson accepts that P does not fall into either category.
[4]Marks v Director of Health and Disability Proceedings [2009] NZCA 151, [2009] 3 NZLR 108.
However, Mr Wilson sought to circumvent Marks’ authority by two means. His primary submission was that Marks was wrongly decided and we should decline to follow it; alternatively, he submitted, P’s claim fell within an exceptional category identified in Marks of fathers who participate in the birth process and who may by derivation be within the definition of aggrieved persons.[5] However, as Mr Wilson’s argument evolved, it became plain that he was relying on the second or alternative argument to support his first or primary argument that Marks was wrongly decided. The two arguments tended to merge into one and we shall deal with them accordingly.
[5]At [63].
While this Court is ordinarily bound by its earlier decisions, it will in rare cases be prepared to review or overrule an earlier decision where it is satisfied that it should do so.[6] It is not appropriate to overrule a prior decision, for example, because on a finely balanced point of statutory construction a later Court prefers a different viewpoint.[7] Mr Wilson must satisfy us that P’s appeal is one of those rare cases which justifies us adopting a materially different interpretation from this Court in Marks of the meaning of an aggrieved person.
[6]Collector of Customs v Lawrence Publishing Co Ltd [1986] 1 NZLR 404 (CA) at 414–415; and R v Chilton [2006] 2 NZLR 341 (CA) at [83]–[90] and [100].
[7]Dahya v Dahya [1991] 2 NZLR 150 (CA) at 155.
It is common ground that only an aggrieved person is entitled to pursue a claim for compensation under s 51 of the HDC Act. In Mr Wilson’s submission Marks was incorrectly decided because its interpretation of the phrase “aggrieved person” was unduly narrow. He says that in its natural and ordinary meaning the phrase must connote a wider class than “consumers” in order to give it a statutory purpose. Otherwise, he says, the legislature would have used the word “consumer” in s 51.
In Mr Wilson’s submission, a person is an aggrieved person under the HDC Act if his or her rights, relations or position have been injured or wronged by a breach of a consumer’s rights under the Code, which he accepts is a necessary precondition of the right to claim. He identified three categories of persons under the Act – (a) consumers; (b) persons who act on behalf of a consumer; and (c) persons able to bring proceedings following a breach of a consumer’s rights under the Code – whom he described as derivative or secondary consumers such as P.
This third category became the centre point of Mr Wilson’s argument. He submitted that Ronald Young J erred in acknowledging, consistently with Marks, the existence of the first two categories but in refusing to extend the right to sue to the third category. He described this derivative or secondary group as falling between complainants and consumers, as persons who are able to bring proceedings before the Tribunal despite the fact that they have no rights under the Code. It is enough that they are personally aggrieved in some way by a breach of a consumer’s rights. In this sense they are not acting for the consumer but bringing proceedings in their personal capacity, thereby deriving a right to claim under the Act for the breach of another’s rights under the Code.
To support this argument Mr Wilson submitted that:
(a)the HDC Act’s overarching purpose, which is the statutory protection and promotion of consumers’ rights, is enhanced by allowing secondary victims to bring proceedings to the Tribunal;
(b)a broader interpretation of an aggrieved person would not open the floodgates to claims;
(c)any progressive narrowing of the Act’s responses to a complaint should not occur as a question of standing, but rather at the later stage of determining whether causation and loss can be established;
(d)a wider interpretation of aggrieved person is consistent with the right to justice under s 27 of the New Zealand Bill of Rights 1990;
(e)the wider interpretation appropriately ensures that disputes are dealt with under the Code and HDC Act and not the general law of negligence; and
(f)the consistent and persuasive judicial trend is to give the phrase “aggrieved person” a wider interpretation according to its natural and ordinary meaning.
Decision
(a) Statutory framework
The starting point for our analysis is the purpose of the HDC Act, described as follows:
6 Purpose
The purpose of this Act is to promote and protect the rights of health consumers and disability services consumers, and, to that end, to facilitate the fair, simple, speedy, and efficient resolution of complaints relating to infringements of those rights.
(Emphasis added.)
A “health consumer” is defined in s 2 to include “any person on or in respect of whom any health care procedure is carried out”.[8] A “health care procedure” means any “health treatment” carried out on or in respect of any person by any health care provider. A “health care provider” relevantly for this case, is a medical practitioner.[9]
[8]For the purposes of our judgment it is unnecessary to address the separate definition of a “disability services consumer”.
[9]Section 3(h): “any health practitioner”.
The HDC Act provides a logical structure to implement its complementary purposes. Part 1 establishes the office of the Health and Disability Commissioner and confirms the Commissioner’s function, as a first priority, to prepare a Code of Health and Disability Services Consumers Rights.[10] The focus of the Commissioner’s extensively particularised functions is on the promotion of respect for and observance of health consumers’ rights; on investigating complaints about the actions of health care providers which appear to breach the Code; on referring complaints where appropriate to the Director of Proceedings for further action; and on recommending the means of resolving complaints.[11]
[10]Section 14(1)(a).
[11]See s 14(1)(a)–(p).
Part 2 addresses the content of the Code. It is worded in terms of the rights of health consumers and the corresponding duties of health care providers, emphasising the principle that no health care procedure shall be carried out without informed consent and the duty to provide services of an appropriate standard. The Code was established by Order in Council on 29 April 1996. Clause 4 defines a consumer, for the purposes of certain enumerated rights (including relevantly the right to informed consent), as including “a person entitled to give consent on behalf of that [health] consumer”.
The HDC Act makes no reference to an aggrieved person until pt 3, which establishes a Director of Health and Disability Services Consumer Advocacy. It refers among other things, to the Director’s obligation to receive complaints alleging a breach of the Code by a health care provider and to represent or assist “the person alleged to be aggrieved” for the purpose of finding a resolution for the dispute.[12]
[12]Section 30(h).
Part 4 provides a detailed regime for investigating and determining complaints and investigations. Of particular importance is the right of “any person” to complain to the Commissioner alleging a breach of the Code.[13] Detailed provisions follow governing the Commissioner’s preliminary assessment, investigations, referrals and recommendations.[14] In this context the statute refers intermittently to an aggrieved person or a person claiming to be aggrieved.[15] It must be emphasised here that a complainant is not necessarily a health consumer and, while anybody can complain, not all health consumers will be aggrieved persons.
[13]Section 31(1).
[14]Sections 37–49.
[15]Section 41(1), 43(2)(b).
The phrase “the aggrieved person” emerges more discretely in the specific provisions governing proceedings before the Tribunal. For example, s 50 precludes “the aggrieved person (if not the complainant)” from joining proceedings issued by the Director of Proceedings. The right of an “aggrieved person” to bring proceedings under s 51 is as follows:
51 Aggrieved person may bring proceedings before Tribunal
Notwithstanding section 50(2) but subject to section 53, the aggrieved person (whether personally or by any person authorised to act on his or her behalf) may bring proceedings before the Tribunal against a person to whom section 50 applies if he or she wishes to do so, and—
(a) the Commissioner, having found a breach of the Code on the part of the person to whom that section applies, has not referred the person to the Director of Proceedings under section 45(2)(f); or
(b)the Director of Proceedings declines or fails to take proceedings.
Either the Director of Proceedings or the “aggrieved person” may apply to the Tribunal for specified remedies.[16] The Tribunal may grant a range of remedies if it is satisfied on the balance of probabilities that a health care provider has breached the Code, including damages.[17] The damages claimable are as follows:
[16]Section 52.
[17]Section 54.
57 Damages
(1) Subject to section 52(2), in any proceedings under section 50 or section 51, the Tribunal may award damages against the defendant for a breach of any of the provisions of the Code in respect of any 1 or more of the following:
(a) pecuniary loss suffered as a result of, and expenses reasonably incurred by the aggrieved person for the purpose of, the transaction or activity out of which the breach arose:
(b) loss of any benefit, whether or not of a monetary kind, which the aggrieved person might reasonably have been expected to obtain but for the breach:
(c) humiliation, loss of dignity, and injury to the feelings of the aggrieved person:
(d) any action of the defendant that was in flagrant disregard of the rights of the aggrieved person.
(2) Subject to subsections (3) to (5), the Commissioner shall pay damages recovered by the Director of Proceedings under this section to the aggrieved person on whose behalf the proceedings were brought.
…
(b) Analysis
In the absence of any definition of the phrase “aggrieved person” in the HDC Act, it is necessary to focus at the outset on the purpose and scheme of the Act. We are not satisfied that the words “aggrieved person” necessarily connote a concept wider than “consumer” as defined in the HDC Act. In any event, statutory words must be read in the light of their purpose and context,[18] both of which are significant obstacles to Mr Wilson’s argument. The answer to Mr Wilson’s submission that Marks adopted an unduly narrow construction of the phrase “aggrieved person” where used in s 51(1) is found in the unequivocal wording of the HDC Act’s purpose. It is to promote and protect “the rights of health consumers” and, to that end, to introduce a process for efficiently resolving “complaints relating to infringements of those rights” by establishing the office of a Health and Disability Commissioner. One of the Commissioner’s primary obligations was to prepare a Code designed to formalise and particularise those rights. Parliament expressly limited the scope of the Code to a self-contained regime of interrelated and enforceable rights of health consumers and duties of health care providers.
[18]Interpretation Act 1999, s 5; Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR 767 at [22]; Ross Carter Burrows and Carter Statute Law in New Zealand (5th ed, LexisNexis NZ, Wellington, 2015) at 220–221.
Parliament’s extension of the right to complain about breaches of the Code to third parties other than health consumers did not of itself grant those parties substantive rights or remedies in the form of damages. The establishment of a process for resolving complaints about infringements of a health consumer’s rights is a means of enforcing the HDC Act’s primary purpose. In this context it is consistent with the purpose and scheme of the HDC Act to construe the phrase “aggrieved person” as referring to a health consumer who feels aggrieved that a breach of his or her rights by a health care provider has caused a particular loss or losses; the heads of damage claimable under s 57 suggest a direct causal relationship between a breach and a loss suffered by a health care consumer. Not all health care consumers will be aggrieved persons.
Acceptance of Mr Wilson’s argument would require us to read into the HDC Act words which are not there. In our judgment, if the legislature had intended to grant rights of claim to third parties other than health consumers or their representatives, it would have expressly broadened the scope of the HDC Act to particularise and protect those third party rights – just as it did with the rights of health consumers and the correlative duties of health care providers. The only exception is found in the expanded meaning of a consumer in cl 4 of the Code but that is limited expressly to those entitled to give consent or act on behalf of a health consumer – the members of the second category whose rights are not at issue here.
Moreover, it would not be appropriate to adopt an interpretation requiring us to read words in to the HDC Act. While we accept there will be cases in which the Court can fill in the gaps,[19] that would only be appropriate where new legislation has failed to foresee and thus provide for a particular set of facts.[20] Such an approach is unnecessary here because the HDC Act makes sense in accordance with its purpose without a court being required to read words into unequivocal statutory provisions.
[19]Northland Milk Vendors Assoc Inc v Northern Milk Ltd [1988] 1 NZLR 530 (CA) at 538.
[20]Attorney-General v Spencer [2015] NZCA 143 at [84] and n 67.
We are satisfied that allowing ad hoc extensions of rights to claim remedies on a case specific basis, to those whom Mr Wilson identified as having “a sufficient or legitimate connection to the consumer”, would only lead to uncertainty and litigation. There would always be questions about where the lines of qualifying association with the health consumer and of causative demarcation were to be drawn, requiring the Tribunal to undertake a factual inquiry on each occasion. That result would be antithetical to the purpose of simplicity of resolution of complaints found in s 6.
It follows that we respectfully endorse this Court’s conclusion in Marks:
[61] … that there would be difficulties in defining which secondary victims can be aggrieved persons. Ms McDonald was not able to be more precise in her definition than proposing that it would be a question of fact in each case but that such victims must have a connection to the primary victim greater than the public at large … . We suspect this test would encompass too large a group and would also risk not being interpreted in the same manner by differently constituted tribunals. We also consider that there would be issues in determining what causal link is required between the breach of the Code and the situation of the secondary victim and then in deciding on when that causal link is proved. Ensuring an appropriately close causal link between the breach of the Code and any damage suffered by secondary victims could risk narrowing the ambit of the HDC Act remedies for primary victims, contrary to the purpose of the Act … . Moreover, … there may also be conflicts between primary and secondary victims that are not resolved by the HDC Act.
P’s claim exemplifies these problems of causation. As Ms Challis emphasised, the doctor breached two of Mrs P’s rights during labour, while Jennifer was unborn. First, in breach of Right 4(1), she failed to skilfully and carefully interpret tracings over a one and a half hour period during labour; and, second, in breach of Right 6(1), she failed to give Mrs P information when her membranes ruptured and to discuss the option of a caesarean section; and when Mrs P’s labour failed to progress, she decided to increase the syntocin infusion without discussing with her the risks and alternatives. P was not at any stage of the labour required or entitled to consent to any course of conduct on Mrs P’s behalf. He did not have any codified rights and the doctor did not owe him any particularised duties.
Moreover, P does not claim that his emotional injuries were caused by the doctor’s breaches. Instead, his case as emphasised by Mr Wilson is that he was severely traumatised at a later stage. His injuries were caused by witnessing Jennifer’s birth; they have no direct nexus to the doctor’s earlier breaches of her duties while Mrs P was in labour and before Jennifer was born.
Nor do we consider that the phrase “aggrieved person” must be interpreted in the way P suggests in order to achieve the Act’s purpose, the promotion and protection of health consumers’ rights. Mr Wilson’s own submissions about conflicting duties as between the consumer and aggrieved person show why his interpretation will not better promote that purpose. Mr Wilson sought to mitigate the potential for conflicting duties that his interpretation of “aggrieved person” creates by submitting that it will merely mean that “a slightly larger group of people may be able to take action in response” to something done to a consumer. But even if we accepted there would be no potential for conflicting duties, we do not see how having the same duties owed, but simply to a larger group, will in any way better promote the HDC Act’s purpose. On Mr Wilson’s own analysis, the rights of health consumers will be promoted and protected to the same degree with or without P being able to sue for damages.
In any event, we do not accept the premise of Mr Wilson’s submission. We consider there is potential for the duties owed to consumers to be in conflict with those owed to the wider concept of aggrieved persons for which P contends. As Ms Challis submitted, there are in fact several such duties. Right 1, for instance, provides for the consumer’s right to have his or her privacy respected; and Right 3 provides for the right of the consumer to have his or her independence respected. A situation might well arise where the consumer does not wish to pursue a claim for damages, for reasons of privacy or independence, but an aggrieved person within Mr Wilson’s wider category (for example, one who witnessed the health procedure) wishes to take that very step. The potential for conflict is obvious, meaning that far from promoting the HDC Act’s purpose, P’s interpretation of “aggrieved person” has potential to frustrate it.
Finally, Mr Wilson’s reliance on different interpretations of the words “aggrieved person” in other statutory contexts does not assist. He argued for a wider interpretation of the phrase in the HDC Act by drawing from case law in areas of the law as disparate as intellectual property,[21] insolvency,[22] and discrimination,[23] as well as relying on various overseas authorities.[24] However, none of these decisions assists in construing the HDC Act because:[25]
To determine whether a person is “aggrieved” for the purposes of a particular statute, it is necessary to consider the context in which the expression appears in light of the purposes of the Act as a whole.
[21]Crocodile International Pty Ltd v Lacoste [2013] NZHC 2265, [2013] NZAR 1391.
[22]Khan v Official Assignee HC Auckland HC133/95, 5 February 1996; and Judd v Official Assignee [2000] 2 NZLR 135 (CA). See also Glynbrook 2001 Ltd v Official Assignee [2012] NZCA 289 at [74]–[81].
[23]Attorney-General v Human Rights Review Tribunal HC Wellington CIV-2006-485-1713, 6 November 2006.
[24]Including Health World Ltd v Shin-Sun Australia Pte Ltd [2010] HCA 13, (2010) 240 CLR 590; Walton v The Scottish Ministers [2012] UKSC 44, [2013] 1 CMLR 28; and British Columbia Development Corp v British Columbia (Ombudsman) [1984] 2 SCR 477.
[25]Glynbrook 2001 Ltd, above n 22, at [79](b).
We repeat that the phrase “aggrieved person” in the HDC Act can only be properly understood if close attention is paid to “the particular legislation involved”;[26] that is, the words in light of their purpose and in context.
(c) Marks
[26]Walton, above n 24, at [84].
In Mr Wilson’s submission, this Court’s decision in Marks should be confined to its facts. It was a claim by parents against a psychiatrist who had been treating their teenage son who later committed suicide. The relevant disciplinary body found the psychiatrist guilty of professional misconduct in his care of the child and imposed penalties and restrictions on his practice. The Commissioner, on behalf of the parents, bought a claim against the psychiatrist before the Tribunal seeking a declaration of a breach of the Code and damages of $40,000. On appeal, this Court held that parents, who were classified as secondary victims, could not fall within the category of aggrieved persons entitled to damages under s 57 of the HDC Act.
We do not accept Mr Wilson’s submission that Marks can be confined to its facts. This Court’s finding was unequivocal that:
[62] … only consumers with rights under the Code can be aggrieved persons under the HDC Act.
Nevertheless, Mr Wilson emphasised the Court’s formulation in the immediately succeeding passage in Marks of what he called a caveat on its ratio, recognising the possibility that because of their increased role in the course of pregnancy and the birth process fathers “could be seen to be derivative consumers in their own right and thus aggrieved persons under the HDC Act”.[27]
[27]Marks, above n 4, at [63].
In recognising this possibility of a discrete category of derivative consumers, Marks referred to two earlier authorities. The first was the decision of a Full Court of this Court in Harrild v Director of Proceedings.[28] The issue there was whether the mother of a stillborn child had suffered a personal injury as a result of the death of the foetus; and whether her right to compensation under the relevant accident compensation legislation excluded a right of damages under the HDC Act. The Director of Proceedings bought a claim before the Tribunal on behalf of both the mother and father. However, whether the father was an aggrieved person was not in issue because there was no suggestion that he had suffered a personal injury. The majority found that the mother had suffered a personal injury. Thus she was barred from recovering compensatory damages under the HDC Act arising directly or indirectly out of the personal injury.
[28]Harrild v Director of Proceedings [2003] 3 NZLR 289 (CA).
This Court in Marks emphasised that Harrild provided only indirect support for creating a special category for fathers of babies in the course of the birth process.[29] The obiter statement of Blanchard and Glazebrook JJ in Harrild merely said that “Mr M would also clearly retain any common law rights he may have.”[30] Not only does the use of “may” leave the matter open to be determined in a suitable future case, but the passage relied on speaks only to the father’s common law rights. It does not comment on the position of fathers under the HDC Act.
[29]Marks, above n 4, at [63].
[30]Harrild, above n 28, at [74].
Marks also explained that a passage from the judgment of McGrath J in Harrild only “implicitly” supported the existence of a special category for fathers.[31] We agree that the relevant passage, which summarises the effect of the High Court decision in Harrild, hardly dictates that there is such a category. Finally, Marks correctly noted that Elias CJ’s judgment in Harrild left the issue open, and nothing more. The Chief Justice stated that it was “necessary to emphasise that we are not able on the present appeal to express any views as to whether the damages sought are available”.[32] This passage falls well short of providing support for the position taken by P. Harrild is not of assistance to us.
[31]Marks, above n 4, at [63].
[32]Harrild, above n 28, at [14].
The other authority referred to in Marks was Gendall J’s decision in O’Neil, dismissing an appeal from a decision of the Tribunal awarding substantial damages against a midwife who had breached the mother’s rights by mismanaging the birth of a child.[33] As a result, the baby suffered brain damage and later died. It was, as Ms Challis pointed out, apparently “accepted that the parents have a claim under s 57(1)(c) as they are persons “aggrieved” …”. [34] Again, it was not a case where a father’s discrete right to sue was in issue.
[33]Director of Proceedings v O’Neil [2001] NZAR 59 (HC).
[34]At [26].
In our judgment this Court’s brief obiter observations in Marks about fathers becoming derivative consumers in their own right does not advance P’s appeal. The passage is oblique and irrelevant to the issue for determination, and the general proposition was not developed. As Ms Challis submitted, fatherhood alone cannot trigger an eligibility claim because as Marks shows the claim for both parents was rejected. And as we have noted, P is not actually bringing this proceeding as a father of a daughter with consumer rights at all. Instead, he wishes to bring a claim because he personally suffered mental injuries by witnessing the birth process – not, we repeat, by suffering any Code breaches against his wife.
However, this category of person is not one contemplated by the HDC Act as acquiring any “derived” rights, breaches of which can be remedied by a s 57 award of damages. Such derivative rights are limited to those expressed in the Code which can be exercised on behalf of consumers. In short, we reject Mr Wilson’s submission that there exists a third category of persons under the HDC Act, in addition to consumers and those acting on their behalf.
There are other difficulties with P’s position. An exception for fathers present at birth but not at other times in their child’s lives when health procedures are performed is not logically sustainable. Yet it was not suggested that a further category could or should be created to provide for fathers after the birth of their children. Also difficult to sustain is the fact that the category mentioned in Marks would create an exception for fathers but not others enjoying close connections to the mother or child. Nor is it an answer to rely, as P does, on a common and international law requirement to promote fairness to fathers. It is the HDC Act’s purpose and not a general notion of fairness to fathers that our interpretation of “aggrieved person” must promote, a purpose that is expressly limited to the rights of health consumers. Rather than these difficulties suggesting the category should be applied and then expanded, we think they tell against the application of the category at all.
Accordingly, for all these reasons, we uphold Ronald Young J’s judgment striking out P’s claim against F.
Result
The appeal is dismissed.
As costs should follow the event, the appellant must pay the respondent costs for a standard appeal on a band A basis with usual disbursements.
Solicitors:
Kensington Swan, Wellington for Appellant
McElroys, Auckland for Respondent
2
7
0