P v Human Rights Review Tribunal

[2013] NZHC 619

ORDER PROHIBITING PUBLICATION OF IDENTITY OR IDENTIFYING PARTICULARS OF PLAINTIFF.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2012-485-2038 [2013] NZHC 619

UNDER  the Declaratory Judgments Act 1908

IN THE MATTER OF     a declaratory judgment for a decision on "Aggrieved person" of the Human Rights Review Tribunal [2012] NZHRRT 9 of the Human Rights Act 1993 and the Health and Disability Commissioner Act 1994

BETWEEN  P Applicant

ANDHUMAN RIGHTS REVIEW TRIBUNAL First Respondent

ANDVASU IYENGAR Second Respondent

ANDCAPITAL AND COAST DISTRICT HEALTH BOARD

Third Respondent

Hearing:         25 March 2013

Counsel:         Mr P in Person

I M G Clarke for First Respondent
C J Hodson QC for Second Respondent
T G M Smith for Third Respondent

Judgment:      27 March 2013

JUDGMENT OF THE HON JUSTICE KÓS

P v HUMAN RIGHTS REVIEW TRIBUNAL HC WN CIV 2012-485-2038 [27 March 2013]

[1]      Doctor Iyengar, the second respondent, applies to strike out this proceeding. The Capital and Coast District Health Board, the third respondent, joins in that

[2] 2012	The .1   Sh (a)	background to this proceeding is set out in my judgment of 24 August rn of inessentials, it is as follows: Mr P brought a claim in the Human Rights Review Tribunal, under
s 51 of the Act, against Dr Iyengar, an obstetrician, and the doctor’s
employer, the third respondent.  The claim arose out of the effects of a
medical misadventure during the birth of his baby daughter.   Mr P
says that as a result of that incident he suffered emotional harm and
mental illness.
(b)	To bring the claim directly, Mr P had to show he was an “aggrieved
person” within the meaning of those words in s 51 of the Health and
Disability Commissioner Act 1994.  If he was not, the Tribunal had no
jurisdiction.
(c)	The question of whether fathers of babies might be aggrieved persons
in relation to incidents during the birth process had been left open by
the Court of Appeal in Marks v Director of Health and Disability Proceedings.2   But  on  3  February  2011  the Tribunal,  considering
Mr P’s claim, concluded that fathers of babies in course of pregnancy
and the birth process were not aggrieved persons under the Act, at
least while the mother remained competent to consent, because they
did not have relevant rights under the Code.
(d)	Mr P appealed that decision to the High Court.    The appeal was
brought in time and duly served on the parties, but unfortunately not
served  on  the Tribunal  itself.    The  result  of the Court  of Appeal

 

application.

o

1      P v Iyengar [2012] NZHC 2168.

2      Marks v Director of Health and Disability Proceedings [2009] NZCA 151, [2009] 3 NZLR 108 at [62].

decision in Attorney General v Howard3 meant that that omission was fatal.  Mr P filed formal notices of abandonment of his appeal.

(e)      Mr P then issued new proceedings, on 24 May 2011.  As I said in my earlier judgment, the new claim was substantially the same as the earlier claim.  On 19 April 2012, the Tribunal dismissed Mr P’s new claim.    Mr  P appealed  that  decision  to  this  Court.    However  on

24 August 2012 I dismissed his appeal, on the basis that cause of action estoppel applied.

[3]      On 1 October 2012 Mr P filed a new statement of claim.   An amended statement of claim was filed on 7 March 2013.  In that proceeding Mr P seeks the following relief:

(10)      That the High Court make a declaratory judgement and  order under the Human Rights Act 1993 and the Health and Disability Commissioner Act 1994 as to whether I am an “Aggrieved person” under section 51 of the Act.  Could you please declare an  order that I am an “aggrieved person.”  Please affirm to be 100%.

(11)      That the High Court make a declaratory judgment  order that ‘On a balance of probability’ I am an “aggrieved person”. Yes.

(12)      That the High Court should rule that it was not for the Court to decide whether the doctors had been negligent, instead it should assess Mr [P’s] prospects of establishing negligence.  Mr [P] has through    the    HDC    Complaints    process    case    HDC0516711

Obstetrician established negligence.  The Judge should apply Mount v Baker Austin (a firm) [1988], stating that, in these circumstances, the Court should tend towards a generous assessment of the claimant’s prospects.  The court should  order and estimate Mr [P’s] chances of establishing negligence to be 100%, based on Court of Appeal Marks v DPP, and [P] v Iyengar & Anor.

(13)     Please affirm order establishing negligence to be 100%.

(14)      That the High Court should declare an  order that there was a 100% chance that Mr [P] would be able to prove that the negligence of Iyengar and Capital Coast DHB and [Ms X] had caused him some loss that was more than minimal.   Please affirm and  order to be

100%.

(15)     That the High Court should order not to reduce Mr [P’s] overall prospects  of  success  against  Iyengar  and  Capital  Coast  DHB  or [Ms X] by a further 0%, to reflect the litigation risks of not being

3      Attorney General v Howard [2010] NZCA 58.

able to  establish that  some  harm was  caused  by the  negligence. Please affirm an  order to be 0%.

[4]      For clarity “Ms X” is the lawyer who handled the original appeal.

Issues

[5]      There are three issues:

(a)      Should the first respondent, the Tribunal, be named as a defendant at all?

(b)Are  paragraphs  12  to  15  competent  matters  to  consider  in  a proceeding brought under the Declaratory Judgments Act 1908?

(c)      Do paragraphs 10 and 11 amount to a reinstitution of a matter already determined  as  between  the  present  parties  in  the  Human  Rights Review Tribunal decision of 3 February 2011?

Discussion

Should Tribunal have been joined?

[6]      The Tribunal is a judicial body.   It is normal for such a body to abide the decision of the court on appeal or review, and to not take an active role in the proceeding.4   An adjudicative body should not normally be named as a party to an appeal.5    Where an appeal is however brought from a disciplinary body which undertakes both a prosecutorial and an adjudicative role, it is preferable that the body

is named as respondent.  Particularly where there is no other independent litigant to

serve as contradictor.6

4      Portage Licensing Trust v Auckland District Licensing Agency [1997] 10 PRNZ 554 at 556.

5      High Court Rule 20.9; Canterbury Development Corp v Charities Commission [2002] 10 2

NZLR 707 at [108]; Moonen v Broadcasting Standards Authority (1995) 8 PRNZ 335 at 337.

6      Gee v Plumbers, Gasfitters and Drainlayers Board [2012] NZHC 377 at [31]–[33].

[7]      In this case there is no just basis for the inclusion of the Tribunal as a party. The second and third respondents are suitable contradictors, and there is no necessity for the Tribunal to be joined.   Mr P accepted that when the matter was discussed before me at the hearing on Monday 25 March 2013.

Are paragraphs 12 to 15 of the statement of claim appropriate in a Declaratory

Judgments Act 1908 proceeding?

[8] Paragraphs 12 to 15 – set out at [3] above – of the statement of claim each require an assessment to be made of Mr P’s prospect of establishing negligence. It is plain that the underlying facts required to reach such a conclusion would be highly contested. They would need to be the subject of viva voce evidence. I put to one side the content and utility of the questions raised in these paragraphs. It is enough to focus upon their nature.

[9]      The summary statutory procedure is not appropriate for mixed questions of law and fact.7   It most certainly is not suitable to resolve hotly contested questions of fact, as these would be.

[10]     Paragraphs 12 to 15 of the statement of claim are not competent matters for determination in the present proceeding.

Further instance of cause of action estoppel?

[11]     Paragraphs  10  and  11  of  the  statement  of  claim  revisit  the  question  of whether Mr P is an aggrieved person under s 51 of the Act.   That issue was determined in the Tribunal’s decision of 3 February 2011.  A further attempt to relitigate that question in the second proceeding was dismissed by the Tribunal, and that dismissal was confirmed on appeal by me.   Paragraphs 10 and 11 are a third attempt to reventilate the same issue.  For reasons given in my decision of 24 August

2012, Mr P may not do so.

7      New Zealand Insurance Co Ltd v Prudential Assurance Co Ltd [1976] 1 NZLR 84 (CA).

[12]     As I said in my decision of 24 August 2012:8

It now appears that any remedy he has is confined to a loss of chance claimed against whoever is responsible for non-service of the first appeal.

Result

[13]     This proceeding is struck out.

Costs

[14]     The position of the second respondent is that costs may lie where they fall, provided there is no repetition of this serial litigation.  The third respondent reserves its position as to costs.

[15]     Mr  P has  troubled  the present  respondents  quite  enough.    This  repeated litigation as to status must cease.  It has been determined finally so far as Mr P is concerned by the Tribunal decision of 3 February 2011.  That decision can no longer be challenged by him, either directly or collaterally.

[16]     The most appropriate course of action now is to reserve the question of costs altogether.  Either remaining respondent may bring the matter on for consideration on application on 14 days notice.  I have no doubt that such application will be made in the event that any further repetition of this litigation is attempted.

Stephen Kós J

Solicitors:

Crown Law, Wellington for First Respondent ([email protected]) Bartlett Law, Wellington for Second Respondent ([email protected])

Luke Cunningham & Clere, Wellington for Third Respondent

And to: Applicant

8 At [19].