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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 619
Decision Date: 27 March 2013

CaseChat Overview and Summary

P brought an action against the Human Rights Review Tribunal, Dr Vasu Iyengar, and Capital and Coast District Health Board seeking a declaration that he was an "aggrieved person" under the Health and Disability Commissioner Act 1994, and that he had a 100% chance of successfully establishing negligence against the respondents and recovering damages. The respondents applied to strike out the proceeding on the grounds that the Tribunal should not be named as a defendant, the questions raised in paragraphs 12 to 15 of the statement of claim were not suitable for resolution under the Declaratory Judgments Act 1908, and paragraphs 10 and 11 amounted to a relitigation of the issue of whether P was an aggrieved person which had already been determined by the Tribunal and the High Court. The court held that there was no basis for the Tribunal to be named as a defendant, the questions in paragraphs 12 to 15 required an assessment of contested facts and were not appropriate for the Declaratory Judgments Act proceeding, and paragraphs 10 and 11 amounted to a further attempt to relitgate the issue of P's status which was barred by cause of action estoppel. The proceeding was therefore struck out.

The court found that the Human Rights Review Tribunal should not be named as a defendant because there was no justification for its inclusion as the second and third respondents were suitable contradictors. The court also found that paragraphs 12 to 15 of the statement of claim were not competent matters for determination in the proceeding as they required an assessment of contested facts which could not be resolved through the summary procedure of the Declaratory Judgments Act. Finally, the court held that paragraphs 10 and 11 amounted to a further attempt to relitgate the issue of P's status which had already been determined by the Tribunal and the High Court, and was therefore barred by cause of action estoppel. The proceeding was therefore struck out with costs to be reserved.

Orders