Russell v Auckland District Health Board
[2020] NZCA 40
•4 March 2020 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA486/2019 [2020] NZCA 40 |
| BETWEEN | BRIAN LESLIE RUSSELL |
| AND | AUCKLAND DISTRICT HEALTH BOARD |
| Counsel: | Applicant in person |
Judgment: | 4 March 2020 at 2.30 pm |
JUDGMENT OF GODDARD J
(Review of Deputy Registrar’s decision)
The application to review the decision of the Deputy Registrar declining to dispense with security for costs is declined. Payment of security of $7,060 must be made on or before Friday 3 April 2020.
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REASONS
Introduction
This is an application for review of the Deputy Registrar’s decision on an application to dispense with security for costs in relation to an appeal to this Court by the applicant, Mr Russell. The application to dispense with security for costs was made under r 35(6) of the Court of Appeal (Civil) Rules 2005 (the Rules). I have personally considered the application to review the Registrar’s decision under r 7(b) of the Rules and s 49(6) of the Senior Courts Act 2016.
Background
Mr Russell has age-related wet macular degeneration in his left eye. He believes his right eye suffers from the same condition. Mr Russell used to live in Australia. Mr Russell’s Australian doctor diagnosed wet macular degeneration in both eyes, and was treating both eyes with injections for that condition every three months. Mr Russell returned to New Zealand a few years ago. He was referred to Greenlane Hospital, which is operated by the respondent, the Auckland District Health Board (ADHB), for treatment of his eye condition. Mr Russell firmly believes that he should continue to receive the same treatment he was receiving in Australia: injections to both eyes to treat wet macular degeneration. The ophthalmologists treating Mr Russell at Greenlane Hospital consider that he suffers from wet macular degeneration in his left eye, and dry macular degeneration in his right eye. They consider that he does not currently have symptoms of wet macular degeneration in his right eye. They have declined to provide injections to his right eye to treat wet macular degeneration on the basis that there is no clinical need for such treatment, and it would therefore be inappropriate to provide it.
Mr Russell filed a claim in the High Court against the ADHB, seeking exemplary damages on the basis that the ADHB is vicariously liable for conduct of the ophthalmologists treating him. He has also indicated to the High Court that he seeks relief authorising him to determine the treatment he should receive from the ADHB for his eye condition.
Associate Judge Sargisson granted summary judgment to the ADHB on the basis that there was no prospect of Mr Russell’s claim succeeding.[1] The Associate Judge identified a number of reasons for her view that the claim could not succeed at trial:
(a)Mr Russell will not be able to establish that harm was caused to his right eye. The ADHB had provided affidavits from four qualified ophthalmologists who had seen Mr Russell, all of whom had reached the view that his right eye would not benefit from further injections. The ADHB also provided an affidavit from another ophthalmologist who examined the relevant clinical notes and scans and reached the same conclusion. Mr Russell had not provided any up to date expert evidence to support his claims in relation to his right eye. He told the Court that the only witness he intended to call at trial was himself. The Associate Judge considered that this meant he would not be able to establish that the New Zealand doctors were all wrong, and that his right eye had suffered harm as a result of not receiving treatment for wet macular degeneration. There is an overwhelming body of expert evidence that shows his case is not arguable.
(b)Mr Russell will not be able to establish intention to cause harm or subjective recklessness on the part of the ophthalmologists treating him, as he would need to do in order to recover exemplary damages. There was no evidence to support this allegation. His allegations of a conspiracy involving the wider medical profession were unsupported by any evidence and did not make sense. Nor could he explain why this would result in him being denied a particular treatment for one eye, while otherwise treating him as a normal patient. There is no way that the doctors’ conduct could ground exemplary damages.
(c)The Court does not have jurisdiction to make an order permitting Mr Russell to dictate the terms of his treatment in the future.
Appeal to this Court
[1]Russell v Auckland District Health Board [2019] NZHC 2097 [High Court decision].
On 23 September 2019 Mr Russell filed an appeal from the High Court decision. The notice of appeal challenges the Associate Judge’s analysis of the facts, and her application of the summary judgment test.
Application to dispense with security for costs
Security for costs in respect of the appeal was set at $7,060 under r 35 of the Rules. On 16 October 2019 Mr Russell applied under r 35(6)(c) of the Rules to have security for costs dispensed with. That application was opposed by the ADHB. The ADHB filed a memorandum setting out the grounds on which it opposed the application for security for costs to be dispensed with on 23 October 2019. On 27 November 2019 Mr Russell filed a memorandum in reply.
On 29 November 2019 the Deputy Registrar declined the application to dispense with security for costs, and directed that it be paid by 20 December 2019.
Application for review
On 23 December 2019 Mr Russell filed an application for review of the Deputy Registrar’s decision. The application was accompanied by an affidavit from Mr Russell about his financial circumstances. The affidavit also exhibited an October 2017 email from the doctor who had been treating Mr Russell in Australia. The email, which accompanied Mr Russell’s medical notes at the time of his transfer to a New Zealand doctor, refers to Mr Russell having wet macular degeneration in both his left and right eyes. It records that at that time he was receiving treatment for that condition every three months in each eye.
Mr Russell’s application for review notes that at the time of writing that document he had not made inquiries about whether legal aid assistance was available, but he would do so as soon as possible.
Analysis
Relevant principles
Security for costs is normally required in every civil appeal to this Court, unless the appellant has applied for, or been granted, legal aid.[2] The security for costs regime ensures the respondent has some protection in relation to the costs they incur in responding to an appeal, in the event that the appeal is unsuccessful and the Court awards costs against the applicant. The security for cost regime also imposes some discipline on litigants, discouraging the commencement of proceedings that are frivolous or disproportionate to the matters in issue.[3]
[2]Court of Appeal (Civil) Rules 2005, rr 35 and 36.
[3]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [33].
The principles governing the discretion to dispense with security for costs in this Court were helpfully summarised by the Supreme Court in Reekie v Attorney‑General:
[35] Against that background, we consider that the discretion to dispense with security should be exercised so as to:
(a)preserve access to the Court of Appeal by an impecunious appellant in the case of an appeal which a solvent appellant would reasonably wish to prosecute; and
(b)prevent the use of impecuniosity to secure the advantage of being able to prosecute an appeal which would not be sensibly pursued by a solvent litigant.
A reasonable and solvent litigant would not proceed with an appeal which is hopeless. Nor would a reasonable and solvent litigant proceed with an appeal where the benefits (economic or otherwise) to be obtained are outweighed by the costs (economic and otherwise) of the exercise (including the potential liability to contribute to the respondent’s costs if unsuccessful). As should be apparent from what we have just said, analysis of costs and benefits should not be confined to those which can be measured in money.
As the Supreme Court went on to observe, a litigant who is unable to provide security for costs usually finds it necessary to apply for legal aid. The availability of legal aid is subject to criteria which proceed very much along the lines of how a reasonable and solvent litigant would approach the decision whether or not to appeal. Security for costs will not be required where legal aid is granted.[4]
Should security for costs be dispensed with in this case?
Impecuniosity
[4]At [36].
The Deputy Registrar noted that Mr Russell had not provided financial information to support his statement that he is unable to pay security for costs. She identified the financial information she would normally require to support such a claim. The Deputy Registrar went on to say that, if other relevant factors indicate that security ought not to be dispensed with even if Mr Russell is impecunious, there is no point seeking further financial information. The Deputy Registrar therefore put the issue of impecuniosity to one side and focused on the other relevant factors outlined in Reekie v Attorney-General.
The additional information provided by Mr Russell in his application for review satisfies me that he is impecunious. He is unlikely to be able to pay security for costs of $7,060 unless he can borrow that sum from family or friends. The practical result of requiring him to provide security for costs is likely to be that he will need to apply for legal aid. If he does not obtain legal aid, he will probably be unable to pursue this appeal. I will therefore consider this application on the basis that it is likely to determine whether Mr Russell is able to pursue his appeal, in the absence of a successful application for legal aid.
What would a reasonable and solvent litigant do?
I have carefully reviewed the High Court decision, and Mr Russell’s notice of appeal. I am firmly of the view that a solvent appellant would not reasonably wish to pursue an appeal from the High Court decision.
As Mr Russell rightly points out, the test for granting summary judgment for a defendant is exacting. Summary judgment is not suitable where there are genuine questions of fact or law which can only be determined after trial.[5] If there are genuine conflicts of evidence or questions of credibility, these should not be resolved at the summary judgment stage.
[5]Jones v Attorney-General [2003] UKPC 48, [2004] 1 NZLR 433.
However, none of the matters raised in Mr Russell’s notice of appeal suggests that the Associate Judge erred in her assessment of the prospects of success of Mr Russell’s claim for exemplary damages. Such a claim could succeed only if the ophthalmologists for whose conduct the ADHB is said to be vicariously liable intended to cause harm to Mr Russell, or were subjectively reckless as to the possibility of harm.[6] Mr Russell’s allegations that the four doctors all intended to cause him harm, or were subjectively reckless, are inherently implausible. The doctors who treated him provided affidavits explaining their approach to treatment of Mr Russell, confirming that those allegations are misconceived. Mr Russell did not provide any evidence in the context of the summary judgment application, or identify any evidence he would be able to provide at trial, that could provide a basis for a court to reach a different view.
[6]High Court decision, above n 1, at [31], citing Couch v Attorney-General (No 2) [2010] NZSC 27, [2010] 3 NZLR 149.
Mr Russell’s notice of appeal alleges a “large amount of corruption” involving the Auckland University of Technology (AUT) and the doctors who treated him, all of whom he says are employees of AUT. But he has not provided any evidence to support that very serious and inherently improbable allegation, or explained why it would manifest itself in the form of deliberately refusing to provide appropriate treatment to one eye while treating the other eye appropriately. Allegations of this kind, unsupported by any evidence, would not provide a basis for allowing an appeal from the High Court decision.
Mr Russell’s claim also faces the insuperable difficulty that it takes as its starting point an allegation that he currently suffers from wet macular degeneration in his right eye. But he has not provided any expert evidence to support that claim, and he told the Associate Judge he does not intend to do so at trial. His notice of appeal does not suggest that he has obtained any expert evidence in relation to the condition of his right eye since the summary judgment application was heard and decided. He says that he has already established that he suffers from wet macular degeneration in his right eye by the information he has provided, referring in particular to the 2017 email from his Australian doctor. But he has not provided any up to date medical information to support his stance.
A reasonable and solvent litigant would seek a second opinion from an ophthalmologist before embarking on proceedings of this kind, and would certainly do so before deciding to pursue an appeal from the High Court decision. In the absence of that essential first step, pursuing this litigation further is not something that a reasonable and solvent litigant would do.
There is no realistic prospect of Mr Russell’s appeal succeeding in relation to his claim for exemplary damages. Nor is there any realistic prospect of his appeal succeeding in relation to the other relief he seeks, which is that he be permitted to determine what treatment he receives. As the Associate Judge said, that is not relief that a court is able to order.
I am satisfied that Mr Russell should not be able to use his lack of means to obtain the advantage of being able to pursue this appeal, which would not be sensibly pursued by a solvent litigant. I am also satisfied that it would be unfair to the ADHB to require it to defend the appeal without any security for costs.
Result
The Deputy Registrar’s decision to refuse to dispense with security was correct. Accordingly, I decline the application for review under r 7(b). Mr Russell must pay to the Registrar security of $7,060 for the respondent’s costs in this Court in relation to the present appeal on or before Friday 3 April 2020.
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