Russell v Health and Disability Commissioner
[2019] NZCA 572
•19 November 2019 at 4.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA280/2019 [2019] NZCA 572 |
| BETWEEN | BRIAN LESLIE RUSSELL |
| AND | HEALTH AND DISABILITY COMMISSIONER |
| Court: | Kós P and Goddard J |
Counsel: | Applicant in person |
Judgment: | 19 November 2019 at 4.00 pm |
JUDGMENT OF THE COURT
The application for an extension of time to appeal is declined.
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REASONS OF THE COURT
(Given by Goddard J)
Mr Russell seeks an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005 (Rules).
High Court proceedings
Mr Russell filed proceedings in the High Court against the Auckland District Health Board (Board) and the Health and Disability Commissioner (Commissioner). Mr Russell suffers from a condition known as age-related wet macular degeneration of both eyes. He is dissatisfied with the treatment he has received at Greenlane Hospital. In his proceedings he seeks relief against the Board in its capacity as the employer of the doctors who have treated him.
It appears that Mr Russell also made a complaint about the treatment he has received at Greenlane Hospital to the Commissioner. The Commissioner responded to the complaint by referring Mr Russell to the Health and Disability Advocacy Service. Mr Russell is not satisfied with this response to his complaint, and has named the Commissioner as the second defendant in his proceedings.
The Board and the Commissioner applied to strike out Mr Russell’s claim. The Board’s application was unsuccessful.[1] But the claim against the Commissioner was struck out.[2] As Lang J observed, Mr Russell has not pleaded any facts that could give rise to a claim against the Commissioner.[3] Indeed his statement of claim does not include any factual allegations at all in relation to the Commissioner. And as the Judge observed, the court does not have the power to grant any of the forms of relief Mr Russell seeks against the Commissioner.[4]
The delay in filing the appeal
[1]Russell v Auckland District Health Board [2019] NZHC 515 at [25].
[2]At [28].
[3]At [27].
[4]The relief sought against the Commissioner is, in summary, orders requiring the Commissioner to make declarations that Mr Russell’s rights have been breached; requiring the Director of Proceedings to bring proceedings against the doctors involved in treating Mr Russell before the Human Rights Review Tribunal; requiring the Commissioner to refer the doctors involved to the Medical Council and the Health Practitioners Disciplinary Tribunal; and requiring the Commissioner to be “involved in setting a robust treatment regime in line with tried and tested protocols”.
Mr Russell was, understandably, unsure about whether he needed leave to appeal from the High Court judgment striking out his claim against the Commissioner. A strike out application is an interlocutory application, and leave is normally required to bring an appeal against an interlocutory decision under s 56(3) of the Senior Courts Act 2016. Mr Russell initially sought leave from the High Court. He was then advised by the Court that he did not need leave to appeal: s 56(4) gave him a right to appeal to this Court against the decision striking out his claim against the Commissioner.
Mr Russell seeks an extension of time
By the time Mr Russell appreciated that he had a right of appeal and did not need leave from the High Court, and filed his appeal in this Court, he was 36 working days out of time. He therefore seeks an extension of time to appeal under r 29A of the Rules. He says that:
(a)the delay was not long;
(b)he has a reasonable explanation for the delay, which resulted from the uncertainty he encountered about whether he needed to seek leave in the High Court before he could appeal to this Court;
(c)he is the only person prejudiced by the delay; and
(d)the appeal raises issues of public importance about the remedies that are available for a person dissatisfied with decisions of the Health and Disability Commissioner, in the absence of any right of appeal from the Commissioner’s decisions.
Relevant provision
Rule 29A provides:
29A Extension of time for appealing
(1)If the appeal period prescribed by an enactment or the period prescribed by rule 29(1) or (2) has expired, a party who wishes to appeal may make an interlocutory application for an extension of time in which to appeal.
…
(3)If the Court or a Judge grants an extension of time, the party wishing to appeal must bring the appeal—
(a)within the time specified by the Court or the Judge when granting the extension; or
(b)if no time is specified by the Court or Judge, within 20 working days of the decision granting the extension of time.
Almond v Read is the leading authority on the application of r 29A.[5] The ultimate question in determining whether to extend time is what the interests of justice require.[6] Relevant factors include the length of the delay and the reasons for it; the conduct of the parties; any prejudice to the respondent; and the significance of issues raised by the proposed appeal.[7] The merits of a proposed appeal may be relevant, but a decision to refuse an extension of time based substantially on the lack of merit of a proposed appeal should be made only where the appeal is clearly hopeless.[8]
Opposition by Commissioner to extension of time
[5]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.
[6]At [38].
[7]At [38(a)–(e)].
[8]At [39(c)].
The Commissioner opposes the application on the basis that granting an extension of time would not meet the overall interests of justice. The Commissioner says that:
(a)no reasonable excuse for the delay has been provided;
(b)the appeal has no merit; and
(c)the statement of claim discloses no arguable cause of action and was correctly struck out by Lang J.
Analysis
In this case the delay was not long, and Mr Russell has explained it. We consider that he has a reasonable excuse for the delay. The Commissioner has not identified any prejudice caused by the delay.
However this is one of those rare cases where the merits of the proposed appeal are relevant to whether an extension should be granted. The difficulty Mr Russell faces is that his pleading does not set out any factual allegations at all against the Commissioner. In order to bring a claim against the Commissioner, he needs to plead the essential facts on which the claim is based. The pleading should also identify the nature of the claim: it appears to be some sort of judicial review proceeding, though that is not clear.
If Mr Russell did pursue his appeal on the basis of the current statement of claim, which contains no allegations at all against the Commissioner, it would be impossible for the appeal to succeed.
A plaintiff who opposes a strike out application is able to file an amended pleading, or propose amendments to their pleading, in order to fix any defects in the original statement of claim.[9] Amendments to the pleading may mean that it does disclose an arguable cause of action, so it will not be struck out. But the problem Mr Russell faces in this case is that any amendment that fixes the defect in the original statement of claim — a complete absence of any allegations against the Commissioner — would involve an entirely new pleading against the Commissioner. That new pleading would not have been the subject of any consideration in the High Court. So this Court would be dealing with the strike out application as, in effect, a first instance court. That would not be in the interests of justice.
[9]High Court Rules 2016, r 7.77. See Marshall Futures Ltd v Marshall [1992] 1 NZLR 316 (HC), distinguishing between a pleading which “is a total write off and one which is deficient but is capable of effective repair”; and CED Distributors (1988) Ltd v Computer Logic Ltd (in rec) (1991) 4 PRNZ 35 (CA).
Nor is there any need for Mr Russell to appeal in order to bring a claim against the Commissioner, if he wishes to do so.[10] The fact that Mr Russell’s previous (defective) claim against the Commissioner was struck out does not prevent him amending his existing proceeding against the Board to include a properly pleaded cause of action against the Commissioner. There is nothing to be gained by Mr Russell pursuing a hopeless appeal in this Court in relation to his previous pleading, which was plainly inadequate, when he can simply amend his pleadings to include a properly pleaded claim against the Commissioner. He does not need to appeal in order to do that. An appeal would be a slower and more expensive route to the same outcome.
Result
[10]Another option for Mr Russell, which would be more informal and less complex and expensive to pursue, would be to make a complaint to the Ombudsman about the way in which his complaint to the Commissioner was handled.
We therefore dismiss Mr Russell’s application for an extension of time to appeal under r 29A.
Costs
Mr Russell is representing himself. He had a right of appeal which he failed to exercise in a timely way, for understandable reasons. With the benefit of legal advice, he might well have realised that pursuing an appeal was not an appropriate option and that he could simply start again in the High Court if he wished to do so. In those circumstances we do not consider that an award of costs is appropriate.
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