Spencer v Attorney-General

[2013] NZHC 2580

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-6717 [2013] NZHC 2580

UNDER

the Judicature Amendment Act 1972

BETWEEN

MARGARET SPENCER

Plaintiff

AND

HER MAJESTY'S ATTORNEY-

GENERAL in respect of the Ministry of Health
First Defendant

AND

THE HUMAN RIGHTS REVIEW TRIBUNAL

Second Defendant

CIV-2013-404-2910

UNDER

the Declaratory Judgments Act 1909

BETWEEN

MARGARET SPENCER

Plaintiff

AND

HER MAJESTY'S ATTORNEY-

GENERAL in respect of the Ministry of Health

Defendant

Hearing:

24-26 June 2013

Appearances:

J Farmer QC, S L Robertson, M A Sissons, G J Peachey for plaintiff

U R Jagose, M G Coleman for defendant

A S Butler, P R Barnett, S A Bell for Human Rights Commission

Judgment:

3 October 2013

JUDGMENT OF WINKELMANN J

SPENCER v ATTORNEY-GENERAL [2013] NZHC 2580 [3 October 2013]

This judgment was delivered by me on 3 October 2013 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

TABLE OF CONTENTS

Introduction  [1]

A.The validity and effect of the suspension order

1.Did the Tribunal have jurisdiction to make the order? Relevant background

The making of the order  [17]

Statutory framework  [27]

Argument  [32]
Analysis  [36]

2.          Is the order affected by procedural flaws?

Argument  [72]

Relevant background  [77]

Role of the Commission and Director of Proceedings           [78] Complaints to the Commission in the Atkinson proceeding [83] Mrs Spencer’s complaints to the Commission  [92]

Analysis  [98]

3.          If the answer to 2 is yes, is the order invalid from the beginning

as a consequence?  [116]

B. C. D.	If the suspension order is valid, is it binding on Mrs Spencer? Is the Ministry estopped from relying upon the policy? What is the effect of Part 4A of the NZPHDA on Mrs Spencer’s right to relief in the judicial review proceeding, and her ability to	[119] [120]
be joined to the Atkinson proceeding?	[126]
Argument	[135]
Analysis	[146]
E.	In any case, is the Ministry estopped from denying that the Atkinson proceeding is a representative proceeding?	[170]
F.	What relief, if any, is Mrs Spencer entitled to? Judicial review proceeding	[176]
Declaratory judgment proceeding	[187]
G.	Summary of conclusions	[190]
H.	Formal orders	[198]

Introduction

[1] This judgment is given in two proceedings. In the first,  a  judicial  review proceeding, the primary issue is whether the Human Rights Review Tribunal (the Tribunal) had jurisdiction to suspend a declaration it had already made that a Ministry of Health policy was inconsistent with the right preserved in s 19 of the New Zealand Bill of Rights Act 1990 (Bill of Rights Act) to be free from discrimination on the grounds of family status.   In the second proceeding, the issue is the effect of Part 4A of the New

Zealand Public Health and Disability Act 20001 (NZPDHA) on the right of those affected

by that policy to seek redress. That issue also arises in the remedies phase of the judicial review proceeding.

[2]   The background to these proceedings is as follows.…