RUSSELL v HEALTH AND DISABILITY COMMISSIONER [2019] NZCA 572

RUSSELL v HEALTH AND DISABILITY COMMISSIONER [2019] NZCA 572 [19 November 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA280/2019[2019] NZCA 572BETWEEN BRIAN LESLIE RUSSELLApplicantAND HEALTH AND DISABILITYCOMMISSIONERRespondentCourt: Kós P and Goddard JCounsel: Applicant in personS R G Judd for RespondentJudgment:(On the papers)19 November 2019 at 4.00 pmJUDGMENT OF THE COURTThe application for an extension of time to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)[1] Mr Russell seeks an extension of time to appeal under r 29A of the Court ofAppeal (Civil) Rules 2005 (Rules).High Court proceedings[2] Mr Russell filed proceedings in the High Court against the Auckland DistrictHealth Board (Board) and the Health and Disability Commissioner (Commissioner).Mr Russell suffers from a condition known as age-related wet macular degenerationof both eyes. He is dissatisfied with the treatment he has received at GreenlaneHospital. In his proceedings he seeks relief against the Board in its capacity as theemployer of the doctors who have treated him.[3] It appears that Mr Russell also made a complaint about the treatment he hasreceived at Greenlane Hospital to the Commissioner. The Commissioner respondedto the complaint by referring Mr Russell to the Health and Disability AdvocacyService. Mr Russell is not satisfied with this response to his complaint, and has namedthe Commissioner as the second defendant in his proceedings.[4] 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 Commissionerwas struck out.2 As Lang J observed, Mr Russell has not pleaded any facts that couldgive rise to a claim against the Commissioner.3 Indeed his statement of claim does notinclude any factual allegations at all in relation to the Commissioner. And as the Judgeobserved, the court does not have the power to grant any of the forms of reliefMr Russell seeks against the Commissioner.4The delay in filing the appeal[5] Mr Russell was, understandably, unsure about whether he needed leave toappeal from the High Court judgment striking out his claim against the Commissioner.A strike out application is an interlocutory application, and leave is normally requiredto bring an appeal against an interlocutory decision under s 56(3) of the Senior CourtsAct 2016. Mr Russell initially sought leave from the High Court. He was then advisedby the Court that he did not need leave to appeal: s 56(4) gave him a right to appeal tothis Court against the decision striking out his claim against the Commissioner.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 tomake declarations that Mr Russell's rights have been breached; requiring the Director ofProceedings to bring proceedings against the doctors involved in treating Mr Russell beforethe Human Rights Review Tribunal; requiring the Commissioner to refer the doctors involved tothe Medical Council and the Health Practitioners Disciplinary Tribunal; and requiringthe Commissioner to be "involved in setting a robust treatment regime in line with tried and testedprotocols".Mr Russell seeks an extension of time[6] By the time Mr Russell appreciated that he had a right of appeal and did notneed leave from the High Court, and filed his appeal in this Court, he was 36 workingdays out of time. He therefore seeks an extension of time to appeal under r 29A ofthe Rules. He says that:(a) the delay was not long;(b) he has a reasonable explanation for the delay, which resulted fromthe uncertainty he encountered about whether he needed to seek leavein 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 thatare available for a person dissatisfied with decisions of the Health andDisability Commissioner, in the absence of any right of appeal fromthe Commissioner's decisions.Relevant provision[7] Rule 29A provides:29A Extension of time for appealing(1) If the appeal period prescribed by an enactment or the periodprescribed by rule 29(1) or (2) has expired, a party who wishes toappeal may make an interlocutory application for an extension of timein which to appeal.(3) If the Court or a Judge grants an extension of time, the party wishingto appeal must bring the appeal—(a) within the time specified by the Court or the Judge whengranting the extension; or(b) if no time is specified by the Court or Judge, within 20working days of the decision granting the extension of time.[8] Almond v Read is the leading authority on the application of r 29A.5The ultimate question in determining whether to extend time is what the interests ofjustice require.6 Relevant factors include the length of the delay and the reasons forit; the conduct of the parties; any prejudice to the respondent; and the significance ofissues raised by the proposed appeal.7 The merits of a proposed appeal may berelevant, but a decision to refuse an extension of time based substantially on the lackof merit of a proposed appeal should be made only where the appeal is clearlyhopeless.8Opposition by Commissioner to extension of time[9] The Commissioner opposes the application on the basis that granting anextension of time would not meet the overall interests of justice. The Commissionersays 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 wascorrectly struck out by Lang J.Analysis[10] 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 notidentified any prejudice caused by the delay.[11] However this is one of those rare cases where the merits of the proposed appealare relevant to whether an extension should be granted. The difficulty Mr Russellfaces is that his pleading does not set out any factual allegations at all againstthe Commissioner. In order to bring a claim against the Commissioner, he needs to5 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.6 At [38].7 At [38(a)–(e)].8 At [39(c)].plead the essential facts on which the claim is based. The pleading should also identifythe nature of the claim: it appears to be some sort of judicial review proceeding, thoughthat is not clear.[12] If Mr Russell did pursue his appeal on the basis of the current statement ofclaim, which contains no allegations at all against the Commissioner, it would beimpossible for the appeal to succeed.[13] A plaintiff who opposes a strike out application is able to file an amendedpleading, or propose amendments to their pleading, in order to fix any defects inthe original statement of claim.9 Amendments to the pleading may mean that it doesdisclose an arguable cause of action, so it will not be struck out. But the problemMr Russell faces in this case is that any amendment that fixes the defect in the originalstatement of claim — a complete absence of any allegations against the Commissioner— would involve an entirely new pleading against the Commissioner. That newpleading would not have been the subject of any consideration in the High Court. Sothis Court would be dealing with the strike out application as, in effect, a first instancecourt. That would not be in the interests of justice.[14] Nor is there any need for Mr Russell to appeal in order to bring a claim againstthe 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 himamending his existing proceeding against the Board to include a properly pleadedcause of action against the Commissioner. There is nothing to be gained by Mr Russellpursuing a hopeless appeal in this Court in relation to his previous pleading, whichwas plainly inadequate, when he can simply amend his pleadings to include a properlypleaded claim against the Commissioner. He does not need to appeal in order to dothat. An appeal would be a slower and more expensive route to the same outcome.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 iscapable of effective repair"; and CED Distributors (1988) Ltd v Computer Logic Ltd (in rec)(1991) 4 PRNZ 35 (CA).10 Another option for Mr Russell, which would be more informal and less complex and expensive topursue, would be to make a complaint to the Ombudsman about the way in which his complaintto the Commissioner was handled.Result[15] We therefore dismiss Mr Russell's application for an extension of time toappeal under r 29A.Costs[16] Mr Russell is representing himself. He had a right of appeal which he failedto exercise in a timely way, for understandable reasons. With the benefit of legaladvice, he might well have realised that pursuing an appeal was not an appropriateoption and that he could simply start again in the High Court if he wished to do so. Inthose circumstances we do not consider that an award of costs is appropriate.