DIRECTOR-GENERAL OF THE MINISTRY OF HEALTH v WAKAMINENGA KAUNIHERA HAUORA HEALTH COUNCIL [2022] NZHC 1765

DIRECTOR-GENERAL OF THE MINISTRY OF HEALTH v WAKAMINENGA KAUNIHERA HAUORAHEALTH COUNCIL [2022] NZHC 1765 [21 July 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2022-404-847[2022] NZHC 1765BETWEEN DIRECTOR-GENERAL OF THEMINISTRY OF HEALTHPlaintiffAND WAKAMINENGA KAUNIHERAHAUORA HEALTH COUNCILFirst DefendantJACQUES IMBEAUSecond DefendantANNA GOODWINThird DefendantContinued overHearing: 30 June 2022Appearances: S C Carter for PlaintiffThird Defendant in person, and for the First and SecondDefendantsFifth Defendant in person, and for the Fourth DefendantJudgment: 21 July 2022JUDGMENT OF PETERS JThis judgment was delivered by Justice Peters on 21 July 2022 at 3 pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ...................................AND MĀORI GOVERNMENT OF AOTEAROANU TIRENIFourth DefendantGEORGINA JOBFifth DefendantPIRIPI SHEEHANSixth Defendant[1] This judgment determines an application of 26 May 2022 by the plaintiff, theDirector-General of the Ministry of Health, for interim relief against the defendants.[2] I heard the application in the Duty Judge list on 30 June 2022. Counsel for theplaintiff, Ms Carter, appeared in support of the application. The application issupported by an affidavit affirmed on 26 May 2022 by Ms J I Birdsall, a PrincipalAdviser at the Ministry of Health. The plaintiff has also filed an undertaking indamages.[3] Dr Anna Goodwin, the third defendant, appeared for herself and, as Iunderstood it, the first and second defendants.[4] The fifth defendant, Ms Georgina Job, appeared for herself and the fourthdefendant. Ms Job introduced herself as "Arikinui Ripekatangi Georgina Job". As Iunderstand it, "Arikinui Ripekatangi" is a title (Prime Minister or Deputy PrimeMinister) in the fourth defendant.[5] There was no appearance for the sixth defendant. Dr Goodwin and Ms Jobinformed me that the sixth defendant hosts the first defendant's website.[6] Although the proceedings had been served on each defendant by the time Iheard the application, the defendants had not had the papers for long. In amemorandum she filed on 28 June 2022, Ms Job requested an adjournment. As itturned out, however, she and Dr Goodwin understood the issues and were able toenunciate their stance on them. I shall also make orders at the end of this judgmentenabling the defendants to apply to set aside.Background[7] The plaintiff brings this proceeding in respect of what are said to be breachesof the Fair Trading Act 1986 ("FTA").First Defendant[8] The plaintiff contends that the first defendant, an unincorporated society, hasrepresented and is continuing to represent:(a) that it is competent to register people in what are referred to in thestatement of claim as the "Represented Professions", these beingmedical or health professions including the medical, dental, andpharmacy professions, nursing, midwifery, and so forth;(b) that it is competent to provide those so registered with a practisingcertificate permitting the recipient to practise one or more of theRepresented Professions lawfully; and(c) that any person so registered, and to whom the first defendant providessuch a certificate, is immune from prosecution or censure by competentNew Zealand authorities and may only be held to account by the firstdefendant.[9] The plaintiff also alleges that the first defendant has purported to issuepractising certificates to former health practitioners who are not, or who are no longer,permitted to practise a profession regulated under the Health Practitioners CompetenceAssurance Act 2003 ("HPCAA"), and that those formerly registered practitioners(formerly registered under the HPCAA that is) are indeed holding themselves out as amember of one or more of the Registered Professions by virtue of registering with andholding a certificate issued by the first defendant.[10] The plaintiff's case is that the registration and certification of healthpractitioners in New Zealand, including in the Registered Professions, is governedexclusively by the HPCAA and authorities appointed under that legislation. The firstdefendant, and the fourth defendant for that matter, is not such an authority.[11] As a result of these matters, the plaintiff contends that the first defendant is inbreach of ss 9, 11, 13(b) and 13(e) of the FTA. In her proceeding, the plaintiff seeksa declaration to that effect, an order pursuant to s 41(1)(a) FTA restraining the firstdefendant from continuing to make those representations or similar, and costs.Second to Sixth Defendants[12] The plaintiff's case against the other defendants is that each is or has beendirectly or indirectly knowingly concerned in, or party to, the first defendant'scontravention of ss 9, 11, 13(b) and 13(e) of the FTA. As regards each defendant, theplaintiff has pleaded the capacity in which each has acted or purported to act. In eachcase, pursuant to s 41(3)(b) of the FTA, the plaintiff seeks an injunction restrainingeach defendant from continuing in this conduct. The plaintiff also seeks costs.Evidence[13] Ms Birdsall's affidavit, to which I referred above, provides prima facieevidence of each of the plaintiff's allegations.Defendants[14] Dr Goodwin did not dispute the allegations referred to above. Rather, hersubmission was that the first defendant is not bound by the provisions of the HPCAAor the FTA but rather has its own jurisdiction, superior to that of the plaintiff or theNew Zealand Parliament. The submission was that, as the first defendant is not boundby the FTA or HPCAA, nor are the second and third defendants.[15] Dr Goodwin filed two documents on the morning of the hearing. One isdescribed as a "Notice of Estoppel" which appears intended to be a statement ofdefence and counterclaim, and is said to be filed for the first to third and sixthdefendants. The second is an invoice for damages claimed by various individuals,many of whom are not parties to the proceeding, but essentially seeking damages forharm to their reputation.[16] As I have said, Ms Job filed a memorandum on 28 June 2022. As I have alsosaid, in this memorandum Ms Job said she had insufficient time to consider theplaintiff's proceeding and sought an adjournment. I did not grant an adjournmentbecause Ms Job was able to enunciate her position and that of the fourth defendant,and also because the plaintiff's application raises issues of public safety.[17] Ms Job's submissions were that the fourth defendant is likewise not subject tothe FTA or the HPCAA, and nor is Ms Job. The memorandum should also be treatedas a protest to the jurisdiction of the Court.Discussion[18] I propose to grant interim relief for these reasons.[19] The first is that there is clearly a serious issue to be tried. The representationsappear to be being made and "certificates" issued. Moreover, the contention that thefirst and fourth defendants operate under a different and superior jurisdiction isunsustainable. The Court of Appeal addressed a similar contention in its recentdecision in Warahi v Chief Executive of the Department of Corrections.1 In [11] ofthat decision, the Court of Appeal confirmed that Acts of Parliament, such as theHPCAA and FTA, are binding all persons and institutions within the geographicalterritory of New Zealand, and the Courts of New Zealand are required to uphold themas enacted. The defendants are as much bound as any other individual and body.[20] That serious issue threshold having been passed, the next matter to consider isthe balance of convenience. This plainly lies with the plaintiff. A clear issue as to thehealth and safety of the public arises. Members of the public may proceed on the basisthat a person is authorised or certified to practise when they are not.[21] To the extent that it is necessary, the plaintiff has, as I have said, given anundertaking in damages and any damage to the defendants can be met by such anaward.Orders[22] I make orders in terms of [1](a)(i) and (ii) of the plaintiff's interlocutoryapplication for injunction dated 26 May 2022.1 Warahi v Chief Executive of the Department of Corrections [2022] NZCA 105.Other directions[23] The defendants, or any of them, may apply to set aside the interim injunctionorders on two weeks' notice. That should be done by filing and serving an applicationto set aside and an affidavit(s) in support. The plaintiff would then have an opportunityto respond.[24] As I understood it from Ms Job, she believes that she and the fourth defendantmay be subject to orders for substituted service by email. Ms Job is in a rural locationwith poor internet coverage. It is not clear to me that an order for substituted servicehas been made against Ms Job but, in any event, for the avoidance of doubt, andpending further order, service of documents on the fourth and fifth defendants is to beeffected personally.[25] This matter is to be called in Duty Judge list at 10 am on 10 August 2022.Further directions will be made at that time. The plaintiff should file a memorandumin advance setting out the directions considered appropriate, and the defendants shoulddo likewise.[26] Costs are reserved.Peters JSolicitors: Te Tari Ture o te Karauna, Crown Law, WellingtonLuke Cunningham Clere, Crown Solicitor, WellingtonCopy for: Defendants