HEALTH ADVOCATES TRUST V THE DIRECTOR OF HEALTH AND DISABILITY SERVICES CONSUMER ADVOCACY ON BEHALF OF THE CROWN HC AK CIV 2006-404-006066

HEALTH ADVOCATES TRUST V THE DIRECTOR OF HEALTH AND DISABILITY SERVICES CONSUMER ADVOCACY ON BEHALF OF THE CROWN HC AK CIV 2006-404-006066 29 November 2006ORDER PROHIBITING PUBLICATION OF ANY PART OF THE PROCEEDINGS (EXCEPT THE OUTCOME) UNTIL FINAL DISPOSITION OF TRIAL. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2006-404-006066UNDER the Judicature Amendment Act 1972 IN THE MATTER OF A judicial review application against a decision of the Director of Health and Disability Services Consumer Advocacy made pursuant to the Health and Disability Commissioner Act 1994 BETWEEN HEALTH ADVOCATES TRUST Plaintiff AND THE DIRECTOR OF HEALTH AND DISABILITY SERVICES CONSUMER ADVOCACY ON BEHALF OF THE CROWN First Defendant AND ADVOCACY NETWORK SERVICES TRUST Second Defendant AND ADVOCACY SERVICES SOUTH ISLAND TRUST Third Defendant Hearing: 29 November 2006 Appearances: AP Duffy QC, G Little and A Schaaf for Plaintiff AS Ross and PN White for Defendants No appearance for Second and Third Defendants Judgment: 29 November 2006(ORAL) JUDGMENT OF ASHER J[1] At the outset of the hearing of this application for judicial review, it is necessary for the Court to determine an application for leave to cross-examine brought by the plaintiff. [2] In an application dated 22 November 2006, the plaintiff, Health Advocates Trust ("Health Advocates") seeks to cross-examine Ms Judi Strid who is the Director of Health & Disability Consumer Advocacy Services, the first defendant. It is regrettable that this application has to be determined this late in the piece as it has taken some of the trial time available and opens the possibility of prejudice should leave be granted because of the need to prepare witnesses for the process of cross- examination. However, I accept that there is no fault on the part of the plaintiff in this regard. These are urgent proceedings that have proceeded on a very tight time- frame and the affidavit which gives rise to much of the contentious material was only filed on 10 November 2006. [3] The ability of the Court to deal with this on short notice has been assisted by the very full nature of the application. It has also been of considerable assistance to have a schedule setting out the exact points of proposed cross-examination with reference to the evidence. [4] It is necessary to refer briefly to the principles to be applied. Judicial review remains, as described by Cooke P in Minister of Energy v Petrocorp Exploration Ltd[1989] 1 NZLR 348, 353 "as a relatively simple, untechnical and prompt procedure". The position has recently been affirmed by the Court of Appeal in Commerce Commission v PowerCo Ltd (CA 123-06, 9 November 2006 at [36]). In the High Court, leave had been granted to cross-examine experts, and the Chair of the Commission. That grant of leave was reversed by the Court of Appeal. The view that cross-examination should be allowed when it could assist the Court was rejected, and it was held that cross-examination should only be permitted when it is "necessary" (paragraph 38). I interpret "necessary" as being necessary to enable the Court to do justice between the parties, bearing in mind the particular limits of judicial review.[5] I turn to the specific topics in respect of which the plaintiff seeks leave to cross-examine. In the course of receiving submissions in respect of some 14 possible heads of cross-examination, the issues have been greatly refined with some of the topics being no longer pursued and others being conceded. I record my gratitude to counsel for the realistic attitude that they have taken in this contentious and difficult area. In the end, it is only necessary for me to address three topics. [6] The first proposed topic for cross-examination is the plaintiff's challenge to Ms Strid's statement in her fourth affidavit:I did not have a pre-determined view that advocacy services would be delivered by a single entity.[7] The plaintiff has raised in its statement of claim the issue of pre- determination. I am also aware of the plaintiff's assertion that the documents do show a level of pre-determination. I do not take the view that a denial of pre- determination, or some other allegation in the statement of claim, immediately makes the deponent susceptible to cross-examination. However, in this case, given the detail of the allegation, and its specific focus on the issue of a New Zealand-wide entity, I consider it fair to allow questions on the point. They must, however, be limited to the veracity of Ms Strid's statement about pre-determination. [8] In the end, Mr Ross did not oppose cross-examination on this point. [9] The second topic relates to an assertion by Ms Strid in her affidavit of what was said in two meetings on 12 and 26 September to a manager of the first defendant, Maria Marama. Ms Strid says that she outlined certain reasons for being disappointed in the HAT proposal at those meetings. I understand that Ms Marama denies this. [10] The question of the relevance of this material may arise, given that the meetings were after the decision in question was made. However, both parties have seen it is of sufficient importance to depose to it, and to give different accounts of the meetings. There is a straight conflict between two deponents. That is the sort of conflict that a Court cannot resolve in a satisfactory way without the benefit of cross-examination. I propose to allow cross-examination on what was said between Ms Strid and Ms Marama at the meetings of 12 and 26 September 2006. In the end, Mr Ross did not oppose such a direction. [11] The third and final topic, which was contested, was Ms Strid's evidence about her evaluation of the proposals that she had received. She asserted that she assessed the competing proposals in the same way, and it is certainly implicit in her affidavit that she gave weight to budgetary shortcomings on the part of the plaintiff. Initially it appeared that the plaintiff wished to cross-examine generally on the evaluation process. This would not be permissible, as it would involve cross- examination on the merits of the decision. [12] However, it has become clear that the plaintiff is challenging the veracity of Ms Strid's assertions that she did in fact take into account the plaintiff's financial and budget position. The Court will be assisted by the documents that relate to this issue and submissions on the point. However, Ms Strid's consideration was not a judicial process, and there was no reasoned decision. I have been pointed to some documents which the plaintiff says are inconsistent with the proposition that financial and budgetary matters were relevant to the decision-making process. I express no view on whether that submission is legitimate, but I am persuaded that cross-examination is necessary to enable the plaintiff to fully put its case on the issue of whether the plaintiff's financial and budget position was relevant. [13] I do grant leave to cross-examine Ms Strid on the issue of whether indeed she did take into account the plaintiff's financial and budget concerns but I emphasise that this is not to be treated as permission for a general cross-examination on the evaluation process. [14] The issue of the first defendant's response on cross-examination issues now arises. Mr Ross does not wish to take a position at this point, which is perfectly reasonable. He does, however, reserve his position so that if, after cross- examination, he is able to apply to cross-examine other relevant witnesses himself. For instance, he may wish to cross-examine Ms Marama, who has given evidencecontrary to that of Ms Strid. I leave the question open. Mr Ross may make application at the conclusion of cross-examination if he wishes to do so. [15] This decision gives both parties a measure of success and they have both in my view taken a reasonable position. I do not propose making any specific award of costs in relation to the application. Costs in relation to this application will be reserved... Asher JSolicitors: Ferguson Tuilotolava, PO Box 76616 Manukau City Chapman Tripp, PO Box 2206 Auckland Copy to: AP Duffy QC, PO Box 4341 Shortland Street Auckland