KALINOWSKI v MIDWIFERY COUNCIL [2023] NZHC 3045

KALINOWSKI v MIDWIFERY COUNCIL [2023] NZHC 3045 [31 October 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2023-485-268[2023] NZHC 3045BETWEEN IRENE CHAIN KALINOWSKIPlaintiffAND TE TATAU O TE WHARE KAHU –MIDWIFERY COUNCILFirst defendantSUSAN CALVERTSecond defendantJESSICA SCHREIBERThird defendantPHYLLIS HUITEMAFourth defendantBOARD MEMBERS NIKITA TAIAPA,KAREN DANIELLS, DAN MOORE,NGARANGI PRITCHARD, KERRYADAMS, CHRIS MALLON, MELANIETARRANT, MAHIA WINDER, JUDECOTTRELL, BEA LATHAMFifth defendantsHearing: 24 August 2023Appearances: Applicant in person (with support person T Lynch)J L Schwarcz for First DefendantJudgment: 31 October 2023JUDGMENT OF GRICE J(Application for strike out)Introduction[1] Te Tatau o Te Whare Kahu Midwifery Council of New Zealand (the Council)applies to strike out the statement of claim filed by Ms Irene Kalinowski, whom I willrefer to as Irene at her request. Under theHealth Practitioners Competence Assurance Act 2003 (the Act), the Council is theregistration authority and is responsible for determining whether a person is fit topractice as a midwife in New Zealand. Irene, a midwife, is presently suspended fromher registration as a midwife and faces disciplinary charges.[2] The statement of claim as pleaded alleges that the Council has acted unlawfullyin suspending Irene from her registration as a midwife. The relief sought, among otherthings, is:(a) removal of the suspension notice;(b) a public apology;(c) damages of $750,000 (which appears to be five years' loss of earnings);(d) consequential damages of $1 million, together with $500,000 perannum until the matter is resolved; and(e) exemplary damages.[3] The strike out application is made on the basis that the claim is likely to causeprejudice or delay to the Council given the nature of the pleadings; it is an abuse ofprocess; it is frivolous or vexatious; and it discloses no reasonably arguable cause ofaction. In addition it says the relief sought is not available to the plaintiff.11 The application to strike out is made under r 15.1 of the High Court Rules 2016.Background[4] Before the COVID-19 pandemic, Irene had been a midwife for many years.She has practised in the United Kingdom and had been a registered midwife with theNew Zealand authorities since 1995. Until January 2021 she was registered with theCouncil as required under the Act.[5] On 5 December 2021, Irene requested that the Council remove her name fromthe midwives register in an email to the Council's generic email address.[6] Before the Council responded, on 22 December 2021, the Council received anotification from Ms Emma Farmer, the Director of Midwifery at theWaitematā District Health Board (the DHB) that Irene had not receivedher COVID-19 vaccinations as required by the COVID-19Public Health Response (Vaccinations) Order 2021 (the Order). Irene was copied intothis email correspondence. Ms Farmer noted that Irene believed that she was "able tolegitimately practice via the auspices of the Wakaminega Health Council." Ms Farmerstated she did not believe this organisation had any legal standing and advised theCouncil that Irene's maternity facility access agreement had been suspended and shehad been notified.[7] The Council acknowledged the notification and indicated that the matter hadbeen referred to the Ministry of Health for investigation.[8] Later that day, Dr Calvert asked Ms Farmer to confirm for theMinistry of Health's enforcement team that Irene did not provide care to a patient whoIrene had earlier advised the DHB she was bringing into the hospital to provide carefor. Ms Farmer confirmed that the patient's care had been transferred to anotherpractitioner upon the patient's admission to hospital.[9] On 31 December 2021, the Council received a letter from Irene dated7 December 2021 that again requested the Council remove her name from the register,which provided:As Settlor I: :Irene-chain: Kalinowski. (Irene Chain Kalinowski) herebyannul, abrogate and cancel this trust registration No.15-111-93 of theTe Tatau o te Whare Kahu Midwifery Council under the rules and principlesof Equity.Any further attempts of communication In regards to my obligation toRegistration No:15-111-93 of the Te Tatau o te Whare KahuMidwifery Council shall determine that the named person in communicationhas interpreted the documents in their own interest to become a constructivetrustee.Your Sincerely,:Irene-chain: Kalinowski. Irene Chain Kalinowski[10] On 10 January 2022, the Council received another notification from a midwifethat alleged Irene was "practising working for Wakaminenga Health Council" and was"charging women and that babies were not being registered so no NHI or birthcertificate would be issued."[11] The notifications of concern from the two midwives about Irene alleged thatshe was practising midwifery while not vaccinated. This would have been in breachof the Order in force. It is common ground that Irene was not vaccinated.[12] On 12 January 2022, the Council considered the notifications from themidwives and decided to propose suspending Irene's Annual Practising Certificate(APC) under s 69 of the Act.[13] On 13 January 2022 the Council emailed a letter to Irene outlining theCouncil's proposal to suspend her APC and the reasons for it. It advised that sheshould make any response or submissions on the proposal to suspend the APC by12pm on 20 January 2022. The letter went on to say that the Council would thenconsider whether to refer the allegations that Irene was practising midwifery in theclinical environment while unvaccinated to a Professional Conduct Committee (PCC)for investigation under s 71 of the Act.[14] The Council responded to Irene's requests to remove her name from theregister on 18 January 2022, following the Christmas break. The Council advisedIrene that the process required including completing the form.[15] Having received no response from Irene about her proposed suspension, theCouncil finalised the suspension under s 69 of the Act and referred her to a PCC unders 68. The Council informed Irene of her suspension on the date it took effect,25 January 2022. Pursuant to this suspension, Irene was prohibited from performingany aspect of the midwifery scope of practice. Dr Calvert updated the register toreflect Irene's suspension.[16] On 26 January 2022, the Council emailed letters to theHealth and Disability Commissioner, the Accident Compensation Corporation and theDirector-General of Health informing them of Irene's suspension and the Council'sview that Irene's practice may pose a risk of harm to the public.[17] Following that, the Council received a letter by post on 11 February 2022 fromIrene titled "Notice", dated 4 February 2022, which contained information concerningvaccination deaths and injuries. It also referred to Dr Calvert as attempting to: enforce statutes against Beneficiary and has therefore interpreteddocuments in her own interest to become a constructive trustee and alsoadmit to conspiracy and coercion Re; Imperial Laws Application Act 1988,Section 5 Common Laws of England apply to which a sentence of 7 years jailapplies.[18] The document attached the Council notification to her of 25 January 2022advising Irene of its decision as well as Irene's notice of 7 December 2021.[19] The document referred to the board and its employees in their capacities as"conspiring and coercing Beneficiary to be party in the deception of mandate toprocure the administration of a substance officially recorded to cause death and seriousinjury".[20] The document was signed in the signature block following the words "WithoutPrejudice - Without Recourse - All Rights Reserved" followed by "Non-Assumpsit -Errors & Omissions Excepted". It was signed by ":irene-chain: (Beneficiary)" with athumb print on the signature line and the description after her name of "NAME,Sui Juris In the role of Beneficiary-Settlor".22 Emphasis in original.[21] Irene was also apparently in correspondence with the DHB. Ms Farmerforwarded the Council letters the DHB had received from Irene which were signedoff:3Irene Chain KalinowskiHead of Wakaminenga Midwifery CouncilWakaminenga Health council.[22] On 15 March 2022 the Council advised Irene of the members of the PCC thatwould be investigating the allegations against her. It noted she had five working daysin which to raise any objections to the proposed membership and if no objections wereraised the membership would be confirmed. The Council received no response to theletter.[23] On 17 June 2022 the convener of the PCC wrote to Irene advising her that theinvestigation had been commenced and seeking information. This included the namesof clients seen by Irene from 1 October 2021 to 15 November 2021 and their records.On 11 August 2022 the Council received a letter from Irene addressed to the convenerapparently relating to a letter sent by the investigating committee asking a number ofquestions and advising that it was a advising there was a cease and desist order untilthe dispute was finalised" and advising there was a "lien lodged against the PPSP" ofone of the panel members".[24] In June and July 2022, the Council received notifications from third parties,including the DHB, that led to the expansion of the PCC investigation. Notice of theexpanded scope of the PCC was sent to Irene on 18 August 2022.[25] From August 2022, Irene sent a number of letters and documents to the Counciland the convener of the PCC as well as Council staff. The gist of that material wasthat the Council, the Ministry of Health and others had acted unlawfully in relation tothe vaccination rules and regulations and the enforcement of regulatory andinvestigatory processes against her.3 Emphasis in original.[26] Included in that material was a "Notice to cure" dated 2 December 2022 to theCouncil and board members stating that they had had more than 30 days to rebut anaffidavit sent by Irene and this "unrebutted Affidavit stands is Truth at Law andJudgement in Commerce." The notice purported to require the curing of "thisdeficiency within 7 days" or the "Settlor: :Irene-chain:Kalinowski. AndIRENE CHAIN KALINOWSKI may terminate for default under the terms andconditions of the Termination clause of this contract." The affidavit referred to adocument headed "Notice of Liability & Cease and Desist" dated 2 November 2022which refers to the "correction of unlawful processes and misleading information" aswell as the wrongful and unlawful actions of the Ministry of Health and the Councilrelating to vaccination requirements. Reference was made to a number of sourcesincluding the "United Nations Declaration of Indigenous Peoples"4 and the"Crimes act 1961: section 20: Act of Necessity."[27] The affidavit referred to Irene being a midwife under"Wakaminenga Hauora Health Council under Māori Jurisdiction".Principles relating to striking out claims[28] Rule 15.1 of the High Court Rules 2016 (the Rules), insofar as is relevant here,provides:15.1 Dismissing or staying all or part of proceeding(1) The court may strike out all or part of a pleading if it—(a) discloses no reasonably arguable cause of action, defence, orcase appropriate to the nature of the pleading; or(b) is likely to cause prejudice or delay; or(c) is frivolous or vexatious; or(d) is otherwise an abuse of the process of the court.(3) Instead of striking out all or part of a pleading under subclause (1),the court may stay all or part of the proceeding on such conditions asare considered just.4 I infer Irene was referring to the United Nations Declaration on the Rights of Indigenous PeoplesGA Res 61/295, A/Res/61/295 (2007).[29] Where a pleading discloses no reasonably arguable cause of action or isotherwise an abuse of process, an order striking out the whole or part of pleading maybe appropriate.5 A court will not strike out a claim summarily unless it can be surethat it cannot possibly succeed.6[30] Typically, in strike out hearings the court assumes that pleaded facts, whetheror not admitted, are true.7 That does not, however, include pleaded allegations whichare entirely speculative and without foundation.8[31] In relation to striking out a claim as an abuse of process in Commissioner ofInland Revenue v Chesterfields Preschools Ltd, the Court of Appeal said:9[89] The grounds of strike out listed in r 15.1(1)(b)–(d) concern the misuseof the court's processes. Rule 15.1(1)(b), which deals with pleadings that arelikely to cause prejudice or delay, requires an element of impropriety andabuse of the court's processes. Pleadings which can cause delay include thosethat are prolix; are scandalous and irrelevant; plead purely evidential matters;or are unintelligible. The statement of claim[32] On 2 June 2023, the Council received documents including the statement ofclaim. In the claim, Irene names the Council as first defendant. The second to fifthdefendants include employees of the Council, the chair of the PCC and boardmembers. It appears of the defendants only the Council has been served to date.[33] The intituling refers to the following:In the Matter of: 1. Un Rebuttal of Sworn Affidavit,2. Default of 3 attempts of Notice to Cure.3. Breach of Contract.4. Deceit.5. Constructive Trustees.6. Conspiracy and Coercion.5 High Court Rules 2016, r 15.1(1)(a) and (d); and Dotcom v District Court at North Shore [2018]NZCA 442, [2018] NZAR 1859 at [14].6 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33] per Elias CJ andAnderson J.7 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.8 Dotcom v District Court at North Shore, above n 5, at [15].9 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR679 (footnotes omitted).7. Harm to professional reputation andstanding NEWZEALAND and Global.8. Demise of Health.9. Obstruction to Right to life and to earn aliving.UNDER Civil law, Contract and Commercial LawAct 2017, Rules and principals of Equity,Ture Tikanga, He Wakaputanga, CommonLaw England & Magna Carta 1215,Crimes act 1961 95B, HPCAA2003, Trusts Act 2019, Fair trading act1986, UN CEDAW 1981Imperial Laws Application Act 1988.UNDRIP. Employment Relations Act, 2000.[34] The pleading is difficult to follow. It is largely narrative and annexes 27documents. The documents include articles about the effects of COVID-19 vaccinesand misinformation on those vaccines. Also included is a document claimingWakaminenga Hauora "is officially endorsed by the Taumata National WakaminengaConfederation of the United Tribes."[35] While the paragraphs in the statement of claim are numbered, the paragraphnumbers are repeated, in some cases three times.[36] The claim alleges among other things:(a) The Council and/or the other defendants have breached the "TrusteeAct 2019",10 ss 41, 42 and 142 of the Act, Employment Relations Act2000, s 95B of the Crimes Act 1961 and the Contract and CommercialLaw Act 2017.(b) The Council and/or the other defendants have defaulted on three"notices to cure".(c) The Council and/or the other defendants have failed to respond to asworn affidavit.(d) The Council is a constructive trustee and Irene is a beneficiary.10 I infer Irene is referring to the Trusts Act 2019.(e) The Council has made false statements about unvaccinated midwivesputting the public at risk. The vaccination requirements are unlawfuland have caused her loss due to having to cease practice.(f) The Council "has no jurisdiction of : Irene-Chain: Kalinowski.Living wo(man) under Māori Jurisdiction in which the WakaminengaHauora Health Council, endorsed by the Northern United ChiefTribes."The Council's submissions[37] Mr Schwarcz, for the Council, submitted that it was difficult to identify discretecauses of action in the claim. He noted various areas of concern, including that theproceedings were an abuse of process. Apart from the fact that the relief sought wasoutside the power of the Court in the judicial review proceedings, he pointed out thatthe proceedings were filed for an improper purpose, namely to frustrate thedisciplinary proceedings which were in progress. He further says the claim raisedarguments that had no logic, appearing to suggest that the applicant was not subject tocourt authority. He submits an appeal from the outcome of the disciplinaryproceedings would provide the more appropriate pathway to a remedy.Irene's submissions[38] Irene's written submissions affirmed on 21 July 2023 are referred to asauxiliary to her submissions affirmed 26 June 2023. Like the statement of claim, thesubmissions are difficult to follow. They attach 11 appendices, including Irene's CVand references in relation to Irene's work as a midwife. Irene made oral submissionswhich went some way to clarify her claim.[39] At the outset of her submissions, Irene handed up a "Trust:Deed Certificate"which purported to certify that Irene was a "soul [sic] beneficiary to this legal name:IRENE CHAIN KALINOWSKI". The certificate: confirms the notice of intent to restate trust by a TRUST. By being solebeneficiary to this legal name, promises not to participate in the "fraud" asthey are not a legal practitioner.[40] It is signed by Tracy Lynch, Linda Reid and Irene. Attached to it as a "Claim:Deed Claim by Beneficiary over the Legal Name" which appears to give Irene thelegal name Irene Chain Kalinowski and is sealed by a seal engraved "the customaryseal of Poupatate".[41] In her oral submissions Irene indicated she did not wish to pursue anyarguments that related to her having the right to practise under an alternative authorityto that of the Council. Her statement of claim and written submissions had said thatshe had authority to practise as a midwife from the "Wakaminenga MāoriGovernment". Since writing those she said she had found out that she had beendecieved by that organisation and she and other midwives had not received their"cards" from that organisation.[42] Irene gave an explanation as to the circumstances that gave rise to the chargesshe was facing now. For instance, she and other midwives had received the notice thatthey were required to stop working because they were not vaccinated. This requiredher and other midwives to move a number of women that they were looking after tonew midwives. They were unable to find new carers. She therefore gave the womenpost-dated laboratory forms so at least they could get their required tests and scans asneeded. Irene said she was now in a position where she could not "look or speak" toa pregnant woman.[43] Irene said that she had taken no payment from the woman it was alleged thatshe had been caring for. She also said that in one case she had been seen in a clinicalsetting but she had only been supporting a friend who had no family. Irene was justsitting with her and had not been acting professionally in the role of a midwife.[44] Irene said at the time she was ill in any event and she had decided she no longerwished to practise, which was why she sent in her letter purporting to cancel herregistration.[45] Irene also said that she had not received a response to a number of her queriesto the Ministry of Health questioning research supporting mandating of the COVID-19vaccines for midwives. She also questioned the right of the DHB to suspend hercontract.Analysis[46] The claims in the statement of claim disclose no reasonably arguable cause ofaction. They appear to be in the nature of judicial review but seek damages. Theyreferred to Irene having another legal identity, although the effect of that is not clear.They allege that the Council is a constructive trustee, that it has failed to desist andrespond to affidavits and therefore the claims are made out.[47] The pleadings do not disclose a viable cause of action. They are prolix,irrelevant and plead purely evidential matters or are unintelligible.11[48] Irene was a practising midwife and using that title. She is subject to theauthority and disciplinary procedures established by the Council. The Council has theability to suspend a midwife's APC if the conduct of the midwife, in the opinion of theCouncil "held on reasonable grounds, casts doubt on the appropriateness of the[midwife's] conduct in his or her professional capacity."12 The authority of theCouncil over midwives practising and/or using that title is not dependent on thepractitioner's agreement.[49] The Council must follow processes, such as telling the midwife why it isproposing to suspend them pursuant to s 69 of the Act and giving the midwife areasonable opportunity to make written submissions and be heard on the question. Themidwife under s 106 of the Act has the right to appeal the s 69 suspension to theDistrict Court.13 The fact that Irene had surrendered or attempted to surrender herAPC prior to receiving notice of the intention to suspend her does not take her outsidethe authority of the applicant nor the application of the disciplinary processes.11 Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 9, at [89].12 Health Practitioners Competence Assurance Act 2003, s 69(1)(b).13 Section 106(1)(d).[50] I am satisfied that the required processes appear to have been followed. Irenesaid she did not read the letter advising her of the proposal to suspend and giving hertime to make submissions until some time after it was received. However, the Councilhas filed an affidavit of service of the letter. It was served on the email address thatshe had provided as her address for service in her registration details. I am satisfiedthat it was duly served on her.14[51] That the applicant had not directed the Registrar to cancel Irene's entry in theregister immediately upon her request does not affect the applicant's authority tosuspend Irene. Irene had not provided the information required for the authority to acton the cancellation and by the time it considered the request it could not act upon it.It has a discretion as to whether to direct the cancellation of the registration.15 Theapplicant must not direct the Registrar to cancel the entry in the register relating to ahealth professional if there are criminal or disciplinary actions pending against thepractitioner.16[52] Irene makes allegations against the Ministry of Health concerning theCOVID-19 vaccination requirements, and against the DHB staff for makingcomplaints against her. Neither the Ministry of Health or the DHB nor its staff areparties to these proceedings.17[53] Irene also makes allegations against staff and members of the boarddisciplinary committee. The claims made against these defendants are similar to thosemade against the applicant. They include acting on "unsubstantiated evidence". Forthe same reasons the claim must be struck out against the applicant, it should be struckout against the other defendants. In addition the defendants have no civil liability foracts done in the course of the performance of their duty.18 The acts alleged fall withinthis immunity.14 Section 156(1)(c) and (2A) provide that service may be effected by sending it to the electronicaddress provided by the person as an address for service. It is treated as having been received bythe person on the working day after which it was sent.15 Section 142(1).16 Section 142(2).17 The validity of the Order requiring midwives to be vaccinated was upheld in the decision of FourMidwives v Minister for COVID-19 Response [2021] NZHC 3064, [2022] 2 NZLR 65 at [3].18 Health Practitioners Competence Assurance Act, s 119(1).[54] I strike out the claim in its entirety.[55] Irene had also filed an interlocutory application without notice dated 10 August2023 which referred to being unable to serve board members personally. However,Irene had served the Council.19 The memorandum set out grounds which repeated insome respects those pleaded in the statement of claim. It is not necessary to deal withthat interlocutory application given that I have struck out the statement of claim.Costs[56] If costs are sought any application must be filed and served by memorandumon or before five days from the date of this judgment. Any response must be filed andserved by memorandum within a further five days. Any reply must be filed and servedwithin a further three days.Further submissions[57] On 19 September 2023, following the hearing, Irene filed further submissionswhich related to the scope of practice for midwives.20 No leave had been granted forthe filing of further submissions. The Council opposed the granting of leave for furthersubmissions by memorandum dated 23 September 2023. It noted that Irene had beensuspended for actions alleged to have taken place within the scope of practice. Thefurther submissions do not raise any pertinent considerations and are not relevant tothe issues before the Court.21 For that reason leave is not granted._____________Grice JSolicitors:Luke Cunningham Clere, Wellington19 Referred to in Kalinowski v Te Tatau o Te Whare Kahu Midwifery Council HC Wellington CIV-2023-485-268, 16 August 2023 (Minute of Grice J).20 "Notice of Scope of Practice and Related Qualifications Prescribed by the Midwifery Council"(13 August 2004) 120 New Zealand Gazette 2956.21 Practice Note [1968] NZLR 608.