PIKARI AND ANOR V CROWN HEALTH FINANCING AGENCY AND ANOR HC WN CIV-2003-485-1625

PIKARI AND ANOR V CROWN HEALTH FINANCING AGENCY AND ANOR HC WN CIV-2003-485- 1625 5 May 2006IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2003-485-1625 CIV-2004-485-746 (AND ALL RELATED PIKARI PROTOCOL NO. 2 FILES)BETWEEN JOHN DAVID PIKARI (ALSO KNOWN AS JOHN HEMI PIKARI) Plaintiff AND JOHN LYNWOOD BOOTH AND OTHERS Plaintiffs AND CROWN HEALTH FINANCING AGENCY Defendant AND THE ATTORNEY-GENERAL (IN 2004- 485-746) Second Defendant Hearing: 2 May 2006 Appearances: R. Chapman and A. McEwan for Plaintiff Pikari and Other Plaintiffs S.M. Cooper, S.E. Mitchell and K.R. Ross for Plaintiff Booth and Other Plaintiffs H.S. Hancock and U.R. Jagose for Defendants Judgment: 5 May 2006 at 11.45am In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 11.45am on the 5 th day of May 2006.JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALLIntroduction[1] The defendant applies for an order for examination of Russell James Flahive as a witness in these proceedings before a Registrar or Judge at the Hamilton High Court. The application is made pursuant to Rule 369 High Court Rules. [2] These proceedings involve historic claims by a group of former psychiatric patient plaintiffs. The plaintiffs seek damages and allege that over various times during which they were patients at psychiatric hospitals in this country, they were subjected to various forms of improper care and treatment including seclusion, physical and sexual assaults by other patients and staff, use of ECT and medication as forms of punishment and the like. [3] The broad grounds upon which the present application is made is that the witness Mr Flahive has material evidence important for a large number of the claims in the present proceedings, and that his evidence should be taken prior to trial, a trial which is quite some time away, as he has recently been diagnosed with a severe medical condition which is progressive and ultimately likely to be fatal.Counsel's Arguments[4] Rule 369 High Court Rules provides the Court with a wide discretion when considering whether to grant leave to take evidence prior to trial. [5] McGechan on Procedure at paragraph HR369.04 states:HR369.04 Location of witnessWhether an order will be made at all is a matter of discretion. Where the intended witness is within New Zealand, orders have been common in the case of illness, inability to travel, or intended departure abroad (in the latter case when hearing is still distant)And at para HR369.07 McGechan states:HR369.07 DiscretionJurisdiction to make the order is discretionary; the prime criterion is whether justice required an order: Ra Ora Stud Limited v Oliver (1991) 5 PRNZ 132.[6] That assessment of whether justice requires such an order to be made is to be guided by broad principles established from the authorities along the following lines: a) There is no hard and fast rule: the discretion must be exercised in the circumstances of the particular case: NZ Towel Supply & Laundry Ltd v NZ Tri-cleaning Co Ltd [1935] NZLR 204 (CA). b) Prejudice to the applicant in not having the order granted needs to be weighed against any prejudice to the other parties if the order is granted: Hill v Innes and Co Ltd [1957] NZLR 1016, Iversen v Zendel Industries (NZ) Ltd (1993) 7PRNZ 205. c) The proposed evidence must be material to the issues in the litigation:NZ Towel Supply & Laundry Ltd v NZ Tri-cleaning Co Ltd [1935] NZLR 204 (CA), McGechan para HR369.16. d) Safeguards can be put in place to ameliorate any prejudice to the other parties, for example, reserving rights to seek further cross- examination of a witness: Iversen, and McGechan para HR369.14. e) The discretion is unlikely to be exercised in an applicant's favour where the Court considers that the application is made other than in good faith, for example to delay proceedings or to embarrass another party: Platt v Platt [1948] NZLR 5, McGechan para HR369.10. [7] Mr Flahive is 76 years old and is clearly in failing health. Recently he has suffered malignant melanoma (including metastatic disease) which apparently has a high risk of recurrence. He also has a blood condition (myelodysplastic syndrome), which is a progressive and ultimately fatal disease. [8] Before the Court are affidavits filed for the defendants by a Dr Goodman, a consultant haemotologist, and by a Dr Round, a radiation oncologist and palliative care specialist. Both doctors conclude that the prognosis for Mr Flahive is poor. Hiscondition is clearly serious, and Dr Goodman deposes at paragraph 8 of his affidavit: sworn 24 March 2006:Mr Flahive's illness renders his very susceptible to infection, to bleeding and to tiredness, lethargy and dysfunction of other organs due to anaemia, bleeding or infection. The condition is almost always progressive, and patients usually pass away from one of these complications over a time period, projected from now, that would average some months rather than years.[9] And (at paragraph 10):It is clear to me that Mr Flahive's ability to give evidence is limited by time (that is, the progression of his illness and risk of death should the expected complications develop), and that he should not travel any distance to attend the Court.[10] There seems, therefore, little dispute about the serious nature of Mr Flahive's illnesses and the concern over his prospects of being able to give evidence in the future. [11] As to whether Mr Flahive's evidence here is material, before me counsel for the defendant noted the following points: a) Mr Flahive worked at Porirua Hospital between 1958 and 1989, initially as a staff nurse and subsequently as a charge nurse and supervisor within the Hospital administration. b) Mr Flahive was the Chairman of the Central Committee of the Mental Health Group and a member of the National Executive Committee of the Public Service Association representing nursing staff and highlighting staffing issues to management. c) Mr Flahive was closely associated with the many changes that occurred in mental health employment and mental health care, including the Working Party that negotiated working conditions for employees involved in the transfer of mental hospitals from Health Department control to Hospital Board control in 1972.d) Mr Flahive was a member of the Hospitals Appeal Board from 1972 to 1988. In that role he dealt with matters of discipline (including hearing complaints) about mental health workers throughout New Zealand (other than at Porirua Hospital). e) Mr Flahive undertook training and research in several overseas countries in matters of psychiatry such as community care, transfer of control into Hospital Boards, and use of secure units. He was also registered as a psychiatric nurse in Tasmania, Queensland, England and Wales. [12] The defendant contends that Mr Flahive's evidence is plainly material to the allegations made by the various plaintiffs in relation to psychiatric hospitals, and not only Porirua Hospital in many cases, during the 41 year period of his employment, being 1958 to 1989. [13] Further, the defendant makes the point that only Mr Flahive is able to give evidence relating to an allegation made against him personally by Mr Leslie Wilhelm Kiriona that he, Mr Flahive, sexually assaulted Mr Kiriona (in the proceedingCarroll and Others v Attorney-General, CIV-2005-485-2515). Mr Flahive has stated that he wishes to give evidence specifically denying those allegations. [14] Counsel for the defendant notes that broadly speaking, the wide group of plaintiffs make allegations in these proceedings, generally similar in nature, of systematic and widespread patient abuse and mistreatment in several psychiatric institutions. Mr Flahive's evidence, according to the defendant, is potentially relevant to all claims made by these plaintiffs from the late 1950's to the late 1980's. His evidence would be direct as to matters relating to Porirua Hospital. The defendant notes his evidence would also allow a comparison of practices and systems in other hospitals at the relevant times. In addition, it is said Mr Flahive can comment directly on the complaints procedures in hospitals through his experiences on the Hospitals Appeal Board between 1972 and 1988. [15] I turn now to consider submissions made to me by counsel for the plaintiffs.[16] Mr Chapman at the outset noted that in this proceeding, given the nature of the evidence to be provided, the credibility of a witness such as Mr Flahive would be critical. [17] He maintained that the defendant needed to clarify now in which of the Pikari Protocol cases the evidence of Mr Flahive was to be used. This would be a major facet of the preparation required by each of the affected plaintiffs for cross- examination of Mr Flahive. [18] Next, Mr Chapman raised issues concerning discovery. He maintained that to date the Crown had produced only informal lists of documents, and that recently a very large quantity of new material (which he indicated extended to some 46,000 pages of documents) had been discovered by the defendant. He said some time would be required by the plaintiffs to properly carry out inspection and consideration of these documents, and that these steps should be completed before it could reasonably be expected that cross-examination of Mr Flahive might take place. [19] It is significant that Mr Chapman acknowledged before me that his plaintiff clients were not opposing the defendant's application that an order be made for the taking of Mr Flahive's evidence. Instead, he made it clear that the plaintiffs for whom he acted wanted to ensure that before the actual examination occurred, adequate opportunity and sufficient time was given to all plaintiffs to prepare for a proper cross-examination of Mr Flahive. [20] As a result, Mr Chapman suggested that the order should be made, but subject to a series of conditions which he proposed. These conditions in the main related first, to a requirement that the defendant specify the cases in which it would seek to have Mr Flahive's evidence admitted, and secondly, they provided for timetable orders for completion of discovery and inspection before any examination was to be scheduled. [21] Mr Chapman contended that with its present application the defendant was in effect seeking an indulgence, and in striking a proper balance here the Court should ensure that the plaintiff had the maximum possible time to prepare for the taking ofMr Flahive's evidence, given particularly that from the affidavit he has provided it is clear that this evidence will neither be short nor inconsequential. [22] So far as the opposition put forward by Ms Cooper for her group of plaintiffs is concerned, a different tack was taken. [23] Before me, Ms Cooper endeavoured to argue that it was premature for Mr Flahive's evidence to be taken now. [24] Ms Cooper contended that a range of interlocutory matters, including a decision on a strike out application heard by Associate Judge Abbott in July 2005 was still outstanding and these needed to be disposed of before any evidence could properly be heard. [25] Ms Cooper noted also the terms of the Pikari Protocol No. 2 and claimed that in making this application, the defendant was flying in the face of the agreed process set out in that Protocol.My Decision[26] I must say at the outset that I take the clear view that it is in the interests of justice for Mr Flahive's evidence here to be heard while his health remains such that he is able to give such evidence. [27] If an order for his examination was to be declined, as I see it, the defendant would most likely be left defending at least a significant number of the present claims brought against it at trial without the evidence of a person who could prove to be a key witness of fact and practice. The defendant notes that Mr Flahive recalls a number of the plaintiffs specifically, and in addition he is able to give evidence about hospital conditions and treatment of many others. [28] I turn first to Ms Cooper's submissions before me. As to her argument that it is premature for Mr Flahive's evidence to be taken now, I have little hesitation in rejecting this outright.[29] In considering the specific submissions made by Ms Cooper, I form the view that she somewhat misses the point of Rule 369. The point of the rule is that the evidence of Mr Flahive needs to be taken in advance of trial purely because of his deteriorating health. There can be no doubt that ideally it would be better for Mr Flahive to give evidence at trial, but it is clear from the medical evidence filed here that he is unlikely to survive or be competent to give evidence for much longer. This is of particular concern, given that trial dates in these proceedings are still likely to be some time off. The purpose of R.369 is specifically to allow for such evidence to be taken in advance of trial for these very reasons. [30] I find, therefore, that the uncontested evidence before the Court as to Mr Flahive's serious and deteriorating medical condition clearly supports the conclusion that it is in the interests of justice here for his evidence to be heard while he remains well enough to give such evidence, and that this should occur without delay. [31] And, as I have already noted, before me Mr Chapman on behalf of his group of plaintiffs accepted that this was the proper approach here, subject to the imposition of appropriate conditions for the process of taking that evidence. [32] A further matter of some significance needs to be mentioned. As I noted at paragraph [13] above, in proceedings brought here by a Mr Kiriona, Mr Flahive is accused of sexual abuse. As I understand it, he strenuously denies these allegations of serious criminal offending. In my view, there can be no doubt that it cannot be in the interests of justice to deprive Mr Flahive of the opportunity to give evidence in the Kiriona proceeding in which these allegations are made against him. [33] As to which cases Mr Flahive's evidence may be relevant to, the defendant has confirmed that this evidence is required in all the Pikari Protocol cases, whether they involve claims by patients of Porirua Hospital or any other hospital. In considering this aspect, I accept that under the circumstances prevailing in these claims, Mr Flahive's evidence is likely to be material to the broad issues in all the Pikari Protocol cases.[34] The prejudice to the defendant's defence in all these claims in not having Mr Flahive's evidence taken now, in my view, would clearly outweigh any prejudice which the plaintiffs may be able to identify as to the timing of that evidence, and the fact that discovery processes here may not be complete. Indeed, given Mr Flahive's failing health, the need for that evidence to be given now is acute, so that in addition, cross-examination of some sort by the plaintiffs is also available. [35] A further matter was raised by Ms Cooper. Before me she contended that as already she is counsel for 82 individual plaintiffs who were resident in Porirua Hospital, and as she has at least another 70 claims in the process of being filed, most of whom are ex-Porirua Hospital patients, there will be major cost and timing issues required in her being able to prepare for any taking of Mr Flahive's in the near future. Although that may well be the case, in my view it is not a matter for which the defendant can be held responsible. It relates to issues of logistics and the organisation of Ms Cooper's office. With respect, these must be questions for her. [36] All counsel noted before me that any ultimate trials of the various claims is a long way off. They accepted that the largest number of claims made by individual plaintiffs to date relate to Porirua Hospital patients, and I would have thought this was a further point supporting the need for the evidence of Mr Flahive, who worked in various roles at that hospital for over 40 years, to be taken without delay. [37] Finally, Ms Cooper suggested that if a full examination of Mr Flahive upon all matters to which he has referred in his detailed affidavit of 27 March 2006 is required, then three to four days would be required for this purpose, and not the two days suggested by the Crown. After reflection, counsel for all parties accepted that as a safeguard, four days should be allocated for the taking of Mr Flahive's evidence. [38] It is clear that if Mr Flahive were to die before trial, and the defendant was required to rely on the Evidence Amendment Act to seek admission of his evidence, the Court would only be able to receive his evidence in affidavit form. In that event, the Court would not have the obvious advantage of hearing and seeing the evidence from Mr Flahive as a witness himself. This would clearly prejudice the defendant. In addition, as I see it, such an approach would also be undesirable, in that it wouldprevent the plaintiffs from cross-examining Mr Flahive in any way, this being a case where all parties acknowledge that his credibility as a witness is likely to be critical. [39] For all the reasons outlined above, I find, therefore, that the interests of justice here, and indeed the interests of all parties including the plaintiffs, require that the evidence of Mr Flahive, as a key witness in a significant number of the Pikari Protocol proceedings, needs to be taken without delay. [40] It follows, therefore, that the defendant's application under R.369 for an order for examination of Mr Flahive before trial succeeds. [41] I turn now to consider the conditions upon which the order for examination is to be made. [42] As I have noted, before me all counsel appeared to accept finally that four days should be allocated for the examination of Mr Flahive. It is agreed the examination is to take place in the High Court at Hamilton, which is reasonably near to where Mr Flahive resides. [43] All counsel also appeared to agree that Mr Flahive's evidence is to be videotaped, and that his evidence is to be admitted at trial only by production of his deposition and the videotape recording together. [44] As to the date Mr Flahive's evidence is to be taken, counsel for the defendant suggested that after checking with the Registry office at the Hamilton High Court, dates around 28 and 29 May 2006 might be available. Both counsel for the plaintiffs, however, argued first that these dates provide insufficient time for the plaintiffs to inspect the defendant's discovered documents, and secondly, that discovery is essential for the plaintiffs to be properly prepared to cross-examine Mr Flahive. [45] As to these aspects, counsel for the defendant noted that since as early as November 2003 informal discovery has been provided to the plaintiffs, and that amost recent informal list of documents was provided on 13 April 2006, and those documents have been available for inspection since that time. [46] That discovery may not be fully completed before examination of Mr Flahive takes place is to some extent unfortunate, but in my view, it is a compromise which under the present circumstances must be made. Given Mr Flahive's failing health, and his likely importance as a key witness in this litigation, an early date for the taking of his evidence, as I see it, must be the paramount consideration. And, as will become apparent from the orders to be made, I propose to give to the plaintiffs the right to require an opportunity to further cross-examine Mr Flahive at a later time, which may go some way to meeting these timing concerns they have raised. [47] That said, orders in the terms outlined below are now to be made.Orders[48] The defendant's application under R.369 has succeeded. Orders are now made: (1) For the evidence of Russell James Flahive of Kawhia to be taken by examination on oath before a Registrar of the High Court at Hamilton (four days required) at the first available date after 28 May 2006, this date to be advised to counsel by the Registrar. (2) That evidence and any examination and cross-examination shall be recorded on video or other suitable medium that records both sound and picture. (3) That evidence is to be admitted at trial only by production of both the deposition and video recording together. (4) That the plaintiffs are to provide to the defendant all undiscovered documentary material on which they propose to cross-examine MrFlahive no later than 3 working days before the date set for the taking of his evidence. (5) There is reserved to the plaintiffs the right to approach the Court for an order requiring a further opportunity to cross-examine Mr Flahive subsequent to his initial examination and before trial. (6) The defendant is not to introduce the evidence of Russell James Flahive taken pursuant to this order in any other cases (which fall within the Pikari Protocol No. 2) yet to be filed without the leave of this Court, such leave to be applied for at least three months before the trial of the new case in question. [49] Leave is reserved to all parties to apply further on three days notice for amendment of this timetable if Mr Flahive's state of health demands that an earlier date for the taking of his evidence is required. [50] There is to be no order as to costs – they are to lie where they fall. ________________________________Associate Judge D.I. GendallSolicitors:Johnston Lawrence, Wellington for Plaintiff Pikari and Other Plaintiffs Sonja M. Cooper, Solicitor, Wellington for Plaintiff Booth and Other Plaintiffs Crown Law Office, Wellington for Defendants