MARKS V DIRECTOR OF HEALTH & DISCIPLINARY HC WN CIV-2006-485-864

MARKS V DIRECTOR OF HEALTH & DISCIPLINARY HC WN CIV-2006-485-864 4 April 2007IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2006-485-864UNDER the Human Rights Act 1993 and the Health and Disability Commissioner Act 1994 IN THE MATTER OF a decision of the Human Rights Review Tribunal dated 23 December 2005 BETWEEN JOHN MARKS Appellant AND DIRECTOR OF HEALTH AND DISCIPLINARY PROCEEDINGS Respondent Hearing: 19 March 2007 Appearances: C J Hodson QC for Appellant J Hughson for Respondent J A L Oliver for Tribunal Judgment: 4 April 2007 at 10 am In accordance with r 540(4) I direct the Registrar to endorse this judgment with a delivery time of 10.00am on the 4 th day of April 2007.JUDGMENT OF CLIFFORD J Introduction[1] The appellant has filed three proceedings in the High Court relating to an interlocutory decision of the Human Rights Review Tribunal ("the Tribunal") made on 23 December 2005 ("the Tribunal's Original Decision"): a) a notice of appeal dated 19 January 2006 ("the Appeal Proceedings");b) an application dated 5 February 2006 for special leave to remove the Tribunal's Original Decision to the High Court ("the Leave Proceedings"); and c) an undated statement filed 23 February 2006 seeking judicial review of the Tribunal's Original Decision ("the Review Proceedings"). [2] On 19 March 2007, and by agreement between counsel, I heard argument on the preliminary point of whether the High Court has jurisdiction as regards all or any of these proceedings, given the terms of the Human Rights Act 1993 ("HRA"). [3] I note that Mr Oliver appeared for the Tribunal pursuant to a notice of intention to appeal dated 29 August 2006, with the appellant and the respondent agreeing that an appearance by the Tribunal was appropriate. [4] This is my decision on that question of jurisdiction.Factual background[5] The appellant is a psychiatrist practising in Gisborne. On 15 October 1999, a patient of the appellant died as a result of a suicide attempt the previous day. The respondent subsequently brought a claim to the Tribunal on behalf of that person's parents for compensatory damages under s 57 of the Health and Disability Commissioner Act 1994 ("the Act"). The claim asserts that the parents have suffered humiliation, loss of dignity and injury to their feelings as a result of the inadequate care provided to their son by the appellant, which they claim led to his death. [6] The appellant applied to strike out the proceedings before the Tribunal on the basis that the parents were not "aggrieved persons" within the meaning of s 54 of the Act, as they were not "consumers" of the health services of the appellant. The Tribunal's Original Decision found that the parents were aggrieved persons, and declined to strike out the claim.[7] In response to the appellant commencing the Appeal Proceedings, and in a Minute dated 15 February 2006, the Chairperson of the Tribunal drew counsel's attention to the decision of Chisholm J in Director of Human Rights Proceedings v Smith HC CH CIV-2004-409-480 23 April 2004. That decision indicates that there is no right of appeal from an interlocutory decision of the Tribunal. The Chairperson invited counsel to explore other options. [8] Counsel for both the appellant and the respondent then filed a joint memorandum to state a case for the opinion of the High Court. In a further Minute dated 2 May 2006, the Chairperson expressed the view that this option was also not available once the Tribunal had delivered its decision. In doing so the Chairperson indicated that, in his view, the most secure way forward might be for the parties to proceed on an application for judicial review of the Tribunal's Original Decision. [9] Mr Hodson, the Director having withdrawn her support by this time, then filed a memorandum inviting the Tribunal, on a number of grounds, to remove the question to the High Court. These were: a) by way of appeal under either s 95 or s 123 of the HRA; or b) by way of case stated under s 122(1) of the HRA; or c) with the leave of the High Court, pursuant to s 122A(1) of the HRA. [10] In a decision dated 11 August 2006, the Tribunal declined to refer the case to the High Court by any of those means. The Tribunal expressed some sympathy for the appellant's position, agreeing that it would be preferable for the question of the respondent's standing to bring a claim to be resolved by the Court before the Tribunal continued with the substantive hearing, but simply did not find any statutory basis for such a referral. [11] It would appear that the Appeal Proceedings, still being on foot in the High Court notwithstanding the activity before the Tribunal, were at some point allocated a fixture of 19 March 2007. The Leave Proceedings were then filed on 5 February2007. In a joint memorandum of all three counsel, dated 23 February 2007, and by reference to the Review Proceedings filed that day, it was agreed that all issues should be heard at that fixture. [12] As noted, counsel subsequently agreed to limit the hearing before me to the question of the High Court's jurisdiction.Discussion[13] I will consider each of the grounds relied on by the appellant in turn.Appeal[14] Mr Hodson acknowledged the authority of Smith, in which Chisholm J held there would be no appeal under s 123(2)(a) from a decision of the Tribunal which did not dismiss a proceeding. As the Tribunal's original decision did not dismiss the Director's proceedings, there is no appeal under that provision. [15] Mr Hodson argued, however, that the Tribunal original decision did constitute a final determination, and therefore a right of appeal existed under s 123(2)(e). His essential submission was, referring to the Tribunal's response to the parties' earlier request that the Tribunal state a case to the High Court:If the decision in question is so final that it cannot be the subject of a case stated, then it must logically be a final determination of the Tribunal in the proceeding and therefore amenable to appeal under s 123(2)(e).[16] He pointed to the fact that the section uses the word "a", not "the. [17] I am not persuaded by those submissions. [18] I think that to suggest there is a dichotomy between matters not subject to the case stated procedures, and rights of appeal, is not to take account of the overall scheme of the sections. That is, in my view, and as correctly identified by theTribunal, there are only limited rights to refer interlocutory matters from the Tribunal to the High Court. [19] Furthermore, to construe the reference in s 123(2)(e) to "a final determination" of the Tribunal in the manner contended for by Mr Hodson would, in effect, be to provide a virtually unlimited right of appeal to the High Court, including on interlocutory matters where even in civil proceedings no such right of appeal would exist.Case stated: leave[20] I think the Tribunal construed the provisions of ss 122 and 122A correctly. As stated by the Tribunal, in my view they provide for the stating of cases under s 122, and removal under s 122A, before, but not after, the Tribunal has determined the matter in question. These provisions are not intended to provide any form of appeal from a determination of the Tribunal, but rather to allow the Court to hear and determine the particular matter at first instance. [21] I therefore decline Mr Hodson's applications as regard the stating of a case under s 122(1) or removal pursuant to s 122A. [22] I note that in reaching my view on the extent of appeal, case stating and removal issues, I am essentially adopting the conclusions reached by Chisholm J in his decision in Smith.Judicial review[23] The Human Rights Act itself makes no reference, in any of the sections relevant for these purposes, to judicial review. This is not surprising. Although Parliament may specifically divest the Court of its inherent review jurisdiction, this step is very rarely taken. An example of a statutory scheme which does limit the power of review is found in the Employment Relations Act 2000. In that Act, exclusive jurisdiction to review a decision of the Employment Relations Authority isconferred on the Employment Court, rather than the High Court. The power to hear a review is also restricted. [24] There are no such provisions in the HRA. Therefore, and although I would be reluctant to allow judicial review in this case in a way that was clearly at odds with the relatively clear scheme of the Act, the absence of any restriction on judicial review allows me to exercise my discretion in deciding whether review is appropriate in these circumstances. At the same time, I note here that the Tribunal's original decision involved a quite difficult question of law that has decided the shape of the substantive proceeding and, as I understood Mr Hodson's submission, in effect whether the substantive proceeding continues at all. It has also been indicated that not only does the appellant wish this matter to be reviewed by the High Court, but that both the respondent and the Tribunal either invite the High Court to undertake that review, or are happy to abide the order of this Court providing for that review. I am also advised that the Tribunal's Original Decision has significance for a number of other proceedings that the Tribunal may now or in the future be called upon to decide. [25] In those circumstances, and with all of the parties effectively inviting the Court to consider the Tribunal's Original Decision by way of the appellant's application for judicial review, in my view it is appropriate for this Court to accept jurisdiction as regards the Review Proceedings. __________________Clifford JSolicitors: Bartlett Partners, Wellington, for the Appellant Crown Law Office, Wellington, for Human Rights Review Tribunal