SPENCER v MINISTRY OF HEALTH [2017] NZHC 391

SPENCER v MINISTRY OF HEALTH [2017] NZHC 391 [9 March 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2014-404-1667[2017] NZHC 391UNDER the Human Rights Act 1993IN THE MATTER of a reference by the Human RightsReview TribunalBETWEEN MARGARET SPENCERPlaintiffAND MINISTRY OF HEALTHDefendantHearing: 7 February 2017Appearances: S L Robertson and PMC Gibbs for PlaintiffMGC Coleman & M J McKillop for DefendantJudgment: 9 March 2017JUDGMENT OF PETERS J, MR B K NEESON AND PASTOR R MUSUKUThis judgment was delivered by Justice Peters on 9 March 2017 at 12 pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ...................................Solicitors:Chapman Tripp, AucklandCrown Law Office, WellingtonCounsel:S L Robertson, AucklandMGC Coleman, Wellington[1] The Plaintiff, Mrs Spencer, applies to recall judgment given by Keane J, Mr Neeson and Pastor Musuku on 20 July 2016 ("application" and "judgment").1[2] The Ministry of Health ("Ministry") opposes the application.[3] Mrs Spencer seeks that the judgment be recalled, and amended and reissued to award interest to her from 1 October 2013 to 20 July 2016, ie the date of judgment.[4] Mrs Spencer also seeks a response to a memorandum regarding costs that her counsel filed the day after the judgment was given. In the judgment the Court awarded Mrs Spencer costs on a 3C basis and disbursements, all to be fixed by the Registrar. Counsel seeks certification for two counsel.[5] We propose to recall the judgment to make provision for the interest sought. We decline to certify for second counsel. Our reasons are as follows.Jurisdiction[6] High Court Rules, r 11.9 provides:11.9 Recalling judgmentA Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed.[7] The principles applicable to recall are set out in the judgment of Wild J inHorowhenua County v Nash (No 2):2Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled—first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, wherecounsel have failed to direct the Court's attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.1 Application on Notice by Plaintiff for Recall of judgment of Keane J dated 20 July 2016; andSpencer v Ministry of Health [2016] NZHC 1650.2 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.[8] Counsel for Mrs Spencer relies on the third ground, that is for a very special reason justice requires that the judgment be recalled.Keane J's retirement[9] Keane J retired on 21 July 2016, the day after judgment was given. It is common ground that this does not in itself preclude recall. Rule 11.9 provides that"A Judge" may recall, and indeed this is not the first occasion on which this situation has arisen.3 That said, the fact that two members of the original Court continue to be available is of assistance.Background[10] In or about 2014, Mrs Spencer brought proceedings against the Ministry in the Human Rights Review Tribunal ("Tribunal"), pursuant to s 92B Human RightsAct 1993 ("HRA").[11] As a result of a Ministry policy which rendered family members ineligible forpayment ("policy"), Mrs Spencer had been refused payment for support services that she had provided to her son Paul, who has Down Syndrome. This policy hadremained in place until 30 September 2013 ("September date") and Mrs Spencer'scase was that was discriminatory. She sought damages for the sum she had lost as a result.[12] In July 2014, the Tribunal declared itself satisfied that the Ministry had breached Part 1A HRA and it referred the issue of remedy to this Court on the basis that remedy was likely to exceed the Tribunal's jurisdictional limit of $200,000.4Mr Neeson and Pastor Musuku, being two members of the Tribunal's panel, were appointed to the Court as required by the HRA.53 Erwood v Maxted [2015] NZSC 181; Lewis Holdings Ltd v Steel & Tube Holdings Ltd [2016] NZHC 42; and The Healey Holmberg Trading Partnership v Grant (2011) 10 NZCLC 264,833, (2011) 9 NZBLC 103,182 (HC).4 Human Rights Act 1993, ss 92I and 92Q.5 Section 126.[13] At the hearing in this Court, Mrs Spencer sought damages for "pecuniary loss" and for humiliation, loss of dignity and injury to her feelings. Mrs Spencer was not awarded the latter and we say no more about it.[14] The Ministry opposed the granting of any remedy, let alone an award of damages. However, if the latter were to be awarded, the Ministry submitted various reasons why the sum Mrs Spencer claimed should be reduced.Judgment[15] The Court awarded Mrs Spencer damages for "pecuniary loss" comprising support payments and interest thereon at five per cent per annum. The total awarded was $207,681.84, that sum deriving from a calculation set out in a schedule to the judgment ("schedule").[16] The schedule quantifies the support payments due ($178,608.60) and interest on them ($29,073.24), both to the September date. It is the calculation of interest to the September date, rather than to the date of judgment, that has led to this application. Interest calculated to the date of judgment is $54,482.47 and, if allowed, would increase the total award to $233,091.08.6[17] Counsel for Mrs Spencer's argument is that the Court intended to compensate Mrs Spencer for being kept out of her money but that the calculation in the schedule does not fulfil that intention. Counsel submits that this intention is evident in [212] of the judgment, in which the Court says:7[212] We also consider, however, that as Mr Goodall said [expert accountant called to give evidence by Mrs Spencer], as a result of the Ministry denying Mrs Spencer support during those years she suffered an opportunity cost which ought to be reflected as a head of damage at five per cent, the lowest of the rates during that period set by the Judicature Act 1908.[213] We incorporate that calculation in our total award, which we set out in an attached schedule, under which we award Mrs Spencer $207,681.84 for pecuniary loss.6 Affidavit of R Gardi sworn 19 August 2016, Exhibit "RG 1".7 Spencer v Ministry of Health, above n 1.[18] Counsel submits that the Court's reference to Mr Goodall's evidenceconfirms that it was intended to compensate Mrs Spencer for being kept out of her money.[19] Mr Goodall said:8I have included interest in the calculation of Mrs Spencer's claim. I believe that if the monies had been paid during the timeframe over which [Mrs Spencer] provided the relevant support services, there would have [been] one of two results. Either it would have eliminated Mrs Spencer'sneed to borrow (or not repay debt) due to the fact that Mrs Spencer could not seek paid employment. Alternatively it would have increased the quantum of investments held by Mrs Spencer and thus income arising therefrom. Therefore it would have resulted in either interest not having to be paid by Mrs Spencer or additional income to Mrs Spencer from the increased investments. I do not see why Mrs Spencer should be denied compensation for this loss.[20] For this reason counsel for Mrs Spencer submits that by adopting the schedule, the Court has awarded interest only to the September date; that the schedule does not give effect to the judgment; and that justice requires that the judgment be recalled, and the schedule corrected.[21] Counsel for the Ministry submits that judgment should not be recalled because, by her pleading and evidence, Mrs Spencer only ever sought interest to the September date. Counsel submits that the Court has not made an error but rather has given Mrs Spencer that which she sought.[22] We do not accept this submission for the following reasons.[23] First, as to Mrs Spencer's pleading, counsel for the Ministry referred us to [17] and the prayer for relief.[24] Nothing turns on [17] of the statement of claim. All Mrs Spencer alleged in [17] was that she had suffered loss as a result of the policy by the denial of support payments between December 2001 and the September date. We do not read that as a statement by Mrs Spencer that her total loss was confined to that period.8 Brief of Evidence of K N Goodall dated 30 October 2015 at [17].[25] Likewise the prayer for relief, in which Mrs Spencer sought compensation for"pecuniary loss" pursuant to ss 92(I)(3)(c) and 92M(1)(a) HRA "including interest calculated in accordance with s 87 Judicature Act 1908", and "Such other relief as the Tribunal thinks fit pursuant to [s 92I(3)(h) HRA]".[26] The interest award the Court made was granted as a component of Mrs Spencer's "pecuniary loss". There is nothing on the face of the relevant provision of the HRA (being s 92M(1)(a)) to limit the Court to the September date.[27] Nor is there anything in the Ministry's opening submissions that suggest itthought the claim to interest was confined to the September date. The Ministry made general submissions to the effect that it was "inappropriate" for the Court toaward pre-judgment interest; that s 87 was not applicable; and that any award of pre- judgment interest would have to be made pursuant to s 92I(3)(h) HRA – to which Mrs Spencer had referred to in her prayer for relief.[28] It follows that, on balance, we are satisfied that it is apparent from Mrs Spencer's statement of claim that she was seeking an award of pre-judgment interest; that she did not confine that claim to the September date; and there is nothing in the Ministry's opening submissions to suggest that it understood the claim to be so confined.[29] The Ministry also referred us to Mr Goodall's evidence. Mr Goodall's evidence was an attempt to quantify Mrs Spencer's claim, to the September date, having regard to the many variables that arose as to the hours per day/days per week/hourly rate(s) that the Court might allow. Again, however, we do not considerthat Mr Goodall's evidence as to Mrs Spencer's loss as at the September date could or did constitute an abandonment of any claim to interest thereafter.[30] As we have said, we accept Mrs Spencer's submission that the Court held that she was to be compensated for her opportunity cost and that the schedule does not reflect the judgment in that respect. Together these two matters constitute a ground on which to recall the judgment.Costs[31] As to costs, the Court said:9[219] Mrs Spencer is entitled to an award of costs on the ordinary principle that costs follow the event. She seeks indemnity costs or a heightened award on the basis that the Ministry has responded excessively.[220] We do not accept that the Ministry's response is excessive. The issuewhat damages [sic] should be awarded where a Government policy has been found to be systemically discriminatory is novel, as this case has made all too evident, and could involve large fiscal consequences. The Ministry was entitled to pursue the case as it did, and Mrs Spencer has not been fully vindicated in the award made.[221] We award Mrs Spencer costs according to scale 3C and disbursements as fixed by the Registrar.[32] The reference in [219] of the judgment to an application for indemnity or increased costs derives from the closing submissions for Mrs Spencer.[33] The day after the judgment was issued, counsel for Mrs Spencer filed a memorandum to the Court in which she sought "clarification" on the matter of second counsel. As we have said, that memorandum requires a response.[34] Before us, counsel referred us to several authorities in which the Court has certified for two counsel, often as a matter of course when awarding costs on a 3C basis.[35] For our part, however, we prefer the Ministry's submission that the Courtaddressed the submissions made to it on costs; there was no request for second counsel at the time of those submissions; and that on this particular matter Keane J'sretirement puts the Ministry at a disadvantage because of his knowledge as to the conduct of the hearing.[36] It follows that we decline to certify for second counsel.9 Spencer v Ministry of Health, above n 1.Result[37] We:(a) recall the judgment in this matter dated 20 July 2016;(b) substitute the schedule attached hereto in place of that attached to the judgment; and(c) reissue the judgment with this amendment.Costs[38] Costs on this application are to lie where they fall...................................................................Peters J..................................................................B K Neeson..................................................................Pastor R MusukuPECUNIARY LOSS AWARDSupport PaymentsPeriod Days Hours Rate Total20/10/2005 1/03/2006 135.43 513.28 13.33 6,842.0227/03/2006 31/01/2007 266.57 1,010.30 15.00 15,154.501/02/2007 31/03/2007 50.57 191.66 16.71 3,202.641/04/2007 31/07/2007 104.57 396.32 16.71 6,622.511/08/2007 31/03/2008 209.14 792.64 19.29 15,290.041/04/2008 31/03/2009 312.86 1,185.74 19.93 23,631.791/04/2009 31/03/2010 312.86 1,185.74 19.93 23,631.791/04/2010 31/03/2011 312.86 1,185.74 19.93 23,631.791/04/2011 31/03/2012 312.86 1,185.74 20.23 23,987.511/04/2012 31/03/2013 312.86 1,185.74 20.43 24,224.661/04/2013 30/09/2013 156.86 594.50 20.84 12,389.37$178,608.61InterestInterest Yearly Interest Multiplier Total6,842.02 342.10 10.39 3,555.9718,357.15 917.86 9.31 8,547.4121,912.55 1,095.63 8.31 9,104.2423,631.79 1,181.59 7.31 8,636.9423,631.79 1,181.59 6.31 7,455.3523,631.79 1,181.59 5.31 6,273.7623,987.51 1,199.38 4.31 5,165.5524,224.66 1,211.23 3.31 4,005.3612,389.37 619.47 2.81 1,737.91$ 54,482.47Total award $233,091.08