TREVETHICK V THE MINISTRY OF HEALTH HC WN CIV-2007-485-2449

TREVETHICK V THE MINISTRY OF HEALTH HC WN CIV-2007-485-2449 16 June 2008IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2007-485-2449UNDER the Human Rights Act 1993 IN THE MATTER OF a determination by the Human Rights Tribunal to strike out proceedings BETWEEN MELANIE TREVETHICK Applicant AND THE MINISTRY OF HEALTH Respondent Hearing: 9 June 2008 Counsel: J Miller & W Proffitt for applicant C J Curran for respondent Judgment: 16 June 2008RESERVED JUDGMENT OF DOBSON J[1] This was an application for leave to appeal to the Court of Appeal. The matter began in the Human Rights Tribunal ("the Tribunal") where Ms Trevethick claimed that the Ministry of Health unlawfully discriminated against her. She claims that she is disadvantaged because her illness causing disability, namely multiple sclerosis, is not a disability caused by personal injury, where injury as the cause of disability would lead to her being treated more generously. The Ministry moved to strike out the claim before the Tribunal on the ground that the Human Rights Act 1993 ("the Act") does not prohibit discrimination where it is based on a cause of a disability, as distinct from the existence of a disability itself.[2] The Tribunal struck out the claim, in a decision dated 24 October 2007 (Trevethick v Ministry of Health No 2 [2007] NZHRRT 21). Subsequently in a decision dated 1 April 2008, I dismissed an appeal from the Tribunal's decision. [3] Leave to further appeal on a question of law is sought under s 124 of the Act. The High Court may grant leave under ss (2):If in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.[4] The issue here is whether the prohibited grounds of discrimination in s 21 of the Act can be interpreted to extend so as to prohibit discrimination against or between those with a disability, on the grounds of the cause of that disability. The whole of s 21 of the Act which sets out the prohibited grounds of discrimination is set out in my judgment. The most immediately relevant part is:21 Prohibited grounds of discrimination(1) For the purposes of this Act, the prohibited grounds of discrimination are— (h) disability, which means— (i) physical disability or impairment: (ii) physical illness: (iii) psychiatric illness: (iv) intellectual or psychological disability or impairment: (v) any other loss or abnormality of psychological, physiological, or anatomical structure or function: (vi) reliance on a guide dog, wheelchair, or other remedial means: (vii) the presence in the body of organisms capable of causing illness:[5] Supported by a range of arguments, the case for Ms Trevethick has been that s 21(1)(h) should be read so as to include the cause of a disability. That is a question of statutory interpretation, and accordingly a question of law. [6] It is also an issue of some considerable importance given the long-standing differences between support via the ACC system for those disabled by injury, and those dependent on the health service for support in respect of disability caused by illness. In opposing the application for leave, the Ministry did not seriously contest the prospective importance of this issue, and it is obviously a straight question of law. [7] What was contested was whether the question of law was one, in terms of the Court of Appeal decision in Snee v Snee [1999] 13 PRNZ 609, that was "capable of bona fide and serious argument" [22]. [8] Mr Miller submitted that the obvious importance of the issue, plus the fact that intra disability discrimination is a new topic, should count to lower the test forbona fide and serious argument, so that this question qualifies unless the Court could discount all realistic prospects of a different outcome. He also submitted that approaches to statutory interpretation can legitimately vary significantly, and that it would be a bold approach to treat this provision as capable of only one tenable interpretation. [9] For the Ministry, Mr Curran submitted that the requirement for a question of law to be capable of genuine and serious argument was a stand-alone criterion which needed to be satisfied before leave could be granted. The extent to which it is arguable cannot move depending on the relative importance of that question. If the point was not capable of a genuine argument, then it was a waste of the appellate resource to grant leave. [10] The separate nature of the enquiry into a question capable of bona fide and serious argument was demonstrated by reference to recent cases on applications for leave under the same section.[11] In the Director of Human Rights Proceedings v The Catholic Church for New Zealand HC AK CIV 2006 404 6162 14 April 2008 Cooper J, the High Court decision was one on a case stated by the Tribunal, and accordingly represented the first determination on the question of law. In that case, Cooper J observed:[10] On the question of whether there is here a question of law capable of bona fide and serious argument, I stated in the judgment that the question raised by the case stated was not one which had an obvious answer or at least not one which was to be easily arrived at. I fully summarised the rival arguments in my judgment. I observed that there was merit in the position adopted by both parties. I was then, and remain of the view, that notwithstanding my clear preference for the position of the plaintiff, the defendant's case was plainly arguable.[12] Another recent decision in the same area is Dawson v Chief Executive of the Ministry of Social Development HC WN CIV 2005 485 548 10 November 2006 Clifford J. There, a litigant in person effectively sought leave under s 124 of the Act to further appeal a decision of Mallon J in which the litigant had failed in an application to review an Associate Judge's decision that the litigant's proceedings disclosed no reasonable cause of action and were an abuse of the process of the Court. Assessing the arguments for a question of law capable of bona fide and serious argument, Clifford J came to the view that there was none, and leave was accordingly declined. [13] The Ministry sought to contrast the reasoning in the decisions delivered thus far in the present proceedings, which are seen as resoundingly rejecting the prospects of the argument succeeding, with the plainly arguable status recognised in the Catholic Church case. [14] Most criteria for leave to appeal avoid the need for a Judge to revisit the prospects that his or her own judgment is wrong. However, the prospects of a different outcome to that of the Judge on any further appeal has to be confronted in the present evaluation. [15] The starting point is the similarity in the reasoning adopted first by the Tribunal, and then in my own judgment. Having independently addressed each ofthe arguments advanced, and concluded that the proposed interpretation was untenable, it was appropriate for me to acknowledge:With respect, I consider the Tribunal's approach and reasoning are unassailable, and the conclusion reached was clearly the right one. [26][16] I have reconsidered the matters now argued in support of a further appeal on the statutory interpretation question. With respect to Mr Miller's persuasive presentation, I find nothing in his points which would cause me to reconsider, or to recognise the prospect that the Court of Appeal might accede to these arguments. I have endeavoured to approach that task with an entirely open mind, acknowledging the ever-present prospect that my reasoning may have been wrong. [17] The evaluation of such prospects is very different from those in the Catholic Church case. There, it was only the Judge's own decision on the issue, with the Judge recognising the arguability of the contrary view to his own. Here, there have been two relevant decisions, both considering detailed arguments on the interpretation point, and adopting materially similar reasoning to reject them. [18] There are a range of strong and even compelling considerations against adoption of the interpretation contended for, and in the end I am satisfied that the question sought to be argued further is not one capable of bona fide and serious argument. [19] That being the view I have come to, it is unnecessary for me to traverse the different views I received on how any question for referral to the Court of Appeal ought best to be framed. [20] Accordingly, the application for leave is declined.Costs[21] If the Ministry is minded to pursue costs, then I will receive Memoranda. Any for the Ministry seeking costs should be filed within 14 days, and any response on behalf of the applicant within a further 14 days thereafter.[22] This indication is not intended to encourage an application, my provisional view being that costs might appropriately lie where they fall. _________________Dobson JSolicitors: John Miller Law, Wellington for applicant Crown Law Office, Wellington for respondent