COOKE V DEPT OF HEALTH HC AK CIV 2007-404-5047

COOKE V DEPT OF HEALTH HC AK CIV 2007-404-5047 15 October 2007IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2007-404-5047UNDER the District Courts Act 1947 and the Mental Health (Compulsory Assessment & Treatment) Act 1992 IN THE MATTER OF an intended appeal against a decision of the District Court dated 29 July 1993 BETWEEN PETER DAVID JAMES COOKE Applicant AND DEPARTMENT OF HEALTH Respondent Hearing: Determined on the papers Judgment: 15 October 2007 at 11:00 amJUDGMENT OF ASHER JThis judgment was delivered by me on 15 October 2007 at 11:00 am pursuant to Rule 540(4) of the High Court Rules .. Registrar/Deputy Registrar .. DateSolicitors: P Cooke, 194A Campbell Road, Greenlane, Auckland Meredith Connell, PO Box 2213 AucklandIntroduction[1] The applicant in this matter, Peter Cooke, and the respondent, the Department of Health (now the Ministry of Health and referred to hereafter as "the respondent"), do not agree on the appropriate intituling for the documents filed in this application for leave to appeal. Mr Cooke states that he will not be taking further steps in the appeal until the heading references are "clarified". [2] The judgment in respect of which leave to appeal is sought was a judgment of the District Court in Auckland delivered on 29 July 1993. In that judgment Judge Robinson dismissed an application for a compulsory treatment order sought by the Department of Mental Health Services against Mr Cooke. He had, however, stated in the course of his judgment that Mr Cooke was "mentally disordered but fit to be released". The appeal document filed by Mr Cooke states that it is only the part of the judgment stating that Mr Cooke was mentally disordered that is complained of. [3] The appeal document is expressed on its face to be both an appeal to have the judgment set aside, and an application for leave to appeal out of time, but it is clear that it can only be the latter, given the passage of some 14 years. [4] The intituling of the document originally filed in this Court by Mr Cooke read:Under the District Courts Act 1947 In the Matter of Department of Health v Peter David James Cooke Between the Department of Health, of Central Mental Health, Building 14, Auckland Hospital, Park Road, Grafton, Auckland And Peter David James Cooke, of 194A Campbell Road, Greenlane, Auckland, Chef[5] The respondent in its case management memorandum filed in this Court, intituled the document in a different way, as follows:UNDER Section 14 of the Mental Health (Compulsory Assessment & Treatment) Act 1992IN THE MATTER of the dismissal of an application made pursuant to s 17 of the Mental Health (Compulsory Assessment & Treatment) Act 1992 BETWEEN PETER DAVID JAMES COOKE of Auckland, Chef Applicant AND DEPARTMENT OF HEALTH of Central Mental Health, Building 14, Auckland Hospital, Park Road, Grafton Auckland Respondent[6] There was a conference on 28 August 2007, and I issued a Minute setting out consent timetable directions in respect of the application for leave on 28 August 2007. In that Minute the intituling used was largely that adopted by the respondent. [7] It is that intituling which has led Mr Cooke to file a lengthy handwritten letter, which I will treat as a memorandum, in which he objects to the intituling used in the Minute and in the respondent's documents, and in which he asserts that the correct intituling is that which he placed on the original document filed by him.The submissions[8] Mr Cooke takes issue with the parts of the heading of the Minute which refer to ss 14 and 17 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 ("the Mental Health Act"). He submits that s 14 could not be the legislative basis of his appeal, and that that legislative basis can only be under s 72(2) of the District Courts Act 1947. He submits that this should be reflected in the heading. It also appears from his lengthy handwritten letter to the Court that he objects to the reference to s 14 because it gives the impression that what he has appealed against is the doctor's certificate of assessment, when what is really being appealed is the Court's determination of the application, or a part thereof. [9] The respondent has filed submissions in reply. It contends that there is no jurisdiction under s 72 of the District Courts Act for an appeal in the matter, and that therefore any reference to that Act would be wrong. Section 72 in its present form did not exist in 1993. It submits that, in any event, there is no jurisdiction to hear anapplication for leave to appeal out of time under s 71A of the District Courts Act, which was the section in existence at the relevant time. [10] Thus, Mr Cooke's general approach is to entitle the application for leave to appeal on the basis that it is an appeal under the District Courts Act. The respondent's intituling, which is designed to reflect the anomaly that it says exists in Mr Cooke's application, focuses on the Mental Health Act. In it the respondent signals its position that there is in fact no jurisdiction for an appeal in a matter such as this.Discussion[11] Rule 718F of the High Court Rules ("the Rules") provides that an application for leave to appeal or cross appeal must be by interlocutory application, and there is a similar provision in r 703(7). Rule 718F is new, and confirmed the approach to such applications set out in Colonial Mutual Life Insurance Society Ltd v Wilson Neill Ltd [1993] 2 NZLR 617 (HC) at 625; Parris v Television New Zealand Limited(1996) 9 PRNZ 444 (HC) at 446. In Colonial Mutual Life Insurance Society Ltd v Wilson Neill Ltd at 625 McGechan J commented on the fact that it was not entirely logical to refer to something as interlocutory in a proceeding which did not exist, but that nevertheless there were good pragmatic reasons for this to be so. His view was adopted by the Rules Committee by the drafting of r 718F. [12] Form 19 of Schedule 1 of the High Court Rules applies to interlocutory applications. It provides that such an application will have a general heading in terms of Form 1. Form 1 sets out the following general heading for documents filed in proceedings in the High Court:In the High Court of New Zealand ..................... No...... Registry Under the ..................... Act 19... (Where appropriate) In the Matter of (Where appropriate) Between (Full name), of (Place of residence), (Occupation), Plaintiff And (Full name), of (Place of residence), (Occupation), Defendant I note that r 709 of the Rules, which applies to the contents of notices of appeal, also provides that notices of appeal will have the heading in Form 1. [13] In relation to r 703(7), in McGechan on Procedure at HR703.02 in relation to applications for leave, the commentary states that when the appeal is to the High Court, "it should be headed as an application in an intended appeal". This is an accurate way to describe such applications. [14] There is no substantive rule which sets out what the heading of an interlocutory application should include under the intituling "Under the " and "In the matter of ". However, r 36, which is the rule that applies to the headings on statements of claim and counterclaim, provides:36 Heading on statement of claim and counterclaim(1) The heading of every statement of claim, and of every counterclaim intended to be served upon any person other than the plaintiff, shall show— (c) Where the statement of claim or counterclaim seeks relief in reliance on jurisdiction conferred by an Act, the Short Title of that Act: (d) Where the relief sought in the statement of claim or counterclaim relates to the validity or interpretation of a will, the name of the testator: (e) Where the relief sought in the statement of claim or counterclaim relates to the validity or interpretation of an instrument other than a will, the name of the maker of, or the names of the parties to, the instrument and its date: (f) Where the relief sought in the statement of claim or counterclaim relates to the validity or interpretation of an Act, the Short Title, and the relevant section or sections, of the Act: [15] Rule 36 therefore appears to be designed to ensure that a person reading the intituling can be informed of the Act relied or, or the instrument or document and its parties, which is at issue.[16] Rule 36A of the Rules reads:36A Heading on judgment and certain ordersThe heading of every judgment and of every order (being an order that is required to be registered under any enactment) shall be the same as the heading on the statement of claim or other document by which the proceeding was commenced.[17] Thus, r 36A of the Rules requires every judgment and order to have the same heading as in the statement of claim or other document by which the proceeding was commenced. It does not apply on its terms to the headings on appeals or applications for leave to appeal out of time, and indeed Minutes (although Minutes can contain orders). However, the provisions of s 36A can be applied by way of analogy to a Minute or other documents. In cases where no form of procedure is provided for in the Rules, r 9 states that the Court: shall dispose of the case as nearly as may be practicable in accordance with the provisions of these rules affecting any similar case, or, if there are no such rules, in such manner as the Court thinks best calculated to promote the ends of justice.It is appropriate by analogy, to apply r 36A to a Minute of the Court and other documents, utilising r 9. It is also appropriate to assume that all documents which commence a claim should have the same contents as required by r 36 for statements of claim, even if they are originating applications or other different initiating documents. [18] This proceeding was commenced by the filing of the application for leave to appeal out of time. Therefore, applying r 36A by analogy, the intituling that was on Mr Cooke's original leave to appeal application should be the intituling now used. It makes sense to a reader and is administratively convenient to have the same intituling throughout a proceeding. [19] The question arises as to whether an initial intituling which is clearly erroneous should be amended by the Court or followed by the Court and other parties. The respondent submits that the initial heading was clearly erroneous. It submits that there is no jurisdiction under the District Courts Act for an application for leave to appeal out of time against a part of a decision under the Mental HealthAct. There is also a clear error in the initiating party being shown as an appellant, and not an applicant. The application for leave to appeal has not yet been heard. [20] I do not consider it appropriate to traverse, in what is only an argument about intituling, the jurisdictional basis for this appeal. That is a matter that should await the application for leave to appeal, and not be debated in an argument about intituling. Undoubtedly the relief sought relates to the interpretation of both the District Courts Act and the Mental Health Act. Both pieces of legislation will be scrutinised by a Court in considering the issues of jurisdiction and time, and therefore r 36(1)(f) suggests that those Acts, which will need to be interpreted, be mentioned. Applying by analogy r 36(1)(d) and (e) of the Rules, which require the instrument and its parties to be stated, it would have been good practice to state, under "In the Matter of", the short details of the decision appealed from. Indeed commonly in appeals filed in this Court, that is the practice. [21] Thus a correct intituling in this case could have been as follows:UNDER The District Courts Act 1947 and the Mental Health (Compulsory Assessment & Treatment) Act 1992. IN THE MATTER of an intended appeal against a decision of the District Court at Auckland dated 29 July 1993 BETWEEN Peter David James Cooke of Auckland, Chef Applicant AND Ministry of Health of Auckland RespondentI say "could" as I do not regard intituling as a matter of precision, dictated to the word by the Rules, other than in respect of the names and capacities of the parties, where the detail is important. There is room for different views on the other aspects of intituling. Nevertheless, I conclude that Mr Cooke has a basis for his criticism of the intituling of the Minute 28 August 2007. It should not have ignored his intituling and largely followed the respondent's intituling. The Minute does not follow the intituling on his application for leave to appeal by which the proceeding was commenced.[22] Further, the Minute does not correctly identify the status of the parties as applicant and respondent, which is an error in Mr Cooke's intituling. In this area there should be precision, as the name and capacity of the persons stated in the intituling, will in the end govern the persons in respect of whom orders can be made. It may also have been an error to refer to the respondent as the Department of Health, as that name has been replaced by s 38 of the Health Amendment Act 1993 with the name Ministry of Health. The Department's name now is the Ministry of Health. However, it may be that the appropriate respondent is some other more particular body. I have not had submissions on this point.Consequences[23] The intituling of a document has no substantive consequence, save in relation to the statement of the names of the parties and their capacity. The fact that any particular statute is referred to does not mean that the Court is accepting that the statute stated is the relevant statute. The purpose of intituling is to provide an indication as to what the case is about and the names and capacities of the parties. In it a party sets out its position as to the relevant Act, but a Court or indeed another party in adopting those words is not concurring that such a statute provides jurisdiction, or indeed is relevant. [24] I note that r 7 provides that:7 FormsWhere, by these rules, any form is directed or authorised to be used, such variations may be made therein as the circumstances of any particular case may require.Therefore, a variation of Form 1 can be permitted according to the circumstances of the case. Further, there are a number of rules and the Court's inherent jurisdiction, which enable it to change intituling. Under r 5 of the Rules, any error can be treated as an irregularity and not nullify any step taken in a proceeding or any document, judgment or order in the proceeding. Under r 11 there is a power to amend defects and errors in pleadings and procedure and under r 12 there is a power to correct accidental slips or omissions in judgments or orders. The Court has an inherentjurisdiction to correct errors in orders as a reason of accidental slips or omissions:Lawrie v Lees (1881) 7 App Cas 19 (HL) at 35; Rainbow Corporation Ltd v Ryde Holdings Ltd (1993) 7 PRNZ 454 at 455. [25] A Court may, using rr 11 and 12, and its inherent jurisdiction, insert its own intituling, different from that originally filed, if that intituling is clearly and unarguably wrong. Here, this power warrants altering the description of Mr Cooke from appellant to applicant. Until and unless he obtains leave he cannot be an appellant. In its inherent jurisdiction the Court could also alter anything in the intituling that was an abuse of the procedure of the Court, such as an abusive or frivolous reference. This does not arise here. [26] The reference to the respondent as the Department of Health appears to be wrong as by virtue of s 38 of the Health Amendment Act 1993 it should now be a reference to the Ministry of Health. There is a power of a party named incorrectly in pleadings to amend that by notice given to the Court under r 105 of the Rules. There is also a power of the Court under r 11 to amend defects and errors in documents. I do not propose taking any step at this stage in relation to the exact words used to describe the respondent, as I have not had submissions on the point and it is a matter that may be best left for the respondent to exercise its rights under r 105. An earlier submission indicates that the respondent is aware of this problem and it has not asked the Court to intervene. Nothing of substance turns on this error at this stage, although it must be addressed in due course. [27] I have concluded that Mr Cooke's protest to the intituling he initiated being largely replaced by that of the respondent, is in part soundly based. Under r 36A the heading should have been the same as on the document by which the proceeding was commenced, (although a notice to change the name of the respondent should have been given under r 105). It is better practice for a respondent or defendant to accept, pursuant to r 36A, the original intituling, although a change made by a respondent or defendant to an obvious error, such as the description of an applicant as an appellant, will not warrant adverse comment.[28] However, I do not see any need to change the intituling of the Minute that has already issued despite the fact that there is jurisdiction to do so. That intituling will have no substantive consequence for the future. The Court is not bound by any act or other matter referred to in intituling, and nor indeed is any party. The Court does not want to be seen as encouraging arguments on intituling issues, which have no practical consequence. Here, I do not consider that it is appropriate to sanction the respondent for inserting its own intituling because it is irrelevant to the substantive issues, and a diversion from the real issue of disposing of the application.Conclusion[29] I decline to order that hereafter there be any particular heading to this proceeding. I consider that to make such an order would be to give undue weight to the importance of the intituling of a document, and to invite further applications where such issues are argued. [30] To summarise my conclusions: a) The intituling on the document by which the proceeding commenced should as a general rule be the heading used for all subsequent documents filed in that proceeding. b) That heading, whether or not the document which commenced the proceeding was a statement of claim, should as much as possible, provide the information required for statements of claim referred to in r 36 of the Rules. c) The matters stated in an intituling in the part headed "Under" and in the part headed "In the Matter of" do not have substantive consequences for the actual proceeding, and errors or omissions are unlikely to warrant the attention of the Court, in the absence of blatant mistakes, or an abuse of the procedure of the Court.d) A party other than the intituling party may amend its name if it is erroneous using the power in r 105, but otherwise should not unilaterally alter intituling. e) Parties are expected to take a pragmatic attitude to intituling, and to agree to change clear errors, and beg to differ if they see different matters as relevant, rather than seek Court rulings, which should only be necessary in very rare cases. f) The Court has the power to alter intituling, and may do so of its own volition in the event of blatant error or an abuse of the procedure of the Court. [31] Having been through this exercise, the heading of this judgment will reflect the best intituling that seems appropriate at present, and not follow either party's original intituling. Despite s 36A, the Court is not bound to follow Mr Cooke's original intituling now that certain deficiencies are clear. In its inherent jurisdiction and under r 11 the heading is changed to reflect the relevant Acts, the fact that this is an intended appeal against a District Court judgment, and the parties' correct capacities. There is likely to be at least one further change in the future, to reflect the correct name of the respondent. [32] The objection of a lay litigant to alterations in the intituling is perhaps understandable, as such alterations may appear to have substantive consequences. However, the intituling, apart from the parties' names and their stated capacity, does not have such consequences. Mr Cooke must comply with the timetable directions made in the Minute or face the full consequence of non-compliance... Asher J