S v NEW ZEALAND ASSOCIATION OF COUNSELLORS INC [2022] NZCA 255

S v NEW ZEALAND ASSOCIATION OF COUNSELLORS INC [2022] NZCA 255 [20 June 2022]NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAME,ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OFAPPELLANT REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA53/2021[2022] NZCA 255BETWEEN SAppellantAND NEW ZEALAND ASSOCIATION OFCOUNSELLORS INCORPORATEDFirst RespondentROBYN GALVINSecond RespondentHearing: 10 February 2022Court: Cooper, Brown and Goddard JJCounsel: Appellant in personB D Gray QC and E J Ferguson for First RespondentK M Burkhart for Second RespondentJudgment: 20 June 2022 at 11.30 amReissued: 30 June 2022JUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay costs to each of the respondents for a standardappeal on a band A basis, with usual disbursements.___________________________________________________________________REASONS OF THE COURT(Given by Goddard J)Table of contentsPara noIntroduction [1]Background [8]The Association's ethics process [19]Judicial Review Proceedings [23]High Court judgment [25]Mr S's submissions on appeal [36]Submissions for the Association [42]Submissions for Ms Galvin [48]Discussion [49]Strike out of damages claims [56]High Court judgment [59]Mr S's submissions on appeal [61]Discussion [63]Result [78]Appendix: New Zealand Association of Counsellors Complaints ProcessIntroduction[1] The appellant, Mr S, and his wife engaged Ms Galvin to provide jointcounselling to them in 2011. In circumstances described in more detail below, Mr Smade a complaint to the New Zealand Association of Counsellors Inc | Te RoopuKaiwhiriwhiri o Aotearoa (the Association), of which Ms Galvin is a member. Mr Swas dissatisfied with the way in which the complaint was handled by the Association.He successfully applied for judicial review. In 2013 Peters J made an order referringthe matter back to the Association for reconsideration.[2] However the complaint has not yet been reconsidered by the Association, asa result of disagreement between Mr S and the Association about the procedure to befollowed. Mr S has commenced fresh judicial review proceedings and claims fordamages against the Association.[3] In 2020 Cooke J heard Mr S's judicial review application. At the same timehe heard an application by the Association to strike out five of the causes of action inwhich Mr S claims damages. The judicial review application was successful in part.The Association's strike out application was successful in respect of three causes ofaction.1[4] Mr S appeals to this Court seeking additional relief in his judicial reviewproceedings. He also appeals against the striking out of two of his causes of actionin which he claims damages against the Association for alleged breaches of dutiesunder the Health and Disability Commissioner (Code of Health and DisabilityServices Consumers' Rights) Regulations 1996 (the Code) and the Human Rights Act1993.[5] It became apparent in the course of the hearing before us that Mr S's appealin relation to relief in his judicial review proceeding reflected a concern on his partthat the Association would adopt a narrow reading of the relief granted by the Judge.We are satisfied that on a proper reading of the High Court judgment Mr S's interestsare fully protected. We do not consider that any further relief is appropriate.[6] We consider that the Judge was clearly right to strike out the two causes ofaction that were the subjects of Mr S's appeal. The legislation under which thealleged duties arise prescribes both the remedies for breach of those duties and theprocess for bringing claims for such breaches. The claims must be brought beforethe Human Rights Review Tribunal in the first instance. Such claims can only beconsidered by the High Court if they are transferred to that Court in accordance withthe statutory scheme. It is not possible to commence a claim for damages in theHigh Court for breach of duties under the Code or the Human Rights Act.[7] In these circumstances, and for the reasons set out in more detail below, theappeal must be dismissed.Background[8] We gratefully adopt the Judge's outline of the background to theseproceedings.21 [S] v New Zealand Association of Counsellors Inc [2020] NZHC 3475 [High Court judgment].2 At [3]–[12].[9] Mr S and his wife engaged Ms Galvin to provide joint counselling to them in2011. They attended two joint counselling sessions with Ms Galvin. There was alsoa third mediation session. There was no agreement to any further sessions after theend of the third session.[10] Following these sessions Ms Galvin sent email communications solely toMr S's wife. Those email communications were critical of Mr S and the way heinteracted with his wife. Mr S found the email exchanges when accessing his wife'sprivate email account. On 14 June 2011 he made a complaint to the Association inrelation to Ms Galvin's conduct. In accordance with its procedures the Associationasked Ms Galvin for comment on Mr S's complaint. Her response was provided on30 September 2011. Ms Galvin contended that the email exchanges wereconfidential and neither she nor Mr S's wife had consented to their use.[11] The Association then considered the matter, and sought advice.On 22 December 2011 it advised that it would not consider the emails as part of thecomplaints process. Mr S declined to amend his complaint to conform with this view.The Association then referred the complaint, without the emails, to its RegionalEthics Team. Following an assessment the Association imposed some sanctions onMs Galvin.[12] Mr S commenced judicial review proceedings contending that the exclusionof the emails from the consideration of his complaint was procedurally unfair.The application was heard on 14 March 2013. On 2 September 2013 the Courtupheld his claim. In addressing the relief to be granted Peters J said:[28] [Mr S] sought an order referring his complaint, with the emails, backto the Association for consideration. He submitted that the Association mayhave taken a different view of the complaint had it considered the emails inquestion.[29] The Association and Ms Galvin opposed the grant of any relief, if aground of review should be made out. They submitted that the complainthas now been addressed, that the Association has imposed some sanctions onMs Galvin as a result of the complaint, and that no useful purpose would beserved by making the order that [Mr S] seeks.[30] The fact of the emails, and their content, were a substantial part of[Mr S's] complaint. It was Ms Galvin who took issue with the emails and itwas her doing so which led to their exclusion. It is possible that theAssociation would have taken a different view of the complaint had theemails not been excluded and/or reached a different outcome. Given that, Ipropose to make the order [Mr S] seeks. Any sanctions that have beenimposed to date on Ms Galvin can be taken into account at a future time, ifnecessary.[31] Counsel for Ms Galvin submitted that, if I were to grant relief, Ishould refer the matter back to the Regional Ethics Team. For the reasongiven above, I consider the appropriate course is to refer the matter back tothe Association.[13] The reference back to the Association rather than the Regional Ethics Teamhad possible significance in terms of the procedural pathway to be used forconsidering the complaint, as more serious complaints were not referred to that Teambut involved establishment of a panel to hear the complaint.[14] Following that judgment the Association sought to recommence its processes.As part of that it asked Mr S to sign a new consent form. Such a form had beencompleted with the original complaint, but the Association took the view that a newform needed to be signed.[15] Mr S declined to sign that form. The essential reason why he did not do sowas that he did not agree with the procedures that the Association was proposing tofollow, and did not want to be taken to have accepted them by signing the consentform. The critical difference of view related to whether Mr S had a right to respondto what Ms Galvin had said to the Association about his complaint. Mr S said thathe had a right to do so as a matter of natural justice. The Association did not agree.[16] As a consequence of that disagreement, and Mr S not signing the consentform, the Association did not reconsider its decision as contemplated by Peter J'sorders. The convenor of the Ethics Committee for the Association, Ms Susan Webb,described the Association's stance in the following way in her affidavit:38. Following the judgment of Peters J, the [Association] was required tobegin its process again with reference to the previously omitted e-mailannexures.39. However, when restarting the review process, [Mr S] refused to signthe consent form as he did not agree with the process. We were unableto restart the review process without [Mr S] consenting to the process.The [Association] was also unable to change its process to meet[Mr S's] demands, as this would have subjected the [Association] toserious legal difficulties and potential [for] further judicial review.[17] In a letter from Ms Webb to the Health & Disability Commissioner dated1 October 2015 rather more detail is set out explaining the reasons for theAssociation's approach:4. For the reasons which I identify below, [the Association] has decidednot to investigate this complaint in accordance with its complaintsprocess but to refer it to you for consideration.15. [The Association] considers that it is unable to address [Mr S's]complaint except in accordance with its published complaints process.16. [The Association] found itself in a deadlock situation; its options wereto:a. Consider [Mr S's] complaint in accordance with his requirements(and thereby depart from its published complaints process);b. Consider [Mr S's] complaint in accordance with its publishedcomplaints process and thereby face the prospect of furtherlitigation by [Mr S] and delay in consideration of the complaintagainst Ms Galvin; orc. Find some other means by which [Mr S's] complaint againstMs Galvin can be investigated in a manner which protects therights and interests of both [Mr S] and Ms Galvin.17. [The Association's] view is that referral of the matter to you forconsideration is the best means available to ensure that theprofessional standards issues raised by [Mr S] are considered by anauthority with the requisite mana and processes.[18] It is this conduct that has given rise to Mr S bringing further proceedings.The judicial review proceeding focuses on an alleged breach of natural justice by theAssociation in failing to undertake a reconsideration by a process that allows him torespond to Ms Galvin's contentions. In addition various damages claims areadvanced which are said to arise from this conduct.The Association's ethics process[19] The Association has adopted a code of ethics. Its complaints process inrespect of breaches of that code is summarised in the flow chart set out in theappendix to this judgment. As with many professional ethics processes, there is aninitial triage of complaints by the Association's Ethics Committee. The Committeethen forms an initial assessment group which decides whether to take no furtheraction, seek further information, resolve the matter by correspondence, refer thematter to a regional ethics team, or refer the matter to a hearing before a panelappointed by the initial assessment group.[20] The regional ethics process is intended to deal with matters at the mild ormoderate level. Its purpose is primarily educative for the respondent member of theAssociation, and in some cases may be restorative.[21] If the complaint is referred to a regional ethics process, the process followedis set out in the Regional Ethics Process Manual (the Manual).3 The process involvesseparate meetings with the complainant and with the member. The Manual describesthe purpose of the process as enabling the Association to:4(a) formulate an understanding of the circumstances that led to thecomplaint being made;(b) identify any ways that the counsellor may have contributed to thesituation; and(c) if the counsellor has so contributed, propose restorative and/oreducational actions to minimise the likelihood of such eventsrecurring.[22] Where a complaint relates to conduct which if established would constitute abreach or misconduct at the severe end of the scale, the Manual contemplates adisciplinary procedure involving a hearing before a panel.3 National Ethics Committee of the New Zealand Association of Counsellors | Te RoopuKaiwhiriwhiri o Aotearoa Regional Ethics Process Manual (September 2009).4 At 6.Judicial Review Proceedings[23] Mr S sought judicial review of the Association's complaint procedures on thebasis that they are inconsistent with the principles of natural justice. In particular,Mr S claimed that by denying him the right to respond to what Ms Galvin had saidabout his complaint, his rights to natural justice had been denied.[24] In his amended statement of claim Mr S sought orders requiring theAssociation to amend their processes to comply with natural justice with respect tohis complaint and to process the complaint on that basis. He also sought an orderrequiring the Association to amend its processes for all future complaints.High Court judgment[25] The Association is not a statutory body. Its complaints process is establishedunder its rules, which operate as a contract between its members. Before theHigh Court, the Association accepted that its decisions could be challenged by wayof judicial review despite the fact they are not made pursuant to statute and derivetheir force from contractual arrangements between the Association's members.That is well established.5 However the Association argued that Mr S had no standingto bring judicial review proceedings and that the Association did not owe him anynatural justice rights. That argument was supported by Ms Galvin.[26] Cooke J did not accept these arguments. He held that "[Mr S] has standingto challenge procedural determinations made by the Association in dealing with hiscomplaint on the basis that they infringe the principles of natural justice".6[27] The Judge then went on to consider whether the Association had breachednatural justice principles by deciding that Mr S would not have the ability to commenton the response that Ms Galvin had provided on his complaint.5 Royal Australasian College of Surgeons v Phipps [1999] 3 NZLR 1 (CA) at 11–12; andStininato v Auckland Boxing Association (Inc) [1978] 1 NZLR 1 (CA) at 5–7 per Richmond P,11–13 per Woodhouse J and 23–28 per Cooke J.6 High Court judgment, above n 1, at [33].[28] The Judge did not accept Mr S's argument that the rules of natural justiceapply equally to all participants in the Association's disciplinary process, and that hisparticipation rights must be equivalent to those that apply for Ms Galvin. He said:7 The person who complains, and the person whose conduct is beingenquired into, are in very different positions. A professional or disciplinarybody has the power to make decisions that have adverse effects on the personwhose conduct is being enquired into. Sometimes they can be verysignificant adverse effects, even to the point of excluding an ability topractice. The complainant is in a different position, albeit one that stillrequires a fair procedure.[29] In the present case, whether natural justice required Mr S to have anopportunity to respond to Ms Galvin's submissions to the Association depended onthe issues raised by her submissions. The response of a member of the Associationto a complaint may not give rise to a need to invite the complainant to comment.But, the Judge said, there may well be a need to do so if the response challenges whathas happened as a matter of fact, or if it makes criticism of the complainant:8 If a professional body is to make a decision when there is a factual dispute,or which would involve criticism of the [complainant], an obligation to havethe complainant's views may well arise as a matter of procedural fairness.[30] In the present case, the circumstances were such that Mr S should have beengiven an opportunity to comment on Ms Galvin's response to his complaint.Ms Galvin had sought to justify her conduct by reference to the circumstances, andthose circumstances included criticisms of Mr S. It was necessary to ask Mr S forcomment before the Association decided upon its next steps.9[31] The Judge did not accept the Association's argument that it would beinconsistent with its published complaints procedure to give Mr S that opportunity.The Association's published procedures did not preclude further comment beingobtained from a complainant. The published procedures could be, and should havebeen, applied in a manner consistent with natural justice.107 At [36].8 At [38].9 At [39].10 At [40].[32] The Judge noted that it appeared that the Association has a practice of notproviding the member's response to the complainant for comment.11 But the Judgedid not consider that this practice was required by the Association's complaintsprocess. The suggested difficulty did not justify the Association failing to complywith the order made by Peters J for reconsideration of Mr S's complaint.12[33] The Judge upheld the judicial review claim and granted a declaration:13 that the Association was obliged to give [Mr S] the opportunity to providehis comments on Ms Galvin's response to his complaint, and consider thatcomment, before deciding how to proceed with that complaint.[34] The Judge declined to grant a declaration that the Association should amendits procedures for future cases. The Judge did not read the Association's existingprocedures as precluding it proceeding in a manner consistent with natural justice.And, the Judge said, his judgment was binding on the Association for the future.14[35] The Judge expressly noted that the requirements of natural justice would notgive Mr S rights to participate as a party in any ethics panel process, should thecomplaint be referred to a panel. If a formal panel process was followed, it waspossible that Mr S would be a witness. But he would not be allowed to participateas a party or engage in cross-examination.15Mr S's submissions on appeal[36] Before us, Mr S emphasised that what he sought was an opportunity tocontradict any incorrect information that might be provided by Ms Galvin before theAssociation made a decision about the procedure to be followed. There needs to bea mechanism, he said, for testing the veracity of what Ms Galvin says about whathappened.11 At [41].12 At [45].13 At [46].14 At [47].15 At [50].[37] Mr S did not press the argument that his participation rights should beidentical to those of Ms Galvin. But he was concerned to ensure that a process wouldbe adopted that enabled him to challenge what Ms Galvin might have to say. He wasconcerned about the Judge's suggestion that the opportunity to comment might turnon whether or not there was a factual dispute. As he pointed out, it would be difficultfor the Association to know if new material provided by Ms Galvin raised a factualdispute without putting that material to him.[38] In the course of argument, we suggested to Mr S that it followed from theHigh Court decision that if Ms Galvin provided a response to his complaint thatincluded new information that reflected adversely on him, or that advanced a newjustification for her conduct, then the Association would be expected to raise thatwith him. Mr S said that he would be happy with that position.[39] Mr S expressed concern about subsequent stages of the process, after theinitial triage. He was concerned that the Association would not provide him with anopportunity to comment on new information provided by Ms Galvin at subsequentstages of the process such as interviews conducted by a regional ethics team, or anypanel process. We suggested to Mr S that it followed from the High Court judgmentthat at each relevant stage the relevant decision-maker would need to exercisejudgement about whether, and how, to refer any new information to him. But ifMs Galvin were to provide new information adverse to his interests, natural justicewould require that he have an opportunity to respond. He confirmed that he washappy with that approach.[40] Mr S did however continue to argue that relief should have been grantedrequiring the Association to amend its written ethics procedures. He identified anumber of passages in those written procedures which were in his submissionproblematic, and inconsistent with the High Court judgment. In particular, heemphasised that the Manual includes the following note:16Regional Ethics team members are advised therefore not to show therespondent's reply to the complaint to the complainant, nor to ask what thecomplainant wants as an outcome from the process as this promotes an16 Regional Ethics Process Manual, above n 3, at 4.expectation that may not be able to be delivered. Rather, the complainantcan be asked what they wish the respondent member to understand abouttheir experience and the effects of that experience.[41] He also referred us to a number of other passages in the Manual, and in flowcharts that form part of the Association's guidance on its ethics process, whichcontemplate that separate interviews will be held with each of the complainant andthe respondent.17 He submitted that it follows from this process that the complainantwill not be able to hear, and respond to, anything said by the respondent.Submissions for the Association[42] Mr Gray QC emphasised that a complaint made to a professional body doesnot create a contest between the complainant and the professional. Rather, acomplaint is a matter between the professional body and its member.18 A complainanthas an interest which is greater than members of the public, which entitles them tobe heard so as to protect their interest in the procedure. As the Judge said, therequirements of natural justice are contextual and depend on circumstances.The rights of participation by a complainant should be tailored to their interests atissue in, or affected by, the process. If their reputational rights may be affected, thenthey must be afforded an opportunity to comment. They are entitled to have thecomplaints process applied in accordance with its terms and with law.[43] In the present case, the High Court had already made orders requiring thatMr S receive Ms Galvin's response and be able to comment on it. If furtheropportunities become appropriate, then it will be necessary for Mr S to receive thoseopportunities. If Mr S's own reputation or interests are affected, he should be allowedto protect them. Mr Gray accepted that this would apply at any stage of the process:both the initial triage stage, and any subsequent stage. The nature of that opportunitywould depend on the stage of the process in question.17 See for example box 12A in the flow chart in the Appendix.18 Citing Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [70]and [129]–[132].[44] However, Mr Gray said, it would not be appropriate for Mr S to become aparty or to be given standing equal to that of Ms Galvin. His interests are not affectedin the same way as hers.[45] Mr Gray submitted that the Association's guidance to the effect that therespondent's response should not be shown to the complainant was appropriate,because that response may go into matters that are not relevant to the complainantsuch as the respondent's mental health, family situation or financial position.Personal information of that kind should not be shown to a complainant.[46] Mr Gray submitted that the Judge was right to find that the written procedurespublished by the Association were not inconsistent with recognition of acomplainant's natural justice rights. Those procedures did not make it impossible forthe Association to do its job in a manner consistent with the requirements of naturaljustice. So the Court should not exercise its coercive powers to compel theAssociation — a private body — to re-draft its internal guidance.[47] In summary, Mr Gray said that the written procedures do acknowledge a dutyto the complainant. The Association accepts that a complainant has a legitimateinterest in the conduct of the complaint and the factual inquiry conducted for thepurposes of the complaint. But the Association is conscious of the potential for theprocesses to be used to vex respondents, so it is necessary for the Association to applythe process with some caution.Submissions for Ms Galvin[48] Ms Burkhart, counsel for Ms Galvin, submitted that the High Court decisionstruck the correct balance. A complainant is not a party. They are a person with aninterest in the complaint, and with an interest in ensuring that a proper process isfollowed. They may also be a witness in any formal hearing. It would not beappropriate for a complainant such as Mr S to participate as a party in any formalhearing that might occur, or to have a right to cross-examine at such a hearing.Discussion[49] It became apparent in the course of the hearing that there was little differencebetween the parties in relation to the rights of Mr S as a complainant to have anopportunity to respond to any new information that might be provided by Ms Galvin.It was common ground that Mr S should have an opportunity to comment if aresponse from Ms Galvin includes new information about the subject matter of thecomplaint that reflects adversely on Mr S, or that is relied on to justify Ms Galvin'sconduct. That opportunity should be provided at the initial triage stage of the ethicsprocess, and at subsequent stages if and when that becomes appropriate.[50] It was also common ground that personal information of a confidential natureprovided by Ms Galvin should not be referred to Mr S for comment.[51] It also became common ground in the course of argument that natural justicedoes not require that Mr S be treated as a party to the complaint, or that he personallyhave a right to cross-examine Ms Galvin, in the event that the complaint were toresult in a reference to an ethics panel.[52] It follows that the relief granted by the Judge was appropriate to ensure thatthe Association acted in accordance with the principles of natural justice whenconsidering Mr S's complaint.[53] There is some force in Mr S's criticisms of the Association's writtenprocedures. We agree with the High Court Judge that the Association's flow chartsare not inconsistent with a complainant's natural justice rights. But the comments inthe Manual lack nuance, and could mislead members of the Association without legaltraining who are attempting in good faith to administer a complaints process thatcomplies with the guidance they have been given.[54] Ultimately however we agree with the Judge that it is not necessary for reliefto be granted in these proceedings requiring amendments to the Association's writtenguidance on complaints procedures. Mr S's interests are protected by the ordersmade in the High Court. The Association has confirmed to this Court, throughMr Gray, that it will not be adopting a narrow approach to the guidance given by theHigh Court about the need to provide opportunities for Mr S to respond to newinformation at each stage of the process. We expect the Association will now proceedwithout delay to reconsider Mr S's complaint in a manner that is consistent withnatural justice.[55] However we observe that the Association may wish to review and amend itswritten guidance on the complaints process to ensure that it fully and clearly reflectsthe High Court judgment and the Association's acknowledgement of therequirements of natural justice vis-à-vis complainants.Strike out of damages claims[56] Mr S's fifth cause of action pleaded breaches of statutory duties arising underthe Code. The sixth cause of action was based on an alleged breach of statutory dutyunder s 44(1)(b) of the Human Rights Act.[57] The Association applied to strike out these claims on the basis that each ofthese statutory regimes provides its own framework for the determination of claimsfor compensation arising from complaints that relevant duties have been breached.Sections 50 and 51 of the Health and Disability Commissioner Act 1994 (HDC Act)provide for proceedings before the Human Rights Review Tribunal. Similarly, s 92Bof the Human Rights Act provides for proceedings before the Tribunal. The onlyproceedings claiming compensation that would be within the jurisdiction of theHigh Court would be proceedings on appeal from a decision of the Tribunal, orproceedings which were transferred to the High Court by the Tribunal in accordancewith ss 122A and 122B of the Human Rights Act.[58] Mr S opposed the striking out of these clams. He argued before theHigh Court that the fact that a person "may" pursue a claim before the Tribunal insuch cases did not mean that the person must do so. He submitted that the High Courthas the inherent jurisdiction to deal with such claims, and it should do so in order toachieve justice.High Court judgment[59] The Judge found that Mr S's pleadings did not disclose a reasonably arguablecause of action for breach of statutory duty.19 Whether a cause of action for breachof statutory duty can be advanced depends on a question of statutory interpretation:did Parliament intend that a person to whom a duty set out in the statute was owedwould be able to claim damages for breach of that duty before the courts if the dutywas not met? The Judge said:[67] I have little hesitation in concluding that neither of the duties allegedby [Mr S] can found a claim for breach of statutory duty. As the Associationargues, Parliament has expressly turned its mind to the question of potentialremedies for breaches of the duties and rights set out in the two statutoryregimes. It has set out specific regimes under which these are to beconsidered and determined in proceedings before the Human RightsTribunal. There is no room for the implication that Parliament intended aperson to obtain compensation for breach before the High Court. Parliamenthas asked and answered the question on what the remedies will be, and howthey are to be pursued. That is not to say that the relevant rights and dutiesdo not have significance in other ways. But in terms of the tort there is nobasis to say that Parliament implicitly intended that there be a direct cause ofaction for breach before the ordinary courts.[60] The Judge struck out the fifth and sixth causes of action.Mr S's submissions on appeal[61] Before us, Mr S argued that this was not a case where the Court needs toengage in a difficult interpretation exercise to determine whether Parliamentcontemplated that a person would have a civil claim for damages if a duty owed tothem under the statute was breached. Plainly Parliament did intend that there shouldbe a claim for compensation: that is expressly provided for in the legislation. So theonly question was whether that claim could be brought in the High Court, or whetherit was necessary for proceedings to be issued in the Tribunal and removed into theHigh Court by the Tribunal. The parliamentary intention was clear. A party shouldbe able to go to the High Court if there are proceedings already before it on a relatedmatter. And it will always be better to have one proceeding rather than two.19 High Court judgment, above n 1, at [66].[62] Mr S submitted that it would be procedurally complex, and would involveunnecessary cost and delay, to have proceedings about these matters before theTribunal at the same time as proceedings are being pursued in the High Court.It would not be in any party's interests to have two sets of proceedings about the sameissues. He emphasised that he is seeking the same remedy that would be availablebefore the Tribunal, and that it would be "a bit pedantic" to say that because heframed the claim as a claim for breach of statutory duty, it must fail.Discussion[63] The HDC Act makes detailed provision for the circumstances in which anaggrieved person may bring proceedings in relation to any action alleged to be inbreach of the Code. The HDC Act provides for such proceedings to be brought beforethe Human Rights Review Tribunal.[64] Section 50 of the HDC Act provides for proceedings to be brought before theTribunal by the Director of Proceedings. Where proceedings are commenced by theDirector of Proceedings, neither the complainant nor the aggrieved person (if not thecomplainant) will generally be a party to the proceedings.20 Section 51 provides thatin certain circumstances the aggrieved person may bring proceedings before theTribunal. Section 52 provides that in any proceedings before the Tribunal broughtby the Director of Proceedings or the aggrieved person, the plaintiff can seek theremedies described in s 54.21 Section 54 provides for a wide range of remedies:54 Powers of Human Rights Review Tribunal(1) If, in any proceedings under section 50 or section 51, the Tribunal issatisfied on the balance of probabilities that any action of thedefendant is in breach of the Code, it may grant 1 or more of thefollowing remedies:(a) a declaration that the action of the defendant is in breach ofthe Code:(b) an order restraining the defendant from continuing orrepeating the breach, or from engaging in, or causing orpermitting others to engage in, conduct of the same kind as20 Health and Disability Commissioner Act 1994, s 50(4).21 The ability to claim damages in respect of personal injury within the meaning of the AccidentCompensation Act 2001 is expressly excluded: see s 52(2).that constituting the breach, or conduct of any similar kindspecified in the order:(c) damages in accordance with section 57:(d) an order that the defendant perform any acts specified in theorder with a view to redressing any loss or damage sufferedby the aggrieved person as a result of the breach:(e) such other relief as the Tribunal thinks fit.(2) In any proceedings under section 50 or section 51, the Tribunal mayaward such costs against the defendant as it thinks fit, whether or notit makes any other order, or may award costs against the plaintiff, ormay decline to award costs against either party.[65] Section 57 of the HDC Act prescribes the heads of damages that may beawarded by the Tribunal, including damages for pecuniary loss suffered as a result ofthe breach, for loss of benefits that would have been obtained but for the breach, andfor humiliation, loss of dignity and injury to feelings.[66] Section 58 of the HDC Act provides that ss 92Q to 92W and pt 4 of the HumanRights Act apply, with such modifications as are necessary, in respect of proceedingsunder ss 50 or 51 of the HDC Act as if they were proceedings under s 92E of theHuman Rights Act.[67] Section 92B of the Human Rights Act provides for civil proceedings arisingfrom complaints under that Act. The complainant, the person aggrieved (if not thecomplainant) or the Human Rights Commission may bring civil proceedings beforethe Human Rights Review Tribunal. The Human Rights Act makes detailedprovision for the rights of the Human Rights Commission,22 and in certaincircumstances the Attorney-General to appear in civil proceedings before theTribunal.23[68] Section 92I provides that the Tribunal may award a wide range of remedies,including declarations, restraining orders, damages, orders requiring performance ofactions to redress loss or damage, and relief in accordance with sub-pt 5 of pt 2 of22 Human Rights Act 1993, s 92H.23 Section 92G.the Contract and Commercial Law Act 2017. Section 92M prescribes the heads ofdamages that may be awarded by the Tribunal, which correspond to those availableunder s 57 of the HDC Act, as summarised at [65] above.[69] Sections 92Q to 92W of the Human Rights Act apply to claims under the HDCAct and claims under the Human Rights Act. They provide for monetary limits onthe remedies that the Tribunal may grant. With certain exceptions, the Tribunalcannot award damages or grant remedies if, because of the monetary limits containedin ss 74–79 of the District Court Act 2016, that award would be beyond thejurisdiction of the District Court. If the Tribunal considers that those limits would bebreached, the Tribunal must refer the granting of a remedy to the High Court underss 92R to 92U.[70] Part 4 of the Human Rights Act sets out the Tribunal's functions and powers.The provisions in pt 4 apply to claims under the HDC Act as well as claims for breachof the Human Rights Act, by virtue of s 58 of the HDC Act.[71] Section 122A of the Human Rights Act provides for the Tribunal, with theleave of the High Court, to order that proceedings before it be removed to theHigh Court for determination:122A Removal to High Court of proceedings or issue(1) The Tribunal may, with the leave of the High Court, order thatproceedings before it under this Act, or a matter at issue in them, beremoved to the High Court for determination.(2) The Tribunal may make an order under this section, with the leaveof the High Court, before or during the hearing, and either on theapplication of a party to the proceedings or on its own initiative, butonly if—(a) an important question of law is likely to arise in theproceedings or matter other than incidentally; or(b) the validity of any regulation is questioned in proceedingsbefore the Tribunal (whether on the ground that it authorisesor requires unjustifiable discrimination in circumstanceswhere the statutory provision purportedly empowering themaking of the regulation does not authorise the making of aregulation authorising or requiring unjustifieddiscrimination, or otherwise); or(c) the nature and the urgency of the proceedings or matter meanthat it is in the public interest that they or it be removedimmediately to the High Court; or(d) the High Court already has before it other proceedings, orother matters, that are between the same parties and involveissues that are the same as, or similar or related to, thoseraised by the proceedings or matter; or(e) the Tribunal is of the opinion that, in all the circumstances,the High Court should determine the proceedings or matter.(3) Despite subsection (2), if the validity of any regulation is questionedin proceedings before the Tribunal and the leave of the High Courtis obtained for the making of an order under this section, the Tribunalmust make an order under this section.(4) If the Tribunal declines to remove proceedings, or a matter at issuein them, to the High Court (whether as a result of the refusal of theHigh Court to grant leave or otherwise), the party applying for theremoval may seek the special leave of the High Court for an order ofthe High Court that the proceedings or matter be removed to theHigh Court and, in determining whether to grant an order of thatkind, the High Court must apply the criteria stated in subsection(2)(a) to (d).(5) An order for removal to the High Court under this section may bemade subject to any conditions the Tribunal or the High Court, as thecase may be, thinks fit.(6) Nothing in this section limits section 122.[72] The High Court may decline to hear proceedings that the Tribunal hasremoved into that court, and order that the Tribunal determine the matter.24[73] Section 123 of the Human Rights Act provides for appeals to the High Courtfrom decisions of the Tribunal. There is then a right of appeal to the Court of Appealon a question of law with leave.25[74] We agree with the Judge that Parliament has expressly turned its mind to thequestion of potential remedies for breaches of duties under the Code and theHuman Rights Act. There are specific regimes under which such claims are to beconsidered and determined in proceedings before the Tribunal. There are materialdifferences in the procedural rules that apply before the Tribunal and the High Court.24 Section 122B.25 Section 124.Specific provision is made for rights of audience before the Tribunal. And, mostimportantly, detailed provision has been made for the remedies that are available inrespect of breaches of these duties. As the Judge said, Parliament has "asked andanswered the question on what the remedies will be, and how they are to bepursued".26[75] Parliament has also expressly dealt with the circumstances in which claimscommenced before the Tribunal may be heard at first instance before the High Court.This can happen only if the Tribunal considers that it is appropriate for theproceedings to be removed to the High Court, and the High Court considers that it isappropriate for the proceedings to be determined in that Court rather than bythe Tribunal. It would be inconsistent with this regime for a plaintiff to have a rightto commence a claim for damages before the High Court.[76] Mr S's argument about the inefficiency of parallel proceedings before theTribunal and before the High Court is a matter that Mr S could raise in an applicationfor transfer of proceedings under s 122A of the Human Rights Act. It does not justifya departure from the clear statutory scheme.[77] In summary, it would be inconsistent with the scheme of the relevantlegislation for a plaintiff to be able to commence a claim in the High Court in respectof these matters. The Judge was right to find that these claims are not arguable inproceedings filed in the High Court, and must be struck out.Result[78] The appeal is dismissed.[79] Mr S must pay costs to each of the respondents for a standard appeal on aband A basis, with usual disbursements.Solicitors:Wynn Williams, Auckland for First RespondentKennedys, Auckland for Second Respondent26 High Court judgment, above n 1, at [67].Appendix: New Zealand Association of Counsellors Complaints Process