|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
Last Updated: 24 March 2023
|
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
|
|
CIV-2022-404-000011
[2022] NZHC 2229 |
|
BETWEEN
|
JASBIR BALBIR SINGH
Applicant
|
|
AND
|
AUCKLAND DISTRICT HEALTH BOARD
Respondent
|
|
Hearing:
|
18 August 2022
|
|
Appearances:
|
Applicant in person
R M Rendle for the Respondent
|
|
Judgment:
|
2 September 2022
|
|
Reissued:
|
15 September 2022
|
JUDGMENT OF HARVEY J
This judgment is reissued by me on 15 September 2022 at 1.00pm pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
Solicitors:
Simpson Grierson, Auckland
And to:
The Applicant
SINGH v AUCKLAND DISTRICT HEALTH BOARD [2022] NZHC 2229 [2 September 2022]
Introduction
[1] Dr Jasbir Balbir Singh was employed by the Auckland District Health Board (ADHB) from 9 December 2013 until her resignation on 25 February 2015. She claims that she was subject to discrimination and harassment during that period of employment which led to physical and mental harm. Following her resignation, Dr Balbir Singh commenced proceedings against ADHB in the Human Rights Review Tribunal (HRRT) at Auckland. She also filed an application with the Employment Relations Authority (ERA) which was dismissed for lack of jurisdiction.1 The ADHB applied to strike out the HRRT proceeding.
[2] After several delays, the HRRT strike out proceeding was set down for a one- day hearing on 1 February 2018. Dr Balbir Singh did not appear. Following the hearing, Dr Balbir Singh contacted the HRRT requesting that her claim be withdrawn.
Accordingly, on 8 February 2018 the HRRT dismissed her claim.2
[3] Almost four years later, Dr Balbir Singh applied to this Court on 14 January 2022 with three parallel proceedings concerning the same subject matter:
(a) First, an application seeking leave to appeal the HRRT decision out of time (the Leave to Appeal Application).
(b) Secondly, an application for judicial review of the HRRT decision (the Judicial Review Application).
(c) Thirdly, an application to bring general proceedings in this Court under the Human Rights Act 1993, the New Zealand Bill of Rights Act 1990, the Privacy Act 1993 and the Privacy Act 2020, and the Employment Relations Act 2000 (the General Proceedings).
[4] Dr Balbir Singh essentially seeks that “the decision to withdraw the case from the HRRT be revoked and this case be reinstated and be reviewed by the High Court of New Zealand” as well as total financial compensation of $3,171,400.
[5] In response, ADHB has applied to strike out the Leave to Appeal Application, the Judicial Review Application and the General Proceedings. In the event that any aspect of the claim is not struck out, AHDB seeks security for costs. ADHB’s position is that across every perspective from which strike out is assessed – whether the claims are reasonably arguable, likely to cause prejudice or delay, frivolous or vexatious, or an abuse of process – the proceedings justify striking out.
Issues
[6] The issues for determination are:
(a) Should the Leave to Appeal Application be struck out?
(b) Should the Judicial Review Application be struck out?
(c) Should the General Proceedings be struck out?
(d) Should security for costs be ordered?
Procedural history
[7] Dr Balbir Singh filed a notice of proceeding, statement of claim and application for leave to appeal out of time with this Court in January 2022.3 The proceedings were served on ADHB on 8 February 2022.
[8] By minute of 16 March 2022, Jagose J recorded that the basis for these proceedings was the HRRT’s decision to dismiss Dr Balbir Singh’s 2 February 2016 discrimination claim against the ADHB. His Honour observed that what appears to be the right of appeal against that decision under s 123(2)(a) of the Human Rights Act requires a notice of appeal to be given within 22 working days after the date of the
decision per s 123(4). Jagose J noted that no such notice had been given and, therefore, if an extension of time was available, Dr Balbir Singh would need leave to appeal against that decision.
[9] Further, Jagose J cautioned that the right to judicial review under s 27(2) of the New Zealand Bill of Rights Act 1990 is “not an untrammelled right to review in itself” and that “[a]pplications for review are as susceptible to strike out as any other proceeding”.4 He further cautioned that “[i]t is an abuse of process to use judicial review procedures to circumvent appeal pathways”,5 and that Dr Balbir Singh’s proceeding risks strike out, as the ADHB had indicated that it would pursue. Jagose J urged the parties to liaise on Dr Balbir Singh’s intentions and to advise the court accordingly in advance of the proceedings further call in the judicial review list.
[10] On 26 April 2022, counsel for ADHB filed a memorandum setting out the correspondence they have had with Dr Balbir Singh, and appending copies of that correspondence, in light of Jagose J’s direction to liaise. The effect of that correspondence was that Dr Balbir Singh intends to continue to pursue her claims as pleaded. Counsel recorded that ADHB remained of the view that a strike out is appropriate, and that ADHB is anxious to avoid the expense associated with responding to the proceedings.
[11] On 27 April 2022, Moore J issued a minute providing timetabling directions for the ADHB’s strike-out application and setting down a half-day fixture for 10 am on Thursday 18 August 2022.6 Inter alia, Moore J’s minute recorded that:
(a) Dr Balbir Singh remains unrepresented.
(b) There appear to be three parallel proceedings – the judicial review, general proceedings and an application for leave to extend time to file – all of which involve the same subject matter.
5 Citing Prescott v Police [2019] NZCA 380 at [18].
(c) Dr Balbir Singh remains committed to pursuing her grievances against the ADHB and sought to advance all three sets of proceedings.
[12] For those reasons, Moore J found that there did not appear to be any alternative course but to give the ADHB the opportunity to file its strike out application. As foreshadowed, that application was filed on 12 May 2022.
Background
[13] Dr Balbir Singh commenced employment with the ADHB in late 2013. She claimed that during that time she was discriminated against as an Australian and because of a perceived mental disability. She further claimed, among other things, that she was denied unpaid leave, support (despite doctors believing she was mentally unwell), was subject to discriminatory comments on an on-going basis, bullying, social isolation and privacy breaches. Accordingly, Dr Balbir Singh stated she felt forced to resign after experiencing humiliation and chronic high-level stress.
History of litigation
[14] After resigning in February 2015, Dr Balbir Singh filed proceedings with the HRRT on 2 February 2016 against the ADHB and eleven ADHB employees.7 ADHB was served with a statement of claim on 22 April 2016 and then applied on 26 May 2016 to strike out parts of the proceeding and to strike out all defendants other than ADHB, as well as seeking further particulars and reserving their position to seek further strike out. The HRRT accordingly struck out all other defendants and issued further directions by minute dated 5 August 2016.
[15] In the interim, on 3 October 2016, Dr Balbir Singh lodged a claim with the ERA, which the ADHB promptly applied to strike out on 17 October 2016. On 22 November 2016, the ERA dismissed the claim.8 This was on the basis that, under s 112 of the Employment Relations Act, Dr Balbir Singh had made the irrevocable election to pursue her claim in the HRRT rather than with the ERA. The Authority
8 ERA Decision, above n 1.
dismissed the claim for lack of jurisdiction, noting that “[h]aving made her choice to begin in the Tribunal, s 112 would prevent Ms Singh making a ‘U turn’ and coming back to try again in the Authority”.9
[16] Turning back to the HRRT case, on 9 November 2016, ADHB applied to strike out the entire HRRT proceeding. From the period of March 2016 to 5 June 2017, Dr Balbir Singh had sought (and was granted) five extensions to file submissions. On 13 October 2017, the HRRT advised that the matter had been scheduled for hearing on 1 February 2018.
[17] On 9, 23, 25, 30 and 31 January 2018, Dr Balbir Singh sought adjournments of the hearing on medical grounds and because of her failure to obtain representation and lack of funds, which was repeatedly declined by the HRRT in consecutive minutes. The HRRT was, essentially, not persuaded that the grounds for an adjournment had been made out. Inter alia, it was noted that there were insufficient details of Dr Balbir Singh’s illness and how it would prevent her from attending the hearing, that the proceedings had been on foot since February 2016, and that multiple adjournments and extensions of time had already been granted over that period.10
[18] On 31 January 2018, Dr Balbir Singh requested that her application be withdrawn. The strike out application was heard on 1 February 2018, and Dr Balbir Singh did not attend. Following the hearing, as recorded in the HRRT decision, Dr Balbir Singh sent repeated requests to the HRRT on 1, 2 and 7 February to withdraw her application.
[19] On 8 February 2018, in a minute titled “Minute of Co-Chairperson accepting withdrawal of claim by plaintiff” the HRRT dismissed Dr Balbir Singh’s claim in response to her repeated requests that the claim be withdrawn.11 This is the decision with which Dr Balbir Singh takes primary issue in her claim. That decision reads:
9 At [13].
10 See the minutes dismissing applications for adjournment: Balbir Singh v Auckland District Health Board HRRT 003/2016, 24 January 2018; Balbir Singh v Auckland District Health Board HRRT 003/2016, 26 January 2018; Balbir Singh v Auckland District Health Board HRRT 003/2016, 30 January 2018; and Balbir Singh v Auckland District Health Board HRRT 003/2016, 31 January 2018.
11 HRRT Decision, above n 2.
[4] On 1 February 2018, Dr Balbir Singh sent the Secretary an email in which she advised that, in the absence of an adjournment, she wished to withdraw her case. The email stated that Dr Balbir Singh would appreciate an adjournment, but also that “considering I am unwell and unfit, my intention is to withdraw the matter with no liability as to cost to either side as I have mentioned to the ADHB.”
[5] The same day, Dr Balbir Singh sent several other emails to the Secretary concerning both her application for adjournment and a possible withdrawal of the proceedings. In addition, an email from an Auckland barrister to Dr Balbir Singh dated 1 February 2018 was copied to the Secretary. This email advised Dr Balbir Singh that the barrister was unable to attend the hearing and that another lawyer should be instructed. Finally, Dr Balbir Singh sent the secretary a copy of a letter dated 19 December 2017 from the ANZCA advising the negative outcome of Dr Balbir Singh’s application for the ANZCA Council to reconsider its decision to remove her from the anaesthetics training program.
[6] Concerned that ambiguity existed as to Dr Balbir Singh’s position as to whether the proceedings were in fact withdrawn, the Tribunal proceeded with the hearing on 1 February 2018. The ADHB appeared, represented by Ms Wilson who did not seek an award of costs. The Secretary advised Dr Balbir Singh by email that the case had proceeded in her absence and that a written decision would be published in due course.
[7] Dr Balbir Singh responded with a letter dated 1 February 2018 in which she stated:
I would appreciate a withdrawal/cessation of claims in this case with no payment of costs from both sides as I have not been able to attend court today. I would appreciate confidentiality and that the decision not be published and name suppression as the outcome for me is definitely a negative one.
[8] On 2 February 2018, Dr Balbir Singh sent an email to the Secretary in which she re-iterated her wish to have the case withdrawn.
[9] On 7 February 2018, Dr Balbir Singh sent two further emails to the Secretary in which she expressed concern about the effect on her career of the publication of a decision, and again, re-iterated her wish to have the case withdrawn.
[10] The Tribunal proceeded with the hearing of the strike out application on 1 February 2018 because of ambiguity concerning Dr Balbir Singh’s position. Having considered the material filed by Dr Balbir Singh subsequent to the hearing, there is no longer ambiguity and it is clear that Dr Balbir Singh, having failed to have the hearing adjourned, now clearly wishes to withdraw her claim.
[11] In the circumstances, Dr Balbir Singh’s withdrawal is accepted and her claim against the ADHB under the Human Rights Act 1993 is dismissed.
[12] As noted earlier, the issue of costs does not arise.
[13] As no decision will be issued, it is unnecessary to consider the question of name suppression.
[20] That was the end of the matter until Dr Balbir Singh filed the present claims.
Legal Principles
[21] Rule 15.1 of the High Court Rules 2016 provides:
15.1 Dismissing or staying all or part of proceeding
(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or(b) is likely to cause prejudice or delay; or
(c) is frivolous or vexatious; or
(d) is otherwise an abuse of the process of the court.
[22] The strike-out principles are well settled. The Supreme Court in Couch v Attorney-General12 endorsed the decision of the Court of Appeal in Attorney-General v Prince & Gardner which summarised the principles as follows:13
(a) a striking-out application proceeds on the assumption that the facts pleaded in the statement of claim are true;(b) the causes of action must be so clearly untenable that they cannot possibly succeed;
(c) the jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material; and
13 Attorney-General v Prince & Gardner [1998] 1 NZLR 262 (CA), (1997) 16 FRNZ 258 at 267.
(d) the fact that the application to strike out raises difficult questions of law does not exclude jurisdiction.
Should the Leave to Appeal Application be struck out?
[23] Ms Rendle, for the ADHB, contended that the claim must be struck out as there is no jurisdiction to extend the prescribed timeframes for appealing a decision of the HRRT. As a decision dismissing the proceeding, if the Court accepts that it is, the 8 February 2018 HRRT decision is subject to s 123 of the Human Rights Act. This provision does not permit an extension of time and limits the time for bringing the appeal to 30 days after the date of the Tribunal’s written decision.14 Although r 20.4 of the High Court Rules allows for special leave to appeal in certain circumstances, namely where the enactment that confers the power of appeal either permits the extension or does not limit the time prescribed for bringing the appeal, as s 123 of the Human Rights Act does neither, there is no jurisdiction for this Court to grant an application for leave to appeal the HRRT decision out of time.
Dr Balbir Singh’s submissions
[24] Generally, and by way of background, Dr Balbir Singh asserted that previously she had been a high performing doctor. Yet when she left New Zealand, she was “unrecognisable”. During her time employed by the ADHB she claimed that she had suffered from various forms of harassment and discrimination, which also impacted on her personal life. She emphasised that, in her view, she had a very strong arguable case. There had been a conflict of evidence and, in her view, she had been abused by all of the processes as a form of oppression. Dr Balbir Singh emphasised that she still had injuries and was without legal advice.
[25] On the issue of leave to appeal out of time, Dr Balbir Singh stressed that there was a public interest element to justify reinstatement of her HRRT proceedings. She
also pointed out that she did try to rectify the errors by contacting HRRT directly but was given no assistance. Dr Balbir Singh submitted that she had been wrongly told she had no right of appeal, and that this compounded her physical and mental health challenges and impacted on her ability to engage. Her earlier failure to appeal was, therefore, an incorrect decision due to inadvertence rather than a change of mind, given her lack of access to appropriate legal advice. She considered that the HRRT failed to provide her with appropriate support and information on what processes were available to her as a lay litigant who did not understand the implications of the legal process. For these and other reasons, she considered that her application for leave to appeal out of time should not be struck out.
Discussion
[26] Accepting that the 8 February 2018 minute is a decision dismissing the proceeding, I agree with counsel regarding the jurisdictional point and time frames for filing and pursuing appeals. The right of appeal to the High Court for a decision dismissing the proceeding is conferred by s 123 of the Human Rights Act15 which, at the time of the decision at issue, stated that:
(4) Every appeal under this section shall be made by giving notice of appeal within 30 days after the date of the giving by the Tribunal in writing of the decision to which the appeal relates.
[27] As the HHRT released its written decision dismissing Dr Balbir Singh’s appeal on 8 February 2018, the filing of the appeal is out of time by a significant margin.
[28] Special leave to extend the time for bringing an appeal under r 20.4(3) of the High Court Rules applies only if the statute conferring the right of appeal permits the extension or does not limit the time for bringing the appeal. As s 123 of the Human Rights Act does neither there is no jurisdiction to allow, or entertain, the application for leave to appeal out of time.16
15 Section 123(2)(a).
[29] I appreciate Dr Balbir Singh’s point that it was only through what she claims was inadvertence due to lack of legal advice on her part that she made the incorrect decision to withdraw her claims from the HRRT and failed to lodge an appeal in the statutory timeframe. However, that cannot dislodge the legislative prohibition on this Court granting an application for leave to appeal out of time. The result is that the Leave to Appeal Application must be struck out.
Should the Judicial Review Application be struck out?
[30] Ms Rendle argued that the claims for judicial review, if that is inherent in Dr Balbir Singh’s application, is defective in four ways which warrant strike out:
(a) It is an attempt to circumvent prescribed appeal rights.
(b) It is not reasonably arguable.
(c) There has been considerable unexplained delay, prejudicial to ADHB.
(d) It is incapable of being re-pleaded as an application for leave to appeal.
[31] Expanding on these points, Ms Rendle submitted that the pleadings do not clearly disclose any grounds of review. The time for exercising appeal rights is prescribed in legislation. Dr Balbir Singh should not be permitted, counsel contended, to avoid those requirements by advancing an appeal under the guise of judicial review. In any event, Ms Rendle submitted that the claim is not reasonably arguable, as Dr Balbir Singh is seeking to challenge a decision which came at her own initiative after she asked the Tribunal to withdraw her application.
[32] In that same vein, Ms Rendle argued that delay, while not sufficient in itself to justify strike out, is a relevant consideration in determining such applications, citing Sheffield Properties Ltd v Kapiti Coast District Council.17 Almost four years have elapsed since the HRRT decision and the High Court accepting Dr Balbir Singh’s documents for filing, with no satisfactory explanation for this delay. Allowing the
judicial review to proceed risks being highly prejudicial to ADHB who has borne the expense of the earlier HRRT application, including a hearing which Dr Balbir Singh did not attend, only to have the application withdrawn at Dr Balbir Singh’s request.
[33] If the HRRT proceedings were revived now, ADHB would have to pursue another strike out application in relation to claims concerning events some seven to nine years ago and be put to cost for something which should have been determined four years ago. Further, Ms Rendle submitted that the flaws in the claim cannot be cured by repleading as a leave to appeal, as there is no jurisdiction for the Court to accept an application for leave to appeal out of time.
Dr Balbir Singh’s submissions
[34] Dr Balbir Singh submitted that just because the “players and the partners in this mess have changed, does not mean the basis of violations should be ignored”.
[35] In many ways, Dr Balbir Singh’s submissions on this point converge with her general submissions, but (at its highest) the essence of the application for judicial review appears to be based on the process by which the HRRT dismissed her proceedings. At the heart of this claim is Dr Balbir Singh’s repeated contention that she had never managed to secure legal advice, although she confirmed that she had made a complaint against one lawyer who attempted to charge her excessive fees. In addition, Dr Balbir Singh argued that she had been injured both physically and mentally during her time working for the ADHB and was never given support or time to recover. Primarily, she submitted that this was the reason why she had sought adjournments.
[36] Essentially, Dr Balbir Singh argued that she had been unfairly pushed into asking the HRRT to withdrawing her claim under duress, because the HRRT would not grant her adjournments. According to Dr Balbir Singh, the HRRT appeared to take advantage of her lack of access to legal advice and correct information when declining her legitimate requests for adjournments as well as concealing relevant information from her that she might attend the various hearings and conferences remotely.
[37] She submitted that although she had advised HRRT of her illness and being in a different country, she was not told once that she could attend the hearing by phone. She had been told she had been required to travel to Auckland from overseas despite being unwell. Dr Balbir Singh contended that the HRRT failed in its duty to apply the principles of natural justice with its continual refusal to grant her proper adjournments which were required because of her relevant illnesses. Instead, the HRRT declined to acknowledge her injuries and instead decided to proceed without her. The HRRT’s handling of the matter, she says, pushed her into believing she had to withdraw the application. As a result, she lost the opportunity to have her claims heard and that has adversely impacted her health and her employment.
[38] Therefore, she submitted, because of all of these factors, her application for judicial review should be granted. Dr Balbir Singh contended that, all she was seeking was the right to a fair hearing and that, so far, this had been denied to her with the result that her rights had been significantly affected to her detriment.
Discussion
[39] Plainly, a judicial review proceeding can be struck out under r 15.1.18 Here, ADHB has been given express opportunity to apply to do so by Moore J. The Court of Appeal confirmed in South Ocean Trawler Ltd v Director-General of Agriculture, that the same principles as are set out at [22] above apply to strike out of a judicial review proceeding.19
[40] Ms Rendle’s submissions are difficult to displace. It is entirely arguable that the application for judicial review is simply an attempt to circumvent Dr Balbir Singh’s prescribed appeal rights which have expired some years ago. More importantly, I accept counsel’s submission that the Court should always proceed with caution in granting judicial review where appeal rights have been provided but were not taken
18 See for example Cooke J’s comments in Ngāti Tama ki Te Waipounamu Trust v Tasman District Council [2018] NZHC 2166 at [16] – [19].
19 Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53 (CA); and see also Te Whakakitenga O Waikato Inc v Martin [2016] NZCA 548, [2017] NZAR 173.
up. Dr Balbir Singh cannot now avoid those requirements by in effect seeking to pursue, belatedly, an appeal as a judicial review.
[41] I also accept that judicial review in the context of this specific claim, given the circumstances, is not reasonably arguable and that Dr Balbir Singh has not disclosed in her claim any reasonably arguable grounds for review. The pleadings are essentially framed as an appeal and do not disclose a ground of review other than a broad claim that the HRRT was “unfair” in its dealings with Dr Balbir Singh’s claim and breached natural justice by refusing to grant adjournments.
[42] I appreciate Dr Balbir Singh’s submissions that she was repeatedly denied adjournments by the HRRT and feels there was a breach of natural justice requirements in that way. She claimed to have provided ample evidence of her illnesses and her legitimate requests for adjournments. However, these submissions obscure that the HRRT’s refusals to grant adjournments in early 2018 arose in a context where proceedings had been continually delayed at Dr Balbir Singh’s own motion since February 2016. Moreover, the ultimate decision to have the claim withdrawn, regardless of how it was arrived at, was a choice Dr Balbir Singh made. It was only as a result of multiple emails from Dr Balbir Singh between 1 and 7 February 2018 requesting that the matter be withdrawn that the HRRT dismissed proceedings by their decision of 8 February 2018.
[43] Added to that is the reality that there has been considerable unexplained delay in filing these judicial review proceedings, a matter of years rather than days, which would be prejudicial to ADHB were the claim allowed to survive. Dr Balbir Singh submitted in response that the delays were due to her illnesses, both mental and physical, and her inability to secure legal advice.
[44] As Dobson J noted in A v Minister of Internal Affairs, speaking to the length of delay which might justify a strike out of judicial review proceedings:20
[18] To achieve a strike out of proceedings on the ground of an applicant’s delay, a respondent must establish that the delays have been inordinate and
20 A v Minister of Internal Affairs [2019] NZHC 2992 at [18]– [19]; citing Lovie v Medical Assurance Society of New Zealand Ltd [1992] 2 NZLR 244 (HC); and Commerce Commission v Giltrap City Ltd [1997] NZCA 330, (1997) 11 PRNZ 573.
inexcusable, and that the respondent has suffered serious prejudice from the delay. In addition, the Court has to be satisfied that it is not in the overall interests of justice to allow the case to proceed.
[19] There can be no set period of months or years that qualifies as inordinate delay in every case. The expectation of a satisfactory rate of progress will depend on the nature of any individual case. ...
[45] In that case, Dobson J was speaking to the delay in prosecuting judicial review proceedings which had been already brought in this Court, but the logic similarly applies to a delay in bringing proceedings to this Court in the first place. Of course, Dr Balbir Singh’s lack of representation and personal circumstances including health are all factors which mean that a longer period of delay would be acceptable in this case. Notwithstanding, the reasons given by Dr Balbir Singh do not sufficiently explain away nor justify an inordinate delay of well over three years. Requiring ADHB to respond to proceedings which it had considered were already concluded in other fora, in relation to employment matters which occurred between 2013 and 2015
– some seven years ago – would cause significant prejudice.
[46] It is not in the interests of justice that the claim continues when I do not consider there is a reasonably arguable case. Ultimately, regardless of whether it was inadvertence or otherwise, as outlined above, it was Dr Balbir Singh’s own decision to withdraw her complaint to the HRRT, which then resulted in its eventual dismissal. Further, while Dr Balbir Singh submitted that her request for adjournments were invariably declined, as Ms Rendle pointed out, that position was not entirely accurate. The HRRT had in fact acquiesced to many of Dr Balbir Singh’s requests, particularly in the context of failing to meet filing deadlines where accommodation was provided on more than one occasion. My conclusion is that, noting the prejudicial delay in bringing the claim, the case for judicial review is untenable and the Judicial Review Application must be struck out.
Should the General Proceedings be struck out?
[47] Ms Rendle contended that strike out is necessary as it is an abuse of process to relitigate matters already determined in one forum by bringing new proceedings in another. Even if there were jurisdiction to litigate these matters in the High Court,
which Ms Rendle argued there is not, the general proceedings are an effective re-litigation of matters already dealt with by the ERA and the HRRT. In addition, counsel submitted that the claims are prolix, frivolous and vexatious and there will be a prejudicial delay if ADHB is required to respond to them. The sum sought for financial compensation (some $3 million) is, Ms Rendle submitted, entirely without foundation.
[48] Moreover, counsel contended that there is no jurisdiction for this Court to hear the claims brought under the Privacy Acts, Employment Relations Act and Human Rights Act in the first instance.
[49] So far as the New Zealand Bill of Rights Act claim, with reference to s 3 of that Act, Ms Rendle argued that, as Dr Balbir Singh’s claims relate to issues in the course of and subsequent to her employment with the ADHB, the New Zealand Bill of Rights Act cannot apply as employment matters are ancillary to ADHB’s public function and governed by the principles of private law.21 Counsel contended that the alleged breaches are “simply inarguable”, aside from s 19 (freedom from discrimination) which can be struck out as an abuse of process. References to defamation, Ms Rendle argued, appear to be colloquial only. Even if there were a claim being made in defamation, counsel submitted that it should be struck out because the requirements of s 37 of the Defamation Act 1992 have not been dealt with, the time-year limitation under ss 11 and 15 of the Limitation Act 2010 has long-since lapsed, and the claim is not tenable relating only to statements made only to Dr Balbir Singh’s mother (a single person).
Dr Balbir Singh’s submissions
[50] Dr Balbir Singh’s submissions appear to rely on her previous filings, notice of opposition and statement of claim as “further grounds and justification” for her opposition. Dr Balbir Singh says that this is an extremely important human rights and bill of rights violation claim which should not be struck out. Her claims should not be ignored or struck out because she has injuries, is unemployed and has damaged
financial capacity, Dr Balbir Singh submitted. She had also emphasised that not all of her case falls under the one jurisdiction with parts under the HRRT and other parts under the ERA. However, central to her claims was that she needed to seek justice for all the various forms of harm she had been subjected to by the ADHB.
[51] Dr Balbir Singh underscored that she had taken every reasonable step to seek sensible resolution of her claims of abuse against the ADHB but these had been unsuccessful not because she had been unwilling or unreasonable but rather because the hospital, through its systems and processes, had not taken her seriously and in fact had actively undermined her efforts to find a resolution. She also stressed that the authorities she had turned to for resolution of her complaints, namely the HRRT and the ERA, rather than assisting, instead compounded the original harm that she had been experiencing through their unfair and improper processes and procedures.
[52] In any event, Dr Balbir Singh had submitted that, because of all of the harassment and harm she had experienced at the ADHB and given the complicity of the HRRT and the ERA in that harm, there was a significant public interest element to her claims. She also considered that compensation in excess of $3,000,000 was reasonable in all of the circumstances and because of that amount, required hearing in this Court. Further, Dr Balbir Singh argued that this Court should take account of the fact that she had not been in receipt of legal advice throughout the entirety of her dealings with the ADHB, the ERA and the HRRT. This was a serious and ongoing disadvantage which clearly impacted on her responses to all of the parties mentioned which resulted in significant disadvantage to Dr Balbir Singh, her rights and interests.
Discussion
[53] Dr Balbir Singh’s quest for what she considers a fair hearing and a just outcome from her perspective is entirely understandable. Assuming the pleaded facts to be correct for the purposes of the strike out application, Dr Balbir Singh has suffered real difficulties in her life which she attributes to ADHB. As foreshadowed, prior to her employment difficulties, she claimed that she was a successful doctor, married, and with positive career prospects. Then, as a result of what she claims were harmful behaviours by her then employer, its staff and management, her life has essentially
spiralled out of control to the point where she was at one point homeless and living out of a car. She lost her career and her marriage. She claims she is significantly in debt and unemployed. Dr Balbir Singh also stated that due to ongoing physical and mental injuries and harm, she suffers from significant discomfort and consequently has a poor quality of life.
[54] Yet as Ms Rendle pointed out, there are major jurisdictional flaws in Dr Balbir Singh’s arguments. It will also be evident that there was significant repetition with Dr Balbir Singh’s submissions, which is understandable to some extent, but the pleadings in relation to the general proceedings are difficult to understand and take a scattergun approach.
[55] Putting those jurisdictional issues to one side, however, the real issue warranting strike out is the fact that Dr Balbir Singh is, in essence, attempting to relitigate matters which were brought before the HRRT and the ERA and dismissed as a result of her own actions and choices. It is well-established that it is an abuse of process to relitigate matters already determined by bringing proceedings in a new forum.22 Of course, and I highlight this for Dr Balbir Singh’s benefit, an abuse of process is not used in a pejorative sense: the label is a technical one.23 That noted, these proceedings do fall into that category.
[56] No doubt on reflection, Dr Balbir Singh might have decided to simply pursue a claim with the ERA since essentially her issues were employment related. That she decided to instead take different route through the HRRT, which then precluded her litigating matters in the ERA, is not in dispute. Neither is the fact that it was at her own request proceedings in the HRRT were withdrawn. Accordingly, for Dr Balbir Singh to then argue that this Court should re-litigate matters is not sustainable. In addition, while I can appreciate her point that she was without legal advice at important moments, as foreshadowed, her own submissions refer to “$140,000” being spent on legal advice. So that would suggest that Dr Balbir Singh was not entirely bereft of the advice of lawyers at some point in the process. I also note, as discussed in relation to
22 See for example Grant v Attorney-General [2021] NZHC 1700 at [54].
23 See Tau v Durie [1998] 2 NZLR 103 at 107, (1980) 11 PRNZ 417(HC) at 421.
strike out of the Judicial Review Application, there has been an inordinate delay in bringing these proceedings, even given Dr Balbir Singh’s circumstances.
[57] My overall conclusion is that there do not seem to be any grounds on which a general proceeding might properly be advanced, as currently framed. Moreover, the present proceeding is both an abuse of process insofar as it attempts to re-litigate matters and, given the inordinate delay, prejudicial to ADHB.
[58] This final aspect of Dr Balbir Singh’s claim must also be struck out.
Should security for costs be ordered?
[59] As the strike out application has been granted, security for costs is irrelevant.
Suppression
[60] Dr Balbir Singh requested that her name and identifying details be suppressed. She followed up this original request with further written submissions and supporting materials following the hearing, which largely repeated her earlier arguments. Prior to that, Ms Rendell submitted that there was no proper reason for suppression and that the decision of the Court should be released without suppression orders. Ms Rendell, having then considered Dr Balbir Singh’s additional submissions, nonetheless reiterated her original arguments that suppression should not be granted.
[61] In my assessment, Dr Balbir Singh has not drawn a clear link between her name being published and her “health and wellbeing” being further damaged, or her injuries being aggravated. While I acknowledge her submissions that, if this decision is published, there is a risk that it might disproportionately affect her ability to gain future employment, name suppression is a high bar. Dr Balbir Singh’s reasons for name suppression, that she is unrepresented, that the proceedings have been disadvantageous to her, are insufficient for suppression. As set out above, she chose to bring proceedings as a self-represented person as plaintiff. Publication is an ordinary consequence of commencing proceedings unless the high bar for suppression has been met. In this case, and balanced against the principle of open justice, I cannot see that suppression is justified.
[62] Moreover, in the context of embarrassment or inordinate amounts of workplace, personal and health information being disclosed which is compromising for her, no particular personal details are disclosed. In summary, there is nothing in the submissions and supporting documents of Dr Balbir Singh that justifies suppressing her name and other identifying details from this judgment. Her application for suppression is accordingly declined.
Decision
[63] The application by Auckland District Health Board to strike out the leave to appeal, judicial review and general proceedings filed by Jasbir Balbir Singh is granted.
[64] In the circumstances, I am inclined to let costs lie. If counsel has a different view, a memorandum can be filed after 1 month following the issue of this judgment. Dr Balbir Singh will be given a further month following that to file any reply.
Harvey J
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2022/2229.html