Attorney-General on behalf of the Ministry of Health v Idea Services Limited HC Wellington CIV 2011-485-1562 [2011] NZHC 1112 (19 September 2011)

Last Updated: 16 October 2011

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CIV 2011-485-1562}

UNDER The Human Rights Act 1993

BETWEEN THE ATTORNEY-GENERAL ON BEHALF OF THE MINISTRY OF HEALTH

Appellant

AND IDEA SERVICES LIMITED Respondent

Hearing: 19 September 2011

Counsel: I C Carter and G J Robins for Appellant

A S Butler and O C Gascoigne for Respondent

Judgment: 19 September 2011

_{JUDGMENT OF RONALD YOUNG J}

Introduction

[1] On 11 August 2011 the appellant filed an appeal against a decision of the Human Rights Review Tribunal (“the Tribunal”) of 13 July 2011. The orders made on 13 July 2011 by the Tribunal were based on reasons given in a decision released on 11 April 2011.

[2] The respondent now seeks to strike out this appeal as an abuse of process. The respondent says that this appeal is really an attempt to appeal the 11 April decision. The Human Rights Act 1993 (“the Act”) prohibits an appeal from the

11 April decision given the time allowed for such appeals has expired.[1]

[3] The original dispute before the Tribunal concerned the funding of community participation activities for those with intellectual disabilities over 65 years of age. Idea Services, the respondent, is a subsidiary of IHC. Idea’s claim was that in March 2005 the Ministry of Health wrongly stopped funding activities for those with such disabilities over 65 years of age. They have been providing funding in the interim. They applied to the Tribunal alleging the Ministry of Health had breached the New Zealand Bill of Rights Act 1990 (“BORA”) and the Act when it stopped funding.

[4] The Tribunal concluded that the contractual arrangements between the Ministry of Health and Idea Services meant that the Ministry of Health had a contractual responsibility to fund Idea Services to provide the relevant services to those over 65 years of age with intellectual disabilities.

[5] The Tribunal concluded that the decision to stop such funding amounted to prima facie discrimination. They concluded that, such a decision was not a justified limit under s 5 of the BORA, the decision was not prescribed by law, it did not serve a purpose sufficiently important to justify a curtailment of the right and nor was it in due proportion to the importance of its objectives. They concluded, therefore, that there was a breach of Part 1A of the Act, that is, discrimination by the Government or a related body.

[6] Prior to the commencement of the hearing before the Tribunal the parties apparently agreed (with the acceptance of the Tribunal) that the hearing would be divided into two parts. The first part would deal with the question of whether there had been breaches of the BORA and the Act. If established, then the second part would be to deal with what, if any, remedy might be given.

_{H CONCLUSIONS}

[195] Overall, we have concluded:

[a] The SMT’s decision to stop funding for intellectually disabled people requiring access to day services after their retirement from the MSD amounted to prima facie discrimination;

[b] The SMT’s decision is not justified under s 5 of the

NZBORA.

[196] In our view the SMT decision was a breach of Part 1A of the HRA. I NEXT STEPS

[197] As noted at the outset, it was agreed that all questions of remedy should be left to be determined at a later stage. We therefore make no final orders; not even a declaration.

[198] We recognise the possibility that the parties may want to see a further opinion in respect of the conclusions we have reached at this stage. In that case there may be an issue as to whether this decision should be regarded as a final decision or an interlocutory one only. Judicial review may be considered. Alternatively the parties may want the Tribunal to deal with the issues of remedy.

[199] In any case, it seems appropriate to leave the matter for 30 days after this decision is issued, and for there to be a case management conference with the Chairperson of the Tribunal after that. We ask the Secretary of the Tribunal to arrange that in due course.

[8] There then followed discussion between the Tribunal and counsel as to the next step. During that time the one month appeal period[2] from the 11 April decision expired (this observation does not suggest I consider there was or was not a right of appeal from the 11 April decision). There was a disagreement between the parties as to whether the Tribunal’s 11 April decision was a decision susceptible to the appeal provisions.

[9] The appellant’s position was that while it wished to challenge the reasons given for reaching the conclusions the Tribunal did, it considered it could not appeal until some form of remedy was given by the Tribunal.

[10] The Tribunal wished to avoid compromising either parties’ appeal rights in the High Court. They concluded that given the amount of the remedy sought (which arose from their findings) was within the jurisdiction of the High Court (rather than the Tribunal) the proper course was for them to make the following orders:

[7] For these reasons, we now make the following orders:

[a] Pursuant to s 92I(3)(a) of the Act, and for the reasons set out in the substantive decision, we declare that the Ministry of Health has committed a breach of Part 1A of the Act in that the decision of the Ministry of Health’s senior management team on 21 March 2005 (namely, that no new referrals for day services for Idea Services’ service users over the age of

65 would be accepted) was inconsistent with s 19 of the New Zealand Bill of Rights Act 1990, and was not within any justified limitation prescribed by law under s 5 of the New Zealand Bill of Rights Act 1990;

[b] We make this declaration without prejudice to Idea Services’ position that the defendant is out of time to bring an appeal in respect of the substantive decision;

[c] Pursuant to s 92R of the Act we refer all questions relating to the granting of remedies in this case to the High Court.

[11] These orders were made on 13 July.

Discussion

[12] The thrust of the respondent’s application to strike out is that the appellant is trying to use the device of appealing from the orders of 13 July as a way of attacking the reasoning of the Tribunal in its 11 April decision. The respondent’s case is that the appellant cannot do this as it is attempting to undermine the appeal limitation period in s 123 of the Act.

[13] Section 123 provides as relevant:

123 Appeals to High Court

...

[(2) A party to a proceeding under section 92B or section 92E may appeal to the High Court against all or any part of a decision of the Tribunal—

(a) dismissing the proceeding; or

(b) granting one or more of the remedies described in section 92I; or

(c) granting the remedy described in section 92J; or

(d) refusing to grant the remedy described in section 92J; or

(e) constituting a final determination of the Tribunal in the proceeding.]

[(2A) For the purposes of subsection (2)(d), the Tribunal does not in a proceeding refuse to grant the remedy described in section 92J unless—

(a) a party to the proceeding expressly applies to the Tribunal for the remedy in relation to a particular enactment; and

(b) the Tribunal does not grant the remedy in relation to that enactment.]

(3) Where any party is dissatisfied with any decision of the Tribunal making a declaration under section 97 of this Act, that party may appeal to the High Court against the whole or any part of that decision.

(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.

[14] At the commencement of the hearing of this application I raised with counsel the following propositions as a preliminary view:

(a) that whatever view I took of the competing arguments on abuse of process the appellant had filed a timely appeal with respect to the

13 July decision which it could pursue;

(b) the argument between the parties was effectively an argument about the extent of the appeal which was properly dealt with by the Judge who was to hear the substantive appeal.

[15] Counsel had the opportunity to make submissions on these propositions. After hearing counsel I advised that my preliminary view was now my confirmed view and that I would subsequently release a short judgment which I now do.

[16] I consider the respondent’s application to strike out this appeal is misconceived. There can be no doubt that the appellant was entitled to appeal the order of the Tribunal of 13 July. The Tribunal made particular orders.[3] Section 123 of the Act gives a right of appeal to the High Court from such orders.[4] There is, therefore, in my view, no basis on which to strike out such an appeal as being an

abuse of process. The appellant is entitled at the very least to argue on appeal the correctness of the orders of 13 July.

[17] The extent of the appeal that the High Court has jurisdiction to hear in this case is, however, entirely another matter. It would be inappropriate for me to express any view in this decision as to that. The extent of the appeal will be a matter for the Judge hearing the appeal. For those reasons the application to strike out this appeal is dismissed.

Other matters

[18] I note that I discussed with counsel whether the Crown might also file judicial review proceedings relating to the decision of 11 April as a concurrent challenge. Should they wish to do so then in my view they should immediately file such proceedings. I consider any such judicial review proceedings should be heard at the same time as this appeal. This is preferable because it is the most efficient use of time for the parties and the Court but more importantly the appeal/judicial review cases are likely to be intertwined.

[19] The respondent’s concern throughout the Tribunal hearing and this appeal has been to minimise legal costs. I foreshadow for the Judge who is to hear the substantive appeal that the respondents may ask that Judge to hear, as a preliminary point, the arguments which underlie this strike out application and thus the extent of

_{the appeal. I express no view on the merits of such an approach.}

[20] I consider this case should have a Judge assigned to it to facilitate its early hearing. Given the subject matter and the remedy issues still to be dealt with an expedited hearing is called for, I have, therefore, referred this case to the List Judge.

Costs

[21] Although the respondent’s strike out application was dismissed the argument which underlay it remains for resolution on another day. In those circumstances the

_{best course is to reserve costs.}

Ronald Young J

Solicitors:

I Carter, Crown Law, Wellington, email: [e-mail]

A S Butler, Russell McVeagh, Wellington, email: [e-mail]

O C Gascoigne, Russell McVeagh, Wellington, email: [e-mail]

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[1] Human Rights Act 1993, s 123

[2] Human Rights Act 1993, s 123.
[3] _{At [10].}
[4] Human Rights Act 1993, s123(2)(c).