Jones v Waitemata District Health Board [2014] NZHC 3370 (19 December 2014)

Last Updated: 18 February 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-002928 [2014] NZHC 3370

IN THE MATTER	of an appeal against the decision of the Human Rights Review Tribunal dated 15 October 2014
BETWEEN	MICHAEL JOHN JONES Appellant
AND	WAITEMATA DISTRICT HEALTH BOARD Respondent

Hearing:	On the papers
Appearances:	Appellant in person A Finnie for Respondent
Judgment:	19 December 2014

_{JUDGMENT OF KATZ J}

This judgment was delivered by me on 19 December 2014 at 4:00 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Counsel: A Finnie, Quadrant Chambers, Auckland

_{Copy to: M J Jones, Auckland}

JONES v WAITEMATA DISTRICT HEALTH BOARD [2014] NZHC 3370 [19 December 2014]

Introduction

[1] Michael Jones has filed an appeal against a decision of the Human Rights Review Tribunal, dated 15 October 2014. He now seeks a waiver of the requirement to pay security for costs in respect of that appeal.

Security for costs on appeal - legal principles

[2] Rule 20.13(2) of the High Court Rules requires the Court to fix security for costs for an appeal, to be paid by an appellant, at the first case management conference relating to the appeal “unless the Judge considers that the in the interests of justice no security is required”. The default rule is accordingly that the provision of security for costs is mandatory, unless the appellant establishes that the interests of justice require that there be no security.

[3] The Supreme Court has recently reviewed the principles applying to applications for waiver for security for costs in the Court of Appeal, in Reekie v Attorney-General & Anor.¹ Although the Supreme Court was considering appeals governed by the Court of Appeal rules, the principles set out are of general application in relation to the provision of security for costs on appeal, including in relation to appeals to the High Court.

[4] The Supreme Court noted that the jurisdiction to require security “poses

something of a conundrum for the Courts”.² This is because: ³

The poorer the plaintiff, the more exposed the defendant is as to costs and the greater the apparent justification for security. But, as well, the poorer the plaintiff, the less likely it is that security will be able to be provided and thus the greater the risk of a worthy claim being stifled.

[5] The Court noted that, for first instance proceedings, Judges will be slow to make an order for security which will stifle a claim.⁴ A different approach is taken in

_{respect of appeals, however. The Court referred to the observations of Bowen LJ in}

¹ _{Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.}

² At [2].

Cowell v Taylor where he explained (in fairly blunt terms) the rationale for the difference in approach:⁵

The general rule is that poverty is no bar to a litigant, that from time immemorial, has been the rule at common law, and also, I believe, in equity. There is an exception in the case of appeals, but there the appellant has had the benefit of a decision by one of Her Majesty’s Courts, and so an insolvent party is not excluded from the Courts but only prevented, if he cannot find security, from dragging his opponent from one Court to another.

[6] The Court also referred to similar, and more recent, observations by

Davies JA in the Queensland Court of Appeal, where he stated that:⁶

... an impecunious plaintiff who has lost at trial on the merits will have greater difficulty in relying on apparent merits as a factor against the making of an order for security the effect of which might stifle an appeal than would have been the case in respect of a similar reliance in opposition to an application for security of costs before trial. That is especially so where, as may have been the case here, the decision on the merits involved findings of fact based on credit.

[7] The Court noted that impecuniosity does not, in itself, warrant an order dispensing with security:⁷

The more impecunious the appellant the greater the risk for the respondent as to costs. It would be perverse to apply the rule so as (a) to require security only from appellants who, by reason of solvency, could meet an order for costs if unsuccessful, but (b) to dispense with security from appellants who will not be able to meet such an order.

[8] The Court held that security for cost should only be dispensed with if, in all the circumstances of the case, it is right to require the respondent to defend the judgment under challenge without the usual protection as to costs provided by security.⁸ As to whether it is right to so require, the Court held that the discretion to dispense with security should be exercised so as to:

(a) preserve access to the Court of Appeal (or in this case the High Court)

be an impecunious appellant in the case of an appeal which a solvent appellant would reasonably wish to prosecute; and

⁵ _{Cowell v Taylor (1885) 31 Ch D 34 (CA) at 38.}

⁶ Natcraft Pty Ltd v Det Norske Veritas [2002] QCA 241 at [3].

(b) prevent the use of impecuniosity to secure the advantage of being able to prosecute an appeal which would not be sensibly pursued by a solvent litigant.

Should security for costs be waived in this case?

[9] I have not been persuaded that security for costs should be waived in this case, for the reasons set out below.

[10] First, the evidence falls short of establishing that Mr Jones is impecunious. He has provided limited disclosure of his financial position and has failed to provide any supporting documentation, such as bank statements, to verify the information he has provided.

[11] Further, even assuming (for present purposes) that Mr Jones is impecunious, I am not satisfied that his appeal is one that a solvent appellant would reasonably wish to prosecute.

[12] By way of background, Mr Jones issued proceedings in the Tribunal alleging that the Waitemata District Health Board (“WDHB”) failed to comply with r 7 of the Health Information Privacy Code 1994 (“HIP Code”). Under this rule individuals have a right to request correction of their health information or request that a statement of the correction sought, but not made, be attached to their file.

[13] Mr Jones requested that such a correction be made. In particular, he took exception to the content of a file note recording a discussion that took place between his daughter and a registered nurse. The nurse’s evidence was that her file note was both full and accurate. Mr Jones was not a party to the conversation and accordingly could not give evidence before the Tribunal as to its accuracy. Nor did he call his daughter to give evidence. He does, however, seek leave to file fresh evidence on appeal regarding the issue. In particular he wishes to provide copies of Facebook exchanges he has had with his daughter in which she disputes the accuracy of one aspect of the nurse’s file note. (Mr Jones’ application to adduce fresh evidence on appeal is to be heard contemporaneously with the substantive appeal).

[14] The WDHB’s position is that its clinical record relating to Mr Jones accurately records information provided by Mr Jones and by third parties and that there is therefore no obligation to correct it. A statement of the corrections sought by Mr Jones has, however, been included in his clinical record, to be read alongside the original entries.

[15] The Tribunal concluded that the WDHB had not shown to be in breach of r 7 of the Code. It found that the WDHB had complied with both the letter and the spirit of r 7 and that there was no basis for Mr Jones’ complaint that the rules had been breached.

[16] Against this background, the respondent submits that Mr Jones appeal lacks merit. Indeed, it says that the proceedings are frivolous and vexatious and that Mr Jones “is an experienced self-litigant with an extensive history in various Courts, Authorities and Tribunals of challenging decisions that he is unhappy with”. Mr Jones, on the other hand, views his appeal as raising important issues, both for himself personally and in terms of the wider public interest.

[17] It is not necessary for me to determine, in the narrow context of this application to waive security for costs, whether Mr Jones’ appeal is so lacking in merit as to be frivolous and vexatious. It can certainly be said, however, that his appeal appears to be weak. I have carefully reviewed the Tribunal’s decision, which runs to some 12 pages. It comprehensively reviews the relevant facts and is carefully reasoned. Its conclusions appear to be well supported, at least on the evidence that was before the Tribunal at the time.

[18] Nor does the appeal raise any issues that are of wider public importance. The key issue is essentially whether there is information in Mr Jones’ personal medical record which is incorrect and which should therefore be corrected. That is an issue that is personal to Mr Jones.

[19] I further note that if security for costs are not provided then it is likely that the respondent will face difficulty in successfully enforcing any costs award against Mr Jones. It would likely be exposed to significant further costs in attempting to do so.

[20] The respondent was entitled to seek costs against Mr Jones in the Tribunal, but elected not to do so. It now has the benefit of a carefully reasoned decision in its favour, which Mr Jones wishes to challenge. It is his right to do so. I have not been persuaded, however, that the interests of justice require that the respondent (which is charged with the judicious use of taxpayer resources) should have to defend the decision under challenge without the usual protection as to costs provided by security.

Result

[21] The application for a waiver of security for costs is dismissed.

[22] The appeal has previously been allocated as a Category 2 proceeding and it has been set down for hearing on 18 March 2015, with an estimated hearing time of one day. Mr Jones is therefore ordered to pay security for costs in the sum of $1990, by 29 January 2015.

[23] I direct that if security for costs has not been paid by that date then the hearing on 18 March 2015 is to be vacated and the appeal treated as having been

_abandoned.

Katz J