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High Court of New Zealand Decisions |
Last Updated: 15 July 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2015-470-59 [2016] NZHC 1154
UNDER
|
the Judicature Amendment Act 1972
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IN THE MATTER
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of an Application for Judicial Review
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BETWEEN
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DANIEL LOHR First Applicant
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AND
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ADVENT MANAGEMENT LIMITED Second Applicant
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AND
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ACCIDENT COMPENSATION CORPORATION
First Respondent
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AND
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CHIROPRACTIC BOARD Second Respondent
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AND
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A PROFESSIONAL CONDUCT COMMITTEE OF THE CHIROPRACTIC BOARD
Third Respondent
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Hearing:
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30 May 2016
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Counsel:
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First applicant in Person (via AVL) No appearance for second
applicant
A K Miller and C D Boyce for second and third respondents
No appearance required for first respondent
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Judgment:
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31 May 2016
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JUDGMENT OF SIMON FRANCE
J
LOHR v ADVENT MANAGEMENT LTD [2016] NZHC 1154 [31 May 2016]
Introduction
[1] The second and third respondents (“the respondents”)
apply to strike out judicial review proceedings filed by
Dr Lohr and which the
respondents say have been conclusively settled. The second applicant is a
business owned by Dr Lohr. Dr Lohr
has previously been refused leave to
act for the company in these proceedings. It is therefore to be treated as
unrepresented.
Background
[2] Dr Lohr practised as a chiropractor. Consequent upon complaints being made by the first respondent and another, the Chiropractic Board referred the complaints to a Professional Conduct Committee which proceeded to investigate. Prior to the completion of its investigation, Dr Lohr filed judicial review
proceedings.1
[3] On 8 October 2015 the Chiropractic Board wrote with a settlement
offer. After some discussion, settlement was reached.
A Deed of Settlement was
executed. The relevant terms of the settlement were:
(a) the Board would revoke the appointment of the Professional Conduct
Committee. This was to have the effect that the Board
would take no further
action on any complaint it had received to that point concerning Dr
Lohr;
(b) Dr Lohr agreed that the Board could initiate a competence review of
his practice. This process was to be initiated by the
Board within 10 working
days of settlement;
(c) the existing complainants would be notified that investigation of their complaints had come to an end, and that a competence review was to
be initiated; and
1 Amended statements of claim have been filed on 21 April 2015, 11 August 2015 and
17 May 2016.
(d) within five working days of settlement, the applicants were to file a
notice of discontinuance.
It is to be noted a competence review does not involve consideration of any
complaints. Rather, nominated reviewers observe the practice
and can make
orders as to changes to processes and practices.
[4] Consequent upon the settlement, the Board revoked the appointment
of the Professional Conduct Committee, and notified the
complainants as
required. It also initiated the competence review process, although that is not
complete.
[5] Dr Lohr has refused to file a notice of discontinuance which is
what lies behind the present application by the respondents
to strike out the
proceedings.
Why the notice of discontinuance has not been filed
[6] Dr Lohr filed no evidence for this hearing. A few days prior, he
emailed the Registry to request attendance by AVL. It
transpires he is
presently residing in the United States of America. The respondents did not
oppose provided the fixture was not
lost, and Dr Lohr made arrangements to
appear. What follows is taken from such written material as has been filed and
his oral submissions.
[7] It seems that Dr Lohr took advice from a barrister whom he has now
learnt did work (Dr Lohr believes) at some stage for
the Professional Conduct
Committee. Dr Lohr considers this invalidates his signing of the settlement
deed.
[8] Issues have arisen about the competence review. Evidence filed by
the Board makes it plain the Board initiated the process
as the settlement
required it to do. Draft terms of reference were prepared for approval by the
Board and subsequently sent to Dr
Lohr. Senior chiropractors were approached
concerning availability.
[9] It seems that by December 2015, settlement having been
reached on
3 November, Dr Lohr was living overseas. Of his own motion he returned to New Zealand in early December having first requested on 23 November that the review occur in the week of 7 December. He arranged to have patients for the
purpose (he is otherwise not presently practising in New Zealand). The Board
said (quite reasonably) that it could not arrange it
in time. No date had been
agreed, and the process required the professional reviewer to arrange time off
from their own business.
A January date was proffered, but was unacceptable to
Dr Lohr.
[10] Dr Lohr complains generally about the settlement not being effected
in good faith, and cites the continued pursuit of the
competence review as a
sign of this. Dr Lohr submits there is no agreement because he has terminated
it. It is also suggested there
was no consideration because the competence
review is a vehicle by which the complained about process against him can
continue.
Decision
[11] It is settled that if there has been a settlement to end
proceedings, and that settlement has not otherwise been vitiated,
it is an abuse
of process to continue the proceedings.2
[12] I have no doubt the respondents’ application to strike out the
proceedings must be allowed. There is no question that
the agreement is valid,
and no tenable argument that the respondents have not complied with their
obligations under it. On the evidence
the failure to complete the competence
review cannot be laid at the respondents’ door. Further, the settlement
requirement
was only that the Board within 10 working days begin the process,
and that was done. Obviously it is implicit in the settlement
provision that
the Review thereafter be pursued in good faith, but there is no basis to
consider otherwise.
[13] Solely for the purpose of responding to Dr Lohr’s oral submission on this point, I note that the competence review exercise is something that Dr Lohr expressly agreed to as part of the settlement. It was the quid pro quo for the discontinuation of the Professional Conduct Committee. It is clear Dr Lohr regrets the agreement he struck, but the review was part of the settlement, and the
respondents have completed their part.
2 See Peterson and Ors v Lucas Mill Pty Ltd [2012] NZHC 1101 at [34] and the cases cited there.
[14] The issue about Dr Lohr’s barrister, for which there is no
evidential support before the Court, could not impeach the
agreement. The
letter from the Board proposing the settlement and Dr Lohr’s replies,
which are contained in personal emails,
suggest no confusion or
misunderstanding. Further, the source of the alleged conflict remains unclear.
The material filed for the
respondents makes it plain the barrister and
solicitor in question had no involvement in this case. There is no basis for
the proposition
he was acting to curry favour with the Board.
[15] The claim by Dr Lohr to a wider public interest in his proceeding is
not relevant to the issue of whether it has been validly
settled. This comment
applies equally to submissions about the general merits of the
proceeding.
[16] I am satisfied Dr Lohr is in breach of a valid settlement by not
filing a notice of discontinuance and no valid reason is
available to him not to
have done so. The respondents have acted on the settlement to their detriment
by withdrawing the appointment
of the Professional Conduct Committee and
advising the complainants the investigation of their complaint is at an
end.
[17] The continuation of the proceedings is an abuse of process
and the application to strike the proceedings out will
be allowed. The reality
is that Dr Lohr has changed his mind, but that is not an option open to
him.
[18] Both the respondents in correspondence with Dr Lohr, and Dobson J in a Minute,3 advised Dr Lohr of the risk of indemnity costs should he be found to have wrongly failed to file a notice of discontinuance. I am satisfied there is no basis for him not to have done so, and the costs of this application have been wholly unnecessary. Dr Lohr submits this would be unfair to him as a lay litigant battling to do his best, but I cannot agree. He is aware of his obligation but satisfied himself he could simply not complete the agreement. The respondents were entitled to have the
notice of discontinuance filed, thereby avoiding any of this cost, which has
been
unreasonably incurred. The situation comes with High Court Rule
14.6(4)(a). I
3 Lohr and Ors v Accident Compensation Corporation and Ors HC Wellington CIV-2015-470-59,
27 January 2016.
accordingly award reasonable indemnity costs and reasonable disbursements to
be
fixed by the Registrar if necessary. The costs cannot of course exceed
actual costs.4
Simon France J
4 High Court Rules, r 14.6(1)(b).
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