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AN v Counties Manukau District Health Board [2016] NZCA 226 (25 May 2016)

Last Updated: 3 June 2016

JUDGMENT OF THE COURT

1. The application to strike out the appeal is granted.
2. The applicant must pay the respondent costs for a standard application for leave to appeal on a band A basis and usual disbursements.

100. The Registrar must refund the applicant’s payment of the filing fee and security for costs, subject to deductions for the costs order.

4. Order prohibiting publication of the name or identifying particulars of the applicant.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

[1] The respondent, Counties Manukau District Health Board (the DHB), moves to strike out this appeal, which is brought by DN on behalf of his wife AN, for whom he holds an enduring power of attorney, against a High Court judgment refusing a writ of habeas corpus.^[1]
[2] AN suffers from dementia and she is detained in a secured dementia unit at a private rest home in Auckland. Her detention was authorised pursuant to interim orders made on 22 February 2016 by the District Court under the Protection of Personal and Property Rights Act 1988 (PPPR Act) following an urgent hearing. AN was represented in the District Court by an experienced barrister and solicitor. DN opposed the order and his daughter supported it.
[3] Reasons were given on 10 March 2016. They record, among other things, concerns about the quality of care that DN provided for his wife at home and difficulties experienced by hospital staff in dealing with him. The Court directed that a further hearing be held in July or August 2016 with benefit of further evidence.
[4] A right of appeal lies against the order made by the District Court, but that right must be exercised in the High Court;^[2] this Court has no jurisdiction to hear an appeal direct from the District Court’s PPPR Act decision. DN did not appeal. Instead he applied to the High Court for a writ of habeas corpus.
[5] The High Court dismissed DN’s application on the ground that AN is detained pursuant to a regular order of the District Court and habeas corpus is not the appropriate procedure for deciding complaints about her detention.^[3]
[6] DN filed a notice of appeal on 16 March 2016 in this Court against the High Court decision to deny habeas corpus. In a minute issued on 17 March 2016 Wild J explained to DN that he was seeking to challenge the merits of a lawful order made under the PPPR Act and, as Thomas J noted in the High Court, should do so by an application for review under s 86 of that Act or an appeal under s 83 or an application to the High Court for judicial review. He advised that an appeal to this Court against the habeas corpus judgment was bound to fail because the PPPR Act order is regular on its face. He directed that the appeal was not to be given precedence over other business but was to be treated as an ordinary appeal.
[7] DN did not take this advice. He filed a second notice of appeal on 24 March. It appeals the District Court decision, alleging that the High Court “validated” that decision. It includes complaints about AN’s representation in the District Court, complaints that her medical practitioner refuses to stand down despite DN’s allegations against him, an allegation that the rest home lacks the capacity to care properly for her, and general allegations of failures of process and conflicts of interest. That led to the present strikeout application.
[8] DN also makes a range of complaints about process in this Court, all of them misconceived. He complains, by way of example, that this strikeout application could not be heard without his agreement following discovery of information held by the DHB. He complains that his papers were ignored by the Court while those filed by the DHB were actioned. He complains that the Court had declined his request to have AN present, so undoing part of his “strategy” for the hearing. He argues that by directing that his appeal should be treated as an ordinary appeal Wild J permitted him a full hearing.
[9] DN maintained that his appeal is brought against the High Court decision, not that of the District Court. We have reviewed the papers, which are extensive, and we agree with the DHB that the appeal is in substance an attempt to review the District Court order. As noted, this Court lacks jurisdiction to hear such an appeal.
[10] Further, the issues raised by the appeal are in no way susceptible to summary determination. They are important and contested factual issues that include AN’s capacity and DN’s ability to care for her and willingness to take medical advice, and they can be determined only after hearing witnesses both lay and expert. A judge dealing with a habeas corpus application must enquire into matters of fact and law claimed to justify the detention.^[4] But it is well settled that the writ cannot be pleaded for the collateral purpose of challenging complex administrative law issues. The Supreme Court in Kim v Prison Manager, Mount Eden Corrections Facility^[5] rehearsed this Court’s view in Manuel v Superintendent of Hawkes Bay Regional Prison that the test is “whether the arguments in issue are properly susceptible to fair and sensible summary determination”.^[6]
[11] DN raised one point that could be determined on a habeas corpus application, had it any merit. He contended that the District Court order cited no jurisdiction for the order, and that the PPPR Act does not authorise it. This submission is untenable. The order specifies that it was made under s 10(1)(d) of the Act, which authorises the Court to order that a person enter and remain in an institution, not being a psychiatric institution. It is regular on its face.
[12] It is regrettable that DN should have persisted in his attempts to pursue an appeal in this Court. The court processes are undoubtedly a source of anxiety to him and we readily accept that his wife’s detention causes them both distress. But it serves no purpose to prosecute an appeal which has no prospects whatever of success. He would be better to focus his energies on the pending merits hearing in the District Court.
[13] The application to strike out the appeal is granted. For the avoidance of doubt, this order extends to both appeals filed by DN.
[14] In one respect DN does have cause for complaint. The appeals were filed under the Habeas Corpus Act 2001, which provides that filing fees should not be charged,^[7] and that the Court cannot order security for costs when the respondent is “the Crown or a public officer or other person purporting to act on behalf of the Crown”.^[8] Following Wild J’s minute, the Registry required him to pay a filing fee on the second appeal and security for costs. We interpret the Judge’s minute as a direction that the first appeal was not to be given the urgency accorded genuine habeas corpus cases,^[9] rather than a direction that fees and security would be charged in the event that DN filed a second appeal. The Registrar is to refund the filing fee and security for costs.
[15] Ms Ifwersen sought costs on an indemnity basis, observing that the DHB, a public body, has been put to pointless expense. Costs may be awarded on a failed habeas corpus application,^[10] but the Court is slow to do so. In this case, the futility of pursuing habeas corpus was made clear to DN in the High Court and in the minute of Wild J, who carefully identified DN’s options. The appeal ought to have been abandoned at that point. We are satisfied that DN’s persistence justifies an award.
[16] However, we are not prepared to award indemnity or increased costs. The Court of Appeal (Civil) Rules 2005 are silent as to the appropriate costs order for an interlocutory application of this kind. To reflect the jurisdictional nature of the present proceedings, the DHB will have costs as for a standard application for leave to appeal on a band A basis together with usual disbursements. This sum may be deducted from the security before repayment.
[17] As Thomas J did in the High Court,^[11] we maintain the suppression of AN’s name to protect her privacy interests and order that the publication of the name or identifying particulars of the applicant is prohibited. DN opposed this order, but AN is a vulnerable person for purposes of s 11B to D of the Family Courts Act and s 80 of the PPPR Act.

Solicitors:
Meredith Connell, Auckland for the Respondent

^[1] [AN and DN] v Chief Executive Officer Counties Manukau District Health Board [2016] NZHC 277 [HC decision].

^[2] Protection of Personal and Property Rights Act 1988, s 83.

^[3] HC decision, above n 1, at [41]–[49].

^[4] Habeas Corpus Act 2001, s 14(2).

^[5] Kim v Prison Manager, Mount Eden Corrections Facility [2012] NZSC 121, [2013] 2 NZLR 589 at [25]–[29].

^[6] Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA) at [49].

^[7] Habeas Corpus Act, s 16(3).

^[8] Section 16(2). Section 21(1) of the New Zealand Public Health and Disability Act 2000 states that each DHB is a Crown entity owned by the Crown under s 7 of the Crown Entities Act 2004, specifically a Crown agent which must give effect to government policy when directed by the responsible Minister.

^[9] Habeas Corpus Act, s 17(1).

^[10] Section 14(4).

^[11] HC decision, above n 1, [55].