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DIRECTOR OF HEALTH & DISABILITY PROCEEDINGS v C O [2005] NZHRRT 25 (9 August 2005)

Last Updated: 19 September 2005

Decision No. 25/05

Reference No. HRRT 34/04

BETWEEN THE DIRECTOR OF HEALTH & DISABILITY PROCEEDINGS

Plaintiff

AND C O

Defendant

BEFORE THE HUMAN RIGHTS REVIEW TRIBUNAL

Mr R D C Hindle Chairperson
Ms J Binns Member
Dr W McKean Member

HEARING: 20 May 2005 (Wellington)

APPEARANCES:

Ms L Curtis for Director of Health and Disability Proceedings
Ms N Levy for defendant

DATE OF DECISION: 9 August 2005

DECISION
(APPLICATION TO STRIKE OUT)

[1]

In this proceeding the Director of Health & Disability Proceedings ("the Director") claims on behalf of an aggrieved individual that in a period from May to July 2001 she (the complainant) was a victim of several breaches of the Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996 (‘the Code’).

[2]

In his answer, the defendant raised a preliminary point. He asserted that since the claim against him is one in respect of bodily injury it is statute-barred because of the two year limitation in section 4(7) of the Limitation Act 1950. On that basis he argued that the claim should be struck out at this stage of the proceedings.

[3]	In case the Tribunal might find the claim to be statute-barred the Director also filed an application for leave to commence the proceedings out of time. In addition affidavits that had been sworn by the complainant, her medical practitioner and her psychotherapist were filed.

[4]

All of these materials indicated the possibility of some potentially difficult questions, such as whether a claim for humiliation, loss of dignity and injury to feelings under the Health and Disability Commissioner Act 1994 should be regarded as claim in respect of ‘bodily injury’ or whether such a claim is better classified as one for breach of statutory duty; and (if the claim were found to be one in respect of bodily injury) then when the cause of action arises (in particular, whether the decision by the Director to bring proceedings in the Tribunal should be regarded as a necessary element of the cause of action, with a result that the time limit does not begin to run until the Director makes her decision to proceed in the Tribunal). There were also issues as to whether, assuming that s.4(7) of the Limitation Act 1950 applies, the Tribunal could or should give leave to allow the matter to proceed; and, if so, at what point in proceedings the Tribunal should decide whether or not to grant or refuse such leave.

[5]

Counsel prepared and presented argument on all of these issues at the hearing on 20 May 2005. We mean no disrespect to the argument, however, when we say that in our view the short answer to the defendant’s application to strike out is that s.4(7) of the Limitation Act 1950 does not apply to proceedings before the Tribunal.

[6]	Section 4(7) of the Limitation Act 1950 provides as follows:

"An action in respect of the bodily injury to any person shall not be brought after the expiration of 2 years from the date on which the cause of action accrued unless the action is brought by the consent of the intended defendant before the expiration of 6 years from that date:

Provided that if the intended defendant does not consent, application may be made to the Court, after notice to the intended defendant, for leave to bring such an action at any time within 6 years from the date on which the cause of action accrued; and the Court may, if it thinks it is just to do so, grant leave accordingly, subject to such conditions (if any) as it thinks it is just to impose, where it considers that the delay in bringing the action was occasioned by mistake of fact or mistake of any matter of law other than the provisions of this subsection or by any reasonable cause or that the intended defendant was not materially prejudiced in his defence or otherwise by the delay"

[7]	The several references to ‘the Court’ are to be noted. Section 2 of the Limitation Act 1950 defines an "action" as follows (our emphasis is added):

"Action means any proceeding in a Court of law other than a criminal proceeding".

[8]

Ms Levy appeared for the defendant on his strike out application. We note that she had become involved in the matter after the defendant’s application and supporting submissions had been filed; indeed she was instructed only a week or so before the hearing on 20 May 2005. She accepted that if the Tribunal is not ‘a Court of law’ then the Limitation Act 1950 does not apply. She also properly drew our attention to a decision of the Motor Vehicle Disputes Tribunal in Decision 15/96 [1996] NZAR 322.

[9]	In our view it is clear that the Human Rights Review Tribunal is not a Court of law. It is a statutory tribunal.

[10]

The fact that the Tribunal is not a Court of law has been taken in the past as too obvious to require analysis. But the discussion in The Laws of New Zealand, Courts, para 2 as to the meaning of the word ‘court’ shows that the distinction between a ‘court’ and a ‘tribunal’ is one which depends on the functions of the entity under consideration, and not necessarily how it is described. So, for example, in Attorney-General v Reid [2000] 2 NZLR 377 the Employment Tribunal was held to be a Court of judicature within the meaning of s2 of the Judicature Act 1908. Conversely, the fact that the legislature has described a decision making entity as a ‘court’ is not necessarily conclusive of that fact, and tribunals which exercise judicial functions are not necessarily ‘courts’: Attorney-General v British Broadcasting Corporation [1981] AC 303.

[11]

It has to be accepted that there are aspects of the functions of the Human Rights Review Tribunal that might support a conclusion that the Tribunal is a ‘court’. The Tribunal exists to adjudicate upon disputes that are brought to it and which are within its jurisdiction. It is obliged to act judicially, in the sense that it must act in accordance with the principles of natural justice and in a manner that is fair and reasonable: see s.105 of the Human Rights Act 1993. It is obliged to give reasons for its decisions: see s.116 of the Human Rights Act. When conducting hearings the Tribunal has various powers in relation to the way in which evidence is given, and for the control of proceedings before it, that are not dissimilar to the powers of a Court: see, for example ss. 104, 106 to 114 and 121 of the Human Rights Act. In addition the Tribunal has powers to award various remedies, the details of which depend on the legislation under which a particular claim is brought. Appeals from the decisions of the Tribunal are to the High Court: see s. 123 of the Human Rights Act.

[12]	No doubt there are other similarities between the powers and functions of this Tribunal and those of courts as well. But even so, we are unable to reach the conclusion that the Tribunal can or should be regarded as a ‘Court of law’ for the following reasons:

[a]

It is impossible to ignore the fact that the Legislature has chosen to describe the Tribunal as a Tribunal and not a ‘court’: see s93 of the Human Rights Act 1993. None of the Tribunal members or its Chairperson is a Judge. The provisions which establish the Tribunal’s procedural powers are clearly intended to encourage the lack of formality that is to be expected of a decision making body which is intended to be accessible to all litigants, including those who are not legally represented. In substantive matters the Tribunal is obliged not to have regard to technicalitites, but rather to exercise it powers and functions in a way that accords with equity and good conscience: s. 105(1) and 105(2)(c) of the Human Rights Act. The provisions dealing with interlocutory procedures also emphasise the expectation that proceedings be dealt with as fairly, efficiently, simply and speedily as is consistent with justice: see regulation 16 of the Human Rights Review Tribunal Regulations 2002;

[b]

Although not altogether clear in scope, the Tribunal has power under s.106(1)(a) of the Human Rights Act to call for evidence or information not only from the parties to a dispute before it, but also from any other person. This inquisitorial power is consistent with the functions of the Tribunal and the general objective of the legislation with which it deals. It is a significant factor that differentiates procedures in the Tribunal from the procedures usually associated with the work of the Courts;

[c]

The provisions of s 106(1)(d) and 106(4) are also relevant. The former allows the Tribunal to receive various kinds of evidence " ..whether or not it would be admissible in a court of law." The latter stipulates that, subject to subsections (1) to (3), the Evidence Act applies to the Tribunal " .. in the same manner as if the Tribunal were a Court within the meaning of that Act." In our view both of these provisions are more consistent with a finding that the Tribunal is not a court of law;

[d]

Ultimately the Tribunal has no powers beyond those that are conferred upon it by statute. The Tribunal is a specialist decision-making entity with responsibility to adjudicate on disputes in respect of rights that are themselves recognised by Parliament and reflected in various statutes. Unlike the Employment Tribunal under consideration in Attorney-General v Reid (supra), the Human Rights Review Tribunal does not adjudicate on disputes that would otherwise be dealt with by the ordinary courts of judicature. The Human Rights Review Tribunal is part and parcel of the legislative schemes by which the rights that can be the subject of litigation in the Tribunal have been recognised by Parliament, whether that be under the Privacy Act 1993, the Human Rights Act 1993 or (as in this case) the Health and Disability Commissioner Act 1994. The particular procedures set out in those legislative enactments are supportive of the conclusion that the Tribunal is not a court;

[e]

We note the observations of the Chairperson of this Tribunal (then called the Complaints Review Tribunal) in Proceedings Commissioner v Stowell [1996] NZCRT 35; [1997] NZAR 109, and its decision (at a time when it was called the Equal Opportunities Tribunal) in Proceedings Commissioner v Air New Zealand (EOT 1/87).

[13]	In view of our conclusion that the Tribunal is not a court of law it follows that s.4(7) of the Limitation Act 1950 does not apply to the claim brought by the Director in this matter.

[14]	In her able and responsible argument for the defendant Ms Levy also submitted that, even if s.4(7) of the Limitation Act 1950 were held not to apply, there has in any event been sufficient delay in commencing this proceeding to justify a decision that the matter ought to be struck out.

[15]	The following chronology is relevant:

[a]	The events complained of took place in May, June and July 2001;

[b]

The affidavits that were filed suggest that the complainant told her doctor and her psychotherapist what had happened in late September 2001. Her first written complaint was made in November 2001, but that was done anonymously and did not produce a result. The complainant said that despite what her doctor and her psychotherapist advised her, it took some time before she came to see that she was not responsible for what she says happened. It was not until late November 2002 that she allowed her healthcare providers to write a complaint on her behalf to the relevant professional association. That initiative proved fruitless when, after some correspondence, the professional association concerned informed her in April 2002 that it did not have any power to discipline the defendant. As a result the complainant complained to the office of the Health and Disability Commissioner in May 2002;

[c]

We were shown a copy of a letter written by the Health and Disability Commissioner in June 2003 recording that he had received a complaint and that he had decided to investigate it. We infer from the fact of the proceedings that he subsequently investigated the matter and, having done so, formed an opinion that a breach or breaches of the Code had occurred;

[d]	The Director received the file in the matter from the Health and Disability Commissioner in February 2004.

[e]	On 18 March 2004 the Director wrote to the complainant and the defendant in order to comply with her obligations under s.49 of the Health and Disability Commissioner Act 1994 (as it stood before various amendments came into force in September 2004);

[f]	A meeting took place between the defendant and the Director on 28 April 2004, and it was agreed that the Director would refrain from making any decision as to the commencement of proceedings until 10 May 2004 so as to give the defendant an opportunity to put further information in front of her;

[g]	That information was received from the defendant on 17 May 2004;

[h]	On 20 May 2004 the Director made her decision to commence these proceedings;

[i]	The proceedings were commenced on or about 1 July 2004.

[16]

Ms Levy submitted that, even if the Limitation Act 1950 did not apply directly, it would nonetheless be appropriate for the Tribunal to use the 2 year timeframe contemplated by that Act as a measure of what ought reasonably to be achieved in a case of this kind. She acknowledged that formal notice that the Health & Disability Commissioner would investigate the matter was communicated to the defendant within two years of the events at issue, but pointed to the delay from that moment down to the point of filing the proceedings.

[17]

Ms Curtis accepted that there could conceivably be circumstances of such gross delay and resulting prejudice to the proposed defendant that the the Tribunal would be justified in deciding to dismiss or strike out the claim based only on the delay. She conceded that the Tribunal would have the power to do such a thing. But she submitted that the present case falls far short of the sort of delay that would have to be established for such a conclusion to be warranted. In particular she observed that the defendant knew or should have been aware of the possibility of proceedings in the Tribunal since at least June 2003 when he was notified of the decision by the Health and Disability Commissioner to embark on an investigation. Ms Curtis also submitted that the delays that have occurred are, at least in part, a result of the various steps required by the Health and Disability Commissioner Act 1994 for cases of this kind. In any event she said that no or no sufficient prejudice to the defendant has been established in the present case to justify the extreme step of an order to strike out or dismiss the claim because of delay.

[18]	We agree with Ms Curtis. In our view the delays in this case do not justify a decision that the case should be struck out or dismissed at this stage.

[19]

These conclusions mean that we are not required to go on to consider the other issues described in paragraph [4] above. It may, however, be helpful to add as a postscript that, even if we had been persuaded that s.4(7) of the Limitation Act 1950 applied, we would not have been willing to decline the Director’s application for leave to commence the proceedings without first hearing all of the evidence: see W v Attorney-General [1999] 2 NZLR 709.

[20]	The defendant’s application to strike out the claim against him is dismissed.

[21]	The Secretary of the Tribunal will be asked to contact counsel with a view to arranging a telephone conference with the Chairperson of the Tribunal to timetable further steps in the litigation.

_____________ ______________ ________________
Mr R D C Hindle Ms J Binns Dr W McKean
Chairperson Member Member