IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA
TĀMAKI MAKAURAU ROHE
CIV-2022-404-847
[2022] NZHC 1765
BETWEEN
DIRECTOR-GENERAL OF THE
MINISTRY OF HEALTH
Plaintiff
AND
WAKAMINENGA KAUNIHERA
HAUORA HEALTH COUNCIL
First Defendant
JACQUES IMBEAU
Second Defendant
ANNA GOODWIN
Third Defendant
Continued over
Hearing:
30 June 2022
Appearances:
S C Carter for Plaintiff
Third Defendant in person, and for the First and Second
Defendants
Fifth Defendant in person, and for the Fourth Defendant
Judgment:
21 July 2022
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 21 July 2022 at 3 pm
pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
DIRECTOR-GENERAL OF THE MINISTRY OF HEALTH v WAKAMINENGA KAUNIHERA HAUORA
HEALTH COUNCIL [2022] NZHC 1765 [21 July 2022]
AND
MĀORI GOVERNMENT OF AOTEAROA
NU TIRENI
Fourth Defendant
GEORGINA JOB
Fifth Defendant
PIRIPI SHEEHAN
Sixth Defendant
[1]
This judgment determines an application of 26 May 2022 by the plaintiff, the
Director-General of the Ministry of Health, for interim relief against the defendants.
[2]
I heard the application in the Duty Judge list on 30 June 2022. Counsel for the
plaintiff, Ms Carter, appeared in support of the application. The application is
supported by an affidavit affirmed on 26 May 2022 by Ms J I Birdsall, a Principal
Adviser at the Ministry of Health. The plaintiff has also filed an undertaking in
damages.
[3]
Dr Anna Goodwin, the third defendant, appeared for herself and, as I
understood it, the first and second defendants.
[4]
The fifth defendant, Ms Georgina Job, appeared for herself and the fourth
defendant. Ms Job introduced herself as “Arikinui Ripekatangi Georgina Job”. As I
understand it, “Arikinui Ripekatangi” is a title (Prime Minister or Deputy Prime
Minister) in the fourth defendant.
[5]
There was no appearance for the sixth defendant. Dr Goodwin and Ms Job
informed me that the sixth defendant hosts the first defendant’s website.
[6]
Although the proceedings had been served on each defendant by the time I
heard the application, the defendants had not had the papers for long. In a
memorandum she filed on 28 June 2022, Ms Job requested an adjournment. As it
turned out, however, she and Dr Goodwin understood the issues and were able to
enunciate their stance on them. I shall also make orders at the end of this judgment
enabling the defendants to apply to set aside.
Background
[7]
The plaintiff brings this proceeding in respect of what are said to be breaches
of the Fair Trading Act 1986 (“FTA”).
First Defendant
[8]
The plaintiff contends that the first defendant, an unincorporated society, has
represented and is continuing to represent:
(a)
that it is competent to register people in what are referred to in the
statement of claim as the “Represented Professions”, these being
medical or health professions including the medical, dental, and
pharmacy professions, nursing, midwifery, and so forth;
(b)
that it is competent to provide those so registered with a practising
certificate permitting the recipient to practise one or more of the
Represented Professions lawfully; and
(c)
that any person so registered, and to whom the first defendant provides
such a certificate, is immune from prosecution or censure by competent
New Zealand authorities and may only be held to account by the first
defendant.
[9]
The plaintiff also alleges that the first defendant has purported to issue
practising certificates to former health practitioners who are not, or who are no longer,
permitted to practise a profession regulated under the Health Practitioners Competence
Assurance Act 2003 (“HPCAA”), and
that those formerly registered practitioners
(formerly registered under the HPCAA that is) are indeed holding themselves out as a
member of one or more of the Registered Professions by virtue of registering with and
holding a certificate issued by the first defendant.
[10] The plaintiff’s case is that the registration and certification of health
practitioners in New Zealand, including in the Registered Professions, is governed
exclusively by the HPCAA and authorities appointed under that legislation. The first
defendant, and the fourth defendant for that matter, is not such an authority.
[11] As a result of these matters, the plaintiff contends that the first defendant is in
breach of ss 9, 11, 13(b) and 13(e) of the FTA. In her proceeding, the plaintiff seeks
a declaration to that effect, an order pursuant to s 41(1)(a) FTA restraining the first
defendant from continuing to make those representations or similar, and costs.
Second to Sixth Defendants
[12] The plaintiff’s case against the other defendants is that each is or has been
directly or indirectly knowingly concerned in, or party to, the first defendant’s
contravention of ss 9, 11, 13(b) and 13(e) of the FTA. As regards each defendant, the
plaintiff has pleaded the capacity in which each has acted or purported to act. In each
case, pursuant to s 41(3)(b) of the FTA, the plaintiff seeks an injunction restraining
each defendant from continuing in this conduct. The plaintiff also seeks costs.
Evidence
[13] Ms Birdsall’s affidavit, to which I referred above, provides prima facie
evidence of each of the plaintiff’s allegations.
Defendants
[14] Dr Goodwin did not dispute the allegations referred to above. Rather, her
submission was that the first defendant is not bound by the provisions of the HPCAA
or the FTA but rather has its own jurisdiction, superior to that of the plaintiff or the
New Zealand Parliament. The submission was that, as the first defendant is not bound
by the FTA or HPCAA, nor are the second and third defendants.
[15] Dr Goodwin filed two documents on the morning of the hearing. One is
described as a “Notice of Estoppel” which appears intended to be a statement of
defence and counterclaim, and is said to be filed for the first to third and sixth
defendants. The second is an invoice for damages claimed by various individuals,
many of whom are not parties to the proceeding, but essentially seeking damages for
harm to their reputation.
[16] As I have said, Ms Job filed a memorandum on 28 June 2022. As I have also
said, in this memorandum Ms Job said she had insufficient time to consider the
plaintiff’s proceeding and sought an adjournment. I did not grant an adjournment
because Ms Job was able to enunciate her position and that of the fourth defendant,
and also because the plaintiff’s application raises issues of public safety.
[17] Ms Job’s submissions were that the fourth defendant is likewise not subject to
the FTA or the HPCAA, and nor is Ms Job. The memorandum should also be treated
as a protest to the jurisdiction of the Court.
Discussion
[18] I propose to grant interim relief for these reasons.
[19] The first is that there is clearly a serious issue to be tried. The representations
appear to be being made and “certificates” issued. Moreover, the contention that the
first and fourth defendants operate under a different and superior jurisdiction is
unsustainable. The Court of Appeal addressed a similar contention in its recent
decision in
Warahi v Chief Executive of the Department of Corrections.1 In [11] of
that decision, the Court of Appeal confirmed that Acts of Parliament, such as the
HPCAA and FTA, are binding all persons and institutions within the geographical
territory of New Zealand, and the Courts of New Zealand are required to uphold them
as enacted. The defendants are as much bound as any other individual and body.
[20] That serious issue threshold having been passed, the next matter to consider is
the balance of convenience. This plainly lies with the plaintiff. A clear issue as to the
health and safety of the public arises. Members of the public may proceed on the basis
that a person is authorised or certified to practise when they are not.
[21] To the extent that it is necessary, the plaintiff has, as I have said, given an
undertaking in damages and any damage to the defendants can be met by such an
award.
Orders
[22] I make orders in terms of [1](a)(i) and (ii) of the plaintiff’s interlocutory
application for injunction dated 26 May 2022.
1
Warahi v Chief Executive of the Department of Corrections [2022] NZCA 105.
Other directions
[23] The defendants, or any of them, may apply to set aside the interim injunction
orders on two weeks’ notice. That should be done by filing and serving an application
to set aside and an affidavit(s) in support. The plaintiff would then have an opportunity
to respond.
[24] As I understood it from Ms Job, she believes that she and the fourth defendant
may be subject to orders for substituted service by email. Ms Job is in a rural location
with poor internet coverage. It is not clear to me that an order for substituted service
has been made against Ms Job but, in any event, for the avoidance of doubt, and
pending further order, service of documents on the fourth and fifth defendants is to be
effected personally.
[25] This matter is to be called in Duty Judge list at 10 am on 10 August 2022.
Further directions will be made at that time. The plaintiff should file a memorandum
in advance setting out the directions considered appropriate, and the defendants should
do likewise.
[26] Costs are reserved.
Peters J
Solicitors:
Te Tari Ture o te Karauna, Crown Law, Wellington
Luke Cunningham Clere, Crown Solicitor, Wellington
Copy for:
Defendants
Document Outline
