Raiyawa v Glassie [2011] CKHC 37; Plaint31.2010 (7 April 2011)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)
PLAINT NO. 31/2010

IN THE MATTER SETAREKI RAIYAWA
Plaintiff

AND

HON. NANDI GLASSIE
First Defendant

AND

HON. HENRY PUNA
Second Defendant

Hearing: 7April 2011

Counsel: Ms L Rokoika for Plaintiff
Ms M Henry for Defendants

Judgment : 7 April 2011
ig align="center">ter">JUDGMENT OF HUGH WILLIAMS J

Solicitors:
L Rokoika, Browne Harvey & iatesrua, Rarotonga
T Elikana, M Henry, Solicitor General, Crown Law Office, Rarotoarotonga

[1] These proceedings were issued by Mr Raiyawa on 22 ber 2seeking what what can for for this stage of the Judgment, be broadly referred to as redress for what he alleges was negligent medical treatment he received while residing in Rarotonga, and the costs of that treatment debited against him as a result. At this point the defendants have only filed a notice of intention to defend so the grounds of their defence are not yet before the Court.

[2] To elaborate on the statement of claim, Mr Ra sets out in considerablerable detail in his first cause of action the problems that he had with the surgery he underwent as a result of a fracture of his rightr. He asserts that the doctors who attended him on a numberumber of occasions as a result were, first, negligent; and, secondly, that the Minister of Health, the first defendant, is vicariously liable for their actions.

[3] It is perhaps important to note in that regard that the allegations in the statement of claim must for the purposes of these interlocutory applications be regarded as provable, and nothing said in this Judgment is to be taken as any observation on the likelihood of the plaintiff's success. In that cause of action he seeks general damages and aggravated damages of $200,000.00 each, and exemplary damages of $100,000.00 plus costs and interest.

[4] The second cause of action is the focus of much of the attention in this Judgment as the defendants assert that it is equivalent to judicial review and accordingly should be tried on affidavit as such proceedings customarily are. The plaintiff takes the stance that is not correct. The defendants also seek an order for security for costs and certain timetable orders.

[5] To deal with those latter applications first, because they are less complex, the defendants' application for security for costs is made pursuant to Rule 127 which provides eral powl power to impose terms on the making of orders on interlocutory applications, but it is common ground between counsel that the provisions of the formerZealand Rule 60 and the authoritn that rhat rule are gare germane to the determination of this application.

[6] Mr Raileft Rarotonga shortly atly after the events related in his first cause of action and has ever since resided in Fiji. He is thusverseas plaintiff in these proceedings, and counsel advise there is no reciprocal enforcemercement of Judgments regime in place as between the Cook Islands and Fiji. Accordingly, any Judgment the defendants might eventually obtain for costs should Mr Raiyaclaims be unsuccessfulssful would be difficult to enforce.

[7] It is clear from the New Zealand authorities collected the former r 60, that whilst ths no inva invariable rule that overseas plaintiffs shos should be ordered to pay security for costs, such orders to that effect were customarily the case; and overseas plaintiffs who choose to invoke the jurisdiction of what is for them a foreign country must expect to submit to the requirements of that jurisdiction in the furtherance of their litigation. In this case the significant factors are that there is evidence on the file suggesting that Mr Raiyawa may be impecunious. Whilst that has not been answered by the plaintiff, indeed he has put no affidavit evidence before the Court, the decision on tspect of the application must proceed from the stand point that if he is not impecunious heus he is certainly not well-off. It must, therefore, be assumed that any order made against him is capable of being satisfied.

[8] The authorities relevant to the consideration of a security for costs application against an overseas plaintiff are usefully corrected in the former edition of McGechan on Procedure, paragraph HR60.11 page 3-98. It iecessary to referrefer to them in detail since the salient features have been mentioned. The Court's view is that it is appropriate to order security for costs against Mr Raiyawa as an ovs plaf. Qua. Quantum then bhen becomes an issue. Ms Henry suggested are of $6,0 $6,000 may be appropriate. Ms Rokoika suggethat figurre iore in the range of $1,000 - $3,000 may be the appropriate quantum to be orde ordered.

[9] Coupled with that derats the defendants'ants' application for a stay of these proceedings until any order for secu security for costs is satisfied. It would be inappropriate at this preliminary stage of the case for it to be stayed immediately, but a postponed stay is appropriate in order that the defendants are not required to expend significant sums of money without some hope of recovery in the event of the plaintiff's loss of the litigation. Ordering an immediate stay would also be inimical to the progress of the proceeding since it would deprive the parties of the opportunity to have discovery and inspection and generally ready the case for hearing, including perhaps some amended pleadings on the plaintiff's part.

[10] In those circumstances the Court's order is that the plaintiff provides security for the costs of this proceeding in the sum of $3,000, and that the proceedings be stayed prior to setting down if the security has not been paid by that date. By setting down in that context it is intended to mean the point in the passage of the litigation prior to detailed preparation for trial.

[11] The second straightforward issue to be determined is questions in relation to timetabling. This case, like many another, cannot be timetabled too far into the future but it is important that the defendants file and serve statements of defence in order that the plaintiff and the Court can be properly advised of the true parameters of the dispute between them. The defendants are to file and serve statements of defence by Friday, 29 April 2011. It io appropriate thae that the parties have the opportunity for discovery of documents, production and inspection. They are to have until Friday, 27 May 2011 in thgard.

[1r> [12] The principal matter at issue between these parties relates to the present second cause of action. In that cause of action Mr Raiyawa pleads the levying ying of cs formedical treatmenttment agai against him as a non-Cook Islander by comparison with charges which might have been levied against Cook Iers is discriminatory and is a practice based on national onal origin. That is pleaded to be in breach of his rights under Article 64 of the Cook Islands Constitution, and the user charge policy instituted by the Minister of Health is pleaded to have no legislative basis to limit his fundamental rights under that Article, and accordingly to be unlawful. The relief he seeks is a series of declarations, but includes a claim for damages of $100,000 plus a declaration he does not owe the Cook Islands Ministry of Health $5,871.00.

[13] It is submitted on behalf of the defendants that that cause of action is equivalent to judicial review and should be tried as such. For the plaintiff Ms Rokoemurs. She says that that this is not an application for judicial review and does not fall within the definition of judicial review in Part 1A of the Judicature Act. A final decision on those ions must, of course, awaitawait adjudication at the trial. Ms Ra argues that the promulgamulgation by the Minister of Health of user pays charges, including the allegedly discriminatory user pays charges, was as a result of a decision of Cabinet and was oich lacked legislative auth authority.

[14] When Ms Heor the defendants was asks asked the legislative basis of the Cabinet decision – there being no statements of defence as yet – she submitted that Cabinet in promulgating that polic acting pursuant to s #160;13(1)he Cook Islands Cnds Constitution Act. That gives Cabinet "the general direction and control of the Executive Government of the Cook Islands" and is followed by Cabinet's collective responsibility to Parliament. Article 64, however, provides that there shall "exist, without discrimination by reason of race, national origin, colour, religion, opinion, belief, or sex" a list of fundamental human rights and freedoms, including the right to life, liberty and security of the person, equality before the law and the ownership of property, with the derogation from that broad entitlement appearing in Article 6

[15] It will, ofl, of course, be a matter for debate at the substantive hearing whether the Cabinet decisions in the uays policy was one justified by the "general direction and control of the Executive Governmvernment of the Cook Islands" provision. Certainly at this point it appears that Mr Raiyawa as a persthin the Cthe Cook Islands had the right to equality before the law, and it may turn out to be the case that the water shed provision of Article 64(2), which provides that persons have duties hers and in the exercise ofse of their rights and freedoms is limited by enactments or rule of law in force to protect the rights and freedoms of others and the general welfare or security of the Cook Islands.

[16] It is apparent from analysis of the second cause of action that Mr Raiyawa is alleging that the imposition on him of charges for his medical treatment pursuant to the user pays policy promulgated by Cabinet is a challenge to the legitimacy of the Cabinet decision. Ms Rokoika, howevrgues such a ch a decision sion and an attack on it is neither a statutory power nor a statutory power of decision as those terms arened in Part 1A of judicial review. In that regard it is noted that a statutory power is ones one "conferred by or under any Act" which may invoke the terms of the Constitution and the setting up of Cabinet thereby. More fundamentally, however, a "statutory power of decision" is defined as meaning a "power or right conferred by or under Act ... affecting the rights, powers, privileges, immunities, duties or liability of any person." The reason for various jurisdictions, and now the Cook Islands adopting a form of judicial review, was to enable the actions of Government to be judicially scrutinised without hindrance arising from the old writs of mandamus provisions and the like. Because of that the traditional approach to applications for judicial review has been an expensive one designed to ensure the nub of the complaint is presented for judicial decision rather than reliance on technical interpretations of the definitions in the enabling statute.

[17] In this case, as said, it is clear Mr Raiyawa illenging the legitlegitimacy of the Cabinet decision which led to the adoption of the user pays policy. Counsel for the defendanserts the Cabinet decision was justified by the terms of s 13 ofConstitution. It . It . It is clear, therefore, that the Cabinet decision was a decision in an at least purported exercise of a power or right conferred by an Act, namely s 13 of the Consion. in that that light thet the defendants' submission is correct and Mr Raiyawa's second cause of action is effectively an actased in judicial review challenging the legality of Government action. A necessary consequesequence of that finding is that the seconse of action requires to be dealt with as an application foon for judicial review. That may require repleading and the plaintiff is to have until 20 May 20 replhat caat cause of acof action should he consider it appropriate .

[18] That immediately raises a procedural difficulty as canvassed with counsel, namely that Mr Raiyawa's first cause tion tion would be tried on oral evidence whereas his application for judicial view is ordinarily tried on affidavit with limited cross-examination. That is an for the parties to address. It may be the case that an appn application needs to be made to dissect the current proceedings and have two hearings on the respective causes of action, even if those hearings immediately follow one another.

[19] Finally, it is for the parties to advise the Court by Friday, 24 Jun0;2011, whether they reqy require the assistance of the Court by way of a further callover of this matter.

Hugh Williams J/p>

Edit Nott Note: Derived fved from the Court’s electronic records and believed to be correct and final.