An v Bupa Care Services (New Zealand) Ltd

JurisdictionNew Zealand
CourtSupreme Court
JudgeElias CJ,O. Regan,Ellen France JJ
Judgment Date12 April 2017
Neutral Citation[2017] NZSC 49
Docket NumberSC 24/2017

[2017] NZSC 49

IN THE SUPREME COURT OF NEW ZEALAND

Court:

Elias CJ, O. Regan, and Ellen France JJ

SC 24/2017

BETWEEN
AN (Sc 24/2017)
Applicant
and
Bupa Care Services (New Zealand) Limited
Respondent
Counsel:

Applicant in person

P W Le Cren xsand C E J Deans for Respondent

Application for leave to appeal directly from the High Court (HC) to the Supreme Court (SC) and to allow the publication of the applicant's name and identifying particulars — the applicant suffered from dementia — she resided in a rest home pursuant to orders made by the Family Court under the Protection of Personal and Property Rights Act 1988 — the orders also restricted visits to the applicant in the rest home to times approved by its manager and the manager's consent was required before the applicant could leave the home for trips or overnight stays (orders 3 and 4)— the applicant unsuccessfully applied to the HC for a writ of habeas corpus under the Habeas Corpus Act 2001 — whether the applicant had other, more appropriate avenues of redress to challenge the orders other than by habeas corpus — whether name suppression should be ongoing notwithstanding the applicant's wishes.

The issues were: whether appeal should be granted; whether the applicant had other more appropriate avenues of redress to challenge the orders other than by habeas corpus; whether name suppression should be ongoing notwithstanding the applicant's wishes.

Held: No exceptional circumstances had been raised which would justify an appeal direct to the SC. In any event, the criteria for leave in s74 Senior Courts Act 2016 were not met.

First, there was nothing was presented to challenge the legality of AN's ongoing confinement in the rest home. As the HC said, the complaint was not really about the legality of AN's detention; it was about other matters.

Second, the s83 PPPR provided rights of appeal to the HC and s86 contained rights of review. Alternatively, judicial review might provide an avenue of redress. Accordingly, there were other, more appropriate, avenues to challenge the extent of the orders than by habeas corpus, such as s 10(4) PPPR (court may make other orders … necessary or expedient to give effect, or better effect, to the personal order). AN had not utilised these remedies.

Finally, if AN was concerned about her care there were other mechanisms available to her such as via complaint to the Health and Disability Commissioner.

PPPR which provided that ss 11B-11D of the Family Court Act 1980 (name suppression provisions) applied to this case. AN met the definition of “vulnerable person” in s11D. Publication of her name was prohibited except with leave of the Court.

Application for leave to appeal was dismissed.

Leave to allow publication of AN's name and identifying particulars refused.

JUDGMENT OF THE COURT
  • A The application for leave to appeal is dismissed.

  • B The application for leave to allow the publication of the applicant's name and identifying particulars is dismissed.

  • C There is no order for costs.

REASONS
Introduction
1

AN suffers from dementia. She resides in a rest home pursuant to orders made by the Family Court under the Protection of Personal and Property Rights Act 1988 on 17 August 2016. 1 The orders also provide that her caregivers may seek police assistance to transport AN to return her to the rest home. The orders restrict visits to AN in the rest home to times approved by the manager of the rest home. Finally, the orders provide that the manager's consent is required before AN can leave the home for trips or overnight stays.

2

AN made an application to the High Court for a writ of habeas corpus under the Habeas Corpus Act 2001 in relation to the orders. 2 In a judgment delivered on 17 March 2017, Downs J dismissed the application. 3 The Judge considered AN's detention was lawful 4 and that habeas corpus was not the appropriate procedure for considering AN's complaints. 5 AN seeks leave to appeal directly to this Court against the judgment of Downs J.

Grounds of application
3

AN's proposed appeal would focus on the orders which give the manager of the rest home the ability to seek police assistance in transporting her and give the manager some control over visiting times and trips or overnight stays outside of the rest home (orders 3 and 4).

4

AN wishes to argue that orders 3 and 4 are illegal because their effect is to authorise detention which is in breach of her rights under the New Zealand Bill of Rights Act 1990. She also questions the absence of any reference to the provisions in the Protection of Personal and Property Rights Act...

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5 cases
  • An (sc 24/2017) v Bupa Care Services (new Zealand) Limited
    • New Zealand
    • Supreme Court
    • 12 April 2017
    ...____________________________________________________________________ REASONS AN (SC 24/2017) v BUPA CARE SERVICES (NEW ZEALAND) LIMITED [2017] NZSC 49 [12 April AN suffers from dementia. She resides in a rest home pursuant to orders made by the Family Court under the Protection of Personal ......
  • A N v Manukau District Court
    • New Zealand
    • High Court
    • 8 September 2017
    ...was lawful may also be a matter the Courts would be required to determine in the future.6 5 6 AN v Bupa Care Services (New Zealand) Ltd [2017] NZSC 49, [2017] NZFLR N v Police [2017] NZHC 840. Family Court proceedings subsequent to last habeas corpus application [33] Lang J’s observations p......
  • An (sc 24/2017) v Bupa Care Services (new Zealand) Limited
    • New Zealand
    • Supreme Court
    • 1 May 2017
    ...a judgment of Downs J rejecting an application for a writ of habeas corpus.2 1 2 AN (SC 24/2017) v Bupa Care Services (New Zealand) Ltd [2017] NZSC 49. N v Bupa Care Services (New Zealand) Ltd [2017] NZHC AN (SC 24/2017) v BUPA CARE SERVICES (NEW ZEALAND) LIMITED [2017] NZSC 52 [1 May 2017]......
  • N v New Zealand Police
    • New Zealand
    • High Court
    • 1 May 2017
    ...that [N] is better off at home. 3 4 N v Bupa Care Services (New Zealand) Ltd [2017] NZHC 499. N v Bupa Care Services (New Zealand) Ltd [2017] NZSC 49. The police questioned me about personal orders I advised that if they had legal document of personal orders they would have been to the cour......
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