The Attorney-General on Behalf of The Ministry of Health v Idea Services Ltd Hc

JurisdictionNew Zealand
CourtHigh Court
JudgeMallon J
Judgment Date16 Dec 2011
Neutral Citation[2011] NZHC 1803
Docket NumberCIV-2011-485-1562

[2011] NZHC 1803




Under The Human Rights Act 1993

The Attorney-general On Behalf of the Ministry of Health
Idea Services Limited

I C Carter and G J Robins for Appellant

A S Butler and O C Gascoigne for Respondent





The legislation


The Tribunal decisions


The 11 April 2011 decision


What happened after the 11 April 2011 decision


The 13 July 2011 decision


Decision dated 28 September 2011.


Steps taken in the High Court


Collateral attack?


Is there jurisdiction to determine a preliminary question


Is there any other reason to decline to determine the preliminary question at this point




Other matters



This is another case where difficulties have arisen because of the strict time limit Parliament has set for the bringing of an appeal from a decision of the Human Rights Tribunal. 1 In this case the difficulty has arisen because the Tribunal heard the question of whether there was a breach of the Act separately from what remedies should be ordered in respect of the breach. The parties have different views as to whether the 30 day time period for bringing an appeal runs from the finding on breach or from when an order is made granting or refusing remedies.


The context in which this difficulty has arisen relates to Government funding provided to intellectually disabled people for community activities. 2 Up until March 2005 the Ministry of Health had provided this funding for intellectually disabled people 65 years or over and the Ministry of Social Development had provided the funding for intellectual disabled people under 65 years. In March 2005 the Ministry of Health decided to cut the funding it had provided with the result that those under 65 years old had government funding for these activities, but those who were 65 years or older did not.


The respondent (Idea Services) is a subsidiary of IHC New Zealand Incorporated which is a provider of services to people who have an intellectual disability. Most of the services are provided by Idea Services. Idea Services brought a claim before the Tribunal contending that the Ministry of Health's decision was unjustified age discrimination in breach of Part 1A of the Human Rights Act.


The issue about the time for making the appeal arose because the parties agreed to split the proceedings before the Tribunal in two parts. The first part was to deal with “both the s 19 and s 5 NZBORA aspects of the case”. The second part was to deal with “any issues of remedy”. The hearing on the first part took place in

September and October 2010 and the decision, finding a breach of Part 1A, was given on 11 April 2011. The Ministry of Health wishes to appeal that decision but Idea Services says that the appeal has been made too late. The issue is whether the time period for lodging an appeal commenced on the date of that decision or whether it did not arise until there had been a decision about remedy.
The legislation

Part 1A of the Human Rights Act provides for the Government to be subject to the Human Rights legislation, but to the standard set out in the New Zealand Bill of Rights Act 1990 (NZBORA).


Accordingly, s 20J provides that Part 1A applies “only in relation to an act or omission of a person or body referred to in section 3 of [NZBORA…]”. Section 20L(1) provides that an act or omission is in breach of Part 1A “if it is inconsistent with section 19 of [NZBORA]”. Section 20L(2) provides that an act or omission will be inconsistent with s 19 of NZBORA if it “limits the right to freedom from discrimination affirmed by that section” and “is not, under s 5 of [NZBORA], a justified limitation on that right”.


Therefore, when a claim is brought under this Part, the Tribunal must decide whether there is an infringement of the right in s 19 of NZBORA (ie prima facie discrimination). The right in s 19 of NZBORA is “the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act. Those grounds of discrimination include age.


If there is a prima facie discrimination the Tribunal must consider whether it is justified under s 5 of NZBORA. Section 5 of NZBORA provides that the rights in NZBORA (ie here, the right to be free from discrimination on the grounds of age) “may be subject to only such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” If the discrimination is not justified in these terms then there is a breach of Part 1A of the Human Rights Act.


Where there has been a breach of Part 1A the Tribunal may grant one or more of the remedies set out in s 92I of the Human Rights Act. These remedies include a declaration and damages. By s 92O the Tribunal is given power to take various actions instead of or in addition to granting any other remedy. These actions include, for example, the power to adjourn the proceeding to enable further consideration of the remedies and to put limits on the time at which the remedy is to have effect. By s 108B, before the Tribunal grants any remedy, it must give the parties to the proceeding an opportunity to make submissions on the implications of granting that remedy and the appropriateness of it.


Section 116 provides that, if the Tribunal grants any remedy, or makes a declaration or dismisses proceedings, it must make its decision in writing and it must show the reasons for the decision. It further provides that the reasons must include relevant findings of fact, explanations and findings on relevant issues of law, and conclusions on matters or issues it considers require determination in order to dispose of the matter.


By s 92Q there is a monetary limit on the amount of damages the Tribunal may award. That monetary limit is the same monetary limit that applies to the District Court. Section 92R provides that the Tribunal must refer the granting of a remedy to the High Court “if the Tribunal is satisfied on the balance of probabilities that a defendant in the proceedings has committed a breach of Part 1A…but that…the granting of the appropriate remedy” would be outside the monetary limits. The same applies where “the granting of a remedy…would be better dealt with by the High Court.”


Section 92S(1) provides that, where a reference is made to the High Court, there is to be a report on the proceedings which “sets out the Tribunal's finding with regard to the breach of Part 1A…”. Section 92T(2) provides that the High Court may direct the Tribunal “to amplify any report under s 92S(1).” Section 92T(3) provides the parties with the right to be heard and to tender evidence “as to the remedy (if any) to be granted on the basis of the Tribunal's finding that the defendant has committed a breach of Part 1A…”. Section 92T(4) provides that no party may “challenge the finding of the Tribunal” referred to in s 92T(3). And s 92T(5)provides that the High Court “must decide, on the basis of the Tribunal's finding that the defendant has committed a breach of Part 1A…whether 1 or more of the remedies…is to be granted.”


Section 92U provides:

High Court's decision on remedies to be included in, and given effect to as part of, Tribunal's determination

  • (1) Every decision of the High Court under section 92T(5)-

    • (a) must be remitted to the Tribunal for inclusion in its determination with regard to the proceedings; and

    • (b) has effect as part of that determination despite the limits imposed by section 92Q.

  • (2) Nothing in subsection (1)-

    • (a) limits sections 123 to 125; or

    • (b) prevents the making of an appeal in accordance with section 123 in respect of a determination of the Tribunal in which a decision of the High Court is included in accordance with subsection (1)(a).


Sections 123 to 125 are concerned with appeals to the High Court, appeals to the Court of Appeal on a question of law and the costs of appeal respectively. For present purposes the relevant one is s 123 which provides:

Appeals to High Court

  • (1) Where any party is dissatisfied with any interim order made by the Chairperson under section 95 of this Act, that party may appeal to the High Court against the whole or part of that order.

  • (2) A party to a proceeding under section 92B or section 92E may appeal to the High Court against all or any part of a decision of the Tribunal-

    • (a) dismissing the proceeding; or

    • (b) granting one or more of the remedies described in section 92I; or

    • (c) granting the remedy described in section 92J; or

    • (d) refusing to grant the remedy described in section 92J; or

    • (e) constituting a final determination of the Tribunal in the proceeding.

  • (2A) For the purposes of subsection (2)(d), the Tribunal does not in a proceeding refuse to grant the remedy described in section 92J unless-

    • (a) a party to the proceeding expressly applies to the Tribunal for the remedy in relation to a particular enactment; and

    • (b) the Tribunal does not grant the remedy in relation to that enactment.

  • (3) Where any party is dissatisfied with any decision of the Tribunal making a declaration under section 97 of this Act, that party may appeal to the High Court against the whole or any part of that decision.

  • (4) Every appeal under this section shall be made by giving notice of appeal within 30 days after the date of the giving by the Tribunal in writing of the decision to which the appeal relates.

  • (5) In determining any appeal under this section the High Court shall have the powers conferred on the Tribunal by sections 105 and 106 of this Act, and those sections shall apply accordingly with such modifications as are necessary.

  • (6)...

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