SUBRAMANI v A PROFESSIONAL CONDUCT COMMITTEE APPOINTED BY THE DENTAL COUNCIL OF NEW ZEALAND [2023] NZHC 757

SUBRAMANI v A PROFESSIONAL CONDUCT COMMITTEE APPOINTED BY THE DENTAL COUNCILOF NEW ZEALAND [2023] NZHC 757 [5 April 2023]IN THE HIGH COURT OF NEW ZEALANDGREYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROAMĀWHERA ROHECIV-2022-418-17[2023] NZHC 757UNDER the Health Practitioners CompetenceAssurance Act 2003IN THE MATTER OF an appeal against a decision of the HealthPractitioners Disciplinary Tribunal dated 16December 2022BETWEEN BHARATH RAJA SUBRAMANIAppellantAND A PROFESSIONAL CONDUCTCOMMITTEE APPOINTED BY THEDENTAL COUNCIL OF NEW ZEALANDRespondentCounsel: A H Waalkens KC for AppellantJ P Coates and A N Lane for RespondentD D Vincent for Health Practitioners Disciplinary Tribunal,abiding the outcome (excused)Judgment: 5 April 2023(Determined on the papers)JUDGMENT OF OSBORNE J(leave to appeal)This judgment was delivered by me on 5 April 2023at 2.15 pm pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarDate:The cancellation of Dr Subramani's registration[1] The Health Practitioners Disciplinary Tribunal (Tribunal) on16 December 2022 found a charge of professional misconduct on the part ofDr Bharath Subramani, a registered dentist, established.1 The Tribunal cancelledDr Subramani's registration to take effect six weeks after the date of the decision. Afine was also imposed.[2] Dr Subramani appealed those parts of the Tribunal's penalty decision by whichhis registration was cancelled and he was fined.[3] Dr Subramani's appeal has been scheduled to be heard on 7 November 2023.The stay application[4] Pending the hearing of his appeal, Dr Subramani sought:(a) a (continued) stay of the Tribunal's decision; and(b) permission to continue to practice as a dentist (under supervision andwith voluntary limits).[5] That application was heard and determined in February 2023 (the "Februaryjudgment").2[6] Interim relief had previously been granted until 17 February 2023.[7] This Court declined the application for continuing interim relief, save that theexisting interim relief was extended to expire on 7 March 2023.1 A professional conduct committee appointed by the Dental Council of New Zealand v SubramaniHPDT number 1282/Den21/511P dated 16 December 2022.2 Subramani v A professional conduct committee appointed by the Dental Council of New Zealand[2023] NZHC 189.Background to the February judgment[8] The factual background to this appeal proceeding is fully set out in myFebruary judgment.[9] The key considerations that led to the refusal of continued interim relief (byway of stay) may be summarised as follows:(a) the refusal of a stay would not render the appeal nugatory in the usualsense;(b) there would be an injurious financial impact on Dr Subramani andothers involved in the practice but, having regard to the conclusion ofthe specialist tribunal reached on a substantial body of evidencefollowing a lengthy penalty hearing, the ability of Dr Subramani tooperate only at the level of a junior dental student weighed significantlyagainst a stay;(c) the effect on third parties is most fairly regarded as neutral;(d) the disciplinary importance of the Tribunal's decision weighs in favourof a stay not being granted;(e) there is an inherent public interest in disciplinary proceedings;(f) the apparent strength of the appeal is a neutral factor, with the prospectsof a successful appeal not being "strong"; and(g) the fair and just outcome was that Dr Subramani's registration shouldnot be stayed.Application for leave to appeal and for a stay[10] Dr Subramani has applied for:(a) leave to appeal the February judgment;(b) a stay of the decision in the February judgment; and(c) a stay of the Tribunal decision cancelling his registration (on conditionsas to continuing supervision).[11] The Council, as respondent, opposes the application.Application for leave to appealThe law[12] Dr Subramani's stay application was an interlocutory application in respect ofa civil proceeding.[13] Accordingly, Dr Subramani requires (under s 56(3) Senior Courts Act 2016)leave to appeal to the Court of Appeal.[14] The Court of Appeal in Greendrake v The District Court of New Zealandadopted the following as the test applicable to the granting of leave:3(a) a high threshold exists;(b) the applicant must identify an arguable error of law or fact;(c) the alleged error should be of general or public importance warrantingdetermination or otherwise of sufficient importance to the applicant tooutweigh the lack of general or precedential value;(d) the circumstances must warrant incurring further delay; and(e) the ultimate question is whether the interests of justice are served bygranting leave.The grounds of the application for leave to appeal[15] The grounds of the application for leave to appeal arise first from the way inwhich Dr Subramani had continued to practice (under stay conditions) until the timeof the February judgment.3 Greendrake v The District Council of New Zealand [2020] NZCA 122 at [6].[16] The charges Dr Subramani faced in the Tribunal at the 2022 hearing related tohis practice of dentistry in 2017 and 2018. After being charged, Dr Subramani waspermitted to continue practising dentistry under supervision by another practitionerappointed by the Dental Council. The supervisor gave evidence that there had been,during the period of supervision, a marked improvement in Dr Subramani's practiceof dentistry (Dr Subramani was described by the supervisor as "certainly capable ofnormal fillings, extractions, cleaning, and examinations which became verythorough"). The Tribunal recognised Dr Subramani had engaged in supervision andaccepted the supervisor's evidence that Dr Subramani had responded well.[17] For Dr Subramani, Mr Waalkens KC submits that this Court's decision todecline to order a stay was unsupportable and unreasonable — in short there werearguable errors of fact and law.[18] Mr Waalkens identifies as unique to this application the fact that Dr Subramanihad in place for his dental practice the supervision arrangements to which I havereferred, which restrict him to basic dentistry of a closely and reliably supervisednature. A prior dental treatment plan is required to be in place for each patient,approved by the supervisor. The supervisor to September 2020 was a competent andwell-experienced dental practitioner as is the proposed replacement supervisor.[19] Mr Waalkens identifies the passage of time between the events giving rise tothe disciplinary charge (in 2017 and 2018) and the "glowing and reassuring" regularreports of Dr Subramani's subsequent professional work under supervision.Mr Waalkens refers to the evidence that provides reassurances as to the satisfactorynature of Dr Subramani's work, in particular:(a) his supervisor's evidence that (in his opinion) Dr Subramani'scontinued practice of dentistry provides no real risk to the public; and(b) the evidence of a dental practitioner now working as an associate inDr Subramani's practice who has observed his work and viewed it as"entirely appropriate and to a satisfactory standard".Leave considerationsA high threshold[20] The purpose of having a high threshold for the granting of leave is to ensureunmeritorious appeals or appeals of no great significance are filtered out.4 Theseconsiderations are closely related to the third category of considerations discussedbelow at [23] as to importance to the public and/or the applicant.Arguable errors[21] The error for consideration on appeal, as identified by Mr Waalkens, relates tothe combination of the age of the incidents of professional misconduct (five to sixyears ago) and the body of evidence (particularly that of the supervisor) as to thequality of Dr Subramani's supervised work since September 2020. It is to be arguedthat this Court failed to adequately take into account the supervisor's "persuasiveevidence". It is further to be argued that this Court erred in essentially adopting theTribunal's view that the legislation did not permit a further extended period ofsupervision.[22] I recognise that there are at least aspects of these grounds that constitutearguable errors.Importance of the error[23] I accept, as submitted by Mr Waalkens, that the subject matter of the appeal isof great significance to Dr Subramani and, through him, has importance for thepatients of his practice and may impact on the availability of dental treatment in thedistrict. I recognise also that decisions in previous cases referred to by Mr Waalkenssuggest that there has been favourable consideration of similar stay applications.5[24] This, in itself, points to a degree of precedential value in the appeal.4 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [9], [13].5 B v Preliminary Proceedings Committee of the Medical Council of New Zealand HC AucklandHC169/95, 18 December 1995; Patel v Complaints Assessment Committee HC Auckland CIV-2007-404-1818, 27 June 2007; Patel v Dentists Disciplinary Tribunal HC Auckland AP 77-SW02,21 August 2002.Circumstances warranting further delay[25] Mr Waalkens understandably anticipates the Court of Appeal will consider anapplication for urgency in hearing the stay appeal (for which leave is being sought).He submits that there can be no real concern that delay in having the Court of Appealdetermine the application for stay is, or will be, material.The interests of justice[26] Mr Waalkens submits that the interests of justice align to a large degree withthe importance of the issues on appeal. He submits that the interests of justice favourthe granting of leave.Extension of stay[27] Mr Waalkens submits, assuming leave to appeal is granted, the reasonable andappropriate outcome is that the period of stay be extended pending the Court ofAppeal's determination of the appeal.Submissions in opposition[28] Mr Coates, for the respondent, in comparably detailed submissions took issuewith most aspects of the submissions for Dr Subramani. In summary, Mr Coates:(a) rejected the proposition that Dr Subramani would suffer irreparableharm reputationally and professionally in the event the Tribunal ordersare not stayed, as his reputation does not depend on whether an interimstay is granted or not;(b) the statutory principle (under s 108 Health Practitioners CompetenceAssurance Act 2003 (the Act)) is that orders made by the Tribunalcontinue in force unless this Court orders otherwise — the protectivenature of the statutory regime reinforces the need for a high thresholdbefore leave is granted;(c) the possible prejudice to Dr Subramani in the event that a successfulappeal is preceded by a period of inability to work is counterbalancedby the serious prospect that the level of professional misconduct wouldstill result in at least a suspension for a period not exceeding three years;(d) arguments advanced as to errors of factual assessment overlook thisCourt's consideration of the supervision arrangements and haveinsufficient regard to the entitlement of the Court to place significantweight on the Tribunal's conclusions as to the level at whichDr Subramani was operating under supervision;(e) the submissions on the intended appeal in relation to Dr Subramani'scareer being at stake have validity in relation to the proposed appealitself but Dr Subramani's professional reputation does not depend onwhether he has successfully challenged the stay decision; and(f) there is not a presumption in favour of maintaining the status quo indisciplinary matters pending an appeal — the statutory presumptionunder s 108 of the Act is to the contrary. In the cited decision under thepresent Act (Edwards v A Professional Conduct Committee) thedecision to grant a stay was by a "fine margin".6 Other cases cited byMr Waalkens predate the current legislation.Conclusion[29] I have carefully considered all these competing submissions. None of themare conclusive of the two issues before me.[30] There is sufficient of importance in the issues Mr Waalkens proposes to raiseif leave is granted to justify, in the interests of justice, leave to appeal.[31] In relation to the stay application, I was not satisfied that a stay would be in theinterests of justice were it to be ordered for the period lasting to the High Court hearing6 Edwards v A Professional Conduct Committee [2022] NZHC 971 at [42].date in November 2023. Having regard to the findings made by the Tribunal, theconsiderations of public interest that arise from the fact that (even supervised)Dr Subramani has been practising only at the level of a second-year dental student, arein my view a strong factor against further interim relief for an extended period.[32] Having regard, however, to the importance of this issue for Dr Subramani, andthe possibility that arguable errors of law or fact might be found to justify the grantingof the proposed appeal, I am persuaded, by a fine margin, that a further period of stayshould be granted.Orders[33] I order:(a) the appellant is granted leave to appeal against the judgment of thisCourt in Subramani v A professional conduct committee of the DentalCouncil of New Zealand;7(b) there is by way of interim relief under r 20.10(2)(c) High Court Rules2016 a stay of the date on which Dr Subramani's registration will becancelled, namely until the hearing of Dr Subramani's appeal, oncondition that:(i) the appellant makes an application to the Court of Appeal forurgency in hearing his stay appeal; and(ii) Dr Subramani is to retain the services of Dr Susan Gorrie as asupervisor of his practice in accordance with the supervisoryarrangements that were previously in place throughDr Michael Shand;7 Subramani v A professional conduct committee of the Dental Council of New Zealand, above n 2.(c) the costs and disbursements of these applications are reserved.Osborne JSolicitors:Wotton & Kearney, WellingtonCounsel: A H Waalkens KC, AucklandClaro Law, WellingtonCopy to: D D Vincent, HPDT