GEARY V THE PSYCHOLOGISTS BOARD AND ANOR CA CA618/2008

GEARY V THE PSYCHOLOGISTS BOARD AND ANOR CA CA618/2008 9 April 2009IN THE COURT OF APPEAL OF NEW ZEALAND CA618/2008 [2009] NZCA 134BETWEEN IAN RUSSELL GEARY Appellant AND THE PSYCHOLOGISTS BOARD First Respondent AND WELLINGTON DISTRICT COURT Second Respondent Hearing: 17 March 2009 Court: Glazebrook, Hammond and Robertson JJ Counsel: A C Beck for Appellant S C D A Gollin and P D Appleton for First Respondent No appearance for Second Respondent Judgment: 9 April 2009 at 9 amJUDGMENT OF THE COURT A The appeal is dismissed. B The appellant must pay the first respondent costs for a standard appeal on a band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Robertson J)Introduction[1] Mr Geary appeals against a decision of Clifford J (Geary v Psychologists Board HC WN CIV 2007-485-2558 17 September 2008) dismissing an application to cross-examine three witnesses who have sworn affidavits which have been filed by the Psychologists Board ("the Board") in a judicial review proceeding between the parties. [2] Mr Beck, counsel for Mr Geary, summarised the central points of his case as: (a) The approach to cross-examination in judicial review was developed as a matter of judicial practice in response to a particular concern. The practice cannot override any contrary legislative provisions, and must be responsive to the current demands of justice. (b) There is no legal presumption against cross-examination in judicial review. There must be a good reason to deny a litigant the right to cross-examine the witnesses of the opposing party where a factual dispute is to be determined by the Court. (c) There was no proper basis for the High Court to deny the appellant leave to cross-examine the first respondent's witnesses.Background[3] Mr Geary was a registered psychologist. On 14 and 15 March 2005, he was subject to a disciplinary hearing before the Board. On 18 March he applied for an annual practising certificate. The application was referred to the Board, which declined to grant the certificate and required Mr Geary to undergo a competence programme and examination, which he failed. Following notification to Mr Geary and a hearing at which Mr Geary was represented, the Board elected to suspend his registration.[4] In November 2006, the Board received another complaint about Mr Geary. Following review, it referred the complaint to its Professional Conduct Committee. [5] Mr Geary issued judicial review proceedings, challenging the legality of various of the Board's decisions and its decision-making process. Specifically, Mr Geary alleges that the Board took account of inappropriate matters, was prejudiced, acted without jurisdiction and acted in breach of natural justice. [6] Both parties filed initial affidavits and Mr Geary replied to the Board's affidavits disputing some of the explanatory material and narrative. [7] An application by Mr Geary for leave to cross-examine the witnesses who had provided affidavits on behalf of the Board was heard by Clifford J on 27 August 2008. The appeal relates to the Judge's refusal to grant leave.Cross-examination generally[8] The point of principle advanced by Mr Beck was that, in an adversarial system, cross-examination is recognised as the appropriate way of testing a witness's evidence. He submitted this is clear from the terms of the Evidence Act 2006 and the High Court Rules, both of which provide for the primacy of oral evidence. He cited ss 83 and 103 of the Evidence Act and r 9.51 of the High Court Rules. He submitted that every litigant should presumptively be able to test by cross- examination the evidence adduced by opposing parties. The strength of the adversarial system depends on the ability to test evidence, he submitted. [9] Notwithstanding his argument that cross-examination ought to be presumptively available, he nonetheless filed an application for leave to cross- examine. That was in conformity with all authority.Mr Geary's application to cross-examineMr Geary's case[10] Mr Beck argued that the primacy of oral evidence and the duty of counsel to cross-examine on points of conflict are central to trial procedure and fundamental features of the Evidence Act 2006 and the High Court Rules. He submitted that the relevant authorities express no single unified approach to cross-examination in judicial review, and that the issue therefore requires clarification. [11] Mr Gollin, for the first respondent, emphasised that because Clifford J's decision was the exercise of a discretion, this Court should not interfere with his ruling unless satisfied that the Judge acted on a wrong principle or made a plainly wrong decision. [12] Lord Diplock, in O'Reilly v Mackman [1983] 2 AC 237 (HL), said of cross- examination in judicial review proceedings generally (at 282) that:It may well be that for the reasons given by Lord Denning MR in George v Secretary of State for the Environment (1979) 77 LGR 689, it will only be upon rare occasions that the interests of justice will require that leave be given for cross-examination of deponents on their affidavits in applications for judicial review. The facts can seldom be a matter of relevant dispute upon an application for judicial review, since the tribunal or authority's findings of fact, as distinguished from the legal consequences of the facts that they have found, are not open to review by the court in the exercise of its supervisory powers except on the principles laid down in Edwards v Barstow [1956] AC 14, 36 and to allow cross-examination presents the court with a temptation to substitute its own view of the facts for that of the decision-making body upon whom the exclusive jurisdiction to determine facts has been conferred by Parliament.[13] Mr Beck noted that the New Zealand courts have discussed the "practice" of disallowing cross-examination in judicial review proceedings, and submitted that the ambit of the practice is vague. In Roussel Uclaf Australia Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650 (CA), Richardson P said (at 656) that:It is well-settled as a desirable practice that cross-examination is not permitted as of right in judicial review proceedings.[14] Richardson P noted that, in Minister of Energy v Petrocorp Exploration Ltd[1989] 1 NZLR 348, this Court had acknowledged that the leave requirement for cross-examination in judicial review proceedings is simply a "practice" that is regarded as "desirable". But, s 10 of the Judicature Amendment Act 1972 enables judges hearing judicial review cases to give directions necessary to facilitate the hearing, and this includes requiring parties to apply for leave to cross-examine. That, the Court said, accords with the purpose of judicial review as a "relatively simple, untechnical and prompt procedure", and leave to cross-examine ought to be granted "only if sufficient grounds are shown". [15] Mr Beck referred particularly to comments of Wild J in Edwards v Toime[2005] NZAR 140 (HC), that leave to cross-examine in judicial review cases will be granted where it is "necessary to dispose of the case fairly". This characterisation of the leave requirement, Mr Beck submitted, is relatively flexible, and gives a "workable" fairness-focussed criterion. He noted the decision of this Court inWilson v White [2005] 1 NZLR 189 (CA), in which McGrath J acknowledged that cross-examination will be permitted if there is a potential for prejudice if the evidence is not tested, and the High Court decision of Whakatane District Council v Bay of Plenty Regional Council HC ROT CIV 2007-463-606 14 March 2008 where Duffy J said that cross-examination may be proper when there are allegations of predetermination and bias. [16] Counsel also noted that this Court in Stratford Racing Club Inc v Adlam[2008] NZAR 329 at [63] said cross-examination will:[63] Always be permitted where it is necessary to enable the application for review to be decided properly and fairly "Cross-examination is particularly useful in cases "where there is a lack of adequate or proper explanation of the decision-making process, where there is a material conflict of affidavit evidence, or where the credibility of a deponent is in issue": Joseph Constitutional and Administrative Law in New Zealand (3ed 2007) at [21.12.3].[17] Mr Beck contrasted these cases with what he said was the narrow approach taken in Powerco Ltd v Commerce Commission [2008] NZCA 289. In Powerco this Court said that cross-examination in judicial review proceedings is limited to cases where it is demonstrably necessary and that any application for leave should definethe mooted issues with particularity. Considering Mr Geary's application, Clifford J placed significant reliance on the Powerco decision, and Mr Beck submitted that that he thereby failed to consider the possibility – and Mr Beck says the desirability and propriety – of a more liberal approach. [18] Mr Beck submitted that because the leave requirement is a mere matter of practice, it ought to yield to the contrary provisions of the Evidence Act and the High Court Rules. He submitted that plaintiffs ought presumptively to be able to advance their cases in the manner they choose, unless sound policy or practical reasons are proffered to rebut the presumption. He contended that inevitably factual disputes will arise in judicial review proceedings, and that the court must have a sound method of adjudicating upon them. He submitted that concerns about inefficiency and "fishing expeditions" are unfounded. [19] Mr Gollin argued that despite the slight nuances in previous cases, the common thread is that parties seeking to cross-examine in judicial review proceedings must establish that it is either necessary or required by justice. He submitted that the legal basis of the leave rule is not unsound simply because it has developed as a judicial practice. He argued that its continued acceptance by the courts indicates that the leave requirement is premised on considered policy grounds. He accepted parties are free to apply for leave, and if there are pressing factual disputes the resolution of which is necessary for the just determination of the case, then it can be granted.Discussion[20] Arguably there is some ambiguity among the authorities in the expression of both the precise test for granting leave to cross-examine in judicial review proceedings and the status of the leave requirement. In Roussel Uclaf, for example, Richardson P characterised the leave requirement as a desirable judicial practice, whereas in this Court's recent Powerco decision, the leave requirement was expressed as a "principle".[21] However, we agree with Mr Gollin that, despite differences of expression, the authorities are fundamentally harmonious. The authorities have a substantive core approach and apparently different characterisations of the leave requirement are really no more than linguistic nuances. [22] Judicial review is part of the High Court's supervisory jurisdiction and fact- finding is not a central activity. If cross-examination was permitted as of right, there would be a risk of unwarranted dalliance into factual assessments by the courts. The avoidance of that kind of exercise is the core of the presumption against cross- examination in judicial review proceedings, and recognised in the relevant authorities. The rule of practice is a commonsense response to the nature of the litigation. [23] Cross-examination is properly constrained by a leave requirement. The criteria for leave – necessity and the requirements of justice – are not unduly onerous. If a party can point with sufficient particularity to a basis upon which cross-examination is necessitated by the shape of the case, then leave will be granted. We find no justification for a wholesale reconsideration of the policy approach which has evolved. [24] In this case, Clifford J considered each of the proffered grounds for leave, but declined leave on the basis that those grounds evinced neither the necessity of cross- examination, nor, in some instances, sufficient linkage between the grounds and Mr Geary's claims against the Board. The Judge considered fully the material authorities, and cannot be said to have conducted his assessment on too narrow or inflexible a basis, as Mr Beck contended. [25] We have not overlooked the fact that a central part of the appellant's case is allegations of bias and predetermination. There may be situations where that is a factor which will require particular attention and analysis in determining whether leave should be granted (Whakatane District Council), and we acknowledge Mr Beck's helpful submissions on this sometime element of judicial review proceedings. However, we are not satisfied that this is one of those situations. Bias and predetermination may be established by inference from all the factualcircumstances. The facts are established in the affidavits. As Clifford J noted, there can be further elucidation by way of interrogatories if that is necessary. [26] It cannot be the case that mere allegations of bias and predetermination are enough in themselves to require leave to be granted thereby allowing cross- examination effectively as of right. There must be an evidential basis for such claims and, as a matter of fairness, cross-examination must be necessary for these to be advanced. Clifford J considered carefully whether the particular matters relied on by the appellant reached that standard and concluded that they did not. We agree with his assessment. This is particularly the case as the proposed topics for cross- examination ranged widely and were not limited to the particular matters on which there were factual disputes. It is unrealistic to expect that, in cross-examination, the deponents of the affidavits will suddenly make oral statements which will be of material assistance in the determination if all that is proposed are general allegations of bias. There is, in addition, the problems inherent in the assessments or views of one member of a multi-member body being held out as representative of the views of all the members, which cannot be overlooked. [27] There is nothing about the particular circumstances of this case which leads to the conclusion that justice cannot be done between the parties in the absence of cross-examination.Result[28] There is no basis upon which to interfere with Clifford J's exercise of his discretion. It was correct in principle and, on the facts, was appropriate. [29] The appeal is dismissed. The appellant must pay the first respondent costs for a standard appeal on a band A basis and usual disbursements.Solicitors: Gault Mitchell, Wellington, for Appellant Minter Ellison Rudd Watts, Wellington, for First Respondent