MANGALASSERY v SOCIAL WORKERS REGISTRATION BOARD [2021] NZCA 509

MANGALASSERY v SOCIAL WORKERS REGISTRATION BOARD [2021] NZCA 509 [5 October 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA476/2021[2021] NZCA 509BETWEEN MATHEWKUTTY JOSEMANGALASSERYApplicantAND SOCIAL WORKERS REGISTRATIONBOARDRespondentCourt: French and Courtney JJCounsel: Applicant in personS C M Waalkens and J K Attenberger for RespondentJudgment:(On the papers)5 October 2021 at 10.30 amJUDGMENT OF THE COURTA The application for leave to appeal is declined.B We make no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by French J)[1] Mr Mangalassery applies for leave to appeal a decision of van Bohemen J inthe High Court.11 Mangalasssery v Social Workers Registration Board [2021] NZHC 1594 [High Court judgment].[2] The respondent, the Social Workers Registration Board (the Board), opposesthe application on grounds of lack of jurisdiction and lack of merit.Background[3] Mr Mangalassery is a registered social worker. He is aggrieved by the Board'sdecision to adopt a recommendation that he receive mentoring and/or counsellingto develop his social work in specified areas. The recommendation was made bya Professional Conduct Committee (the Committee) as part of its investigation intoa complaint made against Mr Mangalassery. In making the recommendation,the Committee purported to be acting under s 71(1)(b)(v) of the Social WorkersRegistration Act 2003.[4] Mr Mangalassery was unhappy with this decision because the Committee hadfound he had not breached his ethical duties nor the relevant Code of Conduct.In those circumstances, he argued the only recommendation available to theCommittee was that no further action be taken.[5] Section 88(1) of the Social Workers Registration Act provides that a personadversely affected by any decision or direction of the Board may appeal that decisionto the District Court. Mr Mangalassery duly filed a notice of appeal in theDistrict Court. The appeal was heard by Judge McIlraith.[6] Judge McIlraith held that, in making its recommendation, the Committee hadbreached the rules of natural justice in that it had failed to give Mr Mangalassery theopportunity to be heard on the proposed recommendation.2 That breach of proceduralfairness in turn tainted the Board's decision to accept the recommendation because ithad in effect acted as a "rubber stamp" and failed to give reasons for its decision.3In the Judge's view, the Board ought not to have agreed with the recommendation.Instead, it should have referred the complaint back to the Committee so the latter couldgive Mr Mangalassery the opportunity to be heard and then consider afresh the issueof whether to make any recommendations under s 71(1)(b)(v).42 Mangalassery v Social Workers Registration Board [2021] NZDC 2809 at [38]–[40].3 At [43].4 At [50]–[51].[7] The Judge ordered that the Board's decision be modified to the above effect.[8] This was not the outcome Mr Mangalassery wanted. He wanted finalityand considered the Judge was wrong to refer the matter back to the Committee.He therefore filed a notice of appeal in the High Court against Judge McIlraith'sdecision.[9] Section 92 of the Social Workers Registration Act provides that theDistrict Court's decision on an appeal is "final." This provision is however subjectto s 96. Section 96 states:96 Appeal on question of law(1) If dissatisfied with a decision of the District Court as being erroneousin law, a party to an appeal under this Part may appeal to theHigh Court on a question of law only.(2) The appeal must be heard and determined in accordance with rulesof court.(3) Part 6 of the Criminal Procedure Act 2011 applies to the appeal—(a) so far as it is applicable and with all necessary modifications;but(b) only so far as it relates to appeals on questions of law.(4) Subsection (3) overrides subsection (2).[10] The question of law raised by the appeal Mr Mangalassery had filed was fixedby Venning J in the following terms:5Whether Judge McIlraith erred in finding that [the Committee]had jurisdiction to make a recommendation under s 71(1)(b)(v)of the Act in circumstances where [the Committee] haddetermined that there was no basis to the complaint againstthe appellant.[11] The appeal in the High Court then came on for hearing before van Bohemen J.[12] The first issue the Judge needed to decide was whether Mr Mangalasseryneeded leave before he could argue his appeal in the High Court.[13] As will have been noted, the effect of s 96(3) is that where the appeal relatesto a question of law, pt 6 of the Criminal Procedure Act 2011 applies to the extent it isapplicable. Under pt 6 there is a leave requirement in cases involving questions5 High Court judgment, above n 1, at [65].of law.6 Therefore, if it did apply to this case, it would mean Mr Mangalassery didneed leave.[14] Mr Mangalassery argued that the Criminal Procedure Act did not applybecause disciplinary proceedings are civil in nature, not criminal and the appeal wasgoverned instead by pt 20 of the High Court Rules 2016.[15] The Judge accepted that the proceeding was civil but held that wasnot determinative. In his view, the wording in s 96 was clear; pt 6 was applicable andtherefore leave was required.7[16] The Judge then went on to consider whether Mr Mangalassery's proposedappeal met the threshold for granting leave. He found that it did because the questionof law as formulated by Venning J was a question of general importance to allsocial workers.8[17] That was so even although van Bohemen J also held that the factual premiseon which the question of law was based — that the Committee had found there wasno basis to the complaint — was not in fact correct.9 The Judge's reading ofthe Committee's decision was that there were other residual concerns arising fromthe complaint regarding Mr Mangalassery's practice as a social worker that did notinvolve breaches of ethical duties or the Code of Conduct.10 It was those residualconcerns that had prompted the Committee's recommendation.[18] In the Judge's view, a more accurate formulation of the question of law wouldtherefore have been whether Judge McIlraith erred in law in finding the Committeehad jurisdiction to make a recommendation under s 71(1)(b)(v) of the Social WorkersRegistration Act in circumstances where the Committee had determined thatMr Mangalassery had not breached his ethical duties or the Code of Conduct.116 See Criminal Procedure Act 2011, s 296(2).7 At [46].8 At [63].9 At [73].10 At [68]–[72].11 At [73].[19] However, because the argument had proceeded on the basis of the formulationfixed by Venning J, the Judge said he would not depart from the original question.12[20] Turning then to the question of law as formulated by Venning J, the Judgeundertook a review of the legislative provisions regarding the complaints process andthe statutory powers of the Committee. He concluded that the Committee does havejurisdiction to make a recommendation under s 71(1)(b)(v) even in circumstanceswhere it has determined there is no basis to the complaint.13[21] The Judge therefore dismissed the appeal. Finally, he observed that had thequestion been premised on what he considered was the correct factual basis he wouldnot have granted leave.14Analysis[22] The Board submits we have no jurisdiction to consider the application.It argues that Mr Mangalassery's proposed appeal would be a third appeal and that athird appeal is precluded by s 308 of the Criminal Procedure Act.[23] Section 308 is contained in sub-pt 8 of pt 6 of the Criminal Procedure Act.Sub-part 8 deals specifically with appeals on questions of law. Section 308 underthe heading of "further appeals" provides that every determination of a second appealunder sub-pt 8 by the High Court is final.[24] The Board's argument is supported by van Bohemen J who considered thatthe appeal he was hearing in this proceeding was a second appeal for the purposesof sub-pt 8.[25] For his part, Mr Mangalassery who now accepts that the Criminal ProcedureAct applies says the Judge and the Board are wrong. In his submission, it is only inthis Court that the proposed appeal would be a second appeal and that accordingly itis s 303 of the Criminal Procedure Act that applies, not s 308. Under s 303, a second12 At [74].13 At [121].14 At [126].appeal can be brought if the proposed second appeal court grants leave.Mr Mangalassery therefore says he has filed his application for leave to appeal in theright court and that we do have jurisdiction to consider it.[26] Mr Mangalassery has already challenged the Board's decision in two Courts,the District Court and the High Court. Therefore, on first blush it would seemthe proposed appeal in this Court must be a third appeal.[27] However, the more difficult question is whether it is a third appeal for thepurposes of the Criminal Procedure Act's appeal pathway relating to questions of law.The first appeal in this case to the District Court was not an appeal limited to a questionof law. It was a general appeal. The error of law at issue in the High Court waswhether Judge McIlraith erred in law, not whether the Board erred in law. Analysed inthat light, the matter is not quite as straightforward as the Board's submissionswould suggest. There is, in our view, a tenable argument to say that in this proceedingthere has only been one appeal on a question of law and that was in the High Court.[28] Arguably, the situation is similar to the appeal pathway under the ResourceManagement Act 1991.[29] The Environment Court hears general appeals from decisions of consentauthorities. There is a right of appeal from a decision of the Environment Court to theHigh Court but limited to a question of law. Section 308 of the Resource ManagementAct provides that the decision of the High Court on such an appeal is to be treated asif it were a decision made under s 300 of the Criminal Procedure Act. That is to say,the appeal to the High Court is treated as a first appeal for the purposes of the questionof law procedure, notwithstanding that the Environment Court decision was itselfan appeal. It has never been doubted that a further appeal to this Court from theHigh Court in a resource management case is available on leave under s 303 of theCriminal Procedure Act.[30] We acknowledge there is a strong policy imperative in disciplinary proceedingsagainst matters becoming overly legalistic and drawn out. That is recognised in s 92of the Social Workers Registration Act which, it will be recalled, states that thedecision of the District Court is final. We also acknowledge that the Social WorkersRegistration Act does not contain a similar provision to s 308 of theResource Management Act.[31] But on the other hand, nor does the Social Workers Registration Act expresslystate that an appeal is to be treated as an appeal under s 303 of the Criminal ProcedureAct making the High Court a second appeal court. All s 96 says is that pt 6 of theCriminal Procedure Act applies to the appeal to the High Court "so far as itis applicable". Arguably, a rights-consistent interpretation of that phrase wouldsupport our having jurisdiction to entertain Mr Mangalassery's application for leaveto appeal.[32] Although there are other statutes containing similar appeal pathway provisionsto those in the Social Workers Registration Act,15 this is perhaps surprisingly the firsttime this particular jurisdictional question has come before this Court. Further, thereis only one High Court decision that has addressed the matter in any depth and eventhen it was obiter.16[33] It has not however proved necessary for us to express any definitive view onthe point. That will have to await a panel of three Permanent Court judges and fulllegal argument. The reason it has not proved necessary for us to reach any definitiveview is because we have come to the firm conclusion that, even if we did havejurisdiction, we would not grant leave.[34] As noted by van Bohemen J, the question of law formulated in the High Courtwas based on a wrong factual premise. The Judge felt constrained to consider thequestion as formulated but this Court would not be under the same constraints.Correctly formulated, the question of law would be entirely case-specific and not oneof general importance. There is also no risk of a miscarriage of justice if the proposedappeal does not proceed. That is because the proposed appeal would be doomed to failgiven the breadth of the Committee's powers under the Social Workers Registration15 For example, the Building Act 2004, s 340(3) and the Health Practitioners Competence AssuranceAct 2003, s 113(4).16 See Ministry of Business Innovation and Employment v Bell [2018] NZHC 1662 at [13]–[26].Act as detailed in the High Court.17 Another important reason why there is no risk ofa miscarriage is that Mr Mangalassery still has the benefit of the order made in theDistrict Court quashing the Board's decision and requiring a fresh re-consideration.[35] The Board did not seek costs and accordingly we make no award.Outcome[36] The application for leave to appeal is declined.[37] We make no order for costs.Solicitors:Rice Speir, Auckland for Respondent17 High Court judgment, above n 1, at [82]–[87].