CULLEN V HEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL HC AK CIV-

CULLEN V HEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL HC AK CIV- 28 May 2007IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2007-485-1133 (1)BETWEEN RHYS MICHAEL CULLEN, MEDICAL PRACTITIONER OF AUCKLAND Appellant AND HEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL RespondentCONTINUES ON NEXT PAGEHearing: 28 May 2007 Counsel: P M Webb for Plaintiff C R Carruthers QC for Professional Conduct Committee of the Medical Council of New Zealand M K MacNab for Health Practitioners Disciplinary Tribunal J P Coates for Medical Council of New Zealand Judgment: 28 May 2007ORAL JUDGMENT OF BARAGWANATH JSolicitors: Sinisa Law, Auckland for Plaintiff The Professional Conduct Committee of the Medical Council of New Zealand, Wellington Thomas Dewar Sziranyi Letts, Wellington for Health Practitioners Disciplinary Tribunal Buddle Findlay, Wellington for Medical Council of New Zealand Counsel: C R Carruthers QC, Auckland P Webb, Auckland M K MacNab, AucklandCIV-2007-404-1811 (2)BETWEEN RHYS MICHAEL CULLEN, MEDICAL PRACTITIONER OF AUCKLAND Plaintiff AND HEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL First Defendant AND PROFESSIONAL CONDUCT COMMITTEE OF THE MEDICAL COUNCIL OF NEW ZEALAND Second DefendantCIV-2007-404-2898 (3)BETWEEN RHYS MICHAEL CULLEN, MEDICAL PRACTITIONER OF AUCKLAND Plaintiff AND THE MEDICAL COUNCIL OF NEW ZEALAND RespondentCIV-2007-404-2899 (4)BETWEEN RHYS MICHAEL CULLEN, MEDICAL PRACTITIONER OF AUCKLAND Plaintiff AND PROFESSIONAL CONDUCT COMMITTEE OF THE MEDICAL COUNCIL OF NEW ZEALAND Respondent[1] On 27 March 2007 on the application of the Professional Conduct Committee the Tribunal by telephone conference made an ex parte order suspending Dr Cullen from practice. On 4 April 2007 he was served with an order suspending his licence for practice. Under s 93 of the Health Practitioners Competence Assurance Act 2003 on 17 April 2007 the Medical Council made an order for interim suspension of his practising certificate under s 69. In response on 18 May 2007 Dr Cullen served a series of five proceedings. These were: a) A statutory notice of appeal filed in the Wellington Registry of this Court challenging the decision of the Tribunal. While the proceeding named only the Professional Conduct Committee as respondent there should also be named as decision maker the Health Practitioners Disciplinary Tribunal and its name will be added. b) The second proceeding is an application for judicial review by Dr Cullen as plaintiff against the Tribunal as first defendant and Professional Conduct Committee as second defendants. c) The third proceeding is at common law seeking certiorari and prohibition against the Medical Council of New Zealand. d) The fourth proceeding is again at common law by Dr Cullen against the Professional Conduct Committee as respondent. e) There is a fifth proceeding by way of statutory appeal under s 161 of the Act filed in the District Court at Wellington citing Dr Cullen as appellant and the Medical Council as respondent. [2] The statutory bodies, the Professional Conduct Committee, the Medical Council and the Tribunal, are specified by ss 71, 114(1) and 84 of the Act. The Professional Conduct Committee was described by its counsel, Mr Carruthers QC, as effectively that of policemen which serve the function of investigator and protagonist before both the Medical Council and the Tribunal. The Medical Council's role is tomaintain close contact with practitioners issuing what may be described by analogy as an annual warrant of fitness to practitioners. It has the task of intervening in the event of urgent need where professional competence is suspected of being at risk. The Tribunal issues and may suspend or withdraw a practitioner's registration. The analogy is with a motor vehicle's registration. [3] The practitioner having lost first his certificate to practice and then his registration, in each case on a temporary basis, seeks relief from this Court. The Act by s 106 provides for a statutory appeal both to this Court under subsection (2) and to the District Court under subsection (1). By r 107(1) of the High Court Rules and its equivalent in the District Court the statutory appeals must be filed in the Wellington Registry and that was done. The proceedings for review have all been filed in the Auckland Registry of this Court. The issues discussed this afternoon concern the inter-relation among these various pieces of litigation, the appropriate forum and what timetable should be put in place. [4] I am satisfied that the primary claim is the statutory appeal to this Court. In Miller v Commissioner of Inland Revenue [2001] 3 NZLR 316 Lord Hoffmann at 18 described the relationship between statutory appeals and concurrent proceedings for judicial review which it is unnecessary for me to elaborate. Focusing on the statutory appeal to this Court there is an issue whether, despite the filing of that proceeding in Wellington, there should be change of venue under r 479 to Auckland. The principles were discussed by Rodney Hansen J in Commerce Commission v Cards NZ Ltd HC WN CIV-2006-485-2535 5 April 2007 in considering the application of r 479(1)(b):479 Change of venue(1) Notwithstanding the provisions of rule 123 specifying, in respect of any proceeding, the place where the proceeding is to be tried, where— (b) It appears to the Court that the proceeding can be more conveniently or more fairly tried at any other place where sittings are held[5] The pointers in favour of Wellington are the statutory presence of the Tribunal and the fact that Mr Carruthers for the Committee and Mr Coates for the Medical Council practise in Wellington. The pointers in favour of Auckland are that the practitioner, his counsel Messrs Little SC and Webb and Ms MacNab practise here. Ms MacNab has emphasised that the Tribunal is indifferent to where the proceeding should be heard and she abides the Court's decision on this and other matters. [6] Given the nature of the interlocutory and ultimate stages of the statutory appeal and indeed the applications for review there is little in terms of advantage either way since the proceedings will be determined on the papers. But this case involves a Papakura practitioner and, I gather, a good deal of publicity about allegations that his prescriptions for pseudoephedrine tablets in large quantities have attracted a good deal of public attention. In accordance with the basic tenet that justice should where practicable be done in the area of the community concerned I have decided that the appeal as well as the applications for review should be determined in Auckland and the Wellington intituling of the appeal should be altered accordingly. [7] That does not deal with the District Court appeal. I am satisfied that there is such overlap between the matters in issue in that appeal and the litigation with which this Court is seized that it should not receive a fixture in the District Court unless and until this Court gives a direction to the contrary. In the meantime I would respectfully invite the District Court to treat that litigation as effectively stayed. [8] Ultimately it is likely that the statutory appeal will determine the fate of Dr Cullen's career. It may be unnecessary for the proceedings against the Medical Council to be brought to substantive hearing. But that question is for the future. There is pending a substantive hearing before the Tribunal in September. What matters at this stage is Dr Cullen's application for interlocutory relief against both the Tribunal and the Council's interim orders. He cannot resume practice and maintain the flow of funding from the Counties Manukau District Health Board without an order of this Court that would effectively reinstate him, at least on an interim basis pending the substantive hearing. So it is necessary to timetableDr Cullen's application for interim relief in proceedings no. 1, 2, 3 and 4. Among them they cover the whole of the relief sought against all the relevant parties. I have said that the predominant proceeding is no. 1. The next in significance in my view is no. 2 which is an application for judicial review. I regard proceedings 3 and 4 being common law proceedings as fallbacks to 2 and to 1. [9] Mr Webb has invited consolidation of all proceedings. Consolidation has more than one sense. It is certainly appropriate for there to be a conjoint hearing of the interlocutory stages of the four proceedings and I so direct, but it may prove that a different order is appropriate in relation to the substantive ultimate case. I recognise that while proceeding no. 1 will remain predominant Mr Coates has signalled that there may be transactions other than those the subject of an appeal on which the Medical Council relies and to deal with those it may be necessary to keep the applications for review in play. This will be a matter for consideration at a later stage. [10] Counsel to confer as to timetable and file a memorandum or memoranda within three days. [11] Counsel to confer with the Registrar to arrange the earliest convenient two day fixture following expiration of the timetable. [12] The hearing has lasted until 4.50 pm. ___________________________ W D Baragwanath J