GIBSON V COMPLAINTS ASSESSMENT COMMITTEE HC AK CIV 2005-404-007353

GIBSON V COMPLAINTS ASSESSMENT COMMITTEE HC AK CIV 2005-404-007353 15 December 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2005-404-007353 CIV 2005-404-007355UNDER the Dental Act 1988 IN THE MATTER OF an appeal against the decisions of the Dentists Disciplinary Tribunal of 23 February 2005 (substantive decision) and 16 September 2005 (decision on penalty) in relation to John Frye and Alison Frye AND IN THE MATTER OF of an appeal against the decision of the Dentists Disciplinary Tribunal of 23 February 2005 (substantive decision) and 16 September 2005 (decision on penalty) in relation to Kenneth W Blunt BETWEEN NEVILLE JAMES GIBSON Appellant AND COMPLAINTS ASSESSMENT COMMITTEE Respondent Hearing: 13 October 2006 Appearances: GG McKay for Appellant HJP Wilson for Respondent Judgment: 15 December 2006JUDGMENT OF COOPER JThis judgment was delivered by Justice Cooper on 15 December 2006 at 12.30 p.m., pursuant to r 540(4) of the High Court Rules Registrar/Deputy Registrar Date: Solicitors: McKay Hill, PO Box 1143, Napier Kensington Swan, PO Box 10246, The Terrace, Wellington D'Ath Partners, PO Box 10 781, Wellington Copy to: MF McClelland, PO Box 10242, Wellington.[1] The appellant seeks leave to file amended notices of appeal.Procedural background[2] Acting for himself, the appellant filed two notices of appeal against four determinations of the Dentists Disciplinary Tribunal ("the Tribunal"), made on 23 February and 16 September 2005 under the Dental Act 1988. [3] In each case, the appeals challenge two decisions: a) Made on 23 February 2005. On that day, the Tribunal determined the substantive complaints that have been made against Mr Gibson by a former patient, Mr Blunt, and Mr and Mrs Frye. b) Made on 16 September 2005 in which the Tribunal made orders for penalty and costs against Mr Gibson. [4] The appeals have had an unnecessarily protracted interlocutory history. At least part of that appears attributable to the fact that Mr Gibson, although asserting from time to time that he has been receiving legal advice, has in fact been acting for himself. The interlocutory procedures have been characterised by a failure on his part to focus on what is relevant and fundamentally, I think, a failure to understand the nature of the appeal process. Axiomatically, the purpose of an appeal is to demonstrate and correct error in the decisions under appeal; it is not an occasion for general critical commentary against the actions of a decision maker. [5] The appeals had a first case management conference before Winkelmann J on 22 February 2006. She made various procedural directions including directions as to the content of the agreed bundle, as to the exchange of submissions and as to the allocation of a fixture. The latter direction was that two days should be allowed for a fixture to be allocated after 17 April 2006.[6] In a minute that she issued on 11 May 2006, Winkelmann J noted that the appellant had failed to comply with the time-table orders that she had made on 22 February. She directed that the matter be listed again before her on 18 May. In a minute issued on 18 May, Winkelmann J further recorded that a Mr Hollyman had appeared on "last minute" instructions from McKay Hill in Napier. She referred to a notice of change of representation that had been filed making reference to that firm. The minute referred to a discussion that had taken place about legal aid and a delay on Mr Gibson's part in making an application for aid. In the result, the Judge made an amended time-table order. She mentioned, but did not resolve, an issue that had been raised by Mr Gibson as to the Tribunal's alleged failure to provide documentation which he claimed was necessary for his appeal against the costs order. She directed that a two day fixture be allocated on the first available date after 1 August 2006. [7] On 6 July 2006, Mr Gibson filed a memorandum seeking an extension of the time limited for filing his submissions, which were due the following day. The extension was sought for a further five days. This was to enable his submissions to benefit from "appropriate legal input into the submissions to be filed". Counsel for the respondent challenged the proffered grounds for seeking the extension, maintaining that the appellant was in fact self-represented. Winkelmann J, however, referred to the notice of change of representation that had been earlier filed and granted the extension until 5.00 p.m. on Friday 21 July. She directed that the matter be listed in the Appeals Conference List on 27 July, so that the issue of security for costs (delayed pending resolution of Mr Gibson's legal aid application) could be revisited. [8] Winkelmann J issued a further minute on 28 July 2006. She recorded that Mr Gibson had again appeared in person, indicating that his solicitor had been unable to appear. By this stage Mr Gibson had filed an application for discovery and an application for leave to adduce further evidence. Noting that both applications were opposed, Winkelmann J set them down for hearing for half a day on 28 August 2006. She made directions in relation to the filing and service of submissions in advance of that hearing.[9] She confirmed a fixture for the substantive appeal for two days, commencing on 7 October 2006. In the course of doing so, however, she noted that Mr Gibson had indicated that he intended to seek the consent of the respondent to the amendment of his notice of appeal. She indicated that that issue would have to be raised again before her if the respondent opposed the application. [10] She then referred to the fact that the issue of legal aid was still outstanding. She ordered Mr Gibson to file an affidavit attesting to the filing of his application and as to its present status. That affidavit was to be filed and served by 5.00 p.m. on 28 July. A brief affidavit was filed accordingly. It confirmed that an application for legal aid had been filed, but did not indicate when that had been done. [11] The fixture for 28 August 2006 to deal with the applications for discovery and for leave to adduce further evidence did not proceed on 28 August 2006. It is unclear from the file why that was the case. Nevertheless, the matter came on for hearing before Randerson J on 11 September 2006. In a judgment that he delivered on 15 September 2006 he noted that: a) The appellant was seeking to obtain from the respondent bills of cost which supported a schedule of costs upon which the Tribunal had based its decision, as well as a narration to each bill of costs and the time cost records relating to each bill. b) The application was premature because it was plain on the form of the current appeals that the documents sought were not relevant. c) The documents might become relevant if the appellant was granted leave to amend the notice of appeal to include a challenge to the reasonableness of the fees upon which the costs order was based. [12] Randerson J noted that the appellant had in fact recently filed amended notices of appeal, in which the reasonableness of the fees charged was challenged. However, he had not sought the leave of the Court to do so and acknowledged thatthat was required under Rule 709. Mr Gibson undertook to file the necessary application and that application was the subject of the present judgment. [13] Randerson J ordered (in effect, by consent) that the respondent provide to Mr Gibson within seven days of the date of the judgment: a) The bills of cost sought. b) The narrations supporting those bills of costs. c) Particulars of the hours spent over the period covered by each bill of costs; the rates normally charged; and the rates actually charged for each bill. [14] He also granted leave to the appellant pursuant to Rule 716(2) to adduce further evidence on appeal by the production of any documents and information that were provided by the respondent pursuant to his order. He directed that that further evidence was to be produced in the form of an affidavit filed and served by the appellant not later than seven days after he received the relevant documents and information. [15] It is not clear on the basis of the material available to me whether or not the respondent complied with Randerson J's order. I note, however, that the affidavit that Mr Gibson was required to file, has not been filed. In the meantime the fixture for the substantial appeal had become imminent. Mr Gibson sought an adjournment of that fixture so as to enable him to have the assistance of competent legal counsel at the hearing, on the basis that he had filed an application for legal aid but a decision had yet to be made, and other matters. The adjournment was not opposed and the fixture was vacated by Venning J on 29 September 2006. [16] Before leaving this history of the events to this point, I note that in the affidavit that he filed pursuant to Winkelmann J's direction dealing with the question of legal aid, Mr Gibson confirmed that McKay Hill had filed an application on his behalf. He indicated that the Legal Services Agency was awaiting furtherinformation from McKay Hill so as to enable the claim to be progressed. He said that it was anticipated that those matters would be dealt with "early next week". His affidavit was sworn on 27 July 2006. When the current application came on for hearing before me on 13 October 2006, Mr Gibson's application for legal aid had still not been resolved. Mr McKay, who appeared for the appellant, indicated that he thought that he had provided all of the information that the Legal Services Agency had requested, and told the Court that he had done so progressively up until a period about two weeks earlier. [17] In the result, little progress has been made towards resolution of the appeals. Security for costs has not been fixed. The legal aid issue apparently remains unresolved.Preliminary issue[18] As I have already recorded, the amended notices of appeal had already been filed by the time of the hearing before Randerson J on 11 September 2006. The application for leave to file the amended notices was not made until 22 September. In the meantime, Mr Gibson had filed two further documents on 24 August 2006. They were called in each case "Supplementary Amended Notice of Appeal" and they sought to appeal decisions made by the Dentist Board (which is a committee of the Dental Council of New Zealand) not to grant the appellant an annual practising certificate. [19] Mr McClelland and Mr Wilson, counsel for the respondent, filed a memorandum on 28 August 2006 pointing out that decisions to grant or decline annual practising certificates made under s 28 of the Health Practitioners Competence Assurance Act 2003 are only appealable to the District Court. The Dental Council of New Zealand, and its delegate, the Dentist Board are, of course, not respondents to this appeal. Neither the Board nor the Council is a party to it. Apart from those considerations, the appeals would in each case be out of time by a substantial period.[20] Mr McKay accepted that the documents had not been properly filed and could offer no opposition to a proposal that I strike them out. Accordingly, I direct that the two documents filed on 24 August 2006 and described as "Supplementary Amended Notice of Appeal to the High Court", being purported appeals to this Court, are struck out.The present application[21] The present application seeks to amend the existing notices of appeal. It is common ground that many of the amendments sought are not significant and would not give rise to any prejudice against the respondent if allowed. The respondent opposes their inclusion only on the basis that they are largely unnecessary, being more in the nature of submissions than proper pleadings in a notice of appeal, but it concedes that they do not alter the substance of the appeals. [22] Objection is, however, taken to substantial additions in parts 4, 5 and 8 of the amended notices. [23] Part 4 would be entirely new. It consists of a series of allegations under the heading "Delay Occasioned by the Conduct of the Respondent". The principal allegation under that heading is that the Tribunal had been wrong:Not to credit the appellant for delay occasioned by the respondent in the pre- hearing steps in the proceeding and was consequently biased and unfair to the appellant when considering penalty and costs.[24] There are then set out, in sub-paragraphs (a) to (i), particulars of the delays relied on. [25] Insofar as Part 5 is concerned, it again is entirely new. It is under a heading "Delay Occasioned by DDT". There are three paragraphs in which it is alleged first, that delay by the Tribunal in delivering its substantive decision and its subsequent decision on penalty and costs had prejudiced the appellant in his ability to recommence dental practice, secondly, that the grounds on which the Tribunal had relied to delay its decision on penalty were wrong, and finally, that the delay by theTribunal had prejudiced the appellant in relation to his obtaining an annual practising certificate and unfairly added additional time to the time upon which he was required to be away from his active professional practice. [26] The other amendments that were opposed by the respondent were amendments to Part 8. Once again the amendments are substantial and assert, amongst other things, that delays in releasing the substantive decisions and subsequently the penalty decisions had contributed to the appellant being unfairly kept from professional practice and had effectively increased the suspension penalty time by ten months. Other proposed additions might fairly be described as variations on that theme. There is mention also of matters already raised, in a slightly different way, in Parts 4 and 5 as well as specifically new and discreet matters. Then, under the heading "costs", the arguments are presented to which the documents that were sought before Randerson J are relevant. For example, there is an allegation that:There is no evidence that the DDT even received all of the bills of costs from the prosecution/solicitors and counsel for the CAC or that they were verified by the DDT as to their reasonableness before ordering the appellant to substantially contribute toward the total cost of the hearing. It was wrong for the DDT to order costs against the appellant in these circumstances.[27] For Mr Gibson, Mr McKay, initially sought to argue that all that the appellant was seeking to do by means of the proposed amendments was to give further particulars of a pleading that appeared at paragraph 5.6 in each of the original notices of appeal, namely:The Tribunal has not taken into account the role of the Respondent in the costs that were incurred.[28] However, that proposition was quickly abandoned and Mr McKay was left to argue that the amendments should be allowed because there would be no prejudice to the respondent, and it would be unfair if the appellant were not able to air the matters that he now sought to raise. [29] For the respondent, Mr Wilson submitted that the proposed additions represented by Parts 4, 5 and 8 of the amended notices of appeal raised matters that were virtually all completely new and not previously advanced either in the original notices of appeal or at the hearings before the Tribunal. He contended that Part 5 didnot raise relevant issues, being confined to allegations of prejudice to the appellant resulting from the delay between the hearing and the decision on penalty. Insofar as the part of Part 8 that referred to difficulties that the appellant had encountered since his suspension in obtaining a new annual practising certificate was concerned, Mr Wilson again submitted that the issues raised were irrelevant. Insofar as the second part of Part 8 was concerned, where the appellant raised arguments as to the reasonableness of the costs that he had been required to pay, Mr Wilson pointed out that that was an issue that could have been raised in the appeal as originally lodged, but was not. Given the significant amount of time that had elapsed since the appeal was filed and the various failures on the part of the appellant evident through out the interlocutory procedures, Mr Wilson submitted that the Court should be reluctant to grant any indulgence to the appellant at this point. [30] Rule 709(4) of the High Court Rules provides that an appellant may, with the leave of the Court, amend a notice of appeal. Mr Wilson relied on authorities concerning the amendment of appeals prior to the Rule assuming its current form which suggested that in considering whether to allow amendment the Court would inquire whether it was sought to particularise existing grounds or to raise matters not previously raised. In Comalco New Zealand Ltd v TVNZ Ltd (1996) 10 PRNZ 573 the High Court declined to grant leave when to do so would add to the appeal new matters of substance. Mr Wilson referred also to Yates v Nursing Counsel of NZ(HC WN, AP56/88, 19 March 1990, Greig J) which took a similar approach and pointed out that there was no express power to extend the time for appealing. Mr Wilson argued that that decision was authority for the proposition that where it was sought to amend an appeal by adding new grounds the Court should apply by analogy the principles that would normally be applied to considering whether or not leave should be granted to allow an appeal to be filed out of time. He referred in this respect to Rule 704(4) and the decision in CIR v Dick (2000) 14 PRNZ 378. [31] He also submitted that there would be substantial prejudice to the respondent as a result of leave being granted. He referred to the fact that the appellant had indicated that he had been unable to meet any award of costs (in fact, one of the foundations of the appeal) and maintained that to allow the amendments would belikely to greatly increase the time needed for the hearing and therefore, the costs of the respondent. [32] Rule 709(4) assumed its current form on 24 November 2003, as a result of the High Court Amendment Rules 2003. Unlike its predecessors, it now allows the appellant, subject to the Court's leave, to amend a notice of appeal. Previously, the relevant rule was Rule 706(2). That rule provided that "the grounds of the appeal may be amended by leave of the Court" (my emphasis). Rule 709(4) is different, by virtue of its conferral of the right to amend on the appellant, and by its extension of the right to the notice of appeal generally. Cases such as those on which Mr Wilson relied need now to be treated with caution. In particular, given the open language now used, it does not seem to me appropriate to distinguish between an amendment to a notice of appeal which particularises an existing ground, and one which would add a new ground. Both kinds of amendment are plainly within Rule 709(2). Any restriction thought to arise out of the wording of the previous rule is no longer justified. [33] It seems to me that the question whether leave should be granted to amend a notice of appeal should now simply be approached on the basis of an inquiry into what course will best promote the interests of justice. Prejudice to a respondent may very well be a relevant consideration and in an appropriate case that would embrace such matters as timeliness and the imminence of any hearing date as well as significant delays in the conduct of the appeal attributable to the actions of the appellant. But that can only be one consideration. Also relevant will be whether the amendments proposed are necessary or desirable to ensure that the appeal operates as an appropriate vehicle to resolve errors that arguably and genuinely arise in respect of the decisions that are impugned. Ultimately, the question that will need to be answered is whether the interests of justice would be better served by granting the amendment or declining it. [34] In the present case, I do not consider that what is sought to be pursued by means of the new Part 5 of the appeals could properly be said to raise a genuine issue in relation to the decisions that are subject to the appeal. I think the same can be said in relation to the first part of the proposed new Part 8. I would have reached thesame conclusion in relation to the proposed new Part 9 which appears to me in any event to consist largely of submissions, but I note that the respondent did not address me in opposition to that part of the application. [35] The proposed Part 4 is, I accept, marginally relevant and the same applies in respect of the second part of the proposed new Part 8 of the appeals. It is there that Mr Gibson seeks to challenge directly the reasonableness of the level of costs awarded. Insofar as that needs a further evidentiary basis, the issue has already been dealt with by Randerson J and to allow that part of the proposed amendments to proceed would not as I see it, cause any prejudice to the respondent. [36] I accept that it is possible that the decision to allow the amendments will lengthen the time necessary for the hearing. However, given the nature of the respondent's jurisdiction and its importance both for the appellant and the public interest I would not regard any prejudice that may arise to the respondent for that reason as significant enough to require the present application to be declined. Further, the delays that have occurred to date, and which are largely attributable to the appellant, are not such as have resulted in prejudice to the respondent in relation to the conduct of the appeal, and no hearing date is now imminent. [37] In the circumstances I propose to allow the application, but only in part. I direct that the appellant may file amended notices of appeal incorporating: a) The proposed changes to Parts 1 to 4, 6, 7 and 9 of the notices. b) Proposed paragraphs 8.16 to 8.27 (the appeal concerning the Blunt matter) and paragraphs 8.15 to 8.26 (the Frye matter). [38] The appellant should forthwith file amended notices of appeal in the form so authorised. [39] So far as I can tell, the matter should then be ready for hearing. Mr Wilson suggested at the hearing that if the application was granted a longer hearing would be necessary than the two days previously envisaged. I am not convinced that thismatter ought to take any longer than two days, but to avoid any difficulties in that respect I direct that the Registrar should set the matter down for three days. A fixture should be allocated as soon as convenient in the new year. [40] I reserve questions of costs to be dealt with as part of the substantive determination of the appeals. If the respondent wishes to pursue the issue of security for costs it should file an appropriate application.