GIBSON V COMPLAINTS ASSESSMENT COMMITTEE HC AK CIV 2005-404-7353

GIBSON V COMPLAINTS ASSESSMENT COMMITTEE HC AK CIV 2005-404-7353 15 September 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2005-404-7353 CIV 2005-404-7355BETWEEN NEVILLE JAMES GIBSON Appellant AND COMPLAINTS ASSESSMENT COMMITTEE Respondent Hearing: 11 September 2006 Appearances: Appellant in Person M F McClelland and H J P Wilson for Respondent Judgment: 15 September 2006RESERVED JUDGMENT OF RANDERSON JThis judgment was delivered by me on 15 September 2006 at 10 am, pursuant to r 540(4) of the High Court Rules Registrar/Deputy Registrar Solicitors: Kensington Swan, PO Box 10246, The Terrace, Wellington Counsel: M F McClelland, PO Box 10242, Wellington Copy to: N J Gibson, C/- Ocean Reef Trust, PO Box 11-679, Ellerslie, AucklandIntroduction[1] The appellant has two appeals pending against decisions of the Dentists Disciplinary Tribunal under the Dental Act 1988. Those appeals are set down for a hearing commencing in this Court on 7 October 2006. [2] In part, the appeals relate to orders for costs made by the Tribunal. The notices of appeal originally filed did not challenge the reasonableness of the fees charged by solicitors and counsel upon which the costs orders were based. However, the appellant has recently filed amended notices of appeal in which the reasonableness of the fees is challenged. He acknowledges that r 709 requires him to obtain the leave of the Court to file an amended notice of appeal. He has not filed any application for leave but has now undertaken to do so. [3] The appellant has filed two related applications. One is for leave to adduce further evidence on appeal and the other seeks an order for further and better discovery. The appellant seeks to obtain from the respondent the bills of cost which support a schedule of costs upon which the Tribunal based its decision. As well, he seeks every narration to each bill of costs and the time cost records relating to each bill. During the hearing, he clarified that his only concern is with the bills of costs and other costing records which relate to the bills presented by Kensington Swan solicitors and counsel instructed, Mr McClelland. [4] The respondent advises through counsel that it is willing to provide: a) The bills of cost sought. b) The narrations supporting those bills of cost. 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. [5] The respondent resists any further documents or particulars on the grounds that they are not relevant to any matter currently at issue in the appeal; the reasonableness of the costs was not challenged before the Tribunal; the material isnot fresh for the purposes of the authorities dealing with adducing further evidence on appeal; and any further disclosure is not necessary.Jurisdiction[6] I raised with the appellant and counsel for the respondent whether this Court had jurisdiction on an appeal under Part 10 High Court Rules to order discovery. That question was not dealt with in written submissions but I heard oral argument on the matter. [7] The appeal is brought under s 64 Dental Act 1988. That Act has since been repealed by the Health Practitioners Competence Assurance Act 2003 but there is no issue that the 1988 Act continues in force for the purpose of disposing of the appeal: s 216 of the 2003 Act. [8] An appeal under the 1988 Act proceeds by way of rehearing under r 718 High Court Rules. In terms of s 64(3) of the 1988 Act, this Court may confirm, reverse or modify the decision of the Tribunal. It may also refer the matter back to the Tribunal in accordance with rules of court or may give any decision that the Tribunal could have given. [9] The principles usually adopted on appeals under the Dental Act were summarised in a decision of mine: Patel v The Dentists' Disciplinary Tribunal HC AK AP77/02 8 October 2002 at [21] and [22]. It should be noted that r 718 and other provisions of the High Court Rules relevant to appeals have been amended since that time and a new r 718A inserted. The powers of this Court on appeal under r 718A, like all of the provisions in Part 10 High Court Rules, are subject to any express provision in the enactment under which the appeal is brought: r 701(3). [10] There is nothing in the 1988 Act or in Part 10 which would permit a Court to make an order for discovery in an appeal under that part. But Part 10 is not intended to be an exclusive code for dealing with appeals falling within its provisions (although no doubt any special provisions contained in Part 10 would normally prevail over more general provisions elsewhere in the Rules as a matter of ordinaryconstruction). There are a number of other provisions in the Rules which are actually or potentially relevant to appeals under Part 10. An example of another provision in the Rules dealing with appeals is r 426(2)(a)(iv) which provides that, subject to any Court direction to the contrary, an appeal under Part 10 of the Rules is a proceeding on the swift track for case management purposes. [11] Rule 427 deals with the convening of case management conferences. The Court may, amongst other things, give directions as to the conduct of the proceeding under r 425 or, if practicable, make other interlocutory orders. [12] Case management conferences for appeals must be held under r 430. Subject to any direction to the contrary, the standard directions in schedule 6 to the Rules apply: r 430(6). In any case management conference under r 430, the Judge has wide powers under sub-rule (7) to give directions including directions:(e) On any other matter for the purposes of best securing the just, speedy and inexpensive determination of the appeal.[13] Rules 293 et seq relate to discovery. In a swift track proceeding, the Court may make a discovery order under r 294(3) but, it appears, only if a case management conference is held for the proceeding and a party sets out in a memorandum under r 429 why the order is sought. However, r 429 does not apply to appeals: r 429(1). So there is no jurisdiction to order general discovery on an appeal under r 293. But particular discovery may be ordered under r 300 at any stage of the proceeding if "there are grounds for believing that a party has not discovered one or more documents or a group of documents that should have been discovered ". The Court may not make an order under this rule unless satisfied that the order is necessary at the time when the order is made: r 300(2). [14] I am satisfied having reviewed the relevant rules that this Court does have jurisdiction to order particular discovery on an appeal under Part 10 of the Rules either under r 300 or under r 430(7)(e). The Court of Appeal had occasion to consider the powers of the High Court to order discovery on appeal in Comalco New Zealand Ltd v Broadcasting Standards Authority (1995) 9 PRNZ 153 at 158-162. While it is important to note that the relevant Rules have been extensively modifiedsince the Comalco case, in my view the decision is still good authority for the proposition that an appeal is a "proceeding" for the purposes of the High Court Rules, in the absence of any specific rule to the contrary. [15] The Court of Appeal in Comalco did not find it necessary to decide whether r 300 applied in proceedings by way of appeal because it found that the High Court had power under the Broadcasting Act 1989 and the Commissions of Inquiry Act 1908 which, in combination, gave the High Court jurisdiction to exercise any of the powers of the Broadcasting Standards Authority itself. (I note here that under s 63 of the 1988 Act, the Tribunal has certain of the powers available to commissions of inquiry but there is nothing in the 1988 Act or the High Court Rules providing the same powers to the High Court on appeal). [16] However, in dealing with the possible application of r 300, the Court of Appeal in Comalco stated at [160]:It would be surprising if the rule were intended, as by a side wind, to expand the availability of discovery to classes of proceeding where it had never previously been available and where there was no apparent need for it. So far as appeals are concerned, the proper time for discovery is while the case is before the lower Court. If discovery is appropriate in relation to matters before a tribunal, one would expect to find provision for it in the legislation setting up the tribunal. The Broadcasting Act does not provide for discovery as such, but the Authority is given power to require documents to be produced, and the parties can ask it to exercise those powers.[17] While I have found that there is jurisdiction on an appeal under Part 10 of the Rules to order particular discovery under r 300 or r 430(7)(e), the observations of the Court of Appeal in Comalco support the proposition that this Court should be slow to exercise its discretion other than in special circumstances. First, this Court would need to be satisfied that the documents sought were relevant to an issue to be determined in the appeal. Secondly, the applicant would be required to demonstrate that the documents sought were necessary to dispose of the appeal. Thirdly, in exercising its discretion, the Court would have regard to considerations such as whether the applicant had the opportunity to seek disclosure of the documents in the Tribunal appealed from and whether the applicant had exercised or sought to exercise those rights; whether, if discovery were granted, the Court would be likely to allow the documents to be introduced as further evidence on appeal bearing inmind the strictures of r 716(2) and (3) which provide that leave to adduce evidence on appeal may only be granted for "special reasons"; and the overall justice of the case.This Case[18] There are a number of hurdles for the appellant to overcome in this case. First, as matters stand, it is clear that the documents sought are not relevant to an issue on appeal. They may become relevant if the appellant is granted leave to amend his notice of appeal to include a challenge to the reasonableness of the fees upon which the costs order was based. Secondly, given the material which the respondent has agreed to supply, it is difficult to see how any further material could reasonably be necessary to determine the issues on appeal even if leave is granted to expand the grounds of appeal. Thirdly, the appellant's counsel at the time of the hearing before the Tribunal did not challenge the reasonableness of the fees and did not seek the further documents which the appellant now seeks to have disclosed. That was so even though it appears, according to counsel for the respondent, that at least some of the relevant bills of costs were made available to the appellant's counsel prior to the hearing. [19] Mr McClelland advised the Court that the documents and information detailed in [4] above could be provided within seven days. Accordingly, I order that the respondent shall provide to the appellant within seven days of the date of this judgment: a) The bills of cost sought. b) The narrations supporting those bills of cost. 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. [20] Since there is no specific opposition by the respondent, I also grant leave to the appellant pursuant to r 716(2) to adduce further evidence on appeal by the production of any documents and information provided pursuant to the order in [19].The further evidence is to be provided in the form of an affidavit which is to be filed and served not later than seven days after the documents and information pursuant to the order in [19] are received. [21] I also direct that: a) The appellant is to file and serve within seven days of the date of this decision, an application for leave to amend the original notice of appeal together with a supporting affidavit explaining the reasons for the application for leave. b) The application for leave to amend the notice of appeal be dealt with before the Judge presiding at the hearing on 2 October. c) The respondent have available the time cost records supporting the disputed fees so that they can be made available to the Court and the appellant if directed at the hearing. [22] I also record the appellant's advice that he expects to have legal counsel available at the time of the hearing and that Mr McClelland has expressed some concern that the hearing may occupy more than the two days allocated. That may depend upon whether the appellant has counsel available but, at this stage, the Registrar should ensure that two to three days are available for the hearing if necessary. [23] The costs in relation to the current applications before me are reserved. ______________________________ A P Randerson, J Chief High Court Judge