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

GIBSON V COMPLAINTS ASSESSMENT HC AK CIV 2005-404-007353 17 April 2008IN 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 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: 5 February 2008 Counsel: Appellant in person M F McClelland and H J P Wilson for Respondent Judgment: 17 April 2008 at 11:30amJUDGMENT OF WILLIAMS JThis judgment was delivered by Hon. Justice Williams on17 April 2008 at 11:30ampursuant to R 540(4) of the High Court Rules..Registrar/Deputy Registrar Date: ...A. The Court has jurisdiction to grant leave to the appellant to appeal to the Court of Appeal against Cooper J's decision of 15 December 2006 refusing him leave to include his proposed Parts 5 and 8 in his amended notices of appeal but leave is refused. B. Costs are to be reserved as in paragraph [36] of this judgment._______________________________________________________________________TABLE OF CONTENTS Paragraph Issue and Procedural [1] Submissions [11] Discussion and Decision [22] Costs [36]____________________________________________________________________Issue and Procedural[1] On 23 February and 16 September 2005, the Dentists' Disciplinary Tribunal issued substantive and penalty decisions against the proposed appellant, Mr Gibson, in relation to complaints made by former patients. In its later decision, the Tribunal ordered Mr Gibson to pay penalties and costs. Some of the matters in issue stretch back as far as 1999. [2] On 22 December 2005, Mr Gibson appealed to this Court against the Tribunal decisions. Those appeals are yet to be heard. Although there was a fixture allocated in this Court for three days beginning on 11 February 2008 as part of the application for leave to appeal to the Court of Appeal with which this judgment principally deals, that fixture had to be vacated since it was accepted by all parties that, were leave granted, the Court of Appeal could not have dealt with the matter prior to the fixture date and, were leave refused, Mr Gibson was virtually certain to appeal to the Court of Appeal against that refusal.[3] The appeals have had a protracted interlocutory history. It is unnecessary to recount the detail save to note that the file has been the subject of numerous conferences and directions by various judges endeavouring to clear the path to their hearing. [4] One of the interlocutory applications is, however, germane. Without seeking leave, Mr Gibson filed amended notices of appeal in this Court on 14 August 2006 and filed supplementary amended notices of appeal on 24 August. All are substantial documents: the amended notices each run to over 40 pages and the supplementary documents are each five pages in extent. [5] An application for leave to amend the notices of appeal was heard by Cooper J on 13 October 2006 and, in a reserved decision delivered on 15 December that year, that Judge allowed the application in part. Since the balance of the application is the subject of the application for leave to appeal to the Court of Appeal with which this judgment deals, it will be necessary to return to the detail in due course. [6] Without opposition from Mr Gibson, Cooper J struck out the supplementary amended notices of appeal in his judgment on the basis that they sought to appeal decisions made by the Dentist Board not to grant Mr Gibson an annual practising certificate and such appeals must be to the District Court under s 28 of the Health Practitioners Competence Assurance Act 2003 (the Act). [7] On delivery of Cooper J's judgment, Mr Gibson filed an appeal in the Court of Appeal. On request for a fixture, the appeals were referred to William Young P who issued a minute on 2 July 2007 querying whether the Court of Appeal then had jurisdiction to entertain the appeals. The President made the point that the s 113(4) of the Act provided the only possible avenue for appeal either in law or in fact. [8] It is convenient to adopt Cooper J's description of the amended notices of appeal:[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 largelyunnecessary, 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 the Tribunal 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 did not 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 throughout the interlocutory procedures, Mr Wilson submitted that the Court should be reluctant to grant any indulgence to the appellant at this point.[9] In the balance of the judgment against which leave to appeal is sought, Cooper J referred to the protracted history of the appeals, to relevant authority on when leave to amend notices of appeal should be granted and concluded:[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.[10] The Judge continued:[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 the same 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).Submissions[11] Mr Gibson's application for leave essentially asserted it was in the interests of justice that he be allowed to appeal Cooper J's judgment to the Court of Appeal because there were errors in the Judge's factual findings, the judgment effectively removed the appellant's legal right to challenge the Tribunal decision directly and there were important issues of law and the High Court Rules to be clarified. Other grounds were of lesser weight.[12] Mr Gibson accepted that the correct approach for applications for leave to bring a second appeal is as set out by the Court of Appeal in Waller v Hider [1998] 1 NZLR 412, 413, where the following appears: the test is well established. The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal: Rutherfurd v Waite [1923] GLR 34; Cuff v Broadlands Finance Ltd [1987] 2 NZLR 343 at pp 346-347. In the latter case the Court also remarked that in the end the guiding principle must be the requirements of justice. Further authorities of this Court are cited inMcGechan on Procedure, para J 67.05. Notwithstanding frequent reminders of the test, applications continue to be made which have little or no prospect of success. Counsel are of course to be commended for making all reasonable efforts to advance the cause of their clients but after a first appeal they must draw back and appraise the state of the case dispassionately, asking whether in truth the disputed matter contains the requisite elements of sufficient importance. The scarce time and resources of the High Court and of this Court are not to be wasted, nor additional expense for an unsuccessful client incurred without realistic hope of benefit. Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.Instances given by the Court of Appeal include whether the "amount at stake is very substantial or the decision reflects seriously on the character or conduct of the would-be appellant". [13] Mr Gibson also acknowledged that appeals against interlocutory decisions such as that of Cooper J are governed by Association of Dispensing Opticians of New Zealand Inc v Opticians Board [2000] 1 NZLR 158, 163 where the Court of Appeal held:[21] In Winstone Pulp International Ltd v Attorney-General (Court of Appeal, Wellington, CA 175/99, 30 August 1999) the Court held that it is not every ruling or direction by a Commercial List Judge which is an appealable decision for the purposes of s 24G of the Judicature Act providing for appeal by leave from "an interlocutory decision of the High Court in respect of any proceeding entered on a commercial list". The judgment noted that the meaning of "decision" necessarily depends on the context in which it is used and that in context it has been held not to includevarious determinations which would constitute decisions in the broadest sense of the word. [22] The Court concluded that broadly speaking interlocutory rulings (to use a neutral word) falls into at least three categories: those that determine or affect the rights or liabilities which are in issue, that is the merits; those that decide the shape of the substantive proceedings; and those ancillary but important rulings on times and procedures. Section 24G, the Court held, cannot sensibly apply to all the myriad of decisions that Commercial List Judges may make. Effective case management and timetabling necessarily involve directions, rulings and other decisions as to times and procedural aspects. In exceptional cases such a decision may affect rights and liabilities. But the adjournment decision in Winstone did not fall into an exceptional category and it followed that in context it was not within the meaning of "decision" in s 24G. Accordingly the Court had no jurisdiction to entertain the application.and concluded:Conclusions: general[34] Clearly s 66 could not be intended to confer jurisdiction to appeal every decision made by the High Court in relation to the proceeding and before delivery of the substantive judgment. As noted in Winstone at para [19] there are numerous rulings which are simply procedural or administrative, not affecting rights or liabilities as such and where the rights immediately in issue will remain for substantive determination. Such rulings may be made in the pretrial case management process or at trial. Next, rulings on matters of evidence and the scope of the hearing arise broadly in two ways: as a pretrial determination of the shape of the hearing and as decisions in the course of the hearing. Decisions in that second situation in the course of the hearing could not sensibly for policy and practical reasons have been intended to be subject to instant appeal before the completion of the hearing. Equally, interlocutory applications which, as pretrial determinations as to pleadings, discovery, evidence and the like, may substantially affect the shape of the hearing, are separate from the trial process and fit squarely and comfortably within s 66. [35] The real difficulty is to resolve in a principled way how to determine what decisions or rulings are sensibly intended to come within the description or judgment, decree or order for the purposes of s 66 and so where and how to draw the line. [36] We are inclined to the view that the broad classification of "decision" suggested in Winstone reflecting as it does similar considerations of the scheme and object of the relevant provisions and underlying policy and sound practice may be a helpful starting point. In that regard rulings made either in the course of the hearing of the proceeding (using that term in a broad sense, including for example an adjournment application), or as part of the trial conduct or management process would not ordinarily be susceptible to interlocutory appeal. On the other hand rulings which have some substantive effect on rights and liabilities in issue would be. [14] Mr Gibson submitted the excluded parts 5 and 8 of his amended notices of appeal affected his rights to challenge the Tribunal's decision in the discharge of its statutory duties, particularly relating to delay which he wished to plead as being caused by the Tribunal, oppressive conditions imposed which he submitted included the penalties imposed including suspension, and the reasonableness of the costs he was required to pay. He detailed those submissions at length. [15] Mr Gibson also submitted there were elements of public interest in re- instating the excluded sections of his amended appeals concerning his legal right to challenge the Tribunal's findings and a number of factual issues which he said affected Cooper J's decision. Again, Mr Gibson elaborated on those submissions at some length, almost to the point of covering the substantive issues arising out of the excluded portions. [16] For the Complaints Assessment Committee, the respondent, Mr McClelland, its leading counsel, submitted that if Mr Gibson wished to challenge the Tribunal's decision on the ground of delay, the proper vehicle was judicial review. [17] He said there were no jurisdictional issues in respect of the appeal as it was clear the transitional provisions of the Act meant the Dental Act 1988 applied to the appeal. There was, however, he submitted, no right in the Dental Act to appeal an interlocutory decision of the High Court and, while accepting the Court of Appeal has a general jurisdiction in civil proceedings to hear and determine appeals from judgment decrees or orders of the High Court (Judicature Act 1908, s 66), Mr Gibson's leave application, he submitted, did not come within s 66 as the matters in Cooper J's decision did not go to the "heart of the proceeding" or affect his substantive rights and liabilities. [18] Relying on Association of Dispensing Opticians, Mr McClelland submitted that decisions affecting the shape of substantive proceedings are only appealable if they affect rights and liabilities of an appellant in a substantive way. Such was not the case in relation to Cooper J's judgment, Mr McClelland submitted, as the issues in the excluded portions were largely matters of fact and were irrelevant to the substantive issues or were largely repetitious of them.[19] The proposed Part 5 was entirely new in raising suggested delay on the part of the Tribunal postponing Mr Gibson's return to dental practice, and Part 8 related to the Tribunal decision as to penalty and costs which again were said to delay Mr Gibson's re-entry to the profession. Exclusion of Parts 5 and 8 did not deprive Mr Gibson of the opportunity of showing the Tribunal was wrong and were irrelevant to that question, particularly given those matters were not in issue at either of the Tribunal hearings. [20] Mr McClelland also submitted the Committee and the complainants would be prejudiced by the further delay if leave were granted in a matter which has now extended nearly 9 years since the complaints were laid and nearly three years since the decisions appealed against. [21] Even if all of that were that not correct, Mr McClelland submitted leave should not be granted since the excluded sections were minor and largely irrelevant to the substantive appeals and the questions of fact raised by the leave application were not matters of public or general importance. He also submitted there was no public interest in these matters being heard by the Court of Appeal given the Dental Act 1988 was repealed by the Act as from 18 September 2004. Mr McClelland submitted that s 64(7) of the Dental Act 1988 did not relate to a interlocutory decision and, properly interpreted, conferred a right of appeal with leave to the Court of Appeal only against decisions of this Court on questions of law relating to a substantive appeal under s 64(1) of that Act. With the substantive decision as yet unheard, no right of appeal to the Court of Appeal had been triggered.Discussion and decision[22] Section 216 of the Act makes clear that Mr Gibson's appeal will be determined under the Dental Act 1988, s 64(7) of which read:(7) The Council, the Board, the Tribunal, or the appellant may, with the leave of the High Court, appeal to the Court of Appeal against any decision on a question of law of the High Court or, if that leave is refused, with the leave of the Court of Appeal.[23] It follows that, if Cooper J's decision was one on a "question of law", there is jurisdiction under s 64(7) to grant leave for Mr Gibson to appeal to the Court of Appeal against Cooper J's judgment. [24] Alternatively, s 66 of the Judicature Act 1908 gives the Court of Appeal jurisdiction to hear appeals from any "judgment, decree or order" of this Court with s 67 making decisions of this Court on appeal from inferior Courts final unless leave to appeal is granted and with that application being required, by subs (2), to be made, first, to this Court and, secondly, if leave is refused, to the Court of Appeal itself. [25] It may be arguable whether Cooper J's decision was one on a "question of law" but, whether the route to appeal is via the Dental Act 1988 and the Act or by way of s 66, the tests to be applied appear to be assimilated and are found in the judgments in Waller and Association of Dispensing Opticians. [26] The appropriate conclusion is that there is jurisdiction to grant Mr Gibson leave to appeal against Cooper J's refusal to permit him to include Parts 5 and 8 in his amended notices of appeal. The question then becomes whether leave should be granted. [27] The question is accordingly whether Mr Gibson can demonstrate that Parts 5 and 8 of his proposed appeals raise questions of law or fact, particularly ones capable of bona fide and serious argument in a case of public or private importance such as to outweigh the cost and delay. The exercise is to consider whether the appeal will clarify the law and determine whether it has earlier been properly construed and applied. Of particular importance in this case, however, is the observation inAssociation of Dispensing Opticians (at 166, para [34]) that "interlocutory applications as to pleadings substantially affect the shape of the hearing" and are therefore within s 66. The question then is whether the excluded sections of Mr Gibson's proposed notices of appeal might have "some substantive effect on rights and liabilities in issue" (Association of Dispensing Opticians at 166, para [36]).[28] Section 5 of Mr Gibson's amended notices of appeal pleads delay on the part of the Tribunal in delivering its decision which caused him prejudice "in his ability to recommence dental practice". [29] That, as noted by Cooper J, was an entirely new issue never previously raised in the lengthy history of these matters. The question of Tribunal delay must be irrelevant to the merits of the complaints and the Tribunal's adjudication on those merits. Even assuming Mr Gibson's plea of prejudice arising from delay may be provable – and if the issue was not before the Tribunal, there is unlikely to be any evidence on the topic – a certain measure of delay is inevitable in Court proceedings in concluding the matter and proceeding to the imposition of penalty. Inevitably, too, the issue of delay generally – whether attributable to Mr Gibson or the Tribunal – will be part of the substantive hearing. Thus granting Mr Gibson leave to appeal against the exclusion of his proposed Part 5 of the amended notices of appeal is superfluous. And finally, Mr McClelland is correct that if Mr Gibson wishes to challenge the lawfulness of the Tribunal's hearings and findings because of delay on its part, the appropriate avenue for him to follow was to issue judicial review proceedings, not to raise that as a previously unheralded issue on appeal. [30] For all those reasons, the Court concludes that no basis has been made out for granting Mr Gibson leave to appeal to the Court of Appeal against that part of Cooper J's judgment which declined him leave to include Part 5 relating to Tribunal delay in his amended notice of appeal. [31] Part 8 is a lengthy section subdivided into 26 sub-paragraphs and raises pleaded inconsistency between the penalties imposed on Mr Gibson compared with other dentists, repeats the delay question from Part 5 and is critical of the penalties imposed. It asserts any failure on Mr Gibson's part did not impinge on his clinical treatment of complainants and was contradicted by Mr Gibson's expert evidence. It raises other procedural matters said to have occurred in the run-up to the hearings. It asserts the Tribunal should have separated Mr Gibson's alleged clinical failings from the financial management of his practice. It further asserts the penalties were wrong, the costs award did not follow accepted principles and the Committee's legal costs were excessive.[32] In considering whether leave should be granted for Mr Gibson to appeal against the exclusion of Part 8, two relevant factors are, first, that many of the issues it contains are repetitious of those in his principal notices of appeal and those amendments for which Cooper J granted leave. Secondly, Mr Gibson's attention to detail, whether during the periods he was represented by counsel or the balance in which he was acting for himself, is certain to mean that every issue which he considers capable of argument on the appeal will be fully argued. [33] Seen in that light, there can be no doubt that the issues Mr Gibson seeks to raise on appeal in the excluded Part 8 will be raised and argued on other sections of the appeal. In any event, essentially all the issues Mr Gibson wishes to argue in his excluded Part 8 are matters of fact or inferences to be drawn from facts. They do not appear to raise any new issues under an Act which was repealed nearly five years ago. They raise no new issues of law, particularly not issues of general or public importance. Mr Gibson has accordingly failed to demonstrate that Part 8 (or Part 5) raise issues of sufficient public or private importance to outweigh the costs and delays of a further appeal. [34] The conclusion in relation to Part 8 of Mr Gibson's proposed notices of appeal must accordingly be that no error in approach or conclusion on the part of Cooper J has been demonstrated. [35] Leave to appeal to the Court of Appeal against the proposed Part 8 of Mr Gibson's notices of appeal is accordingly not granted.Costs[36] With Cooper J, this Court takes the view that costs of this application should be reserved to be dealt with as part of the substantive determination of the appeal but with the note that the respondent should be entitled to an allowance for costs of this application at that juncture. ..WILLIAMS JSolicitors: Kensington Swan (Hayden Wilson/Helen Brown), PO Box 10246, WellingtonCopy for: M F McClelland, P O Box 10242 Wellington N J Gibson, c/o Ocean Reef Trust, PO Box 11-679, Ellerslie, Auckland (Appellant) Case Registry Officer: David Slight, Civil Registry, High Court Auckland