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

N J GIBSON V COMPLAINTS ASSESSMENT COMMITTEE HC AK CIV 2005-404-007353 22 July 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2005-404-007353 CIV 2005-404-007355BETWEEN NEVILLE JAMES GIBSON Appellant AND COMPLAINTS ASSESSMENT COMMITTEE Respondent Hearing: 20 July 2009 Appearances: N J Gibson in Person M J McClelland and A Hall for the Respondent Judgment: 22 July 2009 at 11:00amJUDGMENT OF WYLIE JThis judgment was delivered by Justice Wylie on 22 July 2009 at 11:00am pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar Date: Solicitors/Counsel: Kensington Swan, P O Box 10 246, Wellington 6143 M McClelland, P O Box 10 246, The Terrace, Wellington 6143 Copy to: N J Gibson, C/- P O Box 7774, Wellesley Street, Auckland[1] My substantive judgment in this matter was given on 14 November 2008. I dismissed appeals brought by Mr Gibson against two decisions of the Dentists Disciplinary Tribunal ("the Tribunal"). The decisions related to complaints made against Mr Gibson by a Mr and Mrs Frye and by a Mr Blunt. In part I allowed Mr Gibson's appeals against the decisions of the Tribunal in relation to penalty and costs, but dismissed the appeals against the penalty and costs decisions in all other respects. [2] On 16 December 2008 Mr Gibson filed a notice of application seeking leave to appeal my decision to the Court of Appeal. He filed an affidavit in support sworn on 16 December 2008. [3] A notice of application seeking a stay of my judgment pending the hearing of the application for leave to appeal was filed on 17 December 2008. A further affidavit dated 17 December 2008 was filed by Mr Gibson in support of this application. [4] Notices of opposition were filed by the respondent, the Complaints Assessment Committee, on 19 January 2009. [5] After receiving submissions from the parties, I gave a further judgment awarding substantial costs against Mr Gibson on 17 February 2009. [6] Mr Gibson filed an application seeking leave to appeal my costs judgment to the Court of Appeal on 13 March 2009. Again he filed an affidavit in support. [7] The respondent filed a notice of opposition on 31 March 2009. [8] Mr Gibson has filed a further affidavit dated 12 June 2009. That document exhibits a number of documents and other materials which are said to comprise new evidence relevant to my judgment of 14 November 2008.Mr Gibson's application for a stay of execution[9] Mr Gibson's application for a stay of execution of the judgment can be dealt with simply. Mr McClelland, at the commencement of the hearing, confirmed to the Court and to Mr Gibson that the respondent will take no steps to enforce the judgment, or the costs order, until the application for leave to appeal is finally determined, either by me, or by the Court of Appeal in the event that I decline the application.Mr Gibson's application for leave to appeal decision of 14 November 2008[10] Mr Gibson in his application for leave to appeal asserts that I made the following errors of law in my substantive decision: a) That my substantive decision was wrong at law. In particular it is alleged that: i) I failed to consider "a relevant factor in the evidence relating to Mr D[e]rham" and the inconsistencies in his evidence; ii) I failed to consider the evidence relating to the completion of work undertaken by Mr Gibson, and work that he said had been completed by the laboratory to whom he outsourced work, and that he said was sent to, but not returned by the laboratory; iii) there were inherent inconsistencies in my decision relating to the evidence of Dr McIntosh; iv) I failed to properly consider the "fullness" of Mr Gibson's clinical files; v) I failed to properly consider the inconsistencies in the evidence of Mr and Mrs Frye, Mr Blunt, and Mr Derham;vi) I failed to properly determine the basis upon which Mr Gibson ceased dental practice and the appropriateness of his standing down from clinical dental practice pending the outcome of the charges against him; vii) I was wrong to find that Mr Gibson had withheld evidence which would support his defence of the charges and "infer a construction as to a defence before the Tribunal". b) That my decision showed an apparent bias and was wrong in law. In particular that: i) I referred to Mr Gibson throughout my decision as "Mr", and not "Dr"; ii) I demonstrated an apparent bias against the evidence of Dr McIntosh on the basis that he was close personal friend of Mr Gibson. c) That I was wrong at law in upholding the penalty decision of the Tribunal, and that: i) I failed to consider the inappropriateness of the penalty imposed by the Tribunal; ii) I failed to consider case law presented by Mr Gibson in relation to other colleagues who had been disciplined. [11] The respondent opposes Mr Gibson's applications on the following basis: a) that Mr Gibson is unable to establish that I have made any error of law; b) that the application for leave does not raise seriously arguable questions of law;c) that Mr Gibson cannot show good cause why leave should be granted; d) that no questions of law on the appeal are questions of public importance; e) that the respondent will be significantly prejudiced if Mr Gibson is granted leave; f) that the complainants in the disciplinary proceedings which underpin the proceedings are entitled to a resolution of their complaints; and g) that my decision is correct in fact and in law.Relevant law[12] As noted in my substantive decision, the complaints were lodged in 2001. The applicable legislation was then the Dental Act 1988. That Act was repealed by the Health Practitioners Competence Assurance Act 2003. There are however transitional provisions in that Act – s 216 – which provide that all investigations, enquiries and disciplinary proceedings under the earlier Act that were commenced before 18 September 2004, and not completed, are to be continued as if the Dental Act has not been repealed. It is common ground between both Mr Gibson, and Mr McClelland appearing for the respondent, that the relevant legislation governing the applications for leave to appeal is the Dental Act. [13] Section 64(7) of the Dental Act reads as follows: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.[14] Rule 20.22 of the new High Court Rules also applies.[15] The leading authority on whether leave to appeal should be granted is the decision of the Court of Appeal in Waller v Hider [1998] 1 NZLR 412. Blanchard J at 413 noted: The appeal must raise some question of law 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 The Court also made it clear that in the end, the guiding principle must be the interests of justice. It observed that the function of the Court of Appeal is not to engage in the general correction of error; rather its primary function is to clarify the law and determine whether it has been properly construed and applied by the Court below. It commented: 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.[16] Mr McClelland also referred me to the decision of Wild J in Genesis Power Limited v Manawatu-Wanganui Regional Council & Ors HC WN, CIV 2004-485- 001139, 22 May 2007, where His Honour noted at [6] that the threshold is a reasonably demanding one, and summarised the principles that must be considered when considering an application for leave to appeal, as follows: a) An applicant must show good cause why leave should be granted. b) The application must raise a seriously arguable question of law. c) If the Court has difficulty in identifying a clear and relevant question of law, leave to appeal should be declined. d) It is necessary to consider dispassionately whether the disputed matter contains a requisite element of sufficient importance. e) It is the question identified as the matter for appeal which must be a matter of general or public interest.f) Questions or issues of law which are fact specific or limited to the particular facts and findings of the case at hand are not generally matters of general and public importance. [17] I turn to consider Mr Gibson's applications against these observations. [18] I record that Mr Gibson's application did not articulate any specific question or questions he wishes to argue before the Court of Appeal. He is not a lawyer and I would not decide against him on this basis alone. If he can point to an error of law capable of bona fide and serious argument, then a question or questions can readily be formulated.Substantive decision – wrong at law?[19] Mr Gibson asserted that I failed to properly and independently assess the evidence before me. In particular he submitted that I failed to properly apply the observations of the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar[2008] 2 NZLR 141. He submitted that rather than applying my own judgment to the matters before me, I had improperly deferred to the Tribunal's assessments of weight and credibility, and that I had not formed my own opinions. [20] Mr Gibson did not refer to any passage in my judgment which evidences this alleged error. He did not address those observations which suggest to the contrary – see, e.g. paragraphs [32], [63], [76], [81], [101], [107] and [109] of my judgment. He did not acknowledge that my judgment records that I read the evidence put before the Tribunal, the exhibits produced to it, and the transcript of the hearing. He did not acknowledge that my judgment summarises that material and explains why I reached various conclusions. Mr Gibson did not point to anything in my judgment which indicates that I failed to apply an independent mind to the issues before me. [21] Mr Gibson was critical of numerous of my findings. He asserted that I erred in law in accepting the evidence of Mr and Mrs Frye and Mr Blunt about the work they understood Mr Gibson was going to do and which they paid for in advance.[22] There is no basis for Mr Gibson's assertion. It is not an error of law to accept the evidence of a witness – even more so where that evidence was not challenged in cross-examination. The fact that Mr Gibson disagrees with the views formed by the Tribunal, and by me on appeal, does not mean that there has been an error of law. The obligation was on Mr Gibson is to point to an error of law made by me. He was unable to do so in this regard. [23] Mr Gibson argued that my decision is one which no judicial officer properly informed would have given. Although he repeated the argument on more than one occasion, again Mr Gibson did not point to any part of my decision which evidenced the alleged error. He repeatedly referred to findings made by the Tribunal and upheld by me in relation to Mr Derham's evidence. He was also critical of the way I dealt with Dr McIntosh's evidence. His criticisms of my judgment in these respects seem to be the gravaman of this particular complaint. I therefore deal with each as follows: a) Mr Gibson was critical of the fact that I preferred Mr Derham's evidence over that given by him. He asserted that Mr Derham's evidence was essential to the prosecution case, and that it was simply incorrect. His submission ignored the observations in paragraph [63] of my judgment. I there accepted that there was a conflict on the evidence, but noted that that conflict did not preclude the Tribunal from preferring Mr Derham's evidence over that given by Mr Gibson. I pointed out that courts and tribunals are required on a daily basis to make findings between conflicting witnesses, and that they have to make assessments of credibility. I recorded that the Tribunal had had the very real advantage of seeing Mr Derham and Mr Gibson give evidence, and in assessing their demeanour. I went on to note that I had read Mr Gibson's evidence, and the documents he produced, and that I did not consider that they were conclusive the one way or the other. I recorded that I had no hesitation in concluding that the Tribunal was not wrong to prefer Mr Derham's evidence, and noted that my impression, from reading the materials and the transcripts, was that the Tribunal was correct to do so. It is not an error of law fora Court or Tribunal to prefer the evidence of one witness over the evidence of another. b) I dealt with Dr McIntosh's evidence at paragraphs [77] to [81] of my judgment in relation to the Frye complaint, and at paragraphs [103] to [107] in relation to the Blunt complaint. Mr Gibson was critical of the observations made by me about the personal friendship between Dr McIntosh (called as an expert) and Mr Gibson. He did not take issue with the observation that he and Dr McIntosh are friends. Rather he asserted that the friendship had not coloured Dr McIntosh's evidence. Mr Gibson did not acknowledge that I recorded Dr McIntosh's assertions that the friendship had not affected his evidence in paragraph [78] of my judgment. Mr Gibson did not deny any of the other factual comments recorded by me in paragraph [78] of my judgment. Those comments recorded various other unsatisfactory aspects in Dr McIntosh's evidence. It is not an error of law to make factually correct observations on the material contained in the record. Nor is an error of law to record that those factors afforded good reason to treat Dr McIntosh's evidence with caution. Mr Gibson proceeded both in the substantive hearing and at the hearing of his application for leave on the basis that Dr McIntosh's evidence was a complete defence to the charges he faced. With respect to Mr Gibson, he has misunderstood the complaints against him. The complaints were summarised in paragraphs [3] and [4] of my judgment – they were essentially that Mr Gibson accepted payment in advance for work that he agreed to complete, that he did not complete the work, and that he failed to make any refund when asked to do so. Dr McIntosh's evidence was concerned primarily with the work that Mr Gibson had undertaken. It was not in issue that Mr Gibson had completed some work for both the Fryes and for Mr Blunt; nor was it in issue that that work was generally completed satisfactorily and that Mr Gibson was entitled to be paid for it. Dr McIntosh's evidence was not a complete defence to the charges Mr Gibson faced.[24] In my judgment Mr Gibson has not pointed to any error of law in the way in which I dealt with Mr Derham's evidence or the evidence of Dr McIntosh. Nor has he pointed to any other error in law compelling the conclusion that my substantive decision was wrong in law. He clearly disagrees with it. That does not mean that it contains an error of law – let alone an error of law which should be sent to the Court of Appeal for consideration.Bias[25] Mr Gibson submitted that I was biased in my treatment of him. In particular he complained about paragraphs [34] and [43] of my judgment. He submitted that those paragraphs indicate bias on my part. [26] In paragraph [34], I made three observations, all of which had a bearing on how the hearing before the Tribunal proceeded. Mr Gibson submitted that his defence had not been disorganised. He accepted that he had repeatedly breached directions made by the Tribunal to produce his briefs of evidence. He also accepted that various matters he subsequently relied on in his defence were not put to prosecution witnesses. In paragraph [34], I was recording my impression from reading the transcript. Mr Gibson did not take issue with the base facts. Rather he took issue with my impression. My impression is not a fniding which goes to the heart of my substantive judgment. Mr Gibson has not pointed to any error of law arising from paragraph [34] which should properly be put to the Court of Appeal for determination. [27] Mr Gibson also attacked my use of the words "wide ranging" in paragraph [43] of my judgment. He considered that the use of those words in reference to his notice of appeal was critical of him. The words used are not a criticism; rather it is a description. Mr Gibson was challenging each of the findings made against him by the Tribunal. It was a wide ranging appeal. Again there is no point of law here. [28] Finally, Mr Gibson asserted that the decision refers to him as "Mr" Gibson, and that he should be referred to as "Dr" Gibson. As I understand it from Mr Gibson, he asserts that he is entitled to be called Dr Gibson, because he holds aBachelors Degree in Dentistry, and that degree is equivalent to a doctoral degree held by dentists practising in the United States of America. I do not know whether that is or is not the case but that is not the point. Mr Gibson does not hold a doctoral degree. He is not offering medical services as a general practitioner. He has not held a practising certificate entitling him to practise dentistry since 2001. I am not sure that my use of the word "Mr" is in error. Even if it is an error I doubt that it is an error of law. The way in which Mr Gibson was referred to in the decision is in my view irrelevant and immaterial. Even if I am wrong in my use of the prefix "Mr", that is a minor error and it cannot sensibly be said to demonstrate bias. It is not the role of the Court of Appeal to correct minor errors of this kind (assuming that it is an error), and it did not in any way reflect in my substantive judgment.Penalty[29] Mr Gibson asserted that he had been treated disproportionately by me, and that other dentists who have faced disciplinary charges have not been dealt with in a similar way. He argued that I failed to give proper consideration to the sanctions imposed against other professional colleagues, and that I failed to consider a number of penalty decisions made by the Tribunal which he referred to me in the course of the substantive hearing. [30] Mr Gibson did not acknowledge paragraph [118] of my substantive decision. I there referred expressly to the decisions which he had made available to me, and to his argument that the Tribunal's decision on penalty and costs was inconsistent with other penalties imposed on the dentists who had offended under the Act. I explained why I did not consider that the Tribunal's penalty decision was necessarily inconsistent with the penalties imposed by the Tribunal in other cases. Mr Gibson cannot suggest that I erred in law by failing to take into account a relevant factor. [31] Mr Gibson repeatedly asserted that the affect of the penalty decision was to prevent him from practising, and to take away his right to earn an income as a dentist. I questioned him carefully in regard to this assertion. Relevantly the Tribunal's decision was that he be suspended for a period of one year from the date he obtained a practising certificate, and that thereafter he undertake a period ofsupervision for a further period of 12 months in regard to specific areas of his practise. There was nothing in the Tribunal's decision which precluded Mr Gibson from obtaining a practising certificate. He elected not to do so in May 2001, because he was moving to Australia. Subsequently, he decided that he should not do so because he was facing charges involving allegations of dishonesty. The fact that he did not obtain a practising certificate was consequent on decisions taken by him. He has now been caught by changes in the legislation. I referred to these matters in paragraph [120] of my substantive decision. I asked Mr Gibson to identify any sentence in that paragraph which was wrong either in fact or in law. He was unable to do so. With respect to Mr Gibson he had overstated the affect of the penalties imposed on him. [32] I concluded – paragraph [122] of my substantive decision – that the penalties imposed by the Tribunal on Mr Gibson were appropriate, and not disproportionate. Mr Gibson was unable to point to any error of law in that conclusion or in the reasoning leading to it.Costs judgment[33] Mr Gibson did not have a copy of my costs judgment when he appeared before me. As a result he sought leave to appeal in respect of various matters which I had decided in his favour – for example the respondent's claim for costs on a Category C basis – or which I had not determined – for example whether the respondent is entitled to GST on the disbursements it is able to recover. [34] In essence, the submission was that I was unduly harsh on him, and in particular that it was inappropriate to allow an uplift in the costs. I allowed an uplift of $10,000, and explained why I thought that that was appropriate. Except as noted in the following paragraph, Mr Gibson did not suggest that any of the criticisms that I made of his conduct of the case were in error. There was no assertion of any error in principle by me in the way in which I exercised my discretion. Rather Mr Gibson argued simply that the uplift was excessive. That is no more than an assertion that Mr Gibson disagrees with the costs ordered by me. Again, Mr Gibson was unable topoint to any error of law sufficient to justify further consideration by the Court of Appeal. [35] Mr Gibson did assert that I ignored the fact that he was successful in some of the interlocutory applications he filed. His assertion is incorrect. I refer to paragraphs [17] to [19] and [22] to [24] of my costs decision. Mr Gibson cannot point to any error of law in this regard.Result[36] In the circumstances, Mr Gibson's applications for leave to appeal both my substantive decision given on 14 November 2008, and my costs decisions given on 17 February 2009, are declined.Costs[37] I discussed costs with Mr McClelland and Mr Gibson. Both were agreed that it was appropriate to fix costs on a 2B basis in the event that Mr Gibson's applications were unsuccessful. [38] Accordingly I direct that the respondent is entitled to its costs on a 2B basis. I record that the hearing took two thirds of the day. There is no allowance for second counsel. The respondent is also entitled to its reasonable costs and disbursements. In the event of dispute they are to be fixed by the Registrar. The Registrar can if necessary refer any dispute to me for final resolution. Wylie J