NEVILLE JAMES GIBSON V DENTISTS DISCIPLINARY TRIBUNAL CA CA41/05

NEVILLE JAMES GIBSON V DENTISTS DISCIPLINARY TRIBUNAL CA CA41/05 4 May 2006IN THE COURT OF APPEAL OF NEW ZEALAND CA41/05BETWEEN NEVILLE JAMES GIBSON Appellant AND DENTISTS DISCIPLINARY TRIBUNAL Respondent Hearing: 21 March 2006 Court: Hammond, Chambers and O'Regan JJ Counsel: Appellant in person K P McDonald QC and J C Hughson for Respondent Judgment: 4 May 2006JUDGMENT OF THE COURT A The appeal is dismissed. B We award costs of $3,000 plus usual disbursements to the respondent.____________________________________________________________________REASONS(Given by O'Regan J)[1] This is an appeal against a decision of Winkelmann J (now reported at (2005) 17 PRNZ 669). In that decision, Winkelmann J declined Mr Gibson's application to set aside or review under r 259 of the High Court Rules a decision of Robertson J dated 22 July 2004 dismissing Mr Gibson's appeal against a decision of the Dentists Disciplinary Tribunal (the Tribunal) for non-prosecution.Background[2] On 13 August 2002, the Tribunal issued a decision upholding a complaint made against Mr Gibson by a patient of his dental practice. In a subsequent decision dated 11 November 2002, the Tribunal suspended Mr Gibson from practising as a dentist for a period, placed conditions on his future practice, fined him, censured him and ordered him to pay 45% of the costs of the Tribunal process. [3] Mr Gibson did not produce records of his treatment of the complainant at the hearing. The Tribunal found that, when the complainant asked Mr Gibson for her records, he deliberately failed to search for them or withheld them, and that they could have been located if a proper search had been conducted. [4] After the decision of 13 August 2002, Mr Gibson told the Tribunal that he had found the records, and asked for a re-hearing. He did not, however, produce them to the Tribunal at that time. The Tribunal declined his application for a re- hearing and, at the same time, made its determination on penalty. [5] On 6 January 2003, Mr Gibson filed an appeal against the Tribunal's decision at the High Court in Auckland. Under s 64(1) of the Dental Act 1988, the appeal had to be filed within 28 days after notice of the Tribunal's decision had been served on Mr Gibson. On the face of it, it seems likely that the appeal would have been filed out of time, assuming that notice of the Tribunal's decision was served promptly on Mr Gibson. If so, Mr Gibson would have required leave of the High Court to appeal out of time, but did not seek this. The High Court appears to have proceeded on the basis that the appeal was filed in time, and we will do the same.[6] The notice of appeal was also incorrect in that it named the Tribunal as respondent, in breach of r 706(3) of the High Court Rules (as it was at the time the appeal was filed – the present equivalent is r 709(2)). [7] The High Court appeal was filed on Mr Gibson's behalf by Brookfields. The solicitor on the record was Ms A C M Fisher. [8] On 20 March 2003, orders were made by consent that the Tribunal, as respondent to the appeal, would file interlocutory applications for a change of venue (to Wellington) and for security for costs, within 21 days. The matter was listed for 17 April 2003 to enable a hearing date of both applications to be allocated. The Tribunal's application in relation to those matters was filed and served on 9 April 2003, and a joint memorandum of counsel was filed on 15 April 2003 advising an agreed timetable to deal with the Tribunal's applications. [9] The solicitors for Mr Gibson as recorded on that joint memorandum were Hunt Edward Kennelly (P Kennelly), but no formal notice of change of representation for Mr Gibson was filed. A notice of opposition to the two applications by the Tribunal was filed on 14 May 2003. The solicitors shown on the notice of opposition were Hunt Edward Kennelly (P Kennelly), but it was noted that Ms Fisher was counsel acting on the matter. [10] A directions conference was scheduled for 28 May 2003 but, prior to that date, agreement was reached between the parties as to both outstanding applications and a joint memorandum was filed on 27 May 2003 recording this. On 27 May 2003, Laurenson J made consent orders as follows: (a) Timetabling to be in accordance with the practice note; and (b) Counsel to confer with the Registrar to allocate a hearing date for the appeal (1 day) as soon as possible after 1 August 2003.[11] The practice note to which reference was made specified the time periods within which the various steps required to bring the appeal before the Court had to be completed. In fact, no steps were taken by either party after that date. [12] On 28 June 2004 (more than a year later), a notice of mention of the matter on 15 July 2004 was sent to Ms Fisher, who by then was practising as a barrister sole. She immediately wrote to the Court advising that Mr Gibson had briefed Mr Graeme Jenkins to handle all matters for him, that she had no instructions from Mr Gibson and that she understood Mr Jenkins had filed a notice of change of solicitor for the matter. She copied that letter to Mr Jenkins and also to Hunt Edward Kennelly. [13] The proceeding was listed on 15 July 2004 before the Duty Judge for that day, Ellen France J. On the call of the matter there was no appearance for Mr Gibson. Counsel for the Tribunal sought an order dismissing the appeal for non- prosecution. Ellen France J did not make such an order, but issued a Minute saying:[2] The respondent seeks dismissal of the appeal for non-prosecution. I noted that although there have been lengthy delays I will give the appellant one more chance. I asked the Registrar to send a copy of the respondent's memorandum of 15 July 2004 to Mr Jenkins, who previous counsel for the appellant understands has instructions. [3] The matter is to be called again this time next week. If nothing has been filed by the appellant with the Court by 12 noon on Wednesday 21 July as to why the appeal should not be dismissed the appellant should expect the Court to look favourably then on the respondent's application.[14] This Minute was faxed, emailed and posted to Mr Jenkins. [15] The matter was called again before the Duty Judge, Robertson J, on 22 July 2004. Again there was no appearance for Mr Gibson. Robertson J made an order dismissing the appeal for want of prosecution. [16] On 6 August 2004, Mr Gibson filed an application to set aside or review the decision to dismiss the appeal, and to grant a rehearing. That application was heard by Winkelmann J on 21 October 2004. Mr Gibson was represented by Mr Kennelly, who by this time had moved from Hunt Edward Kennelly to a new firm, Kennelly Law. The outcome of that hearing is the decision under appeal.High Court decision[17] Winkelmann J identified three issues to be determined. These were: (a) Whether Mr Gibson's application to set aside or review the order dismissing the appeal was out of time; (b) Whether Robertson J had been wrong to dismiss the appeal because Mr Gibson had no notice of the hearings of 15 and/or 22 July 2004; (c) Whether Robertson J was wrong to dismiss the appeal for want of prosecution under r 712 of the High Court Rules.(a) Out of time?[18] The Judge decided not to decline the application on the basis of non- compliance with the time limits for the making of the application under r 259. No issue is taken with that finding.(b) Did Mr Gibson have notice of the hearings?[19] The Judge noted that Mr Gibson denied having instructed Mr Jenkins in the matter. She also recorded that Mr Gibson complained that Ms Fisher had not copied the relevant correspondence and notice of fixture to him or his counsel. However, the Judge considered that Mr Gibson had created confusion on the Court file as to the party to whom communications should be directed. He had not filed a notice of change of solicitor from Brookfields to Hunt Edwards Kennelly, and had also failed to file a notice of a subsequent change from Hunt Edwards Kennelly to Kennelly Law. In addition, there was no notice of change of counsel. [20] The Judge thought it was remarkable that, if Mr Jenkins had no instructions, neither he nor Hunt Edwards Kennelly clarified the position with the Court Registry when they received Ms Fisher's letter about the 15 July hearing. The Judge notedthat Mr Jenkins had been provided with a copy of the Minute of Ellen France J of 15 July 2004. Mr Gibson deposed that Mr Jenkins claimed to have emailed that Minute to Mr Gibson but that Mr Gibson had not received the email. However, Mr Gibson also deposed that he had been told by Mr Jenkins that "in a dental matter of mine listed in the High Court I have been given a week to do something." But he said that, because of the pressure on him by virtue of other proceedings, he forgot what was said. [21] Having considered all this evidence, the Judge said she was satisfied that Mr Gibson had adequate notice of the hearing on 22 July 2004 and could not rely on the lack of notice of the call of the matter on that day or lack of knowledge of the likely consequences of non-attendance. That was a significant factual finding in relation to her analysis of the legal position that followed.(c) Was Robertson J wrong to dismiss the appeal?[22] Winkelmann J then turned to the decision to dismiss the appeal. She dealt with this in terms of r 712 of the High Court Rules, although strictly speaking it should have been considered under r 718B of the High Court Rules. Rule 718B was applicable at the time of the decision of Robertson J and continued to apply at that time by virtue of r 19(7) of the High Court Amendment Rules 2003. Rule 718B provided:718B. Dismissal of appeal(1) If the appellant does not appear at the time appointed for hearing the appeal, the Court may dismiss the appeal. (2) If the appellant does not prosecute the appeal with due diligence, the Court may, on the application of any other party or of the Tribunal or person whose decision is appealed from, dismiss the appeal.[23] The Judge determined that, because the decision of Robertson J was made without argument and that she now had the benefit of full argument and evidence before her, it was appropriate for her to consider the matter on a de novo basis. She noted that the authorities in relation to r 478 were relevant to r 712. Rule 478 deals with dismissal of a proceeding (other than an appeal) for non-prosecution. She saidthe authorities applying r 478 established that, to succeed with an application for dismissal of a proceeding, it must be shown: (a) That there has been inordinate delay; (b) That such delays is inexcusable; (c) That the party affected has suffered serious prejudice; (d) That it is not in the overall interests of justice to allow the case to proceed.(a) Inexcusable and inordinate delay[24] The Judge was satisfied there had been inexcusable and inordinate delay: some 18 months had elapsed since the appeal was filed by the time the order dismissing the appeal was made. There had been no steps taken for over 13 months. She was not satisfied that this delay was justified.(b) Serious prejudice[25] The Judge rejected an argument by the Tribunal that it was prejudiced by the cost of having to prepare for the appeal and by the need to endure 14 to 15 months of having an unmeritorious appeal hanging over it. She said the cost would not be wasted if the appeal were reinstated, and any prejudice could be met by an award of costs in the High Court. [26] However, the Judge accepted the Tribunal's submission that it would be prejudiced in defending the appeal by the delay. She said that if Mr Gibson intended to use the records which he said he had found to put before the Court a different version of events than had been accepted by the Tribunal, then it was inevitable that oral evidence from the complainant would be required. She accepted that an additional 12 months' delay in those circumstances would seriously prejudice theTribunal given the already lengthy lapse of time from the event which had been the subject of the complaint (1997 – 1998), and already dimming memories.(c) Overall interests of justice[27] The Judge was satisfied that it was not in the interests of justice to allow the appeal to proceed. She was satisfied that Mr Gibson had been guilty of inordinate and inexcusable delay, had attempted to blame this on his counsel and on court staff, but that in fact he himself must shoulder most of the responsibility. In light of the serious prejudice to the respondent, she was satisfied that the decision to dismiss the appeal was not wrong and therefore declined to set aside the decision of Robertson J.Issues on appeal[28] There was no dispute that Winkelmann J had correctly identified the factors which were relevant to her decision. These are set out in the decision of Eichelbaum CJ in Lovie v Medical Assurance Society NZ Limited [1992] 2 NZLR 244 at 248, which is cited in McGechan on Procedure at [HR478.01]. There was also no dispute that the authorities on r 478 can be applied equally to decisions under r 718B (as it stood at the time of the dismissal of the appeal) and the current r 712. We agree that the same approach should be taken under rr 718B, r 712 as under r 478: Cathcart v McGregor (1998) 12 PRNZ 352. [29] Accordingly, we propose to consider the issues on appeal under the same headings as the High Court Judge, namely: (a) Inexcusable and inordinate delay in prosecuting the appeal; (b) Serious prejudice to the Tribunal; and (c) Overall interests of justice.Inexcusable and inordinate delay[30] There was no real challenge to the finding that there had been inexcusable and inordinate delay. Nor could there be. We are satisfied that the High Court Judge correctly considered the relevant factors and that her conclusion that there had been inexcusable and inordinate delay was well open to her in the circumstances of this case.Serious prejudice[31] Mr Gibson suggested that the direction of Ellen France J on 15 July 2004, giving him another chance to oppose the application to strike out his appeal, indicated that, if he had taken the opportunity, the delay up until that period would have been found not to be inexcusable or inordinate. He suggested that, if he or his counsel had appeared on 22 July 2004 as envisaged by the minute of Ellen France J, the appeal would have proceeded on a strict timetable towards hearing. We do not think such an assumption can be made. All Ellen France J did was to adjourn the application so that argument could be made on Mr Gibson's behalf. That did not involve any indication on her part that the appeal should be allowed to proceed. If the matter had been argued before Robertson J on 22 July 2004, it was quite possible (and indeed likely) that the Judge's decision to strike out the appeal would have been the same. The fact that Winkelmann J came to that conclusion after hearing full argument on the matter is a good indicator of that. [32] Mr Gibson argued the Judge was wrong to conclude that there would be serious prejudice. He noted that the test applied by the Judge (derived fromCommerce Commission v Giltrap City Limited (1997) 11 PRNZ 573 at 579) required a balancing of the right of access to the Courts against the right of the defendant to have the case dismissed 'because justice can no longer be done in the light of the delay'. He said that the risk of witnesses' 'dimming memories' was not sufficient to amount to significant prejudice and that the Judge had been wrong to find that it was.[33] We are unable to discern any error on the Judge's part. In our view it was open to her to conclude that the Tribunal and the complainant would be seriously prejudiced. It needs to be remembered that the Giltrap case concerned r 478: that is, an application to stop a proceeding being heard at all. The present case concerns an application to stop an appeal, where Mr Gibson has already had the opportunity to put his case to the Tribunal. The basis of his appeal is the availability of records in circumstances where their earlier unavailability was attributable to his own failure to locate and produce them. That effectively exposes the complainant to the need to give evidence again, in circumstances where she has been through the disciplinary process and put the matter behind her. The Judge was entitled to conclude that the significant delay in bringing that process to a head hindered justice being done to both the complainant and the Tribunal.Overall interests of justice[34] Mr Gibson impressed on us the significance to him of the adverse ruling made against him by the Tribunal, and the value which he would place on the further opportunity to clear his name. He concluded his submissions to us by asking us to grant him an indulgence to ensure a just outcome. [35] We do not minimise the consequences of the Tribunal's finding on Mr Gibson. But the Judge's assessment proceeded on the basis that the responsibility for the failure to prosecute the appeal lay with Mr Gibson, and in our view she was entitled to reach that conclusion. She assessed the prejudice to the Tribunal and the complainant as significant: if the appeal were allowed, the complainant would be required to give oral evidence again in order to respond to new matters which emerged from the production of the dental records, assuming that Mr Gibson applied for, and was granted, permission to adduce an affidavit exhibiting those records as new evidence in the appeal. (We note in passing that there would be no guarantee that such an application would have succeeded, and if it had failed the appeal would have failed as a consequence). [36] In our view the Judge could properly form the view that the interests of justice were best served by making the order she did. She properly directed herselfto the relevant factual matters and exercised her discretion in a manner which was open to her in the circumstances. We are not persuaded that she was wrong.Result[37] We dismiss the appeal. [38] We award costs to the Tribunal of $3,000 plus usual disbursements.Solicitors: D'Ath Partners, Wellington, for Respondent