LISTON v THE DIRECTOR OF PROCEEDINGS [2018] NZHC 1515

LISTON v THE DIRECTOR OF PROCEEDINGS [2018] NZHC 1515 [22 June 2018]IN THE HIGH COURT OF NEW ZEALANDWHANGANUI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGANUI ROHECIV-2018-483-4[2018] NZHC 1515BETWEEN PETER NAPIER LISTONAppellantAND THE DIRECTOR OF PROCEEDINGS,HEALTH AND DISABILITYCOMMISSIONERRespondentOn the papers:Counsel: A H Waalkens QC for AppellantL C Preston for RespondentJudgment: 22 June 2018JUDGMENT OF CHURCHMAN J[1] The appellant, a registered oral and maxillofacial surgeon appeals a decisionof the New Zealand Health Practitioners Disciplinary Tribunal dated 24 January 2018.[2] The Tribunal found that a number of misconduct charges had been made out,censored Dr Liston, ordered him to pay a fine of $5,000 and contribute towards costsin the sum of $21,000.[3] In support of his appeal, the appellant has applied for leave to adduce furtherevidence. The evidence sought to be adduced relates to one article published in theWhanganui Chronicle during the appellant's disciplinary hearing which was referredto by the Tribunal and eight additional articles variously published in the WhanganuiChronical, the NZ Herald and the Dominion Post subject to the hearing.[4] The grounds upon which the application is made include a statement that:The evidence is material to the matters to be determined in this appeal, inparticular the penal impact of adverse publicity and the weight that should begiven in imposing a proportionate penalty in disciplinary proceedings.[5] The appellant relies on r 20.16 and the decision in Comalco NZ Ltd v TVNZLtd.[6] The respondent does not consent to the application but abides the decision ofthe Court.[7] In the memorandum filed, the respondent notes:(a) The Court will be required to consider the application to determinewhether the evidence is fresh, relevant and cogent to the issues onappeal.(b) Save for the first article, all subsequent articles, while fresh, cannotassist the Court to ascertain what was in the Tribunal's mind indetermining issues of appropriate penalty.(c) The Tribunal's discretion to make non-publication orders under s 95(2)of the Health Practitioners Competence Assurance Act 2003 (the Act)arises separately from questions of penalty under s 101 of the Act.(d) The exercise of that discretion is not an imposition or mitigation of apenalty.1 Publication following a finding of misconduct inevitably hasa penal effect upon a practitioner, however the effects of publicity aboutproven misconduct are the effects of the misconduct itself, not of thepenalty imposed by the Tribunal or Court.2[8] Rule 20.16 of the High Court Rules provides as follows:1 TSM v Professional Conduct Committee [2015] NZHC 3063 at [19].2 At [57].20.16 Further evidence(1) Without leave, a party to an appeal may adduce further evidence on aquestion of fact if the evidence is necessary to determine an interlocutoryapplication that relates to the appeal.(2) In all other cases, a party to an appeal may adduce further evidenceonly with the leave of the court.(3) The court may grant leave only if there are special reasons for hearingthe evidence. An example of a special reason is that the evidence relates tomatters that have arisen after the date of the decision appealed against and thatare or may be relevant to the determination of the appeal.(4) Further evidence under this rule must be given by affidavit, unless thecourt otherwise directs.[9] Applying the decision in TSM v Professional Conduct Committee, the evidencesought to be adduced would not be of any relevance to the Court in makingdeterminations as to the penalty that Mr Liston is appealing.3[10] The courts have consistently distinguished between the imposition of a penaltyand the publicity that follows a charge of professional misconduct having beenestablished.[11] This issue was addressed, in the context of an application for namesuppression, by Palmer J in TSM. In that case, the Court said:4Section 95(2) of the Act confers a discretion of the Tribunal "if satisfiedthat it is desirable to do so" to prohibit the publication of the name of anyperson. The exercise of such a discretion is not an imposition or mitigation ofa penalty. Rather the principle of open justice, that section reflects, as anaspect of the nature of the judicial process that deals with alleged offending.[12] Further on in the same judgment, the Court said:5The starting point, illustrated by s 95(1) of the Act, is the principle of openjustice. There must be some compelling reason why, in a particular case, thatprinciple needs to be suspended. That is no different for professionals thanfor anyone else. The effects of publicity about proven offending are the effectsof the offending itself, not of the penalty imposed by the Court.3 TSM v Professional Conduct Committee [2015] NZHC 3063.4 At [19].5 At [57].[13] It is clear that the first of the articles in question published in WhanganuiChronicle existed at the time of the Tribunal hearing and was in fact referred to by theTribunal. The other eight articles meet the criteria of being fresh in the sense of thatthey did not exist at the time of the Tribunal decision. However, as they all fall withinthe category of publicity about proven offending, they are the effects of the offendingitself and not of the penalty.[14] I therefore conclude that there is no special reason that would justify thegranting of leave to admit the further proposed evidence, and I decline the application.Churchman JSolicitors:DLA Piper, WellingtonOffice of the Director of Proceedings