LISTON v THE DIRECTOR OF PROCEEDINGS [2018] NZHC 1615

LISTON v THE DIRECTOR OF PROCEEDINGS [2018] NZHC 1615 [3 July 2018]IN THE HIGH COURT OF NEW ZEALANDWHANGANUI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGANUI ROHECIV-2018-483-4[2018] NZHC 1615BETWEEN PETER NAPIER LISTONApplicantAND THE DIRECTOR OF PROCEEDINGSRespondentCounsel: A H Waalkens QC and H Stuart for ApplicantL C Preston for RespondentJudgment: 3 July 2018JUDGMENT OF CHURCHMAN J[1] The applicant has appealed a decision of the Health Practitioners DisciplinaryTribunal dated 24 January 2018. One of the grounds of the appeal is that the fine wasunreasonable and excessive. An argument to be advanced in support of thissubmission is a claim that the Tribunal failed to consider the harm and damage(penalty) the applicant had already incurred by way of the adverse publicity that hadoccurred and would continue to occur.[2] The Tribunal was aware of an article written about this case in the WhanganuiChronicle and published during the course of the Tribunal hearing. The Chair of theTribunal actually drew the article to the attention of counsel for the applicant duringthe course of the hearing.[3] The applicant has applied for leave to put before the Court a copy of theWhanganui Chronicle article and eight additional articles variously published in theWhanganui Chronicle, The NZ Herald and The Dominion Post. Other than for theoriginal article, the various other articles were published subsequent to the Tribunal'sdecision.[4] The respondent did not consent to the application for leave to adduce furtherevidence but abided the decision of the Court.[5] The Court dealt with the matter on the papers issuing a decision on 22 June2018 holding that there was no special reason that would justify the granting of leaveto admit the further proposed evidence.[6] On 25 June 2018, the applicant applied to recall the judgment in relation to thefurther evidence. That application was accompanied by a more extensivememorandum setting out the grounds relied upon.[7] The respondent opposed the application for recall, and the matter was arguedat a teleconference hearing on 2 July 2018.Recall[8] High Court Rule 11.9 permits the Court to recall a judgment at any time beforea formal record of it is drawn up and sealed.[9] The Courts have laid down clear guidelines as to the circumstances in which adecision may be recalled.1[10] The three categories justifying recall of a judgment are:(a) Where since the hearing there has been an amendment to a relevantstatute or regulation or a new judicial decision of relevance and higherauthority.(b) Where counsel have failed to direct the Court's attention to a legislativeprovision or authoritative decision of plain relevance.1 Horowhenua County v Nash (No 2) [1968] NZLR 632; Saxmere Co Ltd v Wool BoardDisestablishment Co Ltd [2009] NZSC 122; Rainbow Corp v Ryde Holdings (1992) 5 PRNZ 493;and Unison Networks Ltd v Commerce Commission [2007] NZCA 49.(c) Some other very special reason.[11] The ground relied upon by the applicant in this case is the second ground andit was submitted that the applicant had failed to draw the Court's attention to a fact orpoint of law that was plainly relevant. The applicant also relied on an alternativeargument that it had not had a fair opportunity to consider the matter (on the basis thatthe application was not opposed) and had been taken by surprise by the adversedetermination.[12] In oral submissions during the teleconference, counsel for the applicantreferred the Court to the decision of Baragwanath J in J v Director of Proceedings onthe issue of proportionality.2 It was submitted that in order to assess proportionality,the extent to which a practitioner is the recipient of adverse publicity will be a relevantfactor.Analysis[13] In relation to the question of whether the Court's attention was not drawn to alegislative provision or authoritative decision of plain relevance, it cannot besuggested that the Court misunderstood the applicable provisions of the High CourtRules or the guiding case law.[14] No new facts have been discovered. Although the publicity referred to (otherthan the original article) all post-dated the Tribunal's decision, it was anticipated bythe Tribunal that there would be further publicity and the Tribunal expressly noted thatthe interim suppression order would lapse and that, of itself, would lead to potentialpublicity.[15] The applicant's ability to argue that the Tribunal did not properly have regardto the principle of proportionality is not dependent upon the Court having before iteach of the subsequent articles.2 J v Director of Proceedings [2006] BCL 1003 at [52].[16] I do not accept that the applicant was "taken by surprise". Whether or not therespondent abided the decision of the Court, it was incumbent on the applicant toprovide sufficient material to the Court so that it met the test for granting of leave toadduce further evidence. That did not happen.[17] The substantive appeal is by way of rehearing. The Court has to come to itsown conclusion, based on the material presented before the decision-maker, and anyfurther evidence which might be admitted.3 By its nature an appeal is concerned withre-examination of matters considered in the Tribunal. The Tribunal did consider thequestion of proportionality.4 It is open to the applicant to argue that the Tribunal erredin this consideration.[18] One of the matters that the Tribunal considered in reaching its decision was theoriginal Whanganui Chronicle article.[19] It emerged during the course of the teleconference that a copy of that articlewas not included as part of the case on appeal.[20] By consent, I make an order that a copy of the original Whanganui Chroniclearticle may be put before the Court on the hearing of this appeal.[21] I do not accept the argument of counsel for the applicant that, in order for theCourt to understand the degree of publicity, it needs to see the other articles. It will beapparent from the original article the nature of the publicity that the applicant has beensubjected to and which the Tribunal anticipated would occur.Conclusion[22] Accordingly, I am not satisfied that the requirements for the recall of thedecision are satisfied, and I decline to recall it.[23] Other than in respect of the original Whanganui Chronicle article, theapplication to adduce further evidence is dismissed.3 Austin Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141.4 Agreed bundle of documents Vol 3, page 603, lines 15-31.[24] Costs are reserved.Churchman JSolicitors:DLA Piper, WellingtonOffice of the Director of Proceedings