B v Director of Proceedings HC WN CIV 2008-485-1021

[2008] NZHC 2455

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2008-485-1021

UNDER  the Health and Disability Commissioner

Act 1994

IN THE MATTER OF     an Appeal pursuant to section 123 of the

Human Rights Act 1993

BETWEEN  B Appellant

ANDDIRECTOR OF PROCEEDINGS Respondent

Appearances: On the Papers

Judgment:      31 July 2008 at 4.45pm

In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 4.45pm on the 31st day of July 2008.

RESERVED JUDGMENT OF MACKENZIE J

[1]      This is an appeal against a decision of the Human Rights Review Tribunal

(HRRT) refusing to grant suppression of name to the appellant.

[2]      In a joint memorandum, counsel for the appellant and the respondent have requested an order granting the appeal and overturning the HRRT decision on permanent name suppression.   The essential issue before me is whether the Court should accede to this request, or whether the matter should proceed to a hearing.

[3]      The brief facts are that the appellant is a medical practitioner, who faced two sets of proceedings arising from his treatment of a patient.  The first was a charge

laid before the Health Practitioners Disciplinary Tribunal (HPDT) under the Health

B V DIRECTOR OF PROCEEDINGS HC WN CIV 2008-485-1021  31 July 2008

Practitioners Competence Assurance Act 2003.  The second was a claim before the HRRT under the Health and Disability Commissioner Act 1994.  The case before the HPDT was heard over three days in June 2006, and the tribunal’s decision, extending to some 55 pages, was issued on 31 August 2006.   The HPDT’s finding was that there were a number of deficiencies in the appellant’s treatment and management of the patient, which each constituted a failure to adhere to the standards reasonably expected of a general practitioner in the appellant’s circumstances.   The appellant was required to participate in a professional development programme, and was also censured and ordered to pay costs.   The HPDT considered the question of name suppression.  It dealt with that at length, extending to some eight pages in which it discussed the legal principles, the public interest, and the interests of the appellant and his family.   In a three/two majority decision, the HPDT decided in favour of granting permanent name suppression.

[4]      The second claim subsequently came before the HRRT, and was the subject of a decision dated 16 April 2008.  The decision records that the parties had reached agreement on the relevant facts, and as to the orders which ought to be made by the tribunal as a result.  Those facts, and the orders, were recorded in the decision.  On the issue of name suppression, the respondent had consented to the making of such an order.  However, the HRRT took it to be common ground that notwithstanding the agreement between the parties, the question as to whether or not such an order ought to be made is ultimately for the tribunal to decide.  It discussed the question, also at some length and in some detail, and reached the conclusion that permanent name suppression should not be granted.  The present appeal is against that decision.

[5]      The appellant must persuade this Court that the decision appealed against was wrong.  The respondent does not seek to contend to the contrary, and counsel for the HRRT has properly taken the position that it should not take an active involvement in the hearing of the appeal.

[6]      I consider that the matter may properly be dealt on the basis of the joint memorandum of counsel.  Our adversarial system ordinarily requires that the Court hear arguments on both sides of a particular issue.   That means that on an appeal such as this the Court would normally expect to hear submissions supporting the

HRRT’s decision.   But, where counsel for the respondent does not feel able to advance submissions supporting the decision, I do not consider that counsel should be required to do so, or that some other steps should be taken to have that point of view presented.

[7]      Essentially, this Court is faced with the same situation as that which faced the HRRT, namely that the parties were agreed as to the appropriate outcome.   The tribunal recognised that this did not relieve it of the duty to make its own assessment and to reach its own decision.   Likewise, the agreement of the parties does not relieve this Court of its obligation to reach its own conclusion.  The agreement of the parties does however, in my view, render it unnecessary to deal with the matter by way of oral hearing.

[8]      I  turn   then   to   consider   the   question   of   whether   the   appellant   had demonstrated that the decision of the HRRT was wrong.  Clearly, this was a difficult case.  The fact that the HPDT was split over the question illustrates that.  The HRRT took the approach of first considering whether it would be prepared to make an order in the exercise of its discretion under s 107(3)(b) of the Human Rights Act 1993 irrespective of what had occurred in the HPDT.  It found that it was not persuaded to exercise its discretion in favour of granting suppression.  The HRRT then went on to consider whether the fact that an order of that kind had been made by the HPDT in the earlier proceedings relating to the same events should affect their conclusion.  It concluded that it should not.

[9]      I do not consider that the HRRT was correct to approach the question in this two-stage way.  The sole question for the HRRT was whether it should exercise the discretion in s  107(3).   A relevant factor, in that consideration, was the HPDT proceeding, and the order made by that tribunal.   I consider that a relevant consideration  was  that  the  principal  proceedings  were  clearly  those  before  the HPDT.  In all respect other than name suppression, the HRRT decision simply gave effect to an agreement which the parties had been able to reach, with the benefit of the decision of the HPDT.  It was a relevant circumstance that, with the benefit of a much closer consideration of the circumstances, the HPDT had reached the view,

albeit by a majority only, that the circumstances were such that suppression of name was appropriate.

[10]     The HRRT considered, and rejected, an argument that the declining of name suppression might place the HRRT at risk of a breach of the HPDT order.  It also considered and rejected a submission that the proceedings in the HPDT give rise to an issue estoppel or abuse of process argument.  I do not consider that the appellant has demonstrated that the HRRT was wrong in either of those respects.   But the HRRT did go on to describe its assessment as to whether or not name suppression should be granted as being “independent of that which has been determined by the HPDT”.  I consider that that indicates that insufficient regard was had to the HPDT order, when considering the exercise of its discretion under s 107.

[11]     For these reasons, I consider that the appellant has discharged the onus on it of demonstrating that the HRRT decision was wrong.  I consider that the Court can also properly take into account the agreement of the respondent that the HRRT decision was wrong.

[12]     For these reasons, the appeal is allowed.  In consequence of the allowance of the appeal, I make the following orders:

(a)      The appellant is granted permanent suppression of his name and the location of his practice for the purposes of the proceedings in both this Court and the HRRT;

(b)The HRRT decision is to be amended to remove the appellant’s name, by substituting “TMC”, and the location of his practice;

(c)      The Court file and the HRRT file are not to be searched without the leave of a Judge of this Court;  and

(d)      Costs are to lie where they fall.

“A D MacKenzie J”

Solicitors:           Bartlett Partners, Wellington for Appellant

Crown Law, Wellington for Respondent