Dental Council of New Zealand, ex parte Gibson HC Auckland CIV 2010-404-230

[2010] NZHC 912

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-000230

UNDER  the Insolvency Act 2006

IN THE MATTER OF     the bankruptcy of Neville James Gibson

BETWEEN  THE DENTAL COUNCIL OF NEW ZEALAND

Judgment Creditor

AND  NEVILLE JAMES GIBSON Judgment debtor

Hearing:         2,3 June 2010

Appearances: M Broad and A Hall (3 June only) for Creditor

N J Gibson (Debtor in person) Judgment:       3 June 2010

ORAL JUDGMENT OF ASSOCIATE JUDGE BELL

Solicitors:

Kensington Swan, PO Box 10246, Wellington 6143

Copy to:

N J Gibson (Judgment debtor in person), c/o PO Box 7774, Wellesley Street, Auckland. And to: 7/58 Wattle Tree Road, Armadale, Melbourne, Victoria, Australia

THE DENTAL COUNCIL OF NEW ZEALAND V N JGIBSON HC AK CIV-2010-404-000230  3 June 2010

[1]      Neville James Gibson has applied to set aside a bankruptcy notice served on him.  The amount claimed under the bankruptcy notice is $56,529.06.  The debt is an order for costs given in this Court against him on 19 October 2009.   I have been advised that the debt is now $55,909.06.  Dr Gibson says that he has paid $620.00, while reserving all his rights.  I record that reservation.

[2]      This application has been heard in Court.

[3]      Dr Gibson has filed an application to set aside and two affidavits in support. The Dental Council has not filed any affidavits in opposition.  Dr Gibson’s second affidavit is lengthy.  It runs to 76 pages and has 597 paragraphs.  Attached to it is a statement of claim filed in the High Court in Wellington in March this year and that is also a very lengthy document.   It runs to 119 pages and has 275 paragraphs. Exhibit B is part of an amended statement of claim and exhibit D is a 165 page bundle of documents.  Then, at the start of the hearing, Dr Gibson tendered a draft amended statement of claim.  It is an incomplete document.  It is 214 pages long and has about 360 paragraphs.

[4]      The grounds in Dr Gibson’s application to set aside are:

a)        The debt is a nullity;

b)        The debt referred to is fatally flawed;

c)        The debt is unenforceable at law;

d)The debtor has made provision for any debt owed, although the debt is denied and for securing any debt owed;

e)        The debtor has a counterclaim, set-off and cross-demand against the creditor;

f)        The creditor owes the judgment debtor the amount in the bankruptcy notices served on the debtor on 26 January 2010;

g)       The  judgment  has  failed  to  rectify  the  bankruptcy  notice  when requested to do so by the debtor;  and

h)The judgment debtor claims costs of the application as a counterclaim, off-set and cross-demand against any debt (which is denied) claimed to be owed.

[5]      The background to this matter is that Dr Gibson is registered as a dentist but has not held an annual practising certificate for some years. He used to practise as a dentist in New Zealand but he now lives in Australia.     Disciplinary proceedings were taken against him under the Dental Act 1988.   There were charges laid in respect of patients called Scholes, Scott, Blunt and Mr and Mrs Frye.  The Dentists Disciplinary Tribunal found that the charges laid in respect of at least some of those complaints were proved:  Mr and Mrs Frye and Mr Blunt.  Dr Gibson appealed to the High Court against those decisions of the Dentist Disciplinary Tribunal.   Wylie J heard the appeals (Gibson v Complaints Assessment Committee HC Auckland CIV-

2005-404-007353 14 November 2008) and dismissed them.   Dr Gibson was later ordered  to  pay  costs  on  those  appeals.    The  cost  order  is  the  subject  of  the bankruptcy notice.

[6]      What I have just said simply describes how the judgment debt arose.   It is apparent from the large amount of material that Dr Gibson has placed before the Court that there have been very protracted proceedings involving the Complaints Assessment Committee and the Dentists Disciplinary Tribunal.   There have also been other proceedings in this Court involving decisions before Randerson J and Winkelmann J and there were also appeals from the decision of Wylie J to the Court of Appeal.

[7]       Dr Gibson’s application to set aside the bankruptcy can be considered under two heads:

a)        He says that the notice is defective;  and

b)He says that he has a cross-claim which satisfies the requirements of s 17(1)(d)(ii) of the Insolvency Act 2006 for cross-claims.

Whether the notice is defective

[8]      The first point has already been disposed of.  There was a typographical error in the order for costs. Originally, it was drawn as an order in favour of Dr Gibson, not against him. That matter has now been rectified following a minute of Associate Judge Christiansen on 18 March 2010 allowing the defect to be remedied under s 418 of the Insolvency Act 2006.  It is no longer an issue, and Dr Gibson did not pursue it in the hearing today.

[9]      The next point taken by Dr Gibson is that the sealed order for costs of

19 October 2009 shows the respondent, in whose favour the order for costs was made, as the Complaints Assessment Committee.   He says that the creditor in the bankruptcy notice is the Dental Council of New Zealand, and that is not the body shown as the respondent in the costs order.  Thus, he says that the Dental Council of New Zealand is not the correct creditor.

[10]     Ordinarily, the identity of the creditor is a significant issue.  If a debtor pays the debt to the incorrect creditor, he runs the risk of a second lawful demand from the correct creditor.

[11]     The Dental Council of New Zealand was constituted under s 69 of the Dental

Act 1988.  It says:

(1)There shall continue to be a Council known as the Dental Council of New Zealand  which  shall  be  the  same  Council  as  the Council  of  that  name constituted under s 3 of the Dental Act 1963.

(2)The Council shall continue to be a body corporate with perpetual succession and a common seal, and shall be capable of acquiring, holding and disposing of real and personal property, of entering into contracts, of suing and being sued, and of doing and suffering all such other acts and things as bodies corporate may do and suffer.

[12]     Section 70 of the Dental Act sets out the functions of the Council:

70       Functions of Council

The functions of the Council shall be—

(a)To advise and make recommendations to the Minister in respect of any matter relating to the practice of dentistry:

(b)To advise the Council of any university in New Zealand on any matter relating to the education of dentists:

(c)       To receive applications for registration under this Act, and to authorise registration in proper cases:

(d)To promote and encourage high standards of professional education and professional conduct among dentists:

(e)       To provide administrative and related services for the Dentists Disciplinary

Tribunal:

(f)        Generally, within the scope of its authority, to do whatever may in its opinion be necessary for the effective administration of this Act:

(g)       To  perform  such  other  functions  and  exercise  such  powers  as  may  be

conferred on it by this Act or any other enactment.

[13]     A complaints assessment committee is different from the Dental Council of New Zealand.  Complaints assessment committees are appointed under s 45 of the Dental Act:

45       Complaints Assessment Committee

(1)The Chairperson of the Council shall, from time to time as required by section 52 of this Act, appoint in relation to a particular case or cases involving a dentist, 2 dentists and 1 person who is not a practitioner to be a Complaints Assessment Committee.

(2)       The Chairperson of the Board shall, from time to time as required by section

52 of this Act, appoint in relation to a particular case or cases involving a clinical dental technician, 2 clinical dental technicians and 1 person who is

not a practitioner to be a Complaints Assessment Committee.

(3)       The Chairperson of the Board shall, from time to time as required by section

52 of this Act, appoint in relation to a particular case or cases involving a dental technician, 2 dental technicians and 1 person who is not a practitioner

to be a Complaints Assessment Committee.

(4)The Chairperson of the Council or the Board may at any time revoke any appointment made by that Chairperson under this section or reconstitute any Committee appointed by that Chairperson under this section.

(5)       The Chairperson shall appoint one of the members of each Complaints

Assessment Committee to be the Chairperson of that committee.

(6)Before making any such appointment, revocation, or reconstitution, the Chairperson shall consult with at least 3 members of the Council or the Board, as the case may require.

(7)       The Chairperson shall ensure that the practitioner in respect of whom a complaint has been made under section 52 of this Act is informed of the

general  nature  of  the  complaint  and  the  intended  membership  of  the

Complaints Assessment Committee that is to consider the complaint.

(8)The practitioner, on being informed under subsection 7 of this section of the intended  membership  of  the  Complaints  Assessment  Committee,  may request, giving reasons for the request, that the Chairperson do not appoint one or more of the intended members as members of the Complaints Assessment Committee.

(9)No member of the Council or the Board or a Disciplinary Tribunal shall be appointed to be a member of the Complaints Assessment Committee.

[14]     The role of a complaints assessment committee is to investigate complaints referred to it under s 52 of the Dental Act.  Section 53 provides:

53        Investigation by Complaints Assessment Committee

(1)       The Complaints Assessment Committee may require that the complaint be supported by such statutory declarations as it thinks fit.

(2)       The Complaints Assessment Committee shall determine whether or not in its opinion the matter should be considered by the Tribunal and shall report its finding to the chairperson of the Tribunal.

(3)       Where  the  Complaints  Assessment  Committee  has  reported  that  in  its opinion the matter should be considered by the Tribunal, the chairperson of the Tribunal shall forthwith cause a notice to be served on the practitioner in accordance with section 61(1) of this Act.

(4)       Where  the  Complaints  Assessment  Committee  has  reported  that  in  its opinion the matter should not be considered by the Disciplinary Tribunal, the Committee shall also inform the Council or the Board, as the case may require, and the Council or the Board may, if it thinks fit, refer the matter to the Tribunal for determination under this Part of this Act.

[15]     Matters investigated by the complaints assessment committee can be referred to The Dentists Disciplinary Tribunal under ss 54 and 61 of the Dental Act.

[16]     In Gibson v The Dentists Disciplinary Tribunal and Complaints Assessment

Committee of The Dental Council of New Zealand HC Wellington CIV-2004-485-

12,  16  February  2004,  Ellen  France  J  described  the  Complaints  Assessment

Committee at [49] of her decision:

The  CAC  is  set  up  to  assess  complaints  and  to  determine  whether  it considers these complaints should be considered by the Tribunal.  There is an analogy with the complaints assessment committees set up under the Medical Practitioners Act 1995.

In The Complaints Assessment Committee v R (CA282/01) 20 June 2002, the

Court   of   Appeal   noted   that   the   Medical   Complaints   Assessment

Committee’s function in relation to disciplinary action is “not to determine guilt”.   Rather, the CAC “determines whether the complaint should be considered by the Tribunal ...” (para 20).  The Court of Appeal also, in the context of considering the scope of the complaint, noted the “lack of opportunity” to “revisit procedural decisions made earlier in the sequence ...” (para 24).   Similarly, in K v The Psychologists Board HC Wellington CP59/98, 10 December 1998, at 14, Gendall J noted that the Complaints Assessment Committee set up in relation to psychologists has “only a preliminary restricted and a screening function”.   Finally, in Pahau v The Medical  Council  of  New Zealand  HC  Auckland    CIV-2003-404-002103,

4 December  2003,  O’Regan  J  agreed  with  Gendall  J’s  view  that  the preliminary screening nature of the inquiry undertaken by the Complaints

Assessment Committee in the medical context “should not be confused with a disciplinary hearing, and the requirements of natural justice must recognise

the more limited role of the CAC” (para 29).

[17]     In the complaints against Dr Gibson leading to the hearing of charges in  the Dentists Disciplinary Tribunal, the Complaints Assessment Committee acted in the way described by France J up to the point where charges were laid against Dr Gibson on 20 February 2003.  It also appears from Wylie J’s decision of 14 November 2008 that in the proceedings before the Tribunal, the Complaints Assessment Committee was nominally prosecutor, represented by counsel.  When Dr Gibson appealed to the High Court under s 64 of the Dental Act, he named the Complaints Assessment Committee as the respondent to the appeal.  The Dentists Disciplinary Tribunal and the Dental Council of New Zealand were, however, not named as parties to the appeal.   On the material I have seen, it appears that no point was raised as to the correct joinder of parties in the appeal.  Instead, the parties appear to have addressed the merits of the appeal without being worried about the technicalities of who were the correct parties to the appeal.

[18]     Technically,  it  would  have  been  better  to  join  the  Dentists  Disciplinary Tribunal as a party to the appeal as well.  The naming of the Complaints Assessment Committee as respondents could be justified on the basis that it had taken the role of prosecutor before the Tribunal and accordingly its presence before the High Court was required in any event.

[19]     While the Complaints Assessment Committee was the sole respondent in Dr Gibson’s partly unsuccessful appeal against the findings of the Dentists Disciplinary Tribunal, that does not mean that the Complaints Assessment Committee is necessarily the correct creditor for enforcing an order for costs made by the High

Court on Dr Gibson’s appeal.   That is because of the nature of a committee.   A committee is a person or group of persons who have been given responsibility for attending to some general or particular business or task.   A committee is usually appointed  by  some  parent  body,  such  as  a  board,  a  club,  a  council,  or  even Parliament.  It carries out some function for or on behalf of the parent body.  It does not have a separate legal existence, and is not a separate legal person.  It does not own property in its own right.  It does, however, exercise the powers and rights of its parent body.

[20]     There   are   some   statutory   exceptions   where   committees   do   have   an independent existence.  An example that comes to mind is a Maori komiti under the Maori Community Development Act 1962.

[21]     The   general   observations   about   committees   apply  to   the   Complaints Assessment Committee under the Dental Act.  A complaints assessment committee under the Dental Act does not have an independent existence.  It is simply a body of men and women appointed by the chairman of the Dental Council of New Zealand to carry out defined functions under the Dental Act.   A complaints assessment committee  does  not  hold  property  in  its  own  right.    It  cannot  be  the  legal  or beneficial owner of rights in an order for costs of the High Court.   Indeed, the individual members of the committee could not say that the order for costs was made for them personally.  The order for costs in favour of the Committee was really an order in favour of the Dental Council as the parent body of the Complaints Assessment Committee.   It was for the benefit of the Dental Council, which is entitled to enforce the order.  It is the creditor that is entitled to issue a bankruptcy notice.

[22]     There is a further issue, which Dr Gibson did not address, but needed to be cleared up.  The body named as the creditor is the Dental Council of New Zealand, being the body established under s 69 of the Dental Act.  However, the Dental Act was repealed by the Health Practitioners Competence Assurance Act 2003. That repeal took effect in 2004 under s 2(5) of the later Act.  With the repeal of the Dental Act, the Dental Council of New Zealand went out of existence.  This is made clear by s 114 of the Health Practitioners Competence Assurance Act.   Under s 114(1),

certain former statutory bodies continued in existence.  These are listed in Schedule

2 of that Act.  However, for dentistry, a new body was established.  This is provided under s 114(2) which says:

This subsection establishes a body corporate as the authority appointed in respect of the professions of dentistry, dental hygiene, clinical dental technology, dental technology, and dental therapy;   that authority is to be known as the Dental Council.

[23]     The  transitional  provisions  of  the  Act  refer  to  the  Dental  Council  of New Zealand under the Dental Act as the old Dental Council and the Dental Council under  the  Health  Practitioners  Competence  Assurance  Act  as  the  new  Dental Council.

[24]     Section 216 of the Health Practitioners Competence Assurance Act deals with the continuation of investigations, inquiries and disciplinary proceedings that had started under the earlier legislation.  Section 216(1) says:

All investigations, inquiries and disciplinary proceedings under a former registration Act that have been commenced before the commencement of this section that have not been completed before that commencement are to be continued and completed as if the former registration Act had not been repealed.

[25]    That provision applies in this case because the disciplinary proceedings commenced against Dr Gibson had been started under the Dental Act, before the Health  Practitioners  Competence  Assurance  Act  had  come  into  force.    Section

216(3) says:

For the purpose of continuing, under subsection (1), any investigation, inquiry, or proceeding concerning a health practitioner or former health practitioner, any reference in a former registration Act to a board or council with  which  the  health  practitioner  or  former  health  practitioner  was previously registered must be read as a reference to the successor authority.

[26]     This means that any reference to the old Dental Council must now be read as a reference to the new Dental Council.

[27]     In  this case,  the bankruptcy notice shows the  old Dental Council as the creditor in the bankruptcy notice, whereas it should be the new Dental Council.

[28]     There has been a mistake in that the named creditor is a body that has gone out of existence and has been replaced by another body.   However, that is not a defect  that  invalidates  the  bankruptcy  notice  or  requires  that  it  be  set  aside. Applying s 418 of the Insolvency Act, I am satisfied that Dr Gibson has not been prejudiced by the defect.  He was not alive to the issue and he has not been misled by it.  In Best v Watson [1979] 2 NZLR 492, the Court of Appeal indicated that s 11 of the Insolvency Act 1967, predecessor of the current s 418, should not be applied in a mechanical or technical way. I am satisfied that the defect in the identity of the creditor can be appropriately rectified under s 418. The creditor is now to be shown as the Dental Council instead of the Dental Council of New Zealand.

[29]     Another point made by Dr Gibson is that he had paid $1600 into court by way of security for costs for his appeal from the decision of the Dentists Disciplinary Tribunal. That does not invalidate the bankruptcy notice.  It could potentially have a bearing on any application the Dental Council might make for Dr Gibson to be adjudicated bankrupt because it does have the security for that sum.   Inquiries were made during the hearing and the parties agreed that the sum and any interest on it held by the Court should now be paid out to Kensington Swan as solicitors for the Dental Council.  To avoid any doubt about the matter, I now give a direction that the Registrar is to pay that sum out to Kensington Swan.

Dr Gibson’s cross-claim

[30]     Dr Gibson’s cross-claim is set out in the amended statement of claim which he tendered during the hearing.  Dr Gibson is the plaintiff.  The defendants are the Solicitor-General, the Dental Council of New Zealand, D’Ath Law (a Wellington law firm), Matthew McClelland (a Wellington barrister), Hunt Edwards Worker (an Orewa law firm), the former Health & Disability Commissioner, the New Zealand Dental Association, Brent Stanley and David Marshall (dentists) and Kirsty McDonald QC.     Dr Gibson’s claims are said to be for breach of statutory duty, malfeasance, misfeasance, breach of the Fair Trading Act 1986, breach of contract, breach of fiduciary duty, breach of duty of care, breach of the Bill of Rights Act

1990,  and  unjust  enrichment.    The  damages  claimed  are  $6,695,000,  being  $3

million for loss of income since May 2001, $3 million for loss of future earnings and opportunity, punitive damages of $75,000, general damages of $250,000, legal costs of $250,000 and penalty interest costs of $120,000.   It is a difficult and diffuse document.  It is not clear exactly what is alleged against the Dental Council.

[31]     In the narrative paragraphs of the statement of claim, Dr Gibson has pleaded various disciplinary steps taken against him by the Complaints Assessment Committee, by the Dental Council, and the Dentists Disciplinary Tribunal.   The pleading refers to complaints by Scholes and Scott, as well as by Blunt and Mr and Mrs Frye.   I infer that Dr Gibson is seeking some form of compensatory relief because of the action taken against him in relation to those disciplinary proceedings before the Dentists Disciplinary Tribunal.

[32]     The first issue is whether Dr Gibson could have used these matters as a defence in the proceeding in which the order for costs was obtained against him. The proceeding was an appeal under s 64 of the Dental Act.  The appeal was heard under rr 701-718 of the former High Court Rules, now Part 20 of the current High Court Rules.

[33]     An appeal is a distinct proceeding with its own rules and procedures.  It is not commonly or conveniently heard with any other proceeding, except occasionally with an application for judicial review.  I accept that Dr Gibson could not properly have included his claim for damages in his appeal.  If he had attempted to do so, I am confident  that  the  Court  would  have  separated  out  his damages  claim  from  his appeal,  and  required  that  the  appeal  be  heard  first  before  any  decision  on  his damages claim was made.  The success of his damages claim would, in part, turn on the success of his appeal and it would have been proper for him to await the outcome of his appeal before mounting any damages claim.  I therefore accept that Dr Gibson could not have used his damages claim as a defence in the proceeding in which the order for costs was made against him.

[34]     Dr  Gibson  must  also  show  that  he  has  a  genuine  triable  cross-demand:

Sharma v ANZ Banking Group (1992) 6 PRNZ 386 (CA) at 389.  It has also been

said that the debtor must show that the alleged cross-claim has true substance, is genuinely pursued, and has a reasonable probability of success.

[35]     To determine these matters, it is necessary to consider Dr Gibson’s claim, with some reference to a provision of the Dental Act. Section 76 of the Act says:

Neither the Council, the Board, a Tribunal, the Complaints Assessment Committee nor any member or employee of any of them, shall be under any criminal or civil liability whatever in respect of anything done or omitted to be done or of any word spoken or written at or for the purposes of the hearing of any inquiry or other proceedings under this Act unless it is proved to the satisfaction of the Court before which any proceedings are taken that the defendant in the proceedings has acted in bad faith.

[36]     This  establishes  a  defence.    It  does  not  create  a  new  head  of  liability. Someone  wanting  to  sue  the  Dental  Council  must  still  make  a  claim  as  a recognisable cause of action. He will also have the onus of establishing that the Dental Council, its chairman, the Dentists Disciplinary Tribunal and its members, and the Complaints Assessment Committee acted in bad faith.

[37]     Next, if disciplinary proceedings have been continued transitionally under s 216 of the Health Practitioners Competence Assurance Act, Dr Gibson keeps any rights he might have in respect of those proceedings, and that includes the right to sue for any wrong he might suffer in the course of the proceedings.  The old Dental Council going out of existence does not deprive him of a claim against its successor body when the disciplinary proceedings have been continued under s 216.

[38]     Dr Gibson’s amended statement of claim refers to events going back many years.    He  refers  to  a  concerted  campaign  by  some  dentists  to  discredit  him beginning in 1988.  He complains about information the old Dental Council gave the Dental  Board  of  Queensland  in  2001,  which  allegedly prevented  him  obtaining registration in that State.   He complains about the breaking into of a shipping container containing his belongings which were being shipped to Australia.  Clearly, causes of action that accrued more than six years before he filed the proceedings are subject to a limitation defence and are not genuinely triable.

[39]     Dr Gibson spent quite some time in his submissions detailing events in the

2001-2003 period which he said amounted to breaches of natural justice in the conduct of the Complaints Assessment Committee’s investigation, its report, and in the proceedings before the Dentists Disciplinary Tribunal.

[40]     In his pleadings, Dr Gibson refers to the Scholes’ complaint.  As I read his pleading, the Scholes’ complaint was taken through to a hearing before the Dentists Disciplinary Tribunal, which found against him.  In January 2003, he appealed to the High Court against the decision of the Dentists Disciplinary Tribunal.   Later, his appeal was struck out for lack of prosecution.   He applied for a rehearing of that application but that rehearing application was dismissed by Winkelmann J in 2004. Any damage he has suffered as a result of the Dentists Disciplinary Tribunal making findings against him on the Scholes’ complaint are matters that arose more than six years before he filed his proceeding in the High Court at Wellington.   Matters relating to the Scholes’ complaint are clearly out of time.

[41]    The matters that were ongoing within the last six years are disciplinary proceedings against Dr Gibson on complaints made by Scott, Blunt and Mr and Mrs Frye.   As far as the Scott complaint is concerned, Dr Gibson told me that the Tribunal ordered him to pay some costs, but did not impose any other penalty on him. After taking advice, he chose not to appeal against that decision.

[42]     Adverse findings were made against him on the Blunt and Frye complaints. The Dentists Disciplinary Tribunal found, under s 54(1)(b) of the Dental Act, that he was guilty of acts and omissions, in the course of the practice of dentistry, that could have been detrimental to the welfare of those complainants.   Dr Gibson was not struck off but other orders were made.  As I read his statement of claim, these are the matters that could be within time and could be directed against the Dental Council.  I do not read anything else in the lengthy statement of claim as being relevant to a potential claim within time against the Dental Council.  None of the other matters give him a genuine triable cross-claim.

[43]     Dr Gibson’s complaints about the disciplinary proceedings taken against him are based on alleged breaches of natural justice. He relied on the requirement to

observe the principles of natural justice in s 61(5) of the Dental Act. Ordinarily, the normal remedy for a breach of natural justice is to use any appeal rights available or to seek judicial review. Damages are not normally available.  Dr Gibson’s best hope for a cause of action giving him damages relief may be a claim for misfeasance in public office.   But having said that, a warning has to be given that allegations of misfeasance in public office are easily made but they tend to be very hard to prove.  I

repeat the warning I gave in the Krukziener decision[1] about the example of the Three

Rivers litigation[2]:   very complicated litigation in England which was  ultimately completely unsuccessful and led to full indemnity costs being ordered against the plaintiffs.

[1] Re Krukziener ex parte Commissioner of Inland Revenue HC Auckland CIV-2009-404-5101, 17 February 2010

[2] Three Rivers Council v The Governor and Company of the Bank of England [2006] EWHC 816.

[44]     I divert to one matter which was not raised by Dr Gibson.  I infer that he must have had advice about this.  He has not made a complaint of malicious prosecution. There is a decision of the House of Lords in Gregory v Portsmouth City Council [2000] 1 AC 419 which holds that a cause of action for malicious prosecution is not available for unsuccessful disciplinary proceedings. Even if New Zealand were not to follow the House of Lords in Gregory v Portsmouth City Council, Dr Gibson could not succeed in a claim for malicious prosecution because the prosecutions succeeded, and he was found liable in the disciplinary proceedings.  This points to the fact that those were adverse findings against him, and do stand in the way of his present complaints.

[45]     I also note that the Court of Appeal has indicated that damages under the New Zealand Bill of Rights Act will not be awarded for breaches of natural justice, and I refer to Brown v Attorney-General [2005] 2 NZLR 405, Attorney-General v Udompun [2005] 3 NZLR 204.

[46]     The other causes of action in the statement of claim are simply misconceived and untenable as claims against the Dental Council.  I do not intend to go through these  in  full  detail.    I simply indicate  this.    I  do  not  accept  that  there  is  any conceivable claim for breach of statutory duty.  The Dental Council, the Complaints Assessment  Committee,  the  Dentists  Disciplinary  Tribunal  and  the  people  who

carried out the functions of those bodies were carrying out public law duties.  Breach of those public law duties does not give rise to a private law action for damages. This is not the kind of case where the law of torts will add to the normal remedies by imposing any liability of damages.   In particular, there is a strong public interest consideration against imposing any tortious obligation on people who are required to apply principles of natural justice. Those considerations are equally applicable to claims in negligence.  Also, it is quite clear that the claim for breaches of the Fair Trading Act is misconceived.   The people in question were carrying out statutory functions.  They were not in trade for the purpose of the Fair Trading Act.

[47]     Coming back to Dr Gibson’s claim for misfeasance in public office.   As I understand his case, he is alleging targeted malice by certain lawyers and other people and also alleging that people acted knowingly and without lawful authority, knowing that it would cause him damage.

[48]     I  was  not  impressed  by  his  claims  of  breach  of  natural  justice.  The disciplinary proceedings were protracted, to give him every opportunity to prepare and present his case. For much of the time he had legal representation which he used to good effect to slow the process, taking many objections and points, even taking judicial review proceedings in this Court. The proceedings were hard fought. Dr Gibson gave as good as he got.  He did not persuade me that any of the points he raised could give him a triable claim that he did not have a fair hearing.

[49]     Dr Gibson’s claims attacking the disciplinary proceedings taken against him and  seeking  compensation  for  them  can  be  seen  as  indirectly  attacking  the correctness and validity of the decisions of the Dentists Disciplinary Tribunal and the High Court. A damages award in his favour could not stand with the Tribunal’s and High  Court’s  findings  without  bringing  those  decisions  into  disrepute.  In  other words, his claim is an attempt to re-litigate matters that have already been finally determined.   In Hunter v Chief Constable of the West Midlands Police [1982] AC

529 at 541, Lord Diplock said:

The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral

2

attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.

[50]     It is helpful to refer to the facts in the Hunter case.  The Hunter case was a civil proceeding brought against policemen and prison officers.   It alleged assault and battery by police and prison officers against men who had been arrested on terrorism charges.  The House of Lords held that the allegations of violence against these men as arrested people facing criminal charges would constitute a collateral attack on the decision in the criminal trial in which they were found guilty of the terrorism charges.   A civil proceeding challenging conduct preliminary to a court decision may still amount to an abuse of process.

[51]     The principle is also stated in Spencer Bower and Handley Res Judicata (4th

ed, LexisNexis, London, 2009), at ch 26:16(a):

An action or defence by a party who, as claimant or defendant was unsuccessful or substantially so in earlier proceedings, in which he had a proper opportunity of being heard, may be dismissed or struck out as an abuse of process where the action or defence is a collateral attack on the earlier decision, especially if there are aggravating features such as ulterior purpose, prejudicial delay, or the absence of fresh evidence.  ...

[52]     These clearly apply to proceedings in another court.  But Dr Gibson’s attack is  made  against  the  proceedings  of  the  Dentists  Disciplinary  Tribunal.    Is  the Tribunal a court for the purpose of this abuse of process rule?   Quite clearly, not every tribunal  can be a court, but it is also clear that there  are some statutory tribunals that operate as courts.  In Res Judicata at ch 2.03, there is a discussion of what constitutes a judicial tribunal for the purpose of the res judicata rules.  The text says this:

Tribunals established by statute may be ‘judicial’ for present purposes.  They include:   a court martial;   a naval court under the Merchant Shipping Act

1894;  a medical tribunal, such as the College of Physicians, or the General

Medical  Council;    judges  appointed  to  try  election  petitions  under  the

Parliamentary Elections Act 1868, ...

and then a number of other examples are given.  The text also refers to a decision of the New Zealand High Court, X v Y [1996] 2 NZLR at 195 where Hugh Williams J considered the Medical Practitioners Disciplinary Committee and held tentatively

that the disciplinary committee in that case was a judicial tribunal for the purpose of issue estoppels.  I accept that for these purposes, the Dentists Disciplinary Tribunal is a judicial tribunal, and if decisions of the Dentists Disciplinary Tribunal are of a judicial nature so as to give rise to res judicata and issue estoppel, then they are also decisions of a judicial tribunal for the purpose of the abuse of process doctrine recognised in Hunter.

[53]     The remedy that the law gave Dr Gibson if he was disappointed with the decisions of the Dentists Disciplinary Tribunal was to appeal to the High Court. That is a remedy he chose to take on the Scholes, Blunt and Frye decisions. His failure to prosecute the Scholes’ appeal cannot be sheeted home to the Dental Council.   The decision of Wylie J on the Blunt and Frye matters shows that the appeal was a re-hearing on the merits following the principles laid down by the Supreme Court in Austin Nicholls & Co Inc v Stichting Lodestar [2008] 2 NZLR

141. The decision itself shows a thorough and careful examination of the evidence before  the  Dentists  Disciplinary  Tribunal,  and  Wylie  J  clearly  reconsidered  the matter  afresh  and  independently.     He  upheld  the  decisions  of  the  Dentists Disciplinary Tribunal except on the matter of costs.  Dr Gibson later sought leave to appeal to the Court of Appeal.  He required leave to do so because this was a second appeal and leave was refused.  He later applied for recall of that decision and that recall application was also unsuccessful.

[54]     Dr Gibson’s present proceeding is in fact an attack on the decision of this Court upholding the decisions of the Dentists Disciplinary Tribunal on the Fryes and Blunt  complaints.    The  proceeding  clearly  comes  within  the  abuse  of  process doctrine as laid out by Lord Diplock in Hunter’s case.   Dr Gibson’s proceeding against the Dental Council is accordingly an abuse of process, and those parts of the statement of claim directed against the Dental Council would be the subject of an effective strike-out application under r 15.1(1)(d) of the High Court Rules.   The decision is also an attack on the findings of the Dentists Disciplinary Tribunal in respect of the Scott complaint which I hold is a judicial tribunal for the purpose of this abuse of process doctrine.

[55]     The Dental Council also cited the decision Krukziener v Commissioner of Inland Revenue.   That was the case where a debtor contested a bankruptcy notice issued by the Commissioner of Inland Revenue by alleging misfeasance in public office on the grounds that officers of the Commissioner had taken a vendetta against him.

[56]     The  present  case  has  some  elements,  but  not  all,  in  common  with  the Krukziener  case.     There,  I  found  the  allegations  of  a  vendetta  completely implausible.   In this case, the fact that the findings of the Dentists Disciplinary Tribunal have been upheld by the High Court on appeal is vindication of the Dental Council  of  New Zealand  and  the  Complaints  Assessment  Committee  that  it appointed.

[57]     Overall,   Dr   Gibson’s   alleged   claim   against   the   Dental   Council   is misconceived and irresponsible. It has these marks of vexatious litigation:

a)        The documents are prolix and unfocused;

b)Names of causes of action are invoked, more for effect than for being soundly based:  breach of statutory duty, breach of the Fair Trading Act, breach of the New Zealand Bill of Rights Act, unjust enrichment, malfeasance;

c)       There  are  wildly  exaggerated  claims  for  damages  without  any evidence to support the amounts claimed;

d)Limitation provisions have been disregarded.   Matters that are now well out of time are brought up for the Court’s consideration;

e)       The claim has been made as a cross claim in response to a legitimate demand  arising  from  a  court  judgment  and  is  likely to  delay the enforcement of that demand;

f)        The claim with its extraordinary number of allegations and enormous sum for damages is calculated to intimidate;

g)       The claim flies in the face of the considered judgment of Wylie J and tries to relitigate matters that have been finally determined;  and

h)There  have  been  breaches  of  timetabling  directions,  which  have caused inconvenience to the Court and the other party.  Dr Gibson’s second affidavit came in late.  He did not give a written synopsis until the hearing and he gave an amended written synopsis on the second day of hearing.   He tendered his amended statement of claim at the hearing.   I note that other judges have also recorded delays   by Dr Gibson.

[58]     In summary, I find that the claims made by Dr Gibson are groundless.  There is no point in requiring his pleadings to be amended because any amendment would not be able to overcome the fundamental problem that his proceeding against the Dental Council is an abuse of process.

[59]     During the hearing, Dr Gibson advised that his current address is 7/58 Wattle Tree Road, Armadale, Melbourne, Victoria, Australia, but that he is to shortly move to New South Wales.  He also gave his mobile telephone number and indicated that he could be contacted on that telephone number.   Those matters should assist the creditor if it does need to serve further documents on him.

Costs

[60]     This is an appropriate case for an uplift.  The provisions allowing uplift in this case are r 14.6(3)(b)(i) and (ii) of the High Court Rules.  Sub-rule (i) allows an uplift where there has been failure to comply with the rules and the directions of the Court.  I find that there has been a failure to comply with the directions with late filing of affidavits, late filing of synopsis and being late in Court.    Sub-rule (ii) allows uplift for taking on and pursuing an unnecessary step or an argument that lacks merit.  This case has had substantial argument that lacks merit and justifies an uplift.   I award the creditor costs of $9000.   Those are costs worked out on a 2B basis.   It covers all steps taken by the creditor from the issue of the bankruptcy notice.  There is no provision for second counsel.  It is calculated on the basis of a

hearing of one and a half days and preparation for one and a half days.  There is also an element of uplift in that sum as well.  The creditor is also entitled to recover any disbursements approved by the Registrar.

[61]     I make these orders:

a)        The application to set aside the bankruptcy notice is dismissed.

b)The Registrar is directed to pay the sum paid into Court as security for costs in CIV-2005-404-007353 and 007355 and interest earned to the solicitors for the Dental Council.

c)       The debtor shall pay the creditor costs of $9,000, plus disbursements approved by the Registrar.

R M Bell

Associate Judge