Fernando v Professional Conduct Committee - [2017] NZHC 1028

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-000976 [2017] NZHC 1028

IN THE MATTER
of an appeal pursuant to s 106 of the

Health Practitioners Competence
Assurance Act 2003

BETWEEN

HIRRON FERNANDO Appellant

AND

PROFESSIONAL CONDUCT COMMITTEE

Respondent

Hearing: 8 May 2017

Appearances:

N Levy for Appellant
J C Hughson and A M Hall for Respondent

Judgment:

18 May 2017

JUDGMENT OF FAIRE J

This judgment was delivered by Justice Faire on 18 May 2017 at 2.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors: Ord Legal, Wellington

Counsel: N Levy, Wellington
J C Hughson, Wellington

Copy for: Medical Council of New Zealand, Wellington

HIRRON FERNANDO v PROFESSIONAL CONDUCT COMMITTEE [2017] NZHC 1028 [18 May 2017]

The appeal

[1] The appellant appeals pursuant to s 106(2) of the Health Practitioners Competence Assurance Act 2003 (HPCA Act) against the decision of the New Zealand Health Practitioners Disciplinary Tribunal (Tribunal) dated
11 November 2016. Pursuant to s 101 of the HPCA Act, the Tribunal censured the appellant, cancelled his registration and ordered the appellant to pay costs.

The grounds of the appeal

[2] Counsel for the appellant advised that the appeal would proceed on the first pleaded ground only. The other grounds were abandoned. As a consequence, the sole ground relied upon is that the Tribunal had no jurisdiction to make the orders which it made. That jurisdictional bar is said to arise from the fact that the appellant was not a resident in New Zealand at the time of the alleged offences, nor has he been in New Zealand since and, more particularly, he was not in New Zealand at the time the charges which are the subject of this matter were laid.

The charges

[3] The respondent, the Professional Conduct Committee was appointed by the Medical Council of New Zealand pursuant to s 71 of the HPCA Act. The Committee issued a notice dated 18 April 2016 charging the appellant with professional misconduct pursuant to s 100(1)(a) and/or (b) of the HPCA Act, which provide:

100 Grounds on which health practitioner may be disciplined

(1) The Tribunal may make any 1 or more of the orders authorised by section 101 if, after conducting a hearing on a charge laid under section 91 against a health practitioner, it makes 1 or more findings that—

(a) the practitioner has been guilty of professional misconduct because of any act or omission that, in the judgment of the Tribunal, amounts to malpractice or negligence in relation to the scope of practice in respect of which the practitioner was registered at the time that the conduct occurred; or

(b) the practitioner has been guilty of professional misconduct because of any act or omission that, in the judgment of the Tribunal, has brought or was

likely to bring discredit to the profession that the health practitioner practised at the time that the conduct occurred; or

[4] The notice of charge particularised the charge of professional misconduct in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Fernando v Professional Conduct Committee and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NZHC 1028
Decision Date: 18 May 2017

CaseChat Overview and Summary

The appeal in the case of Fernando v Professional Conduct Committee was brought by the appellant, Hirron Fernando, against the decision of the New Zealand Health Practitioners Disciplinary Tribunal. The Tribunal had censured the appellant, cancelled his registration, and ordered him to pay costs. The appellant contested the Tribunal's jurisdiction, arguing that since he was not a resident of New Zealand at the time of the alleged offences, nor had he been in New Zealand since, the Tribunal had no jurisdiction to make the orders it did.

The court had to decide whether the Tribunal had jurisdiction to hear and determine charges brought against health practitioners, particularly when the alleged misconduct occurred partly in New Zealand, and whether the appellant, who had voluntarily registered himself in New Zealand, could be subject to the jurisdiction of the Tribunal regardless of his physical location at the time of the disciplinary hearing. The court had to examine the Health Practitioners Competence Assurance Act 2003 (HPCA Act) and determine if there was any provision to deal with registered persons who were no longer physically in the country, and whether the disciplinary regime had extra-territorial effect.

The court found that the Tribunal had jurisdiction to hear and determine charges against health practitioners, and that a health practitioner was defined in the HPCA Act as a person who is registered with an authority of a particular health profession. A person was not required to have a current practising certificate for charges to be brought against them. The court was satisfied that the Tribunal had jurisdiction to consider the conduct complained of, as the conduct occurred at least partially in New Zealand, and the disciplinary regime's purpose was to maintain professional standards, which included relevant conduct occurring at least partially in other countries. The court dismissed the appeal against the Tribunal’s decision based on jurisdictional grounds.

The court ordered that the respondent was entitled to costs on a 2B basis. If counsel could not agree on the application of category 2 band B to this case, memoranda in support, opposition, and reply shall be filed and served at seven-day intervals. On receipt of the reply memoranda, the file shall be referred to the judge, or another judge in the judge's absence, for conclusion of costs.

Orders