Flett v Dental Council - [2016] NZHC 358

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-1834 [2016] NZHC 358

UNDER the Judicature Amendment Act 1972

IN THE MATTER

of an application for judicial review

BETWEEN

R'DAVID FLETT Applicant

AND

DENTAL COUNCIL Respondent

Hearing: 17 February 2016

Counsel:

A D Banbrook for Applicant (Respondent in strike out) A K Miller for Respondent (Applicant in strike out)

Judgment:

4 March 2016

JUDGMENT OF DAVISON J

This judgment was delivered by me on 4 March 2016 at 3pm pursuant to Rule 11.5 High
Court Rules.
Registrar/Deputy Registrar

Solicitors: C K Lyon (Auckland) for Applicant
Claro Law (Wellington) for Respondent

FLETT v DENTAL COUNCIL [2016] NZHC 358 [4 March 2016]

Introduction

[1] The plaintiff, Dr Flett, brings an application for judicial review of the decisions of the Dental Council of New Zealand (the Council) made in relation to:

(a) his removal from the register of dental practitioners (the Register) on

21 July 2009;

(b) and the Council’s refusal or deferment of his restoration onto the

Register.

[2] The Council applies to strike out Dr Flett’s statement of claim on the grounds that the matter raised in the proceeding is futile as the Council has already restored Dr Flett’s name onto the Register (which it did on 8 September 2015), and that his claim for damages is untenable.

Factual background

[3] Section 142 of the Health Practitioners Competence Assurance Act 2003 (the Act) provides that a health practitioner may ask for their registration to be cancelled by making written application to the responsible authority, which may direct the Registrar to cancel the entry in the Register relating to the health practitioner. Similarly, s 144(3) of the Act provides that:

If the health practitioner tells the Registrar in writing that he or she wishes to have the entry in the register relating to him or her cancelled, the Registrar may cancel the entry in the register relating to the health practitioner.

The removal of Dr Flett’s name from the Register

[4] On 21 July 2009, the Council removed Dr Flett’s name from the Register. The Council says that it did so in accordance with and as a result of a written request sent from Dr Flett by way of email, asking that his registration be cancelled (the email request).

[5] Dr Flett was first registered on 9 March 1977. The Council says that, on 17

July 2009, Dr Flett telephoned the Council office to advise that he had some time earlier sent an email to the Council requesting that his name be removed from the Register. In the course of this telephone conversation, he referred to the name of the Council staff member that he had directed his email to. Acting on this telephone call, and on the basis of the email request, the Council, on 21 July 2009, forwarded a “request for name to be removed from the Dental Register” to the Registrar of the Dental Council of New Zealand (the Registrar). This request was made pursuant to s
144(3) of…

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.

Continue reading Flett v Dental Council

Details

AGLC: Flett v Dental Council [2016] NZHC 358
Case: [2016] NZHC 358
Decision Date: 4 March 2016

CaseChat Overview and Summary

Dr Flett brought an application for judicial review of decisions of the Dental Council of New Zealand, made in relation to: (a) his removal from the register of dental practitioners on 21 July 2009; and (b) the Council’s refusal or deferment of his restoration onto the Register. The Council applied to strike out Dr Flett’s statement of claim on the grounds that the matter raised in the proceeding was futile as the Council had already restored Dr Flett’s name onto the Register, and that his claim for damages was untenable. The court found that the Council’s subsequent decision to reinstate Dr Flett’s name upon the Register following receipt of service of these proceedings meant that there was no longer an extant or operative decision that could be the subject of an order to quash. In addition, Dr Flett had not pleaded any facts or assertions which were capable of supporting a civil law claim for damages. There was no causative connection between the decision to remove him from the Register and the alleged loss, as Dr Flett had not held a practising certificate at any time during the period between July 2009 and September 2015 and, having regard to his health and medical condition throughout that period, it was clear that at no time could he have held a practising certificate. Accordingly, it was appropriate for the court to exercise the power contained in Rule 15.1 of the Rules to strike out all of Dr Flett’s statement of claim against the Council.

Orders