Gibson v Attorney-General HC Wellington CIV 2010-485-479
[2010] NZHC 2133
•23 November 2010
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2010-485-479
BETWEEN NEVILLE JAMES GIBSON Plaintiff
ANDATTORNEY GENERAL First Defendant
ANDDENTAL COUNCIL Second Defendant
ANDD'ATH PARTNERS BARRISTERS AND SOLICITORS
Third Defendant
ANDNORTH HARBOUR LAW Fourth Defendant
ANDDAVID MARSHALL Fifth Defendant
ANDBRENT STANLEY Sixth Defendant
ANDNEW ZEALAND DENTAL ASSOCIATION
Seventh Defendant
Hearing: 11 October 2010
Counsel: Mr Gibson appears in person
Mr H Wilson with Ms Hall for Second and Third Defendants
No appearances for remaining defendants
Judgment: 23 November 2010 at 4 pmat 4.00 pm
JUDGMENT OF MALLON J
GIBSON V ATTORNEY GENERAL AND ORS HC WN CIV-2010-485-479 23 November 2010
Introduction
[1] The plaintiff is a dentist but has not practised as such for a number of years. He was the subject of a number of complaints, some of which led to findings against him by the Dentists Disciplinary Tribunal. Associated with the disciplinary proceedings, and as described by the Court of Appeal, “for almost a decade now [he] has been embroiled in litigation”.[1] The principal parts of that litigation were judicial review applications made in relation to the disciplinary proceedings, an appeal from the Tribunal decisions, and an application to set aside a bankruptcy notice.[2]
However, along the way there have been a large number of applications made to the courts and memoranda submitted as the detailed chronology submitted to me shows.
[1] [2010] NZCA 161 at [1].
[2] He has also been involved in litigation. In 1999 he was in litigation with Arthur Anderson. He then defended a claim from his legal advisors for their outstanding fees and counterclaimed in respect of their actions in representing him in that litigation. He then sued the lawyers who acted for him in that second round of litigation and the Legal Services Agency: see Gibson v Fisher HC Auckland CIV-2006-404-103, 18 June 2010 at [3] and [4].
[2] The plaintiff considers that his problems with the defendants in this proceeding arose out of professional jealousy when he commenced a 24 hour/7 day a week accident & emergency medical centre in 1989. He believes that complaints were encouraged to be made against him, that proceedings before the Tribunal were improper in various respects, and that he has been improperly kept out of having an annual practising certificate. This proceeding is the latest stage of the plaintiff’s battle with those he considers to be at fault in what happened. The proceeding seeks damages in the sum of $6,695,000, further damages not yet ascertained, general damages of $250,000 and costs.
[3] Although the proceeding is at an early stage, already it has generated a number of pleadings and memoranda, as is apparent from the three volumes of relevant pleadings that are before me on the present interlocutory applications. For present purposes the main stages of the proceeding to this point are as follows. The claim was first filed in March 2010. At a case management conference in June 2010 the Associate Judge noted that it was not in proper form and directed that the
defendants were not required to take further steps in the proceeding pending further order of the Court. The Associate Judge also required that an amended statement of claim could only be accepted for filing if it was accompanied by a certificate, from a currently practising lawyer with at least five years’ civil litigation experience, certifying that the claim contained arguable causes of action. That requirement was amended at a subsequent call-over in July 2010 so that the plaintiff would be permitted to file an amended statement of claim if the plaintiff indicated that the amended claim had the benefit of legal advice.
[4] The plaintiff prepared an amended statement of claim. He intended that a barrister would scrutinise the pleading for him, but that scrutiny did not proceed when the barrister withdrew following the Legal Services Agency’s decision to decline legal aid. The plaintiff seeks leave to file his amended statement of claim and this is not opposed by the second and third defendants who have filed an application to strike out the plaintiff’s claim. The plaintiff had objected to the Associate Judge’s conditions regarding the certificate (and there are various documents filed in relation to that), but that issue became redundant when the orders were amended at the July 2010 call-over. I do, however, need to determine the strike out application. Depending on my determination on that, there is also the second and third defendant’s application for security for costs and the plaintiff’s application for an order removing Kensington Swan from acting for the second defendants to determine.
The pleadings
[5] At the heart of the plaintiff’s claim is the allegation (at para 36 of the amended statement of claim) that between 1989 and 2009 the second, third, fifth and sixth defendants and “certain ordinary and executive members of the Seventh Defendant” were involved in “a campaign of ill-will and acts of bad faith toward the Plaintiff in a concerted campaign to discredit the Plaintiff and deliberately damage his legitimate professional life and commercial business operations”. The first defendant is alleged to have facilitated and/or acquiesced in this. There then follow
40 sub-paragraphs of particulars (which are said not to be exhaustive). Those sub- paragraphs cover:
(a)alleged derogatory comments made by some of the defendants or their representatives about the plaintiff on various occasions;
(b)allegations of improper conduct in the disciplinary proceedings against him and in the subsequent appeal;
(c) allegations of steps taken to block the plaintiff’s registration in
Australia and to unjustly withhold his annual practising certificate;
(d)an allegation that some of the defendants were involved in a freight company breaking into a container of the plaintiff’s personal effects to obtain evidence against him;
(e)an allegation that some of the defendants were involved in seeking a private investigator to report that the plaintiff had abandoned his business premises;
(f)an allegation that some of the defendants did not tell the plaintiff that complainants in the disciplinary proceedings were undertaking treatment elsewhere when the plaintiff was seeking to find a locum for this work;
(g)an allegation that the second defendant was involved in destroying the plaintiff’s work; and
(h)allegations that some of the defendants were involved in encouraging complaints to be made against the plaintiff.
[6] The amended statement of claim pleads six causes of action. The first cause of action relates only to the fourth defendant. It alleges that the fourth defendant breached their contract with the plaintiff in representing him in relation to an appeal from one of the Tribunal’s decisions.
[7] The second cause of action is a mixture of a negligence cause of action against the fourth defendant and a cause of action against the other defendants that “in discharging its statutory duties” they “owed a duty to exercise its powers to the prescribed statutory standard of skill and care” (para 61). As to these other defendants, the next paragraph (para 62) then sets out particulars in sub -paragraphs (a) to (r) as to how they are alleged to have negligently breached their duties. These particulars refer back to the 40 sub-paragraphs described earlier.
[8] The third cause of action is against all the defendants other than the fourth defendant. It is said to be a claim for breach of a statutory duty. It pleads that these defendants “[i]n acting in a statutory capacity...were required to act in good faith, make full and frank disclosure, and be open frank honest” (para 66). It then pleads (para 67) that this duty was breached and sub-paragraphs (a) to (y) set out the particulars. These particulars in turn refer back to the 40 sub-paragraphs described earlier.
[9] The fourth cause of action is against all the defendants other than the fourth defendant. It is said to be a claim for misfeasance. It pleads that “[i]n acting in a statutory capacity” these defendants “were required to act in good faith and not for ulterior or improper motive or purpose” (para 69). It then pleads that this was breached because the particulars referred to at para 67 (which in turn refer back to the earlier 40 particulars) were done “with an ulterior motive and improper motive and deliberately and dishonestly and/or unlawfully” (para 70).
[10] The fifth cause of action is against all the defendants other than the fourth defendant. It pleads that “in acting in its statutory capacity” these defendants “are also subject to the Bill of Rights Act 1990 pursuant to section 3(b) of the New Zealand Bill of Rights Act 1990 and the lawfulness of that conduct” (para 74). It then pleads “acting unlawfully and in breach of the New Zealand Bill of Rights Act
1990” these defendants “acted in the ways referred to in paragraphs 67 (a) to (y)
above.”
[11] The sixth cause of action is for breach of the Fair Trading Act 1986. It is pleaded against all the defendants other than the fourth defendant. It pleads that “the
Second Defendant and/or its agents and Seventh Defendant were required to act in a manner that was neither misleading, deceptive or likely to mislead or deceive nor to conspire against any competitor” (para 79). It pleads that this requirement was breached by the second, third, fifth, sixth and seventh defendants acting in the ways particularised in sub-paragraphs (a) to (xx) (which in turn refer back to the 40 sub- paragraphs at paragraph 36).
[12] The plaintiff claims that as a result of what occurred he has not been able to practice as a dentist, has lost significant income and has incurred liabilities and financing costs. All causes of action seek the same relief (refer [2] above).
My assessment
[13] There are a number of difficulties with the plaintiff’s claim.
Unclear allegations
[14] A number of the allegations are unclear because they combine a number of points and parties together and because they lack particulars. An example of this is the particular at paragraph 36, sub-paragraph 34, which is as follows:
(34)The Third Defendant, facilitated and/or acquiesced by the First Defendant, Second Defendant predecessor, DCNZ, and Sixth Defendant, contacted former patients of the Plaintiff and acting with ill-will and in bad faith encouraged and coaxed the patients to lay complaints against the Plaintiff – and did so in a manner deliberately calculated to cause harm and damage to the Plaintiff in his legitimate professional life and in an effort to remove the Plaintiff from active dental practice.
[15] This allegation does not identify the former patients that were contacted by the third defendant, when they were contacted, how they were encouraged or coaxed, how the first, second (predecessor) and sixth defendant facilitated this or acquiesced in it. Nor is it clear why it is said that the third defendant acted with ill will and bad faith and to cause harm damage to the plaintiff. If the complaints were complaints that were upheld by the Tribunal and not overturned on appeal then any harm to the plaintiff’s practice must surely have arisen as a result of the actions that were the subject of the upheld complaint, rather than anyone’s action in bringing the
complaint to the attention of the disciplinary body. If the complaints were not upheld then it is unclear how the plaintiff’s practice was damaged by this.
[16] Along similar lines is paragraph 36, sub-paragraph 12, which is as follows:
(12)On or about 1997 a ordinary member of record of the Seventh Defendant sought to allocate blame to the Plaintiff for failed treatment the member had undertaken and did so 2 years after the Plaintiff had treated the patient and encouraged the patient to complain to the Seventh Defendant who facilitated and/or acquiesced complaints against the Plaintiff by the patient to DCNZ, the Health and Disability Commissioner (“HDC”) and to the Privacy Commissioner and did so in a manner calculated to demean, discredit and harm the Plaintiff.
[17] The same sorts of questions as with the paragraph above arise. Many of the allegations are like this and thus suffer from similar difficulties. Another example of this is paragraph 36, sub-paragraph 31, which is as follows:
(31)The Second Defendant predecessor, DCNZ, facilitated and/or acquiesced by the First, Third and Sixth Defendants, acted on findings made by the DDT that it knew the DDT had no power under statute to make in relation to the file records that the Plaintiff had subsequently located and did so in a calculated manner to assist the DCNZ in removing the Plaintiff from active dental practice.
[18] As I read this the plaintiff alleges that the second defendant’s predecessor acted on findings made by the Tribunal. It is alleged that it should not have acted on those findings because it knew that the Tribunal had no power to make those findings. It is alleged that the findings relate to file records which the plaintiff had subsequently located. It is alleged that the second defendant acted on the findings in a manner calculated to assist the second defendant in removing the plaintiff from active dental practice. It is alleged that the first, third and sixth defendants facilitated and acquiesced in this.
[19] The questions then are precisely what findings were acted upon, how were they acted upon, why is it said that the Tribunal had no power to make those findings, what file records were located by the plaintiff and when did he find them in relation to the Tribunal’s findings and the second defendant’s actions on them, why was the action on the findings calculated to assist the DCNZ in removing the
plaintiff from practice, did it have that effect and if so why, and how did the first, third and sixth defendants acquiesce in this?
[20] To take a further example, paragraph 36, sub-paragraph 26, is as follows:
(26)The Second Defendant predecessor, DCNZ, facilitated and/or acquiesced with the Plaintiff’s processing laboratory to destroy work that the Plaintiff had sent to it in relation to his patients work and which it then denied that the work had been sent to it – and it did so in a manner calculated to harm and damage the Plaintiff in his legitimate professional life.
[21] What work was sent to the plaintiff’s processing laboratory, how did the second defendant’s predecessor facilitate or acquiesce in this work being destroyed, who denied that the work had been sent, when was that denial made, why is it alleged that it was done in a manner calculated to harm and damage the plaintiff in his legitimate and professional life?
[22] I take one last example, and that is paragraph 36, sub-paragraph 24:
(24)The Second Defendant predecessor, DCNZ, facilitated and/or acquiesced by the First, Third, Fifth and Sixth Defendant’s, facilitated and/or acquiesced AA in its litigation with the Plaintiff by prosecuting complaints on which there was no proper evidential basis and in circumstances in which the HDC had confirmed there was insufficient basis to investigate the Plaintiff – and did so in a manner to harm and damage the Plaintiff in his professional and business capacity.
[23] The allegation purports to draw a link between litigation the plaintiff was involved in with Arthur Anderson. The litigation is not defined. The complaints are not specified. The circumstances of what the HDC confirmed are not specified. The allegation that the first, third, fifth and sixth defendants facilitated or acquiesced the second defendant’s predecessor which in turn facilitated or acquiesced AA in its litigation is unclear and lacks particulars. The same goes for the allegation that one or more of these defendants did so in a manner to harm and damage the plaintiff in his professional and business capacity.
[24] All of the causes of action refer back to the particulars in the 40 sub- paragraphs. This adds further to the difficulty for the defendants in attempting to
plead to the allegations. An example is paragraph 70 of the fourth cause of action. It pleads:
In breach of the said duties to act in good faith and without ulterior or improper motive or purpose the First, Second, Third, Fifth and Sixth Defendant’s and DCNZ acted in the ways referred to in paragraphs 67(a) to (y) above and did so with ulterior motive and improper motive and deliberately and dishonestly and/or unlawfully.
[25] Thus to plead to paragraph 70, the defendants are required to plead to the paragraphs at 67 (a) to (y). Those paragraphs in turn refer to the earlier 40 subparagraphs and so those sub-paragraphs must also be pleaded to. As an example, paragraph 67 (q) pleads:
Acquiescing the filing of an affidavit in an appeal brought by the Plaintiff knowing that it exhibited a ‘without prejudice’ letter that the Plaintiff’s solicitors had sent to the Third Defendant in the manner referred to in paragraph 36 (32) above.
[26] And paragraph 36, sub-paragraph (32) pleads:
The Third Defendant, facilitated and/or acquiesced by the First Defendant, Second Defendant predecessor, DCNZ, and Sixth Defendant, attached to an affidavit as an exhibit a ‘without prejudice’ letter she received from the Plaintiff’s solicitors that she then filed in an appeal brought by the Plaintiff in relation to findings by the DDT and matters raised by the Plaintiff’s clinical records and did so with ill-will and in bad faith and with the intention of causing deliberate harm and damage to the Plaintiff and to deliberately prejudice his appeal. Subsequently the Third Defendant attached the affidavit to a further affidavit she filed with the Court in September 2004 and did so knowing that the Plaintiff’s counsel had taken issue with the dissemination of the ‘without prejudice’ letter before the DDT and after the Third Defendant had made the letter available to counsel for the CAC and the letter had been attached to a memorandum which counsel for the CAC had placed before the DDT.
[27] Once the defendants have covered off all these particulars (not all of which appear to relate to all the defendants), the defendants then need to plead to the general allegation in paragraph 70 that this was in breach of duties to act in good faith and without ulterior or improper motive or purpose and that the actions were deliberate, dishonest and unlawful.
[28] Some of the allegations in paragraph 36 are of a very serious kind. Examples are as follows:
(8)Facilitating and/or acquiescing with the Medical Council of New Zealand and the former global accountants, Arthur Andersen and Company (“AA”), the Second Defendant predecessor, DCNZ, and the Fifth, Sixth and Seventh Defendant’s, acquiesced by the First Defendant, assisted AA in disrupting the Plaintiff’s legitimate commercial life and assisted AA in fraudulently converting the Plaintiff’s Medical Centre assets referred to at paragraph 35 herein and selling them to a new owner. Such actions by DCNZ, and the Fifth, Sixth and Seventh Defendants included (but were not limited to) advising third parties to whom the Plaintiff had commercial business interest and relationships that the Seventh Defendant was taking steps to disrupt the Plaintiff’s legitimate business and remove his name from the Register of Dentists.
(9)Facilitating and/or acquiescing with the Medical Council of New Zealand and AA, the Second Defendant predecessor, DCNZ, wilfully escalated costs of a hearing before the DDT in late 1991 to keep the Plaintiff from being resourced in respect of the actions of AA in defrauding the Plaintiff of his Medical Centre assets referred to paragraph 35 herein.
...
(11)An executive member of the Seventh Defendant facilitated and/or acquiesced with the Second Defendant and Seventh Defendant to deceitfully and fraudulently attempt to recover treatment costs for remedial treatment of a patient whom the Plaintiff had treated 6 years previously and did so by claiming, falsely, in correspondence to ACC that the Plaintiff had been responsible for clinical damage and harm to the patient’s tooth when the clinical damage had been caused by the treatment by the executive member of the Seventh Defendant.
...
(13)A member of record of the Seventh Defendant – Dr Garry Healy (“Healy”) – of Level 10, Southern Cross Building, 61 High Street, Auckland, New Zealand – facilitated and/or acquiesced with the Seventh Defendant to encourage a patient to lay a complaint against the Plaintiff and with the assistance of a second member of the seventh Defendant – Dr Harish Lala (“Lala”) – a Specialist Endodontist of 3 Ely Avenue, Remuera, Auckland – make false and fraudulent clinical representations to Accident Compensation Corporation (“ACC”) in respect of certain failed dental treatments they had undertaken on the complainant which they deliberately attributed to the Plaintiff to recover money for the complainant in respect of an application to ACC that had been filed seeking
financial assistance for remedial treatment of the complainant’s tooth – and they did so to gain a pecuniary advantage for which they knew they were not entitled.
[29] The first two of these are allegations of assisting in fraudulent conversion of assets. The other two are allegations of assisting in false and fraudulent representations to the ACC.
[30] The plaintiff’s response is to say that he has supplied sufficient particulars to put the defendants on notice as to what is alleged. I do not agree. Defendants who are required to plead to claims made against them are entitled to know precisely what is alleged against each of them and all the more so when fraud is alleged. They should not have to guess at what the plaintiff might be referring to and what his concern is with what they have done. The lack of specificity of the large number of allegations which are of a serious kind would cause the defendants prejudice and delay (rule 15.1(c) of the High Court Rules) if they were required to plead to them.
[31] The plaintiff’s submissions provided references which he considered supported all of the claims he had made. A large number of these references referred back to his original statement of claim. Referring to previous allegations made is not evidence. Nor is it a proper way to provide particulars in respect of the current pleading. The plaintiff showed me one document in which the inaugural chairperson had said that their body needed to be immune from improper influence. That, however, is not evidence that there has been improper influence subsequent to that time, nor does it provide particulars of such improper influence and nor is it support for a tenable cause of action (a topic I discuss in the next section of this judgment).
[32] The plaintiff has also filed two affidavits. Those do not assist either. The affidavits do not link the general allegations to any specifics and the exhibits do not advance matters either.
[33] The plaintiff says that, if he has not quite managed to provide sufficient particulars, then it is not too far off and he should be permitted the opportunity to amend the pleadings to remedy the defects. I do not agree. The allegations are numerous, the ground they cover is wide and they largely all suffer from the absence
of particulars. And there are additional problems with the statement of claim as discussed below.
Untenable causes of action
[34] It is not only the pleaded “particulars” which lack specifics. The causes of action against the second and third defendants are also framed widely and without details. This makes it difficult to determine whether a cause of action of the kind alleged might tenably exist.
[35] The second cause of action refers to a duty to exercise powers “to the prescribed statutory standard” but does not specify where the statutory standard is prescribed nor the statutory standard that is prescribed. There is no attempt to match any particular duty with any of the particulars that follow. One of the alleged breaches is the failure to take action to prevent “the culture” that prevailed against the plaintiff. That then refers back to all the 40 sub-paragraphs at paragraph 36. Amongst those are the allegations that complaints were encouraged and coaxed. There is no attempt to specify what steps the defendants ought to have taken. The statute provided a process for complaints (from investigation to hearing to appeal). A duty of care would not be imposed which would be likely to cut across or
discourage performance of statutory functions (here the disciplinary function).[3]
[3] Stephen Todd The Law of Torts in New Zealand (5th ed, Thomson Renters, Wellington, 2009) at
[6.6(4) and (5)].
[36] Similarly the breach of a statutory duty is broadly put and is not linked to any relevant parts of the statute that are said to give rise to the duty (refer [8] above). As framed, it appears to be more in the nature of a misfeasance cause of action.[4]
[4] At [19.2].
[37] Under the misfeasance course of action the plaintiff has made a general allegation that the defendants have acted “dishonestly and unlawfully”. That is consistent with a misfeasance cause of action but the particulars relied on do not appear to be all of that character (even as alleged). An example is:
(12)On or about 1997 a ordinary member of record of the Seventh Defendant sought to allocate blame to the Plaintiff for failed treatment the member had undertaken and did so 2 years after the Plaintiff had treated the patient and encouraged the patient to complain to the Seventh Defendant who facilitated and/or acquiesced complaints against the Plaintiff by the patient to DCNZ, the Health and Disability Commissioner (“HDC”) and to the Privacy Commissioner and did so in a manner calculated to demean, discredit and harm the Plaintiff.
[38] The Bill of Rights cause of action does not specify the right that is said to have been breached. Counsel for the second and third defendants suggest that the only possibly relevant right is the right to justice in section 27. That affirms the right to natural justice before a tribunal or other public authority; the right to judicial review in respect of a determinations made by a tribunal or other public authority; and the right to bring civil proceedings against the Crown and to defend such proceedings and to have them heard in the same way as other civil proceedings between individuals.
[39] The last of those has no application. The other two have potential application in respect of the Tribunal’s decisions on disciplinary charges. There is, however, nothing in the current pleading which particularises any tenable claim for a breach of these rights.
[40] Moreover, the plaintiff was aware of these rights because he exercised his right to bring judicial review proceedings. He brought a judicial review application of the Tribunal’s refusal to strike out the Complaints Assessment Committee’s decision to refer three complaints to the Tribunal. He was unsuccessful in that
application[5] but his actions show that he was aware of the availability of judicial
review. Similarly, he sought judicial review of the Tribunal’s decision to decline an application he had made for an adjournment of the Tribunal hearing together with an application for interim relief[6] which was also unsuccessful. After the Tribunal hearing the plaintiff decided to pursue appeals. He was able to raise any alleged breaches of natural justice at that time.
[5] Gibson v Dentists Disciplinary Tribunal HC Wellington CIV-2004-485-12, 16 February 2004.
[6] Gibson v Dentists Disciplinary Tribunal HC Auckland CIV 2004-404-003706, 19 July 2004.
[41] Even if the plaintiff could establish a tenable and properly pleaded claim of breach of justice, he would then face the hurdle that Bill of Rights damages for breach of natural justice are “rare” and “confined to circumstances where there is no other effective remedy, where human dignity or personal integrity or (possibly) the integrity of property are also engaged and where the breach is of such constitutional significance and seriousness that it would shock the public conscience and justify
damages being paid out of the public purse”.[7]
[7] Attorney-General v Chapman [2009] NZCA 552, [2010] 2 NZLR 317 at [106].
[42] The plaintiff has had other effective remedies and has pursued them, although without the outcomes that he was seeking. This is not the kind of “rare” case where damages would be available. And even if damages were available, in this cause of action they are not “compensatory” in nature and therefore would not be for anything like the amounts that he is seeking.
[43] The plaintiff accepts that he cannot pursue the sixth cause of action because the second defendant was not “in trade” as is required for that cause of action. But quite apart from this concession the pleading is very confused. The requirement is said to be on the second defendant, but the breach is then said to be by the second, third, fifth, sixth and seventh defendants.
[44] The plaintiff’s response is to say that where there is a wrong the law provides a remedy. He says that he could not have brought a damages claim in the context of a judicial review application or an appeal from the disciplinary proceedings. He says that the defendants’ actions have caused him loss and that he must have a claim against them for that loss. While in general terms it is correct that the law provides a remedy for a wrong, the wrong must be articulated in terms of an available cause of action and the nature of the available remedy then follows from that.
[45] Here I note that the affidavit evidence the plaintiff filed did not advance his prospects of establishing any of his pleaded causes of action as tenable. In the main he has exhibited correspondence and previous decisions. By way of example, Mr Gibson annexed a response from the Prime Minister to a letter he had sent in
2001 in which it was said that the Dental Act “does allow for civil or criminal
liability for anything done or omitted by a Complaints Assessment Committee or other body operating under the Act if done or omitted in bad faith and without reasonable care”. That appears to be a reference to the immunity provision in the Dental Act (s 76). It is still necessary for there to be a valid civil cause of action before there can be any liability.
Collateral attack
[46] In respect of the disciplinary proceedings, the plaintiff exercised his remedies but he was unsuccessful in making out the wrongs he relies on. In this proceeding, if the disciplinary proceedings complied with the statutory procedures, the plaintiff was offered natural justice and the complaints that were found proven were correctly upheld, it is difficult to see how a legal wrong giving rise to a civil cause of action for loss could exist. Some of the plaintiff’s allegations appear to take issue with the validity of findings made by the Tribunal. An example is sub-paragraph 30 which is as follows:
(30)The Second Defendant predecessor, DCNZ, facilitated and/or acquiesced by the First, Second, Third and Sixth Defendant’s, and acting in bad faith and ill-will used findings made against the Plaintiff that it knew were false and unfounded in relation to the Plaintiff’s clinical file records – and which it knew contained an inherent and fatal contradiction – but which the DDT had concluded the Plaintiff had deliberately withheld – to unjustly withhold an Annual Practice Certificate from the Plaintiff.
[47] The allegation is that the findings were false and unfounded. Presumably this refers to findings of the Tribunal, though this is not clear. If it does then, in order for the allegation of bad faith and ill-will to succeed, the plaintiff would first have to show the findings were unfounded. Other particulars which may in effect be taking issue with the procedures adopted and the findings made in disciplinary proceedings include sub-paragraphs (5), (12), (13), (14), (16), (23), (24), (28), (29), (31) and (34).
[48] This raises a further difficulty with the absence of proper particulars. Proceedings may be on abuse of process “where defendants are harassed with issues
that should have been raised in previous litigation”.[8] The plaintiff had his opportunity to contest the disciplinary procedures and the Tribunal findings. He advanced his appeal to the High Court and then sought leave to appeal to the Court of Appeal. He was unsuccessful. To the extent that the plaintiff’s allegations would require the disciplinary findings to be re-litigated, the proceeding may be manifestly unfair to the defendants because it amounts to harassing them with issues that have been determined or which could have been determined if the plaintiff had wished to pursue them.
Annual practising certificate
[8] Lai v Chamberlain [2002] 2 NZLR 7 at [59].
[49] In the course of hearing from the plaintiff it became apparent that the plaintiff strongly believes he has been wrongly kept out of a practising certificate by the imposition of unreasonable conditions, and that because he has been kept out of his practising certificate here he has also been prevented from practising in other countries. Naturally that would be of concern if that were so.
[50] The allegations that relate to this in the list of particulars at paragraph 36 are as follows:
(17)The Second predecessor, DCNZ, and the Third, Fifth and/or Sixth Defendant’s, acquiesced by the First Defendant, took deliberate steps to block the registration of the Plaintiff in Queensland Australia in a manner calculated to harm the Plaintiff in the conduct of his professional life and then subsequently denied that there was any impediment to the Plaintiff obtaining an Annual Practicing Certificate (“APC”) in New Zealand and that the decision by the Plaintiff not to renew his APC had been a decision for the Plaintiff alone, when the First, Second Defendant predecessor, DCNZ, and Third, Fifth and/or Sixth Defendant’s knew that under the Trans- Tasman Mutual Recognition Act 1997 that in blocking the Plaintiff’s registration in Australia the Plaintiff was also blocked from obtaining an APC in New Zealand. Such acts of ill-will and bad faith against the Plaintiff by the Second Defendant predecessor, Third, Fifth and/or Sixth Defendant’s, and acquiesced by the First Defendant, included asking the HDC to comment on the appropriateness of issuing the Plaintiff a certificate of good-standing so as the information could be provided to the Australian Dental Registration authorities to assist them in revoking the Plaintiff’s temporary registration in that jurisdiction.
...
(30)The Second Defendant predecessor, DCNZ, facilitated and/or acquiesced by the First, Second, Third and Sixth Defendant’s, and acting in bad faith and ill-will used findings made against the Plaintiff that it knew were false and unfounded in relation to the Plaintiff’s clinical file records – and which it knew contained an inherent and fatal contradiction – but which the DDT had concluded the Plaintiff had deliberately withheld – to unjustly withhold an Annual Practice Certificate from the Plaintiff.
...
(39)The Second Defendant predecessor, DCNZ, facilitated and/or acquiesced by the First, Third and Sixth Defendants, and relying on a decision that it knew to be unsafe and was false and misleading and on which findings the DDT imposed sanctions used the decisions of the DDT to construct a basis for with-holding from the Plaintiff an APC and did so in a manner that it knew was unprecedented, excessively punitive, denied the Plaintiff rights to be heard, and was calculated to deliberately keep the Plaintiff from active dental practice – and was withheld in circumstances that DCNZ knew that the Plaintiff intended to return to active dental practice. Such sanctions were in breach of the ambit of DCNZ’s statutory powers and was motivated by ill-will and bad faith.
[51] Also at paragraph 43:
There was no jurisdiction for the DDT to rehear the complaint which the former partner of the Fourth Defendant brought on behalf of the Plaintiff and the DDT made further findings in relation to the application that it was not entitled to make but which were subsequently relied upon in submission by the counsel for the DDT in an application brought by the former partner of the Fourth Defendant to reinstate the Plaintiff’s appeal and relied upon by the Second Defendant to with-hold the Plaintiff’s APC.
[52] Also at paragraph 62:
(d) Failed to accurately describe that the Plaintiff was unable to obtain an APC as in blocking the Plaintiff’s registration in the Queensland jurisdiction the Plaintiff was precluded from obtaining an APC under the Trans-Tasman Mutual Recognition Act 1997 in the New Zealand jurisdiction in the manner described in paragraph 36 (17) above.
(e)Seeking the advice of the HDC as to the appropriateness of issuing a letter of good standing in relation to the Plaintiff in the manner referred to at paragraph 36 (17).
...
(k) Acting on unsafe findings of the DDT that it knew to be unsafe and subsequently withholding the Plaintiff’s APC on the basis of them in the manner referred to in paragraph 36 (30) above.
...
(q) Failing to act in accordance with the ambit of its powers in withholding the Plaintiff’s APC in the manner referred to in
36 (39) above.
[53] Also at paragraph 67:
(e) Deliberately acting to revoke temporary registration status of the Plaintiff and blocking the Plaintiff’s ability to work as a dental surgeon in the Queensland jurisdiction and subsequently giving misleading and false advice as to the Plaintiff’s ability to obtain an APC in the New Zealand jurisdiction in the manner referred to 36 (17) above.
[54] And at paragraph 80:
(f) Deliberately acted to harm and damage the Plaintiff in the manner referred to in paragraph’s 36 (1) to (24) and (26) to (40) and by:
...
(x)Ignoring evidence that revealed that the DDT had made findings that were false and could not be made on new evidence adduced and deliberately failing to act to correct the outcome by the exercise of its powers under the Act and subsequently relying on the false findings to withhold an APC from the Plaintiff in the manner referred to in paragraph 36 (30) above.
...
(xix) Imposing sanctions on the Plaintiff in relation to attaining an APC which were excessively punitive, unprecedented, beyond the ambit of the scope of the Second Defendant’s statutory power and calculated to cause further harm and damage to the Plaintiff in the manner referred to in paragraph 36 (39) above.
(xx)Falsely advising that costs awarded against the Plaintiff in the disciplinary hearings would be written off if the Plaintiff agreed to discontinue his appeal but that there could be no basis to negotiate the Plaintiff’s return to dental practice by the Second Defendant issuing an APC when the advice was dishonest and deliberately calculated to ensure that the plaintiff did not return to dental practice in the manner referred to in paragraphs 36 (40) above.
[55] None of these allegations specify when the plaintiff lost his practising certificate, how that occurred, whether he had the opportunity to be heard in relation to that, whether he made any attempts to gain a practising certificate, when he made those attempts, what conditions were imposed on him or whether he exercised his right of appeal. The allegations therefore, like the other allegations discussed above, lack proper particulars.
[56] Counsel for the second and third defendants submitted that this issue had been considered in the appeal of the disciplinary findings. The High Court judgment[9] on that appeal records the position with his annual practising certificate as follows. The plaintiff surrendered his practising certificate on 31 May 2001 and had not held a certificate since then. Having upheld some of the charges against the plaintiff, the Tribunal suspended the plaintiff for 12 months from the date he obtains a practicing certificate, it required a period of supervision and it ordered the plaintiff’s financial management records to be audited quarterly during the
[9] Gibson v Complaints Assessment Committee HC Auckland CIV-2005-404-007353 and
CIV-2005-404-007355, 14 November 2008.
supervision. Fines and costs were also imposed. The High Court Judge said this:
[119] Mr Gibson also submitted that the effect of the penalty decisions had been to prevent him from practising, as were the conditions imposed as to supervision.
[120] I do not understand that submission. Mr Gibson did not need to forfeit his practising certificate in May 2001. Moreover he could have applied for a new practising certificate some time ago. As I understand it he is now caught by the provisions of the new legislation, which require him to undergo additional training. That is a matter for which he is responsible. There was nothing in the Tribunal’s decision which prevented him from obtaining a practising certificate, and the one year period of suspension would have run from the time that he did so.
[57] In a memorandum filed subsequent to the hearing before me the plaintiff advised that he took issue with what was said in that judgment. He said that this was not the issue being determined by the High Court and the Judge’s discussion of this issue was made without having the relevant documents before him. He says that the issue of the annual practising certificate has never been determined by any Court. The plaintiff considers that a claim is open to him in relation to the annual practising certificate. He refers to provisions of the Dental Act and the Health Practitioners
Competence Assurance Act 2003 (the HPCA Act). As I interpret what he is saying, he contends that he can bring a civil claim against those that have been involved in wrongly withholding his certificate if they acted with bad faith or without reasonable cause.
[58] Some of the allegations appear to take issue with findings made in the disciplinary proceedings although, because, they are not particularised, this is not clear. But even if the plaintiff is correct that the scope of his appeal did not include his concerns about what has happened in relation to his annual practicing certificate, the plaintiff has not identified a relevant cause of action in relation to what he says occurred. The plaintiff’s memorandum relied on an immunity provision in the HPCA Act. That provision is as follows:
119 Exclusion of liability
(1)Neither an authority nor a member, employee, agent, or committee of an authority nor a member of such a committee is under any criminal or civil liability in respect of –
(a)any act done or omitted in the course of the performance or exercise or intended performance or exercise of any of its functions, duties, or powers under this Act; or
(b)any words spoken or written at, or for the purposes of, a meeting, conference, hearing, inquiry or proceeding under this Act; or
(c) anything contained in any notice given under this Act.
(2)No person is under any civil liability in respect of anything done or omitted, or for any words spoken or written, in the course of making an assessment or a report under section 23.
(3)No person is under any civil liability in respect of anything done or omitted, or for any words spoken or written, in the course of conducting or assisting in conducting any competence review, competence programme, or recertification programme.
(4)This section does not exclude the liability of any person for anything done or omitted in bad faith or without reasonable care.
[59] An immunity provision does not amount to a cause of action. It merely permits a person to pursue any cause of action that may exist in law if it relates to something done or omitted in bad faith or without reasonable care. The plaintiff’s pleadings do not set out nor particularise any tenable cause of action in this regard.
The proper course for the plaintiff to pursue his concerns about his annual practising certificate is through the appeal provided under the HPCA Act.
Limitation Act
[60] The second and third defendants submit that aspects of the claims may be statute barred. It is not necessary I consider this submission because of my view on the other grounds on which a strike out has been sought.
Overall
[61] Having reviewed the claim I agree with the Associate Judge, when he considered the claim in the context of the plaintiff’s application to set aside the bankruptcy notice,[10] that the present claim has the hallmarks of vexatious litigation. The history shows that the plaintiff has embroiled himself in litigation. He says that the history shows that every step he has ever taken has been met with resistance. That is correct to a point, but the outcomes on the various proceedings and applications have demonstrated that the resistance was proper. The claims made are of an extravagant kind and the pleadings are lengthy, repetitive and unclear. The
plaintiff has had the opportunity to put forward a tenable and properly pleaded claim. He was granted a number of adjournments for this purpose.[11] Against this background, it is not for the Court or the defendants to have to pick through the amended claim to see if somewhere in its midst a tenable claim might exist for which proper particulars might potentially be able to be pleaded and which would not be a vexatious re-running of old issues.
[10] Gibson v Fisher HC Auckland CIV-2006-404-103, 18 June 2010.
[11] Minutes of 30 August 2010, 2 September 2010 and 21 September 2010.
[62] The application has been brought by the second and third defendants. However the pleading has combined the allegations against them with the allegations against the first, fifth, sixth and seventh defendants. Because they are linked in this way, the allegations against all these defendants are equally defective. The allegations against the fourth defendant are, however, discreet from the other claims. They relate to the fourth defendant’s actions when it received a Court minute about
the appeal. The fourth defendant to this point has not been required to take any steps and so there is no application before me from them.
[63] The proper course at this juncture is to strike out the pleading in relation to all the defendants other than the fourth defendant. However, if the plaintiff wishes to pursue a claim against the fourth defendant a further amended statement of claim will be necessary removing all the paragraphs that are irrelevant to that claim. I do not wish, however, to give the plaintiff false hope about his claim against the fourth defendant. I note in particular that it is difficult to see how the allegations he makes against the fourth defendant could be legally causative of the losses that the plaintiff claims.
[64] I have not reached the conclusion that the claim should be struck out lightly. I am conscious that the plaintiff appears to be deeply aggrieved by what has occurred in relation to him. However the plaintiff has had more than adequate opportunity to bring any proper claim (most obviously appeal and judicial review, both of which he pursued) and he has now gone far beyond that. His present claim is an abuse of process at least because it would cause prejudice to or delay the defendants in pleading to the unclear and wide ranging allegations (which do not appear to give rise to tenable causes of action and may also be an unfair collateral attack on issues already determined) such that the Court cannot properly allow it to continue. If the plaintiff wishes to resume practice his avenue has been and remains to pursue the channels available to him under the HPCA Act (and previously under the Dental Act). That course will not provide him with the damages he seeks, but he has not pleaded any cause of action which might support such damages.
Security for costs
[65] In the circumstances I do not propose to consider the application for security for costs. As the pleading is now struck out the application does not have present relevance. I can indicate, however, that had I not struck out the proceeding I would have considered security for costs to be appropriate. I appreciate that the plaintiff claims that his impecuniosity has been caused by the defendants. But the claims
made are wide ranging allegations of a serious kind with no reasonable prospect of success.
Application to remove Kensington Swan
[66] This too has become irrelevant. It relates to evidence given by Mr Wilson, a partner in Kensington Swan, and who is acting as counsel for the second defendant, in a 2004 affidavit submitted in the High Court in the earlier litigation. The plaintiff submits that this evidence may become controversial such that it would not be proper for Kensington Swan to remain as solicitors for the second defendant. It is unnecessary that I deal with this application in light of the outcome on the strike out application.
Result
[67] The amended statement of claim is struck out but the plaintiff has leave to file a further amended statement of claim, within a period of 30 days, in respect of his claim against the fourth defendant, if he intends to proceed with that. It will then be for the fourth defendant to consider whether it has any applications it wishes to make in advance of any defence being filed.
Mallon J
Solicitors:
Kensington Swan, Wellington for Second and Third Defendants
hayden[email protected]
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