Gibson v Complaints Assessment Committee

[2009] NZCA 601

IN THE COURT OF APPEAL OF NEW ZEALAND

CA629/2009
CA641/2009
[2009] NZCA 601

BETWEENNEVILLE JAMES GIBSON

Applicant

ANDCOMPLAINTS ASSESSMENT COMMITTEE

Respondent

Hearing:2 December 2009

Court:Hammond, Arnold and Ellen France JJ

Counsel:Applicant in person

M F McClelland and A Hall for Respondent

Judgment:17 December 2009 at 4 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for leave to appeal is allowed.

BThe application for special leave to appeal is declined.

CThe applicant must pay the respondent costs for an application for leave to appeal on a band A basis and usual disbursements.

REASONS OF THE COURT

(Given by Hammond J)

Introduction

[1]        We have before us applications for an extension of time to apply for leave to appeal to this Court, and for special leave to appeal to this Court.

Background

[2]        In 2001 certain former patients of Dr Gibson, a dentist, made complaints to the Dentists Council about Dr Gibson's failure to complete dental work for which they had paid in advance.  The Complaints Assessment Committee brought charges against Dr Gibson on the basis of these complaints and for his failure to keep proper records.  The Dentists Disciplinary Tribunal ("the Tribunal") found that Dr Gibson was guilty of acts or omissions that were, or could have been, detrimental to the welfare of his patients: s 54(1)(b) Dental Act 1988.

[3]        Dr Gibson had a right of appeal to this Court under s 64(7) of the Dental Act.  To mount such an appeal he was required to obtain leave from either the High Court or this Court.  We note that the Dental Act was repealed by the Health Practitioners Competence Assurance Act 2003, but all disciplinary proceedings under the Dental Act that were commenced before 18 September 2004 and not completed were to be continued under the Dental Act.

[4]        Wylie J heard the appeals from the Tribunal and dismissed them: HC AK CIV 2005-404-007353 14 November 2008.  The Judge issued a costs judgment on 17 February 2009.

[5]         Dr Gibson applied for the leave of the High Court to appeal to this Court against those determinations.  In a judgment delivered on 22 July 2009, Wylie J declined leave to appeal both his 14 November and 17 February decisions.

[6]        In an application to this Court dated 25 August 2009, Dr Gibson seeks leave to appeal both those decisions.  He has also filed an application for an extension of time to apply for leave to appeal.

The time element

[7]        The leave application appears to be two working days out of time. 

[8]        We prefer to deal with the application on its merits.  If an extension of time for filing the application is required, we grant it.

Leave to appeal principles

[9]        The relevant principles have long been established.  It is not necessary to do more than set out the observations of Blanchard J in Waller v Hider [1998] 1 NZLR 412 at 413 (CA):

The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal ... it is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.

[10]       Dr Gibson is well aware of these principles and indeed endeavoured to frame six pages of “errors of law” in relation to Wylie J’s decisions.

The grounds of the application for leave

[11]       We agree with Mr McClelland that Dr Gibson’s complaints can usefully and fairly be considered under six heads.  Dr Gibson agreed this was a sensible ordering of his concerns.  We will follow that scheme.

Bias

[12]       Dr Gibson raises several matters in support of his claim that the Judge was biased.  None of these could possibly give rise to any concern about bias to the well informed objective bystander.  For example, one of Dr Gibson’s complaints is that the High Court judgment referred to him as Mr Gibson, rather than Dr Gibson.  He says that this evidenced bias on the part of the Judge.  This is a silly ground of appeal, and Dr Gibson should not have troubled this Court with it.  Dr Gibson has a bachelors degree in dentistry from Otago University.  He says the “practice” (based on US standards) is to refer to dentists as “Dr”. 

Jurisdiction 

[13]       Dr Gibson argues that Wylie J erred in preferring Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC) over Patel v Dentists Disciplinary Tribunal: HC AK AP77/02 8 October 2002.  Given the grounds of appeal which were advanced by Dr Gibson to the High Court, the Judge was correct to consider himself bound to follow the approach indicated by the Supreme Court in Austin, Nichols.  And that path was to Dr Gibson’s benefit.  The Judge considered himself bound to read the evidence adduced before the Tribunal, the exhibits and the transcript of the hearing, and did so.  He made his own independent assessment of the evidence.  That assessment was against Dr Gibson.

Evidence 

[14]       Dr Gibson argues that the Tribunal and the High Court erred in law by accepting and relying on evidence provided to the Tribunal by witnesses.  As Mr McClelland rightly pointed out, the fact Dr Gibson disagrees with the views formed by the Tribunal and the High Court do not as such give rise to an error of law.  A lot of Dr Gibson’s concerns in this area were really directed to the inferences drawn from the evidence and, in particular, to the rejection by the Tribunal and the High Court of Dr Gibson’s claim that any omissions in his record keeping were mere slips.

Media coverage 

[15]       Dr Gibson complains that the Committee engaged the media to prejudice him in receiving a fair hearing and to prejudice the outcome of the hearing.  However, under s 62 of the Dental Act all Tribunal hearings are to be in public.  It is not an error of law to allow media attendance in circumstances where the legislation permits the public to be present.  A second concern seemed to be that given he was not (ultimately) found to be a fraudster, this “public humiliation” was inappropriate.  Even if that were so, it raises no error of law.

Penalty 

[16]       Dr Gibson argues that the penalty imposed was too severe and disproportionate when compared to other Tribunal decisions.  He also submits that he suffered from “public humiliation” as a result of the disciplinary process and that the Tribunal should have taken that into account when assessing penalty. Mr McClelland replied that the penalty imposed on Dr Gibson is not at all inconsistent with other cases.  

[17]       In any event, this issue is singular to this case.  There is not a right to appeal penalty decisions under the Dental Act, unlike the right to appeal against sentence in criminal law; some error of law has to be demonstrated before a second appeal should be entertained.  Again, Dr Gibson’s complaint is that he disagrees with the Tribunal.  It may be that there could be a case in which there was a penalty so hopelessly out of proportion as to cause concern and possibly raise an error of law.  And it is possible that a relevant factor might not have been considered, which would also be an error of law.  But here, Dr Gibson is really repeating his factual concern: he sees his offending as having been relatively low level.  The Tribunal did not.  This is a further attempt to reassess the facts.

Costs  

[18]       Dr Gibson complains about the substantial costs award made against him.  Costs were within the discretion of the Tribunal.  No question of law suitable and appropriate for advancement to this Court has been raised.

Conclusion

[19]       We allow the application for an extension of time to apply for leave to appeal.

[20]       We decline the application for special leave to appeal.

[21]       The applicant must pay the respondent costs for an application for leave to appeal on a band A basis and usual disbursements.  We do not certify for second counsel; extra counsel was not necessary.

Solicitors:

Kensington Swan, Wellington for Respondent