Gibson v Complaints Assessment Committee HC Auckland CIV 2005-404-007353

[2008] NZHC 2680

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2005-404-007353

CIV 2005-404-007355

BETWEEN  NEVILLE JAMES GIBSON Appellant

ANDCOMPLAINTS ASSESSMENT COMMITTEE

Respondent

Hearing:         28, 29 and 30 October 2008

Appearances: N J Gibson in person

M McClelland and H J P Wilson for the Respondent

Judgment:      14 November 2008 at 4.00pm

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 14 November 2008 at 4.00pm

pursuant to r 540(4) of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors/Counsel:

Kensington Swan, P O Box 10 246, Wellington 6143

M McClelland, P O Box 10 246, The Terrace, Wellington 6143

Copy to:

N J Gibson, P O Box 11 679, Ellerslie, Auckland 1542

N J GIBSON V COMPLAINTS ASSESSMENT COMMITTEE HC AK CIV 2005-404-007353  14 November

2008

[1]      Mr Gibson appeals against two decisions made by the Dentists Disciplinary Tribunal (“the Tribunal”) in relation to complaints made against him by a Mr and Mrs Frye and a Mr Blunt.  He also appeals against the decisions of the Tribunal in relation to penalty and costs in each case.

Background

[2]      Mr Gibson is a non-practising dental surgeon.  He surrendered his practising certificate on 31 May 2001, and has not held a certificate since that date.

[3]      On 19 August 2001, Mr and Mrs Frye lodged a complaint against Mr Gibson with the Dental Council. The complaint can be shortly stated.    Both Mr and Mrs Frye  said  that  they  sought  dental  treatment  from  Mr  Gibson,  that  they  paid substantial sums of money in anticipation of receiving that treatment, and that the treatment was not completed.   They had requested a refund for the uncompleted work, but no refund had been forthcoming.

[4]      Mr Blunt lodged a complaint against Mr Gibson on 4 December 2001.  His complaint alleged that he first visited Mr Gibson in February 2000, that he paid him a substantial sum of money in anticipation of Mr Gibson undertaking his dental work, and that that work had not been completed.  He also complained that his credit card had been used to deduct moneys from his account while he was under the influence of an anaesthetic.  He said that he had paid an advance for bridge work to be undertaken by a technician, but that Mr Gibson did not order the bridges, and that he had misrepresented the position when asked about it.

[5]      The letters of complaint were referred first to the Health and Disability Commissioner   and   then   to   the   Complaints   Assessment   Committee   (“the Committee”).   In the event the Committee laid charges against Mr Gibson.   Both charges were dated 20 February 2003.

[6]      In respect of Mr and Mrs Frye, the Committee alleged that Mr Gibson, during the course of treatment on Mr and Mrs Frye commencing on or about January 2001, procured payments for dental work which had not been completed.  In respect of Mr

Frye, the total amount alleged to have been procured was $10,980.  In respect of Mrs Frye, the amount was $2,530.  It was alleged that the payments had been made by Mr and Mrs Frye in reliance on Mr Gibson’s representations that they money was required for, and would be applied towards, ensuring their respective courses of dental treatment would be completed, and that Mr Gibson dishonestly procured the payments intending not to complete the respective courses of treatment.   As an alternative,  it  was  alleged  that  Mr  Gibson  dishonestly  procured  the  payments knowing and intending that they would be mixed with his own funds, and that he was  not  in  a  financial  position  to  ensure  that  the  respective  courses  of  dental treatment  would  be  completed.    As  a  further  alternative,  it  was  alleged  that Mr Gibson failed to meet  his  professional  obligations  to  apply the payments  to complete the courses of dental treatment.  Particulars were given as follows:

a)        failing to have laboratory work completed;

b)failing to attend to the completion of the respective courses of dental treatment required by Mr and Mrs Frye; and

c)       failing  to  refund  the  payments  he  had  procured  when  he  had determined that he would not, or could not, complete the respective courses of dental treatment and it became necessary for Mr and Mrs Frye to pay for dental treatment from another dentist.

As an additional charge, it was alleged that Mr Gibson failed to keep proper and adequate records of his courses of treatment for Mr and Mrs Frye, or alternatively that he failed or refused to deliver up to Mr and Mrs Frye the complete records of their treatment.

[7]      The charges in respect of Mr Blunt’s complaint were substantially similar. The Committee alleged the total amount procured by Mr Gibson was $12,265.   In respect of one payment of $2,000 made on or about 28 September 2000, and another payment of $450 made on or about 9 May 2001, it was alleged that the payments were taken from Mr Blunt’s Visa card without his effective consent.  The alternative

charges, and the additional charge, were for all relevant purposes identical to those alleged in respect of Mr and Mrs Frye.

[8]      The charges proceeded to hearing before the Tribunal.  They were heard at the  same  time  (together  with  another  series  of  charges  in  relation  to  another complaint against Mr Gibson which is not the subject of the present appeals).  The hearing commenced on 19 July 2004 and continued through until 23 July 2004.  The hearing then had to be adjourned, in part because of the unavailability of a witness for the Committee.  It resumed on 30 November 2004 and continued through until 2

December 2004.

[9]      The Committee as the prosecutor was represented by Mr McClelland and

Mr Wilson throughout.  Mr Gibson was represented by counsel, Mr G Jenkins, on

19, 20, 21, 22 and part of 23 July 2004.  Mr Jenkins then sought and obtained leave to withdraw.  Mr Gibson appeared on his own behalf for the balance of hearing on

23 July 2004.  When the hearing resumed on 30 November 2004, he was represented by Mr P Kennelly.  Mr Kennelly was present for the rest of the hearing.

[10]     The Tribunal released its decision on the Frye complaints on 23 February

2005.  It found that various acts or omissions by Mr Gibson had been established and that a number of them were, or could have been, detrimental to the welfare of Mr and Mrs Frye pursuant to s 54(1)(b) of the Dental Act 1988 (“the Act”).  The Tribunal’s decision in relation to Mr Blunt’s complaint was released on the same day.   The Tribunal made essentially identical findings.  The allegation that payments had been taken from Mr Blunt’s Visa card without his effective consent was not upheld.  The Tribunal found that in neither case, did Mr Gibson’s conduct as established before it amount to professional misconduct under s 54(1)(c) of the Act.  I discuss the detail of the decisions below at [35] to [42] and at [85] to [92].

[11]     Following submissions by the Committee, and by counsel for Mr Gibson, the

Tribunal   issued   costs   and   penalty  decisions   in   respect   of   each   matter   on

16 September 2005.  In both cases it suspended Mr Gibson for a period of 12 months from the date he obtains a practising certificate, and it required him to undertake a period  of  supervision  for  a  period  of  12  months  from  the  date  on  which  his

suspension expires.  It directed that the periods of suspension and supervision are to be served concurrently.  The supervision is to be in respect of the following areas of Mr Gibson’s practice:

a)        record keeping in relation to patient treatment; and

b)        management of finances in relation to the operation of his practice.

It  also  ordered  that  Mr  Gibson’s  financial  management  records  relating  to  his practice be audited quarterly during the period of supervision, and that on each complaint he be fined $500, and censured.

[12]     In relation to the Frye complaints Mr Gibson was ordered to pay costs of

$31,895.55 for the period up to 16 November 2004.  The Tribunal was advised that thereafter Mr Gibson was in receipt of legal aid.  It was therefore constrained by s 40 of the Legal Services Act.   It  considered however that there were “exceptional circumstances” and ordered that Mr Gibson should pay $2,500 over and above the contribution required by the Legal Services Board towards the costs of the hearing. In respect of the Blunt matter, the Tribunal ordered that Mr Gibson should pay costs of $25,516.43 for the period up to 16 November 2004, and that he should pay an additional sum of $2,500 thereafter, again because it found that “exceptional circumstances” existed.

The statutory scheme

[13]     The Dental Act has been repealed by the Health Practitioners Competence Assurance Act 2003.   However, the transitional provisions in s 216 of that Act provide that all investigations, enquiries and disciplinary proceedings under inter alia   the   Act   that   were   commenced   before   commencement   of   the   section (18 September 2004), and not completed, are to be continued as if the Act had not been repealed.  Both Mr Gibson and the Committee accepted that the Act continues in force for the purpose of disposing of these two appeals.

[14]     Section 45 of the Act provided for the appointment of the Committee, and s 46 for the creation of the Tribunal.  The Tribunal consisted of three dentists and two persons (not dentists) appointed by the Minister of Health.  The presence of at least three members of the Tribunal, including at least one of the persons who was not a dental practitioner, was necessary to constitute a sitting of the Tribunal – s 51. When  hearing  the  complaints  against  Mr  Gibson  the  Tribunal  comprised  three dentists and one lay member.

[15]     The Tribunal was given various powers pursuant to s 54, which in part read as follows:

(1)       Subject  to  subsection  (2)  of  this  section,  if  a  Tribunal,  after conducting a hearing in accordance with this Part of this Act, is satisfied in respect of any practitioner that the practitioner—

(a)       Has been convicted, whether before or after the practitioner became registered, by any Court in New Zealand or overseas of any offence punishable by imprisonment for not less than 3 months and that the circumstances of the offence reflect adversely on the practitioner's fitness to practise as a dentist or as a clinical dental technician or as a dental technician; or

(b)       Has been guilty of any act or omission in the course of or associated with the practice of dentistry that was or could have been detrimental to the welfare of any patient or other person; or

(c)       Has  been  guilty  of  professional  misconduct  (including, without limiting the generality of the foregoing, professional negligence),—

the Tribunal may, except as provided in subsections (2) and (3) of section 55 of this Act, by way of penalty, do any one of the things authorised by subsection (1) of that section.

[16]     The purpose of disciplinary proceedings under the Act was discussed by

Randerson J in Patel v Dentists Disciplinary Tribunal HC AK, AP 77/02, 8 October

2002.  He stated at [28] as follows:

The Dentist Act (sic) does not provide any guidance on this subject but I am satisfied that the following statement of principle by Eichelbaum CJ in Dentice v Valuers Registration Board [1992] 1 1 NZLR 720, 724-725 is apposite in this case:

Although, in respect of different professions, the nature of the unprofessional  or  incompetent  conduct  which  will  attract disciplinary charges is variously described, there is a common thread

of  scope  and  purpose.  Such  provisions  exist  to  enforce  a  high standard of propriety and professional conduct; to ensure that no person unfitted because of his or her conduct should be allowed to practise the profession in question; to protect both the public and the profession itself against persons unfit to practise; and to enable the profession or calling, as a body, to ensure that the conduct of members conforms to the standards generally expected of them; see, generally, Re A Medical Practitioner [1959] NZLR 784 at pp 800,

802, 805 and 814.

[17]     I also note the observation by Elias J (as she then was) in B v Medical Council [2005] 3 NZLR 810. Her Honour commented that the structure of the disciplinary process set up by the Act emphasises that the best guide as to what is acceptable professional conduct is the standards applied by competent ethical and responsible practitioners. The Judge also noted that the inclusion of lay representatives in the disciplinary process, and the right of appeal to this Court, indicate that usual professional practices may not always be determinative of such standards.

[18]     As noted, in this case the Tribunal was satisfied that in various respects Mr Gibson was guilty of acts and omissions that fell within s 54(1)(b).  It did not find professional misconduct under s 54(1)(c).

[19]     Clearly not every act or omission in the course of or associated with the practice of dentistry will suffice to justify a finding under s 54(1)(b).   Acts and omissions  which  have  but  the  remotest  possibility  of  causing  detriment  to  the welfare of a patient, or which have caused only the most minor detriment, will not suffice – see G v Dental Council of New Zealand HC AK CP 58/95, 4 March 1996, Morris J.

[20]     Section 55 related to penalties.  It provided as follows:

(1)      In any case to which section 54(1) of this Act applies, a Tribunal may—

(a)       Order that the name of the practitioner be removed from the register:

(b)       Order that the registration of the practitioner be suspended for a period not exceeding 12 months:

(c)       Order that the practitioner may, for a period not exceeding 3 years, practise only subject to such conditions as to employment, supervision, or otherwise as the Tribunal may specify in the order:

(d)       Order the practitioner to pay a fine not exceeding [$10,000]: (e)       Order that the practitioner be censured.

(2)       Where a Tribunal makes an order under paragraph (b) or paragraph (c) or paragraph (e) of subsection (1) of this section, it may in addition impose a fine under paragraph (d) of that subsection.

[21]     Here the Tribunal imposed penalties under ss 55(b) to (e) inclusive.  There was no jurisdictional bar to it so doing.

[22]     Section 56 dealt with costs.  It provided as follows:

In any case to which section 54(1) of this Act applies, a Tribunal may order the  practitioner  to  pay  any costs  and  expenses  of  and  incidental  to  the hearing by the Tribunal and any inquiry made by the Complaints Assessment Committee.

[23]     The costs orders made by the Tribunal were pursuant to this provision.

The appeals

[24]     There was a right of appeal against the Tribunal’s decisions pursuant to s 64 of the Act, which relevantly provided as follows:

(1)       Every person who is dissatisfied with the whole or any part of—

…

(d)       Any order of the Tribunal made under this Act relating to that person; or

…

(g)       Any order of the … Tribunal made under section 56 … of this Act requiring him or her to pay any costs or expenses —

may, within 28 days after the notice of the decision, direction, or order has been served on him or her by the Secretary or within such further time as the High Court may allow on application made before or  after  the  expiration  of  that  period,  appeal  to  the  High  Court against the decision, direction, or order, as the case may be.

(3)       The Court shall, as soon as practicable, hear the appeal and may confirm, reverse, or modify the decision of the … Tribunal, or may refer the matter back to the … Tribunal in accordance with rules of Court, or may give any decision that the … Tribunal could have given.

(4)       Nothing in this section shall give the Court power to review any part of the … Tribunal's decision other than the part against which the appellant has appealed.

…

[25]     Mr Gibson exercised this right and filed notices of appeal in respect of the substantive decisions and the  costs/penalty decisions  on  both  complaints.    Both notices are dated 22 December 2005 and they are in substantially similar terms.  In relation to the substantive decisions of the Tribunal, it was asserted that they are in direct  conflict  with  the  evidence  of  Mr  Gibson,  and  against  the  weight  of  the evidence in various itemised respects.  In relation to the penalty and cost decisions, it was asserted that they were wrong in:

a)       attributing delays in the proceedings to Mr Gibson;

b)       concluding  that  Mr  Gibson  was  eligible  for  legal  aid  only  from

16 November 2004;

c)       concluding    that    delays    attributed    to    Mr Gibson    constituted

“exceptional circumstances”;

d)concluding that an appropriate penalty in relation to the Tribunal’s finding was the suspension of Mr Gibson for 12 months having regard to other decisions made by the Tribunal; and

e)       having regard to four previous disciplinary decisions in respect of Mr

Gibson.

[26]     While the Court is directed by the Act to deal with the appeals as soon as practicable, unfortunately that has not proved to be possible because, as Cooper J observed in a judgment dated 15 December 2006, they have had an unnecessarily protracted interlocutory history.   Mr Gibson is largely responsible for that.   The

history is summarised in Cooper J’s judgment.  It is also summarised and updated in a minute issued by Williams J on 1 February 2008.  I need not repeat the same.  For present purposes I need only note that Cooper J granted leave to Mr Gibson to file amended notices of appeal on 15 December 2006.  That did not occur.  Mr Gibson confirmed this at the hearing but he volunteered no explanation.  I have proceeded on the notices of appeal filed, and bearing in mind the limitation contained in s 64(4) of the Act.

Approach to appeals

[27]     Appeals from the Tribunal are dealt with under Part 10 of the High Court

Rules. Rule 718 provides that all appeals must be by way of a rehearing.

[28]     Mr Gibson referred me to a number of cases, including Patel, which have discussed the principles to be applied in appeals of this kind.

[29]     I accept Mr McClelland’s submission that the approach to appeals such as these discussed in the authorities referred to me by Mr Gibson, has been largely overtaken by the recent decision of the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141. Elias CJ there stated as follows:

[16]      Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[17]      In the present appeal there was no basis for caution in differing from the assessment of the tribunal appealed from. The case entailed no question of credibility. It turned on a judgment of fact and degree, not the exercise of discretion entrusted to the tribunal. We are of the view that the Court of Appeal was not correct to suggest that, because the decision turned on a value judgment apparently open to the Assistant Commissioner, “the High Court Judge ought not to have embarked on a reconsideration of the issue without considering, and giving weight to, the Assistant Commissioner’s conclusion”.  The High Court Judge was obliged to reconsider the issue. He was entitled to use the reasons of the Assistant Commissioner to assist him

in reaching his own conclusion, but the weight he placed on them was a matter for him.

[30]     That the approach in Austin, Nichols is applicable to appeals of this kind was confirmed in a recent decision of the High Court – Dr E v Director of Proceedings HC  WN,  CIV  2007-485-2735,  11  June  2008,  Ronald  Young  J.    Although  His Honour was considering a different section under the new legislation, it is similar to s 64 and in my view his comments are relevant and helpful.  His Honour summarised the correct approach as follows:

[22]      …

(i)The previous authorities of appeals from Health Practitioner Tribunals should now be seen in light of the Austin Nichols decision and will mostly not reflect the law in such appeals.

(ii)      A Tribunal decision whether a practitioner’s conduct is negligent, malpractice or brings the profession into discredit (s 100(1)(a) and (b)) is not a discretionary one.

(iii)      The Tribunal decision in (ii) is to be assessed at an appellate level on the basis of whether the appellate Court considers it is wrong.

(iv)      Deference  to  the  Tribunal’s  decision  may  be  appropriate where  the  Tribunal  has  a  particular  advantage  such  as medical   expertise   or   an   assessment   of   credibility   of witnesses.

(v)      If the Tribunal finds the practitioner’s conduct is negligent, malpractice  or  brings  discredit  on  the  profession,  then whether   the   conduct   justifies   a   finding   of   guilt   of professional   misconduct   is   an   exercise   in   discretion entrusted  to  the  Tribunal.  The  principles  of  May  v  May (1982) 1 NZFLR 165 (CA) apply to an appeal from this aspect of the Tribunal’s decision.

[31]     A factor that can justify deference being given to a Tribunal’s decision on cases of this kind is the Tribunal’s specialist expertise, particularly if that expertise is relevant to the matters that are the subject of the appeal.  In Austin, Nichols Elias CJ put it this way:

[5]       The appeal court may or may not find the reasoning of the tribunal persuasive  in  its  own  terms.  The  tribunal  may  have  had  a  particular advantage (such as technical expertise or the opportunity to assess the credibility of witnesses, where such assessment is important). In such a case the appeal court may rightly hesitate to conclude that findings of fact or fact and degree are wrong.  It may take the view that it has no basis for rejecting

the reasoning of the tribunal appealed from and that its decision should stand.  But  the  extent  of  the  consideration  an  appeal  court  exercising  a general power of appeal gives to the decision appealed from is a matter for its judgment. An appeal court makes no error in approach simply because it pays little explicit attention to the reasons of the court or tribunal appealed from, if it comes to a different reasoned result. On general appeal, the appeal court has the responsibility of arriving at its own assessment of the merits of the case.

[32]     I have adopted the approach in Austin, Nichols and Dr E in considering Mr Gibson’s appeals.  To this end I have read the evidence adduced before the Tribunal, the exhibits and the transcript of the hearing.

Analysis

[33]     I deal first with the substantive Frye decision and then with the substantive

Blunt decision.  I then deal with the appeals against the penalty and costs decisions.

[34]     Before doing so I make three observations, all of which had a bearing on how the hearing before the Tribunal developed.   First Mr Gibson repeatedly breached directions made by the Tribunal to produce his briefs of evidence.  They were only produced at a very late stage and generally just before the witness was going to give evidence.  This had the consequence that assertions made by Mr Gibson and some of his witnesses were not put to key witnesses called by the Committee.   The overwhelming  impression  from  the  transcript  is  that  Mr Gibson’s  defence  was disorganised, that the evidence was being drip fed to the Tribunal, and that the defence evolved as the prosecution case developed.  I do not intend any criticism of Mr Gibson’s legal advisers.   It is clear from the transcript that Mr Gibson was marshalling the evidence and directing the conduct of his defence to a significant degree.   The second matter relates to Mr Gibson’s patient records.   He did not produce his clinical files in their totality until very late in the day.  In particular Mrs Frye’s file was not produced until the last day of the hearing, when there was only one witness still to be called.   There was no satisfactory explanation for this, and given the nature of the charges against him, it was surprising.  Thirdly it transpired during the course of the hearing that Mr Gibson taped consultations with his patients. He did not produce the tapes of his consultations with the Fryes or Mr Blunt.  Mr Gibson’s explanation was that he had a very large number of tapes and that it would

have been very difficult and time consuming for him to find the relevant tapes.  Be that as it may, a considerable period of time elapsed between the filing of the complaints and the conclusion of the hearings.  Mr Gibson’s failure to produce these tapes, which presumably would have confirmed some of the matters in dispute the one way or the other, was in the circumstances extraordinary.

The Fryes’ complaints

The Tribunal’s substantive decision

[35]     The Tribunal considered the factual background to the matter.  It noted that there were discrepancies between the evidence given by Mr Frye and that given by Mr Gibson  about  the  number  of  times  Mr  Gibson  had  treated  Mr Frye,  what treatment had been carried out, and how much Mr Frye had paid for it.  The Tribunal referred to Mr Gibson’s clinical records, and noted that they contained no record of some of Mr Frye’s visits to Mr Gibson.  The Tribunal considered that while it could rely on Mr Gibson’s records to accurately reflect Mr Frye’s treatment where it was noted down, it could not rely on his notes as recording every visit.  The Tribunal did not consider that Mr Frye’s recollection of events was deliberately inaccurate.  The Tribunal noted that his recollection was hampered by not having access to either his notes or to Mr Gibson’s brief of evidence before the hearing.  It also noted that Mr Gibson’s record of treatment was not put to Mr Frye under cross-examination.

[36]     The Tribunal noted that it was applying the civil standard of proof on the balance of probabilities, but taking into account the seriousness of the charge and the gravity of the allegations made against Mr Gibson.

[37]     It then went on to consider the various particulars alleged by the Committee. It noted that it was not in dispute that Mrs Frye had paid $10,980 to Mr Gibson and that Mr Frye had paid $2,530 to him.  It found that the payments made by the Fryes were made in reliance on Mr Gibson’s representations that the money was required for, and would be applied towards, ensuring that their respective courses of dental treatment would be completed.  It noted both the Fryes assertions in this regard and

Mr Gibson’s denials.  It also noted the evidence of a Dr McIntosh who was called to give evidence in support of Mr Gibson.  The Tribunal found that it was reasonable for Mr and Mrs Frye to assume that any fees they pre-paid for their treatment would ensure that their respective courses of dental treatment would be completed, whether or not they understood the precise details of the process.

[38]     The Tribunal did not find that Mr Gibson dishonestly procured the payments. The Tribunal also found that the allegation that Mr Gibson dishonestly procured the payments intending not to complete the dental work was not established.

[39]     It  did  however  conclude  that  Mr Gibson  failed  to  meet  his  professional obligation to apply the payments to complete Mr and Mrs Frye’s dental treatment.  It found that Mr Gibson failed, without justification, to complete the respective courses of  dental  treatment.    It  considered  that  his  reasons  for  failing  to  complete  the treatment were unconvincing.  It found that Mr Gibson failed to have the laboratory work required completed.  It considered it unlikely that an impression of Mr Frye’s tooth – tooth 17 – was ever sent to the laboratory.  It noted that there was no record of the impression having been sent, either in the laboratory’s records, or in Mr Gibson’s notes.   In Mrs Frye’s case, it noted that Mr Gibson gave various explanations for failing to have Mrs Frye’s laboratory work completed in a timely manner.  In particular it referred to his assertion that he was waiting for Mrs Frye’s teeth to settle.  It noted however that on Mr Gibson’s return from Australia in early June 2001, he sent Mrs Frye’s impressions to the laboratory without first checking with her to see whether her teeth had settled.   In the circumstances the Tribunal considered that his explanation for the delay was not credible.   It  also rejected Mr Gibson’s evidence that the laboratory delayed matters, and that Mrs Frye’s work was not completed until 2 August 2001.  The Tribunal considered it likely the work was ready sometime before that date.  It considered that Mr Gibson’s evidence about the delays was vague.  It rejected his assertion that the delay he said was experienced with Mrs Frye’s work was not unusual.  It noted the evidence given by a Mr Derham on behalf of the laboratory, and by a Dr Posa, that it would be most unusual for a laboratory not to complete work within three weeks.  It concluded that if Mr Gibson was serious about progressing Mrs Frye’s treatment, he should have made significantly more effort to press the laboratory for the work.  It referred to assertions

made  by Mr  Gibson  suggesting that  the  evidence  given  by Mr Derham  for  the laboratory  was  not  credible.    The  Tribunal  noted  the  discrepancies  raised  but recorded that they did not affect its view of Mr Derham as a credible witness.  The Tribunal also noted that Mr Gibson prepared a number of Mrs Frye’s teeth for work that should have been sent to the laboratory, but that there was no evidence from Mr Gibson’s notes, or from the laboratory’s records, that all of the work was sent to the laboratory.

[40]     The Tribunal found that Mr Gibson failed to complete Mr and Mrs Frye’s respective courses of dental treatment.   It concluded that Mr Gibson made little attempt to progress and complete the Frye’s treatment from May to August 2001, and that his actions were not the actions of someone who was intent on progressing his patients’ treatment.  It itemised the work it found that had not been completed.  It expressed surprise that Mr Gibson failed to contact the Fryes.  It accepted the Frye’s evidence that they had difficulties contacting Mr Gibson after April 2001, but it considered that a more significant matter was Mr Gibson’s failure to make adequate contact with them.   It also considered that his attempts to locate a locum were inadequate  and  too  late.    The  Tribunal  noted  that  Mr  Gibson  failed  to  refund payments he had received from Mr and Mrs Frye when he determined that he would not, and could not, complete their respective courses of dental treatment, and it became necessary for them to pay for the dental treatment from another dentist.

[41]     The  Tribunal  found  that  Mr  Gibson  failed  to  keep  adequate  and  proper records of his treatment for the Fryes.  It found that Mr Gibson had not recorded two of Mr Frye’s visits.   In Mrs Frye’s  case, the records  failed  to  record  an  initial consultation in mid-April.

[42]     By way of conclusion, the Tribunal found that those particulars established did not amount to professional misconduct under s 54(1)(c) of the Act.  In regard to some of the acts/omissions alleged, it found that they had been established under s

54(1)(b) of the Act, but that they were not sufficient to warrant disciplinary sanction. In regard to others, it found that they had been established under s 54(1)(b).   It considered that Mr Gibson’s failure to ensure the completion of Mr and Mrs Frye’s treatments was an act or omission that fell what short of the standard expected by the

public of a competent dental practitioner.   It also found that some of the acts or omissions could have been detrimental to the welfare of Mr and Mrs Frye, and that disciplinary action should follow.

Mr Gibson’s appeal

[43]     Mr Gibson’s appeal is wide ranging.  It challenges each of the findings made against him by the Tribunal.   He asserts that the Tribunal in reaching the adverse factual findings that led it to conclude that he had been guilty of acts or omissions that were or could have been detrimental to the welfare of Mr and Mrs Frye, ignored or disregarded evidence in his favour.

[44]     The Committee called four witnesses in respect of the Frye complaints – Mr and Mrs Frye, Mr Derham and Dr Paul Posa.  Mr Derham was the manager of the laboratory which Mr Gibson outsourced work to.   Dr  Posa  was  the  dentist consulted by the Fryes after they left Mr Gibson.   I will consider the evidence of each witness and Mr Gibson’s submissions in respect of that evidence in turn.

The Fryes’ evidence

[45]     Mrs Frye’s evidence can be summarised as follows:

a)       She first visited Mr Gibson on 21 January 2001.  She was suffering from tooth ache which Mr Gibson treated.   She received further treatment on 24 January 2001.  On this occasion Mr Gibson observed that she had a large number of older amalgam fillings in her teeth, and he suggested that it would be appropriate to remove those fillings, and replace them with porcelain crowns or on lays.  She had a number of subsequent treatments in February 2001.   Mr Gibson removed her amalgam fillings and replaced with them temporary fillings.  He also did some root canal work on her teeth. Mr Gibson said that he would have  permanent  porcelain  on  lays  prepared  and  that  they  would provide a permanent solution for her.  The temporary fillings were a

stop gap until the permanent on lays could be prepared and placed. According to her, Mr Gibson said that the permanent on lays would be prepared, and the treatment completed within three months of the amalgam fillings being removed.

b)She said that Mr Gibson requested that she should pay in advance for the  work.    The  money  was  to  be  used  for  her  dental  treatment. Mr Gibson told her that the on lays would be prepared by somebody else, and then placed by him, and that the payments she made would be used to pay those people as well as Mr Gibson.    She considered this to be a reasonable request and she paid Mr Gibson in total the sum of $10,980 between 21 January and 29 March 2001.  During the course of her treatment, Mr Gibson told her on a number of times that the permanent on lays were being prepared, and that they would be fitted when they were ready. Mr Gibson never completed the work he said he was going to do and she understood she had paid for.  She saw Mr Gibson again on either 17 or 18 April 2001, because she was suffering pain in one of her teeth.  This was treated.

c)       She said that she called his surgery on a number of times thereafter in attempts to get hold of him, but that her calls were not answered. Eventually, shortly after Queen’s Birthday weekend, the telephone at Mr Gibson’s  surgery  was  answered  by  a  woman  and  she  left  a message asking Mr Gibson to call her.  She said that the next day Mr Gibson telephoned her at work, and said something to the effect that he did not know what he was going to do, and would telephone her back the next day.  She never heard anything further from him.  As a result, she visited Dr Posa on 17 July 2001.   She saw Dr Posa approximately 30 times.  He completed the necessary work in respect of her teeth, including fitting the porcelain on lays.  The cost of the treatment by Dr Posa was in excess of $11,000.

d)On 29 July 2001 she and her husband wrote to Mr Gibson seeking reimbursement for the work they had paid for but which had not been

completed.  When they had no response to that letter, they complained to the Dental Council by letter dated 19 August 2001.  She stated that Mr Gibson had not refunded any money to her; nor had he completed or offered to complete the work that she had paid for.   Mr Gibson never placed the on lays on her teeth, and he did not provide them to her.  She said that Mr Gibson did not arrange for the treatment that he had begun to be completed, either by him, or by any other dental practitioner.

[46]     Mrs Frye was cross-examined by Mr Gibson’s then counsel, Mr Jenkins.

[47]     I note from the transcript that before cross-examination took place, there was something of an exchange between Mr McClelland and Mr Jenkins.  Mr Gibson had not filed any briefs of evidence (in breach of numerous directions which had been given by the Tribunal).   Mr McClelland suggested that it would be helpful if the evidence was available before Mrs Frye was cross-examined.  The evidence was not available, but Mr McClelland indicated to the chair of the Tribunal as follows:

Sir I am assuming by his presence here that Mr Jenkins is responsible for the conduct of this case, but that doesn’t appear to be the case.  In any event, I would be prepared to proceed but Mr Jenkins has got to understand that it is his absolute obligation to put the defendant’s case to this witness to allow her to comment on any of the matters that are going to be raised in defence. So provided Mr Jenkins fulfils that obligation then the matter can proceed.

Mr Jenkins responded that he did not need any advice from Mr McClelland about the rules of evidence, and he proceeded to cross-examine Mrs Frye.

[48]     The cross-examination focused on four issues:

a)        whether Mr Gibson was entitled to assign cheques paid to him to third parties;

b)       whether Dr Posa had done further work in addition to that planned by

Mr Gibson;

c)       whether Dr Posa had attempted to contact Mr Gibson; and

d)       the Fryes’ attempts to contact Mr Gibson in 2001.

In the course of cross-examination, Mrs Frye stated that Mr Gibson never told her that he was going to arrange a locum.

[49]     In response to questions from members of the Tribunal, Mrs Frye confirmed that no treatment plan was put in place for her but she volunteered that Mr Gibson held up diagrams and showed her what was involved.  She stated that she had a fair understanding of what was proposed to be undertaken, and the costs of that work. She stated that Mr Gibson quoted “I would do this for this, this for this, and we will have it within a three month timeframe”.  She confirmed in response to a question from the chair that she never had permanent fillings put in by Mr Gibson, and that she was left with temporary fillings.

[50]     Mr Frye gave evidence that he visited Mr Gibson on two occasions in late March 2001.  During those visits he paid Mr Gibson money for work that was never completed.   Mr Gibson advised him that he should have one of his old amalgam fillings replaced with a more permanent filling.   He agreed, and at Mr Gibson’s request made a prepayment of $2,010 to Mr Gibson for the work.  Mr Gibson told him that the preparation of the on lay would be done by somebody else, and it was Mr Frye’s understanding that the payment would be used to pay that person, as well as Mr Gibson for his treatment.  His amalgam filling was removed and replaced with temporary filling.  He paid Mr Gibson a further $520 at that time.  He stated that Mr Gibson never provided or fitted the permanent on lay that he had paid for, and that Mr Gibson did not make any arrangements for his treatment to be completed by anybody else.   Mr Frye said that after his appointment in late March 2001, Mr Gibson became uncontactable.   He stated that he drove past Mr Gibson’s surgery everyday on his way to work, and looked in to see whether there was anybody at the surgery.  It seemed to him that the surgery was unattended.  He did not hear from Mr Gibson.  He attended on Dr Posa from 24 July 2001 onwards.  He stated that Dr Posa obtained a gold on lay to replace the temporary filling, and that the work was attended to within a week or two.

[51]     Mr  Jenkins’  cross-examination  was  relatively  short.    He  cross-examined Mr Frye about the ability of a payee of a cheque to endorse that cheque.  He asked Mr Frye about his endeavours to get hold of his dental records.   He also asked Mr Frye whether he had ever called into Mr Gibson’s surgery and knocked on the door.  Mr Frye confirmed that he had done, but that it was a waste of time, because there was no response.

[52]     Mr Frye was questioned by Tribunal members.   He stated that it was his understanding that the money he paid to Mr Gibson was “for the work he had done, the work he was going to do, and the cost of the work to be done by the outside technician”.

[53]     Mr Gibson submitted that there was a direct conflict between his clinical files and the evidence of Mr and Mrs Frye in respect of their treatment, the cost of it, and the reasons for it.  He drew my attention to the detailed treatment he had given to Mr and Mrs Frye.

[54]     I do not consider that Mr Gibson’s assertion is totally correct, or even if it is, that it is particularly relevant.  It was not in dispute that Mr and Mrs Frye received dental treatment from Mr Gibson.  The Tribunal accepted that Mr Gibson’s records were accurate insofar as they recorded the treatment given by him.  It was also not in issue that Mr Gibson was entitled to be paid for such treatment as he delivered. What was in issue was whether or not the Fryes had paid in advance for work which was not completed.  The Fryes were quite clear in their evidence in this regard and they were not cross-examined in relation to it.  In the circumstances the Tribunal was entitled to accept their evidence in this regard.

[55]     In his notice of appeal Mr Gibson also asserted that, when preparing their briefs of evidence, Mr and Mrs Frye did not have the benefit of their clinical notes, and for that reason that the clinical files and what they disclosed should be preferred.

[56]     I agree that the Fryes did not have the benefit of their clinical notes when preparing  their  respective  briefs  of  evidence.    The  reason  for  that  is  simple. Mr Gibson  had  not  made  them  available  to  the  Committee.  As  I  have  already

indicated, they were drip fed to the Tribunal, and in Mrs Frye’s case at the very last minute.  Mr Gibson was solely responsible for that.  In any event, I repeat that the Tribunal accepted that the clinical records were accurate insofar as they recorded the treatment which had been given to Mr and Mrs Frye.  The only discrepancy of any possible moment appears to be how many times Mr Frye saw Mr Gibson and I do not consider that anything turns on that issue.

Mr Derham’s evidence

[57]     I now turn to Mr Derham’s evidence.  He gave his initial evidence during the first part of the hearing in July 2004.   He explained the process the laboratory followed.  He stated that the process of making a model from an impression sent by a dentist normally takes between five and 15 working days, and that only the most complex cases take longer.  He dealt specifically with Mr Gibson.  He stated that in his experience Mr Gibson operated in a different manner from most dentists.   He noted that Mr Gibson would often deliver a number of jobs at once, and that he did not use a booking system.   His work was scheduled to be prepared as soon as possible.  He noted that Mr Gibson’s would be completed by the laboratory in the same time period as other work.  He also noted that work was done for Mr Gibson on account, and that he was frequently in arrears.   He noted that nevertheless the laboratory  continued  to  do  work  for  him.    He  advised  that  the  last  order  the laboratory received from Mr Gibson was in June 2001, and that some time thereafter Mr Gibson advised the laboratory that he was no longer practising.  The laboratory had to institute debt recovery procedures against Mr Gibson to collect outstanding monies owing by him, and after a year and a half, various outstanding models and restorations that they had prepared for Mr Gibson but which had not been paid for were disposed of.   He indicated that he had searched the laboratory’s records for incoming work requests, and its financial records, for references to work done for Mr and Mrs Frye and Mr Blunt.  He noted that there was an invoice number in the name of “Fuay” dated 29 August 2000 for two inlays which might be relevant.  He noted that there was an invoice in the name of Blunt dated 14 September 2000 for an inlay.   He also noted that there was an invoice in the name of “Fryer A” dated 2

August 2001 for four on lays.  He stated that these were the only records that existed

in relation to those patients.  He was satisfied that no other work had been requested in respect of those patients by Mr Gibson.

[58]     Mr  Derham  was  cross-examined  by  Mr  Jenkins  regarding  the  process adopted by the laboratory in relation to prescriptions and orders.   He  was also questioned by the Tribunal, in large part on the process that the laboratory used to track prescriptions, the invoicing process, and the work that it had disposed of.

[59]     When the hearing resumed in December 2001, Mr Gibson gave evidence about his dealings with the laboratory.  This evidence had only been circulated at the very last moment.  Mr Gibson asserted that what Mr Derham had said in evidence was grossly inaccurate.  He asserted that he did use the booking system, and that a job number was allocated to prescription forms which he sent to the laboratory.  He produced   various   documents   in   this   regard,   and   asserted   that   contrary   to Mr Derham’s assertions, the laboratory took two months to process Mrs Frye’s on

lays.   He asserted that his accounts were mostly paid on the 20th  of the month

following.  He also produced various documents in this regard.  He pointed out that Mr Derham had acknowledged in other proceedings that there could be bottle necks in the laboratory’s work from time to time.  He denied that he had been in debt to the laboratory and asserted that he was in credit as at 20 October 2001.   Again he produced various documents in support of that claim.

[60]     Mr Derham was recalled on 1 December 2004.   He had been  given the opportunity to ready Mr Gibson’s brief of evidence, and he was asked to comment on it.  He stood by his earlier evidence.  He stated that Mrs Frye’s work, while it may have been collected on 2 August 2001, would have been sitting there for some time, before Mr Gibson came, paid for it, and picked it up.

[61]     Mr  Derham  was  cross-examined  by Mr Kennelly.    Mr  Gibson’s  various documents and assertions were put to him.  Mr Derham did not significantly resile from his earlier brief of evidence.   He was then questioned by members of the Tribunal.  He confirmed how long it normally took for work to be completed, and indicated that Mr Gibson would have been contacted to tell him that the work was finished, and ready to be uplifted.

[62]     Mr Gibson submitted that there was a clear conflict between his evidence and that of Mr Derham, and that the Tribunal erred in accepting Mr Derham’s evidence.

[63]     I accept that there was a conflict in the evidence but that did not preclude the Tribunal from preferring Mr Derham’s evidence.  Courts and tribunals are required on a daily basis to make findings between conflicting witnesses.  They have to make assessments of credibility.  That is precisely what the Tribunal did in the case under appeal.   The  Tribunal had the very real  advantage  of seeing the  witnesses  and assessing their demeanour.  For that reason alone I would be reluctant to interfere with its assessment.  Nevertheless I have read Mr Gibson’s evidence, and looked at the documents that he produced.  I do not consider that they are conclusive the one way or the other.   Indeed in some respects I do not consider that they justify the reliance he seeks to put on them, for example, that his account was in credit.  I have also  read  Mr  Derham’s  evidence.    I  have  no  hesitation  in  concluding  that  the Tribunal was not wrong to prefer Mr Derham’s evidence.   Indeed my impression, such as it can be from only reading the materials and the transcript, is that the Tribunal was correct to do so.

Dr Posa’s evidence

[64]     I now turn to Dr Posa’s evidence.  He gave evidence during the second part of the hearing which commenced on 30 November 2001.  He confirmed that:

a)        Mr and Mrs Frye had become patients of his in July 2001.

b)Treatment had begun on a number of Mrs  Frye’s teeth.   A large number of fillings had been removed and a large number of temporary restorations had been put in place.   He noted that no permanent restorations had been placed.   No porcelain crowns or on lays had been fitted.   Mrs Frye had had some root canal therapy undertaken, but a radiographic examination of the teeth showed no evidence of the root canal teeth having been filled.

c)       He arranged for Mrs Frye to obtain an independent assessment with a Dr Tony Hunter, a specialist prosthodontist.  He produced a copy of Dr Hunter’s report, which recorded that Mrs Frye had had a number of dental treatments of variable quality, and noting that it was disappointing that there were so many poorly restored and contoured provisional restorations.

d)       He had undertaken extensive work on Mrs Frye’s teeth.

e)       He first saw Mr Frye on 24 July 2001, and that he had some dental work begun but not completed.   He noted that a filling had been removed, and replaced with a temporary restoration.  He detailed the work that he undertook on Mr Frye’s teeth.

f)        The time taken between taking an impression for a crown, placing a temporary restoration and then completing the permanent work.  He would usually aim for two weeks for anything in porcelain, and even less time for anything in gold.  Sometimes he might go out to three weeks depending on the laboratory time required.

[65]     In cross-examination, Dr Posa accepted that a lot of work had been done on Mrs Frye’s teeth.   He also accepted that he had not contacted Mr Gibson, and he explained that he did not do so because the Fryes, and in particular Mrs Frye, were distressed and upset with the way that they considered this had been treated by Mr Gibson.    When  asked  about  locums,  he  confirmed  that  there  were  locums available, but that they could be hard to find.

[66]     Dr Posa was questioned by the Tribunal about temporary restorations.   He stated that temporary restorations are weak, and that gum margins with temporary restorations are usually not the tidiest.  Permanent restorations had better margins, and allowed the better oral hygiene.  He said that in his opinion, it was undesirable to leave temporary restorations in a mouth for too long.   He accepted that on rare occasions it might be reasonable to leave temporary restorations in place for longer than two or three weeks.  He advised that the temporary restorations in Mrs Frye’s

mouth were all in place, and that they had not fallen out or broken.   He observed however that her margins were “not great”, and that there was a lot of plaque.  He stated that he did not think that they were an “optimum situation” for Mrs Frye.

[67]     Mr Gibson in his notice of appeal and in his submissions at the hearing before me criticised Dr Posa, noting that he did not have a copy of the Fryes’ clinical notes, and suggesting that therefore he had no real understanding or knowledge of the treatment that had been undertaken, the reasons for it, and what was required.  He pointed out that Dr Posa had made no contact with him.

[68]     Mr Gibson is correct in his assertion that Dr Posa did not have a copy of the Fryes’ clinical notes.   I am not satisfied that that made any difference.   Dr Posa seems to me to have carefully considered the state of the Fryes’ teeth.  He sought a further opinion in relation to Mrs Frye’s teeth to confirm his analysis.  He sent part of her work out to a specialist for assessment.  Their views coincided with his own and confirmed his treatment.  Dr Posa did not contact Mr Gibson.  Dr Posa explained that  the  Fryes  did  not  want  him  to  do  so.     In  my  view  this  was  readily understandable.  I can appreciate the frustration and anger the Fryes must have felt given their inability to contact Mr Gibson and his failure to keep in touch with them. The Tribunal in my view quite correctly observed that it was Mr Gibson’s practise that was under review, and not that of Dr Posa.  In my view there is nothing in the arguments made by Mr Gibson in this regard.

Mr Gibson’s evidence

[69]     Mr Gibson gave evidence in relation to both Mr and Mrs Frye’s complaints. This evidence was not given – or made available – until the second stage of the hearing in November 2001.

[70]     Mr Gibson in his evidence outlined the treatments he had provided to Mrs Frye,  commencing  on  21  January  2001  and  ending  on  29  March  2001.    He confirmed that he took a set of oral impressions, and that he placed temporary restorations in a number of her teeth.  He also confirmed that Mrs Frye visited him in mid-April 2001, when she was encountering some pain in one of her teeth.  He said

that he mentioned to her at that time that he would delay sending the work to the laboratory for processing.   He also gave evidence that at one stage he received a telephone call from Mrs Frye who was experiencing some discomfort, and that he went into town to deliver a prescription to her.  He was unable to recollect the date when this occurred.   He stated that on ceasing practise in May 2001, it was his intention to enlist a locum for his patients to complete the balance of his work, or failing that, to arrange for a colleague to cover for him.  He explained that he was in Australia during the final week of May 2001, and that he returned to New Zealand on 6 June 2001.  He stated that when he arrived back on 6 June 2001, he sent off Mrs Frye’s impression for processing by the laboratory.  He said that he called her the following day – 7 June 2001 – in response to her call, and to “let her know that since [he] had not heard from her that [he] assumed [he] was able to move to finalise impression work overlaying the problematic teeth”.  He was to let her know when the dental work arrived back from the laboratory.  He stated that there was a bottle neck at the laboratory and that he did not receive Mrs Frye’s dental work back until 2

August 2001.  He also asserted that he had a subsequent telephone discussion with Mrs Frye during June 2001 or early July 2001.  He stated that he did not know that Mrs Frye was becoming frustrated, and that by the time he received the porcelain on lays back from the laboratory on 2 August 2001, Mr and Mrs Frye were in the care of Dr Posa.  He complained that Dr Posa had not contacted him, and stated that had he done so, he would have advised him regarding the position at the laboratory, and the treatments he was progressing.  He asserted that Dr Posa duplicated work, and that Mrs Frye had additional treatment undertaken resulting from subsequent dental problems which had developed.   He asserted that he did extensive work for Mrs Frye, and that it was incorrect for her to claim that he had not offered to complete the work, when in his view, he was clearly in the process of doing precisely that.  He argued that he had met his professional obligations to Mrs Frye in substantially completing her  work.    He  also  denied  giving  any  representations  regarding  the laboratory work, and asserted that Mrs Frye was fully aware that he was waiting for her teeth to settle.  He says that he progressed her work before and after he ceased practise, and that after he ceased practise he sought to obtain a locum, and made an arrangement with a colleague to complete her treatment.  He said that he did not fail to refund payments, because entitlement to a refund was not established, and because

he had substantially completed the treatment.  He also asserted that he kept proper and adequate records of his course of treatment of Mrs Frye.

[71]     In my view it was clear from Mr Gibson’s own evidence that he had not completed all of Mrs Frye’s work.   In particular permanent porcelain inlays and crowns had not been put in place.  Although he asserted in his evidence-in-chief that he uplifted Mrs Frye’s laboratory work on 2 August 2001, in the course of cross- examination, he stated that he did not know when he had uplifted it.   He had no records of the order being placed with the laboratory, of uplifting the work, or of paying for it.   He was  forced  to  accept  that  from  about  March  2001  onwards, Mrs Frye had a number of temporary restorations in her mouth.  He accepted that he had taken the impressions for the work that he was to send to the laboratory in February/March 2001, and that they sat in his room from March through to June

2001.  He endeavoured to explain this by suggesting that he was waiting for pain in Mrs Frye’s teeth to settle, and that if he had to do subsequent root canal therapy, it was likely that he would have to duplicate the work.  He asserted that he had put it to Mrs Frye that he would wait for her to come back from holiday, that they would then review her teeth and take matters from there.  He accepted that when he came back from  Australia  on  6  June  2001,  he  immediately  took  Mrs Frye’s  work  to  the laboratory, and he did not check with her before he did so.  He accepted that he only spoke  with  her  the  following  day.     Notwithstanding  his  evidence-in-chief  he accepted that he had not got back to Mrs Frye.  He said that the reason he did not do so, was because he was waiting on a locum, and that when he secured a locum, he was intending to get back to his patients.  He accepted “I delayed a little too long”. When it was put to him that he told her that he was going to telephone her, and that he did not, he accepted that that was true.  Mr McClelland put it to him as follows:

Q.        So  in  the  knowledge  that  she  had  a  mouthful  of  temporary restorations and unfinished root canal work you just left her out there didn’t you?

A.        Well I was waiting for a locum to come and do the work.  If I had been practising myself I would have made an appointment for her immediately.

[72]     A separate brief of evidence was also presented to the Tribunal by Mr Gibson in  regard  to  Mr Frye’s  complaint.    He  set  out  the  treatment  that  he  had  given

Mr Frye, and in particular recorded that on 17 March 2001, he had taken an oral impression of Mr Frye’s mouth and bite records, and had put a temporary restoration in place.  He asserted that Mr Frye attended on five occasions (rather than the two referred to in evidence by Mr Frye).  He said that Mr Frye’s various treatments were performed to completion, with the sole exception of placing an on lay in one of his teeth, which was awaiting processing and return from the laboratory.  He challenged Mr Frye’s evidence, and asserted that a number of statements made by him were incorrect.   In particular he stated that the payments made by Mr Frye were not prepayments, but were payments for completed dental work which he requested.  He stated that Mr Frye was aware that he was waiting for the return of his on lay from the laboratory, and that he had made arrangements for him to be covered.   He asserted that the only remaining clinical task outstanding in respect of Mr Frye was the placement of his on lay.   He said that he gave no representations regarding further dental work being completed.

[73]     Mr Gibson also produced a letter he had received from a Dr Church, and a letter he had sent to Dental Personnel Limited.  The letter from Dr Church confirmed that she had been approached on the telephone by Mr Gibson in 2001 asking whether she would continue the care of his patients should they request it, and that she had forwarded him some of her business cards.  The letter to Dental Personnel Limited was dated 6 September 2001, and referred to the fact that Mr Gibson needed a locum, and had been in need of a locum since June 2001.  It was recorded that Mr Gibson was anxious to ensure his outstanding patients were covered, and that some of them needed their treatments concluded as soon as possible.  He also produced a letter from Dental Personnel Limited dated 17 September 2001, which advised that Dental Personnel Limited had tried to contact him a number of times in the previous few weeks.  The letter confirmed that there was a shortage of dentists, and that no one was available.

[133]   This aspect  of  Mr  Gibson’s  appeal against the  penalty/costs  decisions  is dismissed.

[134]   I did consider whether it was open to me to award costs under s 40(2) in relation to the July stage of the hearing.  I have jurisdiction to make any order the Tribunal could have made.   On balance I have decided that it would not be appropriate for me to do so.   The Committee did not seek any such order, and Mr Gibson has not had the opportunity to make submissions in relation to it.

Summary – Penalty/costs decisions

[135]   The Tribunal awards of  costs against Mr  Gibson  for  the  period  prior  to

16 November 2004  are set aside for the reasons set out above.   To  this  extent

Mr Gibson’s appeal is allowed.  In all other respects the appeals are dismissed.

Costs on the appeals

[136]   I was advised by Mr Gibson in the course of the hearing before me that he was not legally aided.  He has in large part failed in his appeals.  The Committee is entitled to costs in relation to these appeals.

[137]   I direct as follows:

a)       the  Committee  is  to  file  and  serve  any  submissions  it  wishes  to advance in relation to costs within 10 working days from the date of this decision;

b)Mr Gibson is to file and serve any submissions he wishes to file in response within a further period of 10 working days;

c)       the Committee is to file and serve any submissions it wishes to file by way of reply within a further period of five working days;

d)the primary submissions in relation to costs are not to exceed 10 pages.  The submissions in reply are not to exceed five pages.

[138]   I will then make a decision on the papers unless I require assistance from counsel and from Mr Gibson.

Wylie J