Gibson v Dental Disciplinary Tribunal HC Auckland CIV 2003-4004-9

[2005] NZHC 1282

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2003-4004-9, AP 1/03

UNDER  the Dental Act 1988

IN THE MATTER OF     an appeal against a decision of the Dentists

Disciplinary Tribunal dated 23 July 2002 (substantive decision) and 11 November 2002

AND IN THE MATTER OF an application to set aside the decision

of Robertson J to dismiss the appeal for want of prosecution

BETWEEN

NEVILLE JAMES GIBSON

Applicant

AND

DENTAL DISCIPLINARY TRIBUNAL

Respondent

Hearing:         21 October 2004 Appearances: P Kennelly for applicant

K P McDonald QC for respondent Judgment:  22 February 2005

JUDGMENT OF WINKELMANN J

Solicitors

Kennelly Law, Orewa D’Ath Partners, Wellington

Counsel

P Kennelly, Orewa

K P McDonald QC, Wellington

NEVILLE JAMES GIBSON V DENTAL DISCIPLINARY TRIBUNAL HC AK CIV2003-4004-9, AP 1/03 [22

February 2005]

[1]    The applicant seeks to set aside or review under Rule 259 of the High Court Rules, the decision of Robertson J of 22 July 2004 dismissing his appeal for non- prosecution. The issues that arise on this application are:

1.whether the applicant is out of time under Rule 259 to apply for review;

2.whether the Judge was wrong to dismiss the appeal because the applicant had no notice of hearings of 15 and/or 22 July 2004 at which he failed to appear in person or by counsel;

3.whether the Judge was wrong to dismiss the appeal for want of prosecution under Rule 712 of the High Court Rules.

Background

[2]    The original appeal was filed by the applicant in early January 2003. At that time the solicitors on the record for the applicant were Brookfields, Auckland (Ms Antonia Fisher). The appeal was against two decisions of the Dentists Disciplinary Tribunal (the Tribunal) dated 23 July 2003 and 11 November 2003 respectively.

[3]    On 20 March 2003, consent orders were made that the respondent file interlocutory applications for change of venue and for security for costs within 21 days and the matter was listed for 17 April 2003 to enable a date for hearing of those applications to be allocated. An application in respect of these two matters was filed and served on 9 April 2003. The parties filed a joint memorandum of counsel on 15 April 2003 advising of an agreement as to timetabling for the applications. The solicitors for the applicant were recorded on the joint memorandum as being Hunt Edward Kennelly (P Kennelly) of Orewa. However, no notice of change of representation for the applicant had been filed at that time.

[4]    A notice of opposition was filed and served by the applicant in May 2003 in respect of the applications for security for costs. A directions conference was scheduled for 28 May 2003. Prior to that date, agreement was reached between the parties as to both outstanding applications. A joint memorandum of counsel was  filed dated 27 May 2003 recording the agreement in relation to security for costs,  and that the respondent was not pursuing its application for change of venue.

[5]On that date, Laurenson J made consent orders as follows:

(a)timetabling to be in accordance with the practice note; and

(b)counsel to confer with the Registrar to allocate a hearing date for the appeal (one day) as soon as possible after 1 August 2003.

[6]No steps were taken by either party in this appeal after that date.

[7]    On 28 June 2004, a notice of mention of the matter on 15 July 2004 was sent to Ms Fisher, by that stage practising as a barrister sole. On 29 June 2004 the Court received a letter from Ms Fisher advising that Mr Gibson had briefed Mr Graham Jenkins to handle all matters for him, she had no instructions from Mr Gibson and that she understood Mr Jenkins had filed a notice of change of solicitor for the matter. The letter was stated to be copied to Mr Jenkins and Hunt Edward Kennelly.

[8]    The proceeding was listed on 15 July 2004. On the call of the matter there was no appearance for the applicant. The respondent sought dismissal of the appeal for non-prosecution. In a minute dated 15 July 2004, France J said:

The respondent seeks dismissal of the appeal for non-prosecution. I noted that although there have been lengthy delays I will give the appellant one more chance. I asked the Registrar to send a copy of the respondent’s memorandum of 15 July 2004 to Mr Jenkins who previous counsel for the appellant understands has instructions.

The matter is to be called again this time next week. If  nothing has  been filed by the appellant with the Court by 12 noon on Wednesday 21 July as to why the appeal should not be dismissed the appellant should expect the Court to look favourably then on the respondent’s application.

[9]    The minute of France J of 15 July 2004 was faxed,  emailed and posted to  Mr Jenkins. The matter was called again before Robertson J on 22 July 2004. Again there was no appearance for the applicant. Accordingly the appeal was dismissed for want of prosecution.

[10]The current application was filed on 6 August 2004.

[11]   The applicant is now represented by Kennelly Law. Again no notice of change of solicitor has been filed for the applicant in respect of that change of representation. The grounds of the application are that the applicant was not advised of the 15 July 2004 and 22 July 2004 hearings and that it is in the interests of justice that the decision be set aside. Extensive supporting affidavits have been filed  by both the applicant and the respondent in respect of this application.

Is the current application out of time?

[12]   Rule 259(3) provides that notice of an application for review must be filed and served if made by a party who is not present and not represented at the hearing, within five working days after receipt by the party of the notice of the making of the order, and of its effect. Strict compliance with the time limits stipulated in Rule 259 is required. It is the respondent’s argument that the current application is outside of that five working day time limit. It relies upon the affidavit of Mr Wilson who has filed an affidavit in this application. Mr Wilson deposes that on the morning of Friday 23 July 2004, he and Mr McClelland (counsel for the respondent in separate unrelated proceedings involving the applicant) advised the applicant that his appeal had been “struck out”.

[13]   Mr Gibson  has  filed  an  affidavit  in  reply  saying  that  he  believes  that Mr Wilson is mistaken in his evidence because it is his clear recollection that he met with two of his witnesses at the time that Mr Wilson said this conversation took place.

[14]   In view of the conflict of evidence on this point, I do not propose to decline the application on the basis that there has not been strict compliance with the time limits prescribed in Rule 259(3). In any event, I do not accept that  a  casual remark in conversation made by a person not involved in the proceeding, would be sufficient notice of the making of that order and its effect for the purposes of Rule 259(3).

Did the appellant have notice of the hearings of 15 & 22 July 2004?

[15]   The registry wrote to counsel who had previously been acting for the appellant in this matter  advising  her  of the  call of the  matter  on 15  July 2004.  Ms Fisher replied by letter which she copied to Mr Jenkins and to the solicitors who had previously been acting for the applicant, Hunt Edwards Kennelly, advising that Mr Jenkins was now instructed in the matter and that she had no instructions. The applicant now says that Mr Jenkins was not instructed in the matter, and that Ms Fisher had failed to copy the correspondence to him. Counsel for the applicant also submitted that there was no evidence that Ms Fisher had copied the Notice of Fixture to anyone.

[16]   It is plain that there is confusion on the Court file as to whom communications with the applicant should be directed. There may also have been confusion on the part of Ms Fisher. However, confusion has also been created by the applicant. There has been no proper notice of change of solicitor filed notifying the change of solicitor from Brookfields to Hunt Edwards Kennelly, and then subsequently to Kennelly Law. Further, there has been no advice to the Court by the solicitors for the applicant of the change of counsel.

[17]   The applicant now says that Mr Jenkins was not instructed by him in respect of  this  matter.  However,  when  Ms  Fisher  wrote  to  the  Court  advising  that   Mr Jenkins was instructed, she copied that correspondence to Mr Jenkins, and to Hunt Edwards Kennelly. If her advice was incorrect, it is remarkable that neither Mr Jenkins nor Hunt Edwards Kennelly clarified the position with the Court Registry.

[18]   It is clear from the affidavit evidence of the applicant that his counsel Mr Jenkins (who the applicant denies is instructed in this matter but accepts acts for him in other matters) did receive a copy of the minute of France J of 15 July 2004. Mr Gibson deposes that Mr Jenkins “subsequently claims to have emailed me the minute. It has not been received. I have not yet received notice of the order dismissing my appeal”.

[19]   In any event in the third affidavit filed in support of his application, the applicant concedes that Mr Jenkins did tell him that:

In a dental matter of mine listed in the High Court I have been given a week to do something … given the pressure I was under trying to file the application for a judicial review [in another proceeding] by 3.00 pm on that Friday I simply forgot what had been said to me or any reference to the  email from Ms Fisher. On that Friday all of my focus was on getting the application for judicial review filed and served. Once the Tribunal hearing started on the Monday I became completely absorbed by those proceedings.

[20]   Although the applicant is imprecise in his evidence as to what the something he had to do within the week was, I am satisfied that Mr Jenkins would  have supplied the applicant with the information he needed in relation to France J’s minute and the next call of proceeding. Even if he did not do so, it must be the applicant’s own responsibility to clarify his obligations in relation to proceedings that he has himself commenced.

[21]   Accordingly I am satisfied that the applicant had adequate notice of the hearing on 22 July 2004 and may not rely upon lack of notice of the call  of the matter on that day, or lack of knowledge of the likely consequences of non attendance.

Was the Judge wrong to dismiss the appeal for want of prosecution?

[22]   Rule 712 of the High Court Rules provides that the Court may, on application, dismiss an appeal because it is satisfied that the appellant has failed to prosecute the appeal.

[23]   As noted in McGechan on Procedure at HR712.01, the authorities in relation to Rule 478 are relevant to Rule 712. Those authorities establish that to succeed with such an application, it must be shown:

(a)that there has been inordinate delay,

(b)that such delay is inexcusable,

(c)that the party affected has suffered serious prejudice,

(d)it is not in the overall interests of justice to allow the case to proceed.

[24]   When this matter was called before the Judge on 22 July 2004, in the absence of the applicant or his counsel, there was no argument in relation to these criteria or any evidence in relation to the issue of prejudice. Therefore, there are no detailed findings made by the Judge. The matter now having come before me with argument and relevant evidence, I therefore propose to consider the matter on a de novo basis.

Inexcusable and inordinate delay

[25]   I am satisfied that there has been inexcusable and inordinate delay. By the time that this matter came before the Judge on 22 July 2004, some 18 months had elapsed since the appeal had been filed. No steps had been taken in the proceeding  by the applicant since May 2003. The applicant attempts to justify this delay on the basis that the Court had failed to allocate a hearing date, and that the respondent itself had taken no steps to obtain a hearing date. This is no justification for the  delay. It is an appellant’s responsibility to prosecute its appeal. The timetable order of Laurenson J of 27 May 2003 directed counsel to confer with the Court. Since the applicant failed to do so, the proceeding made no progress toward hearing.

[26]   Secondly, the applicant seeks to justify the delay by reference to other proceedings in which he was involved. The applicant has not provided any affidavit evidence which would justify my concluding that his involvement in these other proceedings does adequately explain the entire period of delay. Even were I  to accept that involvement in proceedings over which the applicant had a limited ability

to exercise control (which is in the nature of disciplinary proceedings) might be a legitimate excuse for a delay on his part, this could only excuse delay during the period of time for which the applicant was actively involved in preparation for and attendance at the disciplinary hearing. I do not accept that it can possibly explain a delay in excess of 12 months.

Serious Prejudice

[27]   Notwithstanding that I have found that there has been inordinate and inexcusable delay, the respondent must also establish that it has suffered serious prejudice by reason of that delay such that justice can no longer be done. As  was said in Commerce Commission v Giltrap City Ltd (1997) 11 PRNZ 573 (CA) at 579:

In cases of delay and alleged want of prosecution, the right of all citizens and organisations to have access to the Courts for the determination of the issues they have raised should be denied only if that important right is outweighed by a stronger right vested in the defendant to have the case dismissed because justice can no longer be done in the light of the delay.

[28]   The respondent says that the applicant’s appeal was without merit and  that the respondent has had to endure in excess of 14-15 months of having an unmeritorious appeal hanging over it. It has already incurred considerable costs associated with the appeal, including the cost involved of having a transcript prepared by the stenographer who recorded the hearing (approximately $10,000). In addition, the respondent has incurred counsel’s fees in relation to the appeal, and the application to dismiss in respect of this application.

[29]   I am not persuaded that these points carry much weight. The expense incurred by the respondent in preparing this appeal cannot be regarded as serious prejudice, since it is expense that would not be wasted were the matter to be reinstated. As to the expense involved in the current application, and the application to dismiss the proceeding for want of prosecution, that prejudice can be met by an award of costs.

[30]   The respondent also submits that it will be prejudiced in its ability to defend the appeal, because of the delay. On an appeal from a disciplinary proceeding, the time that has elapsed since the events the subject of the disciplinary charge would

not usually be significant, since the appeal hearing would in the normal course of events proceed upon the record. However in this case, the applicant has clearly signalled that he will apply to introduce new evidence which he says would have led the Tribunal to dismiss the complaint against him had it been before the Tribunal. This new evidence is the patient file and clinical records concerning the complainant. The applicant says that these documents completely undermine the evidence of the complainant on which the Tribunal relied for its findings and determination against the applicant. He says that they were not available at the hearing before the Tribunal because they had been inexplicably lost by him after he had ceased practising as a dentist in May 2001, but were found some time before the filing of this appeal. I  note that the documents do not appear to have been provided to the respondent at any time prior to the hearing of this application, but were provided to the Privacy Commissioner in relation to a complaint by the complainant as to the failure to provide access to her patient notes.

[31]   If the applicant intends to use these records to put forward a different version of events than that accepted by the Tribunal, then oral evidence is inevitable. I  accept the respondent’s submission that a further 12 months delay in such a circumstance is likely to seriously prejudice the respondent, given the impact of the passage of time on already dimming memories. The events the subject of charges apparently occurred some 7-10 years ago. Taking into account only the delay caused by the applicant’s delay in prosecuting this appeal, which is 12 months, I am nevertheless satisfied that there will be serious prejudice to the respondent caused by the inevitable dimming of witnesses memories.

Overall Interests of Justice

[32]   Finally, taking a step back I am satisfied that it is not in the overall  interests of justice that this appeal proceed. The applicant has been guilty of inordinate and inexcusable delay. He has attempted to lay the blame for his inaction upon counsel, and upon Court staff. Ultimately, I am satisfied on the evidence before me, that if there has been any failure to communicate dates or contents of various orders, then the applicant himself must shoulder most if not all responsibility for that. The applicant has clearly signalled that the basis of the appeal is to partly be the “new

evidence” contained within the patient notes. The credibility of the complainant is therefore likely to be key. In those circumstances, a 12 month delay is seriously prejudicial to the respondent. Accordingly, I am not satisfied that the decision of Robertson J was wrong. Having considered the matter in effect de novo in light of  the substantial evidence and submissions placed before me, I decline the appellant’s application that the decision of Robertson J be set aside.

[33]   The respondent is entitled to costs on this application on a 2B basis. If counsel are unable to agree costs, they may file memoranda no later than Friday 25 March 2005.

H D Winkelmann J