L v A Professional Conduct Committee - [2023] NZHC 1151

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-367

[2023] NZHC 1151

UNDER the Health Practitioners Competence Assurance Act 2003

BETWEEN

L

Appellant

AND

A PROFESSIONAL CONDUCT COMMITTEE

Respondent

Hearing: 15 November 2022, further material provided 30 November 2022

Counsel:

A H Waalkens KC and R Scott for Appellant

J C Hughson and S N Nightingale for Respondent

Judgment:

12 May 2023

JUDGMENT OF ISAC J

[Appeal against revocation of interim suppression order]

Introduction and the issues

[1] This case concerns suppression orders made in three related sets of professional disciplinary proceedings. At issue is the relationship between orders in one proceeding suppressing certain facts against the backdrop of publicly available decisions disclosing some of the same facts.

[2] In 2016, the Health Practitioners Disciplinary Tribunal found Mr L, a registered nurse, guilty of five charges of professional misconduct. He did not seek name suppression and he is identified by name in the Tribunal’s decision in connection with the misconduct charges.

L v A PROFESSIONAL CONDUCT COMMITTEE [2023] NZHC 1151 [12 May 2023]

[3] In a second misconduct proceeding, a preliminary issue concerning the admissibility of evidence was determined in judgments of the High Court and Court of Appeal. The Tribunal subsequently stayed the proceedings and, by consent, made permanent non-publication orders suppressing the name and particulars of Mr L and the witnesses.

[4] This appeal concerns a third disciplinary proceeding. The Tribunal found Mr L guilty of two further charges of professional misconduct. The charges were that he fraudulently made out a compensation claim in another person’s name for services Mr L had provided in breach of a professional obligation, and then attempted to interfere with the subsequent misconduct investigation once the subterfuge was discovered. While Mr L’s name was suppressed during the disciplinary process, the Tribunal subsequently revoked name suppression on an application by the Professional Conduct Committee.1

[5] Mr L now appeals against the Tribunal’s decision on suppression.2 First, he argues that publication of his name in the present proceeding will—contrary to the suppression order—likely lead to his identification in the stayed proceedings due to the “extensive common facts and linguistic similarities” between them. Second, Mr L argues that the Tribunal erred when undertaking the balancing exercise by overstating the public interest in awareness of his misconduct, mischaracterising his private interest in non-publication, and failing to properly consider the interests of others who might be affected by publication.

[6] The primary relief sought is a permanent suppression order. Alternatively, Mr L seeks orders that the “common elements” of the Tribunal’s decision in the present case be redacted to prevent his identification in the stayed proceeding.

[7] The Committee opposes the appeal. It says the appellant greatly overstates the risk that publication will lead to his identification in relation to the stayed proceeding.

1 Mr L has been granted interim name suppression, and the Tribunal’s decisions have not been released, to preserve Mr L’s position pending determination of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 1151
Decision Date: 12 May 2023

CaseChat Overview and Summary

The case of L v A Professional Conduct Committee concerns the revocation of interim suppression orders in three related sets of professional disciplinary proceedings against Mr L, a registered nurse. The primary issue before the High Court was whether the Tribunal had erred in revoking name suppression orders in a third disciplinary proceeding against Mr L, finding him guilty of two further charges of professional misconduct. Mr L appealed the Tribunal’s decision, arguing that the revocation would likely lead to his identification in a previously stayed proceeding and that the Tribunal had mischaracterised his private interest in non-publication and failed to consider the interests of others affected by publication. The Court of Appeal found that the Tribunal had not erred in its assessment and weighing of the relevant interests for and against publication, and dismissed the appeal.

The Court began by outlining the legal issues to be resolved, namely the appropriate standard of review for an appeal from the exercise of the Tribunal’s power under s 99 of the Health Practitioners Competence Assurance Act 2003, whether the Tribunal failed to properly consider and assess the risk that publication of Mr L’s name would lead to his identification in the stayed proceeding, and whether the Tribunal erred in assessing and weighing the relevant interests for and against publication.

On the first issue, the Court found that the correct approach for this Court on appeal was that set out by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar. The Court concluded that the same evaluative exercise should be applied on appeal whether considering decisions to make, or revoke, non-publication orders.

On the second issue, the Court found that while it would be theoretically possible for a person to conduct a forensic comparison of four publicly available decisions to connect Mr L to the stayed proceeding, the prospect of that occurring seemed vanishingly small. The Court also found that the principle of comity worked against Mr L’s appeal, as the suppression order in the stayed proceeding could not predetermine the question of suppression in subsequent misconduct proceedings.

On the third issue, the Court found that the Tribunal had not erred in assessing and weighing the relevant interests for and against publication. The Court found that there was a significant public interest in the publication of Mr L’s name in connection with the present charges, and that the Tribunal had properly considered Mr L’s main concern, which was the reputational harm he might suffer if he were to be identified in connection with the stayed proceeding. The Court also found that the Tribunal had properly considered the interests and privacy of witnesses in the proceeding.

In conclusion, the Court dismissed the appeal and ordered that this judgment is not to be distributed beyond the parties and counsel for 20 working days following judgment. The Court would be inclined to order the costs in favour of the respondent on a 2B basis.

Orders