Liston v Director of Proceedings

[2018] NZHC 1615

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CIV-2018-483-4

[2018] NZHC 1615

BETWEEN

PETER NAPIER LISTON

Applicant

AND

THE DIRECTOR OF PROCEEDINGS

Respondent

Counsel:	A H Waalkens QC and H Stuart for Applicant L C Preston for Respondent
Judgment:	3 July 2018

JUDGMENT OF CHURCHMAN J

[1]                  The applicant has appealed a decision of the Health Practitioners Disciplinary Tribunal dated 24 January 2018. One of the grounds of the appeal is that the fine was unreasonable and excessive. An argument to be advanced in support of this submission is a claim that the Tribunal failed to consider the harm and damage (penalty) the applicant had already incurred by way of the adverse publicity that had occurred and would continue to occur.

[2]                  The Tribunal was aware of an article written about this case in the Whanganui Chronicle and published during the course of the Tribunal hearing. The Chair of the Tribunal actually drew the article to the attention of counsel for the applicant during the course of the hearing.

[3]                  The applicant has applied for leave to put before the Court a copy of the Whanganui Chronicle article and eight additional articles variously published in the Whanganui Chronicle, The NZ Herald and The Dominion Post. Other than for the

LISTON v THE DIRECTOR OF PROCEEDINGS [2018] NZHC 1615 [3 July 2018]

original article, the various other articles were published subsequent to the Tribunal’s decision.

[4]                  The respondent did not consent to the application for leave to adduce further evidence but abided the decision of the Court.

[5]                  The Court dealt with the matter on the papers issuing a decision on 22 June 2018 holding that there was no special reason that would justify the granting of leave to admit the further proposed evidence.

[6]                  On 25 June 2018, the applicant applied to recall the judgment in relation to the further evidence. That application was accompanied by a more extensive memorandum setting out the grounds relied upon.

[7]                  The respondent opposed the application for recall, and the matter was argued at a teleconference hearing on 2 July 2018.

Recall

[8]                  High Court Rule 11.9 permits the Court to recall a judgment at any time before a formal record of it is drawn up and sealed.

[9]                  The Courts have laid down clear guidelines as to the circumstances in which a decision may be recalled.1

[10]The three categories justifying recall of a judgment are:

(a)Where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and higher authority.

(b)Where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance.

1      Horowhenua County v Nash (No 2) [1968] NZLR 632; Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122; Rainbow Corp v Ryde Holdings (1992) 5 PRNZ 493; and Unison Networks Ltd v Commerce Commission [2007] NZCA 49.

(c)Some other very special reason.

[11]              The ground relied upon by the applicant in this case is the second ground and it was submitted that the applicant had failed to draw the Court’s attention to a fact or point of law that was plainly relevant. The applicant also relied on an alternative argument that it had not had a fair opportunity to consider the matter (on the basis that the application was not opposed) and had been taken by surprise by the adverse determination.

[12]              In oral submissions during the teleconference, counsel for the applicant referred the Court to the decision of Baragwanath J in J v Director of Proceedings on the issue of proportionality.2 It was submitted that in order to assess proportionality, the extent to which a practitioner is the recipient of adverse publicity will be a relevant factor.

Analysis

[13]              In relation to the question of whether the Court’s attention was not drawn to a legislative provision or authoritative decision of plain relevance, it cannot be suggested that the Court misunderstood the applicable provisions of the High Court Rules or the guiding case law.

[14]              No new facts have been discovered. Although the publicity referred to (other than the original article) all post-dated the Tribunal’s decision, it was anticipated by the Tribunal that there would be further publicity and the Tribunal expressly noted that the interim suppression order would lapse and that, of itself, would lead to potential publicity.

[15]              The applicant’s ability to argue that the Tribunal did not properly have regard to the principle of proportionality is not dependent upon the Court having before it each of the subsequent articles.

2      J v Director of Proceedings [2006] BCL 1003 at [52].

[16]              I do not accept that the applicant was “taken by surprise”. Whether or not the respondent abided the decision of the Court, it was incumbent on the applicant to provide sufficient material to the Court so that it met the test for granting of leave to adduce further evidence. That did not happen.

[17]              The substantive appeal is by way of rehearing. The Court has to come to its own conclusion, based on the material presented before the decision-maker, and any further evidence which might be admitted.3 By its nature an appeal is concerned with re-examination of matters considered in the Tribunal. The Tribunal did consider the question of proportionality.4 It is open to the applicant to argue that the Tribunal erred in this consideration.

[18]              One of the matters that the Tribunal considered in reaching its decision was the original Whanganui Chronicle article.

[19]              It emerged during the course of the teleconference that a copy of that article was not included as part of the case on appeal.

[20]              By consent, I make an order that a copy of the original Whanganui Chronicle article may be put before the Court on the hearing of this appeal.

[21]              I do not accept the argument of counsel for the applicant that, in order for the Court to understand the degree of publicity, it needs to see the other articles. It will be apparent from the original article the nature of the publicity that the applicant has been subjected to and which the Tribunal anticipated would occur.

Conclusion

[22]              Accordingly, I am not satisfied that the requirements for the recall of the decision are satisfied, and I decline to recall it.

[23]              Other than in respect of the original Whanganui Chronicle article, the application to adduce further evidence is dismissed.

3      Austin Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141.

4      Agreed bundle of documents Vol 3, page 603, lines 15-31.

[24]Costs are reserved.

Churchman J

Solicitors:

DLA Piper, Wellington

Office of the Director of Proceedings