Subramani v A Professional Conduct Committee Appointed by the Dental Council of New Zealand
[2023] NZHC 757
•5 April 2023
IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE
CIV-2022-418-17
[2023] NZHC 757
UNDER the Health Practitioners Competence Assurance Act 2003 IN THE MATTER OF
an appeal against a decision of the Health Practitioners Disciplinary Tribunal dated 16 December 2022
BETWEEN
BHARATH RAJA SUBRAMANI
Appellant
AND
A PROFESSIONAL CONDUCT COMMITTEE APPOINTED BY THE DENTAL COUNCIL OF NEW ZEALAND
Respondent
Counsel: A H Waalkens KC for Appellant
J P Coates and A N Lane for Respondent
D D Vincent for Health Practitioners Disciplinary Tribunal, abiding the outcome (excused)Judgment:
5 April 2023
(Determined on the papers)
JUDGMENT OF OSBORNE J
(leave to appeal)
This judgment was delivered by me on 5 April 2023 at 2.15 pm pursuant to Rule 11.5
of the High Court Rules
Registrar/Deputy Registrar Date:
SUBRAMANI v A PROFESSIONAL CONDUCT COMMITTEE APPOINTED BY THE DENTAL COUNCIL OF NEW ZEALAND [2023] NZHC 757 [5 April 2023]
The cancellation of Dr Subramani’s registration
[1] The Health Practitioners Disciplinary Tribunal (Tribunal) on 16 December 2022 found a charge of professional misconduct on the part of Dr Bharath Subramani, a registered dentist, established.1 The Tribunal cancelled Dr Subramani’s registration to take effect six weeks after the date of the decision. A fine was also imposed.
[2] Dr Subramani appealed those parts of the Tribunal’s penalty decision by which his registration was cancelled and he was fined.
[3]Dr Subramani’s appeal has been scheduled to be heard on 7 November 2023.
The stay application
[4]Pending the hearing of his appeal, Dr Subramani sought:
(a)a (continued) stay of the Tribunal’s decision; and
(b)permission to continue to practice as a dentist (under supervision and with voluntary limits).
[5] That application was heard and determined in February 2023 (the “February judgment”).2
[6]Interim relief had previously been granted until 17 February 2023.
[7] This Court declined the application for continuing interim relief, save that the existing interim relief was extended to expire on 7 March 2023.
1 A professional conduct committee appointed by the Dental Council of New Zealand v Subramani
HPDT number 1282/Den21/511P dated 16 December 2022.
2 Subramani v A professional conduct committee appointed by the Dental Council of New Zealand
[2023] NZHC 189.
Background to the February judgment
[8] The factual background to this appeal proceeding is fully set out in my February judgment.
[9] The key considerations that led to the refusal of continued interim relief (by way of stay) may be summarised as follows:
(a)the refusal of a stay would not render the appeal nugatory in the usual sense;
(b)there would be an injurious financial impact on Dr Subramani and others involved in the practice but, having regard to the conclusion of the specialist tribunal reached on a substantial body of evidence following a lengthy penalty hearing, the ability of Dr Subramani to operate only at the level of a junior dental student weighed significantly against a stay;
(c)the effect on third parties is most fairly regarded as neutral;
(d)the disciplinary importance of the Tribunal’s decision weighs in favour of a stay not being granted;
(e)there is an inherent public interest in disciplinary proceedings;
(f)the apparent strength of the appeal is a neutral factor, with the prospects of a successful appeal not being “strong”; and
(g)the fair and just outcome was that Dr Subramani’s registration should not be stayed.
Application for leave to appeal and for a stay
[10]Dr Subramani has applied for:
(a)leave to appeal the February judgment;
(b)a stay of the decision in the February judgment; and
(c)a stay of the Tribunal decision cancelling his registration (on conditions as to continuing supervision).
[11]The Council, as respondent, opposes the application.
Application for leave to appeal
The law
[12] Dr Subramani’s stay application was an interlocutory application in respect of a civil proceeding.
[13] Accordingly, Dr Subramani requires (under s 56(3) Senior Courts Act 2016) leave to appeal to the Court of Appeal.
[14]The Court of Appeal in Greendrake v The District Court of New Zealand
adopted the following as the test applicable to the granting of leave:3
(a)a high threshold exists;
(b)the applicant must identify an arguable error of law or fact;
(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;
(d)the circumstances must warrant incurring further delay; and
(e)the ultimate question is whether the interests of justice are served by granting leave.
The grounds of the application for leave to appeal
[15] The grounds of the application for leave to appeal arise first from the way in which Dr Subramani had continued to practice (under stay conditions) until the time of the February judgment.
3 Greendrake v The District Council of New Zealand [2020] NZCA 122 at [6].
[16] The charges Dr Subramani faced in the Tribunal at the 2022 hearing related to his practice of dentistry in 2017 and 2018. After being charged, Dr Subramani was permitted to continue practising dentistry under supervision by another practitioner appointed by the Dental Council. The supervisor gave evidence that there had been, during the period of supervision, a marked improvement in Dr Subramani’s practice of dentistry (Dr Subramani was described by the supervisor as “certainly capable of normal fillings, extractions, cleaning, and examinations which became very thorough”). The Tribunal recognised Dr Subramani had engaged in supervision and accepted the supervisor’s evidence that Dr Subramani had responded well.
[17] For Dr Subramani, Mr Waalkens KC submits that this Court’s decision to decline to order a stay was unsupportable and unreasonable — in short there were arguable errors of fact and law.
[18] Mr Waalkens identifies as unique to this application the fact that Dr Subramani had in place for his dental practice the supervision arrangements to which I have referred, which restrict him to basic dentistry of a closely and reliably supervised nature. A prior dental treatment plan is required to be in place for each patient, approved by the supervisor. The supervisor to September 2020 was a competent and well-experienced dental practitioner as is the proposed replacement supervisor.
[19] Mr Waalkens identifies the passage of time between the events giving rise to the disciplinary charge (in 2017 and 2018) and the “glowing and reassuring” regular reports of Dr Subramani’s subsequent professional work under supervision. Mr Waalkens refers to the evidence that provides reassurances as to the satisfactory nature of Dr Subramani’s work, in particular:
(a)his supervisor’s evidence that (in his opinion) Dr Subramani’s continued practice of dentistry provides no real risk to the public; and
(b)the evidence of a dental practitioner now working as an associate in Dr Subramani’s practice who has observed his work and viewed it as “entirely appropriate and to a satisfactory standard”.
Leave considerations
A high threshold
[20] The purpose of having a high threshold for the granting of leave is to ensure unmeritorious appeals or appeals of no great significance are filtered out.4 These considerations are closely related to the third category of considerations discussed below at [23] as to importance to the public and/or the applicant.
Arguable errors
[21] The error for consideration on appeal, as identified by Mr Waalkens, relates to the combination of the age of the incidents of professional misconduct (five to six years ago) and the body of evidence (particularly that of the supervisor) as to the quality of Dr Subramani’s supervised work since September 2020. It is to be argued that this Court failed to adequately take into account the supervisor’s “persuasive evidence”. It is further to be argued that this Court erred in essentially adopting the Tribunal’s view that the legislation did not permit a further extended period of supervision.
[22] I recognise that there are at least aspects of these grounds that constitute arguable errors.
Importance of the error
[23] I accept, as submitted by Mr Waalkens, that the subject matter of the appeal is of great significance to Dr Subramani and, through him, has importance for the patients of his practice and may impact on the availability of dental treatment in the district. I recognise also that decisions in previous cases referred to by Mr Waalkens suggest that there has been favourable consideration of similar stay applications.5
[24]This, in itself, points to a degree of precedential value in the appeal.
4 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [9], [13].
5 B v Preliminary Proceedings Committee of the Medical Council of New Zealand HC Auckland HC169/95, 18 December 1995; Patel v Complaints Assessment Committee HC Auckland CIV- 2007-404-1818, 27 June 2007; Patel v Dentists Disciplinary Tribunal HC Auckland AP 77-SW02, 21 August 2002.
Circumstances warranting further delay
[25] Mr Waalkens understandably anticipates the Court of Appeal will consider an application for urgency in hearing the stay appeal (for which leave is being sought). He submits that there can be no real concern that delay in having the Court of Appeal determine the application for stay is, or will be, material.
The interests of justice
[26] Mr Waalkens submits that the interests of justice align to a large degree with the importance of the issues on appeal. He submits that the interests of justice favour the granting of leave.
Extension of stay
[27] Mr Waalkens submits, assuming leave to appeal is granted, the reasonable and appropriate outcome is that the period of stay be extended pending the Court of Appeal’s determination of the appeal.
Submissions in opposition
[28] Mr Coates, for the respondent, in comparably detailed submissions took issue with most aspects of the submissions for Dr Subramani. In summary, Mr Coates:
(a)rejected the proposition that Dr Subramani would suffer irreparable harm reputationally and professionally in the event the Tribunal orders are not stayed, as his reputation does not depend on whether an interim stay is granted or not;
(b)the statutory principle (under s 108 Health Practitioners Competence Assurance Act 2003 (the Act)) is that orders made by the Tribunal continue in force unless this Court orders otherwise — the protective nature of the statutory regime reinforces the need for a high threshold before leave is granted;
(c)the possible prejudice to Dr Subramani in the event that a successful appeal is preceded by a period of inability to work is counterbalanced by the serious prospect that the level of professional misconduct would still result in at least a suspension for a period not exceeding three years;
(d)arguments advanced as to errors of factual assessment overlook this Court’s consideration of the supervision arrangements and have insufficient regard to the entitlement of the Court to place significant weight on the Tribunal’s conclusions as to the level at which Dr Subramani was operating under supervision;
(e)the submissions on the intended appeal in relation to Dr Subramani’s career being at stake have validity in relation to the proposed appeal itself but Dr Subramani’s professional reputation does not depend on whether he has successfully challenged the stay decision; and
(f)there is not a presumption in favour of maintaining the status quo in disciplinary matters pending an appeal — the statutory presumption under s 108 of the Act is to the contrary. In the cited decision under the present Act (Edwards v A Professional Conduct Committee) the decision to grant a stay was by a “fine margin”.6 Other cases cited by Mr Waalkens predate the current legislation.
Conclusion
[29] I have carefully considered all these competing submissions. None of them are conclusive of the two issues before me.
[30] There is sufficient of importance in the issues Mr Waalkens proposes to raise if leave is granted to justify, in the interests of justice, leave to appeal.
[31] In relation to the stay application, I was not satisfied that a stay would be in the interests of justice were it to be ordered for the period lasting to the High Court hearing
6 Edwards v A Professional Conduct Committee [2022] NZHC 971 at [42].
date in November 2023. Having regard to the findings made by the Tribunal, the considerations of public interest that arise from the fact that (even supervised) Dr Subramani has been practising only at the level of a second-year dental student, are in my view a strong factor against further interim relief for an extended period.
[32] Having regard, however, to the importance of this issue for Dr Subramani, and the possibility that arguable errors of law or fact might be found to justify the granting of the proposed appeal, I am persuaded, by a fine margin, that a further period of stay should be granted.
Orders
[33]I order:
(a)the appellant is granted leave to appeal against the judgment of this Court in Subramani v A professional conduct committee of the Dental Council of New Zealand;7
(b)there is by way of interim relief under r 20.10(2)(c) High Court Rules 2016 a stay of the date on which Dr Subramani’s registration will be cancelled, namely until the hearing of Dr Subramani’s appeal, on condition that:
(i)the appellant makes an application to the Court of Appeal for urgency in hearing his stay appeal; and
(ii)Dr Subramani is to retain the services of Dr Susan Gorrie as a supervisor of his practice in accordance with the supervisory arrangements that were previously in place through Dr Michael Shand;
7 Subramani v A professional conduct committee of the Dental Council of New Zealand, above n 2.
(c)the costs and disbursements of these applications are reserved.
Osborne J
Solicitors:
Wotton & Kearney, Wellington
Counsel: A H Waalkens KC, Auckland Claro Law, Wellington
Copy to: D D Vincent, HPDT
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