T v Director of Proceedings

[2007] NZCA 213

NOTE:  INTERIM HIGH COURT ORDER CURRENTLY IN FORCE, SUPPRESSING APPELLANT'S NAME AND ANY DETAILS THAT MIGHT IDENTIFY HIM, INCLUDING THE TOWN WHERE HE WORKED AND RESIDED AT THE TIME OF THE DISCIPLINARY PROCEEDINGS

IN THE COURT OF APPEAL OF NEW ZEALAND

CA40/06 [2007] NZCA 213

BETWEEN  T Appellant

AND  DIRECTOR OF PROCEEDINGS Respondent

Hearing:         2 May 2007

Court:            Hammond, Chambers and Wilson JJ

Counsel:        A H Waalkens QC and G E Phipps for Appellant

K P McDonald QC for Respondent

Judgment:      30 May 2007         at 11am

JUDGMENT OF THE COURT

A        The appeal is dismissed for want of jurisdiction.

B        There is no order as to costs.

REASONS OF THE COURT

(Given by Wilson J)

T V DIRECTOR OF PROCEEDINGS CA CA40/06  30 May 2007

Introduction

[1]      On 30 September 2005 the Health Practitioners Disciplinary Tribunal refused the appellant’s application for permanent name suppression in disciplinary proceedings  against  him.     On  21  February  2006  Panckhurst  J  dismissed  the appellant’s appeal from that decision.  The appellant sought to appeal this Court.

[2]      At the commencement of the hearing, we raised with counsel the question of whether leave to appeal was required.

[3]      Having heard argument on the point, we reached the clear conclusion that leave to appeal was required and advised counsel that we would deliver a written judgment dismissing the appeal for want of jurisdiction and setting out the reasons for our conclusion.

[4]      We now do so.

Leave to Appeal

[5]      The  proposed  appeal  is  pursuant  to  s  113  of  the  Health  Practitioners

Competence Assurance Act 2003, which reads as follows:

(1) A  party  to  an  appeal  under  this  Part  may  appeal  against  any determination of law arising in the appeal.

(2) If the appeal is —

(a) from a District Court, it must be made to the High Court:

(b) from the High Court, it must be made to the Court of Appeal.

(3) The appeal must be heard and determined in accordance with the appropriate rules of Court.

(4) Part IV of the Summary Proceedings Act 1957 (together with the other provisions of that Act that are applied in that Part) applies to the appeal —

(a) so far as it is applicable and with all necessary modifications;

but

(b) only so far as it relates to appeals on questions of law.

(5) Subsection (4) overrides subsection (3).

[6]      Because the appellant’s first appeal was to the High Court, any appeal under s 113 must be to this Court.

[7]      Section 144 of the Summary Proceedings Act 1957, which is within Part IV

of that Act, reads as follows:

(1) Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under section 107 of this  Act  or  against  any  determination  of  the  High  Court  on  a question of law arising in any general appeal:

Provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

(2) A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

(3) Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[8]      In terms of s 113(4), s 144 therefore applies to the appellant’s proposed appeal so far as it is applicable and with all necessary modifications.

[9]      This wording makes clear that the test for the application of s 144 to the proposed appeal is not whether its wording is apt in all respects, but rather whether it is in principle applicable and can be modified so as to apply.

[10]     Applying  this  test,  we  are  in  no  doubt  that  s  144  applies,  with  the consequence that before the appellant can appeal to this Court he must obtain the leave of the High Court or, if that Court refuses leave, the leave of this Court.

[11]     The requirement to obtain leave is no  mere formality; as the wording of s 144(2) and (3) makes clear, leave will only be granted if a question of law is identified and the applicant can establish that it should be submitted to this Court because of its general or public importance, or for some other reason.

[12]     Mr Waalkens QC, for the appellant, submitted that s 113 (2)(b) conferred a right of appeal without leave being required.  In our view however s 113(4) cannot be ignored in this way; “the appeal” in subs (4) is also “the appeal” in subs (2).

[13]     Even  if  we  had  thought  that  there  was  some  ambiguity  in  the  relevant statutory  provisions,  we  would  have  favoured  the  construction  that  leave  was required as being consistent with the common appellate structure whereby a second appeal is only available with leave.

[14]     We also note that Skegg and Paterson (eds) Medical Law in New Zealand

(2006) at [23.11] suggest -

The High  Court’s  decision  on  an  appeal  from  the  Health  Practitioners’ Disciplinary Tribunal is final, subject to the right of the appellant parties to the Court of Appeal on a question of law.  The 2003 Act provides that the provisions of Part 4 of the Summary Proceedings Act 1957 apply to such appeals.   Accordingly, the appeal is not as of right, but leave of the High Court or special leave of the Court of Appeal is first required.  The appellant must point to an error of law …

[15]     For the reasons we have set out, that is in our view a correct statement of the position.

Result

[16]     The appellant requires the leave of the High Court or, if that Court refuses leave, the leave of this Court.

[17]     Because he  has  not obtained  leave,  we have  no  jurisdiction  to  hear  this proposed appeal and it is therefore dismissed for want of jurisdiction.

[18]     We make clear however that this outcome does not prevent the appellant from seeking leave to appeal from the High Court, and if necessary this Court.  In so doing,  we  are  not  to  be  taken  as  indicating  that  any  such  application  would necessarily succeed.

Costs

[19]     The  respondent  had  not  raised  with  the  appellant’s  legal  advisers  the possibility that leave might be required.

[20]     In these circumstances, we make no order as to costs.

Suppression of Name

[21]     We  note there  is  currently  in  force  an  interim  order  of  the  High  Court prohibiting publication of the appellant’s name and any details that might identify him, including the town where he worked and resided at the time of the disciplinary proceedings.

Solicitors:

Bartlett Partners, Wellington, for Appellant

Director of Proceedings, Health and Disability Commissioner for Respondent