Z v A Professional Conduct Committee

[2025] NZHC 745

NOTE: ORDER SUPPRESSING NAME AND PARTICULARS OF IDENTITY OF APPELLANT CONTINUES IN FORCE. NAMES AND IDENTIFYING PARTICULARS OF COMPLAINANTS SUPPRESSED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000048

[2025] NZHC 745

IN THE MATTER OF

an appeal pursuant to s 106(2) of the Health Practitioners Competence Assurance Act 2003

BETWEEN

“Z”

Appellant

AND

A Professional Conduct Committee Respondent

Hearing:	On the papers
Appearances:	A Waalkens KC and S Courtney for the Appellant J Coates and C Robinson for the Respondent
Judgment:	1 April 2025

JUDGMENT OF WALKER J

[Name suppression]

This judgment was delivered by me on 01 April 2025 at 3 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:

A Waalkens KC, Barrister, Wotton + Kearney (Auckland) J Coates, Dentons Kensington Swan

[Z] v A Professional Conduct Committee [2025] NZHC 745 [1 April 2025]

[1]                 In a judgment dated 30 January 2025, I allowed the appeal by Z against the decision of the Health Practitioners Disciplinary Tribunal’s (the Tribunal) finding of professional misconduct.1

[2]                 The Professional Conduct Committee (PCC) has applied for leave to appeal to the Court of Appeal. The remedy sought by the PCC includes an order confirming the Tribunal’s finding and an order remitting the matter back to the High Court for consideration of penalty and Z’s application for permanent name suppression.

[3]In respect of name suppression, the judgment stated:

Name suppression

[164] The complexion around name suppression is clearly altered by this judgment. In view of the outcome of the substantive appeal, my provisional view is that it is desirable that an order for permanent name suppression be granted. However, I am conscious that the submissions on name suppression were directed to the position should the appeal not in fact succeed or succeed only in part. For that reason, I continue the existing interim name suppression and invite both parties to file further written submissions in accordance with the following timetable…

[4]                 The parties conferred in light of the application for leave to appeal and reached a consent position that a permanent order for name suppression can be made expressly subject to the following two points:

(a)In the event that the PCC’s appeal is successful, Z will not take the position that the High Court has no ability or jurisdiction to consider the question of name suppression because of the existence of this permanent order.

(b)The PCC’s consent to the permanent name suppression order is entirely without prejudice to the PCC’s position on name suppression in the event the PCC’s appeal is successful.

[5]                 I apprehend that the effect of this is that the parties agree that there should be permanent name suppression at this time, but the question of suppression can be

1      Z v PCC [2025] NZHC 35.

reopened in the event the PCC’s appeal is successful because that will amount to a change in circumstances.

[6]                 Although the parties have reached a consent position, it is for the Court to determine the question of name suppression because of the importance of open justice. The parties’ views inform that decision.

[7]                 I am satisfied that this is a proper case for permanent name suppression subject to the conditions set out above. I set out my reasons.

[8]                 The Tribunal’s power to order non-publication is governed by s 95(2) of the Health Practitioners Competence Assurance Act 2003 (HPCAA) which provides:

95       Hearings to be public unless Tribunal orders otherwise

(1)Every hearing of the Tribunal must be held in public unless the Tribunal orders otherwise under this section or unless section 97 applies.

(2)If, after having regard to the interests of any person (including, without limitation, the privacy of any complainant) and to the public interest, the Tribunal is satisfied that it is desirable to do so, it may (on application by any of the parties or on its own initiative) make any 1 or more of the following orders:

…

(d)an order prohibiting the publication of the name, or any particulars of the affairs, of any person.

[9]                 Applicably, in this situation the test under s 95 requires an evaluation of competing considerations of the interests of the practitioner and the public interest, with the starting point being the fundamental principle of open justice.

[10]             The threshold test for an order for name suppression in the medical practice disciplinary jurisdiction has been said to invoke a considerably lower threshold than the usual civil test (as the standard articulated in Erceg v Erceg).2 In XY v PCC3

2      Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [13] and [21]. The Supreme Court held that a party seeking suppression (within the context of general civil jurisdiction) must show to a high standard that the interests of justice require a departure from open justice, such as specific adverse consequences sufficient to justify an exception to that fundamental principle.

3      XY v Professional Conduct Committee [2022] NZHC 1498 at [138]–[139].

Gendall     J     cited     with     approval      the     High     Court     decision     in

Ben-Dom v PCC where Dobson J said:4

[142] … Desirability of suppression of a practitioner’s name reflects a materially lower test than other context where the presumption of open justice can only be overwritten if exceptional adverse circumstances would follow.

[11]             More recent authority in the High Court has cast doubt on that view and review of the position by the Court of Appeal is pending.5

[12]             I accept that transparency and accountability of the disciplinary process is important and serves more than just public protection; it protects the integrity of the disciplinary process and advances the objectives of the Tribunal.6 However transparency and accountability “walk hand in hand”.7 It follows that those found guilty of misconduct must be held to account for their actions including being identified as the person who conducted themselves in that way.8

[13]             The position is different where the practitioner has not been found guilty or where, as here, the finding of misconduct has been quashed. The reputation stain of a prosecution is significant in many instances. In this case there are no public protection imperatives supporting transparency of the disciplinary process. In my assessment, allowing publication of this practitioner’s name when the finding has been quashed would be punitive and have deleterious consequences on the practitioner’s ability to work with colleagues.

[14]             Accordingly, I am satisfied that the consent position of the parties should be reflected in an order prohibiting publication of the appellant’s name and identifying details,  on  the  conditions  recorded  in  the  joint  memorandum  of   counsel   dated 13 March 2025.

............................................................

Walker J

4      Ben-Dom v Professional Conduct Committee [2020] NZHC 3094, citing Johns v Director of Proceedings [2017] NZHC 2843 at [165]–[166].

5      Professional Conduct Committee v Brown [2024] NZHC 990 at [68]–[69].

6      Beer v Professional Conduct Committee [2020] NZHC 2828 at [40].

7 At [42].

8 At [42].