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Director of Proceedings v I CA158/04 [2004] NZCA 376 (17 December 2004)

Last Updated: 25 April 2018

IN THE COURT OF APPEAL OF NEW ZEALAND

CA158/04

Hearing: 18 October 2004
Court: Anderson P, Hammond and William Young JJ Counsel: M R Heron for Appellant
A H Waalkens QC for First Respondent Judgment: 17 December 2004

JUDGMENT OF THE COURT

Leave to appeal is declined. Dr I is awarded costs of $3,000 together with disbursements (including travel and accommodation expenses of counsel, if any) to be agreed or, in default of agreement, fixed by the Registrar

REASONS

(Given by William Young J)

Introduction

[1] On 20 February 2004, Frater J dismissed an appeal by the Director of Proceedings (“the Director”) from a decision of a District Court Judge made under the Medical Practitioners Act 1995 (“the Act”) in which he had allowed an appeal

THE DIRECTOR OF PROCEEDINGS V I And Anor CA CA158/04 17 December 2004

from a decision of the Medical Practitioners Disciplinary Tribunal (“the Tribunal”) refusing an interim order for name suppression in relation to a doctor facing disciplinary charges.

[2] The Director wishes to appeal to this Court against Frater J’s judgment.

[3] The Medical Practitioners Act 1995 incorporates the provisions of the Summary Proceedings Act 1957 as to appeals. So, there can only be an appeal to this Court with leave of either the High Court or this Court.

[4] On 30 June 2004, Frater J refused leave to appeal and the Director now seeks leave to appeal from this Court.

[5] The fundamental problem with the Director’s application is that the proposed appeal would be moot.

Why the proposed appeal is moot

[6] On 5 May 2003 the Director charged Dr I with professional misconduct arising out of her dealings with a patient on 8 and 9 August 2001. The charges were brought pursuant to the Act and were required to be dealt with by the Tribunal.

[7] Dr I denied the charges and applied to the Tribunal for an interim order, pursuant to s 106(2)(d) of the Act, suppressing publication of her name and any fact identifying her, pending determination of the charges.

[8] In a decision dated 16 September 2003 the Tribunal declined the application.

[9] Dr I appealed to the District Court against that decision. In his judgment, released on 2 October 2003, Judge Lovegrove held that the Tribunal's decision was wrong. He therefore made an interim order suppressing publication of Dr I’s name.

[10] The hearing of the charge before the Tribunal took place on 8, 9 and 10 October 2003. The Tribunal reserved its decision.
[11] At the conclusion of the substantive hearing before the Tribunal, the Director appealed against the judgment of Judge Lovegrove of 2 October 2003. This appeal was heard by Frater J on 27 November 2003 and at the conclusion of the hearing she reserved her decision.

[12] On 22 December 2003 the Tribunal released its decision in relation to the disciplinary charges against Dr I. It found that two of the charges against her were proved.

[13] On 20 February 2004, Frater J released a judgment dismissing the appeal from the judgment of Judge Lovegrove.

[14] On 7 April 2004, the Tribunal issued its penalty decision in which, inter alia, it declined Dr I’s application for name suppression

[15] On 30 June 2004, Frater J declined an application by the Director for leave to appeal to this Court against her judgment of 20 February.

[16] On 15 September 2004, Judge Rea allowed an appeal against the decisions of the Tribunal finding two of the charges against Dr I to have been proved and declining her name suppression. He made a final order for suppression of her name.

[17] No appeal has been lodged against Judge Rea’s decision which effectively overtakes the order made by Judge Lovegrove and thus the dismissal of the appeal by Frater J against that order. So if we were to grant leave to appeal and allow the appeal, it would have no practical effect as the judgment of Judge Rea would stand.

Why the Director seeks leave to appeal

[18] In seeking leave from this Court to appeal against the judgment of 20 February 2004, the Director is not acting capriciously.

[19] The Director is dissatisfied with the approaches taken by Judge Lovegrove and Frater J in relation to interim orders for suppression of name. In essence, they
took the view that applications for suppression of name under the Act need not be scrutinised as stringently as similar applications made in proceedings before the Courts.

[20] On the basis of what Mr Heron, who appeared as counsel for the Director told us, there are genuine issues of principle which are involved.

[21] Yet according to Mr Heron, the dynamics of the disciplinary process are such that there are substantial practical difficulties in terms of raising those issues of principle. In any future case, the Tribunal will be required to adopt the approach favoured by Frater J, as will the District Court on appeal. Given timing considerations, it would be difficult to take a case to the High Court, let alone this Court, challenging an interim order for suppression prior to the question being rendered moot by determination of the substantive charges against the doctor concerned.

Should we grant leave?

[22] We are prepared to accept (or, perhaps more accurately, assume) that, at least in a case where there is a public law component, we retain jurisdiction to grant leave despite the absence of a live issue, see R v Secretary of State for the Home Department, ex parte Salem [1999] UKHL 8; [1999] 2 All ER 42 and New Zealand Employers Federation Inc v National Union of Public Employees [2001] NZCA 139; [2001] 1 ERNZ 212.

[23] There are, however, good reasons why caution should be shown about entertaining a moot appeal. The assumption which underpins our legal system is that legal propositions are best developed by the courts in the context of real controversies. The facts and apparent merits of particular cases are not necessarily controlling considerations, as indicated by the maxim that hard cases make bad law. But, they do provide a reality check for judges. In addition, there are resource considerations. The scarce resource of judicial time is perhaps better utilised in the resolution of real disputes.
[24] There are also several other considerations which are relevant. Although there are issues of principle involved, the discretion whether to order interim suppression is very fact specific. Irrespective of the appropriateness of the principles applied in the District Court and High Court, the decision to order interim suppression might well still be supportable. As it turned out, the case against Dr I failed. This provides a context which is inauspicious from the point of view of the Director for challenging the judgments of Judge Lovegrove and Frater J. So it may well be that, if leave were granted, the appeal might be able to be resolved narrowly and in a way which might not provide much guidance for the future. The case itself was obviously very distressing for Dr I, and, academic though an appeal might be, it would undoubtedly cause her more distress.

[25] As well, the practical problems relied on by the Director will not be as cogent in the future as they have been in the past. Under the Health Practitioners Competence Assurance Act 2003, appeals from the Tribunal appointed under that Act lie direct to the High Court and thus the timing problems associated with interim suppression orders will not be so acute. Further, we have no doubt that in an appropriate case either the High Court or this Court would grant leave to appeal to this Court to allow any live issues of principle to be determined.

Result

[26] We decline leave to appeal. Dr I is awarded costs of $3,000 together with disbursements (including travel and accommodation expenses of counsel, if any) to be agreed or, in default of agreement, fixed by the Registrar.

Solicitors:

Meredith Connell, Auckland for Appellant Fisher Lamberg, Auckland for First Respondent