Mangalassery v Social Workers Registration Board [2021] NZCA 509 (5 October 2021)

Last Updated: 12 October 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA476/2021 [2021] NZCA 509

	BETWEEN	MATHEWKUTTY JOSE MANGALASSERY Applicant
	AND	SOCIAL WORKERS REGISTRATION BOARD Respondent

Court:	French and Courtney JJ
Counsel:	Applicant in person S C M Waalkens and J K Attenberger for Respondent
Judgment: (On the papers)	5 October 2021 at 10.30 am

JUDGMENT OF THE COURT

1. The application for leave to appeal is declined.
2. We make no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

• [1] Mr Mangalassery applies for leave to appeal a decision of van Bohemen J in the High Court.^[1]
• [2] The respondent, the Social Workers Registration Board (the Board), opposes the application on grounds of lack of jurisdiction and lack of merit.

Background

• [3] Mr Mangalassery is a registered social worker. He is aggrieved by the Board’s decision to adopt a recommendation that he receive mentoring and/or counselling to develop his social work in specified areas. The recommendation was made by a Professional Conduct Committee (the Committee) as part of its investigation into a complaint made against Mr Mangalassery. In making the recommendation, the Committee purported to be acting under s 71(1)(b)(v) of the Social Workers Registration Act 2003.
• [4] Mr Mangalassery was unhappy with this decision because the Committee had found he had not breached his ethical duties nor the relevant Code of Conduct. In ⁠those circumstances, he argued the only recommendation available to the Committee was that no further action be taken.
• [5] Section 88(1) of the Social Workers Registration Act provides that a person adversely affected by any decision or direction of the Board may appeal that decision to the District Court. Mr Mangalassery duly filed a notice of appeal in the District Court. The appeal was heard by Judge McIlraith.
• [6] Judge McIlraith held that, in making its recommendation, the Committee had breached the rules of natural justice in that it had failed to give Mr Mangalassery the opportunity to be heard on the proposed recommendation.^[2] That breach of procedural fairness in turn tainted the Board’s decision to accept the recommendation because it had in effect acted as a “rubber stamp” and failed to give reasons for its decision.^[3] In the Judge’s view, the Board ought not to have agreed with the recommendation. Instead, it should have referred the complaint back to the Committee so the latter could give Mr Mangalassery the opportunity to be heard and then consider afresh the issue of whether to make any recommendations under s 71(1)(b)(v).^[4]
• [7] The Judge ordered that the Board’s decision be modified to the above effect.
• [8] This was not the outcome Mr Mangalassery wanted. He wanted finality and considered the Judge was wrong to refer the matter back to the Committee. He therefore filed a notice of appeal in the High Court against Judge McIlraith’s decision.
• [9] Section 92 of the Social Workers Registration Act provides that the District Court’s decision on an appeal is “final.” This provision is however subject to s 96. Section 96 states:

96 Appeal on question of law

(1) If dissatisfied with a decision of the District Court as being erroneous in law, a party to an appeal under this Part may appeal to the High Court on a question of law only.

(2) The appeal must be heard and determined in accordance with rules of court.

(3) Part 6 of the Criminal Procedure Act 2011 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.

(4) Subsection (3) overrides subsection (2).

• [10] The question of law raised by the appeal Mr Mangalassery had filed was fixed by Venning J in the following terms:^[5]

Whether Judge McIlraith erred in finding that [the Committee] had jurisdiction to make a recommendation under s 71(1)(b)(v) of the Act in circumstances where [the Committee] had determined that there was no basis to the complaint against the appellant.

• [11] The appeal in the High Court then came on for hearing before van Bohemen J.
• [12] The first issue the Judge needed to decide was whether Mr Mangalassery needed leave before he could argue his appeal in the High Court.
• [13] As will have been noted, the effect of s 96(3) is that where the appeal relates to a question of law, pt 6 of the Criminal Procedure Act 2011 applies to the extent it is applicable. Under pt 6 there is a leave requirement in cases involving questions of law.^[6] Therefore, if it did apply to this case, it would mean Mr Mangalassery did need leave.
• [14] Mr Mangalassery argued that the Criminal Procedure Act did not apply because disciplinary proceedings are civil in nature, not criminal and the appeal was governed instead by pt 20 of the High Court Rules 2016.
• [15] The Judge accepted that the proceeding was civil but held that was not determinative. In his view, the wording in s 96 was clear; pt 6 was applicable and therefore leave was required.^[7]
• [16] The Judge then went on to consider whether Mr Mangalassery’s proposed appeal met the threshold for granting leave. He found that it did because the question of law as formulated by Venning J was a question of general importance to all social workers.^[8]
• [17] That was so even although van Bohemen J also held that the factual premise on which the question of law was based — that the Committee had found there was no basis to the complaint — was not in fact correct.^[9] The Judge’s reading of the Committee’s decision was that there were other residual concerns arising from the complaint regarding Mr Mangalassery’s practice as a social worker that did not involve breaches of ethical duties or the Code of Conduct.^[10] It was those residual concerns that had prompted the Committee’s recommendation.
• [18] In the Judge’s view, a more accurate formulation of the question of law would therefore have been whether Judge McIlraith erred in law in finding the Committee had jurisdiction to make a recommendation under s 71(1)(b)(v) of the Social Workers Registration Act in circumstances where the Committee had determined that Mr Mangalassery had not breached his ethical duties or the Code of Conduct.^[11]
• [19] However, because the argument had proceeded on the basis of the formulation fixed by Venning J, the Judge said he would not depart from the original question.^[12]
• [20] Turning then to the question of law as formulated by Venning J, the Judge undertook a review of the legislative provisions regarding the complaints process and the statutory powers of the Committee. He concluded that the Committee does have jurisdiction to make a recommendation under s 71(1)(b)(v) even in circumstances where it has determined there is no basis to the complaint.^[13]
• [21] The Judge therefore dismissed the appeal. Finally, he observed that had the question been premised on what he considered was the correct factual basis he would not have granted leave.^[14]

Analysis

• [22] The Board submits we have no jurisdiction to consider the application. It argues that Mr Mangalassery’s proposed appeal would be a third appeal and that a third appeal is precluded by s 308 of the Criminal Procedure Act.
• [23] Section 308 is contained in sub-pt 8 of pt 6 of the Criminal Procedure Act. Sub-part 8 deals specifically with appeals on questions of law. Section 308 under the heading of “further appeals” provides that every determination of a second appeal under sub-pt 8 by the High Court is final.
• [24] The Board’s argument is supported by van Bohemen J who considered that the appeal he was hearing in this proceeding was a second appeal for the purposes of sub‑pt 8.
• [25] For his part, Mr Mangalassery who now accepts that the Criminal Procedure Act applies says the Judge and the Board are wrong. In his submission, it is only in this Court that the proposed appeal would be a second appeal and that accordingly it is s 303 of the Criminal Procedure Act that applies, not s 308. Under s 303, a second appeal can be brought if the proposed second appeal court grants leave. Mr Mangalassery therefore says he has filed his application for leave to appeal in the right court and that we do have jurisdiction to consider it.
• [26] Mr Mangalassery has already challenged the Board’s decision in two Courts, the District Court and the High Court. Therefore, on first blush it would seem the proposed appeal in this Court must be a third appeal.
• [27] However, the more difficult question is whether it is a third appeal for the purposes of the Criminal Procedure Act’s appeal pathway relating to questions of law. The first appeal in this case to the District Court was not an appeal limited to a question of law. It was a general appeal. The error of law at issue in the High Court was whether Judge McIlraith erred in law, not whether the Board erred in law. Analysed in that light, the matter is not quite as straightforward as the Board’s submissions would suggest. There is, in our view, a tenable argument to say that in this proceeding there has only been one appeal on a question of law and that was in the High Court.
• [28] Arguably, the situation is similar to the appeal pathway under the Resource Management Act 1991.
• [29] The Environment Court hears general appeals from decisions of consent authorities. There is a right of appeal from a decision of the Environment Court to the High Court but limited to a question of law. Section 308 of the Resource Management Act provides that the decision of the High Court on such an appeal is to be treated as if it were a decision made under s 300 of the Criminal Procedure Act. That is to say, the appeal to the High Court is treated as a first appeal for the purposes of the question of law procedure, notwithstanding that the Environment Court decision was itself an appeal. It has never been doubted that a further appeal to this Court from the High Court in a resource management case is available on leave under s 303 of the Criminal Procedure Act.
• [30] We acknowledge there is a strong policy imperative in disciplinary proceedings against matters becoming overly legalistic and drawn out. That is recognised in s 92 of the Social Workers Registration Act which, it will be recalled, states that the decision of the District Court is final. We also acknowledge that the Social Workers Registration Act does not contain a similar provision to s 308 of the Resource Management Act.
• [31] But on the other hand, nor does the Social Workers Registration Act expressly state that an appeal is to be treated as an appeal under s 303 of the Criminal Procedure Act making the High Court a second appeal court. All s 96 says is that pt 6 of the Criminal Procedure Act applies to the appeal to the High Court “so far as it is applicable”. Arguably, a rights-consistent interpretation of that phrase would support our having jurisdiction to entertain Mr Mangalassery’s application for leave to appeal.
• [32] Although there are other statutes containing similar appeal pathway provisions to those in the Social Workers Registration Act,^[15] this is perhaps surprisingly the first time this particular jurisdictional question has come before this Court. Further, there is only one High Court decision that has addressed the matter in any depth and even then it was obiter.^[16]
• [33] It has not however proved necessary for us to express any definitive view on the point. That will have to await a panel of three Permanent Court judges and full legal argument. The reason it has not proved necessary for us to reach any definitive view is because we have come to the firm conclusion that, even if we did have jurisdiction, we would not grant leave.
• [34] As noted by van Bohemen J, the question of law formulated in the High Court was based on a wrong factual premise. The Judge felt constrained to consider the question as formulated but this Court would not be under the same constraints. Correctly formulated, the question of law would be entirely case-specific and not one of general importance. There is also no risk of a miscarriage of justice if the proposed appeal does not proceed. That is because the proposed appeal would be doomed to fail given the breadth of the Committee’s powers under the Social Workers Registration Act as detailed in the High Court.^[17] Another important reason why there is no risk of a miscarriage is that Mr Mangalassery still has the benefit of the order made in the District Court quashing the Board’s decision and requiring a fresh re‑consideration.
• [35] The Board did not seek costs and accordingly we make no award.

Outcome

• [36] The application for leave to appeal is declined.
• [37] We make no order for costs.

Solicitors:
Rice Speir, Auckland for Respondent

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^[1] Mangalasssery v Social Workers Registration Board [2021] NZHC 1594 [High Court judgment].

^[2] Mangalassery v Social Workers Registration Board [2021] NZDC 2809 at [38]–[40].

^[3] At [43].

^[4] At [50]–[51].

^[5] High Court judgment, above n 1, at [65].

^[6] See Criminal Procedure Act 2011, s 296(2).

^[7] At [46].

^[8] At [63].

^[9] At [73].

^[10] At [68]–[72].

^[11] At [73].

^[12] At [74].

^[13] At [121].

^[14] At [126].

^[15] For example, the Building Act 2004, s 340(3) and the Health Practitioners Competence Assurance Act 2003, s 113(4).

^[16] See Ministry of Business Innovation and Employment v Bell [2018] NZHC 1662 at [13]–[26].

^[17] High Court judgment, above n 1, at [82]–[87].