Gibson v Complaints Assessment Committee [2010] NZCA 161 (14 May 2010)

Last Updated: 19 May 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA629/2009CA641/2009 [2010] NZCA 161

BETWEEN NEVILLE JAMES GIBSON
Applicant

AND COMPLAINTS ASSESSMENT COMMITTEE
Respondent

Court: Hammond, Arnold and Ellen France JJ

Counsel: Applicant in person
H J P Wilson and A M Hall for Respondent

Judgment: 14 May 2010 at 2.30pm

On the Papers

JUDGMENT OF THE COURT

1. The application to set aside or recall our judgment of 17 December 2009 is declined.
   

B The application to stay execution of the judgment as to costs is declined.

100. The respondent shall have half of the costs, on a Band A basis, as on an application for leave to appeal together with usual disbursements.
     

____________________________________________________________________

REASONS OF THE COURT

(Given by Hammond J)

Introduction

[1] For almost a decade now Dr Gibson, a dentist, has been embroiled in litigation with the Complaints Assessment Committee. The history of the litigation is set out in short form at [2]–[6] of our judgment of 17 December 2009, and we do not repeat that history here.
[2] It suffices to say for present purposes that Wylie J in the High Court heard Dr Gibson’s appeals from the Dentists’ Disciplinary Tribunal and dismissed them (with costs). Subsequently, Dr Gibson applied for the leave of the High Court to appeal to this Court against those determinations. Wylie J declined leave. Subsequently Dr Gibson sought the leave of this Court to appeal and it is to that application that our judgment of 17 December 2009 is directed.
[3] On 5 January 2010 Dr Gibson filed an application to set aside, or in the alternative, recall our judgment, of 17 December 2009 and to stay execution of the judgment as to costs. That was supported by an affidavit by him, of the same date.
[4] A notice of opposition to that application was filed by the respondent on 21 January 2010.
[5] Dr Gibson then took it upon himself to file something he termed a “memorandum in reply”.

Legal principles

[6] Under r 51 of the Court of Appeal (Civil) Rules 2005 there is expressly no right to appear before this Court on an application for the recall or reopening of a judgment. This Court may, if it thinks fit, authorise the parties, their representatives, or both, to appear. We do not consider this as a case requiring appearances. This is because first, we are of the view that the matter can adequately and fairly be dealt with on the papers. And second, the law relating to recall of a judgment is well settled,[1] the leading case being Horowhenua County v Nash (No.2). The test in Horowhenua County has been adopted by this Court in Rainbow Corporation Ltd v Ride Holdings Ltd[2] and in many other decisions since. Recently, in Erwood v Maxted, this Court agreed on the guidelines applying to applications such as this one:[3]

...

(b) Applications to recall judgments not falling within r 8

(i) Where a party seeks to recall a judgment not falling within r 8, the criteria set out in Horowhenua County v Nash No 2) [1968] NZLR 632 at p 633 (as confirmed by this Court in Unison Networks Limited v Commerce Commission [2007] NZCA 49) are to be followed and will be strictly applied.

(ii) Applications which merely seek to relitigate matters already considered, or to challenge substantive findings of fact and law, will not be entertained. Reference may usefully be made to Ngahuia Reihana Whanau Trust v Flight CA 23/02 26 July 2004; and Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19,832.

...

The merits of the application

[7] Dr Gibson complains that the Court was misled as to his previous disciplinary history. We do not accept that. This issue was the subject of full written and oral submissions from the parties.
[8] Secondly, complaint is made about an alleged failure to consider the implications of the penalty which had been imposed upon him. Again, this is not so. Extensive submissions were made on this issue and it was expressly dealt with in our judgment in paragraphs [16] and [17]. This is an attempt to advance once again matters that have already been dealt with conclusively. Dr Gibson has always considered the penalty was too severe because he considered his offending to have been relatively low level, whereas the Tribunal did not.
[9] Thirdly, Dr Gibson complains about what is undoubtedly an error in paragraph [18] of our judgment of 17 December. In the second sentence of that paragraph a reference is made to costs having been at the discretion of the Tribunal, when what was obviously intended (given the nature of the application then before the Court) was the High Court. What appears to have happened is that in paragraphs [16] and [17] there had been discussion of the Tribunal and Hammond J repeated that word in error in the succeeding paragraphs. We could recall and reissue our judgment as for an accidental slip under r 8 of the Court of Appeal (Civil) Rules. We see no need to do so in this instance because it would involve further and unnecessary administration in the Registry and we would in any event have reissued the judgment as of 17 December 2009. So there would be no advantage to Dr Gibson.
[10] The fourth point of substance made by Dr Gibson – that the Court “has failed to properly apply its discretion” is a bare-faced attempt to have the Court consider again the matters which it considered in December last. It is in a very real sense an attempt to have the appeal for which he was declined special leave to appeal.

Result

[11] Both the application for recall and the application for a stay are declined.
[12] As to costs, on the present application the respondent should have costs. The application was without merit. It does not fit squarely within the present rules and we proceed by analogy. The respondent shall have half of the costs, on a Band A basis, as on an application for leave to appeal and usual disbursements.

Solicitors:
Kensington Swan, Wellington, for Respondent

---

[1] See Horowhenua County v Nash-(No.2) [1968] NZLR 632 (HC) at 633.
[2] [1992] 5 PRNZ 493.
[3] Erwood v Maxted [2010] NZCA 93 at [23].