Flett v Dental Council [2016] NZHC 358 (4 March 2016)

Last Updated: 11 March 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-1834 [2016] NZHC 358

UNDER	the Judicature Amendment Act 1972
IN THE MATTER	of an application for judicial review
BETWEEN	R'DAVID FLETT Applicant
AND	DENTAL COUNCIL Respondent

Hearing:	17 February 2016
Counsel:	A D Banbrook for Applicant (Respondent in strike out) A K Miller for Respondent (Applicant in strike out)
Judgment:	4 March 2016

_{JUDGMENT OF DAVISON J}

This judgment was delivered by me on 4 March 2016 at 3pm pursuant to Rule 11.5 High

Court Rules.

Registrar/Deputy Registrar

Solicitors: C K Lyon (Auckland) for Applicant

Claro Law (Wellington) for Respondent

FLETT v DENTAL COUNCIL [2016] NZHC 358 [4 March 2016]

Introduction

[1] The plaintiff, Dr Flett, brings an application for judicial review of the decisions of the Dental Council of New Zealand (the Council) made in relation to:

(a) his removal from the register of dental practitioners (the Register) on

21 July 2009;

(b) and the Council’s refusal or deferment of his restoration onto the

Register.

[2] The Council applies to strike out Dr Flett’s statement of claim on the grounds that the matter raised in the proceeding is futile as the Council has already restored Dr Flett’s name onto the Register (which it did on 8 September 2015), and that his claim for damages is untenable.

Factual background

[3] Section 142 of the Health Practitioners Competence Assurance Act 2003 (the Act) provides that a health practitioner may ask for their registration to be cancelled by making written application to the responsible authority, which may direct the Registrar to cancel the entry in the Register relating to the health practitioner. Similarly, s 144(3) of the Act provides that:

If the health practitioner tells the Registrar in writing that he or she wishes to have the entry in the register relating to him or her cancelled, the Registrar may cancel the entry in the register relating to the health practitioner.

The removal of Dr Flett’s name from the Register

[4] On 21 July 2009, the Council removed Dr Flett’s name from the Register. The Council says that it did so in accordance with and as a result of a written request sent from Dr Flett by way of email, asking that his registration be cancelled (the email request).

[5] Dr Flett was first registered on 9 March 1977. The Council says that, on 17

July 2009, Dr Flett telephoned the Council office to advise that he had some time earlier sent an email to the Council requesting that his name be removed from the Register. In the course of this telephone conversation, he referred to the name of the Council staff member that he had directed his email to. Acting on this telephone call, and on the basis of the email request, the Council, on 21 July 2009, forwarded a “request for name to be removed from the Dental Register” to the Registrar of the Dental Council of New Zealand (the Registrar). This request was made pursuant to s

144(3) of the Act.

[6] On the same day, the Registrar acted to update the Register by removing Dr

Flett’s name from the Register.

[7] Dr Flett commenced this proceeding by filing a statement of claim on 20 July

2015. It appears from the court file that, while the statement of claim itself was filed on 20 July 2015, the notice of proceeding on application for review was not filed that day and was subsequently filed on 13 August 2015. In his statement of claim, Dr Flett alleges that the Council’s removal of his name from the Register on or about 21

July 2009 had not been made in accordance with the requirements of the Act as there had been “no request for removal of the applicant from registration made in writing to the Council such as is mandatory under the Act.”

[8] Sometime following the filing of the statement of claim and notice of application, service of the proceedings was effected upon the Council. Upon receipt of the proceedings, the Council undertook a search of its files to locate Dr Flett’s email request (which had been referred to in his telephone conversation with the Council staff member on 17 July 2009). Notwithstanding its search for that email, the Council was unable to locate the email request although it did locate an email of

17 July 2009, in which one of its staff members referred to having just received a telephone call from Dr Flett. It records that the purpose his call was to follow up on his email request.

[9] Finding that it was unable to locate the actual email in which Dr Flett had requested removal of his name from the Register, the Council resolved to reinstate

Dr Flett’s name upon the Register as a dental practitioner and proceeded to do this on

8 September 2015. In a letter dated 9 September 2015, the Council’s solicitors wrote to Dr Flett’s counsel to advise that the Council had reinstated Dr Flett’s name to the Register as a dental practitioner. The Council explained:

3. While the Council considers that email correspondence is sufficient to meet the requirement that the request for cancellation is to be made in writing it has been unable to locate Dr Flett’s email requesting removal from the Register. The Council therefore acknowledges that it currently has no documentary evidence that Dr Flett had requested cancellation of his registration in writing.

Reinstatement to the register

4. In the absence of the written record of Dr Flett’s request for cancellation of his registration the Council has reinstated Dr Flett’s registration as a dental practitioner. We understand that reinstatement to the register occurred on 8 September 2015. Having done this, it is important to note the following matters:

(a) The reinstatement to the register quashed the original decision to cancel Dr Flett’s registration on the basis that the Council had been formally put on notice (by virtue of the judicial review) that there was no written record of Dr Flett’s request for cancellation; and

(b) The reinstatement to the register is not confirmation that Dr Flett meets the fitness for registration (necessary for restoration to the register), and in particular it is not to be taken as evidence that the Dental Council is satisfied that Dr Flett is able to perform the functions required to practise as a dental practitioner. The latter will be a matter of separate inquiry (see below); and

(c) In order to lawfully practise the profession, Dr Flett must still apply for and be issued with a practising certificate. Without predetermining the matter in any way, we can indicate that Dr Flett’s history of alcohol addiction and his physical limitations following his shoulder injury in 2006 will very likely be relevant to any application for a practising certificate. Dr Flett’s lengthy absence from practice (having last held a practising certificate in the

2005/2005 practising year) will also be relevant.

Judicial review

5. The Dental Council considers that, in light of Dr Flett’s reinstatement to the register, the judicial review is now moot, and in the circumstances the Council invites Dr Flett to withdraw his proceeding with no issue as to costs. The Council expresses its disappointment that Dr Flett did not formally raise his concerns about the lawfulness of the cancellation of his registration before filing the judicial review. The Council would have been prepared to engage with Dr Flett to resolve this issue without the need for recourse to litigation, and before legal costs had been incurred by both parties.

[10] In his application for judicial review, Dr Flett seeks relief as follows:

(a) an order quashing the decision of the Council, dated 21 July 2009, to remove the applicant from the Register;

(b) an order that the Council reconsider its decision as to the applicant’s

restoration to the Register;

(c) judgment for damages, the quantum of which will be notified prior to trial; and

(d) costs of and incidental to this proceeding.

[11] In the memorandum dated 29 September 2015, filed by counsel for the Council, the issue of Dr Flett’s claim for damages was raised and a request for a telephone conference was sought. Following a subsequent telephone conference held on 2 October 2015, Peters J, in a Minute dated 2 October 2015, gave timetabling orders that Dr Flett was to file and serve his particulars of the damages he was claiming by 4 pm on 16 October 2015. By application dated 27 October

2015, the Council applied for orders dismissing this proceeding and seeking increased (or indemnity costs) on the grounds that the application for judicial review “fails to disclose any reasonably arguable cause of action appropriate to the nature of the pleading and the application is otherwise an abuse of the process of the Court”.

[12] In a further memorandum dated 14 December 2015, filed by the solicitors for the Council, it was noted that Dr Flett had not filed or provided any particulars of the damages claimed by 16 October, as had been ordered in the Minute issued by Peters J on 2 October 2015. However, on the day prior to the hearing of the Council’s application to strike out Dr Flett’s application for judicial review, Dr Flett filed a memorandum of counsel as to quantum of damages dated 16 February 2016, in which it states:

2. Counsel for the Applicant has been advised by the accountant for the Applicant that on average the Applicant would have earned a gross sum of NZ$350,000 p.a. during the six year period in which he was excluded

from dental practice by virtue of the wrongful act of the Respondent in removing him from the Dental Register.

3. On that basis, the gross loss sustained by the Applicant over the six year period from July 2009 to September 2015 is the sum of $2.625m.

4. That is the amount of the damages that will be sought by the Applicant if this proceeding is taken to trial.

Application for strike out

[13] Ms Miller, for the Council, submits that it is appropriate for the Court to

exercise its power to strike out Dr Flett’s application for judicial review because:

(a) the decision at issue no longer stands;

(b) the relief sought by Dr Flett is futile; and

(c) any purported claim for damages is untenable.

[14] In the notice of opposition to the application to strike out the statement of claim, Dr Flett sets out his grounds of opposition in which he alleges that no request was made in writing to the Council requesting that his registration be cancelled, such being a mandatory requirement of the Act. The notice of opposition also states that:

[the unlawful removal of the applicant from the Register] caused Dr Flett to sustain huge losses over the six year period in which he was not on the Dental Register and therefore not able to practise as a dentist. His accountant has calculated these losses at $6.25m.

[15] The notice of opposition also refers to the composition of the Council at the time Dr Flett’s name was removed from the Register. Reference is made to one of the Council members, it being alleged that that person did not hold the requisite qualifications to be a member of the Council.

Submissions

[16] Ms Miller submits that, as the Council has now reinstated Dr Flett to the Register, the earlier decision to remove his name from the Register has effectively been superseded so that there is no longer a decision against which an order to quash could have application. Ms Miller submits that the Court’s resources should not be

employed to entertain issues that are no longer live; her point being that the outcome and relief sought by Dr Flett, namely the quashing of the decision to remove his name from the Register, is no longer a live issue and so the proceeding is moot.

[17] She says that the best that could be achieved by Dr Flett in terms of the available relief for judicial review would be for the Council’s decision to be quashed, thereby reinstating him to the Register. However, she observes, that is what has already occurred by reason of the Council’s own actions and Dr Flett could realistically achieve no more than what is the current status quo. In these circumstances, Ms Miller submits, the pursuit of judicial review would be wasteful of the Court’s time and resources and would put the Council to significant unnecessary expense to no useful end to either party.

[18] So far as Dr Flett’s claim for damages in the prayer for relief is concerned, Ms Miller submits that there are no pleadings capable of identifying or supporting a cause of action for which damages might be available. Ms Miller further submits that, apart from the contents of the memorandum of counsel, filed with the Court on the day before the hearing of this application to strike out. The applicant has not provided any particulars of his claim for damages and has not provided any evidence whatsoever of any alleged loss.

[19] On the contrary, Ms Miller refers to the uncontested evidence contained in the affidavit of Mr Mark Rodgers, the Registrar of the Dental Council, in which he has deposed that, even if Dr Flett had remained on the Register throughout the period from July 2009 until he was reinstated in September 2015, he would still have been required to demonstrate his fitness to practise in order to obtain an annual practising certificate so that he could practise as a dentist. Mr Rodgers deposed:

10. ... This would have required him to undergo the same sort of medical assessments that he has undertaken to date to show, among other things, that he was drug and alcohol free and therefore safe to practise.

11. Dr Flett has not been able to satisfy the Dental Council of his fitness to practise since 2007. Since that time, Dr Flett has voluntarily undergone medical assessments that have reported concerns about his cognitive deficits, mental health issues, and alcohol and drug addiction. Dr Flett also voluntarily participated in a drug and alcohol screening program in

2011 but was unable to show that he was alcohol free. In addition, in

April 2010 an occupational health assessment through ACC reported that Dr Flett’s shoulder injury sustained in November 2005 would (in the doctor’s opinion) prevent him from returning to dentistry.

12. More recently, Dr Flett underwent further medical assessments, including the assessment of Dr McMinn (attached to Dr Flett’s affidavit). The results of these assessments, which were considered by the Dental Council in October 2014, indicated that Dr Flett was not fit to return to practise...

[20] Accordingly, Ms Miller for the Council submits that on the uncontradicted evidence before the Court, any possible alleged loss arising from an inability to obtain a practising certificate cannot on any assessment have been caused by the Council’s decision to cancel Dr Flett’s registration in 2009. She submits that there could be no possible causative connection between the Council’s decision to cancel Dr Flett’s registration and any loss or losses he has sustained by reason of being unable to practise, as his inability to practise relates, not to the fact that he was not registered, but rather to the fact that he has not at any point been fit to practise such that he ever did or would ever have been able to secure an annual practising certificate during that period.

[21] The Council denies the allegation that one of its members did not hold the requisite professional qualifications for membership of the Council. Ms Miller submits that even if that allegation were true, s 155 of the Act would apply. That section provides:

Proceedings not invalid because of defect in appointment

(1) This section applies to every authority, every professional conduct committee, and the Tribunal.

(2) No act or proceeding of a body to which this section applies, or of a person acting as a member of a body to which this section applies, is invalid merely because—

(a) there was a defect in the appointment of a person acting as a member of the body; or

(b) a person acting as a member of the body was incapable of being, or had ceased to be, a member of the body.

[22] Ms Miller therefore submits that the Council’s decision to cancel the entry in the Register relating to Dr Flett (which no longer stands as Dr Flett’s name has been

restored to the Register) would, in any event, not be invalidated by a member’s involvement in the Council’s decision making if that member did not hold the requisite qualifications for membership of the Council.

[23] Ms Miller submits that, given that that issue is clearly evident from a review of the relevant statutory provision, there is no need for a judicial review hearing and any such hearing would not be warranted.

[24] Ms Miller further submits that the damages sought by Dr Flett are not an available remedy as part of relief in the context of a judicial review proceeding. She notes that the claim is brought under and pursuant to the provisions of the Judicature Amendment Act 1972 and submits that damages are not an available remedy under that Act. Furthermore, Ms Miller submits that the statement of claim makes no pleading capable of supporting or being regarded as a cause of action for which damages might be an available remedy.

[25] In any event, Ms Miller submits, Dr Flett’s claim for damages is untenable and could not succeed in law. Her submission is supported by a review of Dr Flett’s medical history which is set out in full and described in the affidavit of Mr Rodgers. To appreciate the basis of this submission, it is necessary to review Dr Flett’s medical history, which covers the period from before and during the years following the Council’s removal of Dr Flett’s name from the Register down to the present time.

[26] Mr Rodgers attached to his affidavit, sworn on 23 September 2015, a number of extracts from the Minutes of meetings of the Council relating to Dr Flett and his fitness to practise. The issues were dealt with in considerable detail, from which the following chronology was extracted.

[27] Dr Flett was first registered with the Council in 1977. He has a long history of substance abuse, dating back at least to 1995, when he admitted himself to Ashburn Clinic for treatment relating to, at that time, a long history of alcohol use and a more recent history of depressive symptoms. He was diagnosed with alcohol dependence and some depressed features. The records show that he sought early discharge but, soon afterwards, sought readmission.

[28] In May 2006, Dr Flett admitted himself again to Ashburn Clinic and, according to the records, his diagnoses included Benzodiazepine Dependence, Alcohol Dependence, a possible Major Depressive Episode and Narcissistic Personality Disorder. The Psychiatric Registrar at Ashburn Clinic notified the Council of Dr Flett’s admission and reported that he had discharged himself, stating that, in their view, he was unfit to practise.

[29] At that time, Dr Flett did not hold an annual practising certificate; the certificate having expired. He advised the Council that he had retired from dentistry due to health issues related to stress.

[30] In late 2006, Dr Flett applied for an annual practising certificate. The Dentist Board of the Council (the Board) resolved that Dr Flett should first undergo a medical assessment with a psychiatrist, Dr Page. Dr Page subsequently diagnosed Dr Flett as having Alcohol Dependence, Benzodiazepine Dependence, and probable narcissistic traits. In her opinion, he was not fit to resume practise.

[31] In March 2007, the Board found that it was not satisfied that Dr Flett was fit to practise and it resolved that it would not issue an annual practising certificate to him until he first met certain requirements, including comprehensive alcohol and drug assessments and an independent medical examination to ensure that there were no significant cognitive deficits that may impact on his fitness to practise.

[32] In July 2007, Dr Flett advised the Council that he was giving up dentistry and asked that an appointment which had been made for him to undergo an alcohol and drug assessment with a doctor from the Drug and Alcohol Services at Wellington be cancelled.

[33] The following year, in 2008, Dr Flett advised the Council that he had changed his mind and he did wish to proceed with a comprehensive alcohol and drug assessment in order to satisfy the prerequisites for obtaining an annual practising certificate. During his assessment with a counsellor and psychotherapist in February

2008, Dr Flett reported that he had been involved in several treatment episodes since

February 2007, including admission to the Capri Clinic in March 2007 for alcohol

abuse. He also reported excessive alcohol throughout most of the remainder of

2007. The counsellor, Mr Lloyd, concluded that before considering issuing a practising certificate, the Council should require Dr Flett to meet certain requirements, including abstinence from alcohol and other testing and a neuropsychological examination.

[34] In May 2008, Dr Flett underwent a neuropsychological assessment with Dr Cunningham, who subsequently reported to the Council that Dr Flett was not abstinent from alcohol but had reported that he was abstinent of illicit substances and Benzodiazepines. In September 2008, the Board noted that Dr Flett had completed only one of the set requirements (that of neuropsychological testing) and it resolved not to issue an annual practising certificate until the remaining requirements had been met.

[35] On 21 July 2009, Dr Flett’s name was removed from the Register shortly after he had telephoned the Council and spoken to a staff member on 17 July 2009 (this being the telephone call in which he referred to having earlier made a request by email to the Council that his name be removed from the Register).

[36] In 2010, upon returning to New Zealand from Mexico, Dr Flett applied to be restored to the Register. The Council Minute records that Dr Flett had verbally informed the Council that he did not believe he would be physically capable of working as a dentist, but that he had an interest in working as a consultant with the elderly, as a dental hygienist or as a dental technician or in a limited practising scope. The Board considered the application and determined that Dr Flett could not be restored to the Register because he was unable to meet fitness to practise requirements. He was advised that, before reconsideration of his application, he would need to meet the requirements previously set by the Board in 2008.

[37] In 2011, Dr Flett again contacted the Council and advised that he considered he was in a position to work towards registration. He was asked by the Council and agreed to enter into a voluntary undertaking which could included, amongst other requirements, that he maintain total abstinence from alcohol, controlled drugs and mood changing medicines and drugs not prescribed by his health professionals. He

was also required to participate in a random urine screening program and undergo a full neuropsychological assessment with Dr Cunningham, as well as an independent medical examination and a full psychological assessment. Dr Flett agreed to this voluntary undertaking and, in June 2011, underwent a neuropsychological assessment with Dr Cunningham.

[38] Dr Cunningham reported significant concerns about Dr Flett’s cognitive impairment, fine motor disturbance and psychological state. In July 2011, Dr Flett attended a psychological assessment with Dr Page. Dr Page reported that, in her opinion, Dr Flett was not fit to practise as a registered health practitioner on the basis of her concerns about his mental health and his alcohol and drug addictions.

[39] In August 2011, the Board Secretariat subsequently wrote to Dr Flett to advise him that his voluntarily undertaking and screening program had been terminated as he had breached its terms and conditions. He was advised that until such time as he was realistically in a position to demonstrate to the Council that he had fully recovered and was fit to practise, the Council would be unlikely to be in a position to assist him any further. He was advised that prior to any further application to regain his registration, Dr Flett would need to provide reports from Drs Page and Cunningham that he was fit to practise. He was also reminded that, in the event that he was in a position to demonstrate his fitness to practise to Council, he would still be required to demonstrate his competency before he would be granted a practising certificate, due to him having been out of practise for at least five years.

[40] In April 2013, Dr Flett again contacted the Council to discuss his registration status and determine the first steps required for him to apply to regain his registration. It was recommended that he undergo a neuropsychological assessment, an occupational medicine assessment and a psychiatric assessment. In April 2013, Dr Flett underwent a neuropsychological assessment with Dr Bennett, who reported that Dr Flett’s cognitive profile had remained largely unchanged from the earlier assessments made in 2008 and 2011, although in some areas there had been a subtle improvement.

[41] In June 2013, Dr Flett underwent a specialist occupational assessment with Dr Hartshorn, who reported the presence of a persisting tremor within the upper limbs which, in his view, would no doubt significantly adversely impair Dr Flett’s ability to perform accurate dental treatments.

[42] In February 2014, Dr Flett underwent a psychiatric assessment with Dr McMinn, who reported that Dr Flett continued to drink hazardous amounts and continued to express his intention to continue to drink. Dr McMinn reported that, whilst Dr Flett’s depressive disorder was not currently manifest, should it recur, the main consequence of note would be whether his alcohol consumption increased. Dr McMinn concluded that it was not clear to him whether or not Dr Flett was fit to resume practise but he understood that the Council would not be willing to restore Dr Flett’s registration without safeguards in place to ensure that he did not attend work suffering the effects of alcohol consumption and that it would require Dr Flett to first demonstrate his ability to reduce his alcohol intake.

[43] The Council considered the abovementioned history and other relevant information at a meeting in October 2014 and concluded that Dr Flett was not currently fit to return to practise and that he would need to provide evidence that his physical and mental health conditions were improved and under control.

[44] Having regard to his history, and to the fact that a dental practitioner cannot practise on the basis of registration alone without also holding an annual practising certificate, there is, according to the respondent’s submission, overwhelming evidence that any alleged monetary loss from being precluded from seeking and obtaining an annual practising certificate has not been caused by the respondent’s decision to cancel Dr Flett’s registration in 2009.

[45] On that basis, Ms Miller submits that the claim for damages made by Dr Flett is wholly untenable, with no prospect whatsoever of success.

Relevant law

[46] Rule 15.1 of the High Court Rules (the Rules) provides:

The court may strike out all or part of a pleading if it—

(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

(b) is likely to cause prejudice or delay; or

(c) is frivolous or vexatious; or

(d) is otherwise an abuse of the process of the court.

[47] The principles relating to the criteria for strike out are well established. Pleaded facts, whether or not admitted, are assumed to be correct although this does not extend to pleaded allegations, which are entirely speculative and without foundation.

[48] The Court will not strike out a claim summarily unless it can be sure that it cannot succeed.¹

[49] In Southern Ocean Trawlers Ltd v Director General of Agriculture and

Fisheries, Cooke P said:²

It remains to mention two matters which can be dealt with fairly briefly. First, there is the familiar question whether the case is so clear that the proceedings should be struck out in limine; and associated with it the question of affidavit evidence. On these questions I am content to say that the factual and legal position must be established with sufficient clarity to justify the strong step of striking out. And that the circumstances in which affidavits may be considered cannot be defined in any exhaustive way. Hitherto this Court has refrained from attempting any exhaustive definition, and it would seem unwise to do so. If the facts can safely be established without an elaborate and probably inefficient exploration on conflicting affidavits, the Court should hold itself free to go beyond the pleadings.

[50] In the same case, Gault J said:³

Only on a clear case should an applicant be precluded from advancing the case in the normal way employing the available interlocutory procedures. But in what is demonstrated to be a clearly hopeless case the sooner it is brought to an end the better.

¹ Couch v Attorney General [2008] NZSC 45, [2008] 3 NZLR 725 at [33] per Elias CJ and

_{Anderson J.}

² Southern Ocean Trawlers Ltd v Director General of Agriculture and Fisheries [1993] 2 NZLR

_{53 at 71 (CA).}

³ At 56.

[51] An example of a successful application to strike out a statement of claim in the context of judicial review is the decision of Siamani v Chief Executive of Immigration, where the applicant sought to have a decision of Immigration New Zealand quashed in circumstances where Immigration New Zealand was willing to reconsider its decision to decline the applicant’s residence application because of her failure to meet character requirements and was prepared to grant a temporary limited visa to her to enable her to obtain lawful status in New Zealand pending that

reconsideration. Gendall J said:⁴

[37] Even if it be that her argument might have succeeded on some legal basis [Immigration New Zealand] erred in law in not adopting one of these options, or that it erred in law in not granting a character waiver, then the best she could achieve would be for the challenged decisions to be referred back to INZ for reconsideration. That is what has been proposed by [Immigration New Zealand] and she could do no better even if in theory she succeeded.

[52] In Maddever v Umawera School Board of Trustees, Williams J, in the course of a decision in which he concluded that it was appropriate to strike out all causes of action against all three respondents in an application for judicial review, said:⁵

... it is competent for the Court to strike out judicial review proceedings if it is inevitable that any remedy would be refused even if some procedural error were established. This is exemplified by Fraser v. Robertson [1991] 3 NZLR

257 (CA) and McDonald v. Rusbatch (HC Christchurch, CP.317/86, 19

September 1989, Holland J) both of which are discussed in [1992] Recent

Law Review at 355-356.

Futility - Mootness

In my view this is another case where refusal of relief would be inevitable for a number of reasons. First, there would be the futility of granting relief at this stage. This point was strongly relied upon by counsel for the board. It is indeed clear that the Court will not give a remedy if it would be useless to do so. In Fowler & Roderique Ltd v Attorney-General [1987] NZCA 92; [1987] 2 NZLR 56, Casey J said at p 78; “. . . events have overtaken this application, rendering any order that the Court may now make of academic interest only. Remedies under the Judicature Amendment Act are discretionary and whether or not it would ever have been appropriate to make a declaration of invalidity in respect of the 1979 Notice, it cannot be justified now”.

This case can also be approached on the basis of the related doctrine of mootness. The mootness doctrine is really the doctrine of standing set in a time frame: the requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its

⁴ _{Siamani v Chief Executive of Immigration HC Wellington CIV-2010-485-002357, 4 March 2011.}

⁵ Maddever v Umawera School Board of Trustees [1993] 2 NZLR 478 (HC) at 502.

existence (mootness). Thus because an actual controversy must exist at all stages of the proceedings a case is moot when the issues presented are no longer live.

Analysis

[53] Irrespective of whether or not Dr Flett had sent a written request by email to the respondent sometime prior to 17 July 2009, in which he requested that his name be removed from the Register, and irrespective of whether the Council acted lawfully in removing Dr Flett’s name from the Register on 21 July 2009, the Council’s subsequent decision to reinstate his name upon the Register on 8 September 2015 following receipt of service of these proceedings means that there is no longer an extant or operative decision of the respondent that can be the subject of an order to quash made by this Court. To use the words of Gendall J in Siamani, the applicant “could do no better” than achieve the position that he is in now, namely with his name back on the Register.

[54] So far as Dr Flett’s challenge to the composition of the Council is concerned, that claim is misconceived for effectively the same reason. The composition of the respondent Council when it made its decision to remove the applicant from the Register has no continuing effect, given that that decision has been revoked and the Council has made a subsequent decision favourable to the applicant which has resulted in his reinstatement to the Register. In any event, s 155 of the Act would have applied and would have operated to preclude a successful challenge to the validity of the decision by reliance upon any defect in the appointment of a person acting as a member of the Council.

The claim for damages

[55] It is significant that, in this case, Dr Flett has not pleaded any facts or assertions which are capable of supporting a civil law claim for damages. All he has said is that which is contained in a memorandum of his counsel, and there has been no amended pleading in the form of an amended statement of claim with particulars, notwithstanding that the issue of the inadequacy of the pleading was first raised by the Council almost immediately following its receipt of service of the proceedings. Counsel for Dr Flett, in the memorandum filed, has simply stated that the amount

claimed represents a loss of $350,000 per annum “during the six year period in which he was excluded from dental practice by virtue of the wrongful act of the respondent in removing him from the Dental Register”.

[56] In Takaro Properties Ltd (in rec) v Rowling, it was explained:⁶

An invalid administrative act or decision is still incapable, by itself, of supporting a civil law claim for damages. The relevant facts must give rise, independently of the invalidity, to a remedy in damages that is already recognised by the civil law in general.

[57] In Balich v Commissioner of Inland Revenue, Winkelmann J said:⁷

Section 4 of that [the Judicature Amendment Act], which governs the powers of the Court on review, does not provide for awards of damages. While r

628(3) of the High Court Rules, which governs the procedure for applications for judicial review, does make reference to damages as a form

of relief, this provision has been interpreted as being procedural only. It does not confer any substantive right: see for example the comments of

Randerson J in Henry v Devereaux HC AK CP351/02 8 April 2003 at [15]: “it does not confer a right to bring damages for a failure to carry out a public duty where such a right would not otherwise exist ... to recover damages, a

recognised cause of action in private law must be pleaded”. That is

consistent with the basic position that the failure of a statutory body to act in accord with public law principles itself gives no common law entitlement to

compensation: S A De Smith, Lord Woolf, and J Jowell, Judicial Review of

Administrative Action (5th ed), London, Sweet & Maxwell, 1995, at pp 758,

762.

[58] The purpose and focus of judicial review is on the lawfulness of the challenged decision. Such proceedings should be undertaken expeditiously and should generally not be expanded to include a claim for damages other than in those circumstances where Baigent damages are sought for breaches of the New Zealand

Bill of Rights Act 1990:⁸

Damages for public law wrongs are not available at common law or in an application for review under the Judicature Amendment Act 1972. Exceptions must be made for common law damages in tort for misfeasance of public office and Baigent damages to vindicate a claimant’s right under the New Zealand Bill of Rights Act 1990. The courts will strike out any additional substantive claim in procedures under the Judicature Amendment Act 1972.

⁶ _{Takaro Properties Ltd (in rec.) v Rowling [1978] 2 NZLR 314 (CA) at 326.}

⁷ _{Balich v Commissioner of Inland Revenue HC Auckland CIV-2006-404-4113 at [20].}

⁸ See Philip A Joseph Constitutional and Administrative Law in New Zealand (4th ed, Thomson

Reuters, Wellington, 2014) at 1208 (footnotes omitted).

[59] In Attorney General v Dotcom, the Court of Appeal observed:⁹

We consider the objective of dealing with judicial review proceedings in the way that is most convenient and expeditious will provide reason for a High Court Judge to be cautious about allowing the expansion of a judicial review claim by the addition of a claim for damages. We endorse what this Court said in Orlov v New Zealand Law Society in that regard, and stress that it is the expedition of the application for judicial review that must be the focus.

[60] In the present case I am satisfied that, first, this judicial review proceeding should not be allowed to be expanded to include the applicant’s claim for damages. There is here no pleading of alleged facts that would support a civil claim for damages. The applicant has not pleaded anything of the sort and the information provided by his counsel in the memorandum, which refers to an estimate annual loss during the period that he was “excluded from dental practice by virtue of the wrongful act of the respondent in removing him from the Dental Register” falls well short of a pleading which shows any causative connection between the decision to remove him from the Register and the alleged loss. It also entirely overlooks the essential requirement that the applicant needed to have a current annual practising certificate at all times to enable him to practise as a dentist. At no time during the period between July 2009 and September 2015 did Dr Flett hold a practising certificate and, further, having regard to his health and medical condition throughout that period, it is clear that at no time could he have held a practising certificate.

[61] This is, of course, not a case which falls into either category referred to by Professor Joseph as involving damages from misfeasance of public office or Baigent damages for vindication of rights under the New Zealand Bill of Rights Act. I also have regard to and am conscious of the overriding objective of judicial review proceedings to focus on the challenged decision and be an expedient and efficient process.

[62] Secondly, the review of the background circumstances pertaining to Dr Flett’s ability to satisfy fitness to practise requirements in order to obtain an annual practising certificate as set out in the affidavit of Mr Rodgers are also relevant to my

_{determination of this issue. I note that there was no challenge whatsoever to Mr}

⁹ Attorney General v Dotcom [2013] NZCA 43 at [47].

Roger’s affidavit by Dr Flett, notwithstanding that he filed two affidavits in the

proceeding, including one in support of his notice of opposition.

[63] The essence of Mr Banbrook’s submission is that his client had never had any complaints about his practise of dentistry and that that good record of professional performance could inform the assessment of his fitness to practise. Whilst there can be no doubt that Mr Banbrook is right to say that he has not been subject to adverse professional complaints, such a state of affairs does not, in my view, negate the significance of the medical history, and alcohol and drug abuse history, set out in detail in Mr Rodger’s affidavit, and upon which the Council relied in its decisions to withhold the issuing of an annual practicing certificate on fitness to practise grounds.

[64] In these circumstances, I consider it appropriate that the Court does have regard to the content of material beyond the pleadings and, in this instance, have regard to the contents of Mr Rodgers’s affidavit. From that material, it is abundantly clear that at no time during the relevant period could the applicant have obtained an annual practising certificate even if his name had been on the Register throughout that period. In light of that evidence, I conclude that his damages claim is hopeless and has no prospect of success. In such circumstances, it is appropriate that the proceeding be brought to an end without further delay.

Conclusion

[65] For the above reasons, I find that this is a case where it is proper and appropriate for the Court to exercise the power contained in r 15.1 of the Rules to strike out all of the applicant’s statement of claim against the respondent.

Costs

[66] The respondent seeks costs on an increased or indemnity basis and relies upon:

(a) The claim that the applicant has acted unnecessarily in continuing to pursue the application for judicial review, notwithstanding that the

challenged decision had been superseded by a subsequent decision to reinstate his name to the Register.

(b) The failure of the applicant to comply with the timetabling orders set out in the Minute of Peters J.

(c) The applicant’s action of continuing to seek damages as part of his claim in circumstances where the respondent said pursuing such a claim was unreasonable and improper.

[67] I am satisfied that this is a case where costs in excess of scale costs should be awarded to the successful party, being the respondent. I direct that the parties each file a memorandum as to costs, in the respondent’s case setting out the basis upon which it seeks costs and a detailed scheduling showing the composition of its claim for costs.

[68] I direct that the respondent files and serves its memorandum regarding costs by 28 days and the applicant file and serve his reply memorandum by 14 days

_thereafter.

Davison J