Liston v Director of Proceedings, Health and Disability Commissioner [2018] NZHC 1515 (22 June 2018)

Last Updated: 12 July 2018

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CIV-2018-483-4 [2018] NZHC 1515

BETWEEN	PETER NAPIER LISTON Appellant
AND	THE DIRECTOR OF PROCEEDINGS, HEALTH AND DISABILITY COMMISSIONER Respondent

On the papers:
Counsel:	A H Waalkens QC for Appellant L C Preston for Respondent
Judgment:	22 June 2018

JUDGMENT OF CHURCHMAN J

[1] The appellant, a registered oral and maxillofacial surgeon appeals a decision of the New Zealand Health Practitioners Disciplinary Tribunal dated 24 January 2018.

[2] The Tribunal found that a number of misconduct charges had been made out, censored Dr Liston, ordered him to pay a fine of $5,000 and contribute towards costs in the sum of $21,000.

[3] In support of his appeal, the appellant has applied for leave to adduce further evidence. The evidence sought to be adduced relates to one article published in the Whanganui Chronicle during the appellant’s disciplinary hearing which was referred to by the Tribunal and eight additional articles variously published in the Whanganui Chronical, the NZ Herald and the Dominion Post subject to the hearing.

LISTON v THE DIRECTOR OF PROCEEDINGS [2018] NZHC 1515 [22 June 2018]

[4] The grounds upon which the application is made include a statement that:

The evidence is material to the matters to be determined in this appeal, in particular the penal impact of adverse publicity and the weight that should be given in imposing a proportionate penalty in disciplinary proceedings.

[5] The appellant relies on r 20.16 and the decision in Comalco NZ Ltd v TVNZ Ltd.

[6] The respondent does not consent to the application but abides the decision of the Court.

[7] In the memorandum filed, the respondent notes:

(a) The Court will be required to consider the application to determine whether the evidence is fresh, relevant and cogent to the issues on appeal.

(b) Save for the first article, all subsequent articles, while fresh, cannot assist the Court to ascertain what was in the Tribunal’s mind in determining issues of appropriate penalty.

(c) The Tribunal’s discretion to make non-publication orders under s 95(2) of the Health Practitioners Competence Assurance Act 2003 (the Act) arises separately from questions of penalty under s 101 of the Act.

(d) The exercise of that discretion is not an imposition or mitigation of a penalty.¹ Publication following a finding of misconduct inevitably has a penal effect upon a practitioner, however the effects of publicity about proven misconduct are the effects of the misconduct itself, not of the penalty imposed by the Tribunal or Court.²

[8] Rule 20.16 of the High Court Rules provides as follows:

¹ TSM v Professional Conduct Committee [2015] NZHC 3063 at [19].

² At [57].

20.16 Further evidence

(1) Without leave, a party to an appeal may adduce further evidence on a question of fact if the evidence is necessary to determine an interlocutory application that relates to the appeal.

(2) In all other cases, a party to an appeal may adduce further evidence only with the leave of the court.

(3) The court may grant leave only if there are special reasons for hearing the evidence. An example of a special reason is that the evidence relates to matters that have arisen after the date of the decision appealed against and that are or may be relevant to the determination of the appeal.

(4) Further evidence under this rule must be given by affidavit, unless the court otherwise directs.

[9] Applying the decision in TSM v Professional Conduct Committee, the evidence sought to be adduced would not be of any relevance to the Court in making determinations as to the penalty that Mr Liston is appealing.³

[10] The courts have consistently distinguished between the imposition of a penalty and the publicity that follows a charge of professional misconduct having been established.

[11] This issue was addressed, in the context of an application for name suppression, by Palmer J in TSM. In that case, the Court said:⁴

Section 95(2) of the Act confers a discretion of the Tribunal “if ... satisfied that it is desirable to do so” to prohibit the publication of the name of any person. The exercise of such a discretion is not an imposition or mitigation of a penalty. Rather the principle of open justice, that section reflects, as an aspect of the nature of the judicial process that deals with alleged offending.

[12] Further on in the same judgment, the Court said:⁵

The starting point, illustrated by s 95(1) of the Act, is the principle of open justice. There must be some compelling reason why, in a particular case, that principle needs to be suspended. That is no different for professionals than for anyone else. The effects of publicity about proven offending are the effects of the offending itself, not of the penalty imposed by the Court.

³ TSM v Professional Conduct Committee [2015] NZHC 3063.

⁴ At [19].

⁵ At [57].

[13] It is clear that the first of the articles in question published in Whanganui Chronicle existed at the time of the Tribunal hearing and was in fact referred to by the Tribunal. The other eight articles meet the criteria of being fresh in the sense of that they did not exist at the time of the Tribunal decision. However, as they all fall within the category of publicity about proven offending, they are the effects of the offending itself and not of the penalty.

[14] I therefore conclude that there is no special reason that would justify the granting of leave to admit the further proposed evidence, and I decline the application.






Churchman J

Solicitors:

DLA Piper, Wellington

Office of the Director of Proceedings