Tangata v Speaker of the Legislative Assembly [1977] CKHC 1; JR 05.1977 (23 December 1977)

IN THE HIGH COURT OF THE COOK ISLANDS
RAROTONGA
J.R. No. 5/77

BETWEEN

PAUL ROMANI TANGATA
of Rarotonga, Cook Islands,
Member of the Legislative Assembly of the Cook Islands
suing by his next friend PUPUKE ROSATI
Plaintiff

AND

THE SPEAKER OF THE LEGISLATIVE ASSEMBLY
OF THE COOK ISLANDS
of Rarotonga, Cook Islands
First Defendant

AND

THE DEPUTY SPEAKER
OF THE LEGISLATIVE ASSEMBLY OF THE COOK ISLANDS
of Rarotonga, Cook Islands
Second Defendant

AND

THE CHIEF ELECTORAL OFFICER
OF THE COOK ISLANDS
of Rarotonga, Cook Islands
Third Defendant

Counsel: J Heigh and Colgen for plaintiff
Williams for Defendants

Dates of Hearing:
Rarotonga - Sept. 9; Nov. 19, 21, 22, 23, 24, 25
Auckland - Sept. 15, 16
Fiji - Oct. 17, 18, 19, 20

Date of Judgment: 23 December 1977

JUDGMENT OF DONNE CJ

This is an action arising out of the declaration by the Second Defendant declaring vacant the seat held by the Plaintiff in the Legislative Assembly of the Cook Islands for the constituency of the Island Atiu on the grounds that the Plaintiff was of "unsound mind" as provided in section 7(1)(1) of the Electoral Act 1966.

The Plaintiff seeks (inter alia) the following orders:-

1. That a Writ of Certiorari do issue to the First and Second Defendants to remove Jurisdiction from the First and Second Defendants to the High Court of Rarotonga for the purpose of quashing the said declaration of vacant seat dated the 24th day of June 1977 and render as a nullity the Public Notification as to a by-election in the Constituency of Atiu dated the 24th day of June 1977.

2. That a writ of Permanent Injunction do issue against all or any of the Defendants herein to restrain them, their servants, or agents or any of them from proceeding with a proposed by-election for the Constituency of Atiu, such by-election being called in reliance upon the said Declaration of vacant seat dated the 24th day of June 1977.

The substance of the plaintiff’s claim appears in paragraphs 11 and 12 of the statement of claim, These are:-

11. THAT the committal of the Plaintiff to Dakley Hospital was invalid and the Plaintiff was not of unsound mind at the time of such committal.

12. THE said declaration was ultra vires and null and void upon the following grounds or any of them:-

A.(i) The said declaration could not lawfully have been made unless the Plaintiff had become of unsound mind and was so certified in accordance with section 7 subsection (1)(i) of the Electoral Act 1966.

(ii) The medical certificate in reliance upon and in pursuance of which the said declaration was made was null and void and accordingly the said declaration was not lawfully made.

(iii) That Dr Williams in purporting to certify was or might reasonably have been suspected of being actuated by political bias. The said Dr Williams purported to certify the Plaintiff as being of unsound mind without examining the Plaintiff and in the particular circumstances he could not properly certify that the Plaintiff had become of unsound mind.

(iv) The said certificate was made in breach of the rules of natural justice and in particular as alleged in paragraph 12.A.(iii) hereof.

B. The said declaration was made in breach of the rule of natural justice in that the Second Defendant knew:-

(i) That one of the purported certificates was made by Dr Williams, a known political opponent of the Plaintiff.

(ii) That the said Dr Williams could not have examined the Plaintiff in such a manner as would have enabled him to properly determine he had become of unsound mind before making the purported certificate.

(iii) That Robati who had escorted the Plaintiff from Fiji to New Zealand with Dr Matenga had declined to certify the Plaintiff as being of unsound mind.

And that the Second Defendant should not have in such circumstances made the said declaration without further inquiry and without giving the Plaintiff an opportunity to be heard on the matter.

I find, on the evidence, the following facts to be established:-

In early May 1977 the Plaintiff who was a member of the Legislative Assembly of the Cook Islands travelled to Fiji as a delegate from the Cook Islands Library and Museum Society to a Workshop on Museum Conservation being held at Suva. He arrived there about the 2nd of May and was accommodated at the Outrigger Hotel, where he was to reside until the 21st May.

The Conference was to end on 20th May. For the first week the Plaintiff attended the Conference and caused no concern but from then on the pattern changed. He became what was described as "expansive and elated". At the Hotel he caused some consternation with the management and staff by rearranging his room on a number of occasions, moving the furniture on to the balcony, covering the floor of the room with flowers, scribbling over a picture and the bedding in his room, wandering into the hotel kitchen and helping himself to the food. In addition he took upon himself to entertain large numbers of people, treating them to meals and drinks, and on one occasion he ordered a quantity of food for guests to a party he said he was holding.

The guests never arrived. It is significant that there was no evidence of excessive consumption by the Plaintiff of alcohol at any time. His attitude towards the Manageress, his general demeanour and the fact that he incurred an account of approximately $F900.00 produced the inevitable result that he was considered an undesirable guest.

On one occasion he was found in a house to which he had not been invited by the owner when she returned. He was in the kitchen eating food and had taken a shower, handled certain female underwear and disturbed the bedding in the bedroom. When asked by the owner why he was there he first said that he had made a mistake and later that he had been lead there by "the Spirit of God". He was described as very confused. On the 19^th May 1977, the manageress of the hotel considered she should take some action in relation to the Plaintiff as she considered that he was not acting in a normal way. She arranged for Mr Hunt of the Fiji Museum to call which he did, bringing with him Mr Bryan of the New Zealand High Commission at Suva. These gentlemen, after inspecting the Plaintiff's room and considering the matter, decided that they would arrange for him to consult a doctor. The Plaintiff arrived while they were there and was induced to be seen by Dr Hemming a private general practitioner. This doctor examined him that day and formed the opinion from what he had seen and heard that the Plaintiff was a person of unsound mind. His diagnosis was that the Plaintiff’s condition was that of Mania of moderate severity.

It was then arranged that Mr Hunt take the Plaintiff to the Town House, Suva where from then on he should live until his departure. However, he did not stay there and returned to the Outrigger Motel, the next day, locking himself in his room and ordering food. His actions again caused concern and the Manageress called the Police. The Police succeeded in communicating with Mr Bryan who told them about the certification by Dr Hemming. As a result of the observations of a Police Officer, Sergeant and a Constable and their knowledge that the Plaintiff had been declared as of unsound mind by Dr Hemming, he was taken by them to the Colonial War Memorial Hospital where he was seen by a doctor there, Dr Matainaicaka. This information and particulars of the facts as they knew them were given to Dr Matainaicaka who after observing the Plaintiff and his behaviour at the hospital certified him as being of unsound mind. The Plaintiff could not be admitted to the St. Giles Psychiatric Hospital until an application for reception was received. This was provided by Mr Bryan and on 21 May 1977 he was admitted. On admission he was seen by Dr Karim of the hospital medical staff who, after examination, diagnosed the plaintiff’s condition as hypermania. However, as a result of subsequent observations of the plaintiff s behaviour the diagnosis was changed to that of Mania.

The New Zealand High Commission at Suva represents Cook Islands interest there and consequently a report was sent to Rarotonga by telex dated 19 May 1977 as follows:

"Mr Tangata is visiting Suva as representative of Cook Islands Museum Society at 'Workshop in Museum Conservation' being run by Pacific Regional Conservation Centre.

2. He appears to be mentally ill. One doctor is prepared to certify him but requires second opinion before able to commit to hospital.

3. Tangata staying at Outrigger Motel has account in excess of Fiji dollars 900 and has caused damage to hotel property. He had no money, in addition, he has only one set of clothes.

4. He was found last evening in private home without invitation eating lamb and drinking beer. Had obviously showered and slept and changed into female under-clothing. Police were not called and he left without further incident.

5. P.R.C.C. have contacted Kingen, Chairman, C.I.M.S. who has agreed to take responsibility for debts incurred. Grateful you obtain written confirmation from Kingen to this effect.

6. Will keep you informed."

On receipt of this information on the 20th May 1977 the premier of the Cook Islands summoned his Minister of Finance, Mr G.A. Henry, who was Chairman of Cabinet, as he did not think that it was in the best interests of the Plaintiff and the Cook Islands for him to be in Fiji any longer then possible. The Minister arranged for Dr Robati and Dr Matenga to go to Fiji after consultation with Dr T. Davis who, in addition to being Leader of the Opposition Party in the Legislative Assembly, had also acted as the Plaintiff’s family doctor. Dr Robati who had ceased medical practice in 1972, was a member of the Opposition Party in the Legislative Assembly, to which the Plaintiff belongs, and is a very close friend of his.

Dr Matenga is employed at the Rarotonga Hospital and deals with all psychiatric cases referred there. He also had been consulted medically by the plaintiff in the past and had treated him for psychiatric disorder. All the doctors concerned concurred in the arrangement which was made, namely, that the plaintiff should be taken from Fiji and depending what was in his best interests, he should either be brought back to the Cook Islands or be taken for psychiatric diagnosis and if necessary, treatment by Dr P.C. Savage, Medical Superintendent of Oakley Hospital, Auckland. Dr Savage had been suggested earlier by Dr Davis for the task. He had previously been written to by Dr Davis who sought assistance for the plaintiff. As to what course should be adopted was left for the decision of Dr Matenga to make in Fiji after assessment of the situation there and observations of the plaintiff. Dr Williams, whose actions are under scrutiny in this case, was at that time, and still is, Minister of Health. He is an experienced medical practitioner with New Zealand qualifications of Bachelor of Medicine and Bachelor of Surgery as well as holding the degree of Master of Public Health from the University of Hawaii. Although not a Psychiatrist he has had wide experience in dealing with psychiatric cases in the course of practice. In his capacity as Minister of Health he was also brought into the discussion as to what actions should be taken in relation to the plaintiff since the Government were meeting the expense of the exercise. In the result he, with the Secretary for Health, made the administrative arrangements for the doctors concerned to attend to the plaintiff. He discussed these arrangements also with Dr Davis.

The doctors proceeded to Fiji the afternoon of 20 May arriving at Suva that night, which in view of the dateline was 21 May 1977. They were unable to see the plaintiff on arrival, but, next morning were taken to the hospital by Mr Bryan. They had a short conference with the Medical Superintendent, Dr Narayan who gave them the history of the plaintiff's problem as he knew it. They then saw the plaintiff and, as a result of what they saw, they both were of the opinion that he should be taken to New Zealand to see Dr Savage. The Auckland Office of the Cook Islands Government was accordingly notified and requested to make arrangements for an appointment with the Auckland doctor. On the understanding that the plaintiff was being taken to Auckland for examination he was discharged from St. Giles Hospital on the morning of the 22 May. He and the two Cook Island doctors left Suva about midday . There is no evidence to support the allegations in the pleadings that the plaintiff "tried to resist (his) removal to New Zealand." The plaintiff’s conduct at Nausori Airport caused some concern to his charges but he was given the sedation prescribed by Dr Narayan and settled on the flight to Nadi where it was arranged the party go to a hotel pending the flight later that day to New Zealand. The plaintiff’s conduct at Nadi was such, however, that it was considered better to keep him at the Nadi terminal where after a few incidents consistent with his condition he was further sedated with the resultant somnolent affect. The air trip to New Zealand was uneventful as the plaintiff slept on his way. While waiting at Nadi, Doctor Robati received a call from the Cook Islands office advising that it had not been possible to obtain an appointment with the Psychiatrist nor obtain accommodation and transport. It was suggested that the party remain in Nadi until the next day. In view of the plaintiff’s condition however, the doctors decided to proceed to Auckland and arrange for the plaintiff and Dr Robati to stay the night with the former's parents, Dr Matenga going to his relatives.

At Auckland next morning at approximately 9.00am the plaintiff was taken by the doctors to Oakley Hospital where Dr Savage was seen. In view of the fact that the plaintiff had been heavily sedated the evening before and had also been given sedation that morning, it was decided that before an examination took place he should be left to sleep off the effects of the sedation. He and the two doctors were given a room where they remained until late afternoon when Dr Savage considered that the plaintiff was fit to be seen. When Dr Savage examined the plaintiff he formed the view that medical treatment was necessary and with the concurrence of the Cook Islands doctors, two New Zealand medical practitioners were called to examine him with a view to a committal under the Mental Health Act 1969 (NZ) since it was agreed by the doctors from the Cook Islands that the plaintiff would not accept treatment voluntarily. The two New Zealand doctors, Dalley and Grant, general practitioners, but with wide experience in certification for the purposes for the said Act, were called for the purpose. They examined separately late the same afternoon the plaintiff. At that stage the effects of the sedation had almost disappeared. He was certified by each doctor as "mentally ill" and it was considered that he should be placed in the hospital for treatment. Dr Matenga and Dr Robati were advised of this. Dr Matenga and Dr Robati were advised of this. Dr Matenga, prior to the summoning of the New Zealand doctors, had made application under the New Zealand Act for a reception order and in consequences of the certification of the two New Zealand doctors the plaintiff was admitted to Oakley Hospital pending a judicial inquiry by a Magistrate so provided by the said Act. The plaintiff was brought before His Worship Mr J.B. Bergin Stipendiary Magistrate on 26 May 1977. The learned Magistrate spent sometime with the plaintiff and was satisfied that a reception order should be made and he accordingly ordered that the plaintiff continue to be detained in Oakley Hospital in accordance with the provisions of the said Act.

The diagnosis of the two New Zealand medical practitioners and that of Dr Savage made subsequently, confirmed the plaintiff’s mental condition as hypermania. In accordance with the reception order the plaintiff was detained in the hospital until the 19 July 1977 when he was allowed out on what is known as "trial leave". This is a long leave granted to the patient who is well enough to manage in the community but it is not a "discharge" from hospital as provided in the said Act to be granted when it is considered that a patient is fit to be discharged. It is probable that the plaintiff has not yet been discharged. He was not at the time of the hearing of the evidence in Auckland in September. He is at present receiving treatment from Dr Culpan who has prescribed for him a daily dosage of six lithium carbonate and or four priadol capsules.

On his return to Rarotonga Dr Matenga, who had left New Zealand unaware of the Reception Order made by the Magistrate, advised the Secretary for Health on 30 May 1977 that the plaintiff had been certified by the New Zealand doctors and admitted to Oakley Hospital. Dr Robati returned later approximately the second week of June. He saw at the airport the Minister, Dr Williams, and told him that the plaintiff had been committed by Court Order to Oakley Hospital. Prior to that the Secretary for Health on his own initiative and after considering Dr Matenga’s report to him, wrote to the Clerk of the Legislative Assembly, advising him of the admission of the plaintiff to Oakley Hospital and stating that, in his opinion, the latter was no longer suitable to continue as a member of the Assembly. His letter was met by a reply from the Clerk stating "the case of responsibility of certification (lies) squarely on the medical officers and the department they belong to, viz., the Health Department". On 9 June the Secretary for Health, after discussion with Dr Williams who had been told verbally by the Clerk of the Assembly that it was not the Assembly’s business to obtain reports, sent a cable to Dr Savage requesting information about the plaintiff’s condition. Dr Savage replied by letter to the cable on 17 June 1977 informing (inter alia) that the plaintiff was a committed patient likely to be subject to treatment for sometime. The cable and letter are dealt with later in this judgment.

Meanwhile in the Legislative Assembly on 7th June a motion concerning the plaintiff was put, to the effect that leave be granted to him until he "is better and returns to this House". This was opposed and subsequently amended to grant the plaintiff leave for each sitting day of the current week. The amendment was passed unanimously in the debate and .... expressed certain views to which reference will be made later.

When the Secretary for Health received the report of Dr Savage concerning the plaintiff, he consulted Dr Williams and it was considered necessary to confer with the Advocate-General from whom Dr Williams as Minister of Health had previously obtained advice as to the obligations of his Department under section 7(1)(i) of the Electoral Act 1966. As a result of the advice received, the Minister and the Secretary for Health had prepared a certificate in the following form:

"The Secretary of Health,

RAROTONGA

We, the undersigned, being the two Cook Islands Medical practitioners, DO HEREBY CERTIFY that MR PAUL ROMANI TANGATA is in our opinion of unsound mind.

(signed by) T Matenga

(signed by) J Williams

DATED this 23^rd day of JUNE 1977."

It was decided that Drs Matenga and Robati should sign the certificate as they were the doctors who were concerned with the Fiji and New Zealand episodes. The Secretary for Health saw Dr Matenga who was prepared to and in fact did sign. Prior to that the Minister, Dr Williams through his private secretary, requested Dr Robati to call at his office for the purpose of discussing the certificate. The doctor was told the purpose of meeting, but, so he was making preparations for a visit to his constituency of Rakahanga that afternoon, 23 June 1977, he felt unable to attend. After Dr Matenga had signed the certificate the Chief Administration Officer of the Health Department took it to Dr Robati requesting his signature. The doctor however refused to sign. The basis of his refusal was not that he considered the plaintiff was not of unsound mind but that he felt that his part in the Fiji and New Zealand trip was that of escort only and not of doctor, that he had never examined the plaintiff, that he had little experience in psychiatry, was not now practicing medicine, and had not got before him "past, family and present history" enabling him to make a diagnosis. He could not see why he should be asked to sign because he felt that there were eight or ten other doctors who could have been asked in Rarotonga. There were in fact only four doctors in Rarotonga who had been concerned medically with the plaintiff and had adequate knowledge of his mental illness. They were Doctors Matenga, Robati, Davis and Williams.

Dr Williams had already informed the Secretary for Health that he considered that there was a possibility that Dr Robati would not sign and that in such an event he himself would be prepared to give the certificate as he felt he was qualified as a medical practitioner so to do. On learning of Dr Robati’s refusal, he signed the certificate. This action upon which the plaintiff heavily relies in support of his applications, will be considered in more detail later.

The certificate was subsequently presented to the Clerk of the Legislative Assembly who in turn presented it to the Deputy Speaker, the second defendant. The Speaker at that time was absent at a conference outside the Cook Islands. Upon receipt of the certificate the second defendant, on 24 June 1977, declared the seat of the plaintiff in the constituency of Atiu vacant on the ground that he had become of unsound mind and was so certified within the provisions of Section 7(1)(i) of the Electoral Act 1956. This declaration together with a Public Notice by the third defendant of a By-election in Atiu to be held on 7 September 1977 was gazetted in the Cook Islands Gazette on 24 June 1977.

The Plaintiff was not notified officially either of the intention to certify him as aforesaid or of the subsequent vacation of his seat. He first became aware of the declaration of the second defendant when he was approached by a reporter of a New Zealand Newspaper after his release on trial leave in July. He had however considered the possibility of such an action prior to that but had taken no steps to inquire about any proposed move or to act thereon.

On 29 August 1977 he instituted the present proceedings in this court having a few weeks earlier instituted similar proceedings in the Supreme Court of New Zealand at Auckland which declined jurisdiction. On the 5 September 1977 the hearing was commenced and interim injunction preventing the by-election at Atiu from being held on 7th September was granted.

Prior to the incidents which resulted in the committal of him to Oakley Hospital there had been a history of previous psychiatric disorders of the plaintiff. He had in 1975 become obsessed with religion, claimed his actions were divinely motivated and did in fact hold without being asked so to do, a prayer meeting in the Premier's office. This action first brought him to the attention of Dr Williams who held a discussion with him shortly after at the Legislative Assembly. The Doctor considered that he was not acting normally. Later that year the plaintiff went on a tare party to Tahiti and his conduct and actions there resulted in his being referred to a Dr Heyraud of the Service of Neuropsychiatric at the Hospital of Vaieni, Papeete on 12 November 1978.

This doctor sent a report to Dr Davis under whose care the plaintiff was at that stage. Dr Davis discussed the plaintiff’s condition with Dr Williams and as a result it was agreed that he be sent to Ward 10 at Auckland. This was arranged through the Department of Health.

Dr Matenga took over this plaintiff and proceeded to Auckland with him. He was admitted to Ward 10 and was there for a period of one week as an "in patient" and one week as an "out patient". The year 1976 appeared to have been without incident but in 1977 during the debate in the Assembly of the Medical and Dentist Practices Bill, the plaintiff made a speech which left most Assembly members in no doubt that the plaintiff was not acting in a normal way. Dr Williams was present during the speech.

The relevant provisions of the Electoral Act 1966 dealing with the tenure of office of members of the Legislative Assembly and the vacation of their seats are contained in section 7(1) and (5) thereof. We are concerned with section 7(1)(i) and (5) which read:

"7 Tenure of office - (1) The seat of a member shall become vacant, if-

(i) He becomes of unsound mind and is so certified by two Medical Officers or by one medical Officer and a graduate of the Central Medical School at Suva, Fiji.

(5) When it appears to the Speaker that the seat of any member has become vacant pursuant to subsection (1) of this section, the Speaker shall declare in writing that the seat has become vacant and the cause thereof, and shall forthwith cause that declaration to be published in the Gazette."

How the Legislature intended this section to operate is an issue in this case and I propose to examine the history of the legislation to assist in the interpretation thereof The Electoral Act 1966, and, in particular section 7 thereof, is substantially the product of New Zealand legislators. The Legislative Assembly of the Cook Islands was created by the New Zealand Parliament which, by the Cook Islands Amendment Act 1957 (sections 3 to 14) abolished the Cook Islands Legislative Council replacing it with Legislative Assembly. The legislative machinery necessary for the functioning of this newly created body was promulgated in the form of The Cook Islands Assembly Regulations 1958. These were subsequently superseded by The Cook Islands Legislative Assembly Regulations 1966. The significance of these regulations, in so far as this section is concerned, is that, whereas the New Zealand Electoral Act 1956 (section 33) provided a special examination and report procedure under which a New Zealand Member of Parliament in a similar predicament to that of the plaintiff could not be divested of his parliamentary seat until at least the expiration of six months from committal into a mental institution, the Regulations relating to Cook Islands legislators provided for mandatory vacancy of a member's seat immediately upon his being certified as of unsound mind in accordance with the Regulations (see Clause 7(1)(i)). On the advent of self government, on the 4^th August 1965, the new Constitution of the Cook Islands, in establishing, by Article 27, the Legislative Assembly of the Cook Islands, provided that the Legislative Assembly in being at the date of the commencement of the Constitution, was the Legislative Assembly of the new nation (Art. 80). It became necessary, then, for the Assembly to enact its own electoral machinery, the 1965 New Zealand Regulations being no longer operative on the repeal by the Cook Islands Amendment Act 1964 of the provisions relating to the Assembly in the 1957 enactment (supra). Consequently, in 1966 the Assembly enacted its own Electoral Act which, with minor amendments relating to tenure of office and to the new status of the Assembly, is identical with the provisions of the 1965 New Zealand Regulations. Turning now to section 7 of the Electoral Act, there is a clear indication, on the analysis of the section, that in enacting it, the Cook Islands Assembly was aware of and, in fact, considered the New Zealand Electoral Act 1956. It adopted sections 32(g) and (h) of the latter Act which are identical with Regulations (7)(1)(d) and (j) of the 1965 Regulations. But, of greater significance, is the fact that in enacting section (7)(1)(k), it has adopted the same provision as section 32(c) of the New Zealand Act. This provision is not in the 1965 Regulations. This, to my mind, justifies a conclusion that the Cook Islands Legislature weighed the respective provisions relating to the vacation of a parliamentary seat in both the New Zealand Act and the 1965 Regulations and, in the case of unsoundness of mind, considered it more appropriate to adopt the provision laid down in the Regulations as providing a more expeditious procedure of divesting a member of his seat upon such disablement. The wording of section 7 is mandatory. Once the event provided therein upon which a seat becomes vacant happens, the seat of the member concerned must be vacated. The section does not permit of delay in its implementation. It allows for no discretion in those charged with the responsibility of enforcing the law.

Turning now to the procedure to be adopted in the certification and declaration in the case of unsoundness of mind of members of the Legislative Assembly, it has been submitted by the plaintiff that the doctors and the second defendant acting under the said section were required to act in a judicial or quasi-judicial capacity and that, although the section does not make express provision for the examination of the member concerned, in this case himself, or for any form of hearing at which he could answer the allegations against him, there should have been an examination by the doctors and a hearing by the second defendant. However, after careful consideration of the section and its history, I have come to the first conclusion that it was the intention of the legislature that there need be no examination and/or hearing or any form of adjudication conducted either by the certifying doctors or the Speaker in the carrying out of their respective functions under section 7(1)(i). When the Act was considered by the Legislative Assembly, it was aware of the provisions of section 33 of the New Zealand Electoral Act (supra). The Act of the Cook Islands at that time required (as it still does) in the case of medical certificates for the committal in the Cook Islands of a person of unsound mind for him to be examined - vide sec. 575 Cook Islands Act 1915; it required examination of him by the Court before an order for medical custody could be made - sec. 576 ibid; and also examination by a New Zealand Magistrate if he was sent to that country pursuant to section 565 of that Act.

The qualification of the doctors designated to carry out the examination under section 575 are the same as provided for in section 7(1)(i) of the Electoral Act 1965. The Assembly, therefore, was fully aware of the examination and hearing procedures provided for in both the New Zealand and Cook Islands Acts referred to and if it had desired the same procedures or any form of adjudication in cases under section 7(1)(i), I consider it would have said so and made express provision for them as it had done in other sections of the Act relating to the registration and disqualification of electors - vide secs. 14, 15 and 17.

Counsel for the plaintiff contends that the words "when it appears to the Speaker" in section 7(5) of the Act suggests that the Speaker is put on inquiry when the certificate of unsoundness of mind is delivered to him. I do not agree. The word "when", I consider, imports a point of time and means that the time when the certificate is presented to him the Speaker must act in accordance with the subsection and formally declare the seat vacant. Had the word "if'" been used instead of "when", the position may have been different. Since the functions of the Speaker (in this case the second defendant) and the doctors under section 7 of the Act call for no hearing and/or examination they are, in my view, administrative as opposed to judicial or quasi-judicial and I so hold.

These functions are clearly defined. The seat of a member becomes vacant as a matter of law when the doctors certify him to be of unsound mind (sec. 7(1)(i)). The machinery for bringing into effect that event is provided in section 7(5) which requires the Speaker to make the necessary declaration when he is made aware of the certification.

Two findings are therefore necessary before the seat of a Member becomes vacant:

1. The member must have become of unsound mind, and

2. He must be so certified by two doctors processing the qualifications laid down in the subsection.

The Plaintiff alleges that at the time of the certification he was not of unsound mind. The term "unsound mind" is not defined in the Electoral Act 1966, and the term appears to have escaped definition in any of the other enactments applicable in the Cook Islands. There have been attempts judicially to define the term and I refer to but two of these. In Buxton v Jayne (1960) 2 All ER at page 697 (lines D1 to F4) said:

Thirdly, counsel for Mr Jayne argues that what Mr Jayne says in his affidavit is tantamount to saying that Mrs Buxton was of unsound mind, and that he does not use that expression because it is not one which is in common use in the medical profession. While it is much better that the witness should testify, if he can, in the terms of the Act itself, I agree that it is sufficient, at any rate at this stage, for him to use any language that amounts to the same thing. I am not going to attempt a definition of just what is meant by unsound mind, an expression which the Act itself leaves undefined, nor am I going to search for equivalent language. It is enough to say that unsoundness of mind is plainly something more radical than an emotional disturbance requiring psychiatric treatment. The unsoundness of mind, whose presence is essential to justify a compulsory order, manifestly means something more than mental illness which qualifies a person to be a voluntary patient."

In Kirby v Leather (1965) 2 All E.R. 441 Lord Deming at page 443-4 stated:

"It seems to me that the words...must be construed in relation to the subject matter with which the status is dealing...a person is of unsound mind when he is by reason of mental illness incapable of managing his affairs...as a reasonable man would do."

The Mental Health Act 1911 (N.Z.) which does not apply directly to the Cook Is but is referred to in sections 586 and 587 of the Cook Islands Act 1915 defines the term as follows:

"Persons of unsound mind - that is persons who, owing to disorder of the mind, are incapable of managing themselves or their affairs".

Turning now to the evidence, the three doctors who expressed their opinions as to the meaning of the term appear substantially to be "ad idem". Dr Savage the Medical Superintendent of Oakley Hospital who received the plaintiff under the Reception Order at page 8 of the Auckland evidence said:

"To me unsound mind means someone suffering from mental illness who cannot conduct their affairs with the minimum prudence that society requires. No complete description is found anywhere though."

and at page 19; in cross-examination:

"Q. Would you agree that a person of unsound mind is someone who is suffering from something more radical than emotional stress requiring medical assistance?

A. Yes, I would agree.

Q. Dr Culpan will give a definition as follows - ‘this is when a person’s quality of thinking is sufficiently distorted so as that he is unable to interpret reality in a logical way so as to make an appropriate judgment’.

A. No that is not as good a definition as the one I gave .... This has not got the .... connotation I gave earlier as to the minimum prudence demanded by society and by that I mean the society we are functioning in."

Dr Culpan the psychiatrist engaged by the plaintiff at page 43 of the Auckland evidence said:

"Q. Can you give us your definition of a person being of unsound mind?

A. I think unsoundness of mind signifies an inability to interpret reality in a logical way so as to reach appropriate judgments.

Q. I refer to Dr Savage's definition.............to me unsound mind means someone suffering from mental illness who cannot conduct his affairs with the minimum prudence that society requires. No complete description is found anywhere though. Do you agree with Dr Savage?

A. I wouldn't object, sir.

Q. Do you think there is any distinction between your respective definitions?

A. My definition refers more specifically to the quality of thinking whereas Dr Savage's more concerned with the behaviour of the person but I think they virtually amount to the same thing."

Dr Williams in cross-examination at pp 59 and 60 of the Rarotongan evidence said:

"I think it needs to be clarified that mental illness is not sufficient to have a person committed for example a person suffering from anxiety neurosis is (suffering from) a form of mental illness but that person is not necessarily considered of unsound mind. But whereas a person suffering from mania which is psychotic is considered to be suffering from unsound mind. It is a degree of mental illness which enables a person to behave himself in society. If a person behaves and conducts (himself) in a way that is acceptable to society then there is no problem but once a person suffering from mental illness to (the extent) that he passes from normal minimum required standards demanded by society then that person is suffering from unsound mind. He has to be suffering from mental illness and also his behaviour in society.

Q. Matter of degree then?

A. Yes.

Q. And it should be left to experts to agree whether or not a patient's illness has got to a stage where he is of unsound mind?

A. I agree but you have to take into consideration the particular society you are in and the experts there within that community."

On considering the evidence, I conclude there is really no dispute as to the proper approach to the diagnosis of the condition of unsound mind. Each of the above doctors have expressed themselves in definition thereof in terms which are in accord with meaning of the term given by Lord Denning in Kirby v Leather (supra), and I am satisfied that the test to be applied to the plaintiff in considering whether he was of unsound mind within the provisions of section 7(1)(i) of the Electoral Act 1966 is whether he was by reason of a mental illness incapable of managing his affairs as a reasonable man would do.

The nub of the matter is whether the plaintiff's mental condition on the 24th June 1977, the date when his seat in the Legislative Assembly was declared vacant, was such as to classify him as of unsound mind as above defined. There is only one person who has been able to testify on this apart from the plaintiff himself. That is Dr Savage. He was asked in evidence page 8 (Auckland evidence):

"Q. Could I have your opinion then as to whether Tangata was of unsound mind on three dates - firstly the date of reception into your hospital?

A. Yes sir, he was of unsound mind when he was received into hospital.

Q. On the second date 17/6/77 when your report was prepared (exhibit H) and signed.

A. Yes he was.

Q. Would you express an opinion of his condition on 23/6/77 some 5 days later?

A. Yes sir.

Q. Was he of unsound mind on that date?

A. Yes he was of unsound mind. Otherwise I would have discharged him on trial leave."

After weighing the evidence thereon I am satisfied that Dr Savage, in basing his diagnoses on his interpretation of the condition of unsoundness of mind which I have held to be correct, can be relied on. He had the plaintiff in his hospital over the period, and constantly observed him. He can properly be described as a specialist in the file of psychiatry. I have, therefore, no hesitation in accepting his findings and hold hat the plaintiff was on the 24^th June 1977 of unsound mind within the meaning of section 7(1)(i) of the Electoral Act 1966.

The certificate of the doctors, Dr Matenga and Dr Williams presented to the second defendant, the Deputy Speaker of the Legislative Assembly, certified that the plaintiff was of unsound mind. The plaintiff, however, challenges the competency of Dr Williams to certify on the grounds that he carried out no examination of him prior to giving the certificate and was not qualified to express any opinion on the state of his mental health. The competency of Dr Matenga is not challenged.

The last occasions on which Dr Williams saw the plaintiff were in March 1977 when the plaintiff spoke in the Assembly in the debate on the Medical and Dental Practices Bill. On that occasion the plaintiff’s speech had little relevance to the matter before the House. It was obvious that he was disorientated and obsessed with religious matters. Dr Williams was concerned about him and immediately after the debate saw the plaintiff in the office of the Clerk of the Assembly. He has stated that he observed his manner to be "disorientated, excited and confused". When he saw the plaintiff two or three days later, he had improved. The evidence has established that Dr Williams had been concerned with the plaintiff’s mental condition from time to time since 1975. In that year the plaintiff became involved with an evangelical movement in which he appeared to become totally absorbed. I have no doubt that this involvement resulted in the impairment of his mental faculties to the degree that concern for him was felt by his parliamentary colleagues. When he had held an unusual prayer service in the office of the Premier, Dr Williams saw him immediately after that and observed that he was confused, talking over-much, flitting from subject to subject referring frequently to religious maters. The next occasion on which the Doctor was concerned with the plaintiff and his illness was after the incidents in Tahiti in November 1975 referred to above. On the plaintiff’s return to Rarotonga, Dr Davis saw Dr Williams and advised him he was treating the plaintiff for mental disorder. He discussed his treatment with Dr Williams and handed him a letter dated the 12 November 1975 from Dr Heyraud of the Service of Neuropsychiatric at the Hospital of Vaiami, Papeete. This gave particulars of treatment by the Doctor at that hospital and told of the plaintiff’s sleeplessness, his lack of self-control and his nervous and depressed state. Dr Davis also referred the plaintiff to Dr Matenga who interviewed him. Dr Matenga in evidence at page 38, Rarotonga record said:

"Q. When you were discussing the matter with him at this consultation on November 1975, was there any religion matters mentioned?

Yes.

Q. How did that come in?

A. When I started to interview him, and it came out when he was giving all the history that was required.

Q. Did you decide, that, as stated in the latter, that a more complete assessment was required and for the purpose, you arranged for him to go to Auckland Hospital?

A. Yes.

Q. Was the matter discussed prior to your departure between Dr Tou and Dr Williams and yourself?

A. I discussed the matter with them and I told them, the best thing is for me to refer him to New Zealand for a complete assessment of his condition. I suggested to them that.

Q. Following these discussions, did you travel with Mr Tangata to New Zealand?

A. Yes.

Q. Was he then admitted to Ward 10 of the Auckland Hospital?

A. Yes. He was in Ward 10."

Prior to his being taken to Auckland by Dr Matenga, the plaintiff was again seen by Dr Williams who observed him to be "very excited", "disorientated and confused" and "leaping from subject to subject". As a result he formed the opinion that he needed medical help and recommended that he be admitted to hospital. Dr Matenga’s report which he submitted to the Secretary for Health after his examination of the plaintiff, was subsequently referred to Dr Williams as Minister of Health and he concurred in the Secretary of Health's decision to send the plaintiff to New Zealand for medical assessment of his condition. Apart from seeing a report on the plaintiff from the Senior Psychiatric Registrar of Auckland Hospital to Dr Matenga dated the 9^th December 1975, Dr Williams had no further involvement with him until he was informed in May this year of the incidents in Fiji which have been traversed above. He assisted in the arrangements which resulted in the plaintiff being taken to Oakley Hospital. On the return of Dr Robati from New Zealand in early June, he learnt of the plaintiff’s committal to Oakley Hospital under the Reception Order made by the Magistrate above referred to. I am satisfied, after considering his evidence, that he is fully aware of the implications of a reception order and committal under the relevant New Zealand legislation. As a result of a request for information in a cable by the Secretary for Health to which reference will be made later, a letter was received from Dr Savage dated the 17^th June 1977 reading as follows:

"Secretary of Health

Cook Islands Government

COOK ISLANDS

RAROTONGA

17 June 1977

Dear Sir,

Re: Dr Paul Pomani TANGATA

1. Your cablegram of 9.6.77 refers.

2. Mr Tangata is gradually settling and is less over-active and unusual in behaviour than previously.

3. He is a committed patient of this hospital subject to Section 79 of The Mental Health Act of New Zealand.

4. Mr Tangata tells me that it is his present intention to retire from politics.

5. However, it is necessary for Mr Tangata to continue under medical care for some time yet.

Trusting this information is of assistance and I am sure you will let me know if more details are required.

Yours faithfully,

Signed by P.P.E. Savage

Medical Superintendent"

This letter was shown to Dr Williams who then consulted the Advocate-General. On the 24th June 1977 he and Dr Matenga certified that the plaintiff was in their opinion of unsound mind. The certificate has been reproduced earlier in this judgment.

Was it therefore, reasonable in the circumstances for Dr Williams to certify so he did? To answer that question I must turn to the evidence. Dr Williams in examination-in-chief at page 55 of the Rarotonga record said:

"Q. It has further been said in the pleadings of plaintiff that you were incompetent to sign the certificate without examining Mr Tangata. Perhaps I had better read how this is phrased. You may be wondering whether allegation is immediately before signing or some other time ... para 128....talking about your involvement in signing that document" Dr Williams .... any comment on that suggestion as to your ability to sign the certificate?

A. The suggestion that one has to examine a person suffering from mental illness meaning that one has to physically examine carry out physical examination is unfound because the assessment of mental illness in my experience has very little relevance on how one forms one's diagnosis. The examination is based almost entirely on observation of patient, interview, talking to the patient. I felt I had sufficient exposure to Pomani. I had been involved with the case right from the time it started and I had followed it right through and in reviewing the whole of Pomani's case, I felt I was more competent to sign that certificate than most other doctors in the Cook Islands. Certainly, I felt I was one of the four that would be eligible to sign that certificate because I had observed Pomani throughout the history or had the opportunity and had been informed also of relapses that had taken place in Tahiti and Fiji.

Q. And in as far as you relied on the information from Dr Savage, may I ask what knowledge, if any, you had of his reputation in the medical service.

A. I knew that Dr Savage in the Medical Superintendent of Oakley Hospital and that he held high regard in the field of psychiatry in the Auckland area if not in New Zealand."

and in cross-examination at page 61:

"Q. When you signed the certificate, you knew that Mr Tangata was still a committed patient in Auckland?

A. Yes.

Q. And you knew he was not going to be able to come back and play his role in the Assembly?

A. It was quite obvious.

Q. No problem of him coming back here and producing embarrassment?

A. That particular time, I was concerned as I stated before about his well-being but that particular aspect of implementing the law I think was more important.

Q. You didn’t think more psychiatric advice should have been obtained by you before signing the certificate?

A. What more psychiatric advice would I need with the evidence before me for committal to Oakley and knowing the steps required for committal together with my personal observations of the person and my knowledge of his history - where could I get further psychiatric advice in the Cook Islands?

Q....Exhibit - letter from Madam Speaker, 3 December 1975 ref. to Mr Tangata; para. 3 "Re report".

Bearing in mind that, that was your opinion in 1979, wouldn’t it have been appropriate to obtain the report from the same experts on this occasion?

A. I wouldn’t think so because he had been seen by an expert, in fact a specialist who should be considered better than these in Ward 10 of Auckland Hospital. I am referring specifically now to Dr Savage.

Q. This letter refers to experts at its plural and you were relying on Dr Savage solely in this case.

A. No, I think I made it quite clear on a number of occasions, I have relied on a number of factors - a history of the case, my personal observations, reports plus final committal reports. I have not taken one isolated factor to enable me to reach a conclusion. I have taken all factors into consideration and one must do that.

Q. The advice of an expert is only one factor as far as you are concerned?

A. Yes.

Q. Are you satisfied with expert advice of Dr Savage?

A. As I said earlier, in the medical sense, from medical point of view, a committal of a person to a mental institution is the final indication as to the unsoundness of mind of an individual. I think the majority of my colleagues in the medical profession would take exactly the same view including psychiatrists.

Q. Are you aware of a psychiatrist in Auckland called Dr Roger Culpan?

A. I have heard the same.

Q. You are not aware that he is an eminent Psychiatrist with large degrees?

A. No.

Q. He described your action in signing the certificate without examining the patient Mr Tangata prior to signing the certificate as being irresponsible ..........

Court. Dr Culpan appeared to have had the view that your signing a certificate saying that the plaintiff was of unsound mind when you did not personally observe the patient, when you had no psychiatric qualifications and after Dr Robati had refused to sign the certificate .......

Q. What do you have to say about that?

A. I think an expert, a specialist is entitled to make his own opinion but might I ask, was he made aware of this case in its totality and not merely the signing action, because I would then venture to say that even if he examined Mr Tangata at that particular moment, the data that he would have collected would not have been as extensive as mine."

Dr Savage in examination-in-chief, page 10 of the Auckland record said:

"Q. Diagnosing - what part if any attaches to a physical examination of the patient?

A. Nothing, it has been said that people of stocky build are more prone to this illness but that by no means is sufficiently invariable. No blood tests could be conclusive to diagnose mania depressive. Just observation is best."

And in cross-examination at page 20:

"Q. If you had no other knowledge other than that provided by yourself to Dr Williams would you if you were in his position sign a certificate saying Tangata use of unsound mind?

A. I would have to answer that it would depend on my particular position and duty at the time. If I was a clinician expected to give a clinical assessment my answer would be no I would not.

If I was an administrator I might - debatable regard it as not unreasonable to make such a certificate if sufficient evidence was reported to me by others by various means and if I was the only person who was appointed to make such an administrative decision I suppose it could be made in the same was finally in disputed cases such as this decision made by Magistrate.

Q. Only interested in your medical.

A. Not unfamiliar with the situation that may arise administrative level where a decision has to be made from proffered information.

Q. You don't regard an actual personal observation of person in this situation is necessary?

A. In an executive situation it may be proper as in the courts but in a clinical examination in a similar situation the person giving the certificate should have had close contact with the patient."

and in re-examination at pages 22 and 23:

"Q. Please to show the witness Williams affidavit.

I wish now to refer you to the other information which is subject to acceptance by court that Williams would appear to have had invite you to look para 2 of affidavit of Williams - read that and para 3. Is it significant in your view that Williams has in May of this year at the time of the Fiji incident discussed the patient’s condition with Dr Davis who was treating him for psychiatric problems.

A. To me it shows he made some effort to acquaint himself with the patient’s condition.

Q. Read para 4 and 5 which you will see deals with direct observation by Dr Williams. Para 6 relating to the Tahitian incident and para 7 which is another occasion when Williams spoke with Tangata and also the report from Davis who was treating him. The latter part of para 8 - last 2 sentences, which show that Dr Williams was involved in the conveying of Tangata to Auckland. Para 10, the address and reply debate of 1977 is that not another personal observation by Williams of Tangata.

A. Yes it is sir.

Q. If one accepts for the moment that all this evidence and takes with it your report which is Exhibit "G" your report to Secretary of Health do you have any comment on the amount of information that Williams had to rely on in signing this certificate as he did.

A. He had made several personal observations and appears to have gathered approximately the same information as we did.

Q. Does that include yourself?

A. No only submit that what was noticed at Oakley....

Q. Do you have any comment then on the amount of information available to Williams?

A. He seemed to have a fair amount of information over a period of time.

Q. Then you answered Haigh that if you had been in Williams position with exhibit "G" only that is your report then propriety of signing the certificate would have depended in some extent upon the role in which it was being signed.

A Yes sir.

Q. All the evidence that you have seen in the affidavit of Williams coupled with your report I ask whether you have any further comment on the propriety of Williams signing the certificate?

A. I think he had reasonable grounds at that time."

Dr Culpan in examination-in-chief at pages 45 and 47 said:

"Q. Would you in your capacity under any circumstances sign a certificate declaring a person of unsound mind when it deprived them of their employment without examining and observing the person yourself?

A. No I would not.

Q. Do you place much regard on personal examination and observations of a person who may potentially be violent?

A. Would place total regard on it because the committal certificate requires that the decision to certify the person has to be based on the evidence that one obtains on the occasion of the examination. That is, one does see with one's own eyes at the time and with care at the time the decisions cannot be based on hearsay.

Q. Would your answer on this question on observation and examination be any different where you were considering a certificate of unsound mind as opposed certificate under section 19 of the Mental Health Act, of unsound mind for the purposes of the Cook Islands Electoral Act as opposed to Section 19 of the Mental Health Act?

A. Still requite the evidence be available for my own observation and not based on the statements of others.

Q. Would your answer be different if you knew that person had recently been committed to in Fiji and in New Zealand?

A. My answer would be no different. In 1967 I gave evidence in a Supreme Court hearing over a matter of wrongful committal and this action proved to be successful so I know that miscarriages can take place.

Q. Can you comment on propriety of Dr Williams signing the certificate pursuant to the Cook Islands Electoral Act declaring plaintiff to be of unsound mind whereas he did not personally observe the patient and had not any psychiatric qualification from Fiji to Auckland where committed. Would you refuse to sign the certificate declaring the patient of unsound mind?

A. I would consider such an action of Dr Williams particularly in view of the gravity of steps being taken to be irresponsible.

Q. Would your answer be any different if Dr. Williams knew of the patient’s recent committal to psychiatric hospitals in Fiji and New Zealand and know of an apparent hypermania episode some 2 years earlier and knew of certain unusual patterns in plaintiff’s behaviour of recent origin?

A. Still think that such an important step demanded an utmost care and before taking it Dr. Williams should have obtained further professional advice to put the matter beyond doubt.

Q. Is the fact that a doctor who accompanied the plaintiff refused to sign the certificate regarded by yourself as a relevant factor that Dr. Williams should have taken into consideration?

A. It does demand qualification – is Dr. Robati entitled to sign certificates in New Zealand.

Q. Talking about Cook Islands certificate. Evidence will be given that Dr Robati who accompanied plaintiff on trip refused, not wasn’t present, but refused to sign certificate declaring plaintiff of unsound mind in your opinion a matter which Dr Williams should have taken into consideration?

A. Yes.

Q. If in fact the doctor in refusing to sign the certificate gave no reason for his refusal would that alter your opinion as to the ethics of Dr. Williams?

A. Yes that would soften my conclusion."

In cross-examination at pages 48 and 49

"Q. I want to start where you talked of Dr Robati's opportunity of observation and as I understand it you acknowledge that there would have been ample opportunity for observation during the course of trip from Fiji to Auckland?

A. Correct.

Q. We had evidence from Dr Savage on page 10 that these doctors were with him on 24/5/77 from the early morning 9am approximately, until late afternoon with only a few occasions when either would leave for short time in a room with him virtually all that day. How do you rate that in terms of opportunity to observe?

A. Sounds as if they have substantial opportunity to observe...............

Q. If it be suggested by Dr Robati that he had inadequate time for observing for the purposes of forming a judgment on this man's illness what would your comments be?

A. I would draw conclusions that features of man's illness were not particularly striking or obvious so that Dr Robati felt that more prolonged observation was necessary.

Q. Does your answer assume that Dr Robati's reasons for refusing to sign was that he was unsure of the diagnosis?

A. Yes I think that assumption is implicit in my answer.

Q. You said on this topic that you inferred, that was the reason for his refusal in other words, uncertainty?

A. Yes.

Q. From what facts do you draw that inferences?

A. The fact that he was a medical practitioner in the Cook Islands and was thus qualified to give the necessary certificate - technically qualified - not ideally qualified and the fact that when asked to do so by a senior member of the Cook Islands Government he felt unable to comply.

Q. Were you aware that Dr Robati was a member of the Legislative Assembly of the Cook Islands?

A. No I was not.

Q. In the present opposition party I mean?

A. No.

Q. So you would not have known that this medical practitioner was like Tangata, a member of the Opposition in the parliament?

A. No.

Q. So do you on these facts then relating to the political career of the patient and the doctor there may be other reasons for his refusal to sign the certificate?

A. Yes.

Q. Including political reasons in a sense of loyalty to the plaintiff?

A. Yes

Q. Assuming for a moment that these were the reasons for refusing to sign what effect if any would that have on your opinion about the propriety of Dr Williams signing?

A. Well, it would soften my criticism but would still hold to my basic statement."

Dr Robati in examination-in-chief at page 16 of the Rarotongan record said:

"Q. Did you in fact sign it (the certificate)?

A. No I didn't. I refused.

Q. Why did you refuse?

A. In the first place I was asked to go to Fiji and escort Mr Tangata. There was no mention of myself going to examine Mr Tangata and during my trip I never examined Mr Tangata. I could not sign without carrying a proper examination of Mr Tangata.

Q. Could you explain what you mean a proper examination?

A. Is to go through past, family and present history and have it down before a final diagnosis can be made."

and in cross-examination at page 28:

"Q. What do you say was the reason for your selection as a person to consider signing these certificates?

A. Just because I happened to accompany Mr Tangata to New Zealand.

Q. Now, when you were first asked by my learned friend here about being asked to sign the certificate and refusing it, this is at foot of page 16 ... you were asked why did you refuse and you gave your reason which we have here but I want to ask you, did you give any reasons for refusal to Mr Kauvai, who brought certificate to you?

A. Yes.

Q. What reasons were they?

A. I think I gave the same reasons.

Q. You say you gave him the same reasons, are you certain about the matter?

A. Yes I am.

Q. Did you give as another reason that you were not paid as a doctor meaning by that that you were not licensed as a private practitioner?

A. I told him I don't work for the Health Department and also I don't practise for private practice.

Q. In fact the reason you have just given was the only reason you gave Mr Kauvai was it not?

A. No, I don't think so, there is another reason I stated earlier.

Q. You mean by that the fact that you had never carried out a proper examination?

A. Yes.

Q. Do you say that you gave that reason to Mr Kauvai do you?

A. I don't think so. I am not quite sure because I was busy at the time. I told him I would not sign and he disappeared.

Q. Is it possible that all you said to him because you were busy was that you were not in the Department of Health and not a private practitioner?

A. It is possible.

Q. When you were asked to consider signing the certificate did you consider that there were political implications if you did sign it because of the fact that it was a member of your own party involved?

A. No, I didn’t. What came to my mind, I was not qualified enough and I did not examine and I felt it was not my job to sign.

Q. Did you think that it was some what unfair that you should be asked to sign when a person involved was a close friend and a political colleague of yours?

A. no it was unfair because in the first place, I was asked to escort Mr Tangata and not to examine and sign the certificate."

Dr Matenga in cross-examination at page 46 said:

"Q. Dr Would you agree that the two most important aspects when diagnosing someone's mental health are observation of a person and knowledge of his past history?

A. I do agree with that.

Q. Referring to p.46 of Dr Culpan's evidence ... I think it is accepted that Dr Culpan is eminent psychiatrist in Auckland and in earlier evidence in these proceedings at p.46 "do you ... based on hearsay". Would you agree that observation and examination of a person who is going to be or is potentially going to be certified of unsound mind is most important part of that.

A. Examination is not important part but interview is. Hearing with your ears what patient has to present and seeing with your own eyes."

On consideration of Dr Robati's evidence, I have already found as a fact (supra) that his refusal to sign the certificate was that he considered his part in the Fiji and New Zealand trip was that of escort only and not of doctor, that he had never examined the plaintiff, that he had little experience in psychiatry, was not now practising medicine, and had not got before him the past family and present history enabling him to make a diagnosis. His refusal was not based on his opinion that he did not consider the plaintiff to be of unsound mind. This I consider to be of great importance. These reasons are very relevant when one comes to consider the evidence of Dr Culpan. His conclusions as to the irresponsibility of Dr Williams were undoubtedly influenced by Dr Robati's refusal to certify. The full reasons for that Doctor's refusal were never put to him, and while his conclusions were "softened" when he was told of the political affiliations of Dr Robati and that the doctor had given no reasons for his refusal to sign, he could well have arrived at different conclusion if all the reasons had been known to him. The importance of a clinical examination by Dr Williams before certification was fully canvassed during the hearing and, on the evidence, I am of the opinion that the extensive knowledge that Dr Williams had of the plaintiff’s mental illness based upon his own observations of and interviews with the plaintiff over a long period of time together with his knowledge of the events leading up to his committal pursuant to a Reception Order in New Zealand, the order itself and the report from Dr Savage of the 17th June 1977 indicating that the plaintiff would be required to continue under medical care for some time, precluded the necessity for examination before certification and I find therefore that Dr Williams was competent to certify the plaintiff on the 24th June 1977.

The plaintiff has taken two points in relation to the certificate itself which, he renders it a nullity. The first is that it certifies that the plaintiff "is of unsound mind" where as the section requires the certificate to that he "has become of unsound mind". The second point is that the Doctors signing the same designate themselves as "medical practitioners" whereas the section requires the certification to be "by two medical officers or by one Medical Officer and a graduate of the Central Medical School at Suva, Fiji."

Dealing with the first point, the plaintiff contends that the word "becomes" in section 7(l) (i) is intended to be construed literally.

He suggests that the Act enables electors to elect a person of unsound mind, but, if a member "becomes" of unsound mind, once elected, then his constituents can be protected by his removal from the Assembly. This submission is untenable A person to be qualified as a member of the Assembly must be an elector duly registered under the Act. (sec.6). The qualification of an elector requires him to be, inter-alia, of sound mind. (sec. 8 (c)). It is clear that a certificate that a person "is of unsound mind" indicates that he "has become of unsound mind" and complies with the requirements of the section.

As to the second point, there is, of course, no definition of the term "Medical in the Electoral Act, but, having considered other legislation relating to these practicing medicine or surgery in the Cook Islands at the time of the passing of the Act, I am satisfied that the true significance of the term in section 7(1)(i) lies in the qualifications of those permitted to certify. The Department of Health was supplanted by the Ministry of Social Services on the passing of the Ministry of Social Services Act 1973-74 which enactment also abolished the terms "Director of Health" and "Chief Medical Officer" see section l5 which repeals sections 22 and 25 of the Cook Islands Amendment Act 1957. The Medical and Dental Practices Act 1976 in turn repealed section 23 of the Cook Islands Amendment Ac t 1957 which is the section dealing with the qualification for appointment of "medical officers" to be employed in the Department of Health. Section 29(1)of that Act is significant. It reads:

"29. (1) Notwithstanding any other provision in this Act any medical or dental practitioner in active practice in the Cook Islands or employed in the Department of Health at the commencement of this Act shall be entitled to be registered as a medical or dental practitioner as the case may be provided he makes application for the same within 3 months from the commencement of this Act."

(The underlining is mine)

In my view, the effect of the Ministry of Social Services Act and the Medical and Dental Practices Act is to designate as "Medical Practitioners" all persons practising medicine in the Cook Islands whether employed in private practices or by the Government of the Cook Islands. Consequently I consider they can be properly so designated in certificates of the nature considered here. However, the qualification of the certifying medical practitioners must be of a required standard. A "Medical Officer" under the Cook Islands Amendment Act 1957 was required to be:

"(a) a duly registered medical practitioner registered under the New Zealand enactment, the Medical Practitioner Act 1956; or

(b) registered in accordance with Acts regulating the registration of medical practitioners in any other country that is a member of the Commonwealth or in the Republic of Ireland; or

(c) the holder of a certificate issued under the hand of the Secretary to the Medical Council of New Zealand to the effect that, in the opinion of that Council, he had attained a standing of practice in medicine and surgery equivalent to the standard required for registration in New Zealand as a medical practitioner under the above New Zealand enactment. (sec. 23 ibid)."

A graduate of the Central Medical School at Suva Fiji, on the other hand, under the 1957 Amendment Act could not be designated as a "Medical officer" but could be employed by the Cook Islands Public Service subject to the "general control of the Chief Medical Officer". The reason for this distinction is that the qualifications of the Fiji graduate are considered less than that of a "Medical Officer". I have no doubt that the legislature considered the question of the qualifications of those upon whom it placed the task of certifying under section 7(l)(i) and thus ensured that at least one of the two medical practitioners certifying should possess the qualifications of a "Medical Officer" as prescribed in section 23 of the Cook Islands Amendment Act 1957. Dr Williams possesses those qualifications and was accordingly competent to certify and I so hold. Dr Matenga, being a graduate of the Central Medical School at Suva was likewise competent. They are both properly described as "medical practitioners". The "sequitur" of this finding is that even if Dr Robati had been willing to sign the certificate, it would have been a nullity since Dr Robati possesses only the qualifications of a graduate of the Central Medical School. In the result the certification would have been by two such graduates which the section does not permit.

The Plaintiff’s main ground for the writs he seeks is that the declaration unseating him is null and void in that there was a breach of the rules of natural justice both in relation to the act of the second defendant in making the declaration and in that of Dr Williams in certifying him as being of unsound mind. Halsbury's Laws of England (4th Edn.) Vol. 1 para. 64 on page 64 dealing with breach of natural justice states:-

"64. The rules of natural justice. Implicit in the concept of fair adjudication lie two cardinal principles, namely, that no man shall be a judge in his own cause (nemo judex in causa sua), and that no man shall be condemned unheard (audi alterem partem). These two principles, the rules of natural justice, must be observed by courts, tribunals, arbitrators and all persons and bodies having the duty to act judicially, save where their application is excluded expressly or by necessary implication."

There is however, no room for the application of either of these rules in relation to the acts of the second defendant. As I have held, his role was purely formal and administrative. I was satisfied that section 7(5) required no inquiry by him and that once the certificates of unsoundness of mind were presented to him, he had no discretion in the matter, but I was required by law to make the declaration. That is the purpose of the legislation and it must not be frustrated. Wiseman v Borneman (1969) 3 All E.R. 275.

Nor is the "audi alteram partem" rule applicable in the case of the doctors certifying the plaintiff. I have found that it was the intention of the legislature that no hearing adjudication and/or examination by doctors certifying under section (7)(1)(i) was required. Both this section and subsection (1)(c) of the Electoral Act 1966 unseating members who absent themselves for a certain period from the Assembly without its permission, (which provision is not contained in the New Zealand Electoral Act) underline the purpose of the section which I consider is as submitted by Counsel for the defendants; viz; that the predominant purpose of the section is to preserve the integrity of the legislative process and maintain the highest possible standards of law making so that persons who become of unsound mind or do not attend the Assembly should be replaced at the earliest opportunity by a properly qualified candidate able to safeguard and promote the interests of the electors of the particular electorate. In this respect the elements of public interest is predominant. To supplement section 7(1)(i) by requiring a provision as hearing or examination of the person concerned would certainly frustrate the purpose of the section. As was said in Wiseman v Born man (supra) by Lord Reid at p. 398:

"For a long time the courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation."

The matter is put in different terms by Lord Hailsham in Pearlberg v Vartey (1972) 2 All E.R. 6 at page 11 (lines C1 to C5):

"Despite the majestic conception of natural justice on which it was argued, I do not believe that this case involves any important legal principle at all. On the contrary it is only another example of the general proposition that decisions of the courts on particular statutes should be based in the first instance on a careful, even meticulous, construction of words that statute actually means in the context in which it was passed. It is true, of course, that the Courts will lean heavily against any construction of a statute which would be manifestly unfair. But they have no power to amend or supplement the language of a statute merely because on one view of the matter a subject feels himself entitled to a larger degree of say, in the making of a decision than the statute accords him. Still less is it the functioning of the Courts to form first a judgment on the fairness of an Act of Parliament and then to amend or supplement it with new provisions so as to make it conform to that judgment. The doctrine of natural justice has come in for increasing consideration in recent years, and the Courts generally, and your Lordships' House in particular, have, I think rightly, advanced its frontiers considerably. But at the same time they have taken an increasingly sophisticated view of what it requires in individual cases."

The plaintiff contends that if a man is to be deprived of his livelihood he should be heard. He cites R v Kent, Police Authority and Others ex parte Godden (1971) 2 Q.B. 662; and Breen v Amalgamated Engineering Union (1971) 2 Q.B. 175. In Godden's case, the applicant a police inspector, as a result of being suspected by his senior officer of misconduct was referred to the chief medical officer of the force who reported him to be suffering from a mental disorder. He then saw his own psychiatrist who found him to be psychiatrically normal. The police authority took steps compulsorily to retire the applicant under the provisions of the appropriate Police Regulations and selected the same chief medical officer who has certified him as their duly qualified practitioner to carry out the inquiry as to whether he should be retired. Lord Denning M.R. at p. 669 (lines F4 to G2) said:

"When a medical practitioner is making a decision which may lead to a man being compulsorily retired, he must act fairly ..... He is doing something which affects a man's whole future. He must beyond doubt act fairly."

There can be no question as to applicability of this statement to the present case, but, the distinction between this case and the above case is indicated in Lord Denning's further dictum on the same page (lines E1 to 5) which reads:

"I am clearly of the opinion that decisions leading to compulsory retirement are of a judicial character and must conform to the rules of natural justice. They are, first, a decision by the medical practitioner or on appeal by the medical referee, and, secondly, by the inquiry by the police authority themselves."

The position is quite different in the present case. Godden’s case involved an inquiry procedure laid down in regulations. Here the acts of the doctors in relation to certification and the Speaker in relation to the subsequent declaration of vacancy are clearly shown in the legislation to be administrative. In Breen's case (supra) the plaintiff had been elected by his fellow workers as their shop steward for the coming year. By the rules of the union the election was subject to approval by the district committee and a shop steward could not function until such approval was given. The district committee refused to approve the plaintiff s election and it was alleged that in so doing the committee had been influenced by a consideration of an earlier specific incident of alleged misconduct on behalf of the plaintiff without having given any chance to the plaintiff to give an explanation of that incident. At first incident the trial held it was not upon to the Court to review the decision of the district committee because it was not exercising a judicial or quasi-judicial function. At page 189 (last para) to page 190 (line C2) Lord Denning M.R. said:

"In so holding, the judge was echoing views which were current some years ago. But there have been important developments in the last 22 years which have transferred the situation. It may truly now be said that we have a developed system of administration law. These developments have been most marked in the review of decisions of statutory bodies; but they apply also to domestic bodies.

Take first statutory bodies. It is now well settled that a statutory body, which is entrusted by statute with a discretion, must act fairly. It does not matter whether its functions are described as judicial or quasi-judicial on the one hand, or as administrative on the other hand, or what you will. Still it must act fairly. It must, in a proper case, give a party a chance to be heard: see Re K (M) (as in fact) (1967) 2 Q.B. 617 at G33, per Lord Parker C.J. in relation to immigration officers and R v Gaming Board for Great Britain, ex parte Benaim (1978) 2 K.B. 417 at 431 by us in relation to the gaming board. The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means at least this: the statutory body must be guided by relevant considerations and not by irrelevant. If its decision is influenced by extraneous considerations which it ought not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith; nevertheless the decision will be set aside. That is established by Padfield v Minister of Agriculture, Fisheries and Food (1969) A.G. 697 which is a land mark in modern administrative law."

Breen's case can be clearly distinguished from our case. The district committee in that case was entrusted with a discretion. In this case there is no discretion so far as the certification or declaration is concerned. In The Attorney-General v Ronaki Ltd., and Ors, (an unreported decision of the New Zealand Court of Appeal delivered on 12th May 1977) the Court considered whether notice of a certain appeal to the Town and Country Appeal Board should have been given to the first respondent. The Board had a discretion to give notice but did not do so, Richmond P. on p2 of his decision said:

"I am satisfied that the various provisions of the Town, and Country Planning Act 1933 and of the Regulations to which my brethren refer in their judgment show that the legislature and the Executive have given particular thought to the rights of interested persons in regard to notification of proposed Scheme and objections thereto. These provisions also show that detailed consideration has been given to the question of the persons who should be entitled to specific notice of appeals. In the circumstances of the present case I can see no sufficient reason to supplement that provisions of the Act and Regulations by reference to the principles of natural justice."

Woodhouse and Cooke J.J. after referring to the judgment of Lord Reid in Wiseman v Borneman (supra) said at page 14 of their decision:

"In cases concerning permitted acts to require separate notices of appeal to be served on all such persons would be to impose a Herculean task on the Board or the appellant. In Lord Reid’s words, it would frustrate the apparent purpose of the legislation."

And again:

"As Mr Mathieson acknowledged, this case is .............. different from the well known cases, collected in (Furnell v Whangarei High School Board (1973) 2 N.Z.L.R. 765) dealing with judicial supplementation of legislative codes. To adapt Lord Reid's words, the statutory procedure includes express powers sufficient to achieve justice. They are couched in discretionary terms, however, and the question is whether a person whose interests are affected can contend successfully that an emission to exercise them has resulted in a breach of natural justice which the Courts will remedy."

Section 7(1)(i) contains no right to a hearing and the intention that no such right be given is clearly spelt out from a reading as a whole of the Electoral Act 1966 which has already been considered. In such a case there can be no justification for adding to the section such a right. (See also Durayappah v Fernando (1957) A.C. 337; (1967) 2 All E.R. 152 per Lord Upjohn (1937) A.C. at p. 348.)

But when there are allegations of bias as in this case, I do not think that, if such complaints are sustained (the burden of proof being on the plaintiff), that there can be a complete exclusion of a consideration of the principles of natural justice. Bias has been the subject of judicial interpretation. In Franklin v Minister of Town and Country Planning [1947] UKHL 3; (1948) A.C. 87, Lord Thankerton said:

"I could wish that the use of the word 'bias' should be confined to its proper sphere. Its significance, in my opinion, is to denote a departure from the standard of even handed justice which the law requires from those who occupy judicial office, or those who are commonly regarded as holding a quasi - judicial office, such as an arbitrator. The reason for this clearly is that, having to adjudicate as between two or more parties, he must come to his adjudication with an independent mind, without any inclination or bias towards one side or other in the dispute."

In essence bias means to act unfairly or partially or with a closed trend of recent decisions has required fairness to be observed in the exercise of functions whether they be judicial, quasi - judicial or administrative. As was said by McCarthy P. in Lower Hutt City Council v Bank (1974) 1 N.Z.L.R. 545 at p. 548 (line 13) to p. 549 (line 19):

"Furthermore, we believe that the clear - cut distinction, once favoured by the Courts, between administrative functions, on the one hand, and judicial functions, on the other, as a result of which it was proper to require the observance of the rules of natural justice in the latter but not in the former, is not in these days to be accepted as supplying the answer in a case such as we have before us. Former clear - cut distinctions have been blurred of recent years by directions from highest authority to apply the requirement of fairness in administrative actions as well, if the interests of justice make it apparent that the quality of fairness is required in those actions. Lord Reid noted this in Ridge v Baldwin [1963] UKHL 2; (1984) AC 40; (1963) 2 All ER 66. Since then the current of development has flowed strongly. Lord Hailsham of St Marylebone LC in Pearlberg v Varty (1972) 1 WLR 534; (1972) 2 All ER 6 referred to it by saying that the frontiers of the doctrine of natural justice have been advanced considerably in recent years, through he added that the Court now take an increasingly sophisticated view of what is required by that doctrine in particular cases. Viscount Dilhorne in the same case, when speaking of the action of the income tax commissioner there under review, said:

'Whether the commissioner's function in deciding to give leave is to be described as judicial or administrative he must obviously act fairly' (ibid, 542; 13)

Then Lord Pearson said:

'A tribunal to whom judicial or quasi - judicial functions are entrusted is held to be required to apply these principles in performing those functions unless there is a provision to the contrary. But where some person or body is entrusted by Parliament with administrative or executive functions there is no presumption that compliance with the principles of natural justice is required, although, as 'Parliament is not to be presumed to act unfairly', the courts may be able in suitable cases (perhaps always) to imply an obligation to act with fairness' (ibid, 547; 17).

Even more recently, in Furnell's case (1973) 2 NZL.R. 795; (1973) AC 860, Lord Morris of Borth-y-Gest delivering the advice of the majority of the Board said:

'Natural Justice is but fairness writ large and juridically. It has been described as 'fair play in action'. Nor is it a leaven to be associated only with judicial or quasi-judicial occasions. But as was pointed out by Tucker LJ in Russell v Duke of Norfolk (1949) 1 All E.R. 109, 110, the requirements of natural justice must depend on the circumstance of each particular case and the subject-matter under consideration' (ibid, 718; 679).

I need only add to those citations one from the judgment of Roskill LJ in R.v. Livergool Corporation ex p Liverpool Taxi Fleet Operators Assn (1972) 2 Q.B. 299; (1972) 2 All E.R. 589, which was quoted by Chief Justice in the Supreme Court:

'The power of the court is intervene is not limited, as once was thought, to those cases where the function in question is judicial or quasi - judicial. The modern cases show that this court will intervene more widely than in the past. Even where the function is said to be administrative, the court will not hesitate to intervene in a suitable case if it is necessary to secure fairness.’ (ibid, 370; 596)

Those and similar observations are to be found, mainly at least, in cases where the audi alteram partem rule was under consideration, rather than where the court was concerned with the nemo judex rule, as in this instance. There may be instances where that distinction has significance; but certainly there can be none in this case where, as we have said, there are substantial judicial elements in the function being examined."

There are no hard and fast rules as to the application of the principles of natural justice. Whether or not to apply them must depend "on the circumstances of each particular case, and the subject matter under consideration". R v Gaming Board of Great Britain [1970] EWCA Civ 7; (1970) 2 All E.R. 528 per Lord Denning M.R. at p.533. Counsel for the plaintiff submits that the court must be concerned with what he calls "bias of an overall nature" and that no aspect of bias should be excluded. As I understand it, the plaintiff in his pleadings and opening submissions, considered bias could be found in the following events:

1. The arrangements made by the Minister of Finance whereby Doctors Matenga and Robati were sent to Fiji to effect the plaintiff's removal from that country;

2. The plaintiff’s removal to New Zealand and his subsequent committal to Oakley Hospital at Auckland;

3. The manner of and the facts surrounding, the committals of the plaintiff to the institutions in Suva and Auckland;

4. The debate in the Legislative Assembly on the 7^th June 1977 on the motion for the granting of leave of absence for the plaintiff, in particular the views of Dr. Williams expressed therein;

5. The actions of Dr Williams leading up to the certification to the Speaker of the Assembly that the plaintiff was of unsound mind and the declaration by the second defendant that the plaintiff’s seat in the Assembly was vacant;

6. The action of Dr Williams in signing the certificate without examining the plaintiff.

In his closing submissions, however, Mr Haigh restricted his argument to an analysis of the conduct of Dr Williams solely. He referred to the Doctor’s knowledge, firstly, that the plaintiff was an outspoken member of the Opposition Party in the Assembly; secondly, that he was a threat to the leadership of the leader of the Opposition, Dr Davis, and thirdly, that his removal from the Assembly would give the Government the opportunity to acquire the two – thirds majority" it sought. He also pointed to views of the doctor expressed in a debate in the Assembly on the 7th June 1977 (supra) which, he submitted, indicated that he had already then made up his mind that the plaintiff was of unsound mind. He asked the Court to consider the actions of Dr Williams in the light of this evidence and return a finding of actual bias on the doctor's part. Mr Haigh also quite properly in my view, conceded that there was no evidence to inculpate Dr Matenga in any allegation of bias or other misconduct in relation to the plaintiff.

Not withstanding that the plaintiff now appears to confine his allegations of bias to the actions of Dr Williams, I feel that, in the interests of all parties, I should consider the allegations which formed the basis of the proceedings and the opening submissions of his counsel. I shall consider the specific events as referred to above. As to the arrangements to send the two doctors to Fiji, I accept the evidence of the Minister of Finance, Mr G.A. Henry as to the reasons for the action then taken, and I am satisfied that there was no scheme or conspiracy on the part of the Minister or any of his political colleagues of the nature as alleged by the plaintiff. Even if I were not completely satisfied with the evidence of that witness alone, the other evidence adduced strongly militates against any inference of such a Machiavellian design. Firstly, the selection of Dr Robati, the plaintiff’s parliamentary colleague and close friend, and Dr Matenga who, apart from being the only doctor dealing specifically with psychiatry in the Cook Islands, is a supporter of the plaintiff s political party, which fact would probably be known to the Minister in this politically aware country; secondly, the consultation with Dr T. Davis; thirdly, the conferring on Dr Matenga the sole responsibility to decide after assessing the plaintiff be either returned to Rarotonga or taken to Auckland for examination diagnosis and treatment by Dr Savage, are acts inconsistent with a sinister plot to "unseat" the plaintiff. The arrangements made including the administrative details settled by the Secretary of Health with Dr Williams were consistent with those made in late 1975 when the plaintiff went for treatment to Ward 10 in Auckland Hospital and I have no doubt that in considering and making the arrangements they did for his care on this occasion, all persons concerned therewith, Mr Henry, Dr Davis, Dr Williams as well as the two Doctors who travelled to Fiji, were motivated by the sole and commendable desire to help the plaintiff who was indeed in need of help.

The decision to take the plaintiff to Auckland from Fiji was made by Dr Matenga with the concurrence of Dr Robati and I am satisfied that it was a decision properly made. The evidence from the Fijian doctors justify a conclusion that at the stage he was seen by them in Suva, the plaintiff was suffering from mania. There is nothing in the evidence to suggest that the plaintiff resisted his removal to New Zealand. To the contrary, he appeared to be happy to go with the Cook Islands doctors.

In so far as the committals to St Giles' Hospital in Suva and Oakley Hospital in Auckland are concerned, it is not clear to what extent the plaintiff relied on these to support his allegation of bias. If it was intended that an inference could be drawn from the evidence that the committal steps were improperly motivated, then I am bound to say that there is not one shred of evidence to justify such an inference being drawn. I do not propose to consider them further except to point out that this Court is concerned with diagnoses as opposed to committal procedures. It is also mindful that if these procedures were to be challenged, the plaintiff has had the opportunity to take steps, particularly in New Zealand, to have the orders reviewed.

I turn now to the debate in the Legislative Assembly on the 7th June 1977. The plaintiff relies particularly on the comments of one of the speeches made by Dr Williams therein in which he asks that "the process of carrying out the provisions of the Electoral Act be carried out to its finality". The Doctor was asked about the statement in cross-examination on page 60 as follows:

"Q. Would it be fair to say at that stage knowing what you did about Mr Tangata, knowing where he was, you had already made your mind up he was of unsound mind.

A. I think it would be fair for anyone to reach the conclusion anyone who had been exposed to this case from beginning right to the time that he was committed it would be fair for anyone to reach that conclusion; yes.

Q. Having reached that conclusion, did you then take it upon yourself to ensure that the provisions of the Electoral Act was carried out and Mr Tangata's seat declared vacant.

A. As far as section 7 of the Electoral Act is concerned I considered it my responsibility as Minister of Health to make sure that that particular part of the law is administered. That if it was not administered, then I and my department have failed in its duty to administer the law of the Cook Islands. That is the attitude that I took and I still do, irrespective who the person is. If the law is made, one has to administer it. In particular the Legislative Assembly of the Cook Islands cannot and should not pass a resolution which may obstruct administration of law. Its the law."

Having considered the purpose of the debate I do not consider that the comments of Dr Williams who was speaking as Minister of Health when read as a whole could be held to display any particular bias against the plaintiff.

The motion before the House was to grant the plaintiff leave of absence since any member absent for fourteen consecutive days without the permission of the Assembly loses his seat. The Doctor was not opposed to leave of absence being granted, in fact he ultimately voted for it, but, he rightly, in my view, warned the Assembly against taking any action which would obstruct the operation of the law which the Assembly itself had made. I consider it would have been wrong for him as Minister of Health with the knowledge he had of the plaintiff’s position, to have withheld that knowledge from the Assembly and not warned it of the possibility of the plaintiff becoming disqualified as a Member thereof. Again, too, it cannot have escaped the notice of Dr Williams the motion for leave, it would have not been put. (I glean that from the remarks of one of the Honourable Members, the Honourable Mr Tangaroa recorded on page 292 of the Hansard recording the debate). If, then, leave of absence had not been granted it would have followed that, in view of the plaintiff s position, of which the Doctor had knowledge, his seat would have been vacated on the ground specified in section 7 (1) (a) of the Act (supra). I consider that the extracting of one small section of the Doctor's speech in this debate for the purpose of illustrating its tenor is quite wrong. In consequence I consider that Doctor Williams in the debate did not depart from the standard of fairness to the plaintiff which could reasonably be expected of him in his consideration of the matter before the House.

The steps leading up to the declaration by the second defendant of the vacancy of the plaintiff's seat in the Assembly were, in fact, initiated by the Secretary for Health, Dr Tau. The evidence establishes that upon receipt of a report from Dr Matenga, he wrote to the Clerk of the Legislative Assembly on the third June 1977 advising him of the plaintiff’s admission to hospital and stating (inter alia):

"I would suggest that the Legislative Service seek further information from Oakley Hospital, Auckland for a definite conclusion on the mental state of Mr P. Tangata. In conclusion knowing from the past history and the present state which necessitates admission to a mental institution in my honest opinion, Mr P. Tangata is no longer suitable to continue as a member of the House."

The Secretary took this step without consulting with his Minister Dr Williams. The Clerk Assistant of the Legislative Assembly replied to the Secretary's letter of the 13th June 1977 advising that it was not the responsibility of any office of the Legislative Assembly to obtain any information about the health of Members of the Assembly and stating that "the onus of the responsibility of certification (is) squarely on the medical they belong to, viz., The Health Department." The Clerk's attitude had earlier been conveyed verbally to Dr Williams who after seeking the advice of the Advocate-General passed it on to the Secretary who then on the 9th June 1977 sent the following cable to Dr Savage:

"Urgent from Secretary of Health Cook Islands stop I would appreciate information concerning Mr Pomani Tangata a Cook Islander who was admitted to your hospital accompanied by Drs Matenga and Dr Robati. Mr Tangata is a member of the Legislative Assembly representing the electorate of Atiu Island and his position as a member of the Assembly is now being questioned in relation to the Cook Islands Electoral Act. This law specified that no person shall be eligible to be a member if that person is of unsound mind and declared as such by two medical practitioners. It is my duty as presented by law to inform the Legislative Assembly on Mr Tangata's condition. Would you please advise urgently whether or not Mr Tangata has been committed to your hospital I would also appreciate copies of the committal order. Many thanks for your assistance Health"

This was replied to by Dr Savage on the 17th June 1977. This letter is referred to in detail above. Upon receipt of this letter the Secretary forwarded a copy thereof to the Clerk of the Legislative Assembly and then advised Dr Williams who discussed the same with him. Dr Williams as Minister of Health took the attitude, quite properly in my view, that since his Department was responsible to implement the law, steps should be taken to obtain certification of the plaintiff as being of unsound mind for presentation to the Speaker of the House. At pages 54 and 55 of the Rarotongan record he tells of the steps he took:

Q. Having as it were job responsibility clarified, what next step did you or Dr Tau take?

A. I called meeting in my office with Secretary of Health, Dr Tau to discuss the whole matter concerning Pomani and the responsibility of the Department of Health and in particular Secretary of Health concerning section 7 of the Electoral Act. I told them it was my view that this portion of the Electoral Act cannot be actioned by anyone except medical and health authority responsibility for administering that particular section of the Electoral Act.

Q. Did you seek advice at this time from Advocate-General as to the interpretation of section 7?

A. Yes.

Q. As a result of that advice, did you discuss with Dr Tau the question of the present position in New Zealand?

A. Yes

Q. Telegram, Exhibit "I" shown to witness ... To your knowledge, was it then that Dr Tau arranged to send that telegram to Dr Savage at Oakley Hospital?

A. Yes and this was sent on advice of Advocate-General.

Q. Did Dr Tau subsequently come to see you with a letter received in response to that telegram?

A. Yes he did.

Q. This is already produced,. Exhibit "G"...Is that the original received by the Department from Dr Savage?

A. Yes.

Q. Having seen that report from Dr Savage, what was the next step you took?

A. I held further meeting with the Secretary of Health and Dr Matenga and meeting also arranged for Dr Robati to be present at that meeting to discuss this reply and further actions that must be taken to satisfy the provisions of section 7 of other Electoral Act.

Q. Exhibit "M"... Now you had received advice from the Advocate-General as to the procedure to be followed; as a result, was a form of certificate prepared in your department?

A. Yes.

Q. Is that signed copy of the certificate of what was prepared?

A. Yes.

Q. Having prepared the certificate, was there discussion about which practitioners to be invited to give opinion involved in the certificate?

A. Yes, in fact the discussion was held at the meeting I refer to. There was only four medical practitioners that had any direct connection with the case of Pomani Tangata. These were doctors Matenga, Robati, Davis and myself and I felt that it would be right and proper that the two doctors who accompanied Pomani Tangata from Fiji to New Zealand to sign the certificate as required by the Electoral Act and we felt also at that meeting, that the letter received from Dr Savage confirming committal of Pomani Tangata to Oakley Hospital was from medical point of view, the final indication of unsoundness of mind. Dr Robati did not turn up at the meeting and Dr Matenga signed the certificate. The Secretary of Health was to go to the northern group and so was Dr Pupuke Robati so Mr Kauvai was sent to see Dr Robati to sign the certificate before his departure. I had informed the meeting at that time that there was a possibility he would not sign in which case I was prepared to sign in my capacity as medical practitioner. Mr Kauvai returned and informed me that Dr Robati did not want to sign the certificate. So I signed and this is the copy.

Q. Are you aware that in the course of these proceedings and in the affidavits filed by Mr Tangata he has suggested that your action in signing this certificate was motivated by political bias.

A. I have been informed, yes.

Q. I ask you, what comment you have as to signing, whether any political motivations?

A. My comment at the time was nonsense. Because there was no truth in the allegation at all."

It seems to me that it was a common sense and proper approach to have regard only to those medical practitioners who had knowledge of the plaintiff’s condition as a result of personal medical experience in dealing with him. An additional factor, of course, which was apparently overlooked by everyone concerned in the arrangements, was that the qualifications of the doctors required under the section further limited the field. On the score of necessity, to which I shall later refer, it was not unreasonable in the circumstances, for Dr Williams to certify. In considering whether his action in so doing establishes that he manifested a bias in relation to the plaintiff, that factor must be considered. Another important factor is that doctor displayed towards the plaintiff in the past. The evidence establishes that he had genuinely tried to assist him and had co - operated with his medical adviser Dr Davis in efforts to secure proper treatment for him during past lapses. I think the views expressed in his letter to the Speaker of the Legislative Assembly on the 3rd December 1975 is indicative of that attitude. The Speaker had, by letter, directed his attention as Minister of Health to the notice she had that the plaintiff was being assessed regarding the provisions of section 7(1)(i) of the Act. He replied as follows:

"My dear Madam Speaker,

Kia orana.

With regards your letter dated I December 1975 in respect of Mr Pomani Tangata, it is quite true that Mr Tangata has been referred to New Zealand for medical care.

In so far as his general condition and diagnosis is concerned, we have not as yet received any reports from New Zealand. You will understand that the circumstances surrounding Mr Tangata's " case" is complex and that hasty action may have far reaching undesirable effects.

Referral to New Zealand was done in an effort to arrive at a satisfactory solution and a definite diagnosis from experts in the field of psychological medicine. Our action must therefore be based on their reports.

I do appreciate your concern over the provisions of the Electoral Act and would like to assure you of our co-operation in this matter. I would like, however, to stress, that our prime objective is to restore Mr Tangata to normal health as soon as possible.

Kia orana,

(J. Williams)

Minister of Health and Education"

I can find nothing in the actions of Dr Williams to indicate that he was influenced by the knowledge of the matters to which Mr Haigh referred (supra) to act to the detriment of the plaintiff and on consideration of all matters I seem to be relevant on the question of bias, I can find nothing in the guidance to establish that Dr Williams in carrying out his duty, as Minister of Health, in the implementation of the provisions of section 7(1)(i) of the Electoral Act 1966 or, as a medical practitioner, in supplying the certificate he did as to the unsoundness of his mind manifested actual bias in relation to the plaintiff.

In the result, therefore, I have arrived at the firm conclusion, political or otherwise, manifested against the plaintiff by the Minister of Finance, Mr G. A. Henry, Dr Williams or any other person concerned with the unhappy incidents involving him from the time he was assisted in Fiji up to the time his seat in the Legislative Assembly was declared vacant by the second defendant.

The matter of bias however does not rest there. Halsbury (4th Edn.) Vol I para 67 at pp. 81, 82 states:

"Nemo judex in sua causa"

"67. Interest and likelihood of bias. It is a fundamental principle, that, in the absence of statutory authority or consensual agreement or the operation of necessity, no man can be a judge extends not only to courts and tribunals, but also to other bodies, including public authorities, determining questions affecting the civil rights of individuals.

At common law, a broad distinction is drawn, for the purpose of applying this principle, between situations where an adjudicator has a direct pecuniary or proprietary interest in a matter before him, and those where he has a different form of interest which may lead to an appearance or likelihood of bias on his part, disqualification being incurred more readily in the former class of situation."

And again para. 69 pp. 83 and 84:

"69. Likelihood of bias. In a wide range of other situations the impression may be received that an adjudicator is likely to be biased. A person ought not to participate or appear to participate in an appeal against his own decision, or act or appear to act as both prosecutor and judge, the general rule is that in such circumstances the decision will be set aside. Normally it will also be inappropriate for a member of a tribunal to act as witness. Likelihood of bias may also arise because an adjudicator has already indicated partisanship by expressing opinions antagonistic or favourable to the parties before him, or has made known his views about the merits of the very issue or issues of a similar nature in such a way as to suggest prejudgment because he is so actively associated with the institution or conduct of proceedings before him, either in his personal capacity or by virtue of his membership of an interested organisation, as to make himself in substance, both judge and party, or for other reasons. It is not enough to show that the person adjudicating holds strong views on the general subject matter in respect of which he is adjudicating or that he is a member of a trade union to which one of the parties belongs where the matter is not one in which a trade dispute is involved.

The fact that an administrator may incline towards deciding an issue before him one way rather than another, in the light of implementing a policy for which he is responsible, will not affect the validity of his decision, provided that he acts fairly and with a mind not closed to argument; and similar standards may be applied to other persons whose prior connection with the parties or the issues are liable to preclude them from acting with total detachment.

It is unnecessary to establish the presence of actual bias, although the courts are not precluded from entertaining such an allegation. It is enough to establish a real likelihood that in the circumstances of the case an adjudicator will be biased. Alternatively, it may be sufficient to establish that a reasonable person acquainted with the outward appearance of the situation would have reasonable grounds for suspecting bias. In some situations a more exacting test will be adopted, and the court may set aside a determination if justice has not been manifestly seen to be done; such a test has been applied in cases where a clerk to a tribunal has retired with the tribunal, and given the impression of participating in its decision."

In Metropolitan Properties Co. (F.G.C.) Ltd v Lannon (1969) 1 Q.B. 578 the decision of a rent assessment committee was quashed because it was found that, although there was no actual bias on the part of the Chairman and no want of good faith, there was a real likelihood of bias because he was connected with tenants of another property in the same group as the appellant landlords and had advised them on the fair rent thereof.

Lord Denning M.R. at p. 598 (line G3) to p. 599 (line F2) said:

"So far as bias is concerned, it was acknowledged that there was no actual bias on the part of Mr Lannon, and no want of good faith. But it was said that there was, albeit unconscious, a real likelihood of bias. This is a matter on which the law is not altogether clear; but I start with the oft-repeated saying of Lord Hewart C.J. in Reg v Sussex Justices. Ex parte McCarthy ‘It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. In Reg v Barnsley Licensing Justices. Ex parte Barnsley and District Licensing Victuallers Association, Devlin J. appears to have limited that principle considerably, but I would stand by it. It brings home this point, in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstance, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand: see Reg v Huggins; and Reg v Sunderland Justices, per Vaughan Williams L.J. Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough: Reg v Camborne Justices Ex Parte Pearce, and Reg v Nailsworth Licensing Justices, Ex parte Bird. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rested in confidence; and confidence is destroyed when right minded people go away thinking: 'The Judge was biased.’"

Edmund Davies L.J. in the same case was of the view that the test should be "reasonable suspicion" of bias rather than "real likelihood". At page 656 (lines B3 to D3):

"With profound respect to those who have propounded the 'real likelihood' test. I take the view that the requirement that justice must manifestly be done operates with undiminished force in cases where bias is alleged and that any development of the law which appears to emasculate that requirement should be strongly resisted. That the different tests, even when applied to the same facts, may lead to different results is illustrated by Reg v Barnsley Licensing Justices itself, as Devlin L.J. made clear in the passage I have quoted. But I cannot bring myself to hold that a decision may properly be allowed to stand even although there is reasonable suspicion of bias on the part of one or more members of the adjudicating body."

That test commended itself to Mahon J. in the case of Police v Pereira (1977) 1 N.Z.L.R 547. He adopted the judgment of Barwick C.J., Gibbs, Stephen and Mahon JJ. in the Australian case Re Watson, Ex p. Armstrong (1976) 50 A.L.J.S. 778; 9 A.L.R. 851 which reads as follows:

"The view that a judge should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he was not unprejudiced and impartial, and that if a judge does sit in those circumstances prohibition will lie, is not supported by the balance of authority as it now stands but is correct in principle." (ibid) 785; 564).

Mahon J. after considering further authorities, says on p. 557 (lines 22 to 38):

"Appearances are not everything, and it is of equal relevance to inquire whether under the cloak of legal form justice in fact was done, but the successful administration of justice depends upon public confidence in the judicial process, and the measure of that confidence is wholly reliant upon the outward form of judicial determination. On that ground I respectfully consider that the "reasonable suspicion", test of bias ought surely to prevail, particularly in preference to the alternative method of inquiring into the possibility of actual bias, a process involving a purely speculative estimate as to whether some outspoken influence may unlawfully have weighed the scales in the decision under review."

The judge was, of course, dealing with a judicial decision, and, with respect, I would agree with his conclusion as to the test to be applied in such a case. Should the same test be applied in the case of administrative decisions? Counsel for the defendants submits that a less stringent test should apply in such cases. I think not. In issue on the question of bias is fairness and I can see no reason why that standard should vary according to the function of the person to be judged. It is equally important that decisions, whether they be judicial or administrative, are made fairly and if there is reasonable cause to suspect that the maker could have been biased in his approach to his task, then it is proper for the court to review the same.

Were therefore, the circumstances in this case such as give the plaintiff or the public reasonable cause to suspect that there was bias manifested against the plaintiff notwithstanding the facts when fully investigated fail to establish actual bias? I think there were grounds for reasonable suspicion in the case of Dr Williams. He fairly admitted in answer to Mr Haigh (p.33) that it could appear to an outsider that his actions were motivated by political bias bearing in mind his political position. I have no doubt that he is correct. The Minister of Finance indicated that the Cook Islands was a politically conscious country. The public scrutinise closely the acts of politicians and probably give more consideration to them than in larger and more sophisticated countries such as New Zealand. I consider that the plaintiff and the public could reasonably suspect that the Doctor's later role in his dealing with the plaintiff in certifying him and in taking the view that he did as to the enforcement of the provisions of section (7)(1)(i) of the Electoral Act, were motivated by bias in view of his affiliation with the Government Political party which needed, for proposed legislation, a further seat in the Assembly and his comments during the debate in the Assembly on the 7th June 1977 when the motion for leave of absence for the plaintiff was considered, in that respect, therefore, I consider that bias in law has been established.

However the remedy of certiorari is a discretionary one and after carefully weighing the facts in this case, I have reached the conclusion that the ends of justice would not be served by my granting the writs the plaintiff seeks. In the recent New Zealand Court of Appeal case Stininato v The Auckland Boxing Association Inc. and Ors (unreported, delivered on 17th June 1977) Cooke J. at page 25 of his judgment says:

"Concern for the development of administrative law as an effective and realistic branch of justice must imply that the discretionary remedies should not be granted lightly. After all, progress is not synonymous with giving judgment for plaintiffs."

And again, on page 27:

"The requirements of fairness or natural justice vary with the facts. If authority still be needed for that truism, it is enough to cite the latest House of Lords case on the subject: Fairmount Investments Ltd v Secretary of State (1976) 2 All E.R. 805, 874, per Lord Russell of Killowan. Here I do not think the plaintiff could insist on being heard in person or even that such a hearing would have been at all likely to help him."

In the same case Richmond P. at pp. 5 and 6 of his judgment states:

"The case refers to three main questions:-

1. In the event of it being shown that the Council did in fact act "unfairly" would the Court have jurisdiction in the present proceedings to make a declaration that the decision of the Council to refuse a license was null and void.

2. If there is such jurisdiction then should the discretionary remedy of a declaration be granted in all the circumstances of the present case.

3....................................................................................................................

As I have said, I have had the advantage of reading the judgment of my brother Cooke. I find myself in complete agreement with him as regards questions 2 and 3. I also agree with his conclusion as to question 1, but I think it desirable to express my own reasons for so doing as the jurisdictional question is of importance in the evolving field of administrative law.

In Lower Hutt City Council v Bank (1974) 1 N.Z.L.R. 545 at 548-549 this Court indicated its acceptance of the view that in appropriate cases the requirement of "fairness" should be applied to the exercise of administrative discretions (as opposed to judicial or quasi-judicial determinations if the interests of justice make it apparent that the quality of fairness is required in the exercise of particular administrative functions."

(The underlining is mine)

The following matters, in my view, weigh strongly against an exercise of discretion in favour of the plaintiff:

1. Even if some doctor other than Dr Williams had been required to consider the certification of the plaintiff the result would have been the same. In Wislang v Medical Practitioners Disciplinary Committee and others (1974) 1 N.Z.L.R. 29 Speight J at p.42 (lines 14 to 19):

"That, of course, is not the end of the matter for certiorari, even in cases of breaches of natural justice, is a disciplinary remedy. Matters which appear to require consideration are:

(a) The nature of the irregularity with particular reference to whether any different result would have been arrived at."

And again on the same page (lines 43 to 45):

"So that in this case, it is failure to consider defences which, in my view, would have to be unsuccessful. This alone, of course, would not be sufficient to refuse to exercise the discretion for all defences, even those without merit, should be considered, but the fact that it is not likely to have produced a different result is not irrelevant."

I am mindful of the remarks of Megarry J, in John v Rees (1970) Ch. 345 at p. 402:

"It may be that there are some who would deny the importance which the courts attach to the observance of the rules of natural justice, 'when something is obvious,' they may say, 'why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.' Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law will know, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of final and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events."

But on the relevant date of the certificate, the 24^th June 1977, the plaintiff was admitted patient in New Zealand under the provisions of the Mental Health Act 1959 and had not reached the stage in his treatment there he would be granted leave. The medical superintendent, a specialist in the field of psychiatry has said he was of "unsound mind" at that time and I am convinced that no Cook Islands doctor would have arrived at a different conclusion.

2. Being satisfied, as I am, that the predominant purpose of section 7(1) of the Electoral Act 1966 is to ensure that the electors of the Cook Islands are to be represented in their Legislature by properly qualified members able to safeguard and promote their interests; that upon the happening of any of the contingencies set out in the section, the seat in the Assembly of the member concerned must be vacated, forthwith, and that on the making of the declaration rendering vacant the plaintiff’s seat, he in fact was of unsound mind, I consider in the circumstances the interests of the public to be of paramount consideration as opposed to the interests of the plaintiff and that it would be contrary to the aim of the legislation to allow the plaintiff to remain in the Assembly. I have taken into consideration that he loses his means of livelihood as a member of the Assembly, but, his tenure of office was dependent on the will of the electors who have the right every four years to reject him if they wish. His term was due to expire in December next year. He is not precluded from offering himself for re-election at that time.

3. The plaintiff must be considered to have accepted his committal to the psychiatric hospital and the consequence of it. His parents and others who were interested in him, visited him regularly during his stay in the hospital. He never challenged in New Zealand his committal by taking steps for his discharge under section 73(3) of the Mental Health Act 1969 (NZ). He was not discharged at the time his seat in that Assembly was vacated nor was he in September when this case was just heard. In fact it is probably that he is still a committed patient under the Act since, until discharged under section 75 thereof, he is liable to detention in the institution under section 73(12). His release on "long leave" is not a discharge under the Act.

4. While it was inevitable that certification by Dr Williams of the plaintiff would give rise to a reasonable suspicion of bias, I consider the common law doctrine of necessity exercises here. Halsbury (4^th Edn.) Vol.I para. 73 pages 89 states.

"73. Exception from disqualification. If all members of the only tribunal competent to determine a matter are subject to disqualification, they may be authorised and obliged to hear and determine that matter by virtue of the operation of the common law doctrine of necessity."

I am satisfied that at the time of certification of the plaintiff the only medical practitioners who would properly be called upon to give the certificate would have been Dr Matenga, Dr Robati, Dr Davis and Dr. Williams. They were the doctors who had been concerned with the plaintiff over the period of his mental illnesses and to seek an opinion from any other Cook Islands practitioner could surely be open to question as indeed would have been the case if Dr Robati joined with Dr Matenga in making the certification, both doctors possessing no qualifications other than these obtained as products of the Central Medical School at Suva, Fiji. When Dr Matenga certified, in my opinion, compliance with section 7(1)(i) required the certification of a practitioner possessing the qualifications laid down for "medical officers" under the repealed section 23 of the Cook Islands Amendment Act 1957. I have dealt with this aspect above. That being so only Dr Williams or Dr Davis could qualify as competent to certify. Dr Davis, apart from being the leader of the plaintiff’s political party, was also his family doctor. While he had been helpful in assisting in the obtaining of treatment for the plaintiff, his position was such that I feel that it could properly have been considered that he would not wish to undertake the task of deciding the question of certification. A blind eye could not in justice be turned to the enforcement of the law if it were found necessary, and the necessity for enforcement logically involved Dr Williams in the role of medical practitioner for the purpose of carrying out the task of certification.

The writs for which the plaintiff prays are accordingly refused. The interim injunction made on the 5th day of September 1977 is hereby discharged and leave is hereby granted to the Third Defendant to proceed with the taking of the poll for the parliamentary seat for the constituency of the island of Atiu in the Legislative Assembly of the Cook Islands.

As to costs, I reserve the rights of the parties to be heard thereon. Submissions may be made in writing if desired.

SIR G. DONNE
CHIEF JUSTICE

Solicitors for the Plaintiff: Messrs Haigh, Charters & Company, Auckland.
Solicitor for the Defendant: The Advocate-General, Rarotonga.