Nedev v Dental Council [2003] WSSC 43 (26 February 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

CHRIS NEDEV
of Motootua, Dentist.
Applicant

AND

DENTAL COUNCIL
a body constituted under the Dental Practitioners Act 1975.
Respondent

Counsel: R Drake for applicant
D Clarke and J Stowers for respondent

Hearing: 13 February 2003
Judgment: 26 February 2003

JUDGMENT OF SAPOLU CJ

The respondent in the present proceedings is the Dental Council established under the Dental Practitioners Act 1975. The applicant is a national of Bulgaria and a dentist by profession. He came to Samoa with his wife and daughter on 27 July 1998. Upon hearing that there was a need for qualified dentists in Samoa, he applied to the Public Service Commission (PSC) for a position as a dentist in the Ministry of Health. On 11 October 1998 the PSC employed him as a dental officer at the Tupua Tamasese Meaole Hospital (the National Hospital) at Motootua. After six months, the PSC gave him a two year contract of employment executed on 7 May 2001 but effective from 23 April 1999. He was designated consultant specialist and head of the endodentic unit in the dental clinic of the National Hospital. All went well until October/November 2000 when a woman patient published a letter in the Samoa Observer newspaper making allegations against the applicant of poor treatment and improper behaviour. Those allegations gave rise to disciplinary proceedings by the PSC and the respondent against the applicant. Before I refer to the chronology of events related to those disciplinary proceedings, I will refer first to the motion by the applicant.

By motion dated 19 July 2002 as amended by a further motion dated 17 January 2003, the applicant asks the Court for orders (a) to stay all proceedings initiated by the respondent against the applicant for alleged professional misconduct and disgraceful professional conduct, (b) to stay any new proceedings to replace the existing charges, (c) to quash as invalid the respondent’s decision to deregister the applicant as notified in its letter dated 25 January 2001, (d) to order the respondent to restore the name of the applicant to the register of dental practitioners, and (e) for costs. The grounds pleaded in support of the motion are (a) the right of the applicant to a fair and public hearing within a reasonable time by an independent and impartial tribunal as provided by Article 9 of the Constitution has been breached by the respondent, (b) the respondent has predetermined its findings on the charges against the applicant, (c) the applicant has been unlawfully deregistered, and (d) other grounds appearing by the applicant’s affidavit. As it turned out at the trial, the main ground of complaints is delay.

Following the allegations against the applicant made in the Samoa Observer newspaper, the Director Dental Health Services, who is also a member of the respondent council, advised the applicant by letter dated 27 November 2000 of the complaint against him and requested his response by 29 November. In the applicant’s response dated 28 November 2000, he denies the allegations and gives an explanation of the treatment he gave the woman patient concerned. Thereafter disciplinary actions were taken by the PSC and by the respondent against the applicant. The present proceedings are not concerned with the disciplinary actions by the PSC, they are only concerned with the disciplinary actions taken by the respondent against the applicant. However, I would need to refer to the disciplinary actions taken by the PSC in order to give a full picture of what occurred in this case.

Following the applicant’s response of 29 November 2000 to the Director Dental Health Services, he was by letter dated 22 December 2000 from the Director General of Health, who is also the chairman of the respondent council, advised of the decision made by the PSC on 12 December 2000 to approve his immediate suspension and of the four charges that have been laid against him under the Public Service Act 1977. All four charges related to the complaint that was published in the Samoa Observer newspaper; three of them alleged negligent, inefficient and incompetent performance of duties by the applicant and one charge alleged professional misconduct. The applicant denied all four charges in his reply to the PSC.

Events then took a rather unusual turn. By letter dated 25 January 2001, the respondent by its secretary informed the applicant that the respondent has received and deliberated on thirteen different complaints against the applicant, one of which is the complaint by the woman patient already referred to, and that the respondent has found the allegations of professional incompetence, professional negligence, gross professional negligence, professional misconduct, gross professional misconduct, and disgraceful conduct in a professional respect to have been established against the applicant. The respondent then said in its letter that in terms of s.23 of the Dental Practitioners Act 1975 the applicant was guilty of disgraceful conduct in a professional respect and of professional misconduct as a dental practitioner and his name is removed from the register of dental practitioners and the register of persons appointed by the PSC to the staff of any hospital in Samoa. In his written response dated 19 February 2001, the applicant explained his position and denied all the findings that the respondent had made against him and requested his name to be restored to the register of dental practitioners.

It must be pointed out that the actions taken by the respondent as conveyed in its letter of 25 January 2001 to the applicant were in breach of the common law principles of natural justice and of the provisions of s.23 of the Act. It is one of the fundamental principles of natural justice that no man is to be judged or condemned without first being given the opportunity to be heard in his defence. That principle can be traced as far back as the events in the Garden of Eden when God before he condemned Adam and Eve first gave them the opportunity to be heard by asking each one of them what he/she had done. Condemnation only followed after Adam and Eve had given their respective answers to that question. That fundamental principle of natural justice is reflected in s.23 of the Act. Under s.23(1) the respondent is given the discretionary power to deregister or fine a dental practitioner it has found guilty of disgraceful conduct in a professional respect or of professional misconduct as a dental practitioner. But before that power may be exercised, s.23(3) expressly requires that the respondent must first of all serve notice of the allegations on the accused dental practitioner.

The required notice must specify the allegations against the accused practitioner in sufficient detail to enable him to adequately prepare his defence; it must also specify a reasonable time and place where the accused practitioner may appear before the respondent to answer to the allegations made against him; and it must further inform the accused practitioner that he may appear personally or with a lawyer or other representative and that he may call witnesses, cross-examine witnesses and may make submissions on his behalf. It appears clear that what s.23(3) contemplates is that a hearing should be held before the respondent may exercise the discretionary power given to it under s.23(1). This requirement of a hearing is then explicitly spelled out in s.23(4). It is obvious as contended by counsel for the applicant and conceded by counsel for the respondent, that the respondent did not comply with the requirements of s.23(3) and (4) when it made its decision to deregister the applicant as conveyed in its letter of 25 January 2001 to the applicant. If the matter had ended there, I would have had no hesitation in granting the order sought on behalf of the applicant to quash the findings of guilt made by the respondent and its consequential decision to deregister the applicant as a dental practitioner, as counsel for the respondent repeatedly assured the Court. However, this matter did not end there. I also indicated at the hearing of this matter that I will accept the assurance from counsel for the respondent that despite what was conveyed by the respondent in its letter of 25 January 2001, the applicant was never deregistered. It follows that it is unnecessary to make an order for the name of the applicant to be restored to the register of dental practitioners because his name is still on the register as counsel for the respondent assured the Court.

By memorandum dated 23 February 2001, which was copied to the applicant, the PSC informed the Director General of Health that after considering the report of the select committee that was given the task of investigating the allegations against the applicant, the PSC had found the charge of negligent and incompetent performance of duties proved but not the charge of improper conduct. The PSC then approved reinstatement of the applicant and payment of his salary during the period of suspension but issued a stern warning that future occurrence of any offence by the applicant would result in immediate dismissal. The charges which the PSC had to deal with were the charges conveyed to the applicant by the Director General of Health in his letter of 22 December 2000 and related only to the complaint that was published in the Samoa Observer newspaper in October/November 2000.

Nothing further seemed to have happened after the memorandum of 23 February 2001 from the PSC until the letter dated 23 April 2001 from the respondent’s secretary advising the applicant that the respondent has deliberated on his written response of 19 February 2001 to the allegations contained in the respondent’s letter of 25 January 2001 and has decided to charge the applicant with thirteen charge of professional misconduct and one charge of disgraceful conduct. Even though the letter from the respondent’s secretary is not an entirely accurate description of the contents of the respondent’s letter of 25 January 2001, it does show that the respondent had backtracked from its previous findings of guilt against the applicant and had not carried out its decision to deregister the applicant as a dental practitioner. The applicant was also required in the same letter from the respondent’s secretary to appear before the respondent on 10 May 2001 at 9.00am at the conference room of the Health Department either personally or with a lawyer or representative to answer to the charges against him. It would appear that the respondent was here following the procedure set out in s.23(3) and (4) of the Act. Counsel for the respondent then submitted that the respondent, by this time following the requirements of s.23(3) and (4), has cured any previous non-compliance. Counsel for the applicant on the other hand told the Court that the “fresh charges” preferred against the applicant were the same as the allegations on which the respondent had found the applicant guilty and decided to deregister him as per its letter of 25 January 2001.

Now the hearing that was set down for 10 May 2001 was unilaterally changed by the respondent. By letter dated “1 April 2001” the respondent’s secretary advised the applicant that the hearing scheduled for 10 May 2001 has been brought forward to 7 May due to unforeseen circumstances which were not clarified. I am satisfied that the date “1 April 2001” of that letter is erroneous. The reason is that it was by letter dated 23 April 2001 that the respondent’s secretary advised the applicant that the hearing of the charges against him would be held on 10 May. That hearing date could not have been rescheduled to 7 May by a letter that was prepared on 1 April 2001 which was prior to 23 April 2001. The correct date of the letter should probably have been ‘”1 May 2001”’ instead of “1 April 2001”. The legal representative who was to appear with the applicant at the hearing scheduled for 10 May was not available for 7 May. The respondent’s secretary then further advised the applicant by letter of 3 May 2001 that the hearing has been postponed to 25 May. However, by a handwritten note dated 24 May 2001 the respondent’s secretary further advised that the hearing scheduled for 25 May has been further postponed until further notice due to the late arrival of the Director General of Health, the chairman of the respondent, from an overseas meeting.

In my judgment the applicant was not responsible for any of the postponements of the hearings scheduled to take place in May 2001. It is the respondent that was responsible. I do not accept that the applicant was responsible for the hearing rescheduled unilaterally by the respondent at short notice to 7 May not proceeding. As it turned out, the applicant’s representative who was to appear with him on 10 May had other commitments on 7 May and was therefore not available on that day.

At this point in the chronology of events, it must be recalled that the applicant’s two year contract of employment with the PSC which became effective from 23 April 1999 was due to expire on 22 April 2001 and the applicant in his affidavit says that he applied to the PSC for a renewal of his contract. His application was accompanied by a number of favourable testimonials from other patients he had treated. However, by memorandum dated 10 May 2001, the PSC advised the Director General of Health that it has considered the memorandum dated 4 May 2001 together with his recommendations and has decided to terminate the applicant’s services upon completion of his contract of employment. No copy of the said memorandum of 4 May 2001 or the recommendations by the Director General of Health was produced. It is thus clear that at least from 10 May 2001 the applicant was without employment. One cannot avoid the feeling that the complaints with which the applicant had been accused and charged by the respondent had a substantial bearing on the decision by the PSC not to renew the applicant’s contract of employment. Yet by that time those accusations and charges had still not been heard and determined by the respondent through no fault of the applicant.

Events about this period of time, as they appear from the applicants affidavit, also show that the applicant had applied to the Medcen Hospital which was willing to employ him but could not do so as he had been deregistered and had no practicing license as a dental practitioner. In March/April 2001, the applicant says he had also applied to the board of the dental clinic in American Samoa for a job and that body was happy to employ him. However, when he later followed up on his application he was advised by the director of the dental clinic in American Samoa that the (the director) had been advised by a senior member of the respondent that the applicant had been deregistered and had no licence to practise dentistry in Samoa. In consequence, the applicant was not employed by the American Samoa dental authorities. The opportunity was given to counsel for the respondent to obtain an affidavit from the said senior member of the respondent but no such affidavit has been given to the Court. Delay is the major issue in these proceedings and I do not want to further delay delivery of this judgment. As this judgment was about to be delivered counsel for the respondent applied to the Court for a further adjournment to file further affidavits on this part of the case. The application was too late and was rejected.

Now after the hearing scheduled for 25th May 2001 was postponed by the respondent until further notice, nothing further happened until new counsel hired by the applicant sent a letter dated 24 July 2001 to the respondent requesting that its earlier decision which deregistered the applicant should be set aside for non-compliance with s.23 of the Act and for the name of the applicant to be restored to the register of dental practitioners. That was followed by a letter dated 1 August 2001 from the Attorney-General which expressed the opinion that that breach of s23 had been cured by the respondent’s letter of 23 April 2001 providing “fresh charges” and giving the applicant the opportunity to be heard in his defence. Accompanying that letter from the Attorney-General was a further notice from the respondent setting a new date for hearing the charges against the applicant as 24 August 2001. Then by letter dated 21 August 2001, counsel for the applicant advised the Attorney-General that he would still be involved in an election petition hearing by 24 August and requested a further postponement of the hearing to another date. Again nothing further happened until counsel for both parties met in Court in December when the question of a new hearing date was discussed. That discussion was followed by a letter dated 21 December 2001 from then counsel for the applicant to the Attorney-General in which the date 10 January 2002 was advised to be a new suitable date of hearing. The Attorney-General responded by letter dated 7 January 2002 pointing out she was currently seeking to interview all relevant witnesses and will provide counsel for the applicant with statements by 9 January at the latest. It was also pointed out that unless otherwise advised the hearing will be convened at the Health Department conference room at 10.00am on 10 January 2001.

After her letter of 7 January 2002, the Attorney-General sent another letter dated 9 January 2002 to then counsel for the applicant saying that she agreed to the hearing scheduled for 10 January 2002 being further postponed. The terms of that letter clearly suggest that the respondent was not in a position to proceed with the hearing on 10 January 2002. The Attorney-General states in that letter that upon interviewing potential witnesses it became clear that (a) the original thirteen complaints must be withdrawn and new charges filed which are more comprehensive, (b) some of the complaints will not be pursued at all, (c) some new complaints will be filed relating to the treatment of patients and inappropriate doctor/patient behaviour, and (d) some of the complainant’s are overseas. The letter then goes on to say that new charges and copies of statements will be provided within the next few weeks so that the applicant and his counsel may adequately prepare for the hearing. This letter clearly suggests that some of the charges on which the applicant was found guilty as previously conveyed in the respondent’s letter of 25 January 2001 and on which the applicant was subsequently recharged as conveyed in the letter of 23 April 2001, were incomplete and some of those charges should not have been laid at all. In fact the Attorney-General’s letter of 9 January 2002 expressly states that all the original thirteen charges must be withdrawn. This prompted present counsel for the applicant to comment whether this means the original thirteen charges on which the applicant had been found guilty and deregistered but subsequently recharged should not have been laid at all in the first place. If that is so, then the applicant on that basis had been wrongly convicted and penalised, and then subsequently wrongly recharged.

There was disagreement between counsel whether in terms of what is said in the Attorney-General’s letter of 9 January 2002 the original thirteen charges had been withdrawn. Counsel for the applicant submitted that in terms of that letter those charges must have been withdrawn so that there are no current charges against the applicant. Counsel for the applicant also told the Court that up to now no new charges or witnesses statements have been served on the applicant. In my judgment, the terms of the letter of 9 January 2002 are open to the interpretation contended for by present counsel for the applicant. However, counsel for the respondent told the Court that the original thirteen charges have not been withdrawn. He said the respondent is still carrying out investigations in Bulgaria and the respondent will lay fresh charges in seven days after the Court delivers its judgment in this matter. With respect to leading counsel for the respondent who at this early stage of his career has demonstrated ability in this case, this is plainly an unsatisfactory situation and the applicant has every right to complain. The letter of 9 January 2002 is clear, new charges will be provided within the next few weeks. That period of time has long gone past. Up to now no such charges have been provided and the applicant does not know where he stands in relation to this matter. No sound justification or satisfactory explanation was given for the respondent’s lawyers having to wait for the Court’s judgment in this matter before laying new charges. I will come back to the letter of 9 January 2002 in the course of this judgment.

On 22 August 2002, the applicant filed Court proceedings by way of motion seeking a stay of the proceedings that were still current before the respondent council, a stay of any new proceedings to replace the then current proceedings, and other orders which the Court, as I have already indicated, need not deal with now. An affidavit sworn on 28 August 2002 by the chairman of the respondent was then filed on behalf of the respondent in response to the motion by the applicant. Paragraph 18 of that affidavit states that at present the respondent through its counsel is still investigating this matter against the applicant concerning allegations of misconduct of a professional nature and also of a sexual nature. Does this mean that when the respondent found the applicant guilty of certain complaints as per its letter of 25 January 2001 and then recharge the applicant of the same complaints as per its letter of 23 April 2001 investigations into those complaints were then incomplete. Is it not normal procedure that a charge is based on information revealed from an investigation or part of an investigation that has been completed. No explanation was given as to why the applicant was charged in January 2001 and then recharged in April 2001 when by August 2002 investigations were still incomplete.

In paragraph 19 of the same affidavit by the chairman of the respondent it is there stated that the investigation into the applicant’s complete background and history in his country of origin Bulgaria and locally is still continuing and the respondent through its counsel is currently awaiting replies to its queries overseas and locally. As I understood counsel for the respondent at the hearing of this matter, investigations or enquiries by the respondent at Bulgaria are still continuing. I must point out that the complaints that are the subject of the original thirteen charges which are still current against the applicant were all made by locals as shown in the written response dated 19 February 2001 by the applicant to the letter of 25 January 2001 from the respondent. Some of those complainants, whose names are known to the Court, reside in the Apia area. But no satisfactory explanation was given as to the reasons for taking all this time to complete investigations into the complaints made by locals. It is said for the respondent that some of the complainants went overseas but it is not clear which ones and how long they went overseas for. One would have thought by looking at the various thirteen “cases” listed in the respondent’s letter of 25 January 2001 that the respondent must have obtained information from all the locals whose complaints form the basis of those thirteen “cases” before the letter of 25 January 2001 which mentions those thirteen “cases” was prepared then sent to the applicant. None of those complaints relates to any incident that occurred in Bulgaria. The respondent could have proceeded with the charges it had served on the applicant, if indeed it had the necessary evidence to sustain those charges, without having to wait for the outcome of its inquiries in Bulgaria.

In any event, the affidavit of 22 August 2002 by the chairman of the respondent annexes copies of reports from Bulgaria on the applicant which should have assisted the respondent in expediting its enquiries in Bulgaria. By a supplementary affidavit sworn on 16 December 2002 the applicant denies the adverse information contained in those reports from Bulgaria. I can see here further possible delay in this matter if the respondent is going to charge and try the applicant on events alleged to have occurred in Bulgaria. If the applicant, as I would expect, denies those allegations, as he has denied the allegations in the reports from Bulgaria already provided by the respondent’s chairman in his affidavit of 22 August 2002, it would mean the respondent may need to bring over witnesses from Bulgaria otherwise the allegations will be based on hearsay which may not only affect the admissibility but the weight of the evidence if it is nonetheless held to be admissible. That will inevitably lead to further delay. Besides that, possible questions of conflict of laws or private international law, which may be quite complex, may arise and have to be considered, researched, and argued by counsel if the applicant is to be tried in Samoa before the respondent council on events alleged to have occurred in Bulgaria. Inevitably that will also lead to further possible delay in the proceedings before the respondent council as it is principally made up of non-lawyers and any question of conflict of laws or private international that may arise will necessarily have to be referred to the Court for a ruling before the respondent may proceed with a hearing. Necessarily, that will also hold up and further delay the hearing of the allegations which originated locally as the respondent clearly intends to proceed with all allegations, local and Bulgarian, at the same time. But it is now more than two years since the applicant was first confronted with the complaints and allegations contained in the letter dated 27 November 2000 from the Director Dental Health Services and the letter dated 25 January 2001 from the respondent’s secretary. With respect, this is plainly an unsatisfactory situation.

Prejudice

The applicant says this whole matter has caused him great mental anxiety and distress. That is understandable and a medical report is not necessary to confirm it. The allegations contained in the charges are quite serious and relate to the applicant’s integrity conduct and competence as a professional man. They have been hanging over the applicant’s head for more than two years since the applicant was first confronted with the allegations on 25 January 2001 and subsequently charged with the same allegations on 23 April 2001. However, it has been uncertain since 9 January 2002, more than a year ago, which charges are to be withdrawn by the respondent and which charges will the respondent proceed with. It has also been uncertain since that time what new charges not related to the original charges will be preferred by the respondent. All that must be quite unsettling for the applicant. I accept that all this has had an adverse psychological effect on the applicant.

The evidence also shows that since early May 2001 the applicant has been without employment as a result of the allegations made against him. It is a clear inference to be drawn from the evidence that these allegations influenced the PSC not to renew the applicant’s contract of employment. In late February 2001 the PSC determined the charges against the applicant which arose from the complaint that was published in Samoa Observer newspaper and decided to reinstate the applicant to his position but with a stern warning. In early May, less than three months later, the PSC had decided to terminate the applicant’s service by not renewing his contract. Something must have happened between late February and early May which led to the change of attitude on the part of the PSC towards the applicant. In my view it is the accusations against the applicant contained in the letter of 25 January 2001 and the letter of 23 April 2001 which must have been brought to the knowledge of the PSC. The applications made by the applicant for employment at the Medcen Hospital and by the board of dental clinic in American Samoa in March/April 2001 were also unsuccessful because of this matter. Counsel for the applicant in her submissions also told the Court that the respondent also refuses to issue the applicant with a practicing certificate. This was not challenged at the hearing of this matter by counsel for the respondent. Thus counsel for the applicant submitted that this whole unresolved matter has also affected the applicant and his family’s livelihood as the applicant has not been able to practise his profession since May 2001.

In my judgment all that which has been said has resulted in prejudice to the applicant.

Delay

In my view the delay in finalising any charges against the applicant and proceeding to a hearing has been unreasonable and it is the respondent who is primarily responsible for that delay. In the first place the applicant was not responsible for the time unnecessarily spent when the respondent wrongly found him guilty on 25 January 2001 of the charges based on complaints levelled against him. The respondent then did not rectify its mistake until 23 April 2001 when charges were laid against the applicant in accordance with the requirements of s.23(3) of the Dental Practitioners Act 1975 and the hearing of those charges set down for 10 May 2001. That hearing did not proceed because of the respondent and no satisfactory explanation was given by the respondent except to say it was due to “unforeseen circumstances”. The rescheduled hearing to 7 May did not proceed due to the short notice from the respondent. The new hearing set down for 25 May did not proceed due to the late arrival of the respondent’s chairman from an overseas meeting. The hearing scheduled for 24 August did not proceed as then counsel for the applicant was involved in an election petition hearing before the Court. This is the only postponement of the hearing of the charges which can be attributed to the applicant but a reasonable excuse was given as in the election petition hearing in which the applicant’s then counsel was involved had to take priority. The new hearing that was set in December 2001 for 10 January 2002 was further postponed as the respondent’s counsel advised that all original thirteen charges must be withdrawn and new charges will be laid and served within the next few weeks. The respondent’s counsel also advised that some of the original complaints will not be pursued and new complaints will be laid. Nothing has happened ever since. At the hearing of the present proceedings counsel for the respondent advised the Court that the new charges will be filed in seven days after the Court has delivered its judgment in present proceedings. That will necessarily involve further delay as the applicant will have to respond to those new charges, another hearing date set, and a hearing has to be held. If charges are also laid in relation to events alleged to have occurred in Bulgaria that may also lead to further possible delay if witnesses need to be brought over form Bulgaria and possible questions of conflict of laws or private international law have to be sorted out first in Court. The applicant commenced his present proceedings on 22 August 2002 seeking a stay of proceedings before the respondent but the new charges to be laid by the respondent have still not been laid. I do not accept the excuse given for the respondent that its investigations were incomplete. The respondent has been aware of the complaints which form the basis of its original thirteen charges as far back as January 2001. There is also clear evidence that the respondent became aware of the complaint that was published in the Samoa Observer newspaper as far back as November 2000. I do not see a reasonable cause for the delay when all the complainants reside in Samoa and should have been readily accessible if the respondent wanted to interview them for statements. I would also presume that the respondent must have already received complaints and information from those complainants prior to 25 January 2001 otherwise there would have been no factual basis for the allegations contained in the respondent’s letter of that date to the applicant. The respondent must have had information prior to 25 January 2001 on which to base those allegations otherwise the allegations would not have been made on that date. Yet up to now the respondent has still not finalised its charges against the applicant. And counsel for the respondent told the Court at the hearing of this matter that final charges will be made seven days after the judgment of the Court is delivered which is plainly unsatisfactory.

In my judgment the overall delay in this matter is unreasonable and has resulted in prejudice to the applicant.

Right to a fair trial

Article 9(1) and (2) of the Constitution provide as follows:

“(1) In the determination of the civil rights and obligations or of any charge against him for any offence, every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law. Judgment shall be pronounced in public, but the public and representatives of news service may be excluded from all or part of the trial in the interests of morals, public order or national security, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”.

(2) Nothing in clause (1) shall invalidate any law by reason only that it “confers upon a tribunal, Minister or other authority power to determine questions arising in the administration of any law that affect or may affect the civil rights of any person”.

In Le Mamea Ata Matamua v Medical Council (2000) (Misc 87/2000: unreported judgment of the Court of Appeal delivered on 18 August 2000 by Lord Cooke of Thorndon) the Court of Appeal decided that the provisions of Article 9(1) of the Constitution apply to professional disciplinary proceedings. That was a case which was concerned with disciplinary proceedings against a doctor before the medical council under the Medical Practitioners Act 1975. At pp.7-8 of the judgment in Matatumua, in a passage cited by both counsel, Lord Cooke states:

“In the instant case there remains nevertheless the question of delay. The doctor is entitled to a hearing satisfying Article 9(1) within a reasonable time. In our view, if the history of a case is such that a hearing before a Supreme Court Judge cannot take place within a reasonable time after the complaint has been first notified to the practitioner, his rights under the Article will be denied. The reasonableness or otherwise of the time is a question of fact dependant on the particular circumstances. On the face of it, a delay of the length that has already occurred here, which would inevitably be significantly increased by an intermediate hearing before the Medical Council is not reasonable. The issue reduces to whether in this case the overall delay is acceptable.”

It is clear from the passage cited that if the history of the case is such that a hearing before a Supreme Court Judge cannot take place within a reasonable time after the complaint has been first notified to the accused practitioner, there is a denial of the right to a fair trial provided by Article 9(1). In the present case, the complaint that was published in the Samoa Observer newspaper in October/November 2000 was first notified to the applicant by the Director Dental Health Services by letter dated 27 November 2000. The applicant’s response is dated 28 November 2000. Then followed the letter of 25 January 2001 which was the first time the applicant was confronted by the respondent with the other complaints which made up the original thirteen charges with which the respondent charged the applicant on 23 April 2001. From 27 November 2000 and 25 January 2001 to the hearing of the present proceedings is a period of approximately two years and three months and two years and one month respectively. The respondent has still not finalised its charges against the applicant or ready to proceed with a hearing. In my judgment, that delay, for which the respondent has been primarily and substantially responsible, is in the circumstances of this case unreasonable and is in breach of the requirement in Article 9(1) that a hearing should be held within a reasonable time.

Counsel for the respondent submitted that by comparison the delay in the present case is less than the delay in Matatumua which as the Court of Appeal pointed out in its judgment was about two years and four months. He said the period of delay in the present case started from 23 April 2001 when the applicant was charged. With respect, I disagree. As I understand Matatumua the delay starts from the time the complaints were first notified to the applicant; that appears from the passage I have cited from that case and its facts. However, I must point out that the question of delay and whether it is unreasonable is not to be determined by merely comparing the respective lengths of the delays between cases. The length of the delay is undeniably significant. But it is only one of the factors to be considered. Other factors like (a) waiver of time periods, (b) the reasons for the delay, and (c) any prejudice to the accused practitioner are also to be considered: Martin v Tauranga District Court [1995] 2 NZLR 419 per Cooke P at p 424; per Casey J at p 428; per McKay J at p 433. Counsel for the respondent, as I should point out, also referred to the same factors in his oral and written submissions while submitting that the delay in the present case is less than the delay in Matatumua.

In deference to the submissions by counsel for the respondent to which he seems to have given much consideration while preparing for this case, I will explain why I do not give any real weight or significance to the difference in the delay periods between the present case and Matatumua. The relevant facts of Matatumua as they appear from the judgment of the Court of Appeal show that in March 1998 complaints were made to the Minister of Health and the Director General of Health by a patient concerning the appellant, a medical practitioner. On 20 April 1998 the Director General of Health who is also the chairman of the medical council wrote to the appellant requesting a full report regarding the complaints. By letter dated 28 April 1998 the appellant supplied a full report which in substance denied any unprofessional conduct. After an investigation into the complaints, the medical council by notice dated 3 November 1999 notified the appellant pursuant to s23(2) of the Medical Practitioners Act 1975 of the allegations arising from the complaints. No hearing was held by medical council on those allegations. On 15 November 1999 the appellant’s solicitors filed a notice of motion in this Court for constitutional relief alleging a breach of Article 9(1) of the Constitution. After hearing the notice of motion on 3 December 1999, the Court delivered its judgment on 24 January 2000. The appellant appealed against the judgment of this Court and on 15 August 2000 the appeal was heard and determined by the Court of Appeal which issued a permanent stay of all proceedings by the medical council against the appellant because of the delay involved. From 20 April 1998 when the Director General Health first notified the appellant of the complaints against him to 3 December 1999 when this Court heard the appellant’s notice of motion was a period of about one year and eight months. The delay would be about one year and nine months if the time this Court delivered its judgment on 24 January 2000 is to be taken into account. So when the Court of Appeal refers to the delay of about two years and four months in Matatumua it could not have been the delay between 20 April 1998 and the hearing of the appellant’s notice of motion by this Court on 3 December 1999 or the delivery of the judgment of this Court on 24 January 2000. Clearly the delay the Court of Appeal was referring to was the delay from 20 April 1998 to 15 August 2000 when the Court of Appeal heard the appeal by the appellant because the time period between 20 April 1998 and 15 August 2000 is about two years and four months. It is also clear that the Court of Appeal was not counting the period of delay from 3 November 1999, when the medical council eventually charged the appellant under s23(3) of the Medical Practitioners Act 1975, to 15 August 2000 when the appeal was heard by the Court of Appeal for that period would be only ten months.

In the present case, the periods between 27 November 2000 and 25 January 2001 when the applicant was first notified of the complaints against him and the Court hearing on 13 February 2003 are about two years and three months and two years and one month respectively. That is a longer delay than the delay of one year and eight months between 20 April 1998 when the appellant in Matatumua was first notified of the complaints against him and 3 December 1999 and 24 January 2000 when this Court heard the notice of motion in that case and then delivered its judgment.

In Martin v Tauranga District Court [1995] 2 NZLR 419 the accused was arrested and charged with three acts of sexual violation against his sister in law on December 1992. Undoubtedly the charges were very serious. Through the fault of the prosecution no fixture for the trial was set down until 11 May 1994 which was about seventeen months after the accused was arrested and charged. An application was filed on behalf of the accused which complained of violation of the accused’s right to be tried without undue delay under s25(b) of the New Zealand Bill of Rights Act 1990 and an order to stay proceedings was sought. The New Zealand Court of Appeal held that the delay of seventeen months between the time the accused was arrested and charged and the time his trial was set down to proceed was in the circumstances undue. A stay of proceedings was accordingly granted. The seriousness of the counts of sexual violation with which the accused was charged was not a factor considered in determining whether the delay complained of was in the circumstances undue. In determining whether the delay was undue in the circumstances, the Court noted that the length of the delay is one factor to be considered. Other factors to be considered include (a) waiver of time periods, (b) the reasons for the delay, and (c) any prejudice to the accused.

Obviously the delay of seventeen months in Martin is less than the delays of over two years in this case. But the important point to note is that the question whether the delay that has occurred is reasonable or unreasonable depends on the particular circumstances of each case. The length of the delay is only one relevant factor to be considered. But there are also other factors I have already referred to. I doubt whether any useful purpose will be served by a comparison of the periods of delay between cases. That seems to adopt a somewhat mechanical approach which I do not favour in this area of constitutional rights.

Counsel for the respondent further submitted that if the Court finds the delay in the present case to be unreasonable, then this is a borderline case for which the appropriate remedy to order the respondent to proceed expeditiously with the hearing of the allegations against the applicant rather than order a stay. Counsel relied on a passage in Matatumua where Lord Cooke states at p10:

“Borderline cases can arise when the remedy for alleged unreasonable delay is to require an early hearing. But in cases where it is clear that the delay has been unreasonable a standard remedy is a stay. There is a large body of Canadian case law to that effect, a recent example in the Supreme Court of Canada being Maracle v The Queen (1998) 122 C.C.C. (3d) 97. The same approach was taken in New Zealand in Martin v Tauranga District Court [1995] 2 NZLR 319. In the present case we think that a stay is the appropriate remedy under Article 4 of the “Constitution.”

My finding that the delay in the circumstances of the present case is clearly unreasonable takes it out of the category of borderline cases as mentioned by Lord Cooke in Matatumua. This must be what Lord Cooke means when he says: “But in cases where it is clear that the delay has been unreasonable a standard remedy is a stay.” Accordingly all proceedings under the Dental Practitioners Act 1975 against the applicant in respect of complaints, allegations and adverse Bulgarian reports referred to in this judgment are permanently stayed.

Counsel to file memorandum as to costs within seven days if they cannot reach agreement.

CHIEF JUSTICE

Solicitors:
Drake & Co for applicant
Attorney General’s Office for respondent