Wang Kin John Cheng v Pharmacy Board of New South Wales and Anor [2005] NSWSC 1130 (9 November 2005)

Last Updated: 14 November 2005

NEW SOUTH WALES SUPREME COURT

CITATION: Wang Kin John Cheng v Pharmacy Board of New South Wales & Anor [2005] NSWSC 1130



CURRENT JURISDICTION:

FILE NUMBER(S): 12576/05

HEARING DATE{S): 29.09.05; 30.09.05

JUDGMENT DATE: 09/11/2005

PARTIES:
Wang Kin John Cheng - plaintiff
Pharmacy Board of New South Wales – first defendant
Health Care Complaints Commission – second defendant


JUDGMENT OF: Nicholas J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
P Byrne SC/G K Walsh - plaintiff
Pharmacy Board of New South Wales - submitting appearance filed - first defendant
Ms C E Adamson SC/Ms V A Hartstein - second defendant


SOLICITORS:
Catherine Hunter solicitor - plaintiff
C M Campbell solicitor – first defendant
K Mobbs solicitor – second defendant



CATCHWORDS:
Disciplinary proceedings under Pharmacy Act 1964 – application for permanent stay of proceedings – assessment and investigation of complaint of professional misconduct – delay – principles applicable – whether application succeeds absent evidence of prejudice – whether delay or failure to comply with statutory requirement to investigate expeditiously sufficient for a stay order

ACTS CITED:
Health Care Complaints Act 1993 s 3(a), (d); s 7; s 8; s 9; s 16(1); s 19(1); s 20; s 22(a); s 23(1), (2), (3); s 29, 29(2); s 39(1), (2); s 40(1), (2)
Pharmacy Act 1964 s 19A; s 19D(1), (2); 19H
Poison & Therapeutic Goods Regulation 1994; cl 26
Poisons & Therapeutic Goods Act 1966 s 35

DECISION:
Para 67


JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION


Nicholas J

9 November 2005


12576/05 Wang Kin John Cheng v Pharmacy Board of New South Wales & Anor

JUDGMENT

1 His Honour: The plaintiff is a pharmacist against whom the Health Care Complaints Commission, the second defendant, (the Commission) issued a complaint under the Pharmacy Act 1964 alleging professional misconduct concerning incidents which occurred in June 1997 and December 1997. The complaint was laid on 2 August 2004. On 22 and 23 February 2005 the Pharmacy Board of New South Wales, the first defendant, (the Board) heard the plaintiff’s application for a permanent stay of proceedings on the ground of delay, which application was refused on 24 March 2005.

2 By his amended summons the plaintiff seeks an order that the proceedings be permanently stayed on the ground that the delay is unconscionable, unreasonable, and unexplained, and constitutes a breach by the Commission of its duty under s 29 Health Care Complaints Act 1993 (the Act). He invokes the inherent supervisory jurisdiction of the court over inferior courts and tribunals. The plaintiff complains of no actual prejudice the effect of which would be likely to render the hearing of the complaint unfair. He has been registered as a pharmacist since 11 September 1985.

3 Initially the plaintiff also sought review of the decision of the Board of 24 March 2005 and an order that it be quashed as unreasonable. However, after the summons was filed the case was conducted by the parties on the basis that this form of relief was no longer pressed. Accordingly, I have given no consideration to the Board’s reasons for its decision.

Background

4 The relevant chronology of events is as follows.

5 On 9 December 1997 the plaintiff was charged with conspiracy to manufacture a prohibited drug following an investigation by police in about June 1997. On the same day Messrs Ian Anderson and Martin Power, officers of the NSW Health Department (the Department), together with police officers, searched the plaintiff’s pharmacy which was conducted as the “Kariong Pharmacy”.

6 On 23 December 1997 the plaintiff with some others disposed of a quantity of pseudoephedrine tablets at the pharmacy by flushing them down a lavatory, allegedly in breach of cl 26, Poison & Therapeutic Goods Regulation 1994, which prohibited the use or disposal of a poison in any place or manner likely to constitute a risk to the public.

7 On 15 November 1999 the plaintiff’s trial before the District Court of New South Wales on the charge of conspiracy ended when he was held to be not guilty.

8 By letter of 16 November 2000 to the Commission, the Director of the Pharmaceutical Services Branch of the Department recommended to the Board that consideration be given to laying a complaint of professional misconduct of the plaintiff. The letter contained details of the conduct to which the complaint should refer and particulars of allegations that on occasions in June 1997 he had improperly supplied quantities of pseudoephedrine tablets to various persons, and on 9 December 1997 had provided false or misleading information to Mr Ian Anderson concerning sales and stocks of the drug. With the letter were enclosed papers including reports, statements and transcripts concerning investigations of the plaintiff and the conduct complained of.

9 On 28 November 2000 the Commission notified the Board of receipt of the complaint and its intention to investigate it.

10 In its letter of 12 December 2000 the Commission notified the plaintiff of the complaint and included a copy of the letter of 16 November 2000. It advised that it would assess the complaint, and would consult with the Board as to further action required, after which it would write again. It enclosed a brochure which explained the complaints process.

11 By letter of 20 December 2000 the plaintiff’s solicitor replied to the Commission. He pointed out errors in the complaint, and was critical of the conduct of Mr Anderson’s attendance at the pharmacy on 9 December 1997. He put that no proceedings should be commenced against the plaintiff as they would be tainted and without foundation, and stated that any proceedings would be strenuously defended.

12 By letter of 23 May 2001 the Commission informed the Department that it had assessed the complaint for investigation. It requested a statutory declaration to verify the complaint to enable commencement of the investigation.

13 By letter of 24 May 2001 the Commission replied to the letter of the plaintiff’s solicitors of 20 December 2000. It apologised for delay in responding, and advised that it proposed to seek transcripts of the hearing in the District Court, and requested copies of these and other documents relevant to its investigation. It advised it was awaiting verification of the complaint, and that the investigation could not be formally commenced without it.

14 On 14 June 2001 Mr Bruce Battye, an officer of the Department, made a statutory declaration verifying the complaint contained in the letter of 16 November 2000. It was received by the Commission on 19 June 2001.

15 By letter of 15 October 2001 to his solicitor, the Commission sought from the plaintiff information as to matters raised by the complaint, and comments believed to be relevant to it. By letter of 29 November 2001 the plaintiff’s solicitors responded by providing some information, and sought particulars of various matters including evidence relied upon in support of the allegations made by the Department. Relevantly it included the following:

“Furthermore, Mr Cheng asks that the substantive delay in dealing with these matters be taken into account. Four and a half years has now elapsed since June, 1997. Mr Cheng is now no longer a practicing Pharmacist and does not operate the Kariong Pharmacy. The delay has substantially prejudiced him and has not been explained by Mr Battye, Mr Power or Mr Anderson. At this stage, I understand that the procedure is one of investigation as to whether a complaint should continue. It is my submission that in weighing up all of the factors, it would not be appropriate to further proceed”.

16 By letter of 17 July 2002 to the Commission the Board questioned the progress of the matter. It referred to the importance of reducing lead times in cases where it was required to consider fitness to practice, and to the fact that “the effluxion of time” would severely restrict orders to be made where a pharmacist is found guilty of professional misconduct. It questioned when the complaint would be received or whether the investigation had been discontinued.

17 By letter of 30 July 2002 to the Commission, the plaintiff’s solicitor enquired as to the position, and stated his wish to close the file if the matter was not proceeding.

18 By letter of 20 August 2002 the Commission informed the plaintiff’s solicitor that the matter was still under investigation. It provided some information in response to the request of 29 November 2001, and sought evidence in support of the plaintiff’s denial. It apologised for the lengthy delays, and stated that it would not be terminating the investigation.

19 By letter of 11 September 2002 the plaintiff’s solicitor informed the Commission that the plaintiff was currently not in Australia, and always maintained he did not supply multiple packets of the drug as alleged in the Department’s complaint.

20 By letter of 1 August 2003 the Commission asserted it was attempting to complete the investigation as soon as possible and acknowledged it had been delayed. It requested a fast response to its earlier request for information so as not to delay the investigation further.

21 By letter of 1 August 2003 to the NSW Police Service the Commission sought information concerning Tracey Watkins and Dennis Watkins who were the plaintiff’s co-accused in respect of the matters for which he was tried in the District Court. The request was repeated in its letter of 19 February 2004.

22 By letter of 17 May 2004 the Commission sought a transcript of the 1999 criminal proceedings from the Registrar, District Court.

23 By letter of 28 May 2004 to the plaintiff, the Commission advised that the investigation was completed and of its proposal to refer the matter to the Board with a recommendation that it be referred for hearing before a disciplinary body. It advised that the Commission had formed the view that his conduct fell below the acceptable standards of the profession.

The letter stated that its purpose was to inform him of the substance of the grounds for the proposed action and to provide him with an opportunity to make submissions pursuant to s 40(1) of the Act. It stated the substance of the several grounds for the proposed action. It invited a written submission within 28 days, advised that the Act did not allow for extensions of time, and that if a submission was not received within 28 days it would be assumed that he did not wish to respond, and the Commission would proceed accordingly.

24 By letter of 21 June 2004 Mr G K Walsh, of counsel, who had been the plaintiff’s solicitor, wrote on the plaintiff’s behalf to the Commission. In short, the letter repeated the plaintiff’s denial of any wrongdoing and took issue with the several allegations against the plaintiff. He asserted that the manner in which the complaint had been investigated and prosecuted raised great concerns concerning procedural fairness and delay, and he suggested that the investigations and complaint procedures be terminated.

25 By its letter of 29 June 2004 to the Board, the Commission informed it that the investigation had been completed and that it was of the view that the plaintiff had breached acceptable standards of practice. The letter stated the proposal to prosecute a complaint before a Professional Standards Committee pursuant to s 39(1) of the Act and s 19D Pharmacy Act 1964. It forwarded relevant documents for the purposes of notification and consultation.

26 By letter of 20 July 2004 the Board informed the Commission that, following consideration of the documents sent to it, it had resolved to agree with the Commission’s proposal to prosecute the complaint against the plaintiff.

27 The complaint is dated 2 August 2004. By it the Commission alleges that the plaintiff has been guilty of professional misconduct within the meaning of s 19A Pharmacy Act 1964 in that he (i) demonstrated a lack of adequate knowledge, experience, skill, judgment or care, in the practice of pharmacy, and (ii) engaged in conduct relating to the practice of pharmacy that is improper or unethical.
In summary, the particulars of the complaint are that:
(i) On or about 20 June 1997 (the plaintiff) supplied 990 packets of pseudoephedrine tablets to known persons (a) in a quantity and/or for a purpose that did not accord with the recognised therapeutic standard and (b) when he knew or by exercising responsible professional judgment ought to have known, the substance supplied was liable to abuse.
(ii) On or about 23 June 1997 (the plaintiff) supplied 860 packets of pseudoephedrine tablets to persons in same circumstances similar to those in para (i)(a) and (b).
(iii) (The plaintiff) provided false and/or misleading information to an officer of the NSW Health Department in that (a) on 9 December 1997 he stated that the total stock of pseudoephedrine tablets at Kariong Pharmacy at that time was 89 packets; or alternatively (b) on 23 December 1997 he stated in his response to a notice issued under s 35 Poisons & Therapeutic Goods Act 1966 that the total stock of pseudoephedrine tablets at Kariong Pharmacy on 9 December 1997 was 3,191 packets.
(iv) On 23 December 1997 (the plaintiff) disposed of approximately 3,125 boxes of pseudoephedrine tablets by an inappropriate method, that is, by flushing the tablets down the toilet at Kariong Pharmacy.

28 By letter of 24 August 2004 the Commission served a copy of the complaint upon the plaintiff.

29 On 22 February 2005 the hearing of the complaint by the Board of the complaint began. The application then made on behalf of the plaintiff that the proceedings be permanently stayed was refused on 24 March 2002.

The statutes

30 The Pharmacy Act 1964, Pt 4, is concerned with complaints and disciplinary proceedings. Section 19D(1) allows any person to make a complaint about a pharmacist on a number of grounds, including (c), guilt of professional misconduct. Section 19D(2) requires that a complaint is to be made to or lodged with the Commission or the registrar. Section 19H provides for an inquiry into a complaint to be conducted by either the Board or a Professional Standards Committee.

31 The relevant provisions of the Act are in Pt 2, the subject of which is complaints. The right to complain is the subject of Div 1. The combined effect of ss 7, 8, and 9 is to enable any person to make a complaint concerning the professional conduct of a health practitioner (which includes a provider of pharmaceutical services) by lodging with the Commission a complaint in writing including particulars of the allegations on which it is founded.

32 Section 16(1) provides:

“(1) Within 14 days after receiving a complaint (whether made under this Act or another Act), the Commission must give written notice of the making of the complaint, the nature of the complaint and the identity of the complainant to the person against whom the complaint is made”.

33 The assessment of complaints is the subject of Div 4. Section 19(1) provides that on its receipt by the Commission a complaint is to be assessed. Section 20 provides that a purpose of assessment is to decide whether the complaint should be investigated. By s 22(a) the Commission must carry out its assessment of a complaint within 60 days after receiving the complaint.

34 The circumstances in which the Commission is required to investigate a complaint are the subject of s 23(1) and (2). However, it must not investigate a complaint unless the complainant verifies the complaint by statutory declaration (s 23(3)).

35 The investigation of complaints is the subject of Div 5. Section 29 provides:

“29 The purpose of investigation

(1) The investigation of a complaint by the Commission is for the purpose of obtaining information concerning the matter complained of and to determine what action should be taken in respect of the complaint.

(2) The investigation of a complaint is to be conducted as expeditiously as the proper investigation of the complaint permits. Expedition is particularly appropriate if the complainant or the person on whose behalf the complaint is made is seriously ill”.

36 Outcomes of investigations into health practitioners is the subject of Div 6. Section 39(1) specifies what the Commission must do at the end of the investigation of a complaint which includes the prosecution of the complaint as a complainant before a disciplinary body. Section 39(2) requires the Commission to consult with the appropriate registration authority before deciding what action to take.

37 Section 40(1) provides that if, at the end of the investigation of a complaint against a health practitioner, the Commission proposes to do any of the things referred to in s 39(1) it must first inform the health practitioner of the substance of the grounds for its proposed action and give the health practitioner an opportunity to make submissions. Any such submission must be made in writing within 28 days after the health practitioner is so informed (s 40(2)).

The principles

38 It was accepted that the court has jurisdiction to stay proceedings before the Board (Herron v McGregor (1986) 6 NSWLR 246; Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, pp 391-392).

39 The approach to be taken in deciding whether these proceedings should be stayed is stated in Walton at p 392:

“Gleeson CJ and Kirby P considered that the Court of Appeal has power to make an order staying proceedings if it is satisfied that the continuation of the proceedings would be “so unfairly and unjustifiably oppressive” as to constitute an abuse of process. Their Honours made plain that the court would only be so satisfied in an exceptional or extreme case. Mahoney JA adopted a similar approach, while formulating the appropriate test in slightly different words. His Honour considered that the question for the Court of Appeal was whether, in all the circumstances, the continuation of the proceedings before the tribunal would involve unacceptable injustice or unfairness. In our view, the approach adopted by the members of the Court of Appeal was correct”

and at p 396:

“The question whether disciplinary proceedings in the tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings in the tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners”.

40 The nature of disciplinary proceedings was considered in Wentworth v NSW Bar Association [1992] HCA 24; (1992) 176 CLR 239 in which (p 251) it was said that because they have the protection of the public as one of their primary objects they cannot necessarily be determined on the same basis as adversarial proceedings.

41 In Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 Deane, J (p 58) said:

“The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process”.

and also (p 60):

“It is not practicable to seek to identify precisely in advance the various factors which may be relevant in determining whether, in the circumstances of a particular case, unreasonable delay has produced the extreme situation in which any further proceedings should be permanently stayed. The starting point will be consideration of the question whether the delay is so prolonged that it is unreasonable in the context of the particular case. An affirmative answer to that question will, at least where the accused does not share responsibility for the delay, prima facie indicate that the accused is entitled to some relief (eg an order fixing a date for trial). It will not, however, of itself and viewed in isolation, suffice to found an order that the proceedings be stayed. In that regard, it is relevant to note that, in the context of an accused being entitled to the benefit of any reasonable doubt, the vagueness and uncertainty of memory and evidence which is likely to result from delay is more likely to be damaging to the prosecution than to the defence case. An order that proceedings be permanently stayed will only be justified in the exceptional cases which I have indicated, namely, where it appears that the effect of the unreasonable delay is, in all the circumstances, that any subsequent trial will necessarily be an unfair one or that the continuation of the proceedings would be so unfairly oppressive that it would constitute an abuse of process”.

42 In the same case, Mason CJ said at p 34:
“To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences...Where delay is the sole ground of complaint, an accused seeking a permanent stay must be able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute.”

43 In Jago Toohey, J (p 72) identified the appellant’s real difficulty as that, notwithstanding a considerable delay in bringing him to trial, he did not suggest any actual prejudice as a result. Although it was accepted that the appellant had been subjected to anxiety and inconvenience, it was found that he was unable to point to any particular aspect of the delay which had prejudiced his defence or which otherwise would have made it unfair to him for the charges to proceed. (See also Gaudron, J pp 77-78).

44 Whether prejudice to the prospective defendant by reason of delay is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application (Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, p 548).

45 In Island Maritime Ltd v Filipowski [2004] NSWCCA 453 it was held (para 43):

“43 Delay of itself does not constitute abuse of process or justify a permanent stay unless it can be shown that the delay is such that the defendant will suffer such prejudice as cannot be otherwise remedied and which will result in an unfair trial: Jago at 34, 59-60 and where delay is relied on it is necessary to consider whether, or to what extent the defendant is prejudiced by the delay. His Honour took into account that the applicants did not allege any prejudice to them as a result of the delay, and as a matter tending against any prejudice, the fact that they were on notice of the discharge from the time of its occurrence, and had known of the evidence to be led against them from the time of the laying of the s 27 charges. It was proper for his Honour to have regard to these matters in considering whether the applicants were prejudiced by the delay and ground 5 is not made out”.

(See also Regina v Frederick Westley [2004] NSWCCA 192, para 12).

46 Due regard to the principles in these cases leads to the conclusion that in these proceedings the plaintiff has the burden of demonstrating that the justice of the case requires the court to exercise its discretion in favour of an order that they be permanently stayed. It is said that such an order may only be made in exceptional circumstances and that the plaintiff’s burden of persuasion is a heavy one (Re a Medical Practitioner [1993] TASSC 138; (1993) 2 TasR 90, para 12). In exercising its discretion sometimes it may be difficult to keep in mind that the purpose of an order is not to punish a dilatory authority but to relieve an applicant from injustice in the proceedings.

The submissions

47 For the plaintiff it was submitted that the evidence demonstrates inordinate delay on the part of the Commission in its investigation of the complaint, and conduct in breach of provisions of the Act which regulate the complaints and investigation process.

48 The plaintiff points out that it was not until 16 November 2000 that complaint was made by the Department to the Commission being 12 months after the plaintiff had been tried and acquitted of the criminal charge, and three years after he had been arrested and charged. The Commission did not respond to the plaintiff’s solicitor’s letter of 20 December 2000 until 24 May 2001. It recognised and apologised for delay, and advised of its decision to investigate the complaint but would not formally commence the investigation until it received verification. Reference was made to the plaintiff’s solicitor’s letter of 29 November 2001 to the Commission in which the plaintiff’s concern as to what was described as substantial delay was clearly expressed. The letter pointed out that the delay had substantially prejudiced the plaintiff and had been left unexplained by the Health Department’s officers, and that in all the circumstances it would not be appropriate to further proceed.

49 The plaintiff said that relevant to the question of delay was the expression of concern by the Board in its letter to the Commission of 17 July 2002, and his solicitor’s concern expressed in the letter of 30 July 2002 to know whether the matter was still proceeding and the Commission’s acknowledgment and apology for lengthy delay in its letter of 20 August 2002.

50 It was put that the matters referred to in the letter of 16 November 2000 were known to the relevant authorities from probably about June 1997 and, certainly, since December 1997, and the complaint of 2 August 2004 was merely repetitive of them. Prior to the issue of the complaint Mr Walsh had expressed his frustration and concern about procedural fairness and delay, and suggested in his letter of 21 June 2004 the procedures be terminated.

51 The plaintiff also argued that by reason of its slow progress the Commission was in breach of s 29(2) of the Act in that it failed to conduct the investigation of the complaint as expeditiously as its proper investigation permitted. Reliance was placed on the failure to obtain verification of the complaint promptly after 28 November 2000 when, following its assessment, the Commission notified the Board of its intention to investigate. It was also put that the fact that it was left until 1 August 2003 and 17 May 2004 to request a transcript of the criminal proceedings from the police and the District Court respectively indicates lack of expedition particularly in circumstances where the relevant officers of the Department had themselves given evidence at the trial, and the necessity for the transcripts was questionable. In this context reference was made to the Commission’s failure to pursue its unanswered request of the police until 11 March 2004.

52 Although it was candidly acknowledged that the delay has caused no actual prejudice, such as loss of evidence through unavailability of witnesses or documents, it was put that absence of such prejudice is no bar to relief. Although recognising that absence of prejudice may pose a difficulty (T p 23) it was submitted that relief should be available where delay is extensive, unexplained, and in breach of the Act. The primary aspects of unfairness were said to be that the plaintiff had been obliged to wait over seven years to respond to allegations which could and should have been made earlier, and the Board, if it found the plaintiff guilty, would be asked to assess his current fitness to practice with regard to isolated incidents which had occurred in June and December 1997.

53 The plaintiff also submitted that as these were disciplinary proceedings the court should approach the question of a stay differently to the approach taken in criminal proceedings as explained in Jago and Island Marine, so that absence of prejudice which would render a hearing unfair should not, of itself, preclude an order for a permanent stay. It was put that it was enough in all the circumstances of these proceedings to justify an order for the plaintiff to show that the delay was unreasonable, unexplained, and in breach of the duty imposed by s 29(2) of the Act.

54 The Commission’s submissions may be shortly stated. On the issue of delay it was put that upon review of the whole of the correspondence it was evident that the Commission’s assessment and investigation of the complaint was conducted properly and substantially in accordance with the statutory time requirements. It was put that in all the circumstances it could not be said that the effluxion of time between receipt of the complaint and institution of proceedings before the Board constituted an unreasonable delay.

55 It was put that the Commission carried out its assessment of the complaint well within the 60 days required by s 22(a) of the Act, and by its letter of 12 December 2000 had notified the plaintiff of the complaint and of the procedure to be undertaken. The Commission accepted that in giving such notice to the plaintiff it had failed to comply with the requirement of s 16(1) that notice be given within 14 days after receipt of the complaint but submitted that nothing turned on that. The court was reminded that the Commission was well within the 60-day period required by s 22(a) having assessed the complaint on 28 November 2000 within 12 days after its receipt.

56 The Commission further submitted that even if it be found that the relevant delay was unreasonable a significant factor to be taken into account is that these are disciplinary proceedings the purpose of which is the protection of the public as explained in Wentworth. It put that in these circumstances there is no presumption of prejudice, and as no actual prejudice arising from any delay is claimed the application should be refused in accordance with the principles held to apply in Jago and followed in, for example, Island Marine para 44, Regina v Frederick Westley, paras 12, 32, and Re a Medical Practitioner [1993] TASSC 138; (1993) 2 TasR 90, para 12.

Conclusion

57 These are disciplinary proceedings arising from the assessment and investigation of the complaint by the Commission in fulfilment of the objects of the Act which include facilitation of the maintenance of standards of health services in New South Wales (s 3(a)) and the provision of an independent mechanism for assessing whether the prosecution of disciplinary action should be taken against registered health practitioners (s 3(d)).

58 It is common ground that the requirement of s 29(2) that investigation of a complaint be conducted expeditiously is directory, not mandatory. It follows that the plaintiff accepts that it should be understood as an instruction for the guidance and government of the Commission the neglect of which does not affect the validity of action taken in disregard of it. (Maxwell on Interpretation of Statutes, 11th ed. p 369; Pearce & Geddes: Statutory Interpretation in Australia, 5th ed. para 11.30; Hatton v Beaumont (1977) 2 NSWLR 211). Thus mere failure to act with expedition is no ground for a stay. To contend, as the plaintiff did, that the Commission was in breach of its duty under s 29(2) is to say no more than that it failed to act expeditiously.

59 This is a case in which no actual prejudice is claimed by reason of any delay. The notion of relevant prejudice or unfairness is not limited to the situation where any subsequent trial must necessarily be an unfair one (Jago p 58). In Department of Transport v Chris Smaller Ltd (1989) 1 AC 1197, p 1209 Lord Griffiths pointed out that prejudice to a defendant in a trial as a result of delay is not limited to the mere inability to have a fair trial, and referred to examples including anxiety suffered by those whose professional competence was in question, and prejudice of a commercial or business kind. However, here it was not argued that the plaintiff is subject to an intolerable burden in preparing to meet the complaint, or that his health has been adversely affected by the commencement and continuation of the proceedings, or that he is having memory problems, or that he will not obtain a fair hearing, or that the hearing might in some way be oppressive to him, and there was no evidence of any such matters.

60 In fact, the evidence shows that the plaintiff and his solicitor have been seised of the matters relied upon in support of the complaint since at least 12 December 2000, and that on a number of occasions during the period complained of his solicitor has responded to the allegations and has made submissions about them.

61 Walton (pp 395-396) holds that the weighing process to be undertaken in deciding whether, in the exercise of discretion, disciplinary proceedings should be stayed is similar to the kind appropriate in the case of criminal proceedings. Important considerations are the protective character of disciplinary proceedings, and the importance of protecting the public from professional misconduct of practitioners. An order is to be made only in exceptional or extreme cases in which it is proved by the applicant that continuation of the proceedings before the tribunal would involve unacceptable injustice or unfairness (Walton p 392).

62 In criminal proceedings Jago and later authorities have held that delay itself is not sufficient to justify a permanent stay of a criminal prosecution, that actual prejudice by reason of the delay must be shown, and is not presumed, although the longer the delay the more likely it will be that actual prejudice can be shown (Regina v Frederick Westley para 12, Island Marine para 43).

63 In my opinion these cases bind me to reject the plaintiff’s invitation to accept that mere delay, in the appropriate case, will be sufficient to justify an order for the permanent stay of disciplinary proceedings and thereby undertake a different weighing process to that appropriate for criminal proceedings. It is proof of a situation in which the effect of the delay will render any subsequent trial unfair, or produces a situation in which any continuation of the proceedings would, of itself, be so unfair and unjustifiably oppressive as to constitute an abuse of process which will attract the intervention of the court in the exercise of its supervisory jurisdiction (Jago p 58).

64 As I understood it, the true ground upon which the plaintiff relied for an order is that he has a right to be protected from unreasonable delay in the conduct of disciplinary proceedings whether or not it is productive of unfairness or oppression towards him. However, in my opinion complaint of delay referable to the action or inaction of the prosecuting authority absent demonstration that it renders continuation of the proceedings unfair or unjust is tantamount to an assertion that the plaintiff has a right to a speedy trial. In Jago it was held that there is no such right separate from a right to a fair trial. In my opinion the authorities hold that delay without adverse consequence has no significance. Effluxion of time without more does not preclude a party from continuing proceedings properly instituted whether those proceedings are criminal or disciplinary. (Similar considerations apply in civil proceedings e.g.: Birkett v James (1978) AC 297, p 318; Stollznow v Calvert (1980) 2 NSWLR 479).

65 As there is no evidence which shows that the continuation of these proceedings will involve a risk of injustice, unfairness, or oppression there is no evidence which proves the exceptional circumstances required to justify the exercise of discretion to make the order sought by the plaintiff. I accept the defendants’ submissions that, absent proof of such risk, it is inevitable that the application should be refused.

66 Having come to this conclusion it is unnecessary to find as to the nature of the delay, it being a matter of degree in all the circumstances. Nevertheless it is appropriate to make the following observations. Although the Act imposes no time limitation within which a complaint may be made under s 8, or within which the investigation under s 29 is to be completed, or within which subsequent action under s 39 is to be taken, absent explanation it is open to criticise the Department and the Commission for the glacial speed with which at least some steps were taken. (e.g. the failure of the Department to make complaint prior to 16 November 2000 and the time taken to request transcripts from the police and the District Court). The rate of progress was such as to cause expression of concern from the plaintiff and the Board. However, having regard to the whole history of the proceedings I am not persuaded that the delay was, overall, inordinate or unreasonable in the circumstances.

67

Accordingly, the orders of the court are:

(1) The amended summons is dismissed.

(2) The plaintiff is to pay the defendants’ costs.

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LAST UPDATED: 11/11/2005