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Fiji Medical Council v Mudaliar [2009] FJHC 366; HBC84.2009 (9 November 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION HBC 84 OF 2009

BETWEEN:

THE FIJI MEDICAL COUNCIL
PLAINTIFF

AND:

SACHIDA NAND MUDALIAR
DEFENDANT

Mr N Prasad for the Plaintiff
Mr R Naidu for the Defendant

DECISION

This is an application by the Plaintiff seeking leave to discontinue proceedings commenced by Originating Summons filed on 12 March 2009.

The application was made by summons dated 14 August 2009 and was supported by an affidavit sworn by Arab Khan on 8 July and also filed on 8 July 2009. The application was opposed by the Defendant who filed an affidavit sworn on 9 September 2009. The Plaintiff filed a reply affidavit sworn by Lesieli Tuiwawa and filed on 18 September 2009.

The application is made pursuant to Order 21 Rule 3 of the High Court Rules. So far as is relevant, Rule 3 (1) states:

"Except as provided by rule 2 a party may not discontinue an action (whether begun by writ or otherwise) ... without the leave of the Court, and the Court hearing an application for the grant of such leave may order the action or counterclaim to be discontinued ... as against any or all of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just".

The requirement to obtain leave is based on the principle that a Plaintiff who has engaged the Defendant in litigation should not, after the proceedings have reached a certain stage, be allowed to withdraw because of a realization that the chances of success had diminished. It is for the Court to determine whether the proceedings should be discontinued and on what terms.

On the other hand, it is also accepted that a Plaintiff should not be compelled to litigate or continue litigation against his will. For this reason leave will usually be granted provided that no injustice will be caused to the Defendant. (Supreme Court Practice 1991 Volume 1 paragraphs 212 – 5/11 to 212 – 5/12).

As a result, the real issue for the Court in this type of application is not whether leave to discontinue should be granted but rather on what terms should leave be granted. However, Order 21 Rule 3 confers a discretion that is to be exercised judicially by the Court.

The grounds of the application are set out in paragraph 22 of the affidavit sworn by Arab Khan. One ground is that the Plaintiff wishes to re-address the issues concerning the Defendant’s registration status. For that purpose the Plaintiff, in the public interest, intends to reconvene and make a determination on the Defendant’s registration status under the provisions of the Medical and Dental Practitioners Act Cap 255 (the Act). Another reason, related to the first, is that the Plaintiff would like to provide the Defendant with an opportunity to be heard with reasonable time to argue his case.

I have concluded that the reasons put forward by the Plaintiff are sufficient for the Court to exercise its discretion and to grant leave to the Plaintiff to discontinue the proceedings.

So far as terms are concerned, the Defendant seeks costs on an indemnity basis (i.e. solicitor-client basis) and an order restraining the Plaintiff from proceeding with a fresh enquiry until after the Defendant’s counterclaim has been finalised.

Under Order 21 Rule 3 the Court has a discretion to allow discontinuance on such terms as to costs. In considering the question of costs the Court is entitled to consider whether the discontinuing Plaintiff had "an arguable case" against the Defendant. In other words, does the application to discontinue reflect a surrender by the Plaintiff in a hopeless case. It is also relevant to consider the conduct of both parties before the proceedings were commenced, in commencing the proceedings and in the termination of the proceedings.

The starting point is the basic principle that a discontinuance will usually result in the surrendering Plaintiff paying the Defendant’s costs. The issue is then whether the particular circumstances surrounding this application warrant such an order in favour of the Defendant and if so should those cots be awarded on an indemnity basis.

I propose to consider the question of costs by examining first the proceedings commenced by the Plaintiff.

The substantive relief sought by the Plaintiff in its Originating Summons was:

"1. A Declaration that the action of the Defendant in practising medicine without being registered as a medical practitioner in accordance with the Medical and Dental Practitioners Act Cap 255 is unlawful.

2. In the alternative, a Declaration that the purported actions of the Defendant in practising medicine without being registered is unlawful and not in the best interest of the public.

3. A Declaration that the actions of the Defendant in practising medicine without being registered is unlawful and places the public health at risk.

4. An injunction restraining the Defendant from practising medicine without being registered as a medical practitioner in accordance with the Medical and Dental Practitioners Act Cap 255."

The background facts may be stated briefly. The Defendant had been for many years prior to May 2006 registered as a medical practitioner under the Act.

On 17 May 2006 the Defendant was convicted in the High Court of two criminal offences: (1) Performing an illegal abortion and (2) Manslaughter. He was sentenced to three years imprisonment. The Defendant appealed the conviction and sentence to the Fiji Court of Appeal. The Defendant was refused bail pending the hearing of the appeal which had been listed for 22 November 2006.

It would appear that the Plaintiff held a meeting on 22 June 2006 and ordered that the Defendant’s name be removed from the register of medical practitioners.

From the affidavit material it is quite clear that the Defendant was not informed that such a meeting was to be held.

The decision of the meeting held on 22 June 2006 and the reasons for the decision were set out in a letter dated 19 July 2006 addressed to the Defendant care of the Commissioner of Prisons. The letter stated that the Defendant’s name was removed from the register for two reasons. First, the criminal conviction and sentence of three years imprisonment. Secondly, for serious professional misconduct based on the judgment handed down at that trial.

The removal of the Defendant’s name was pursuant to section 27 (1) of the Act which states:

"If any person who is registered in any part of the register is convicted of an offence punishable by imprisonment for a term of two or more years or upwards or is after due inquiry judged by the Council concerned to have been guilty of professional misconduct, the Council may, if it sees fit, order that the name of any such person be deleted from the register and the Secretary shall forthwith delete that name and notify the person affected."

There are two observations that should be made at this stage. First, although satisfactory proof of conviction of an offence described in the section may activate deregistration, the Plaintiff should have either delayed its formal decision to deregister pending the hearing of any appeal or have imposed an interim provisional period of deregistration pending the appeal process.

Secondly, it is quite apparent from the material before the Court that not only was there no due inquiry, there was a total denial of procedural fairness when the Plaintiff concluded that the Defendant was guilty of professional misconduct. He was not given notice that this matter was to be considered, he was not given the opportunity to be heard and he was not given the opportunity to cross-examine any witnesses.

The letter dated 19 July 2006 was received by the Defendant on 21 July 2006. The last paragraph indicated to the Defendant that the order of removal of his name from the register was dated back to 14 July 2006. The Defendant was also referred to the right of appeal that is set out in section 27 (4) of the Act which states:

"An order made by either Council under this section or under section 36 shall not take effect in any case until the expiration of twenty one days after the date of the order and, if within that period, the person affected gives due notice of intention to appeal against the order, shall not take effect until and unless it is confirmed by the (High) Court or the appeal as for any reason dismissed by that Court."

The effect of this section is that since the order was dated 14 July 2006, it was to take effect 21 days later, being 4 August 2006, unless within that period prior to 4 August 2006, the Defendant had given notice of intention to appeal the order.

By letter dated 1 August 2006, the Defendant’s legal representative wrote to the Plaintiff stating:

"We act on instructions from our above named client who has referred to us your letter dated the 19th July 2006, backdated to be effective from 14 July 2006, which was received by our client on the 21st July 2006.

Please be advised that we have lodged an appeal against the conviction and sentence, to the Court of Appeal which would be heard on 22nd day of November 2006.

You might be aware that our client’s applications for bail has been refused by the Court of Appeal, despite the fact the Court of Appeal impliedly accepted that the High Court may have erred on the issue of accomplice evidence, which would be a fatal error.

Furthermore, please be advised that we have only argued on "error of law" whilst arguing the bail applications. However, the appeal hearing on all matters inclusive of the facts would be argued on the 22nd November 2006.

We are fairly confident that our appeal against the conviction will be allowed. In the circumstances, it would be very much appreciated if you could withhold deregistration of our client from the register of the Medical Practitioners.

For ease of reference we enclose a copy of our grounds of appeal to the Court of Appeal and their ruling on our bail application.

Please feel free to consult the writer for any/or further clarification, if required.

Your indulgence in the matter would be highly appreciated."

It is unfortunate that the letter did not expressly state an intention to appeal the Plaintiff’s order. The letter goes no further than to request that the Plaintiff delay implementing its decision until the appeal process has been completed. The letter made no reference to the second ground for deregistration, i.e. the finding of professional misconduct.

The material before the Court indicates that the Plaintiff did not consider the letter dated 1 August 2006 as amounting to an appeal or even an intention to appeal its decision. The Plaintiff also took the view that the request to delay deregistration was not supported by any grounds. However, that is not quite correct. The request was made on the basis that the Defendant had lodged an appeal against both conviction and sentence and that the chances of success were good.

It would appear that the Defendant’s name was removed from the register of medical practitioners on about 4 August 2006. Prior to that date the Plaintiff had not received any further correspondence from either the Defendant or his legal representatives.

On 17 October 2008 the Supreme Court of Fiji quashed the conviction of manslaughter and set aside the sentence. The Defendant had served his sentence before the judgment was delivered. There is as a result no conviction recorded against the Defendant.

Following his successful appeal in the Supreme Court, the Defendant advised the Plaintiff that he intended to resume medical practice on the basis that there was now no conviction recorded against him.

The Plaintiff advised the Defendant that his name had been removed from the register, that he had not appealed the decision to remove his name and that he would need to re-apply for registration.

Correspondence passed between the parties on this matter between 14 November 2008 and 16 February 2009.

The Defendant resumed medical practice on 23 February 2009, although still not registered under the Act. The Defendant had not applied for registration when he resumed medical practice.

It is clear that the position taken by the Plaintiff did not adequately take into account the consequences of having reached a decision to remove the Defendant’s name from the register before the Defendant had exhausted the appeal process. Furthermore the Plaintiff’s position appeared to disregard the denial of natural justice to the Defendant when it concluded that the Defendant was guilty of professional misconduct.

The stance taken by the Defendant did not take into account that the letter dated 1 August 2006 from his legal representation did not strictly constitute a notice of intention to appeal. The Defendant has not dealt with the second ground relied upon by the Plaintiff that he was guilty of professional misconduct.

Having considered the submissions by Counsel I have concluded that the Plaintiff’s conduct has not been so unmeritorious or reprehensible to warrant a departure from the normal basis for costs. As a result the Defendant is entitled to his costs on the standard party party basis to be taxed if not agreed.

Following the commencement of proceedings by the Plaintiff, the Defendant filed and served a Summons in the form of a counterclaim. The Defendant seeks the following substantive orders:

"1. A Declaration that the Plaintiff’s decision to remove the Defendant’s name from the Register of Medical Practitioners is unlawful and invalid.

2. An Order that the decision of the Plaintiff whereby it removed the Defendant’s name from the Register of Medical Practitioners be set aside.

3. A Declaration (or an Order) that the Defendant is (or remains) registered under the Medical and Dental Practitioners Act Cap 255.

4. An Order that the Defendant’s name be restored to the Register of Medical Practitioners."

At the outset it is clear that pursuant to Order 15 Rule 2 (3) the Defendant’s counterclaim is not affected by the grant of leave to the Plaintiff to discontinue the proceedings commenced by Originating Summons.

The Defendant seeks to have the proposed re-opening of his case by the Plaintiff stayed until his counterclaim has been determined by the Court.

However the problem for the Defendant is that, rightly or wrongly, his name has been removed from the register. Whether it should have been is essentially the issue raised by the Defendant’s counterclaim.

In the meantime the Defendant has stated in his affidavit material that he has resumed practising. Section 34 of the Act deals with offences and under the circumstances places the Defendant at risk of prosecution.

The Defendant has not sought any interim relief pending the determination of his counterclaim. It is my opinion that it would be contrary to public policy to make an order that would have the effect of allowing the status quo to continue and thereby indirectly sanction the commission of an offence under the Act.

In view of its stated reasons for withdrawing the proceedings and in view of the material set out in the many affidavits filed in these proceedings, it seems appropriate that the Plaintiff should attempt to resolve the matter according to law without any further unnecessary delay.

Therefore I order that

1. The Plaintiff is given leave to discontinue its proceedings.

2. The Plaintiff is to pay the Defendant’s costs on a party party basis to be agreed and if not agreed to be taxed.

W D Calanchini
JUDGE

9 November 2009
At Suva