Des Vignes v the Medical Board of Trinidad
| Jurisdiction | Trinidad & Tobago |
| Judge | Smith, J. |
| Judgment Date | 07 December 1999 |
| Neutral Citation | TT 1999 HC 116 |
| Docket Number | HCA No. 481 of 1999 |
| Court | High Court (Trinidad and Tobago) |
| Date | 07 December 1999 |
High Court
Smith, J.
HCA No. 481 of 1999
Mrs. G. Morean and Mr. Lamont instructed by Mrs. D. Scott for the applicant.
Mr. Karl Hudson-Phillips (Q.C.), Mr. AvarySinanan and Mr. Martin George for the respondent.
Judicial review - Application for certiorari — Whether the applicant should be allowed to pursue his claim for certiorari to quash the decision to hold the inquiry in light of a delay of more than 3 months in challenging the decision — Whether the court should exercise any discretion to grant relief having regard to the right of appeal contained in section 29 of the Medical Board Act Chap. 29:50 — Court found that the failure to register his qualifications did not cause a breach of the Act — Court held that the inquiry into whether the applicant had acted disgracefully was valid — Rees v. Crane [1994] 1 All E.R. 833 applied — Court held that the panel on the inquiry was biased — Order of certiorari granted to quash the decision to continue the inquiry.
By letter dated the 13th August, 1998 which was received by the applicant on the 14th August 1998 the Council of the Medical Board of Trinidad and Tobago (hereafter referred to as “The Council”) wrote to the applicant stating that it had come to their attention that during the preliminary inquiry and the trial of one Brad Bryce, the applicant had represented to the court that he was (1) A Pathologist and (2) A Forensic Pathologist. The letter went on to indicate that the register of medical practitioners showed that at the time the representations were made, the applicant was neither registered as a Pathologist nor a Forensic Pathologist, and that by virtue of the powers vested in The Council by section 24(2) of the Medical Board Act Ch 29:50 (hereafter referred to as “The Act”) they proposed an enquiry to be made to determine whether the representations of the applicant and his failure to register with the Medical Board such post graduate diplomas and/or degrees which he may have possessed amounted to infamous and disgraceful conduct and if so, what sanction to impose upon the applicant. The inquiry was set to commence on the 3rd September, 1998 at the Medical Board office.
On the 3rd September, 1998 the applicant attended the inquiry with counsel who made certain submissions relating to the jurisdiction of the Council to conduct the inquiry, and further hearing of the inquiry was adjourned sine die.
The issues surrounding the qualifications of the applicant received press coverage and on the 4th March 1999 the President of the Council, Dr. M. Sinanan and the secretary of the Council Dr. K. Mungrue, held a press conference and also issued a statement on behalf of the Council. On the 8th March, 1999 the applicant received a letter dated 4th February 1999 indicating that the Council had taken advice on counsel's submissions made on the 3rd September and had found them to be devoid of merit and was, therefore, proposing to continue the inquiry on the 10th March 1999.
On the 10th March, 1999 the applicant brought this application and obtained a stay of the inquiry.
At the start of the hearing of this application, the applicant abandoned relief (d), namely the request for a declaration that he was entitled to have shown on the register, his “certificate” in Forensic Pathology pursuant to section 15 of The Act. The applicant did so in recognition of his contention that it was the Medical Board and not the court which had primary jurisdiction to determine what additional qualifications could be entered on the register pursuant to section 15 of the Act.
During the hearing of this application the main issues in the case were:
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(A) whether the applicant should be allowed to pursue his claim for certiorari to quash the decision to hold the inquiry in the light of the delay of more than 3 months in challenging the decision and
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(B) Whether the court should exercise any discretion to grant relief (even if a case could be made out having regard to the right of appeal contained in section 29 of the Act,
During the course of argument, the respondent abandoned issue (A) referred to above after having teen referred to the authorities of R v. Criminal Injuries Compensation Board (C.A.) [1997] 3 W.L.R. 776 and the decision of Ramlogan, J. in H.C.A. S 1194 of 1984 Re the Application of Moonsie. The only remaining issue was issue (B) as stated above, concerning the discretion to grant relief in view of the right of appeal.
Section 29 of the Act provides that:
“Any person aggrieved by the refusal of the Council to grant registration or a temporary licence to him, or by the erasure of his name from the Register, or by an order for his suspension under section 24(2)(b) or by the revocation or suspension of his licence, may, within three months after the date an which notice is given to him by the Council of such refusal, revocation or suspension, appeal against the Council's decision to a Judge in Chambers who shall give such directions in the matter as he may think proper, including a direction as to the costs of the appeal.”
In deciding on the issue of the discretion of the court to grant relief in the light of the appeals procedure set out in section 29 of The Act, I accepted certain principles as enunciated in Harley, Development Inc. v. The Commissioner of Inland Revenue (P.C.) [19960 1 W.L.R. 727 as being the correct application of the law in this area.
At page 735(f)–136c Lord Jauncey cited Lord Scarman's dictum in Ex Parte Preston (H.C.) [1985] A.C. 835 that:
“A remedy by way of judicial review is not to be made available where an alternative remedy exists. This is a proposition of great importance. Judicial review is a collateral challenge; if is not an appeal. Where Parliament has provided by statute appeal procedures, as in the taxing statutes, it will only be very rarely that the courts will allow the collateral process at judicial review to be used to attack an appealable decision. This proposition was elaborated in Inland Revenue Commissioners v. Aken [1990] W.L.R. 1374, 1380, by Fox, L.J. in the following passage… That then is the true principle applicable in these cases, namely, that the statutory machinery is exclusive machinery for an appeal from a notice of assessment. There is normally no other. However, I do not say there are no cases in which, exceptionally, a challenge by way of judicial review or otherwise to a decision of the revenue would be possible. There may be cases where, for example, there has been some abuse of power or unfairness, which would justify the intervention of the court: see for example Reg. v. Inland Revenue Commissioners, Ex Parte Preston [1985] A.C.835. But that is exceptional. Normally the statutory machinery under the Taxes Management Act, 1970 is the exclusive machinery for challenge to an assessment by a taxpayer. In my judgment there is nothing in the present case which comes near to such impropriety by the revenue as to justify departure from the normal procedure.
There are other dicta of high authority to the same effect. Their Lordships consider that, where a statute lays dawn a comprehensive system of appeals procedure against administrative decisions, it will only be in exceptional circumstances, typically an abuse of power, that the courts will entertain an application for judicial review of a decision which has not been appealed. The two decisions in these appeals involve no unfairness and hence no abuse of power.” (emphasis mine,)
Exceptional circumstances such as the abuse of power or unfairness therefore must be present before the court intervenes in a situation where there is a statutory right of appeal. A further dicta from Harley's case which I find relevant is that:–
“for the purposes of judicial review it matters not whether the assessor's decision was wrong. What matters is whether it was so wrong that he could be said to have exceeded his jurisdiction in making it whereby it was a nullity” (see pg 722G).
In my view, where a decision is a nullity in the sense just referred to, it may be that such a decision is an abuse of process or so unfair that an application for judicial review may be pursued notwithstanding the existence of a statutory appeals procedure.
In this judgment, I will deal with the arguments presented under the headings (i) abuse of power and (ii) unfairness.
A major part of the argument an behalf of the applicant centered an the submission that the Council did not have the legal authority or jurisdiction under the Act to hold this inquiry. Before detailing the submission it is necessary to examine the relevant provisions of the Act.
Section 10 of the Act mandates the registration of the primary qualifications of every medical practitioner. Section 15 deals with the registration of higher additional qualifications or specialties (as they are known) and provides that:–
“Any member of the Board who has obtained a diploma higher than or additional to the diploma in respect of which he has been admitted to registration and which is approved by the Board shall, on payment of such fee as may be prescribed, be entitled to have the higher or additional diploma shown in the Register in substitution for or in addition to, as the case may be, the diploma previously shown.
“diploma” is defined in section 2 as:–
“… any diploma, degree, fellowship, membership, licence, certificate or other status or form of recognition granted by a university, college or duly licensed body conferring authority to practise medicine in the country or place where granted;”
Section 24(5) provides that
“…. every medical practitioner shall be deemed guilty of infamous or disgraceful conduct who–
(h) Directly or indirectly holds himself out to the public as a specialist or as being...
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