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State v Fiji Dental Council [2012] FJHC 1063; HBJ41.2008 (4 May 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ACTION: HBJ 41 OF 2008

BETWEEN:

THE STATE

AND:

FIJI DENTAL COUNCIL
Respondent

EX PARTE:

DR SHASHI PRASAD and

DR KAUSTUBH PRABHAKARI JANAIKAR
Applicants

Ms M Rakai for the Applicants
Ms A Nabalarua for the Respondent

DECISION

On 7 October 2008 the Applicants filed an application for leave to apply for judicial review of the decision taken by the Respondent whereby the Respondent purported to revoke the Certificate of Temporary Registration granted to the Second Applicant. The discretion to issue a temporary certificate to practise dentistry is given to the Respondent under section 18 (2) of the Medical and Dental Practitioners Act Cap 255 (the Act).

Although the application for leave refers to decisions taken on and referred to in letters dated 1 May 2008, 27 May 2008 and 17 July 2008, the decision to revoke the temporary registration of the Second Applicant was made on 1 May 2008 and took immediate effect on that day. The letters dated 27 May and 17 July 2008 make reference to decisions to decline the Second Applicant's application for registration under section 14 of the Act.

The application for leave to apply for judicial review was made pursuant to Order 53 Rule 3 (2) of the High Court Rules (the Rules).

The application was supported by an affidavit sworn by the First Applicant on 1 October 2008. Also filed at the same time was a Notice in the form and containing the information required by Order 53 Rule 3 (2) (a) of the Rules.

The learned judge before whom the papers were first placed had concluded that the application for leave should proceed by way of an inter partes hearing. As a result the application was heard on 13 November 2008. The learned judge reserved his decision. Unfortunately the decision had not been delivered by the time the Judge left the bench in April 2009. Nothing further happened until the registry listed the matter before me on 24 September 2010.

On 10 December 2010 directions were given for the filing of affidavit material. An answering affidavit sworn by Arab Khan on 9 February 2011 was filed on behalf of the Respondent. An affidavit in reply sworn by Dr Shashi Prasad on 28 June 2011 was filed on behalf of the Applicants.

When the matter came before me for mention on 1 July 2011 the parties sought and were granted leave to file written submissions. The last of those submissions was filed on 3 February 2012.

The principles upon which leave is granted are well settled. The first matter to be considered is the sufficient interest test. Pursuant to Order 53 Rule 3 (5) the Court should not grant leave unless it considers that an applicant has a sufficient interest in the matter to which the application relates. As this application relates to the decision by the Respondent to revoke the Second Applicant's temporary registration permitting him to practice as a dentist in Fiji, I am satisfied that the Second Applicant has sufficient interest in the matter. It concerned his entitlement to earn his livelihood as a dentist for a period of time in Fiji.

The position of the First Applicant is not so clear. I accept that the First Applicant is not a mere busybody attempting to interfere with the affairs of others. On the other hand, the First Applicant does not have a direct legal or financial interest in the application. The fact that the Second Applicant could not practise on a temporary basis as a dentist in the employ of the First Applicant did not give her a direct legal or financial interest in the subject matter.

However I have concluded that, in view of her difficulty to obtain the services of a local dentist, the First Applicant was affected by and did have a reasonable concern with the decision taken by the Respondent to revoke the Second Applicant's temporary registration.

Connected to the sufficient interest test and part of the inquiry into the standing of the Applicants is the issue of alternative remedies. The Second Applicant's temporary registration was granted under section 18 (2) of the Act. The right of appeal for which provision is made in section 28 of the Act does not apply to section 18 of the Act.

The next issue that needs to be considered is the question of delay. Order 53 Rule 4 requires the judge to consider the question of delay at the leave stage. The extent of that inquiry was discussed by the Supreme Court in Public Service Commission –v- Brian Singh and Another (unreported civil appeal No. 11 of 2008 delivered on 27 August 2010). At paragraph 4 (b) on page 7 the Court stated:

"Where there is an application for leave to issue judicial review where the relief sought is an order for certiorari and the application is made after three months has expired, in such a case the trial judge is allowed to consider whether there was delay and whether the grant of relief is justified. The rule does not allow him to consider delay if the application was filed within the three months period."

The question that arises as a result of this guidance from the Supreme Court is which decision is the application for leave sought and on what date was it made.

In the application for leave the decision that is expressly identified is the Respondent's purported revocation of the Second Applicant's temporary registration as a Dental Practitioner granted under section 18 (2) of the Act. The relief sought included an order of certiorari to remove the said decision whereby the Respondent purported to revoke the Second Application's temporary registrar into this Court and the same to be quashed. In addition, a declaration was sought in respect of that decision.

The grounds of the application that are listed in paragraph 2 of the Application contain references to the decision of the Respondent to revoke the Second Applicant's temporary registration as a Dental Practitioner. The material set out in the Notice filed pursuant to Order 53 Rule 3 (2) contains a number of references to the same decision and no other decision. The affidavit in support refers to the Second Applicant's subsequent attempts to become registered. However, it is not clear whether those subsequent applications were made under section 18 or under another section of the Act (such as section 14). At the time of the subsequent applications for registration the Second Applicant was residing in Fiji pursuant to immigration approval. The correspondence that passed between the Applicants and

the Respondent in relation to the subsequent applications for registration did not refer to the revocation decision in the letter dated 1 May 2008.

I have concluded that the decision which forms the subject matter of this challenge and for which leave is sought is the decision contained in the letter dated 1 May 2005 which was the date that revocation became effective. The other correspondence referred to by date only in the Application for Leave and the Notice do not relate to that decision. I am also satisfied that the present application for leave is not an application for leave to challenge any other decision made subsequent to 1 May 2008. In my judgment the reference to the letters dated 27 May and 17 July 2008 in the material filed by the Applicants is an attempt to link the decision in those letters to the decision in the letter dated 1 May 2008 in order to bring the leave application within the time prescribed by Order 53 Rule 4.

The application for leave was filed on 7 October 2008. The decision for which leave for judicial review was sought was made on 1 May 2008. The application for leave was filed some five months after that decision. It is well beyond the three months limitation period prescribed in Order 53 Rule 4. Under those circumstances the Court may refuse to grant leave. Furthermore, in the present case, the application for leave has been made not only beyond the three month period, but also without any explanation for that delay. In my judgment there has been unexplained undue delay.

Another factor that is relevant to the present application relates to the initial grant of the temporary certificate. The certification granted to the Second Applicant stated that he had been granted temporary registration under section 18 (2) of the Act to practise dentistry in Fiji from 24/4/2008 to 23/7/2008. It was that Certificate of Temporary Registration that was revoked on 1 May 2008. Even if it had not been revoked, its validity came to an end on and was ineffective after 23 July 2008. There would be no practical purpose in granting relief or making an order in respect of a temporary right to practise which would in any event have come to an end in July 2008. What the Second Applicant might have done upon expiration of the temporary registration is speculative as there were options open to the Second Applicant under the Act. This is an example of events overtaking proceedings.

There is another aspect to this application to which reference should be made. Since the decision dated 1 May 2008 revoking the Second Applicant's temporary registration, the Act has been repealed by the Medical and Dental Practitioners Decree 2010 (the Decree) which came into effect on 1 July 2011.

Under section 36 of the Decree temporary registration may be granted to a person who (a) normally resides outside Fiji, (b) is qualified for registration as a dental practitioner in Fiji and (c) proposes to provide dental treatment for a specified project in Fiji under the terms of an agreement between the Government and the person or another government or body. This is clearly a different provision from section 18 (2) of the repealed Act.

One of the remedies sought by the Applicants is for mandamus directing the Respondent to grant registration to the Second Applicant. In my judgment that relief goes well beyond the grievance and the subject matter of the challenge. The complaint is the wrongful revocation of temporary registration. The criteria for temporary registration are now different from the criteria in 2008 as specified in section 18 of the Act.

In my judgment it is not for the Court in an application for leave to speculate what type of registration the Second Defendant might apply for under the Decree. However it is quite clear that even if there were grounds for restoring the Second Applicant's temporary registration for the balance of the period for which it had been granted, it is simply not possible to do so under the Decree.

For all of the above reasons, the application for leave to apply for judicial review is dismissed. The Applicants are ordered to pay the Respondent's costs which are fixed summarily in the sum of $850.00 within 28 days.

W D Calanchini
Judge

4 May 2012
at Suva