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) 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.
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