NORMAN ERIC TOMLIN v. THE PRELIMINARY INVESTIGATION COMMITTEE OF THE DENTAL COUNCIL OF HONG KONG and Another

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J U D G M E N T

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Mortimer, J.A.: This appeal is of great importance to its immediate parties but legally is the final ripple of a storm in a tea cup.

The Background

2. The appellant is an applicant in judicial proceedings against the Preliminary Investigation Committee of the Dental Council of Hong Kong (the Investigating Committee). A dentist formed a relationship with a patient, the applicant's wife. After the wife left the applicant, he reported the dentist to the Dental Council of Hong Kong with a view to them taking disciplinary proceedings. On such complaints, the procedure is for the Investigating Committee to consider the case and only if there is a prima facie case will the complaint be considered by the Dental Council.

3. Having considered the evidence, the Investigating Committee decided that there was no case fit to go to the Dental Council. The applicant is aggrieved by this decision and motivated by what he conceives to be his public duty he applied for and has been granted leave to apply to strike down the decision.

4. The proceedings before the Investigating Committee are held in private. For this there may be good reason. The application for leave mentioned only the Investigating Committee as respondent in the title to the proceedings. After leave had been granted, the papers were rightly served upon the dentist as a person "directly affected". There is no dispute that this service was necessary under RSC O.53 r.5(3).

5. Thereafter, however, the applicant named the dentist as the 2nd respondent in the title of the proceedings although no remedy of any kind was sought against him. The effect of naming the dentist as a 2nd respondent was to publicise his name in the proceedings.

6. Consequently, although the dentist accepts that the rules require the papers to be served upon him as a person "directly affected" he applied to Liu J, as he then was, to be removed as a named respondent in the title of the action. The dentist's application was "to be disjoined as a respondent or that the proceedings as they relate him be dismissed, or set aside ...". Having heard counsel, Liu J allowed the application that the proceedings, in as much as they were purported to be against the 2nd respondent, be set aside. In the absence of any dispute that the dentist was a person "directly affected" the intent and import of the order was to remove him from the title. The judge ordered the applicant to pay the costs of both the dentist and the Investigating Committee which had appeared by counsel to support the application.

7. From the beginning, the dentist's only concern was not to be named as the 2nd respondent in the title of the action. This simple request, not resisted on appeal by Mr McCoy, for the applicant, has long ago been buried in technical legalistic argument of lawyers. Those for the applicant contending that the law and practice required the dentist to be named as the 2nd respondent in the title and those for the dentist taking the opposite view. Regrettably as often happens, the argument is persisted in, not to establish any rights of the parties but to determine who should pay the costs. For my part, I can only hope that the applicant himself has not been concerned to pursue his resistance to the dentist's application in order to ensure that the dentist's name is given more publicity.

8. The Issue

The issue is simply when law and practice requires an applicant for judicial review against a court or similar tribunal to name a party to the "court" decision which is challenged, as respondent in the title of the action along with the tribunal against which leave to review is sought.

The Law and Practice

9. The foundation of the appellant's submission is the 1995 Supreme Court Practice at 53/1 - 14/39 under the sub-heading - "Persons required to be served". Part of this note reads:

"In addition to any court whose proceedings are in question, the notice of motion or summons should also bear the name, as respondent, of the party to the proceedings before it, and the affidavit of service should show that he has been served - for example, the police (R v Hereford JJ (1943) LTJ T203-4) or, in cases concerning a rent tribunal, the tenant or the landlord, as the case may be." (R v St Helens and Area Rent Tribunal, ex p. Pickavance, February 12, 1952)

10. The rule is O.53 r.5(3) which reads:

"The notice of motion or summons must be served on all persons directly affected and when it relates to any proceedings in or before a court and the object of the application is either to compel the court or an officer of the court to do any act in relation to the proceedings or to quash them or any order made therein, the notice or summons must also be served on the clerk or registrar of the court and, when any objection to the conduct of the judge is to be made, on the judge."

11. A person who has been served becomes by operation of law a party to the proceedings, see s.2 Supreme Court Ordinance, Cap. 4:

"Party includes every person served with notice of or attending any proceeding, although not named on the record."

It is necessary to examine the cases cited in the Supreme Court Practice as authority for the proposition that a party in the dentist's position must be named as a respondent in the title to the proceedings.

12. The Hereford Justices case arose out of an application for certiorari to bring up and quash the decision of a juvenile court. In breach of the rules the proceedings were not served on the prosecutor (the Police) and the affidavit of the applicant criticising the behaviour of the juvenile bench was unanswered. The divisional court was not informed that the prosecution had not been served and the Divisional Court passed severe - and quite unjustified - strictures on the magistrates. When the matter was later resolved, the report reads at 204:

"Goddard, L.J., stated that, apart from the plain words of the rule, it would seem elementary that, if it was sought to have a conviction quashed, the prosecutor upon whose information it was obtained, and who might become liable to proceedings if the conviction was quashed, should be informed, so that he might be heard if he so desired. The explanation offered by the solicitor concerned for his failure to comply with the rule was entirely unsatisfactory."

There is nothing in the report to support the proposition that the prosecution, as a party to be served, is also to be made a respondent in the title to the action.

13. In the report of R v St Helens and Area Rent Tribunal, ex p. Pickavance, [1952] The Times L.R. 455, no reference is made to any requirement that a landlord or tenant should be "named" as respondent in the title of the proceedings. It is trite law that he must be served. The only relevant reference in the report is at the end:

"The Court directed that an order of certiorari should go to the tribunal, but only after the tenant, who had by an error not been served with notice of the proceedings in that Court, had been informed of its effect and given an opportunity to require that the matter be re-argued."

Conclusion

14. In these circumstances I can deal with this matter shortly. The above cases are not authority for the proposition which appears in the note in the Supreme Court Practice that parties to court proceedings and similar which are challenged on review must be named as respondents in the title to the proceedings. Those cases were decided over 40 years ago at a time before the development of judicial review.

15. It is necessary for the courts and the profession to ensure that the rules requiring service in judicial review proceedings are complied with but both are now so familiar with the procedure that there can be no reason, practical or otherwise, for requiring parties to proceedings under review to be made named respondents in the title when no relief of any kind is sought against them. Even if the English cases had said otherwise, for my part, I would not have followed them. There are no rules which regulate the title of applications for judicial review. As a practical guide, I would say that parties against whom relief is sought in the proceedings should be named as parties in the title but no other parties should be so named.

16. A number of New Zealand authorities have been cited to us. They deal with a statutory scheme and a procedure for judicial review quite different from that in force here. They are of great interest but of no value in resolving this case.

17. For my part, I would dismiss this appeal. Without attributing blame, I regard this as a dispute which ought never to have come to court. I would order nisi that the dentist should have his costs of the appeal but that the Investigating Committee should not have its costs of the appeal as it has no proper interest of any kind in the outcome.

Godfrey, J.A. : This is an appeal by Norman Eric Tomlin ("Mr. Tomlin") from an order of Mr. Justice Liu made on 2 June 1994.

18. The proceedings in which the judge made the order under appeal are proceedings for judicial review. Mr. Tomlin seeks review of a decision of the Preliminary Investigation Committee ("The PIC") of the Dental Council of Hong Kong ("the Council") not to refer for inquiry a complaint made by Mr. Tomlin against a dentist ("the dentist"). Mr. Tomlin's complaint is that the dentist has been guilty of professional misconduct.

19. By notice dated 11 November 1993 Mr. Tomlin applied to the Court for leave to apply for judicial review of the PIC's decision. On 17 February 1994, after hearing Mr. Tomlin's solicitor and Counsel for the PIC, the Court gave Mr. Tomlin leave to apply for judicial review. The PIC was given 28 days to file evidence in answer to Mr. Tomlin's complaint.

20. I pause there. At this first stage, it would be appropriate and correct to describe Mr. Tomlin as the (prospective) applicant in the judicial review proceedings leave to institute which had been given. Under Order 53 rule 5 the next steps for Mr. Tomlin to take were, first, to apply by originating motion under sub-rule (1) for review of the PIC's decision; and, secondly, to serve notice of the motion under sub-rule (3) "on all persons directly affected".

21. Mr. Tomlin did just this. He issued the appropriate notice of motion on 2 March 1994. He addressed it to the PIC, and to the dentist, by naming both of them in the title he gave to his notice of originating motion, and he served it upon both of them. (I should add, so that there shall be no doubt about it, that the dentist has always accepted that he was a person "directly affected".)

22. I pause again. At this second stage, it would be appropriate and correct to describe both the PIC and the dentist as respondents to Mr. Tomlin's notice of motion. It was suggested in argument that while it would be appropriate and correct to describe the PIC as a respondent to Mr. Tomlin's notice of originating motion, it would not be appropriate or correct so to describe the dentist. The suggestion was that only the decision maker whose decision is sought to be reviewed ought to be so described; not other persons although their interests are directly affected and who have therefore, just like the decision maker, to be served with the applicant's notice of originating motion. I have had the advantage of reading in draft the judgments of Penlington JA and Mortimer JA, who have accepted this; but with all respect, I am afraid I can find no warrant for it in the rules. The distinction sought to be made seems to me to be a distinction without a difference, and is not a distinction made in the relevant notes in the 1995 Supreme Court Practice (53/1 - 14/39) to which Mortimer, JA refers. On the contrary. The editors clearly do regard a person aggrieved, and accordingly properly served with the proceedings, as a proper "respondent" to the proceedings.

23. However, the dentist objected to being named as a respondent to Mr. Tomlin's notice of originating motion. By summons dated 21 March 1994 he applied for an order that he be "disjoined" (whatever that may mean) as a respondent "or that the proceedings as they relate to him may be dismissed". The dentist's real point seems to have been that he ought not to have been subjected to this sort of public embarrassment. But Mr. Tomlin's application would be heard by a judge sitting in open court anyway : see Order 53 rule 5(1), so such embarrassment could not be long postponed. What the dentist could and should have done was to apply to the judge in chambers for an order that the title to the proceedings be amended so as to refer to him only as "X": or something similar. At the substantive hearing, if he chose to attend it at all, his counsel could ask for an order that he should be referred to only in that same way. The Court would, in my judgment, have had jurisdiction to make such orders and in my opinion it should now do so, of its own motion, to save the dentist from any further embarrassment, though most of the damage has already been done. It must be remembered that the PIC's business is conducted in private. It would be quite wrong for the PIC's proceedings to be publicised, to the injury of a professional man who might ultimately be found innocent of the charge laid against him. It would equally be quite wrong for the Court to refuse him a similar degree of protection.

24. But this was not the order the dentist sought by his summons of 21 March 1994. His summons, in my opinion, was entirely misconceived. Mr. Tomlin was entitled, and indeed bound, to serve him with the notice of originating motion. The dentist became thereby a party (and a proper party) to the proceedings (see the Supreme Court Ordinance, Cap. 4, section 2, providing that the description "party" includes every person served with notice of any proceeding). How it can possibly be inappropriate or incorrect, in these circumstances, to describe the dentist as a "respondent" to the proceedings escapes me completely. Indeed it seems to me the only possible word to describe a party in his position.

25. It follows that in my judgment (1) the dentist's summons of 21 March 1994 was (as I have said) misconceived; (2) the judge's order of 2 June 1994 (granting the relief sought by it) should be set aside; and (3) the appeal allowed. But since Penlington, JA and Mortimer, JA take the opposite view, the appeal must of course be dismissed.

26. I would, in conclusion, express my regret that I have found myself differing from Penlington, JA and Mortimer, JA on a point of practice in a field on which their experience is much greater than mine. I am comforted by the reflection that in any event the result is going to be that the dentist achieves the protection to which all of us consider he is entitled.

Penlington, J.A.: There is only one issue in this appeal. There is no dispute that Dr. Newsome (the dentist) is a person "directly affected" by the application for judicial review and he was rightly served with the notice of the application. The only question is whether he was required to be made a respondent. Mr. McCoy, who appears here for the applicant, relies on several authorities in support of his contention that the dentist had to be so joined. Gordons Crown Office Procedure C5-047 states that in "cases involving court proceedings have, as a respondent, any other party to those proceedings". These are not "court proceedings" and the dentist is not a party to them even though directly affected. R. v. St. Helens Rent Tribunal ex parte Pickavance [1952] The Times L.R. 455 was a motion to quash, by certiorari and mandamus, a decision of a Rent Tribunal. It was not an application under Rule 53. It was an application by a landlord brought in the name of the Crown against the Tribunal. The court held that because a notice to quit had not been served within the period laid down in the Furnished House (Rent Control) Act, a decision of the Tribunal allowing the tenant an extension of his tenancy had to be quashed. However it also held that the tenant should be served with notice of the proceedings and given "an opportunity to require that the matter be re-argued". That decision is cited in the notes to Order 53 in the 1995 Supreme Court Practice (53/1-14/39) as authority for saying that "in addition to any court whose proceedings are in question but notice of motion or summons should bear the name, as respondent, of the other party to the proceedings before it and the affidavit of service should show that he has been served".

27. I am unable to find anything in that decision which supports the proposition in the Supreme Court Practice that because a party is directly affected by an application for judicial review but is not a party to it he must (as opposed to may) nevertheless be joined as a respondent. The St. Helens Rent Tribunal case clearly, on its facts, required that before the matter affecting the tenancy rights of the landlord and the tenant was argued before the Tribunal, the tenant should be aware of the proceedings and, if he wished to appear he could apply to be joined. Here, if the dentist did so wish, he also could apply to be joined as a respondent. Clearly he does not.

28. I have also considered that the New Zealand authorities which were relied on by Mr. McCoy. They are based on s. 10 of the Judicature Act which is very different to the legislation we are considering here. I agree with Mortimer J.A. that while of considerable interest they are of no assistance to us. They are all directed to seeing that a person who may be affected by the result of a judicial review is aware it is taking place and may, if he so chooses, make submissions. Here the dentist was properly made aware of the proceedings. He did not wish to take part in them and there was no need to join him. That was, I have no doubt, done not because the applicant considered that such was required but to publicise his name even though the Investigating Committee of the Dental Council had declined to refer the applicant's complaint to the Council. If the applicant joined the dentist as a respondent only in order to comply with the notes to Order 53 I am unable to understand why he should oppose the dentist's application to be removed as a respondent and to appeal Liu, J.'s decision to so remove him.

29. For the reasons given by Mortimer J.A. and as set out above, I would also dismiss this appeal. I would also order that the dentist should have his costs of this appeal but there should be no order for costs in respect of the Investigating Committee.