Al-Mozany v Dental Council of New South Wales

Events subsequent to 14 February 2020

1. On 25 February and 20 March, 2020 the respondent's solicitor made contact with the appellant's solicitor seeking information concerning when the appellant's further statement would be provided and when a supplementary report from Dr Kosy concerning the three additional patients would be provided.
2. A directions hearing was conducted by Her Honour Judge S Cole, Deputy President on 25 March 2020. The hearing dates in April 2020 were vacated. The appellant was permitted to file and serve a further statement and a further expert report before 10 June 2020. The respondent was permitted to file additional expert evidence before 5 August 2020, and the matter was adjourned for a further directions hearing before me on 4 September 2020.
3. The appellant served statements which he had made concerning the additional three patients on 12 June 2020. The respondent's solicitor enquired of him on 18 June 2020 whether he would be providing additional expert evidence in relation to these patients. On 14 August 2020 the respondent filed and served a supplementary expert report of Dr Cordato. The respondent's solicitor again enquired on 31 August, 2020 of the appellant whether he would be serving an expert report in response to that of Dr Cordato. On 3 September 2020 the appellant informed the respondent that he was seeking an opportunity to file additional evidence.
4. The proceedings came on before me for the directions hearing on 4 September 2020. By that stage Mr Birbas was no longer representing the appellant, who appeared self-represented, and informed me that Mr Connor SC would continue to represent him on a direct brief. I made a number of directions with a view to having the appeal proceedings prepared for further hearing in November 2020. Included in these directions was a direction to the appellant to file and serve copies of any further report of Dr Kosy dealing with the additional three patients within a period of two weeks, including a direction that if this were not complied with the appellant would not be entitled to rely on that report. The proceedings were later set down for further hearing on 13 and 18 November 2020.
5. In large measure, the appellant complied with the directions issued on 4 September 2020, albeit that his compliance was late. On 30 October 2020 the appellant filed an Application seeking interlocutory orders which, in large measure, would permit him to rely on certain evidentiary matters which were filed outside the time limited by the 4 September, 2020 directions. Included within the Grounds upon which the orders were sought was a statement that the appellant had contacted Dr Kosy seeking a further report with respect to the additional three patients. The Grounds stated that "Dr Kosy was not able to provide" a further report with respect to these patients.
6. The appellant filed an Affidavit on 30 October 2020 in support of that Application. In it the appellant referred, inter alia, to the further report of Dr Cordato dealing with the additional three patients which had been filed on behalf of the respondent. He said that he had prepared his own statements with respect to each of the three additional patients. However, Dr Cordato's additional report had also referred to the original six patients. He said that he wanted to file statements responding to the additional comments made with respect to these patients, but he had not had time to complete this, and asked for a short additional time in which to do so.
7. Significantly, also, the appellant said that shortage of personal funds had deprived him of the ability to retain solicitors, although Mr Connor would continue to represent him as counsel. He had borrowed substantial monies to pay for his legal representation since the proceedings commenced.
8. Subsequently, the appellant continued to file evidentiary material on which he sought to rely at the resumed hearing on 13 November 2020.
9. The appellant subsequently made application to have the hearing set down to commence on 13 November 2020 adjourned. In an affidavit filed 11 November 2020 the appellant apologised to the Tribunal for his failure to provide a report of Dr Kosy concerning the additional three patients. He said that he had not been legally represented between 22 May and 8 October 2020 and was under the mistaken impression that Dr Kosy would be able to give evidence about these patients without having provided a written report. He had been informed by Mr Connor at some stage after 8 October 2020 that he had been in error in this regard. In his affidavit the appellant said that although Dr Kosy had been provided with written information concerning the three additional patients, he had not had an opportunity to read this information, would be unable to do so until 20 November 2020 but would be able to provide reports by 30 November 2020.
10. I conducted a directions hearing on 12 November, 2020, at which Mr Connor appeared for the appellant and Ms Horvath appeared for the respondent. I vacated the hearing dates fixed for 13 and 18 November, made orders granting leave to the appellant to rely on specified additional evidentiary matters and, significantly for present purposes, noted the agreement of the parties with respect to the presentation to the Tribunal of the expert evidence. In particular counsel for the parties agreed to confer to prepare a form of questions to be put to both of Drs Cordato and Kosy "to assist in the presentation of their evidence to the Tribunal, and if appropriate, concurrently, and will further confer for the purpose of producing a timetable leading to the final hearing of these proceedings." It was anticipated that further hearing dates would be set upon receipt of that timetable.
11. On 8 December 2020 the respondent's solicitor forwarded an email to the appellant attaching a proposed set of questions to be asked of both experts and suggesting that a meeting between them occur between 4 and 6 January 2021. That communication noted that no further report had been received from Dr Kosy. The solicitor sent a follow-up email on 15 December 2020. It appears that the appellant did not respond. The solicitor also endeavoured to communicate directly with Mr Connor on 18 December 2020. She was advised that the appellant no longer intended to rely on Dr Kosy to prepare an expert report with respect to the three additional patients and was retaining another expert for this purpose. No reply was received to a follow-up email to the appellant on 1 February 2021.
12. The respondent's solicitor approached the Registrar seeking that the proceedings be relisted for further directions. The matter was listed before me for further telephone directions on 23 February 2021. When the matter commenced there was no appearance for the appellant. Ms Horvath made contact with Mr Connor to ascertain whether he could assist. Mr Connor appeared and informed me that the appellant was with him in chambers, and that he, Mr Connor, had not been informed of the directions hearing. Mr Connor said that the HCCC had commenced proceedings against his client and that they concerned the patients currently being considered in these proceedings together with a further four patients. Those proceedings had been the subject of a directions hearing on 15 January 2021.
13. At the conclusion of the hearing I made directions that the appellant provide a proposed timetable for the disposition of the appeal proceedings within 14 days and the respondent was to reply within a further 7 days.
14. On 8 March 2021 the appellant sought an extension of a further 14 days to provide a proposed timetable, without reference to the respondent. The Tribunal by correspondence asked the parties whether they would agree to this application being dealt with on the papers. The application was opposed by the respondent.
15. I listed the matter for a hearing on 27 April 2021 having given the parties notice that the purpose of the hearing was to direct the appellant to show cause why the proceedings should not be dismissed for want of prosecution. The respondent submitted that the proceedings should be dismissed accordingly having regard to the continual failure of the appellant to comply with the various timetables set for the preparation of the adjourned hearing. In particular, the respondent emphasised the lack of communication from the appellant both to it and to the Tribunal concerning these matters.
16. Significantly, the appellant noted for the first time that he had retained another expert, Dr Riann Foot to furnish a report on the three additional patients. In an endeavour to preclude the appellant from being deprived of the opportunity of prosecuting his appeal, further directions were made that day. The appellant was required to file and serve by 27 May 2021 a report of Dr Foot, to respond to the questions to be put to the conclave of experts by 11 May 2021, and to advise the respondent of the availability of Drs Kosy and Foot to participate in a conclave of experts in June 2021, all by 11 May 2021. A further order was made that if the appellant did not comply with any of these orders, then the proceedings "are ipso facto dismissed upon receipt of notification by the respondent of such non-compliance." Additional orders were made, the nature of which are not presently relevant.
17. On 10 May 2021 the respondent's solicitor received a letter from the appellant which stated that each of Drs Kosy and Foot would be available in June 2021 for the conclave and that he agreed to the questions that were to be put to them as formulated in the respondent's solicitor's letter of 8 December 2020. On 11 May 2021 the respondent's solicitor forwarded to the appellant a range of dates in June 2021 for the conclave and asked that he confirm which of those dates would suit each of Drs Kosy and Foot. The solicitor did not receive any response and on 17 May 2021 wrote to the appellant stating that she would schedule the conclave for 11 June 2021 unless advised otherwise by him. The appellant responded the same day confirming that that date was suitable for both experts. She then wrote to the appellant asking him to provide contact details for both experts so that she could make arrangements for the conclave.
18. When she had not received any reply, the respondent's solicitor forwarded a further email to the appellant on 24 May 2021. The appellant made contact on 27 May 2021 attaching a "report" said to be in compliance with orders made by the Tribunal. The document was entitled "Case Critique" and referred to the circumstances of three patients. In later correspondence the appellant confirmed that this represented the report of Dr Foot on the three additional patients. When the respondent's solicitor pointed out that the "report" was not signed, not dated, did not identify the author of the document and did not state that the author had adopted and complied with the expert witness code of conduct the appellant said by email of 2 June 2021 that he would attend to these matters.
19. The respondent's solicitor had endeavoured to arrange for the facilitation of the conclave of experts and retained Epiq Global to assist in this regard and to assist in the preparation of a joint expert report. By email dated 3 June 2021 the solicitor requested that the appellant confirmed the contact details for each of Drs Kosy and Foot, and advised that the conclave had been set to take place between 10 am and 1 pm on 11 June 2021. She did not receive a reply to this email. This led the solicitor to contact both of these experts directly. She was informed that Dr Foot was unable to attend the conclave on 11 June 2021 and that Dr Kosy had not been provided with any relevant documents and was on leave and unavailable on that date. This information prompted the respondent to exercise the liberty to apply which had been granted.
20. The parties were informed that the Tribunal would conduct a hearing on 22 July 2021 in which the appellant would be asked to show cause why the proceedings should not be dismissed for want of prosecution.

The 22 July 2021 show cause hearing

1. On this date I conducted a hearing sitting alone. I did so pursuant to the provisions of section 165B(5A) of the National Law: 165B Constitution of Tribunal for complaints, applications and appeals [NSW] (1) If a complaint is referred to the Tribunal or an application or appeal is made to the Tribunal under this Law - (a) the Tribunal must inform the Council for the health profession of the referral, application or appeal; and (b) the Council for the health profession must select 3 persons (whether or not they are currently Division members) to sit as members of the Tribunal in the proceedings. Note - Schedule 5 to the Civil and Administrative Tribunal Act 2013 provides the President must appoint a person as an occasional member for particular proceedings entered in the Health Practitioner List if that person has been selected for participation in the proceedings in accordance with any applicable procedures specified by or under this Law. If a person selected under subsection (1) (b) is not already a Division member, the President will be required to appoint the person as an occasional member in relation to the proceedings. (2) Except as provided by subsections (4), (5) and (5A), the Tribunal, when conducting an inquiry or hearing an appeal under this Law, is to be constituted by - (a) 1 Division member who is an Australian lawyer of at least 7 years' standing or, in the case of medical practitioner proceedings, 1 Division member who is a senior judicial officer; and (b) 2 health practitioners selected for appointment by the Council as occasional members under subsection (1) (b) who are registered in the same health profession as the health practitioner or student the subject of the inquiry or appeal; and (c) 1 lay person (that is, a person who is not registered in the health profession) selected for appointment by the Council as an occasional member under subsection (1) (b) from among a panel of lay persons for the time being nominated by the Minister. (3) If the health profession has divisions, at least one and, if practicable, both, of the health practitioners referred to in subsection (2) (b) must be registered in the same division of the health profession as the health practitioner or student the subject of the inquiry or hearing. (4) The Tribunal, when constituted to hear appeals under this Law that are restricted to points of law, is to be constituted by - (a) in the case of medical practitioner proceedings, 1 Division member who is a senior judicial officer; or (b) in any other case, 1 Division member who is an Australian lawyer of at least 7 years' standing. (5) The Tribunal, when constituted to exercise a function under section 146D or 148G, is to be constituted by a Division member selected by the Tribunal List Manager. (5A) The Tribunal, when constituted to make an ancillary decision or an interlocutory decision within the meaning of the Civil and Administrative Tribunal Act 2013, is to be constituted by the Tribunal List Manager or the member referred to in subsection (2) (a). (6) A person is not to be selected to sit on the Tribunal if the person is a member of the Council. (7) An inquiry or appeal conducted or heard by the Tribunal under this Law may relate to more than one health practitioner or student if the complaint or complaints the subject of the inquiry or appeal arise from the same conduct.
2. I note that section 165 B(5A) makes reference to an interlocutory decision as defined in the CAT Act. This definition is contained in section 4: interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following - (a) the granting of a stay or adjournment, (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, (c) the issue of a summons, (d) the extension of time for any matter (including for the lodgment of an application or appeal), (e) an evidential matter, (f) the disqualification of any member, (g) the joinder or misjoinder of a party to proceedings, (h) the summary dismissal of proceedings, (h1) the granting of leave for a person to represent a party to proceedings, (i) any other interlocutory issue before the Tribunal.
3. I do not apprehend that there is any controversy with respect to paragraph (h) of this definition. A summary dismissal of proceedings involves dismissal without conducting a hearing on the merits. If I am incorrect in this regard, I am of the view that the dismissal of proceedings for want of prosecution would fall within paragraph (i) of the definition because it is clearly an interlocutory issue, arising before final determination of the proceedings.
4. I have earlier set out the provisions of section 55(1)(d) of the CAT Act. I note that dismissal can occur "at any stage of the proceedings."
5. At the hearing the appellant was self-represented and Ms Horvath appeared for the respondent.
6. The appellant informed me that Dr Kosy saw no value in participating in a conclave with Dr Cordato, but later amplified this by saying that he would participate if required. The appellant informed me that he saw no value in a conclave of experts because Dr Cordato's opinions are based on an old-fashioned approach to the practice of orthodontics, whereas he was advocating the use of more modern techniques. It was his view that the matter should be set down for hearing on the present state of the expert opinions. This submission is contrary to the approach taken by the appellant's Senior Counsel during the directions hearing on 12 November 2020. As a result of the consent position taken by both parties at that hearing, the proceedings were conducted thereafter on the basis that the experts would participate in a conclave, dealing with questions which had been jointly formulated by the parties so as to assist the Tribunal in determining them in an efficient and effective manner. Indeed, together with the failure of Dr Kosy to prepare a report dealing with the three additional patients, the failure to arrange for the participation of the experts in a conclave was a fundamental impediment to the implementation of arrangements to finalise the proceedings.
7. As I have previously indicated, a basic underlying problem which the appellant has encountered in prosecuting these proceedings has been his inability since mid-February 2020 to provide an expert report concerning the three additional patients identified during the course of the hearing between 12 and 14 February. I have set out the long and tortuous history in some detail, because the circumstances which pertain to this history are fundamental in determining whether to exercise the discretion to dismiss the proceedings.

Consideration

1. I should state at the outset that I recognise that the appellant has had to work under some difficulties in that he has only intermittently been legally represented, he has encountered financial difficulties in dealing with the proceedings and has had to deal more latterly with concurrent proceedings initiated by the HCCC which I assume involve allegations of misconduct against him.
2. Nevertheless, the appellant has been less than forthright in dealing with the respondent and in dealing with the Tribunal. As the history which I have set out above reveals there have been many occasions on which the appellant has failed to respond to requests made by the respondent and has failed to inform both the respondent and the Tribunal of the circumstances which prevailed from time to time which impacted upon his ability to prepare for and prosecute his appeal.
3. The Tribunal has fixed further hearing dates on a number of occasions which have had to be vacated because of the appellant's failure to ensure that he was ready to proceed. In addition, the Tribunal's attempts to fix further hearing dates on a number of occasions have been frustrated by the appellant's failure to ensure that he was ready to proceed. During all of this period the respondent has been willing, ready and able to participate in the further hearing of the proceedings and has endeavoured to facilitate this occurring.
4. A consideration of the application of section 55(1)(d) must be made against the statutory context which circumscribes these proceedings. The National Law requires that proceedings in this Tribunal be conducted expeditiously as provided for in Schedule 5D: Schedule 5D Proceedings before Professional Standards Committees or the Tribunal [NSW] 11 Expedition of inquiries and appeals [NSW] (1) It is the duty of a Committee or the Tribunal to hear inquiries and appeals under this Law and to determine those inquiries and appeals expeditiously. (2) Without limiting subclause (1) - (a) an inquiry or appeal related to action taken by the Council under section 150 must be listed for hearing by a Committee or the Tribunal as soon as practicable; and (b) a Committee or the Tribunal may postpone or adjourn proceedings before it as it thinks fit.
5. Furthermore, section 36 of the CAT Act also requires this Tribunal to facilitate the just, quick and cheap resolution of these proceedings: 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it - (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal - (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.
6. The proceedings were adjourned in February 2020 to allow both parties to adduce expert evidence with respect to the circumstances of the three additional patients which are of concern to the Tribunal. The respondent attended to this matter expeditiously. Unfortunately, although the appellant produced an unsigned, undated and un-authored report on 27 May 2021 the respondent has substantially been in default throughout the whole of this fifteen months' period.
7. It is well recognised that there is a public interest in the expeditious resolution of proceedings, necessitated in part so as to minimise the adverse impact of proceedings which are drawn out or conducted inefficiently on the limited resources of courts and tribunals. This principle has been enshrined by the High Court of Australia. A well-known example is provided by Aon Risk Services Australia Limited v Australian National University [2009] HCA 27. Although the circumstances which applied to those proceedings were significantly different to those which I am called upon to consider in these proceedings, the following observations in the joint judgement of Gummow, Hayne, Crennan, Kiefel and Bell JJ at [98] are pertinent Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
8. In Aon French CJ in referring at [5] to the public interest said ……………..the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.
9. In considering whether to exercise the discretion to dismiss these proceedings for want of prosecution I take into account that there is limited evidence that the delays which have occurred would impact upon the determination of the proceedings. In essence, the outstanding issues relate substantially to a determination by expert witnesses whether the professional conduct of the appellant posed a risk to the safety of the public such that the suspension of his registration should be continued or revoked. That determination involves a consideration of the appellant's clinical notes. However, I note that the appellant has given oral evidence about patients from his recollections of what occurred which are not referred to in his clinical notes, and it is possible that evidence of this kind might also be given with respect to the three additional patients. Delays in receiving this evidence might arguably impact upon the appellant's recollections not contained within his clinical notes.
10. There is less urgency in the determination of these proceedings of the kind referred to in Schedule 5D of the National Law. The current status of the suspension of the appellant's registration is protective of the safety of the public and the public interest, which are of paramount concern under the National Law.
11. Nevertheless, the provisions of section 36 of the Act apply. In addition, the public interest in optimising use of the resources of this Tribunal, and the resources of the respondent operate, and are matters to be taken into account in the exercise of discretion.
12. On one view, the orders made by me on 4 September 2020 referred to in [13] above and on 27 April 2021 referred to in [25] above had the effect of precluding the appellant from relying on any expert report relating to the three additional patients and brought about the dismissal of the proceedings respectively. The "show cause" hearing was conducted on 22 July 2021 without reference to these matters either by the Tribunal or by the respondent. However, the appellant could not have been in any doubt that he was expected to comply with the earlier directions made, and that the consequences of not doing so were potentially fatal to his appeal. Furthermore the appellant had been aware of the power of the Tribunal to dismiss the proceedings for want of prosecution since September 2019 when the earlier application to the Tribunal had been made by the respondent.
13. The appellant has always proceeded on the basis that he must have access to expert opinion to counter that relied upon by the respondent provided by Dr Cordato. Despite the fact that the appellant seemingly continues to have access to Dr Kosy with respect to the original six patients, and has retained another expert, Dr Foot, there is no indication that either of them would be prepared to participate in a conclave of experts, a process which had previously been agreed between the parties, and in the case of Dr Foot no report in proper form has been prepared. These are continuing difficulties, and I am concerned that even if the appellant were given "one more chance" in addition to the "chances" afforded to him in the orders of 4 September 2020 and 27 April 2021 the proceedings would still not be ready for a final adjourned hearing.
14. As I explained to the appellant during the course of the hearing on 22 July 2021, and as he readily acknowledged, some of the difficulties which have arisen have been created by his failure to respond to the respondent's communications either in a timely manner, or at all. This behaviour detracts from any confidence that the appellant will be able to manage the necessary steps to bring these proceedings to a conclusion.
15. The Tribunal has endeavoured on several occasions over a long period of time to fix dates for the adjourned hearing. There have been lengthy and significant failures by the appellant to pursue the necessary steps to enable the adjourned hearing to take place which I have set out in detail above. These delays, coupled with the fact that the proceedings are still not ready to be set down for an adjourned hearing and my lack of confidence in the appellant that he will be able to achieve this state of readiness are all powerful factors which militate towards a dismissal of the proceedings for want of prosecution. These factors outweigh, on balance, the adverse impact upon the appellant in precluding him from prosecuting this appeal. I conclude that the appeal must be dismissed accordingly.

Costs

1. The question of costs has not been argued before me. I shall reserve costs and grant liberty to apply, which must be exercised within one month of this date.

Orders

1. I make the following orders: 1. the proceedings are dismissed for want of prosecution 2. I grant liberty to apply with respect to costs which must be exercised within one month of this date I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 August 2021