Bar-Mordecai v Medical Council of NSW

NCAT Occupational|2014-11-21|Before: Judge Boland AM, Adams J

Introduction 1Mr Michael Bar-Mordecai is a former medical practitioner. Pursuant to leave granted by Justice Adams in the Supreme Court on 20 May 2014 he has commenced ex parte proceedings in this Tribunal seeking a reinstatement order under s 163A of the Health Practitioner Regulation National Law (NSW) (the National Law) to the register of practitioners maintained by the Australian Health Practitioner Regulation Agency in conjunction with the Medical Board of Australia. 2For convenience, in these reasons I will refer to Mr Bar-Mordecai as "the applicant". 3As required under s 163 (2) of the National Law, the applicant lodged his application with the Executive Officer of the Medical Council of NSW (the Council). As required under s 163 (3) the Council referred the application to the NSW Civil and Administrative Tribunal as the appropriate review body. The application was received in the Tribunal on 10 September 2014 4The applicant wrote to the Medical Council on 1 September 2014. He requested the Council to progress the matter with expedition. He also stated he wished to have the application proceed ex parte. 5A letter was forwarded to the applicant by the Tribunal dated 10 September 2014 requesting him to complete a general application form. The letter was copied to the Medical Council of Australia. 6The applicant's review application was listed for directions before me on 29 October 2014. On that occasion, Mr Ginters of Counsel, instructed by the NSW Crown Solicitor, appeared on behalf of the Council. Mr Ginters made an oral application that the Council be granted leave under s 165 J (2) of the National Law to appear at the inquiry into the review application. The application made on behalf of the Council was opposed by the applicant. At the time of the Council's application, the applicant had filed some material in support of his substantive application. Mr Ginters, on behalf of the Council, provided me with a document entitled "issues paper". I made directions for the applicant and the Council to file submissions or material in support of, or in opposition to, the oral application. 7On 3 November 2014 the applicant filed an affidavit dated 3 November 2014 with substantial annexures, together with written submissions of twenty pages. 8On 19 November 2014 Ms Lowson of counsel, instructed by the NSW Crown Solicitor filed written submissions on behalf of the Council. 9At the adjourned hearing the applicant tendered written submissions in reply to Ms Lowson's submissions. He withdrew a number of paragraphs of the submissions which contained improper allegations against Mr Ginters. 10On 21 November 2014 I drew the parties' attention to s 44 of the Civil and Administrative Tribunal Act 2013 (NSW) and asked whether it would be more appropriate for an application to be made under that provision for the Council to be joined as a party rather than leave to appear being granted under s 165J(2) of the National Law. As Ms Lowson did not have instructions in respect of such an application the parties requested I proceed to determine this application, and that the matter be re-listed before me to consider any application which may be brought under s 44 of the Civil and Administrative Tribunal Act, and to make necessary directions for the preparation of the matter for the substantive hearing. I acceded to that request.

Relevant provisions of the National Law 11It is appropriate that at this point I refer to relevant provisions of the National Law. I commence by referring to s 163 A, the provision in respect of which the applicant has brought his substantive application. That section provides as follows: 163A Right of review [NSW] (1) A person may apply to the appropriate review body for a review of-- ... (b) a relevant order made in relation to the person. (2) A person may also apply to the appropriate review body for a review of an order made under this Division. (3) An application for review of an order may not be made-- (a) while the terms of the order provide that an application for review may not be made; or (b) while an appeal to the Tribunal or the Supreme Court in respect of the same matter is pending. (4) In this section--"decision-making entity" means the following-- (a) a Committee; (b) a Performance Review Panel; (b1) a Council, but only in relation to orders made under this Division or under Subdivision 5 of Division 3; (c) an existing health practitioner tribunal (within the meaning of Part 2 of Schedule 1 to the Civil and Administrative Tribunal Act 2013) or the Chairperson or Deputy Chairperson of such a tribunal; (d) the Tribunal or the Tribunal List Manager; (e) the Supreme Court. "relevant order", in relation to a person, means any of the following orders made by a decision-making entity-- (a) ....; or (b) an order that the person's registration be cancelled or that the person disqualified from being registered in a particular health profession; or (c) an order that conditions be imposed on the person's registration in a health profession. 12It is also relevant to set out the provisions of s 163B and s 163C. Those sections relevantly provide: 163B Powers on review [NSW] (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following-- (a) dismiss the application; (b) make an order ending or shortening the period of the suspension concerned; (c) make a reinstatement order; (d) make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions; (e) make an order-- (i) ending or shortening the period of a prohibition order; or (ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions. (2) If the appropriate review body makes an order altering a critical compliance condition, or removing a critical compliance condition and imposing a new condition, the altered condition or new condition is a "critical compliance condition" unless the body orders otherwise. (3) A "reinstatement order" is an order that the person may be registered in accordance with Part 7 if-- (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time. 163C Inquiry into review application [NSW] (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. 3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint. 13The review provisions appear in Part 8 of the National Law. That Part is a substituted NSW provision. While s 175A specifies the parties to an appealable decision under the Part, there is no provision specifying the parties to a review application under s 163A. 14I pause to note that under Schedule 5D cl 9 a person appointed by the Commission may act in proceedings before the Tribunal as a nominal complainant in place of the actual complainant. Further, under cl 10 an officer of the Ministry of Health may intervene in proceedings "or a person appointed by the Commission may intervene and has a right to be heard" [my emphasis] in any proceedings before the Tribunal. Commission is not defined in either s 5 or the Dictionary to the National Law. I draw the inference as Schedule 5D is a NSW provision the word "Commission" where appearing is a reference to the Health Care Complaints Commission. 15It is of note that the appropriate review body may, in certain circumstances, be the Council. In such circumstances, the Council could not be a party to the application. Further, as in this case, the parties to the proceedings in which the relevant order was made were not the applicant and the Council, but rather the Health Care Complaints Commission, an independent statutory authority and the applicant. 16The Council makes its oral application under s 165J (2). That section provides as follows: 165J Representation before Tribunal [NSW] (2) The Tribunal may grant leave for another person to appear (whether in person or by an Australian legal practitioner or another adviser) at an inquiry or appeal if the Tribunal is satisfied that it is appropriate for the person to appear. 17In determining this application, as with any application under the National Law, the objects and principles underpinning the National Law are relevant. The object and principle in NSW found in s 3A underpins this application. The relevant parts of s3 and s 3A are: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for-- (a) the regulation of health practitioners; and ... (2) The objectives of the national registration and accreditation scheme are-- (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and (3) The guiding principles of the national registration and accreditation scheme are as follows-- (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; ... (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.

The applicant's affidavit 18I commence my consideration of the applicant's affidavit noting, for the purposes of this interlocutory application, I have not made a ruling on the admissibility of the contents of the affidavit and have taken into account that the applicant is self represented and does not have the benefit of legal advice. 19I note, however, that I have in assessing the merits of this application, taken into account only relevant factual material, and disregarded any material which is by way of submission, opinion evidence, is irrelevant, or is scandalous, or offensive. 20The applicant commences his affidavit by referring to an asserted conversation he had with a solicitor of the NSW Crown Solicitors Office in August 2002 during proceedings in the Supreme Court. He asserts that, because the Council were aware of the contents of the asserted conversation, the Council had a duty to commence criminal proceedings against the Presiding Judicial Officer of the former Medical Tribunal of NSW because the decision was not that of the whole Tribunal. That paragraph has no relevance to this application. At the hearing on 21 November 2014 the applicant agreed that any irregularity in the order of the previous Tribunal was a matter for an appeal, and is not a matter to be dealt with on a review application. Accordingly I have disregarded that material. 21Paragraph 3 of the affidavit refers to a conversation with a secretary at Dr Robert's rooms about 2007. I can discern no relevance in this paragraph to the matters in issue in this application. 22Paragraphs 4 and 5 have no relevance to this application and I disregard them. 23The applicant refers to being treated by a Dr Roberts and annexes to his affidavit handwritten documents which he says are the doctor's clinical notes from 2006 to 2008. There is no information in the affidavit as to how the applicant came into possession of these notes, or their authenticity. Even if they are Dr Robert's notes, they are not relevant on this interlocutory application. They may have some limited relevance at the substantive hearing. 24In paragraph 10 of his affidavit the practitioner is critical of Dr Phillips, a medical practitioner retained by the Council it appears when the applicant sought re-instatement on an earlier occasion. 25Finally, the applicant expresses criticism of her Honour Murrell DCJ (as her Honour then was) because of a question she asked Dr Roberts in the course of the proceedings. There is no evidence in the applicant's material to indicate that he challenged the decision of that Medical Tribunal at that time by way of appeal, or if he did, the result of such appeal. 26In summary, there is nothing in the applicant's material which supports a finding that the Council have acted improperly in previous proceedings or any other reason why it would be inappropriate for leave to be granted to it.

The applicant's submissions 27I have carefully read the applicant's lengthy written submissions and submissions in reply. I do not propose in these interlocutory reasons to repeat what he has said, nor do I propose to canvas matters which are clearly irrelevant, scandalous and offensive particularly the submissions relating to a number of judicial officers. 28I note at this point the applicant has been granted leave to bring this application limited to specific matters, and many of his submissions do not appear to have relevance to this application, or to the substantive matters in respect of which he has been granted leave. 29Doing the best I can I surmise the applicant's objections to the Council having a role in these proceedings is because he feels, in the past, proceedings that were prosecuted by the Health Care Complaints Commission were unfair, and/or have been unduly lengthened by matters pursued by the Health Care Complaints Commission and then abandoned. He is also critical of the Council for causing delays in proceedings in 2007/2008 by, amongst other matters, seeking orders that proceedings be stayed until the High Court dealt with an application for special leave filed by the applicant. 30The applicant repeats his criticisms set out in his affidavit in respect of Murrell DCJ, and also asserts delays were caused by the Council in failing to file material in a timely manner, and in consenting to the Medical Tribunal's own motion to set aside his application for a re-instatement order as an abuse of process. 31He also asserts the Tribunal is in breach of the National Law in failing to have this matter dealt with expedition and that the Council has been complicit in this failing. 32The applicant's submissions in respect of s 41I were abandoned by him at the adjourned hearing. 33The applicant also notes that the Council did not require the applicant to undergo any medical or psychiatric examination prior to the hearing. 34I do not propose to address the orders the practitioner submits the Tribunal should make. They have nothing to do with this application and are clearly outside the type of relief which could be afforded in the substantive proceedings. Rather I propose to confine these reasons strictly to the application before me. 35In summary, the gist of the relevant aspects of the applicant's opposition to the Council having the right to appear in these proceeding is his view that the Council has acted unfairly and caused unwarranted and unnecessary delays in past proceedings, and has not facilitated the expedition of these proceedings.

The Council's submissions 36The Council provided written submissions received on 19 November 2014. 37The submissions are those of Ms Lowson of counsel. Having set out the relevant provision, s 165J(2), Ms Lowson notes the test to be applied in this application is whether or not it is appropriate for the Council to be granted leave. She refers to the dictionary definition of appropriate and submits the word should be construed in its ordinary grammatical meaning. I agree. 38Ms Lowson advances three reasons why it is appropriate for the Council to be granted leave: (1)to assist the Tribunal in discharging its functions and in particular, in ensuring paramount consideration is given to the protection of the public; (2)because the Council has substantial experience in acting as a respondent in applications for review under s163C and is accordingly well placed to assist the Tribunal discharge its functions; and (3)the Council has been the respondent in all previous review applications and has specific corporate knowledge of relevant considerations. 39At paragraph 9 and 10 of her submissions Ms Lowson notes: Further, in circumstances where the applicant has been the subject of adverse comment as to his credibility in previous decisions and judgments, there would be no opportunity to cross-examine [the applicant] and challenge, in the ordinary course, his version of events. A statutory 'public interest' test imports a discretionary value judgment to be made by reference to undefined factual matters. See Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379 at 400-401[42] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. 40Paragraphs 14 to 19 of her submissions are of relevance and I propose to set them out in full. They are as follows: The Council's Executive Officer is the person with whom a section 163A review application must be lodged (see s 163(2) of the Act). It is unsurprising in these circumstances that the Council regularly appears as the contradictor in section 163A review applications (and appeared in the review applications brought under s 92 of the Medical Practice Act 1992). The Council has a number of statutory responsibilities linked to the regulation of the medical profession. The existence of these responsibilities lends weight to the proposition that it ought to be granted leave to appear at the inquiry. The Council's responsibilities including being required by section 41I1(1) to ensure information in relation to any conditions imposed on the registration of a medical practitioner and any other order made in respect of a medical practitioner under the Act is available to the public on request. The Council plays an important role in monitoring the performance of medical practitioners. Again, this lends weight to the proposition that it ought to be granted leave to appear at this inquiry. 41I am also satisfied that the matters raised in [21] of Ms Lowson's submissions require that I afford them considerable weight. There she says: The applicant is able to make this application only by leave of the Supreme Court, due to his status as a vexatious litigant. The Tribunal will be assisted by the Medical Council appearing as respondent and seeking appropriate orders, including but not limited to ensuring that the proceedings are conducted in accordance with the conditions attached to the leave granted by the Supreme Court. 42Ms Lowson addresses the applicant's submissions in paragraphs [23] to [29]. She notes, correctly, that the applicant's submissions seek impermissibly, having regard to the terms of s163C (2), to challenge decisions of previous Tribunals. 43Para [27] is particularly relevant. There she submits: The fact that the applicant alleges the Council has engaged in (mis)conduct such that it should not be granted leave to appear at the inquiry does not establish that the alleged (mis) conduct has been engaged in. The Medical Council denies that it has been involved in any such misconduct.

Discussions and conclusions 44While I do not propose to canvas the applicant's submissions which deal with his grievances about how, in his perception, the Health Care Complaints Commission or the Council conducted proceedings in the past, I accept that proceedings conducted ex parte may be determined more speedily than if the Council is granted leave to appear. But that is only one consideration and any delay may be overcome substantially by careful case and trial management such as now employed in courts and in this Tribunal. In that regard I note the objects in s 3(d) of the Civil and Administrative Tribunal Act namely "to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible". 45I note that in a number of review applications coming before the Tribunal the Health Care Complaints Commission is named by applicants as a party, or that the Health Care Complaints Commission appear on such applications pursuant to the right to intervene under cl 10 of Schedule 5D. This is understandable in situations where the applicant and the Health Care Complaints Commission were the parties in the proceedings which are being reviewed, particularly where a Tribunal may, by order, (see s 163A (4) (c)) impose conditions on a practitioner's registration that are monitored by the Council. In such case it may be inappropriate for the Council to be a party. It does not follow therefore, in my opinion, that the Council is automatically a party to a review application. 46I also note that s 165J (2) confers a right to appear, as distinct from a right to intervene in the proceedings (see cl10 of Schedule 5D). I have expressed, without deciding, a preliminary view that the apparent lacuna in the National Law, namely to enable a person to be joined as a party to the proceedings, may be overcome by s 44 of the Civil and Administrative Tribunal Act. Sub-section (1) of that section provides the Tribunal may order that a person be joined as a party to the proceedings. In my view this is not a case where, by reason of s 35 of the Civil and Administrative Tribunal Act, the practice and procedure provision in Part 4 of that Act are inapplicable. 47The applicant has been declared a vexatious litigant and it is clear from his submissions he has been involved in substantial and complex prior litigation. He is unrepresented, and in his own submissions he notes that he cannot locate some documents which may be appropriate to be before the Tribunal. 48I am satisfied that the inquiry into the applicant's re-instatement application will be dealt with more efficiently by a fully informed Tribunal assisted by both the applicant and the Council in determining these proceedings. 49In so finding I take the following into account. First, the need to ensure any decision made by the Tribunal has the safety of the public as it paramount consideration. That object may be best met by the Tribunal having the benefit of the Council's expertise. Second, I note the obligation of the Council to act as a model litigant before the Tribunal. In this respect I also note the obligation on the applicant (and the Council) as set out in s 36 (4) of the Civil and Administrative Tribunal Act to give effect to the guiding principle, to obey directions and orders of the Tribunal. Third, the Council has had a significant and substantial corporate knowledge of this matter which is likely to assist the Tribunal. Fourth, the Council is likely to be able to assist the Tribunal by ensuing it has relevant material before it, taking into account the terms of the leave granted to the applicant by the Supreme Court, to reach the proper decision. The provision of all relevant material is also likely to reduce hearing time particularly in circumstances where the applicant is self-represented. Finally, any prejudice which the applicant perceives may be caused by delay may be ameliorated by strict case management including required compliance with directions and orders. 50For these reasons I propose to grant leave to the Council to appear at the re-instatement hearing. Pursuant to that leave I also propose to permit the Council to file such material as it believes would assist the Tribunal to determine the inquiry. I stand over the matter so that any further application that may be made under s 44 of the Civil and Administrative Tribunal Act can be considered by me and I can make appropriate directions to ready this matter for hearing. 51I take this opportunity to note if a person is joined as a party rather than being granted leave to appear, there can be no dispute that such a person has all the rights, privileges and obligations of a party before the Tribunal. ORDERS (1)Leave is granted to the Medical Council of NSW (the Council) to appear in the inquiry into the application by Mr Michael Bar-Mordecai for a re-instatement order under s 163A of the Health Practitioner Regulation National law. (2)The Council may file such material as it believes would assist the Tribunal to determine the inquiry. Such material is to be filed in accordance with any time-table prescribed by the Tribunal. (3)The matter is to be relisted at a date and time to be notified to the parties by the Registrar before the List Manager to consider any application under s 44 of the Civil and Administrative Tribunal Act and for further directions.

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: 28 November 2014

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