Ghosh v Medical Council of New South Wales

The procedural history

1. The email correspondence received from the parties raises some confusion about the application to be heard on 7 December 2020. As the nature of the application lies at the core of the adjournment application it is important that I set out the relevant procedural history, and outstanding applications to be determined in these proceedings.
2. The relevant history is also inextricably intertwined with disciplinary proceedings instituted by the Health Care Complaints Commission (HCCC) against Dr Ghosh. Those proceedings are file No. 2019/00251131. I will refer to the proceedings in these reasons as "the disciplinary proceedings".
3. On 12 September 2017 delegates of the Council conducted proceedings under s 150 of the Health Practitioner Regulation National Law. (the National Law). The delegates suspended the practitioner's registration.
4. On 9 January 2018 Dr Ghosh filed an appeal in the Tribunal under s 159 of the National Law.
5. Further proceedings were conducted before delegates of the Council under s 150A of the National Law on 12 April 2018. The suspension was lifted and a condition was imposed on Dr Ghosh's registration. The condition was a condition "Not to practise medicine".
6. On 11 May 2018 Dr Ghosh filed appeals in the Tribunal under s 159 and s 159B against the condition imposed on her registration on 12 April 2018.
7. On 22 June 2018 I made directions for the filing of documents and listed the matter for hearing on 1 August 2018.
8. On 19 July 2018 Dr Ghosh advised the registry that she had terminated the instructions of her solicitors, HWL Ebsworth.
9. Pursuant to leave granted on 1 August 2018 by the Hon Justice Wright, President, Dr Ghosh filed an Amended external appeal form. In that form Dr Ghosh sought to appeal both the decision to suspend her registration, and the decision to lift that suspension and impose the "Not to practise Medicine" condition.
10. On 17 August 2018 I made directions for the filing of documents and listed Dr Ghosh's appeals for hearing for two days commencing on 27 September 2018.
11. On 18 September 2018 Dr Ghosh filed a General application form. The application was made under s 26, s 71, s 73 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). The application also sought to rely on s 69 of the NCAT Act, "Applications of Confidentiality provisions in other Acts", s 60 of the NCAT Act, "Costs", and the Health Records and Information Privacy Act 2002 - Schedule 1. In broad terms, the application sought that reports prepared by two experts relied on by the Council, Dr K Newnham and Dr K Hutt, be struck out on the basis of false and misleading statements, and contempt of the Tribunal. In the alternative, the application sought that Dr Newnham's report be struck out pursuant to the expert rules provision of the Uniform Civil Procedure Rules (UCPR). I pause to note that the UCPR have no application in this Tribunal. Orders 3 and 7 as sought are respectively to "refer Kim Newnham" and "Kathryn Hutt" "to the Attorney-General for prosecution pursuant to s 71 and s 73 of the NCAT Act and breach of r 31.23 of the UCPR". Order 8 as sought is expressed as follows: This application is to be heard on a date before the 27 September 2018 hearing and not during the hearing.
12. The application filed on 18 September 2018 became Exhibit 1 before the panel hearing the appeals under s 150 and s 150A of the National Law.
13. On 20 November 2018 the Tribunal (ADCJ Knox SC, Dr G Dore, Dr L Cotterell and Ms S Lovrovich) published its reasons for decision after a hearing conducted on 27, 28 September 2018 and 17 and 19 October 2018. At the hearing of the appeals, Dr Ghosh was represented on a direct access brief by Mr Bolger. Dr Ghosh was advised by the registry how to access the decision on NSW Caselaw on 20 November 2018.
14. On 20 November 2018 at 1.38pm Dr Ghosh forwarded an email to the Registrar as follows: Please email me the Judgment, and a copy of the "letter from Tresscox dated 7/8/18 referred to in it, and how it was received by the Registry and by whom. If it was emailed or filed online, please confirm who sent it by forwarding the original email with attachment to me. If it was filed online, please confirm whether it was by Tresscox/Ebsworth and by whom. Please reply by email before close of your registry today.
15. At 3.03 pm a response email on behalf of the Registrar was sent to Dr Ghosh. The email stated inter alia: I refer to your request below and advise that the "letter from Tresscox dated 7/8/18 to which you refer was filed by yourself as part of your General Application Form. It is Annexure D of your application 18 September 2018.
16. In the Tribunal's reasons, at [40], the panel refer to Dr Ghosh's amended application filed 18 September 2018 noting that Dr Ghosh "sought to strike out the reports of Drs Newnham and Hutt and not permit them to give evidence at the hearing against her". The reasons note the application was supported by a statutory declaration sworn by Dr Ghosh on 17 September 2018. At [41] of the reasons it is noted that Dr Ghosh sought to have the two professional witnesses referred to the Attorney-General. The Tribunal noted: That part of the application was not pressed by her counsel on 27 September 2018. Nevertheless it remained a very serious allegation to make and has given the Tribunal concerns - as are dealt with below [137], [138], [140], [173(1)], [175].
17. Dr Ghosh filed an appeal in the New South Wales Court of Appeal against the decision of the Tribunal of 20 November 2018. On 26 June 2020 the Court of Appeal made the following orders: (1) Leave to appeal, insofar as it be required, be granted; (2) The appeal be allowed; (3) The decision of NCAT dismissing the appeal to it, confirming the decisions of the Medical Council, and ordering that Dr Ghosh pay the Council's costs, be set aside; (4) The matter be remitted to NCAT to be heard again, by a differently constituted panel; (5) Insofar as any extant costs order does not otherwise provide, the respondent pay 75% of the appellant's costs.
18. On 29 June 2020 I directed that, pursuant to the orders of the Court of Appeal, the matter (being the remitted appeal) be listed for directions on 3 July 2020 at 10.20 am by Audio Visual Link (AVL).
19. On 3 July 2020 I stood the remitted appeal over for further directions on 14 August 2020 and noted that Dr Ghosh was seeking legal representation. I further noted that disciplinary proceedings were listed for further hearing on 6 and 7 August 2020. On 14 August 2020 the matter was further adjourned to 28 August 2020.
20. On 28 August 2020 the following orders and or directions were made: 1 Ratna Ghosh is to give to the Tribunal and to the Medical Council of NSW submissions in support of her application concerning the "Not to Practise" condition imposed on her registration and which condition is the subject of the appeal remitted to the Tribunal by the New South Wales Court of Appeal together with any submissions as to the power of the Tribunal to refer persons for criminal prosecution by 28 September 2020. 2 Medical Council of NSW is to give to the Tribunal and Ratna Ghosh any application and or submissions on which it relies and any submissions in response to the submissions of Ratna Ghosh by 26 October 2020. 3 Ratna Ghosh is to give to the Tribunal and to the Medical Council of NSW submissions, if any, in reply by 9 November 2020. 4 Any ancillary application by Ratna Ghosh and or the Medical Council of NSW will be heard by AVL on 7 December 2020 at 10am by AVL 5 It is noted that Ratna Ghosh's email is [redacted] and that the Medical Council's submissions should be served at first instance at that email address and also by post to [redacted].
21. On 17 August 2020 a differently constituted Tribunal hearing the disciplinary proceedings made orders lifting a stay of its earlier orders of 15 April 2020. The earlier orders provided that if Dr Ghosh was still registered the Tribunal would have cancelled her registration. A further order precluded Dr Ghosh from seeking a re-instatement order for a period of 15 months.
22. The Tribunal corresponded with the parties after receiving emails from Dr Ghosh on 11 and 16 September 2020.
23. It appears that Dr Ghosh directly emailed the Council on 11 September 2020 and sought an adjournment of the hearing fixed for 7 December 2020.
24. On 11 September 2020 the Registrar wrote to the parties advising that the request for an adjournment may be dealt with on the papers. The parties were afforded the opportunity to provide written submissions on whether the adjournment application could be dealt with on the papers by 15 September 2020.
25. On 15 September 2020 the Council sent an email to the Tribunal, with a copy to Dr Ghosh at her email address, opposing the vacating of the hearing date until February 2021. The Council consented to the adjournment application being dealt with on the papers.
26. On 16 September 2020 Dr Ghosh sent an email to the Registrar advising that her father had passed away in Perth and that she was flying to Perth for two weeks to assist her mother and to make arrangements for her care. She further advised that she was involved in proceedings in the Supreme Court of New South Wales concerning her son on 7 December 2020 and other dates in December. In these circumstances Dr Ghosh sought adjournment of the hearing on 7 December 2020.
27. On 21 September 2020 Dr Ghosh's lawyers in the disciplinary proceedings, HWL Ebsworth, lodged an appeal in the Court of Appeal, appealing or seeking an extension of time to appeal, all orders made in the disciplinary proceedings. The appeal was listed for a directions hearing on 14 October 2020.
28. On 23 September 2020 the Council sent an email to the Registrar with a suggested new time-table but with the hearing listed on 7 December 2020 being retained.
29. On 30 September 2020 the Registrar by email wrote to the parties and sought their confirmation that they agreed the adjournment application could be dealt with "on the papers". The email noted if the parties did not consent to the adjournment application being dealt with on the papers, that a further directions hearing would be conducted by AVL.
30. On 30 September 2020, in response to a communication from the Tribunal, the Council reforwarded its earlier email of 23 September 2020.
31. On 1 October 2020 the Registrar again wrote to the parties seeking confirmation that the adjournment application could be dealt with on the papers. At 10.06am Dr Ghosh confirmed that the adjournment application could be dealt with on the papers.

The s 150 and s 150A appeal in the Court of Appeal

1. The Court of Appeal upheld Dr Ghosh's appeal against the decision of the Tribunal of 20 November 2018. However, the Court of Appeal determined it was not appropriate for it to re-exercise its discretion by way of a rehearing. Brereton JA observed: In circumstances where the s 150 hearing, the s 150A hearing, and the Tribunal have each considered that Dr Ghosh should not be permitted to practise, for this Court to reinstate her, in the absence of a full review of the evidence, even on an interim basis, would be imprudent. Subject to the effect of a supervening development, referred to below, the appropriate course would be for the appeal from the s 150 decision to be remitted to the Tribunal, differently constituted, to be heard again, and the consequence of orders to that effect would be that the non-practising condition imposed after the s 150A hearing would remain in effect, pending any further decision of the Tribunal.
2. At the end of his judgment, Brereton JA referred to the disciplinary proceedings which were conducted while the appeal was reserved and said at [119]-[120]: The supervening development is that since these reasons were drafted, the Court has become aware (not as a result of any notification by either party) of a decision of NCAT, upon a complaint by the HCCC in respect of Dr Ghosh .[63] NCAT found that she had engaged in conduct constituting professional misconduct and unsatisfactory professional conduct (at [139]), and that she had an impairment under s 5 of the National Law (on the basis that her impairment was of a sufficient nature and degree to impair her mental capacity to practise the profession, rather than that she had schizophrenia or a medical condition or neurocognitive disorder). NCAT ordered, pursuant to section 149C(4)(a) of the National Law, that if Dr Ghosh were still registered, it would have cancelled her registration, and disqualified her from being registered as a medical practitioner for a period of 18 months from the date of publication of its decision, being 15 April 2020. NCAT dealt with the complaint in the absence of Dr Ghosh, who did not appear, and the orders were stayed for 28 days to allow any application to be made by Dr Ghosh to show cause why the orders should not be made. This Court is unaware of whether any such application was made. In those circumstances, it may be that the complaint has now been "disposed of" for the purposes of s 150H(2)(a) of the National Law, with the consequence that the conditions imposed at the s 150A hearing, which are the subject of these proceedings, have no ongoing effect. If that be so, there would be no utility in Dr Ghosh's appeal being heard again by NCAT, given that it is to conduct a hearing de novo on the evidence and circumstances at the time of that hearing. In such circumstances, it might be appropriate for to NCAT to stay the proceedings on Dr Ghosh's remitted appeal, rather than to hear the appeal again. The remitter of the appeal to NCAT, to be heard again, should not be regarded as precluding NCAT from taking that course, if it is otherwise appropriate.
3. As noted above, the panel hearing the disciplinary proceedings, after a further hearing in August 2020, lifted the stay on the orders made on 15 April 2020 with the consequence that those orders, unless overturned on appeal, have disposed of the matter such that the not to practise condition has no ongoing effect. Thus, when the matter was listed by me, it was to determine, in accordance with the decision of the Court of Appeal, whether the remitted appeal should be permanently stayed. So far as I am aware, no stay has been sought in the Court of Appeal of the orders made in the disciplinary proceedings. However, what should now occur has been affected by the filing of the Notice of Appeal in the disciplinary proceedings.

Issues to be determined at the hearing on 7 December 2020

1. I discern there are three principal issues to be determined at the hearing presently listed for 7 December 2020. 1. Has the application of 18 September 2018 been determined? This requires consideration of the following: 1. Is Dr Ghosh now precluded from seeking to agitate this application in circumstances where her counsel at the hearing, Mr Bolger, expressly advised that it was not relied on? 2. Should an order be made under the "slip rule" formally dismissing the application or was the outcome of the interlocutory application subsumed by the panel's orders on 20 November 2018 making such an order unnecessary? 3. Should Dr Ghosh now be permitted to agitate the application in circumstances where she has successfully appealed to the Court of Appeal in respect of the Tribunal's decision? 1. Should Dr Ghosh's appeal under s 159 of the National Law be permanently stayed as foreshadowed by the Court of Appeal or; 2. Should the remitted appeal be fixed for hearing before a different panel or should any decision about the remitted appeal be adjourned pending determination of the appeal against the disciplinary proceedings?

Should the adjournment sought by Dr Ghosh be granted?

Dr Ghosh's reasons for the adjournment

1. Dr Ghosh has provided evidence of her father's death. That evidence is not disputed by the Council. Further she advises that she is involved in proceedings in the Supreme Court concerning her son in December.

The Council's position

1. The Council submit that an extended period be granted for the parties to file any documents to be relied on for the hearing on 7 December but the hearing date be maintained.
2. It is the Council's position, as it was before me at the directions hearing, that the issues now for determination can be dealt with on the papers. The submissions note it is only because Dr Ghosh has required an "in person" hearing, albeit by AVL, that there is a problem about the allocated hearing date.
3. The Council submit that adjourning this matter would be contrary to the object of the NCAT Act (s3) namely to determine the real issues in the proceedings justly, cheaply and with as little formality as possible.

The Tribunal's adjournment guideline

1. The Tribunal's guideline applicable to the Occupational Division and published on the Tribunal's website sets out the principles to be applied in determining an adjournment application as follows: What are the general principles which the Tribunal will apply to any adjournment request? 3. The overriding principle is that when a date and time has been set for a hearing it will go ahead on that date and at that time, unless the Tribunal allows an adjournment. 4. In considering whether to allow an adjournment, the Tribunal will: a) take into account the need to manage cases and hearings fairly and efficiently. This includes making sure cases are heard as soon as possible, and b) allow an adjournment only if the party requesting it has a good reason and it is fair in all the circumstances to adjourn.

Consideration

1. I am satisfied that Dr Ghosh has advanced strong reasons for an adjournment. Her father's untimely death, particularly with the cross-border restraints imposed by Covid 19, could not have been foreshadowed when the matter was fixed for hearing.
2. While there is no corroborative evidence before me that Dr Ghosh is involved in proceedings in the Supreme Court in December concerning her son, I accept that may be the case given evidence she has been involved in litigation concerning her son's care.
3. I have given careful and weighty consideration to the Council's submissions that this matter should proceed but with an extended time-table. I accept that, prima facie, this submission accords with the objects in s 3 of the NCAT Act. However, I find intervening factors now bring other issues into play. I accept when the Council's submissions were provided in their email of 15 September 2020 the Notice of Appeal in the disciplinary proceedings had not been filed. In those circumstances, it was clearly open to the Council as at 15 September 2020 to advance the position that the "Not to Practise Medicine" condition no longer had any effect and that the remitted appeal should be permanently stayed.
4. I am satisfied different considerations now apply to this adjournment application. It would be inappropriate to permanently stay the remitted appeal if Dr Ghosh is successful in her appeal in the disciplinary proceedings and the orders made on 15 April 2020 are set aside. In that case, it may be appropriate for the appeal to be reheard before a differently constituted panel.
5. It appears to me that first Dr Ghosh has provided some evidence to support her adjournment application. Secondly, while determining or attempting to determine the matter on 7 December 2020 would, prima facie, accord with the objects of s 3 of the NCAT Act, the reality is that the permanent staying of the appeal under s 159 or its re-determination by a differently constituted tribunal before the determination of the disciplinary proceedings appeal is likely to incur greater costs and use of Tribunal resources than if the proceedings are adjourned. Thirdly, and of significance having regard to s 3A of the National Law, the health and safety of the public will not be impacted by the adjournment. This is because the practitioner is, on her own evidence, no longer registered.
6. Overall balancing all relevant factors, I am satisfied it is in the interests of justice for the hearing listed for 7 December 2020 to be adjourned.

ORDERS 1. Dr Ratna Ghosh's application for an adjournment of the hearing fixed for 7 December 2020 is granted. 2. The directions made on 28 August 2020 are vacated and the following orders substituted in lieu: 3. Ratna Ghosh is to give to the Tribunal and to the Medical Council of New South Wales submissions: 1. in support of her application concerning the "Not to Practise" condition imposed on her registration and which condition is subject of the appeal remitted to the Tribunal by the New South Wales Court of Appeal together with any submissions as to the power of the Tribunal to refer persons for criminal prosecution by 15 January 2021; 2. as to whether the appeal remitted from the Court of Appeal should be permanently stayed or; 3. the appeal remitted for re-hearing should now be fixed for hearing before a differently constituted Tribunal 1. The Medical Council of New South Wales is to give to the Tribunal and to Ratna Ghosh any application or submissions in response to the submissions of Ratna Ghosh by 5 February 2021. 2. Ratna Ghosh is to give to the Tribunal and the Medical Council of New South Wales submissions, if any, in reply by 12 February 2021 3. The matter is listed for directions on 26 February 2021 at 9.30am. 4. In the event either party seeks to appear by telephone on 26 February 2021 that party must provide details of the telephone number to the Registrar, Occupational Division on or before 22 February 2021.

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: 19 October 2020