Ms S Lovrovich, General Member
File Number(s): 2018/00008057
Source
Original judgment source is linked above.
Catchwords
Dr G Dore, Senior MemberDr L Cotterell, Senior MemberMs S Lovrovich, General Member
File Number(s): 2018/00008057
Judgment (3 paragraphs)
[1]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment
HIS HONOUR: This is an application for the referral to a pro bono barrister pursuant to UCPR r 7.36 of Dr Ghosh's appeal from the decision of the New South Wales Civil and Administrative Tribunal, constituted in its Occupational Division, made on 20 November 2018, dismissing Dr Ghosh's appeal and confirming the decision of the Medical Council of NSW to impose a condition upon her that she not practise as a medical practitioner: Ghosh v Medical Council of NSW [2018] NSWCATOD 186.
In addition to the referral sought in paragraph 1 of her notice of motion filed 8 February 2019, Dr Ghosh also seeks a stay of the condition imposed upon her. However, prior to the matter coming before me hearing motions on 18 February 2019, Dr Ghosh advised the Registrar that she wished to proceed only on her application for referral. She also advised that she wished to appear by telephone, and that occurred. The Medical Council, which is the respondent to the appeal in this Court, advised that it neither consented to nor opposed Dr Ghosh's application.
Dr Ghosh relied on her statutory declaration made on 17 December 2018, which stated that she had "no assets, seized by trustee in bankruptcy", had nil income but was incurring expenses (principally rent and food) of $5175 per fortnight, and stated:
"[she had] Been unable to raise any funds because of my suspension as a doctor and been unable to work since 12 December 2017, while the trustee in bankruptcy has seized all of my rent and assets without paying mortgage and other expenses on the assets including insurance. I have no access to any funds or incomes."
Dr Ghosh has been the moving party in a number of proceedings, including in this Court. I participated in decisions in Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334 (where her appeal was dismissed) and Ghosh v Miller (No 2) [2018] NSWCA 212 (where her appeal was allowed). Both of those appeals involved defamation proceedings brought by Dr Ghosh, and in both she was represented by experienced counsel.
I asked Dr Ghosh why, given the seriousness for her of the decision from which she has appealed, she had not once again retained counsel. Dr Ghosh told me that until the end of last year, she had been assisted by her father:
"APPLICANT: I was receiving financial help from my father then, from his self‑funded university pension, but he's nearly 90 years old and I think because of his age they terminated his pension.
HIS HONOUR: They've terminated his pension because he's too old?
APPLICANT: I think, yes. That's what he told me; he's no longer receiving as much as he was before. They reduced it or terminated it."
When the motion was heard, Dr Ghosh had not filed or otherwise supplied copies of either NCAT's decision, or the earlier decisions of the Medical Council, but advised me that they would be filed later in the week. That has occurred. Dr Ghosh embraced the suggestion from me that I delay determining her application for referral to a pro bono barrister until I had read her red appeal book. I have now done so.
The decision from which Dr Ghosh seeks to appeal is the reserved decision of NCAT, constituted by ADCJ Knox SC, two medical doctors who were Senior Members of NCAT and one lay person who was a General Member of NCAT, which followed a hearing over four days in September and October 2018. The reasons for decision occupy 195 paragraphs over 56 pages.
The decision records that Dr Ghosh was represented by counsel, and that "comprehensive written submissions" from him were received and considered by it: see at [176]. It may be (it is not entirely clear from the red book alone) that for some of the four days of the hearing, Dr Ghosh appeared for herself. I say that because parts of the reasons refer to "comments" and "presentation" by Dr Ghosh through the hearing, in contrast to the evidence that she gave: see for example at [81], [175] and [178]. (Paragraph references are to the judgment in the red book, which diverge slightly from the version on Caselaw.)
It is unnecessary for present purposes to summarise the basis on which NCAT proceeded. Something of the flavour of the reasons is sufficiently indicated by the following headings taken (verbatim) from the reasons:
"Appellant's witnesses not called
Personal attacks on Medical Council witnesses and other professionals
Relevance of attacks on professional witnesses
Retaliatory and Counter allegations
Queensland property neighbour dispute
Persecutory beliefs/Paranoia
Attitude to complaints by patients
Veracity and issues of credit"
Paragraphs 148-155 address the Tribunal's conclusion that it was "unable to accept Dr Ghosh's evidence in any area where her interests are at stake and where it conflicts with the evidence of other witnesses". In particular, that section addresses a submission by Dr Ghosh that the doctor who presided in the Medical Council had said "she is full of crap" and a transcript provided by Dr Ghosh which recorded as much. The Tribunal stated that the audiotape of the hearing did not record those words, and that Dr Ghosh had refused to accept as much and "went on to effectively accuse the Medical Council of doctoring a transcript and a supporting audiotape". Dr Ghosh also admitted that she had obtained her own audio copy of the hearing and once again that the audio transcript, which was played three times in Dr Ghosh's presence, still led to her refusing to accept that the words included in her version of the transcript had not been said.
The Tribunal then made this finding:
"It also appears to the Tribunal that Dr Ghosh altered her version of the transcript for the sole point of attacking Dr Giuffrida, and then separately, Dr Newnham. Her motivation appears to have been simply that they had given evidence or had made findings against her."
The Tribunal considered at [179] that there was "considerable evidence pointing to some degree of impairment on Dr Ghosh's part", giving six instances, and ultimately confirmed the finding made by the Medical Council that Dr Ghosh was suffering from a form of impairment. This appears to have been a, if not the, principal reason for the imposition of a condition that she not practise medicine.
Dr Ghosh's notice of appeal appears to have been prepared without the assistance of a lawyer. It contains the following 12 grounds:
"1 Inadequate reasons given to not set aside the condition 'to not practice medicine'
2 Failure to take into account a mandatory consideration
3 Failure to consider relevant evidence
4 Considered irrelevant evidence
5 Exercised a discretionary power in a legally unreasonable way
6 Denial of procedural fairness, a reasonable apprehension of bias
7 Denial of procedural fairness, failed to afford the appellant a reasonable opportunity to deal with adverse material
8 Accepted ridiculously false evidence and medical reports from one witness, and rejected extensive medical evidence and Counsel's submissions to the contrary
9 Published details of blatantly false confidential psychiatric reports from a false witness online in the judgment, as a finding of fact
10 Inadequate reasons given to make an order for costs against the appellant
11 The regular use of false psychiatric witnesses by the respondent's psychiatrist to make a wrongful diagnosis of mental illness is a matter of public importance
12 NCAT's decision is not binding, as the appellant was not registered at the time of the decision, therefore NCAT had no jurisdiction"
In the absence of the evidence relied upon and the transcript, it is not possible to express any view as to the strength of the majority of those grounds, which address the evidence to which NCAT had regard and whether it proceeded in a way which was procedurally fair. Insofar as the grounds assert an inadequacy of reasons (grounds 1 and 10), it is difficult to see that they have substance. Insofar as it is said in ground 12 that NCAT's decision is not binding because it lacks jurisdiction, it is to be borne in mind that NCAT was determining an appeal brought by Dr Ghosh and if there were no jurisdiction, it would seem that the previous decision of the Medical Council, which Dr Ghosh sought to challenge, would not be altered.
I have borne in mind the fact that Dr Ghosh's status as a medical practitioner and her ability to practise are matters of real significance to her, and that at present there are findings (which Dr Ghosh appears to challenge) that she is suffering from a mental illness. If, as Dr Ghosh invites me to do, counsel appears for her pro bono, then it is likely that the determination of her appeal will be considerably assisted. That will not only benefit Dr Ghosh. It will also benefit the Medical Council, and the Court.
However, the question is not merely whether the litigants and the Court would be assisted. Ward JA said in Sharpe v Hargraves Secured Investments Ltd [2013] NSWCA 288 at [42], that:
"It has been recognised that the mere fact that a litigant would be assisted by pro bono legal assistance is not sufficient of itself for an order for referral to be made (Re F [2013] NSWCA 239). The Court must consider what the interests of justice require in each case."
Similarly, in Lane v Northern NSW Local Health District (No 2) [2014] NSWCA 32 at [8], Basten JA said that:
"It is true that in every case this Court benefits from the availability of professional legal assistance, however it is not always available and there are limits to the cases in which this Court can impose upon members of the Bar to provide assistance without return by way of fee."
Campbell JA said in Kelly v Mosman Municipal Council [2010] NSWCA 370 at [19] that:
"Any orders for pro bono legal assistance need to be made bearing in mind that the resources of the Pro Bono Panel are limited, that the lawyers whose names appear on the Pro Bono Panel provide their services voluntarily, and that the Court should ask them to give up their time and exercise their skill only in circumstances where there is an appropriate reason, for the overall administration of justice, to make that request."
The same approach was applied in M v Director General, Department of Family and Community Services [2013] NSWCA 118 at [21]. The latter is a decision of Basten, Barrett JJA and Bergin CJ in Eq, endorsing remarks made by Brereton J. In Re F [2013] NSWCA 239 at [23], Young AJA and I said, by reference to some of those authorities, that:
"The mere fact that the applicant and the Court would be assisted by pro bono legal assistance is not sufficient. As has often been said, the Court should ordinarily be reluctant to grant applications which appear to be without merit."
I regard the issue as one that is finely balanced. I am prepared, with some reservations, to proceed on the basis that Dr Ghosh is impecunious. In many circumstances, an appellant who has been found to be mentally unwell and has exercised her right to appeal from a decision affecting her professional standing and occupation but who lacks funds would be a good candidate for a pro bono referral. The difficulty presently faced is that there is insufficient material to reach a conclusion that there is any merit in the appeal. Of course, as noted above, that opinion is based only on what emerges on the face of the reasons for the decision and the grounds of appeal as presently formulated.
In the circumstances, I propose to make a limited referral, confined in the first instance to the provision of advice on prospects. Counsel thereafter will be free to cease to act. Of course, if counsel forms the view that any or all of the appeal is reasonably arguable, it will be open to Dr Ghosh to retain that counsel (or other counsel) on such basis as they may agree.
Accordingly, I refer Dr Ghosh to the Registrar for referral to a barrister on the Pro Bono Panel for legal assistance, confined in the first instance to advice on prospects, pursuant to r 7.36 of the Uniform Civil Procedure Rules.
[3]
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Decision last updated: 22 February 2019