Health Care Complaints Commission v Al Mozany

NCAT Occupational|2022-06-29|Before: Jennifer Boland AM, Campbell J

The application

On 27 June 2022 Dr Saad Abdul Al Mozany, a Specialist Orthodontist, wrote to the Registrar requesting that the hearing of disciplinary proceedings brought against him by the Health Care Complaints Commission (the HCCC) due to commence on 4 July 2022 for five days be vacated.
Dr Al Mozany's application is opposed by the HCCC. In the event that the adjournment is granted, the HCCC seeks that Dr Al Mozany pay its costs thrown away as a result of the adjournment.
As the proceedings are listed for hearing in three day's time, the adjournment application was listed at short notice at 2pm today to be conducted by Audio Visual Link. I note that the hearing will be an "in person" hearing as the Tribunal resumes face to face hearings on 4 July 2022.
No evidence was filed by Dr Al Mozany in support of his application. I have treated the matters in his letter of request to vacate the hearing dates as submissions in support of his application.
For convenience only, in these reasons I will refer to Dr Al Mozany as "the practitioner" and the Health Care Complaints Commission as "the HCCC".

Submissions in support of the application

Dr Al Mozany advances three reasons why he says the hearing dates should be vacated: 1. Because he does not have legal representation; he asserts he is unable to represent himself; 2. The expert's conclave, which was to occur last week did not proceed; and 3. A witness is unavailable to appear next week.

The HCCC's evidence and submissions

Shortly prior to the listing of this application I was provided with a copy of the decision of Campbell J in the Supreme Court of New South Wales in the matter of Gentle Dental Group Pty Ltd v Al-Mozany [2021] NSWSC 1234 (30 September 2021) in which his Honour ordered that the plaintiff have leave to commence proceedings against the practitioner's insurers, MDA National Insurance Pty Ltd. The proceedings sought damages in the vicinity of $3M in negligence and for breach of contract against the practitioner arising out of his treatment of patients at Gentle Dental Care.
The HCCC also provided me with a copy of the decision in the s 159 appeal (Al-Mozany v Dental Council of New South Wales [2021] NSWCATOD 110).
Also tendered in opposition to the application is an email dated 11 March 2022 addressed to Ms Cannon, the solicitor with the conduct of this matter for the HCCC, from Ms Deborah Mury, Legal and Special Projects Advisor, Dental Council of New Zealand. This email advises that the Tribunal [the New Zealand Tribunal] had heard proceedings the previous day and made a finding of professional misconduct. The email notes the Tribunal cancelled the practitioner's registration, and that he was censured. Order (c) of the reported orders made (an order for costs of NZ $99,000) contained the following information: 1. 40% of the costs incurred up to the adjournment of the July hearing. 2. 90% of the costs incurred following the adjournment of the hearing (we had sought a greater contribution in respect of costs incurred following the July hearing on the basis that they were essentially wasted as Dr Al Mozany did not file any evidence or submissions).
Also tendered before me on this application was a letter from the HCCC to the practitioner dated 28 June 2022. The letter notes that Dr Geenty, the HCCC expert was available for the conclave but the practitioner's expert failed to give any notice to the HCCC or their expert, that the practitioner's expert would not attend the conclave.
The HCCC note that, although the practitioner asserted he had issued a summons for the attendance of Dr Genarro Russo, no request for a summons to be issued has been made. The HCCC advise that Dr Russo, who was to have travelled overseas at the time of the hearing, had postponed his plans to accommodate the hearing and will be available to give evidence on 6 July 2022.
At the hearing this afternoon counsel for the HCCC drew my attention to a further decision of the Tribunal in Al-Mozany v Dental Council of New South Wales (No 2) [2021] NSWCATOD 212. In that matter the Tribunal ordered the practitioner to pay the Dental Council of New South Wales costs in the sum of $92,430.13.

The National Law

I commence by referring to relevant provisions of the Health Practitioner Regulation National Law (NSW) (the National Law). Relevant to this application is s 3A, a NSW provision. It provides: 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
Also relevant to this application is cl 11 of Schedule 5D of the National Law. It provides:. 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.

Civil and Administrative Tribunal Act

The objects and s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) are also relevant to this application. Section 3 provides as follows: 3 Objects of Act The objects of this Act are - (a) to establish an independent Civil and Administrative Tribunal of New South Wales to provide a single point of access for most tribunal services in the State, and (b) to enable the Tribunal - (i) to make decisions as the primary decision-maker in relation to certain matters, and (ii) to review decisions made by certain persons and bodies, and (iii) to determine appeals against decisions made by certain persons and bodies, and (iv) to exercise such other functions as are conferred or imposed on it, and (c) to ensure that the Tribunal is accessible and responsive to the needs of all of its users, and (d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and (e) to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality, and (f) to ensure that the Tribunal is accountable and has processes that are open and transparent, and (g) to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members.
I pay particular regard to s 3 (d), (e) (f) and (g). Also relevant to this application is s 36 of the NCAT Act. It provides as follows: 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.

The Tribunal's procedural directions

The Tribunal has published a guideline to assist parties seeking an adjournment. The guideline commences by referring to matters of general principle: 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 what is called an 'adjournment'. An adjournment means the Tribunal moves the set hearing date or dates to a later set date or dates. 4. In considering whether to allow an adjournment, the Tribunal will: • 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 • allow an adjournment only if the party requesting it has a good reason and it is fair in all the circumstances to adjourn the hearing.
The guideline also provides information about evidence to support an adjournment application as follows: If available, evidence should be provided to support the adjournment request. For example, if a party is ill, the party should provide detailed medical evidence if it is available. Ordinarily, the medical certificate must be specific and clearly state that the person is unable to attend the hearing and indicate the nature of the illness and why that illness prevents the person from participating in the hearing. If the person considers the information in the medical certificate confidential, the person should advise the Tribunal as supporting documents including medical certificates are provided to the other party/parties as a matter of procedural fairness. The confidential documents should be clearly identified and the Tribunal asked to make a confidentiality order. If a party has made travel arrangements, that party should provide a copy of the travel itinerary, any airline or other travel bookings and information about when the bookings were made.
At para 11 the guideline provides information about the matters the Tribunal will take into account in determining an adjournment application. 11. The Tribunal will take into account all relevant matters in favour of and against an adjournment. These include, but are not confined to: • the grounds for requesting an adjournment • whether the need for an adjournment is the fault of one of the parties • any disadvantage to the parties if an adjournment is allowed or refused • the impact of any delay on the principle that the Tribunal must facilitate the just, quick and cheap resolution of the issues in the proceedings.

Case Management principles

As well as the matters referred to in the NCAT Act and the guideline, I have regard to the decision of the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 In the course of discussing when it will be appropriate to grant a late amendment to a pleading, and the purpose of the relevant ACT rules, the plurality explained: A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate. In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy [177]. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings. Rule 21 of the Court Procedures Rules recognises the purposes of case management by the courts. It recognises that delay and costs are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants. [Foot-notes omitted]

Procedural history

The practitioner's registration was subject to a not to practise dentistry condition on 16 November 2018 following proceedings under s 150 of the National Law. The practitioner, as he was entitled to do, filed an appeal against his suspension
During the course of the part-head appeal, the practitioner, who was self-represented in those proceedings, sought access to documents produced under Summons issued by the HCCC in the course of its investigation of complaints against the practitioner. On 31 January 2021, the Presiding Member, the Hon F Marks, published reasons for decision and made orders permitting the practitioner access to various documents produced (see Al-Mozany v Dental Council of NSW [2021] NSWCATOD 3).
Subsequently, the practitioner sought and was granted adjournments of his appeal including before Principal Member Pearson, and Deputy President, Cole DJC. On 9 August 2021, the Hon Frank Marks published reasons for dismissing the practitioner's appeal for want of prosecution (see Al-Mozany v Dental Council of New South Wales [2021] NSWCATOD 110.)
Albeit those proceedings are separate and distinct from the present disciplinary proceedings, I find the remarks of the presiding Member have resonance to the present application. The Principal Member's remarks at [37]-[39] demonstrate a similar attitude to compliance, or non-compliance by the practitioner with directions as in these disciplinary proceedings.
At [51] the Presiding Member concluded: 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.
The proceedings the subject of this application were commenced in the Tribunal by the filing of an Application for disciplinary findings and orders with an Amended complaint annexed on 23 December 2020. It is not clear from the documents before me if an earlier complaint had been served on the practitioner, nor is it clear if the HCCC now rely on a further amended complaint filed on 1 June 2022.
Tendered before me at a directions hearing held on 20 June 2020 was a chronology prepared by the solicitor having the conduct of these proceedings on behalf of the HCCC. I admitted that chronology as Exhibit "E" in this application. A copy of the chronology is annexed to these reasons and marked as Appendix "A". It accurately sets out the orders and directions made in this matter to ensure the matter was ready for hearing.
On 26 March 2021 I heard a contested interlocutory application about access to documents, challenges to expert evidence, the issuing of summonses, and directions to prepare the matter for hearing. I published reasons on 30 April 2021 (see Health Care Complaints Commission v Al Mozany [2021] NSWCATOD 51). Included in the orders made that day was an order for the practitioner to serve a Reply to the Amended Complaint and all material on which he sought to rely by 16 July 2021.
On 26 November 2021, as the chronology discloses, further extensions of time were granted to the practitioner to serve his material and the matter was listed for hearing on 24 March 2022 for two days as an undefended matter. The practitioner, who failed to appear at the directions hearing, was granted leave to apply to set aside the orders made on three days' notice in writing to the Registrar and the other party.
On 2 March 2022 another opportunity was provided to the practitioner to file his material.
On 4 March 2022 the March hearing dates were vacated, further extensions granted to the practitioner to file his material were made and the matter was listed to commence on 4 July 2022 for five days.
Further directions were made on 3 June 2022 yet again extending time for compliance by the practitioner with directions. A similar extension was granted on 10 June 2022. On 20 June 2022 the practitioner was granted leave to file further limited material.
At the date of this application the HCCC had lodged all material on which it relies with the Tribunal. The practitioner has served material on the HCCC but has not complied with the direction to lodge his material with the Tribunal.

Consideration

I have already set out the Tribunal's guideline on seeking an adjournment. In determining this application. I am informed and guided by the objects of the NCAT Act and the authorities referred to in Aon albeit that case focused primarily on late amendment and the relevant ACT rules. There is however, commonality to be found in those rules, the Uniform Civil Procedure Rules and the objects in the NCAT Act and in s 36 of that Act.
I accept that the practitioner does not currently have legal representation. However, I note on at least two recent occasions, I granted extensions of time to the practitioner on his oral assurances that, following settlement of the Supreme Court proceedings with his former partners he had retained one partnership property which had been sold with settlement impending such that he would have funds to instruct solicitors. I also note that the practitioner conducted his appeal proceedings in this Tribunal as a self-represented litigant and was self-represented in the Supreme Court. Significantly, in those proceedings Campbell J noted that while the practitioner would be unlikely to able to meet the estimated costs of the proceedings of in excess of $700, his Honour records at [55] "It is clear that the defendant is not a man of straw" but notes that it seems likely that given his inability to practice his profession, he had used the equity from the sale of his former home to support himself and his family.
The practitioner submits that he will suffer prejudice if he is not legally represented in these proceedings because the matter involves complex issues and that he could not examine witnesses.
The practitioner makes the uncorroborated submission that his proposed solicitor, Mr Nicholas Birbas could act for him if he put money into his trust account but Mr Birbas is not available in July 2022. The practitioner also submits that Mr Birbas will need to instruct counsel and that Mr Kevin Connor SC, who has some knowledge of the matter, is not available until December 2022 as he is presently engaged as counsel assisting the Royal Commission into Defence and Veteran suicide. The practitioner says Mr Connor is only available to act for him in the week commencing 12 December 2022, and various dates in January 2023 and February 2023.
Today, the practitioner said Mr Birbas is acting for him in respect of a Deed of Settlement in respect of the Supreme Court proceedings.
I note that the practitioner has not put on any evidence as to his financial position, the settlement of the sale of the property or what funds he has or is likely to have to pay solicitors' and counsel's fees. Accordingly, there must be some doubt if the adjournment is granted that the practitioner will be in a position to pay for lawyers, particularly having regard to the New Zealand costs order of NZ $99,000 and perhaps the costs order made by this Tribunal in the appeal proceedings.
I find little reliability can be placed on the practitioner's assertion that if the matter is adjourned he will instruct lawyers to act on his behalf.
Further, whilst it would be preferable for the practitioner to be legally represented this Tribunal regularly deals with self-represented parties including those in disciplinary proceedings. It is obvious from the practitioner's correspondence in support of this application that he is articulate, intelligent and is fully conversant with the technical issues in the matter. I have taken these matters into account when assessing any prejudice he may encounter not being legally represented.
I am also aware that the practitioner has retained his own expert for the purpose of these proceedings and that he will have the benefit of the expert report in support of his case.
The practitioner also refers to the fact a conclave which was to take place between his expert Dr Edward Kosy and the HCCC's expert Dr Joseph Geenty did not take place. The practitioner says that this was because he (Dr Kosy) was provided by the practitioner with extensive evidence on 16 June 2022. The practitioner submits (again uncorroborated) that "Dr Kosy advised he was unable to review the material before the conclave and for that reason the conclave did not take place".
I do not find the practitioner's explanation about why the conclave did not occur to be plausible. I accept, as asserted by the HCCC in its letter to the practitioner, that no notice was given of cancellation of the conference thus occasioning inconvenience to the HCCC expert and cost to the HCCC. I note that at previous directions hearings the parties agreed to make arrangements for the conclave to take place and that as early as 4 March 2022 I made orders for the experts to confer on or before 13 May 2022 and to give a joint report by 27 May 2022. This direction was made to shorten hearing time and to identify the real issues in dispute in accordance with the objects and provisions of the NCAT Act.
The practitioner submits that the HCCC have been investigating this matter since 2018 and will not suffer prejudice if the matter the hearing is vacated. He points out that he has not practised since 2018 so there is no risk to the public. He submits he will suffer prejudice if the matter proceeds to his career and life which will be "immeasurable".
I first consider, as I must in any application under the National Law, to the question of the health and safety of the public. I accept that there is no evidence to suggest that the practitioner has breached the "not to practise condition on his registration". I therefore accept on the evidence before me that there is no direct risk to any patient.
It is however important to have regard to the purpose of disciplinary proceedings. These proceedings are not to punish the practitioner. The purpose of disciplinary proceedings is cogently explained by Meagher JA in Health Care Complaints Commission v Do [2017] NSWCATOD 307 at [39] as follows: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
Thus, it is clear that any protective orders that the Tribunal may make at the conclusion of these proceedings have a wider focus than those affecting the practitioner.
I also take into account that the practitioner has required a number of witnesses (or in one case, the mother of a minor patient) to be available for cross-examination. I note that complaints by patients were made in May 2018. Those patient's interests must also be taken into account. They are available, as is Dr Russo for the hearing dates fixed. I therefore reject the third basis of the practitioner's adjournment request as Dr Russo is available having changed his arrangements to travel overseas and to be available for the hearing. These matters weigh strongly in favour of refusing the adjournment.
I also take into account this application is made, with no corroborating evidence, very late in the day. If this matter had not been allocated hearing dates, other matters waiting for hearing could have been accommodated. Having regard to the strong emphasis placed in Aon of courts and tribunal's operating effectively in the justice system in civil matters, this militates against the practitioner's application.
I also take into account for this specialist Tribunal two professional members and the general member have set aside time from their professional duties and obligations to sit as occasional members of the Tribunal. The disruption to their professional practices must be taken into account If they are required to make themselves available again and some date in the future as well as the financial consequences if the adjournment is granted. The Tribunal relies heavily on occasional members and the expertise they bring to disciplinary proceedings. Late adjournment act as a deterrent to such persons making themselves available to the Tribunal. This factor too weights against granting the adjournment.
Finally, and of significance in this matter, is the repeated failure of the practitioner to comply with any direction of the Tribunal. Like Principal Member Marks I have no confidence, given the history of this matter, as set out in the chronology, that if a further adjournment is granted that the practitioner will comply with directions to ensure the matter is ready for new hearing dates.
Weight all relevant factors, I find the interests of justice dictate that this matter should not be adjourned, but the hearing proceed on the dates allocated. Accordingly, the practitioner's application to vacate the hearing is dismissed.
I propose the costs of this application should be stood over to the substantive hearing.

ORDERS 1. The application by Saad Abdul-Hassan Al-Mozany to vacate the hearing scheduled to commence on 4 July 2022 is dismissed. 2. The costs of this application are reserved to the substantive hearing. Appendix A (107537, pdf) 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

Amendments 01 July 2022 - Date of orders - ex tempore reasons 01 July 2022 - Appendix A attached. 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: 01 July 2022

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (7)

Cited By (4)