Health Care Complaints Commission v Al Mozany

Commission's position

1. The application is opposed by the Commission. Its counsel Ms Petrie submits that:

• there is no material difference in today's application to that brought last Thursday;
• the present application should be dismissed for all the reasons found by the Deputy President;
• there has been significant non-compliance with the Tribunal's directions by the respondent, including a failure to file a Reply despite having been told to do so on some nine occasions;
• there is no assurance that the settlement funds will actually be received as claimed;
• the Commission is ready to proceed and has the witnesses available who were required from cross-examination by the respondent, including the expert;
• any difficulty in the failure to hold a conclave can be overcome by a 'hot tub";
• the Commission's expert Dr Geenty has been provided with all relevant documents; and
• in short, the Tribunal should reject the submission of the respondent that the "more detailed evidence" now available to the Tribunal should lead to the adjournment of the hearing in the interests of justice.

Health Care Complaints Commission v Al-Mozany [2022] NSWCATOD 70

1. I have noted that an identical application was made to the Occupational Division List Manager for health matters, Deputy President the Honourable Jennifer Boland AM but 4 days ago, on 29 June 2022.
2. The Deputy President refused the application for the reasons set out in her published decision of Health Care Complaints Commission v Al-Mozany [2022] NSWCATOD 70.
3. The Deputy President noted at [6] that Dr Al-Mozany advanced three reasons why he says the hearing dates should be vacated being a lack of legal representation; the failure of an expert's conclave to take place; and the unavailability of a witness.
4. The Deputy President published lengthy and detailed reasons for refusing the application for adjournment. In doing so, she referred to:

• the provisions of the Health Practitioner Regulation National Law (NSW) (which I refer to as the National Law);
• the objects of the Civil and Administrative Tribunal Act 2013 (NSW) (which I will refer to as the NCAT Act) set out in s 3 of the NCAT Act, and the guiding principle to be applied to the practice and procedures of the tribunal which are set out in s 36 of the NCAT Act;
• the Tribunal's Guideline 3 - Adjournments - When can hearings be postponed or delayed?
• the decision of the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27.

1. The Deputy President then set out the procedural history of the matter, relying on a chronology provided by the Commission, a copy of which was attached to her reasons for decision.
2. I note the following matters.
3. First, the Deputy President, in her refusal to grant the adjournment stated at [36] of her Reasons that: 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.
4. Secondly, the Deputy President stated at [41] of her reasons that: I find little reliability can be placed on [Dr Al-Mozany's] assertion that if the matter is adjourned he will instruct lawyers to act on his behalf.
5. Thirdly, the Deputy President stated at [42] of her Reasons that: … whilst it would be preferable for [Dr Al-Mozany] to be legally represented this Tribunal regularly deals with self-represented parties including those in disciplinary proceedings. It is obvious from [Dr Al-Mozany'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.
6. Fourthly, the Deputy President stated at [43] of her Reasons that: 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.
7. Fifthly, at [45], the Deputy President did not find Dr Al-Mozany's explanation about why the conclave did not occur to be plausible.
8. Sixthly, at [53] the Deputy President found to be of significance: 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.
9. Finally, the Deputy President, in accepting that there was no evidence to suggest that Dr Al-Mozany had breached the "not to practise condition on his registration" and that therefore there was no direct risk to any patient, noted that it was clear that any protective orders that the Tribunal may make at the conclusion of the proceedings have a wider focus than those affecting the practitioner.
10. In conclusion, given that:

• Dr Al-Mozany had required a number of witnesses be available for cross-examination, who were available for the dates fixed;
• the principles in Aon weighed strongly in favour of refusing the adjournment;
• there had been a repeated failure by Dr Al-Mozany to comply with any direction of the Tribunal, weighing all these factors, the Deputy President found that the interests of justice dictated that the matter should not be adjourned, and that the hearing proceed today.

1. It is against that background that the present application is made.

Consideration

1. The Deputy President's decision to refuse to adjourn the hearing was an interlocutory decision: see s 4 of the NCAT Act.
2. The fact that an interlocutory application has been dismissed by Tribunal member or judicial officer does not prevent the same interlocutory application being brought before another Tribunal member.
3. However, I note that:

• the same application had been rejected four days earlier;
• by the Divisional List Manager;
• who is a vastly experienced member presiding in this Division;
• and a former head of jurisdiction and Chapter III justice;
• who gave lengthy and detailed reasons, and in my view undoubtedly correct reasons, on the materials before her, to refuse the application for an adjournment;

1. In my view, these matters militate against what is effectively a rehearing of the same application. I reject the submission that there is "more detailed evidence" before the Tribunal today which was not before the Tribunal last Thursday. True it is there is now a statement of the respondent, but from what I understand Dr Al-Mozany informed the Tribunal orally last Thursday of the substance of the the matters which are now set out in his statement.

Dealing with the respondent's submissions

1. First, I accept that Dr Al-Mozany is not legally represented and cannot afford legal representation. He says, and I accept, that the Commission's application is complicated and involves extensive material. I accept that he is not a qualified lawyer, but I do not accept that he has no experience in dealing with legal proceedings, and does not have the required requisite skills or knowledge as a layperson to represent himself. In this respect I refer to paragraph [36] of the decision of Deputy President Boland AM.
2. Secondly, as to the assertion that Dr Al-Mozany expects to receive settlement funds by the end of July 2022, these assertions, at least to some small extent are corroborated by the statement of Mr Birbas that "[w]e are hopeful that once finalised and in accordance with the terms of settlement [d]eed, you should have your funds by the end of July 2022". However, I find that the "hope" that the funds "should be received" by the end of July far from certain.
3. Thirdly, as to the desire that Mr Connor SC to represent him, as I understand matters Mr Connor is presently a Counsel Assisting the Royal Commission into Defence and Veteran Suicide, and is not available until 12 December 2022 at the earliest. In any event, neither he nor Mr Birbas will act until there are funds in trust. And it further appears that Mr Birbas is not available either. Accordingly, Mr Higgins, who appeared for Dr Al-Mozany on today's application, conceded that other legal representation would have to be obtained if the application for an adjournment succeeded.
4. Fourthly, as to the submissions that a conclave of experts did not take place, in my view is that the holding of a "hot tub" during the five-day hearing can overcome any difficulties.
5. Fifthly, as to submissions that Dr Geenty had not been provided with all of the relevant documents, in my view, if correct (and the Commission submitted that this submission was not correct) this would go to the weight of Dr Geenty's opinion, about which the respondent could make submissions.
6. Sixthly, as to submission that there would be no prejudice to the Commission if an adjournment were granted, I accept, like the Deputy President, there is no direct risk to any patient. However, I agree with the Deputy President that it is important to have regard to the purpose of disciplinary proceedings. 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: see Health Care Complaints Commission v Do [2017] NSWCATOD 307 at [39].
7. As the Deputy President concluded, 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.
8. Finally, and weighing heavily on my mind, is the Deputy President's finding, like The Hon Frank Marks before her, at [53], that of significance was the repeated failure of the practitioner to comply with any direction of the Tribunal. Like Principal Member Marks the Deputy President had no confidence, given the history of this matter, as set out in the chronology attached to her decision, that if a further adjournment is granted that the practitioner will comply with directions to ensure the matter is ready for new hearing dates.
9. I share those concerns.
10. Weighing all these matters, in my view the present application should be refused.

Costs

1. This is a costs jurisdiction, and the ordinary rule is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342: Qasim v Health Care Complaints Commission [2015] NSWCA 282; Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182.
2. The applicant has been unsuccessful. He must pay the Commission's costs as agreed or as assessed.

Orders

1. The Tribunal orders: 1. The application by the respondent to vacate the hearing scheduled to commence on 4 July 2022 is dismissed. 2. The respondent is to pay the applicant's costs as agreed or as assessed.

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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: 04 July 2022