Health Care Complaints Commission v Al-Mozany

Health Care Complaints Commission v Al-Mozany - [2023] NSWCATOD 3 - NSWCATOD 2022 case summary — Zoe

Introduction

A Stage 1 hearing of this matter took place over five days from 4 to 8 July 2022. The respondent (practitioner) was unrepresented throughout the hearing. On 8 July 2022, the matter was adjourned part-heard to 17 and 18 October 2022 for further hearing. What remained to be completed on 17 and 18 October 2022 was the Commission's evidence in reply.
At the conclusion of the hearing, the Tribunal gave directions for the filing of Stage 1 submissions.
The applicant (Commission) filed its outline of submissions in relation to the Stage 1 hearing on 29 August 2022. Those submissions were 122 pages in length.
However, commencing on 30 September 2022, the practitioner, now represented, then filed three (interlocutory) applications for miscellaneous matters. These were: 1. an application filed on 30 September 2022 (First Interlocutory Application); 2. an application filed on 13 October 2022 (Second Interlocutory Application); 3. an application filed on 16 October 2022 (Third Interlocutory Application);
The practitioner then filed his Stage 1 submissions on 5 October 2022. Those submissions are (apparently) 397 pages in length and go to substantive Stage 1 matters, as well as (in part) to the First, Second and Third Applications. Mr Connor SC, who now appeared for the practitioner, indicated that those submissions were incomplete pending the production of the documents sought to be produced in the First Interlocutory Application.
In addition, the practitioner filed a Reply of some 197 pages, a folder of 15 documents described as "High Level Documents" and further bundles of authorities, legislation and Reading Speeches.
The Commission filed 28 pages of Stage 1 submissions in reply on or about 17 October 2022.
The adjourned Stage 1 hearing then came on for hearing on 17 October 2022. The practitioner wished to agitate the First, Second and Third Applications before the Stage 1 hearing continued. The Commission was not in a position to deal with the Second and Third interlocutory Applications on 17 and 18 October 2022.
In the circumstances, these reasons deal with two matters.
The first is an application by the Commission to amend Particulars 9(c), 11(c) and 13(c) of Complaint One of the Amended Complaint. For the following reasons, that application is granted.
The second matter is the First Interlocutory Application. For the following reasons, that application is refused.

[5]

The Amended Complaint

Complaint One of the Amended Complaint states: COMPLAINT ONE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the practitioner has: engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of orthodontics is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
Particular 9 presently relevantly states: Patient E 9. Between 27 September 2013 and 10 March 2018, in the course of treating Patient E, a minor, the practitioner failed to: a. conduct an appropriate initial assessment; b. formulate an appropriate treatment plan; c. obtain informed consent from Patient E or their guardian prior to commencing orthodontic treatment by failing to: i. obtain a signed consent form; ii. discuss a treatment options or risks associated with multiple uninterrupted teeth (still in the gum) and impacted teeth (tooth in position that it cannot come through the gum) shown on OPG dated 3 April 2018. iii. adequately monitor Patient E's general dental health during the course of their orthodontic treatment.
The Commission proposes to amend Particular 9 so as to read: … c. obtain informed consent from Patient E or their guardian prior to commencing orthodontic treatment by failing to: i. obtain a signed consent form; ii. discuss a treatment options or risks associated with multiple uninterrupted teeth (still in the gum) and impacted teeth (tooth in position that it cannot come through the gum) shown on OPG dated 3 April 2018; d. adequately monitor Patient E's general dental health during the course of their orthodontic treatment.
Particular 11(c) presently states: Patient F 11. Between 4 June 2015 and 1 March 2018 in the course of treating Patient F, a minor, the practitioner failed to: … c. obtain informed consent from Patient E or their guardian prior to commencing orthodontic treatment by failing to: … iii. adequately monitor Patient E's general dental health during the course of their orthodontic treatment in circumstances where Patient F had poor oral hygiene.
The Commission proposes to amend Particular 11 so as to read: 11. Between 4 June 2015 and 1 March 2018 in the course of treating Patient F, a minor, the practitioner failed to: a. conduct an appropriate initial assessment; b. formulate an appropriate treatment plan; c. obtain informed consent from Patient E or their guardian prior to commencing orthodontic treatment by failing to: … d. adequately monitor Patient F's general dental health during the course of their orthodontic treatment in circumstances where Patient F had poor oral hygiene.
Particular 13(c) presently states: Patient G 13. Between 31 March 2017 and 16 March 2018 in the course of treating Patient G, a minor, the practitioner failed to: … c. obtain informed consent from Patient G or their guardian prior to commencing orthodontic treatment by failing to: … iii. adequately monitor Patient G's general dental health during the course of their orthodontic treatment.
The Commission proposes to amend the Particular 13 so as to read: 13. Between 31 March 2017 and 16 March 2018 in the course of treating Patient G, a minor, the practitioner failed to: … c. obtain informed consent from Patient G or their guardian prior to commencing orthodontic treatment by failing to: … d. adequately monitor Patient G's general dental health during the course of their orthodontic treatment.

[6]

Submissions

The Commission submits that the present drafting of the Particulars was the result of a typographical error, that the meaning of the Particulars is clear, that its cross-examination was conducted in a manner consistent with the proposed amendments and that accordingly the amendments should be allowed.
The proposed amendments are opposed by the practitioner, who made lengthy written and oral submissions on the issue. In summary, the practitioner submits that:

the errors are "far from" being typographical errors;
there is no evidence from the Commission to explain how the errors have been made and why the Complaint was not amended earlier;
Particulars 9(iii), 11(c)(iii) and 13(c)(iii) should be struck from the Amended Complaint as being "misconceived and nonsensical";
in Ghosh v Health Care Complaints Commission [2020] NSWCA 353 at [149] and [150] the Court of Appeal emphasised the important role of Particulars in complaints;
after being put on notice of the errors in January 2021, the Commission "must have appreciated the nonsensical nature of the allegations".

The practitioner submits that "these matters" have a long history which the Tribunal needs to appreciate in order to consider the Commission's application to amend the Particulars. This history is set out in the practitioner's written submissions of 18 October 2022. In summary, the practitioner had pointed out the error in the pleadings in January 2021, and while the Commission amended the Complaint in June 2021, the Particulars complained of were not amended, nor were they sought to be amended during the five day hearing of 4 to 8 July 2022.
The practitioner also put particular emphasis on: 1. the role of the Commission's Director of Proceedings and "the obligations that attach to a prosecutorial role". Those submissions are set out in Annexure A to the practitioner's submissions filed on 5 October 2022; 2. particulars being of "fundamental significance to the proper conduct of matters" in this jurisdiction. Those submissions are set out in Annexure B to the practitioner's submissions filed on 5 October 2022.
On the second day of the adjourned hearing, Mr Connor sought to tender certain correspondence referred to in his document titled "Re the HCCC's Application to Amend Paragraphs 9(c)(iii), 11(c)(iii) and 13(c)(iii)" and filed on 18 October 2022. These documents were correspondence between the Commission and the practitioner's solicitors in relation to Particulars 9(c)(iii), 11(c)(iii) and 13(c)(iii). This tender was objected to by the Commission, Ms Petrie indicating that in the decision of Deputy President Boland in Health Care Complaints Commission v Al-Mozany [2021] NSWCATOD 51 (30 April 2021 Interlocutory Decision) the Commission was not required to respond to that correspondence. In addition, Ms Petrie submitted that the time the correspondence was sent there had been approximately 900 pages of correspondence sent to the Commission by the practitioner's legal representatives in the previous month.
In response, Mr Connor enquired of the Commission whether the issue of the "disconnect" in the pleading of the Particulars had been raised. Ms Petrie indicated that that matter had been raised, but the Commission lacked the resources to deal with the voluminous amount of correspondence being sent by the practitioner's legal representatives and submitted that the correspondence was disproportionate to issues in dispute and the subject of the 30 April 2021 Interlocutory Decision. Further, a decision was made by the Commission at the time to use its resources to concentrate on preparing and filing its evidence.
Finally, Ms Petrie submitted that the cross-examination of the practitioner proceed on the basis that each of Particulars 9(c)(iii), 11(c)(iii) and 13(c)(iii) were separate sub-Particulars.
When the argument proceeded about the tender of these documents I indicated that I would give a ruling in the course of these reasons. For the reasons set out below, the tender should be permitted.

[7]

Legal Principles

I adopt what the Tribunal stated in the 30 April 2021 Interlocutory Decision, namely: 72. Section 53 of the NCAT Act, which is found in Part 4 dealing with practice and procedure, provides as follows: 53 Amendments and irregularities (1) The Tribunal may, in any proceedings, make any amendments to any document (for example, an application or appeal) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice. (2) Any such amendment may be made - (a) at any stage of the proceedings, and (b) on such terms as the Tribunal thinks fit, but may only be made after giving notice to the party to whom the amendment relates. (3) If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise. (4) The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings. 73. It is important to remember that s 53 is subject to s 35 of the NCAT Act. 74. Section 35 and the notes thereto provide as follows: 35 Application of Part Each of the provisions of this Part is subject to enabling legislation and the procedural rules. Note - The Division Schedule for a Division of the Tribunal may, in some cases, make special provision for the practice and procedure to be followed in connection with certain proceedings allocated to the Division for determination. The provisions of the Division Schedule prevail to the extent of any inconsistency with the provisions of this Part. See section 17(3). Section 4(4) also provides that any provisions of this Act that are expressed to be subject to the procedural rules have effect subject to any exceptions, limitations or other restrictions specified by the procedural rules. Enabling legislation may also make provision for matters relating to practice and procedure in relation to functions conferred on the Tribunal, including (for example) specifying periods wit 75. The circumstances when the practice and procedure provisions of the NCAT Act are inapplicable because the enabling legislation "covers the field" or a provision is inconsistent with the provisions of the enabling Act are cogently explained by Sackville AJA in Medical Council of New South Wales v Lee [2017] NSWCA 282. Section 165L of the National Law sets out the Tribunal's powers to make defined interlocutory orders. That section does not provide power for the Tribunal to amend a complaint or to strike out parts of a complaint. Although the constitution of the Tribunal to make an interlocutory order (as such an order is defined in the NCAT Act) is provided in s 165(5A) it is not without doubt that interlocutory orders in proceedings under the National Law, other than those set out in s 165L, can be made (relying on the definition of an interlocutory order in s 3 of the NCAT Act).

[8]

Conclusion

I accept that particulars of disciplinary complaints play an important role in affording a fair hearing to the person the subject of the complaints, [1] that particulars must make the practitioner clearly aware of "that which he is charged, and what material facts are alleged to constitute the charge or charges against him", [2] that a practitioner is entitled to reasonable notice of the charges, [3] and the of requirement of clarity in allegations made against persons charged with professional misconduct or unsatisfactory professional conduct. [4]
I have taken into account the practitioner's submissions on this matter summarised in a note titled "Re the HCCC's Application to Amend Paragraphs 9(c)(iii), 11(c)(iii) and 13(c)(iii)" filed 17 October 2022 and a further note bearing the same title filed 18 October 2022. I consider that the correspondence sought to be tendered by the practitioner, to which objection was taken by the Commission ought to be admitted. I accept that there is no explanation as to why it had taken the Commission so long to make the application. This may be a matter which can be addressed in costs submissions.
However, in my view, what the Commission meant to plead was plain, and would have been known to the practitioner and his legal advisers.
I further accept that the cross-examination of the practitioner was conducted as if the Amended Complaint was further amended as sought.
I reject the practitioner's submissions based on the obligations of the role and obligations of the Director of Proceedings and do not accept the analogies made between the role of that office and the Director of Public Prosecutions.
Finally, I note that a similar formula of pleading (namely, that the practitioner "failed to … adequately monitor [a patient's] general dental health") also appears in Particulars 1, 5, 15, 16, and 18 where a similar Particular appears separately.
By way of example, Particular 1 states: 1. Between 19 September 2015 and 14 April 2018, in the course of treating Patient A, a minor, the practitioner failed to: a. conduct an appropriate initial assessment; b. formulate an appropriate treatment plan; c. obtain informed consent from Patient A or their guardian prior to commencing orthodontic treatment including discussing surgical options and extractions; d. adequately monitor Patient A's general dental health during the course of his orthodontic treatment including organising regular dental check-ups when poor oral hygiene was noted at commencement of and throughout treatment.
This "formula" very similar to each of Particulars 9, 11 and 13. In my view, the defects complained of by the practitioner were clearly drafting errors.
For these reasons, I will allow the amendments sought.
I now turn to the First Interlocutory Application.

[9]

Introduction

The practitioner seeks 23 of the 24 orders set out in Annexure A to the application ("Orders Sought"), which are reproduced in Attachment A to these reasons.
During the course of the hearing Mr Connor indicated that: 1. proposed order (4) was no longer sought; and 2. in the remaining orders, where documents were sought to be produced "within two days of the making of the order", the practitioner now sought orders that those documents be produced within three hours. However, later in the hearing, Mr Connor conceded that that particular timeframe was no longer appropriate.
During the course of the hearing Ms Petrie indicated that in relation to orders (2) and (3) all relevant evidence had been provided to Dr Geenty and tendered in the proceedings.
Mr Connor submitted that there was great uncertainty as to what Dr Geenty had been provided with, and took the Tribunal to relevant parts of Mr Birbas' affidavit of 28 September 2022. He submitted that that uncertainty had the potential for the proceedings to miscarry. Ms Petrie submitted that everything that had been provided to Dr Geenty had been tendered, that she had invited the practitioner the hearing to identify any evidence that had not been provided to put to Dr Geenty and to take Dr Geenty to that evidence, that the practitioner failed to do so and therefore that it would be open to the Tribunal to find that there was no further evidence other than that that was before the Tribunal.
During the course of the hearing Ms Petrie also indicated, in relation to orders (5) to (7), that there were no written communications between Dr Geenty and Dr Fryer. In this respect, the Commission relied on an extract of the transcript of proceedings of 5 July 2022 where practitioner cross-examined Dr Geenty on this issue.
The grounds for seeking the remaining orders are set out in summary form in Annexure B to the application ("Grounds Concerning the Orders Sought by Dr Al-Mozany"), which are reproduced in Attachment B to these reasons.
This application is opposed by the Commission, which submits that the application amounts to a "fishing expedition".

[11]

Practitioner's written submissions and materials

The principal other materials relied on by practitioner included the following.
First, a bundle of documents titled "High Level Documents" including in particular: [5] 1. Annexure A - being submissions concerning the Office of the Director of Proceedings". In summary, that document sets out the relevant statutory provisions establishing that office, and asserts that the Director of Proceedings, as a prosecutor owes the practitioner a duty of disclosure; 2. Annexure F - being submissions concerning Dr Geenty's Reports. In summary, that document sets out seven issues in respect of which the practitioner "takes issue" with Dr Geenty's five reports, [6] namely: 1. the Commission's failure to comply with s 30(2A) of the Health Care Complaints Act 1993 (NSW) (HCC Act), by failing to provide Dr Geenty with all of the material for the purposes of preparing his Reports; 2. Dr Geenty's failure, in each of his reports, include in, or annex to it' (being the words used in the provision) a statement in the form required by s 30(3) of the HCC Act; 3. Dr Geenty wrongly communicating in preparing his first report with: 1. Dr Shane Fryer, who was a delegate of the Dental Council and presided over the s 150 hearing concerning the practitioner; 2. Associate Professor Jim Hawkins; 1. Dr Geenty failing to properly articulate reasons for his assertions and conclusions in his reports; 2. Dr Geenty's fourth report of 24 June 2022 going beyond the order of Deputy President Boland of 20 June 2022; 3. the Commission's letters of instruction to Dr Geenty being "flawed"; 4. the Commission providing irrelevant and prejudicial material in the documents that it provided to Dr Geenty, going beyond the patients concerning which the Commission sought Dr Geenty's reports.
Secondly, a document titled "Dr Al-Mozany's First Application" provided to the Tribunal on 18 October 2022. That document sets out brief submissions in relation to the following topics: 1. first, the statutory office of the Director of Proceedings and the prosecutorial obligations attaching to that office. Here Mr Connor notes that in Annexure A to the practitioner's submissions dated 4 October 2022, the practitioner indicated the provisions which created the statutory office of the Director of Proceedings and the obligations attaching to the prosecutorial role. These obligations are said to include the duty of disclosure. Copies of Part 6A of the Health Care Complaints Act 1993 (NSW) (HCC Act), the Second Reading Speech to the Health Legislation Amendment (Complaints) Act 2004 (NSW) whereby Part 6A of the HCC Act was added to the legislation and the Second Reading Speech to the Health Legislation Amendment Act 2009 (NSW) were provided for the assistance of the Tribunal; 2. secondly, legal professional privilege. Here Mr Connor notes that the Commission seeks to oppose the First Interlocutory Application by claiming that documents are subject to legal professional privilege. It is submitted that, if the Commission seeks to claim legal professional privilege, the process should proceed akin to seeking a summons for production of documents. If necessary, the practitioner applies for Summonses to be issued in the same terms as the orders sought. It would then be for the party subject to the summons/order to produce to the Tribunal any documents falling within the categories of documents sought, pursuant to orders/summons. If a claim of privilege is to be made, it would be a matter for the party producing to make a claim for privilege over those documents. The onus of establishing the claim of legal professional privilege falls on the party asserting or claiming the privilege, the Commission: Grant v Downs (1976) 135 CLR 674 at 689. 3. thirdly, the subject of relevance, namely whether or not the documents sought were relevant. Here Mr Connor responded to the Commission's position in correspondence that the documents sought were not relevant, and submits that it is not for the prosecuting authority to determine whether or not the documents are relevant, relying on Alister v R (1984) 154 CLR 404 at 414 - 415, where Gibbs CJ discussed the disclosure obligations of the Crown to an accused.
Finally, the materials relied on by the practitioner also included the "consolidated transcript" of the hearing of 4 to 8 July 2022.

[14]

Written submissions

In its written submissions, the Commission emphasised that: 1. the matter had proceeded in relation to Stage 1 only over five days in early July 2022. At the conclusion of the practitioner's evidence on day 5, the Commission made an application to adduce evidence in reply to the practitioner's oral evidence in circumstances where the practitioner breached numerous trial directions in relation to the filing of his evidence prior to the hearing; 2. the practitioner is seeking to agitate further issues at the close of evidence, including matters that have been the subject of the 30 April 2021 Interlocutory Decision; 3. throughout the practitioner's submissions extensive reference is made to correspondence between the Commission and practitioner prior to the 30 April 2021 Interlocutory Decision. The Tribunal should approach such correspondence with caution in circumstances where the Commission was not required by the Tribunal to respond to much of that correspondence. Further, at the time of that correspondence, the Commission was yet to serve its evidence and the practitioner was seeking to ventilate issues in the absence of having access to such evidence; 4. the practitioner was seeking to now reintroduce further evidence in the proceedings through his written submissions at the close of evidence at a stage when that evidence cannot be the subject of any meaningful challenge; 5. the practitioner was seeking to now object to evidence that had been admitted into evidence and where the practitioner was given ample opportunity to object prior to its admission and to challenge such evidence. Witnesses have also been cross-examined as a result of that tender; 6. the practitioner's submissions on the inadequacies of Dr Geenty's reports dated 16 January 2020 and 14 April 2020 in relation to those matters that are the subject of withdrawn Particulars in the Amended Complaint need to be examined in the context of Dr Geenty's further supplementary report dated 23 May 2022 where Dr Geenty has reviewed the further evidence and advised that "the further evidence that you have provided has not made a significant difference to my previous two (2) reports". The Commission submits that the practitioner fails to acknowledge this in his submissions; 7. one of the significant issues for this matter has been the ongoing issues in relation to evidence and the practitioner's failure to file trial evidence in accordance with the Tribunal's numerous trial directions.

[17]

Unfounded allegations against the Director of Proceedings

Secondly, the allegations made against the Director of Proceedings [8] including: 1. Dr Geenty's non-compliance with s 30 of the HCC Act in relation to his expert reports; 2. the conversations between Dr Geenty and Dr Fryer. Here the Commission relies on the practitioner's cross-examination of Dr Geenty on 5 July 2022 which it submits does not support a proposition that Dr Geenty's evidence was influenced in some way by his conversation with Dr Fryer.
Ms Petrie submitted that both allegations were "strenuously" denied, and that there was no evidence, deliberate or otherwise of any abuse of power by the Commission and that the allegations of abuse of power are not made with any specificity. (Here I note that Mr Connor commented during the course of Ms Petrie's submissions on this point that this issue intersected with the Third Interlocutory Application, and that the issue was better characterised as the Commission failing to properly exercise its powers in instituting the present proceedings.)
In relation to s 30 of the HCC Act, the Commission drew the Tribunal's attention to pars [56] and [57] of the 30 April 2021 Interlocutory Application which state: 56. The practitioner seeks that he be provided with an answer to a request about whether or not Dr Geenty provided a statement pursuant to s 30(3) of the Health Care Complaints Act 1993 (NSW) prior to preparing his two reports. It is not in dispute that Dr Geenty signed a statement on 30 June 2020. 57. I accept that, on the evidence currently before me, it appears that Dr Geenty did not sign the required statement until after he had prepared his reports. I accept that his reports may be subject of challenge on that basis noting that the requirements of s 30(3) are mandatory, but I note the certificate ultimately provided does not disclose any financial or other interest which would preclude Dr Geenty's report being used in the proceedings if the requirements of s 30(4) are satisfied.
The Commission submitted that the Tribunal should read s 30 in particular s 30(4) which states: (4) Such a report may be used in disciplinary or related proceedings under the Health Practitioner Regulation National Law (NSW) but may not be admitted or used in any other proceedings before a court, tribunal or body, except with the consent of the person giving the report, the complainant and the person against whom the complaint is made.
The Commission submitted that the Tribunal was correct in finding in it had a discretion to admit reports even without the accompanying statement, and that by the time the matter came to Tribunal, the matter was beyond "the investigation stage".
The Commission also relied on pars [58] to [64] of the 30 April 2021 Interlocutory Decision.
The Commission also relied on the cross-examination of Dr Geenty by the practitioner.
As to the conversations between Dr Geenty and Dr Fryer, the transcript relevantly records the following: AL-MOZANY: Dr Geenty, you have 40 plus years' experience, yet you asked for opinion or discussed the matter with Dr Fryer, Shane Fryer? GEENTY. Yes, in a hypothetical way, as I'm supposed to. AL-MOZANY: What do you mean hypothetical way? GEENTY: In that there was no discussion about who we were talking about. AL-MOZANY: Are you aware that Dr Fryer was the person who imposed the conditions on me? GEENTY: No. AL-MOZANY: President of the - GEENTY: No, not that time. AL-MOZANY: Not at that time - GEENTY: No. AL-MOZANY: --but since then? GEENTY: I'm aware now. I've been - I've become aware of it, yes. When I read through some of the older documents. AL-MOZANY: Dr Fryer was involved with the ten patients, initially, that the Dental Council brought against me. He was one of the people that imposed the condition, his signature here and Dr Kavita Lobo. Why would you talk to Shane Fryer? You've got 40 plus years' experience? GEENTY: I spoke to both Professor Fryer and Professor Jim Hawkins, both. … GEENTY: A. I can recall the nature of the conversation and the topic of conversation for both people that I spoke to on separate occasions, and it was because I was - had a dilemma in deciding what I should be expecting there to be in the way of records and what is appropriate, and what is not acceptable in terms of presence or absence of records. And the history of this is that when, over 150 years probably, orthodontists have used plaster of Paris models of the teeth and mouth as their record of the problem that they're treating, we didn't have back then 150 years ago we didn't have photography, and of course no digital records were available and no scanners. So, the gold standard was always plaster of Paris models of the teeth taken, created when an impression of the teeth is made with a special material, plaster of Paris is poured into that mould and a positive is created of the patient's teeth and mouth and that becomes then the basis for planning the case and also for monitoring progress and treatment. And I spoke to Hawkins first actually, I said, Jim, what do you think - I'll go back, sorry. There's no firm direction in this anywhere in the rules and regulations relating to orthodontists, there's no one has said you must have plaster of Paris models, you must have scans, you must have photographs. I think that's because technology has changed so rapidly, the rules are not changing to match it. So, when I asked Jim Hawkins about, who's older than me, he said, yes, there should be plaster of Paris moulds for every case as a preliminary or as an essential step in gathering records for a patient. I asked Shane Fryer the same question, he said he didn't believe that was the case, that with new technology now, with three dimensional scanners and ultrasonic scanners, and cone beam CTs and digital photography that plaster of Paris moulds are no longer essential, and this is Shane Fryer's words. So that gave me guidance then to look at myself as well because I now practice - we don't use plaster of Paris models anymore either. So, and neither do you because I didn't see any. So that vindicated both of us actually because I was a bit concerned about when we came to look at it what I should be doing at our practice and what you'd need to do. So we stopped taking plaster of Paris models of the teeth probably five years ago, except for severe cases and surgical cases, then we don't use plaster of Paris. And that's the only reason I spoke to these two men was to get some guidance on that, because there's nowhere in the AOB stuff, Australasian Orthodontic Board stuff or the Dental Board of New South Wales, or any of the American literature about plaster of Paris models and their necessity to have anymore.
Ms Petrie submitted that this transcript did not support the wide scope of the documents sought in paragraphs 3 and 4 of order (1)(par 3) or in orders (5) to (7).

[22]

Other matters

In addition, in relation to orders (2) and (3), Ms Petrie submitted that all DICOM data concerning Patients A to N had been provided to Dr Geenty, and that that data has been provided to the practitioner (being Exhibit 4 in the substantive hearing).
Ms Petrie also indicated that the three hours sought to produce all of the documents was "completely oppressive", at which point Mr Connor submitted that "in the way things [had] unfolded here", production of documents within that time frame was no longer pressed.
Ms Petrie took the Tribunal through the bundle of materials tendered by the Commission and marked A on the First Interlocutory Application. The first of the materials was a letter from the Commission to the practitioner dated 2 February 2022 which responded to questions asked by the practitioner (in italics) relevantly stated: 14. Was [sic - Were] Dr Geenty's discussions with Dr Fryer and Dr Hawkins by email, phone or in person? This is a matter from cross-examination of Dr Geenty. I am not aware of the answer. … 28. Is the HCCC's position as of today that it has all the patient records? Yes.
The second document relied on was a letter from the Commission to the practitioner dated 11 February 2022 posted 15 February 2022. By that letter the practitioner was provided with two universal serial buses (USBs), which Ms Petrie submitted responded to orders (2) and (3).
The letter stated that USB 1: … contains electronic copies of the Commission's evidence being Volume 1 - 3. You have previously been provided with both an electronic and hard copy of Volumes 1 - 3. It also includes the Invisalign material at Tabs 71 - 74 and the DICOM data at Tab 82 which you already have.
The letter stated that "USB 2 - GDC": [9] … contains all of the electronic records which were obtained under Summons from the General Dental Group which have already been provided to you. The USB contains an index created by the Commission then a file for each patient with their DICOM data as well as the patient records and photographs. The patient records have also been extracted into one large separate PDF containing all the patients records which was printed out and posted to you as requested. The patient records in the combined PDF are the same as the patient records for each file.
The letter concluded by stating: Should you wish to discuss any of the above please do not hesitate to contact me …
The fifth document was an email from the Commission to the practitioner dated 14 June 2022 relevantly stating: I have spoken today to Dr Geenty about the issues you have raised including for example the CBCT from [Patient E] you have identified from 2014. He has confirmed with me that he has already reviewed all of this material but he will provide a short supplementary report which specifically addresses this earlier data.
The seventh document was an email from the Commission to Dr Geenty dated 20 June 2022 relevantly providing additional documents and asking Dr Geenty a series of questions and seeking a supplementary report.
The eighth document was an email from the Commission to the practitioner dated 23 June 2022 relevantly stating: I have completed reviewing the USB you have served on us. The USB is not indexed and contains a large amount of documents. It contains the following: 1. GDC Summons 16 June 2021 - patient records, 2. HCCC evidence SA - this appears to be the evidence you have already served. 3. HCCC USB 12.3.21 - patient records. 4. Statement of Ms Shannon Bliss (37 pages) 5. Folder 1 - this is 72 pages and appears to be a selection of documents filed in the s150 proceedings including statements from you, patient records and correspondence, pleadings and legal decisions. 6. Folder 2 - same as folder 1 (349 pages). 7. Folder 3 - same contents as folder 1 (347 pages). 8. Folder 4 - statement from Dr Hyde regarding supervision (52 pages). 9. Folder 5 - same as contents as folder 1 (100 pages). You do not have leave to serve all of this material. Could you please identify what material you say is new and allowed to be served under the orders made on 20 June 2022 and please provide an index of the documents. The Commission will not be providing this large amount of records to Dr Geenty in this form.
In relation to this letter Ms Petrie submitted that during the course of the hearing she had made an application prior to Dr Geenty's cross examination (by the practitioner) asking the practitioner to take Dr Geenty to any relevant documents which he asserted was not available or different or otherwise relevant to the determination of the proceedings.
In conclusion, Ms Petrie submitted that: 1. the Commission as a model litigant had served all relevant evidence and the documents sought constituted a "fishing expedition"; 2. this is a protective jurisdiction and the paramount consideration is the health and safety of the public: National Law, s 3A; 3. the application had led to serious delay and to the inconvenience of witnesses; 4. the practitioner's approach to the First Interlocutory Application was characterised by broad sweeping statements as opposed to statements with any meaningful substance or precise or clear terms; 5. many of the issues agitated had been known to the practitioner since the 30 April 2021 Interlocutory Decision but no steps had been taken (including the issue of summonses) to pursue any of them until the filing of the First Interlocutory Decision on 30 September 2022; 6. there was no basis for any suggestion that the Director of Proceedings has not properly conducted herself in the proceedings and no basis for suggesting that she has not acted independently in circumstances where there has been no proper particularisation of either allegation; 7. the practitioner was well aware of Dr Geenty's evidence, which has already been admitted into evidence, and it is not appropriate at such a late stage to seek such an expansive list of documents and ultimately it will be a question of weight for the Tribunal to determine; 8. many of the issues were before and determined by the Tribunal in the 30 April 2021 Interlocutory Decision; 9. the Commission was not obliged to inform the practitioner of the fact of it having or having had communications with witnesses; 10. the disclosure obligations of the Commission were not comparable to those of the Director of Public Prosecutions of NSW as: 1. these proceedings are not criminal proceedings; 2. with a different onus of proof, that is the civil standard (albeit informed by Briginshaw [10] principles), not the criminal standard; 3. the Tribunal is not a court; 4. the Tribunal not bound by the rules of evidence; 5. the Commission's own Code of Conduct makes no provision for makes no provision for disclosure; 6. in Health Care Complaints Commission v Balafas [2021] NSWCATOD 153 the Tribunal observed at [81] that: There are no specific disclosure rules in the Health Care Complaint's Commissions Code of Conduct, March 2015, but that Code provides that: "[i]n conducting all prosecutions and other legal proceedings, the Commission acts with complete propriety, fairness and in accordance with the highest professional standards." [11] 1. the Tribunal should have no regard to evidence which may be relied on in the Second and Third Interlocutory Applications and to the fact that the practitioner proposes to make those applications; 2. the course proposed by the practitioner that the Commission produce documents to the Tribunal in the first instance, was a disproportionately cumbersome and time-consuming approach which should be rejected.

[23]

Practitioner's oral submissions in reply

By way of summary, Mr Connor made the following submissions.
First, submissions as to proportionality and expense. Mr Connor submitted that it was fundamental that the proceedings be carried out properly, and that these proceedings had the very great potential to miscarry. Having been suspended in 2018, these matters were raised in 2021, and involve the practitioner's likelihood which affect both him and his family. In those circumstances, the Commission cannot reasonably complain about proportionality and expense.
Secondly, submissions that the Commission had made two implicit concessions, namely: 1. that there is material that it does not wish to produce to the Tribunal and the practitioner; (Mr Connor submitted that this concession bordered on being explication); 2. that the Commission held prejudicial material.
Thirdly, submissions that the Tribunal has other evidence connected with Dr Geenty that has not been put before the Tribunal. Mr Connor submitted that such a failure if established would reflect strongly and adversely on the evidence of Dr Geenty. In final submissions the practitioner will be making submissions on how Dr Geenty might be treated as the Commission could have no assurance that he had seen all the evidence. Mr Connor characterised this as a "Jones v Dunkel [12] style" of submission, namely an adverse inference which can be drawn against a party for failing to provide material. Mr Connor described this is a fundamental aspect of fairness, which went to the reliability of Dr Geenty's reports.
Fourthly, submissions as to the Dr Geenty's exchanges, Mr Connor took me to matters I had raised during the hearing on 5 July 2022, namely: SM TITTERTON: The one thing I wanted to raise, and I don't know whether I'm going to ask questions about it or not but I want to flag with you is this. Dr Geenty comes across as a very reflective and careful witness. I have to say because l've never, you know, I've heard a lot of these cases, in his first report he - and there were some questions asked about it - said that he'd discussed the matter with two colleagues in a generalised de-identified and hypothetical way. That is unusual - well, it might not be unusual - it's unusual to see that in a report in my experience. I have no doubt that experts do talk to each other about things, but I suspect that if Dr Al-Mozany had been represented his barrister would've gone to town about discussions that Dr Geenty had with Dr Fryer, or Professor Hawkins for that matter. Obviously he's being upfront, he's identifying the conversation but you'd want to know what was said and did you keep any notes and did it influence your opinion, and was this opinion really yours, etcetera, etcetera, etcetera. Dr Al-Mozany did ask some questions about it. I don't know if he's going to push it as far as to say that Dr Fryer, who apparently - he said he didn't know that he had - was on the council that-- PETRIE: Section 150 hearing. SM TITTERTON: --yes, that suspended him. AL-MOZANY: I will be pursuing that. SM TITTERTON: Anyway, I just wanted to flag that as subject matter and whether you want to explore it in re-examination before I ask any questions, that's fine. PETRIE: No. In my respectful submission it hasn't been established on the evidence that there's been - it was a de-identified, so there was no identification of Dr Al-Mozany or the patient. Nor has it been established on the evidence that he's been inappropriately influenced by Dr Fryer's views. SM TITTERTON: He hasn't been asked about it. PETRIE: No. SM TITTERTON: Anyway, I just wanted to flag that and both of you can deal with it in any way you wish. PETRIE: Thank you.
Mr Connor emphasised that that discussion, between Dr Geenty with Dr Fryer, a s 150 decision maker who made adverse findings against the practitioner, demonstrated that Dr Geenty should never have been involved in these proceedings, and that it would be submitted that this amounted to ostensible bias of the type referred to in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
Fifthly, submissions as to the timing of the First Interlocutory Application, the Commission having relied on Aon, Mr Connor submitted that Aon was "utterly irrelevant", as it was a civil case between private citizens, with no resemblance whatsoever to the present proceedings. As the present proceedings involved an emanation of the State bringing proceedings against a private citizen, Aon, it was submitted, had no application.
Sixthly, Mr Connor also relied on the 30 April 2021 Interlocutory Decision. He submitted that there had been a mischaracterisation by the Commission of the tenor of the that Decision and orders. Mr Connor relied on par [54] where her Honour stated: In broad terms, the HCCC asserts that it is premature to consider orders 4 to 9 prior to the service of its brief of evidence. It is further submitted that the practitioner is seeking, at a preliminary stage, to challenge the admissibility of the expert report, or the reliance which may be placed on it, rather than this occurring at a Case Conference (when all material is filed) or at the hearing.
Mr Connor remarked that it was ironic that, in essence, in the 30 April 2022 Interlocutory Application Deputy President Boland indicated that the application had been made "too early", and that now the Commission was submitting that the application had been made "too late".
Mr Connor then noted that par [57] of the 30 April 2021 Interlocutory Decision stated: I accept that, on the evidence currently before me, it appears that Dr Geenty did not sign the required statement until after he had prepared his reports. I accept that his reports may be subject of challenge on that basis noting that the requirements of s 30(3) are mandatory, but I note the certificate ultimately provided does not disclose any financial or other interest which would preclude Dr Geenty's report being used in the proceedings if the requirements of s 30(4) are satisfied.
Mr Connor asked rhetorically why were there not "s 30(3) statements" connected with each of Dr Geenty's reports. Mr Connor submitted that the Tribunal needed to know whether or not there were such statements, to properly ascertain whether or not the reports should be admitted into evidence. That he submitted went to the "very decision" of the Director of Proceedings to institute the proceedings. Mr Connor also submitted that one cannot speak to a prior decision maker in the same matter, and that this had the effect of "contaminating" Dr Geenty's evidence.
Mr Connor then noted that at [58] the Tribunal stated, "I turn then to the request made to the Commission to provide information about the colleagues with whom Dr Geenty discussed the patients, or some of them, before preparing his first report", noting that, at the time the application was made, the practitioner did not know that one of the colleagues was in fact Dr Fryer.
Mr Connor then referred to pars [60] (which related to "piecemeal" production of documents before a brief of evidence was served), [61], (which related to Dr Geenty discussing matters in issue with two unnamed colleagues and whether it was relevant and necessary for those colleagues to be identified) and [63] (which related to the issue of whether or not the opinions expressed by Dr Geenty were based wholly or substantially on his own knowledge).
Mr Connor then noted pars [64] and [65] where her Honour stated: 64. The question I must determine is whether the colleagues' names should be provided. As a matter of procedural fairness to the practitioner, I accept he may wish to cross-examine the colleagues to establish the extent, if any, that Dr Geenty's opinions are independent or influenced by his colleagues' views. I am satisfied therefore that proposed order 6 should be made. 65. I am satisfied that it is not in accordance with the objects of the NCAT Act or the conduct of proceedings under the National Law that orders 4, 5, 7, 8 and 9 should be made. To do so would incur unnecessary time and costs. Any outstanding matter can be raised by the practitioner's lawyers after the service of the HCCC's brief.
Seventhly, Mr Connor submitted that real difficulties arose where litigants were not represented: McPherson v The Queen (1981) 147 CLR 512 at 532 where Mason J stated: … Cross-examination conducted by a layman is not to be judged by the standards applied to cross-examination conducted by skilled counsel. …

[26]

Health Care Complaints Commission v Al-Mozany [2021] NSWCATOD 51

The procedural history of this matter to 26 March 2021 is set out in the 30 April 2021 Interlocutory Decision. That decision dealt with interlocutory applications of both parties. As the Tribunal stated at [1]: These reasons are in respect of two competing interlocutory applications concerning provision of documents and/or requests for further and better Particulars. The Health Care Complaints Commission (HCCC) filed its interim application on 8 March 2021. The other interim application was filed on behalf of Dr Saad Abdul-Hassan Al-Mozany (the practitioner) on 10 March 2021. Additionally, both parties also seek leave to issue a Summons. In the case of the HCCC the proposed Summons is directed to the Proper Officer, Gentle Dental Care. The practitioner's proposed Summons is directed to Gentle Dental Care Group Pty Ltd (Gentle Dental Care) and other associated persons and entities associated with Gentle Dental Care.
The Tribunal stated: Procedural history 8. Three directions hearings have been conducted in this matter. On 15 January 2021 I made the following directions: (1) It is noted that the respondent's lawyers will provide to the Health Care Complaints Commission within 14 days copies of all documents as provided in Order 1 of the orders of the Hon F Marks in proceedings Al-Mozany v Dental Council of New South Wales [2021] NSWCATOD 3 (File No 2018/00385500). (2) Health Care Complaints Commission is to respond to requests by Dr Al-Mozany for further and better particulars, information and documents concerning each of the fourteen patients subject of the Complaint on or before 21 days after receipt of the request. (3) Health Care Complaints Commission is to respond on or before 5 February 2021 to requests numbered 1, 2, 3, 4, 6 and 12 in Sparke Helmore's letter dated 13 January 202[1]. (4) Health Care Complaints Commission is to respond on or before 5 February 2021 to requests [numbered] 8 and 10 in Sparke Helmore's letter dated 13 January 2021. (5) Health Care Complaints Commission is to give to the other party, any material on which that party relies on or before 26 February 2021. (6) The proceeding is listed for directions on 26 February 2021 at 10am at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney. (7) Liberty is granted to both parties to inspect File No 2018/00385500 (Al-Mozany v Dental Council of NSW). 9. The proceedings were stood over for directions on 26 February 2021 in the Health Directions List. 10. On 26 February 2021 I made the following orders: (1) Order 5 of the orders made on 15 January 2021 is varied to provide that the HCCC is to give to the other party any material on which that party relies by 31 March 2021. (2) The HCCC's request to discharge orders 2, 3 and 4 of the orders made on 15 January 2021 is stood over to 12 March 2021 at 11:20am. 11. As there was insufficient time to deal with the two interlocutory applications on 15 March 2021 I stood the applications over for hearing at a date and time to be notified by the Registrar. I also granted leave to the parties to inspect the appeal file and for Summonses to be issued to Gentle Dental Care.
It is also relevant to note the Tribunal's summary description of the competing applications: The HCCC's application 12. The HCCC now seeks that I make an order setting aside order 2 made on 15 January 2021. That is the order requiring the HCCC to provide certain further and better Particulars of the Complaint to the practitioner. Other orders sought by the HCCC are for directions for the filing of a Reply by the practitioner and any material on which he relies by 12 May 2021 and the listing of the matter for a Case Conference after 12 May 2021. 13. Orders 5 and 6 of the orders sought by the HCCC are as follows: 5. The respondent be restrained from sending any further correspondence to the applicant seeking further and better Particulars or seeking clarification of evidence served to date until the applicant's material is filed and served. 6. The applicant is to respond to the request for further and better Particulars after 31 March 2021 provided the respondent advises the applicant which requests are still pressed after having regard to the applicant's evidence. The Commission has 28 days to respond to each further request after such requests are made. 14. In support of the orders sought, the HCCC states that it has been served with 48 letters from the respondent since the filing of the disciplinary proceedings requesting documents, information and further and better Particulars. The HCCC states that the combined correspondence received totals over 800 pages. It is also recorded that the HCCC has responded to 14 of the letters but is unable to meet the deadline in the orders of 15 January 2021. 15. The HCCC also explains: The preparation of the Commission's evidence has been impacted by the amount of correspondence received from the respondent's solicitor. The Commission must prepare its evidence in this matter before it can respond to requests for further information from the respondent. The requests should not be excessive and should not attempt to litigate matters by correspondence which should be dealt with at the hearing. 16. The HCCC also seeks leave to issue a Summons in the form attached to its application. As noted above, the Summons is directed to the Proper Officer, Gentle Dental Care and seeks patient records for the 14 patients referred to in the Complaint. The practitioner's application 17. The practitioner seeks orders and directions in accordance with Annexure "A" to his application. He opposes the orders sought by the HCCC. The practitioner relies on an affidavit of his instructing solicitor, Mr Canton sworn on 10 March 2021 in support of his application. Annexure A to the application seeks that the Tribunal make 17 orders including in order 17 that the HCCC reply to 8 requests for further and better Particulars set out in letters dated 21 January 2021, 22 January 2021, (3 letters), 25 January 2021 (2 letters) and 27 January 2021 (2 letters). 18. Proposed direction 18 requires the parties to confer about the matter generally within the next 7 days. 19. Mr Canton's affidavit in support of the application has exhibited to it voluminous material including correspondence between his firm and the HCCC.
The orders sought by the practitioner are set out in Attachment C to these reasons, the grounds for the orders being set out in Attachment D.

[27]

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

Moving forward more than a year, on 29 June 2022, the Tribunal dismissed an application by the practitioner to vacate the hearing of the Commission's application which had been listed for hearing commencing 4 July 2022: Health Care Complaints Commission v Al Mozany [2022] NSWCATOD 70.
That decision incorporates a chronology prepared by the Commission and was attached as Appendix A to those reasons. The Tribunal noted that the chronology accurately set out the orders and directions made in this matter to ensure the matter was ready for hearing. That Appendix is attached as Attachment E to these reasons.
As the Tribunal explained in its reasons: Procedural history 22. 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 23. 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). 24. 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.) 25. 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. 26. 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. 27. 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. 28. 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. 29. 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. 30. 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. 31. On 2 March 2022 another opportunity was provided to the practitioner to file his material. 32. 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. 33. 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. 34. 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.
The Tribunal refused the practitioner's application to vacate the hearing dates. In summary, the Tribunal concluded: 35. 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. 36. 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. … … 41. 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. 42. 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. 43. 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. … 45. I do not find the practitioner's explanation about why the conclave did not occur to be plausible. … 46. 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". 47. 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. 48. 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. … 53. 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. 54. Weight [sic - weighing] 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.

[28]

Health Care Complaints Commission v Al Mozany (No 3) [2022] NSWCATOD 75

The hearing that the Tribunal refused to vacate on 29 June 2022 then commenced on 4 July 2022. It was common ground that this was to be a "Stage 1 hearing". [13]
At the commencement of the hearing, the practitioner (now represented by counsel for the purposes of the adjournment application) then made a further application to vacate the hearing.
Ms Petrie for the Commission informed the Tribunal that the practitioner's counsel was not aware that an identical application had been made, but refused, four days' earlier.
I refused that application: Health Care Complaints Commission v Al Mozany (No 3) [2022] NSWCATOD 75. As I noted: 15. 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. 16. 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. 17. 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.
I further noted: 27. 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.
When I gave my decision I indicated that I was prepared to grant adjourn the hearing to the following morning (5 July 2022), so as to allow the practitioner the opportunity to seek a stay of the Tribunal hearing from the Duty Judge of the Supreme Court of New South Wales.
The practitioner indicated that he wished to pursue an application to the Supreme Court, and the Tribunal the proceedings so as to allow him to do so. However, an hour or so later the Tribunal was informed that the practitioner had decided not to proceed with any application to the Supreme Court.
In those circumstances, the Stage 1 hearing then commenced on the afternoon of 4 July 2022.

[32]

NCAT Act

Relevant provisions of the National Law include the following: 1. Section 3 which provides: 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. (Emphasis added) 1. section 36 which provides: 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.

[34]

Conclusion

The First Interlocutory Application should be dismissed.
The primary reason for this decision is that it would not be consistent with the guiding principle, namely the facilitation of the just, quick and cheap resolution of the real issues in the proceedings (NCAT Act, s 36(1)), to grant the application, particularly given the extensive procedural history summarised above.
As I have already indicated, in my view the principles set out in Aon do apply to these civil proceedings. In Aon at pars [4], [5] and [25] French CJ stated (footnotes omitted): 4. Save for the dissenting judgment of Lander J in the Court of Appeal, the history of these proceedings reveals an unduly permissive approach at both trial and appellate level to an application which was made late in the day, was inadequately explained, necessitated the vacation or adjournment of the dates set down for trial, and raised new claims not previously agitated apparently because of a deliberate tactical decision not to do so. In such circumstances, the party making the application bears a heavy burden to show why, under a proper reading of the applicable Rules of Court, leave should be granted. 5. In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's statement of claim should not have been allowed. The discretion of the primary judge miscarried. … 25. Recognition of the public interest in the administration of civil justice procedures in Australia and the United Kingdom pre-dates the Woolf Report and its attendant reforms. In Dawson v Deputy Commissioner of Taxation[55], King CJ acknowledged the responsibility of judges to ensure, "so far as possible and subject to overriding considerations of justice", that the limited resources which the State commits to the administration of justice are not wasted by the failure of parties to adhere to trial dates of which they have had proper notice. In a late amendment case considered by the House of Lords in 1987[56], there was a marked departure from the approach of Bowen LJ in Cropper v Smith. Lord Griffiths required that judges considering amendments weigh in the balance: "the pressure on the courts caused by the great increase in litigation and the consequent necessity that, in the interests of the whole community, legal business should be conducted efficiently". … (Emphasis given by Ms Petrie in oral submissions)
And I find the statements of the plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ at [111] to [113]) to be apposite: 111. An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. … 112. 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. 113. 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. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings. (Emphasis added)
In my view, these remarks equally apply by analogy to the conduct of these proceedings.
And, as to Aon being irrelevant to cases in this Division, Aon has been followed and applied countless times in this Division. In 2022 alone, in addition to Health Care Complaints Commission v Parikh [2022] NSWCATOD 116, Aon principles have been followed in Health Care Complaints Commission v Al Mozany [2022] NSWCATOD 70, Health Care Complaints Commission v Taylor [2022] NSWCATOD 48, Health Care Complaints Commission v Guard (No 2) [2022] NSWCATOD 103 and Health Care Complaints Commission v Clarke [2022] NSWCATOD 55.
Secondly, while I accept that there is some overlap between the orders sought in the First Interlocutory Application with the orders sought in the 30 April Interlocutory Application, I do not accept that the matter is as straightforward as claimed by the Commission (namely that the Tribunal refused to make the orders sought), as there is substance in the practitioner's submissions that the Tribunal left it certain questions open until such time that the Commission had completed filing its evidence. Nevertheless, the fact remains that nothing was done by the practitioner to progress these matters (in terms of any formal application) until the filing of the First Interlocutory Application almost 18 months after, and after five days of the substantive hearing.
The third reason for refusing the First Interlocutory Application, which overlaps with the first reason, relates to timing. Here I accept the submissions of the Commission. Quite apart from that extensive history, the matter is now part-heard, almost five days of hearing have been conducted on the basis of the materials tendered, with cross examination by both parties completed and submissions are substantially filed.
The evidence is substantially complete. The practitioner represented himself very capably during the first five days of hearing. Both Judge Boland and I refused his application for a stay of the proceedings until he obtained legal representation. Now that he has legal representation, it is not appropriate to go over "old ground", despite how important the issues agitated by the Commission are to him.
In reaching this conclusion I have placed little weight on the Commission's assertions in relation to the probative value of the documents sought substantially outweighed by the danger of the evidence being unfairly prejudicial to the Commission, and that they are privileged. That proposition cannot be tested in the absence of the evidence being produced.
Nor has it been necessary to determine whether the documents sought were privileged, as claimed by the Commission, and whether privilege had been waived, as claimed by the practitioner. However, my preliminary view is that there appears to be substance in the Commission's submissions. In this respect, I note that in Petroulias at [56] the Court stated: I accept the CDPP's submission that the CDPP is the client and lawyers working within the office of the CDPP are persons providing legal services to the CDPP as the client: R v Bunting at 391-392 [44]-[45]. There is nothing in the Director of Public Prosecutions Act 1986 (Cth) which is inconsistent with this conclusion. However, nothing turns upon this question in this case. Whether the client is viewed as the CDPP as a statutory officer or the Crown in a wider sense, has no effect on the outcome of the present claim for privilege.
I pause to interpolate that Ms Petrie submitted that the Director of Proceedings is the client, the Commission's legal staff her lawyers.
In Petroulias the Court also stated: 58 I have examined the documents contained within MFI11 for the purpose of determining whether they are notes of conferences held this year between prosecution counsel and solicitors and Crown witnesses. …I am satisfied that the conference notes record confidential communications for the dominant purpose of a pending Australian proceeding, being the trial of the Accused, and thus fall within s.119 Evidence Act 1995. 59 If the common law principles were applicable, I would likewise be satisfied that the documents record communications passing between the CDPP's legal representatives and third persons, namely witnesses, for the purposes of pending litigation: Trade Practices Commission v Sterling (1978) 36 FLR 244 at 246. I am satisfied that the communications contained in the documents were made for the dominant purpose of a lawyer providing legal services so as to attract client legal privilege at common law: Esso Australia Resources Limited v Commissioner of Taxation at 73,107. … 64 … However, it is for the CDPP to exercise his independent prosecutorial discretion to decide whether information is subject to the duty of disclosure. It is not for the Court, in the context of a subpoena hearing, to supervise or review the CDPP's discharge of his duty during the course of the trial: Mallard v The Queen at 155-156 [81]-[84]; Island Maritime Limited v Filipowski [2006] 226 CLR 328 at 355 [81]; R v Petroulias (No. 1) at [65]. … (emphasis added)
Ms Petrie gave particular emphasis to the underlined portion of [64].
Fourthly, I also accept the various criticisms made by the Commission of the scope of production sought. The range of documents appears to be needlessly wide, if not oppressive.
I will briefly address some of the practitioner's other important submissions.
The first is that the Director of Proceedings, as a prosecutor owes the practitioner a duty of disclosure consistent with that owed by the Director of Public Prosecutions.
I reject that submission because the changes made to the HCC Act by the introduction of Pt 6A in 2004, while creating an independent office of the Director of Proceedings, have never been interpreted or understood as imposing on the Director (or the Commission) disclosure requirements of the type imposed on criminal prosecutors in criminal proceedings.
Thus, I find the various criminal authorities relied on by the practitioner in Annexure A of his submissions relating to disclosure (including Whitehorn v The Queen (1983) 152 CLR 657; R v Livermore (2006) 67 NSWLR 569; R v Jenkin (No 2) [2018] NSWSC 697 and Nguyen v the Queen [2020] HCA 23) to not support the submission and of no assistance to me.
In my view, these proceedings are civil proceedings. While I accept that professional disciplinary proceedings have been described as "neither wholly civil nor wholly criminal in nature"; "sui generis"; [14] "unique and in a class of their own", and often characterised as "protective" rather than "punitive": Health Care Complaints Commission v Robinson [2021] NSWCATOD 142 and the authorities referred to at [173], they are not in substance or in form criminal proceedings as:

the proceedings are being conducted in a tribunal not a court;
the proceedings are not bound by the rules of evidence;
there is a different standard of proof;
in criminal proceedings no adverse inference can be drawn if a defendant fails to give evidence; in these professional disciplinary proceedings adverse inferences can be drawn. In Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323, he NSW Court of Appeal, per Basten JA, with whom McColl JA and Harrison AJA agreed, stated at [47]: In Bowen-James [Bowen-James v Walton (NSWCA, 5 August 1991, unrep)], after referring to passages in Edelsten and passages to similar effect in Ibrahim v Walton (NSWCA, 23 April 1991, unrep) (Hope AJA, Samuels and Priestley JJA agreeing), the Court continued: "In our opinion there is no right to silence or any privilege against self-incrimination upon which a medical practitioner, answering a complaint before the Tribunal, is entitled to rely. Indeed, we would endorse the observations made by Hope AJA in Ibrahim. There is a public interest in the proper discharge by medical practitioners of the privileges which the community accords to them, and in the due accounting for the exercise of the influence which the nature of the occupation permits them, and indeed requires them, to exert over their patients. They are not, of course, officers of the Supreme Court and, accordingly, the precise force of the decision in In Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN(NSW) (Pt 1) 136, particularly of what was said at 141-2, cannot apply. Nevertheless, we are of the opinion that if a medical practitioner fails to answer by giving his or her account of the matters charged, there can be no complaint if the Tribunal draws the unfavourable evidentiary inference which absence from the witness box commonly attracts."

In addition, I do not accept that there is anything in the Second Reading Speeches relied on or the content of Pt 6A which supports the width of the practitioner's submissions namely that the Director of Proceedings, as a prosecutor, owes the practitioner a duty of disclosure consistent with that owed by the Director of Public Prosecutions.
Finally, there is no such obligation set out in the Commission's Code of Conduct of June 2021.
I pause here to note that the practitioner objected to the Code of Conduct document being tendered on a variety of grounds. However, in my view the document should be admitted and in this respect s 41 of the National Law provides for the admission of registration standards, codes or guidelines in disciplinary proceedings.
The third primary submission relates to the particular issues with Dr Geenty's reports claimed by the practitioner and summarised above. Even if I had not dismissed the First Interlocutory Application, I would not have ordered production of the documents relating to Dr Geenty's communications. The first to fourth reports of Dr Geenty have already been tendered with no objection being taken by the practitioner. I accept that he was unrepresented at the time, but, as already noted, the fact he is now represented does not give him a licence to reagitate matters already decided.
All these matters related to Dr Geenty's communications and the persuasiveness of his opinions may be the subject of final submissions in due course, and here I note that the practitioner has already made submissions on these issues in the 18 pages of the practitioner's submissions appearing behind Annexure F.
In addition, the practitioner has foreshadowed that in the Third Interlocutory Application (in the alternative to an order of dismissal) he will be seeking orders that Dr Geenty's "reports, material and oral evidence" relied on by the Commission "be removed from evidence in these proceedings".
However, if the Commission tenders Dr Geenty's fifth report, and if the report is admitted, then I anticipate that Mr Connor will wish to cross-examine Dr Geenty. While I understand the Commission objects to Dr Geenty being cross-examined on any issues not relating to that report, I further understand that the Commission accepts that it would be open to me to allow cross-examination to include other issues.
This can be a topic for submissions and discussion at the next directions hearing.
Finally, for the avoidance of any doubt, I would not grant leave for any summonses to be issued in relation to any of the orders sought.

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