Health Care Complaints Commission v Al-Mozany

NCAT Occupational|2023-04-24

Introduction

The background to these proceedings is set out in the previous decisions of Health Care Complaints Commission v Al-Mozany [2021] NSWCATOD 51, Health Care Complaints Commission v Al Mozany [2022] NSWCATOD 70, Health Care Complaints Commission v Al Mozany (No 3) [2022] NSWCATOD 75 and Health Care Complaints Commission v Al-Mozany (No 4) [2023] NSWCATOD 3.
The Stage 1 proceedings of this matter are currently adjourned part-heard following five days of evidence from 4 July to 8 July 2022. At the time, the practitioner was unrepresented. However, commencing on 30 September 2022, the practitioner, then represented, filed three interlocutory applications for miscellaneous matters. These applications were filed on 30 September 2022 (First Interlocutory Application), 13 October 2022 (Second Interlocutory Application), and 16 October 2022 (Third Interlocutory Application).
The First Interlocutory Application was dealt with in Al-Mozany (No 4).
These reasons deal with the respondent's Second and Third Interlocutory Applications, and an application by the Commission to file: 1. a further supplementary report of its expert Dr Geenty dated 7 September 2022 (along with a briefing letter dated 27 August 2022); and 2. a statement of Dr Michael Russo dated 18 August 2022.

Order (1)

I refused the application for Order (1) during the interlocutory hearing of 24 April 2023, for the brief oral reasons I gave at the time. In summary, I considered that as the Smith Material had already been tendered, no objection was made to the tender at the time, and the Stage 1 hearing has now proceeded over five days, it was too late to now ask for the Smith Material to be removed from the Tribunal file. However, I explained to the practitioner that he could make submissions about the weight to be afforded the Smith Material at the conclusion of the hearing.

Order (2)

The Commission opposed Order 2 being granted, principally on the basis that the practitioner advised the Tribunal on the second day of the Stage 1 hearing (4 July 2022), that he: 1. denied "everything" in Complaint One; 2. admitted that his records were not accurate and should have been recorded in one place, but otherwise denied the conduct alleged in Complaint Two; and 3. denied Complaint Three.
The proposed Reply had been filed last year. It is in fact part Reply, part submissions, and very lengthy. Nevertheless, it is appropriate that the practitioner be allowed to rely on the document. That said, I directed the practitioner to file a summary version of the document. He must do so not less than seven days before the resumed Stage 1 hearing commencing 29 May 2023. That document must be no longer than 20 pages and preferably far less.

Order (3)

The Commission did not oppose the Tribunal making Order 3. Consequently, leave is granted to the practitioner to file the affidavit of Ms Bliss and it will be admitted without objection marked as Exhibit I in the proceedings.

Order (4)

The Commission did not oppose the Tribunal making Order 4. Consequently, leave is granted to the practitioner to file the three statements of the practitioner and they will be admitted without objection and respectively marked as Exhibits J, K and L in the proceedings.

Order (5)

Order 5 concerned a statement of Mr Rami Fahmy dated 25 January 2020. Mr Fahmy was a patient of the practitioner but is not one of the patients named in the Amended Complaint.
The practitioner says that he mistakenly failed to include this statement in the material he filed with the Tribunal while he was unrepresented.
In summary, Mr Fahmy says that he was a patient of the respondent commencing 2016. He says that when he arrived for an appointment on 16 April 2018, he was told by the receptionist at the practice that the respondent no longer worked there. After a few months, he returned to the practice to request a copy of his scans and treatment notes. Mr Fahmy then states: 13. The receptionist said 'sure they could do that for me on the spot.' The receptionist then asked whether I was sure I did not want to see their new orthodontist. 14. The receptionist told me that I could continue my treatment at Gentle Dental Care if I made a complaint against [the practitioner]. The receptionist said Gentle Dental Care would assist me by filling out all of the paperwork to make a complaint against [the practitioner]. The receptionist emphasised that you don't have to worry all of the costs will be covered by [the practitioner]'s insurance policy. 15. The receptionist was encouraging me to make a complaint against [the practitioner] and to continue treatment at Gentle Dental Care with their new orthodontist. The receptionist said that the costs of repairing my treatment would be covered by [the practitioner]'s insurance policy. They advised they would assess my treatment and complete all the paper work. No one but [the practitioner] at Gentle Dental Care had assessed my treatment so the idea of being so certain around a claim was concerning, especially given that up until that point I thought my treatment was going perfectly fine. 16. The receptionist was trying to persuade me by saying that several other patients had made a complaint. I did not feel comfortable or understand why I would be making a complaint against [the practitioner].
The Commission opposes the tender of the material. It says that the evidence is irrelevant.
I disagree. The evidence could potentially relate to the credit of Dr Michael Russo whom the Commission intends to call in reply. In any event, it appears that the practitioner failed to tender the statement at the hearing of the matter in July 2022 through oversight.
In the circumstances, leave is granted to file the statement and it is admitted over objection as Exhibit M.

Conclusion

For the above reasons, the application for Order (1) is dismissed, but the applications for Orders (2), (3), (4) and (5) are granted.

Costs

As I noted in Al-Mozany (No 4), 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.
The practitioner has been successful in seeking four of the five orders sought. My preliminary view is that he is entitled to his costs. If the Commissioner opposes that order it may file submissions within seven days, and the practitioner may reply within a further seven days.
I propose that any costs application of the Second Interlocutory Application, the Third Interlocutory Application and the Commission's applications discussed below will be dealt with on the papers and without a hearing. If either party opposes that course, they must address that issue in their submissions.

Third Interlocutory Application

In this application the practitioner seeks the following orders: A. Orders sought 1. The proceedings be dismissed pursuant to [s] 55(1)(b) of the Civil and Administrative Tribunal Act 2013 [NSW]. 2. The [Commission] pay [the practitioner's] costs of the proceedings. B. Orders sought in the alternative to A 3. The following paragraphs of the [Commission]'s Complaint One be struck out: a) Paragraphs 5(b), 6(d) and (e) - Patient C … b) Paragraphs 8(a), (b) and (c) - Patient D … c) Paragraph 9(c)(ii)- Patient E … d) Paragraphs 12(b)- Patient F … e) Paragraph 15(b)(iii) Patient H… f) Paragraph 18(a)(il) and 18(b) - Patient J … 4. The [Commission] pay [the practitioner's] costs in the proceedings concerning the parts of the complaint struck out. 5. The [Commission] pay [the practitioner's] costs of this application. C. Orders sought in the alternative to A 6. The reports, material and oral evidence before the Tribunal of Dr Geenty relied upon by the [Commission] be removed from evidence in these proceedings. 7. The [Commission] pay [the practitioner's] costs in the proceedings concerning the evidence of Dr Geenty. 8. The [Commission] pay [the practitioner's] costs of this application. D [The practitioner's] Reply 9. [The practitioner] has sought in his Second Application filed on 13 October 2022 Prayer Two for an Order that he be granted leave to file with the Tribunal a Reply to the [Commission]'s Amended Complaint. [The practitioner] seeks a further Order that he be granted to leave to file a Reply with an Addendum raising the matters referred to in Sections A to C of this Application.

Orders sought in Section A

I had already given a preliminary indication on this issue during the previous hearing, stating that I would not be disposed to grant the application mid-hearing, but that the application could be renewed in final submissions.
That remains my position.

Orders sought in Section B

The basis for seeking these orders was that the conduct the subject of the various particulars was not supported by the evidence relied on by the Commission. After I explained that this would be the very point of the practitioner's submissions at the conclusion of the hearing, these orders were not pressed.

Orders sought in Section C

For the same reasons I refused Order 1 in the Second Interlocutory Application, I refuse to make Order (6). It is too late now to have what I will describe as the "Geenty materials and evidence" "removed from evidence", in circumstances where his reports (and ancillary materials) were tendered by consent and Dr Geenty has been cross-examined.
The practitioner may of course make submissions about the weight of Dr Geenty's evidence in due course.

Orders sought in Section D

The practitioner did not press for this relief as I had already granted him leave to file a Reply in the Second Interlocutory Application.

Conclusion

For the above reasons, the Third Interlocutory Application is dismissed.

Costs

The practitioner has been unsuccessful in obtaining any relief. My preliminary view therefore is that the Commission is entitled to its costs. If the practitioner opposes that order he may file submissions within seven days, and the Commission may reply within a further seven days.

Orders sought by the Commission

In addition to the practitioner's two Interlocutory Applications, the Commission seeks leave to file: 1. a further supplementary expert report of Dr Geenty dated 7 September 2022 (along with a briefing letter dated 27 August 2022); and 2. a statement of Dr Michael Russo dated 18 August 2022.

Dr Geenty

For the reasons I gave during the hearing, it is clearly appropriate that Dr Geenty's reply report be received by the Tribunal. This was foreshadowed at the end of the practitioner's cross-examination where some evidence was given by the practitioner for the first time. The principal basis of the practitioner's objection was the fact that the practitioner claims that Dr Geenty had been inadequately briefed by the Commission, did not have all the relevant materials available to him, and because some of his conclusions were unsupported by evidence.
The further supplementary expert report of Dr Geenty dated 7 September 2022 is admitted as evidence in reply and will be marked as Exhibit 9. The practitioner will be able to cross-examine Dr Geenty and then make submissions on the weight and effect of Dr Geenty's expert evidence in due course.

Dr Russo

The evidence of Dr Russo falls into a different category. This is not evidence in reply, but is evidence in chief, as was conceded by the Tribunal during the hearing.
In summary, Dr Russo gives evidence about the production of documents produced under a subpoena issued to the practitioner's former practice Gentle Dental Care (GDC). Dr Russo is a director of GDC. The practitioner was a partner of GDC until April 2018.
Dr Russo states that GDC was first requested to produce documents under summons in the s 150 proceedings before the Dental Council of NSW (Council). A letter dated 10 December 2019, sent to the practitioner's then solicitors and attached to Dr Russo's statement, sets out the searches he undertook to comply with the summonses sent to GDC in respect of some 10 patients.
When Dr Russo received requests from the Commission to produce documents and a summons from the Tribunal issued at the request of the Commission to produce documents in these proceedings Dr Russo: went back to the records [he] had produced in the Dental Council proceedings and double checked that everything had been provided and then added in any new records as some of the patients were still being treated in the clinics. [He] also provided additional records for the additional patients [the] subject of these proceedings.
Dr Russo states that: 10. … as part of my response to the Dental Council proceedings Summonses, I conducted a comprehensive search of all surgery, administrative, reception and server computer hard drives utilising various search words so that I would capture any treatment proposals that [the practitioner] says he saved in Microsoft [W]ord on computers in various treatment rooms. 11. The searches I performed were comprehensive and exhaustive and should there have been any files matching the description these would have been discovered but no such files have been found. The searches were done at the practices where the patients were treated. 12. The OrthoTrac software provides a record of any documents uploaded into or produced in this system. I have produced all documents uploaded to this system. There does not appear to be any treatment proposals belonging to [the practitioner] saved in this software. … 14. As part of my search in 2019, I spoke with former staff members (those who worked for [the practitioner]), who confirmed that he delegated the writing of treatment proposals to them, and they were produced via an edited template in PracticeWorks. 15. PracticeWorks automatically saves printed treatment proposals in the patients' records. 16. As part of my searches in 2019, when I reviewed the hard copies of Treatment Proposals for other patients of [the practitioner] which are not the subject of this Complaint or the Dental Council proceedings, all of these documents match digitally saved copies within the PracticeWorks system. I can find no signed hardcopy of any Treatment Proposal or Treatment Plan or Consent Form or any other documents for any patient of [the practitioner] which does not have a paired digital version saved in the PracticeWorks System. This appears to suggest that all of his documentation was produced exclusively in the Practice Works System at Liverpool, Campbelltown and Tahmoor. 17. In addition to this, many of the computers in the consulting rooms did not have Microsoft Word installed on them at the time of [the practitioner's] employment. I confirmed this during my searches in 2019. 18. I have searched the surgery and administration computers for evidence of any [W]ord or text documents. No such documents have been located. 19. I have endeavoured to review the databases and records held by GDC each time that GDC have been requested to provide documents. … 21. [The practitioner] has accused me of intentionally withholding patient records as part of some attempt that I may influence this and other proceedings. This is untrue. I went to great lengths, spending many hours, to search our records and to explain that all records had been produced. I have attempted to leave no stone unturned and have not attempted to withhold records from the Commission or the Tribunal.
The practitioner objected to Dr Russo's statement on the basis that it was served too late, coming at a time when the evidence in chief had been completed. The Commission submits, correctly, that this is important evidence given the practitioner's continual complaints about the adequacy of the production of documents by GDC to the Tribunal summons.
In my view, both the Commission and the practitioner are seeking an indulgence to reopen their cases in chief to allow the tender of additional evidence, being the five statements sought to be relied on by the practitioner, and the Russo statement sought to be relied on by the Commission.
The guiding principle for the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and the Tribunal's procedural rules, is facilitation of the just, quick and cheap resolution of the real issues in the proceedings: NCAT Act, s 36(1).
Regrettably, these proceedings have not been the acme of being either quick or cheap, but even if delayed, or expensive, resolution of these proceedings must be just.
In my view, it is a just outcome that the Commission be permitted to rely on Dr Russo's statement. And it is just to the practitioner given his complaints about the inadequacy of the documents produced. He will now have his opportunity to test the very issues he is so concerned about.

Costs

My preliminary view is that there should be no order as to the costs of the Commission's applications.
If either party wishes to seek an order for costs, they may do so within seven days, with the other party responding within a further seven days.

Other

During the hearing we discussed the current Amended Complaint. I directed the Commission to file a Further Amended Complaint reflecting the amendments I had allowed in Al-Mozany (No 4).
In addition, I asked the Commission to further amend the Complaint so as to reflect what particulars or combination of particulars were relied on to support its submissions of unsatisfactory professional conduct.
I direct the Commission to file a Further Amended Complaint within 14 days.

Orders

The Tribunal orders: 1. Within 14 days of the publication of these reasons, the applicant is to file a Further Amended Complaint reflecting: 1. the amendments allowed in Health Care Complaints Commission v Al-Mozany (No 4) [2023] NSWCATOD 3; 2. which particulars or combination of particulars are relied on to support its submissions of unsatisfactory professional conduct by the respondent. 1. Not less than 14 days before the resumed hearing, the respondent is to file a summary of his Reply limited to 20 pages. 2. In relation to the respondent's application for miscellaneous orders filed on 30 September 2022, the respondent is granted leave to file with the Tribunal: 1. a Reply to the applicant's Amended Complaint; 2. the affidavit sworn by Ms Shannon Bliss on 13 October 2022; 3. the three statements of the respondent, each dated 12 June 2020, respectively concerning Patients B, E and F; 4. the statement of Mr Rami Fahmy dated 25 January 2020. 1. The respondent's application for miscellaneous orders filed on 13 October 2022 is dismissed. 2. The applicant is granted leave to file a further supplementary expert report of Dr Geenty dated 7 September 2022 (along with a briefing letter dated 27 August 2022). 3. The applicant is granted leave to file a statement of Dr Michael Russo dated 18 August 2022. 4. Any application for costs should be made by a party within seven days, the other party responding within a further seven days. If necessary the moving party may reply within a further seven days.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 02 May 2023 - Order (5) corrected - "export" replaced with "expert report". Paragraph 4(1) corrected - "export" replaced with "report". Paragraphs 30(1), 32 corrected - "export" replaced with "expert report". 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: 02 May 2023

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Judgment (24 paragraphs)

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