These reasons are in respect of an application by Dr David William Kirby to vacate the hearing of disciplinary proceedings which are fixed for hearing for three days commencing on 23 August 2021.
The proceedings have had a long history in this Tribunal and in the Supreme Court of New South Wales. On 3 July 2018 the Health Care Complaints Commission commenced disciplinary proceedings in the Tribunal against Dr Kirby. Dr Kirby is a dentist, who in these reasons, for convenience only, I will refer to as the practitioner. The practitioner carries on practice in Orange, New South Wales.
The practitioner brought an application to permanently stay the proceedings. That application was dismissed for reasons given by Principal Member Britton on 3 April 2019. The practitioner then sought judicial review of the Tribunal's decision, which review was dismissed by Harrison Assc J on 7 September 2020. The practitioner then sought leave to appeal that decision to the New South Wales Court of Appeal. On 9 July 2021 the Court of Appeal granted leave to appeal, but dismissed the appeal and ordered that the practitioner pay the Health Care Complaints Commission's costs.
The disciplinary proceedings were adjourned on a number of occasions. However, the parties were advised at a directions hearing which was conducted on 18 December 2020 hearing dates would be fixed at the next directions hearing. The Tribunal noted that "on the next occasion a time-table will be fixed and hearing dates allocated. The parties should confer about a proposed time-table and hearing dates". I note, in reading those orders that the proceeding was listed for directions on 12 February 2021 and it was further noted that "if a further adjournment or stay of the proceedings is sought on 12 February 2021 a formal application for a stay and submissions in support should be filed by the respondent prior to that date".
Then on 12 February 2021, when the practitioner was represented, the following orders were made:
1. David William Kirby is to give to the other party the following material::
a reply on or before 16 April 2021.
2. David William Kirby is to give to the other part any material on which that party relies on or before 7 May 2021.
3. The Health Care Complaints Commission is to give to the other party the following material: on or before 21 May 2021 all material in reply, if any.
4. Both parties are to give the Tribunal five copies of all their material and four USBs containing that material on or before 11 June.2021
5. The proceeding is listed for hearing on 23 August 2021 at John Maddison Tower 86-90 Goulburn Street, Sydney for three days.
Health Care Complaints Commission v Kirby [2021] NSWCATOD 113 | Case summary | Zoe
It is noted in the orders that the Health Care Complaints Commission had already served the material on which it sought to rely in the proceedings. I accept that that material was served in or about 2018.
On 14 July 2021 the practitioner wrote to the Tribunal, and referred to attaching an application for adjournment of the hearing. However, as I understand it, the application is contained in the letter dated 14 July 2021, and that application is supported by email correspondence from the practitioner to Ms S Connors at the Health Care Complaints Commission, a response from Ms Lucinda Cannon, solicitor, with the Health Care Complaints Commission dated 14 July 2021, and a copy of a bankruptcy notice. The bankruptcy notice has a number of redactions on its face and is dated 19 September 2019.
On 20 July 2021 the practitioner emailed further documents to the Tribunal in support of his application. Briefly I summarise, they comprise:
1. A complaint reply. In this document the practitioner does not admit the complaint brought against him by the Health Care Complaints Commission.
2. A request form for echocardiography addressed to Central White West Cardiology for Mrs K Kirby, dated 8 July 2019. He also attaches an unsourced document relating to heart failure with reduced ejection fraction.
3. A response by the practitioner to an affidavit relied on by Ms Cannon in this application. n that response the practitioner refers to a home invasion and says that this did not take place at 82 Byng Street, but at his former residence. He states that his reply requires some further details. He also asks whether his adjournment will be opposed in circumstances where a face to face hearing is not possible. The practitioner also asks the Health Care Complaints Commission whether it proposes to seek protective orders suspending or cancelling his registration.
4. The fourth document relied on in this application by the practitioner was forwarded to the Tribunal at 9.22am this morning. That document comprised a chronology, and annexed email correspondence, including the practitioner's email exchange with the Health Care Complaints Commission, together with copies of documents earlier provided to the Tribunal.
The Health Care Complaints Commission oppose the adjournment application and rely on the affidavit of Ms Lucinda Cannon, affirmed on 22 July 2021.
[2]
Proposed grounds for the adjournment
I turn then to, as best I can discern, the practitioner's proposed grounds for the adjournment. I think these can be summarised as follows:
1. That his wife has a severe and debilitating illness, cardiomyopathy, which has been exacerbated by stress associated with recent surgery on his nine year old niece for removal of a brain tumour. He says she has also suffered stress because of publicity about the proceedings and consequent loss of staff members of the practitioner's practice. The practitioner says he is required to care for his wife.
2. That the Dental Council filed bankruptcy proceedings against him "forcing him to sell his home".
3. The unavailability of a witness, unnamed, because the witness' wife has developed dementia, requiring the witness to care for her.
4. Concerns for his family following death threats and an armed home invasion linked to a person about whom "the Dental Council had intimate knowledge".
5. Asserted misrepresentation by the Dental Council about the conditions on the practitioner's registration since February 2016 and loss of reputation and livelihood that this has caused.
6. Consideration of an application being made for special leave to challenge the decisions of the New South Wales Court of Appeal. That is a special leave to the High Court of Australia.
7. The barrister he hoped to have represent him is in lockdown due to the COVID pandemic.
8. The solicitor he hoped would represent him has been without critical support staff and for the remainder of the week that condition would remain because of the COVID crisis.
9. That the proceedings cannot be conducted satisfactorily by AVL, at least for the near future, where credibility of several witnesses will be pivotal issues in the proceedings.
10. That the practitioner was required by the Council to undergo a health assessment on an unknown date by an unknown expert and thus, pursuant to s 145B (3) of the Health Practitioner Regulation National Law (the National Law) that a complaint ceases to be a complaint.
I just pause to I note that health assessment is defined in the National Law as an assessment to determine whether a person has an impairment.
The practitioner seeks that the proceedings be adjourned until February 2022 and new hearing dates set after that time.
[3]
The Tribunal's guideline in respect of adjournments
The Tribunal has published a guideline to inform and guide parties seeking to adjourn proceedings. The guideline has application in the Administrative and Equal Opportunity Division and the Occupational Divisions of the Tribunal. The relevant principles for an adjournment are set out in the guideline that follows:
"3. The overriding principle is that when a date and time has been set for a hearing it will go ahead on that date and at that time unless the Tribunal allows an adjournment.
4. In considering whether to allow an adjournment the Tribunal will (a) take into account the need to manage cases and hearings fairly and efficiently, this includes making sure cases are heard as soon as possible, and (b) allowing an adjournment only if the party requesting it has a good reason and it is fair in all the circumstances to adjourn".
These principles accord with common law principles dealing with late amendment and adjournments and I refer to the decision of the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27. They also reflect the objects of the Civil and Administrative Tribunal Act 2013 (NSW). The Health Practitioner Regulation National Law (the National Law) cl 11 of schedule 5D provides that it is the duty of the Tribunal to hear enquiries under this law and to determine those enquiries and appeals expeditiously. However, cl 11 (2) grants a discretion to the Tribunal to postpone or adjourn proceedings before it as it thinks fit.
I also note and take into consideration in this application s 3A of the National Law. The objective in that section is applicable in all applications under the National Law. It is a New South Wales provision and it provides that the health and safety of the public must be my paramount consideration.
Ultimately the determinative factor is where do the interests of justice lie?
[4]
The Health Care Complaints Commission submissions
Ms P Lowson, counsel for the Commission, made a number of submissions in support of the Health Care Complaints Commission's opposition to the adjournment.
Ms Lowson points out that the evidence was served over three years ago, that when this matter was set down it was done so on the prediction that the Court of Appeal decision would be handed down before the hearing and that, in fact, has happened. She notes that the practitioner was due to give his evidence in May and he has not done so. The matter has been listed for a Stage 1 hearing. The reply that has been filed by the practitioner demonstrates that the practitioner seeks to directly attack and challenge the matters in the complaint. She submits the fact that the practitioner has not filed his evidence was a choice that he has made.
Ms Lowson submits that Mrs Kirby's ongoing condition is not a basis for the adjournment. She makes similar submissions about family members, including the practitioner's niece. She submits the practitioner's assertions that his practice has been decimated are not apparent. She also submits the bankruptcy is irrelevant to whether or not the matter should be adjourned, and to defer the matter until February would not be appropriate in the circumstances.
Ms Lowson explains that, while there was some mention by the practitioner of the submissions to AHPRA, she that she had no knowledge about those submissions.
In relation to the practitioner flagging a potential application for special leave to the High Court, Ms Lowson notes that previous applications for special leave to the High Court by the practitioner were unsuccessful, and given the reasons of the NSW Court of Appeal, ( in particular, I would say the reasons of Gleeson JA), that it is unlikely that special leave would be obtained.
Finally, she submits that the disadvantages, which the practitioner submits he is now under, have largely been brought about by his own actions.
[5]
Consideration
I commence by noting at all times to date the practitioner has been legally represented. No notice of ceasing to act has been filed by his solicitor and I accept, therefore, the correctness of the manner in which the Health Care Complaints Commission responded to the email correspondence from the practitioner.
Further, I note it appears the practitioner does not envisage that he will be self represented at the final hearing, rather he seeks only to represent himself on this application. I also take into account that the practitioner and his solicitor were afforded extensive extensions of time and adjournments from when these proceedings were first filed in July 2018. The proceedings have been in the Tribunal for three years without reaching a hearing. There has been non-compliance by the practitioner to serve his reply and material by 16 April 2021 and 7 May respectively. No application had been made by the practitioner or his solicitor until the present application for a variation of the timetable.
I note that scarce resources of the Tribunal have been allocated to ensure this matter is ready for hearing, including the appointment of occasional members and the allocation of a hearing room. This means that a hearing was not available for other matters awaiting a hearing which could have been dealt with instead of these disciplinary proceedings. The matter can be accommodated in a hearing room with AVL facilities.
I have given some weight to the stress the practitioner asserts his wife suffers, but I note there is no up-to-date medical evidence about her condition, the referral produced being dated September 2019, which pre-dates the practitioner maintaining proceedings in the Supreme Court and the Court of Appeal, which no doubt were also stressful for his wife.
The evidence before me from the Council, that is the email from the Dental Council annexed to Ms Cannon's affidavit, does not corroborate the practitioner's assertions about the person alleged to have conducted the home invasion. The practitioner gave evidence today, or advised me, that that home invasion had occurred a number of years ago, but I do not have evidence about where he lived at the relevant time. The COPS report obtained by the Health Care Complaints Commission does not support his assertions.
Only today the practitioner identified two of the witnesses who are said to be relevant to the proceedings. He indicated his desire to cross-examine the two experts relied on by the Commission. He asserts there are issues as to their credibility, and whether that could be properly assessed by AVL. I accept, however, that the practitioner himself is no doubt going to be subject to extensive cross-examination and that is a matter which does raise a matter of concern for me if the hearing has to be conducted by AVL.
I do not accept that the practitioner's barrister or solicitor could not conduct the proceedings by AVL. I take notice of the fact that proceedings are being heard in the Supreme Court of New South Wales, the District Court and this Tribunal on a regular basis during the pandemic, and I also take into account a number of self-represented litigants are appearing in the Tribunal by AVL.
I note that the first complaint asserts inappropriate prescribing of various drugs without appropriate assessment and outside the scope of dentistry. Patient A, who is named in the complaint, is a solicitor. I do not have the benefit of the Health Care Complaints Commission's brief of evidence and I am unable to ascertain whether or not the Commission have obtained a statement from the solicitor to be relied to support the complaint, but I accept the practitioner tells me that he will not be calling the solicitor in his response to the complaint.
I accept the complaint of inappropriate infection control is likely to involve evidence of an expert who inspected the practitioner's professional practice and who is likely to be called for cross-examination.
On balance, I conclude if the only matters in support of the adjournment were the practitioner's assertion of his stress and that of his wife, particularly as these assertions are unsupported by corroborative evidence, I would dismiss the application. This is because the relevant circumstances relied on by the practitioner date back to 2019 and the practitioner has thereafter agitated proceedings in the Supreme Court of New South Wales.
I am conscious, however, that there are conditions on the practitioner's registration and that any risk to the public in the present circumstances is minimal. I am satisfied that whether these proceedings can be conducted fairly by AVL is the predominant matter to be considered in the interests of justice. Overall I accept that difficult issues of credibility may arise, particularly in circumstances where the practitioner and the solicitor are likely to be required for cross-examination.
However, I do not see any reason why the proceedings should yet be further adjourned to February 22 for directions and a hearing date is only then fixed. I propose to vacate the hearing date on 23 August, but to make new orders requiring the practitioner to file his material and fix the matter for three days in November or December of this year.
[6]
ORDERS
1. The hearing fixed for three days commencing on 23 August 2021 is vacated.
2. Mr G Billings must file and serve a notice of ceasing to act on or before 30 July 2021 in the event he no longer appears for David William Kirby.
3. David William Kirby is to give to the other party an Amended Reply by 3 September 2021.
4. David William Kirby is to give to the other party all material on which he seeks to rely by 3 September 2021.
5. Health Care Complaints Commission is to give to the other party material if any in reply by 1 October 2021.
6. Each party is to give to the Tribunal five copies of all material on which that party relies together with 4 USBs containing the material by 1 October 2021.
7. The matter is listed for hearing commencing on 15 November 2021 for three days and subject to the President's direction as an in person hearing.
8. David William Kirby is to notify the Health Care Complaints Commission and the Tribunal by 5pm on 26 July 2021 in the event he submits that there is a reason why the hearing dates cannot be maintained.
9. In the event there is non-compliance by David William Kirby with Orders 3 and 4 of these orders then David William Kirby is restrained from filing any material in the Tribunal without the leave of the Tribunal first being sought and obtained.
[7]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 10 August 2021