Mahadik v Medical Council of New South Wales

Consideration

The applicant submits that the relevance and appropriateness of the summons the applicant seeks to be issued is to assess whether Professor Deva has expertise in cosmetic surgical procedures of the kind which are the subject of this appeal and, if so, to what extent. The applicant submits that the requisite knowledge and experience must be adequately demonstrated and not simply inferred by the title of "Plastic and Reconstructive Surgeon".
The applicant referred to a series of principles from the authorities which the applicant submits stand for the proposition that, in these proceedings, the surgical logs of Professor Deva for the last 10 years are relevant to establishing his expertise. 1. In Murphy v The Queen (1989) 167 CLR 94; [1989] HCA 28, a psychologist was called to give expert evidence regarding whether Mr Murphy, who was illiterate, had the ability to understand the police questioning, and assess the likelihood of Mr Murphy having used the words and phrases attributed to him in reply and were asserted to be incriminating. Brennan J referred (at [4]) to the following passage in Wigmore on Evidence (Chadbourn, rev. 1979) Vol 2, p 750: "'The object is to be sure that the question to the witness will be answered by a person who is fitted to answer it. … He may be fitted to answer about countless other matters, but that does not justify accepting his views on the matter in hand. ... Since experiential capacity is always relative to the matter in hand, the witness may, from question to question, enter or leave the class of persons fitted to answer, and the distinction depends on the kind of subject primarily, not the kind of person.'" 1. The Queen v Anderson (2000) 1 VR 1; [2000] VSCA 16 involved a criminal trial. The Crown led evidence from a treating surgeon (Dr Campbell) and the referring doctor (Dr Castle) to the effect that the accused's stab wound injuries were self-inflicted to rebut the defence case of provocation and self-defence. Neither doctor had ever studied the characteristics of wound injuries over a period of time with a view to interpreting them for their possible causes. At [59], the court said: "The trial judge has a continuing responsibility, particularly in a criminal trial where a witness has been allowed to express an opinion on a critical issue, to ensure that such opinion is not left for the jury's consideration where it has become clear that the person who has expressed it has no qualification to do so, or has provided no factual or scientific foundation for the opinion expressed (see Bugg v Hay (1949) 79 CLR 442 at 456-7 per Latham. CJ; R v Inch (1990) 91 Cr.App.R 51 at 54; R v Marquard (1993) 85 C.C.C. 193 at 225). Although it is, of course, true that it is for the judge to decide whether an expert's opinion is admissible, and for the jury to decide whether the opinion is credible and what weight it should be given, it is also true that an opinion is only as good as the factual or scientific basis upon which it is expressed; and if no such basis is given or, if given, can be seen to be speculative or irrelevant to the opinion expressed, then the opinion will be worthless (R v Turner [1975] 1 QB 834 at 840 per Lawton, LJ). In that sense the existence of such a foundation, or proper foundation, for the expression of opinion is a matter relevant to be taken into account on the question of admissibility (R v Bonython, supra, at 48 per King, C.]: R. v. J. (No. 1) (1994) A.Crim.R 522 at 531 -2, per Brooking J)." 1. In Australian Cement Holdings Pty Ltd v Adelaide Brighton Ltd [2001] NSWSC 645, Barrett J stated at [6]: "6. I do not think that the experience of watching practitioners do what they do, or even discussing with them why they do what they do, arms the observer with specialised knowledge of the particular field of practice. The emphasis must be on 'specialised' in the phrase 'specialised knowledge'. This connotes something beyond the product of the observations of a non-participating onlooker. It is important to bear in mind the caution in this field enjoined by Gaudron J in HG v The Queen (1999) 197 CLR 414: 'Experts who venture "opinions" (sometimes merely their own inference of fact) outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority and legitimate processes of fact finding may be subverted.' 1. In Australian Securities and Investments Commission v Vines [2003] NSWSC 1095; (2003) 48 ACSR 291, Austin J stated at [12]: "12. The second proposition is that 'specialised experience' connotes something beyond the product of the observation of a non-participating onlooker, at any rate where the knowledge is about a standard of competence in doing a job that requires the exercise of judgment. Thus, Barrett J did not permit an accountant to give evidence of what an experienced and competent company director would do, on the basis of his dealings with and observation of company directors over a period of 40 years: Australian Cement Holdings Pty Ltd v Adelaide Brighton Ltd [2001] NSWSC 645 (27 July 2001), a decision cited without disapproval by Giles JA in Adler (at 635-6 [630])." 1. The applicant also refers to Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 123 to support the proposition that mere exposure to knowledge is insufficient; rather, an active engagement with the topic is required.
The decisions that the applicant refers to require that an expert must establish that they have the necessary qualifications and expertise relevant to the issue on which they are providing evidence about. The extracts referred to by the applicant do not prescribe the exact nature of what is required to establish such expertise. They do not set out that an expert witness such as a medical expert will be required to produce all surgical records for a period of time or, for example, a building expert will need to produce a log of all the buildings they have constructed for a period of time. In my view, those extracts of judgements are of no relevance to the issue to be determined in this application.
The recent decision of the Court of Appeal in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 related to proceedings in the Land and Environment Court in which a subpoena was issued by Blacktown City Council to the Secretary of the Department of Planning, Industry and Environment. The primary judge refused the Secretary's application to set aside the subpoena. Brereton JA, on appeal, set out some general principles which inform the proper approach to when a subpoena should be set aside (at [88]): "… The first is that the power of the Court to set aside a subpoena, in whole or in part, is but an instance of its power to regulate its processes and, in particular, to intervene in a case of abuse of its process. The second is that, the notion of 'legitimate forensic purpose' being the converse of 'abuse of process', a subpoena will self-evidently be an abuse of process if it is not issued for a legitimate forensic purpose, of which it is an instance if it has not been issued bona fide for the purpose of obtaining apparently relevant evidence." (citations omitted)
The applicant submitted, at hearing, that arguments as to whether the summons is oppressive should be dealt with if the summons is issued and the summonsed party objects. While this case differs in some respects to Secretary of the Department of Planning, Industry and Environment v Blacktown City Council because it deals with whether the Registrar should issue the summons and there is no objection to production from the summonsed parties, the principles stated by Brereton JA are relevant to whether to allow the summons to be issued at all, because that is part of regulating the Tribunal's processes.
The Civil and Administrative Tribunal Act 2013 (NSW) requires the Tribunal "to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible" (s 3(d)), and its practice and procedure "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" (s 36(4)). The Tribunal is not bound by the rules of evidence (subject to natural justice) and may determine its own procedure (s 38). On that basis, regardless of whether a summonsed party has had an opportunity to object, in the first instance, the Registrar (or the Tribunal considering whether to direct the Registrar) must consider whether to accept the application to issue the summons and whether the summons should be issued. The summons must have a legitimate forensic purpose and be apparently relevant to the proceedings. The summons must not constitute a fishing expedition, be oppressive or an abuse of process. Those are matters which should be considered in deciding whether to allow the issuing of the summons in the first instance. That does not prevent a summonsed party from subsequently objecting to a summons after a Registrar has issued the summons. A summonsed party may raise objections to the summons after the summons is issued, and the Tribunal may then consider those objections when they are raised.
In Secretary of the Department of Planning, Industry and Environment v Blacktown City Council, the Court set out the following principals regarding relevance.
Per Bell P (at [65], [69]-[70]): "65. It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are 'apparently relevant' or, to use the words of Nicholas J in ICAP at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist. Of course, if it can be shown that the material assistance will be to the party that issued the subpoena, the prospect of the forensic purpose of the issuing party being impugned as illegitimate will be virtually non-existent. … 69. If the documents are apparently relevant and, provided that the terms of the subpoena are not unduly vague or the ambit of the subpoena is not such that it would be oppressive to comply with it, the subpoena should not be set aside. To that extent, the statement in Chidgey at [59] that mere relevance is 'not sufficient', and a similar statement in Carroll at 182 that 'mere relevance is not enough' may, with respect, be apt to mislead or confuse. In the latter case, Mahoney AP said at 182 that a party issuing the subpoena: 'must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: 'I wish to see the document to see if it may assist my case.' That, in my opinion, is not sufficient.' There is a very subtle distinction at play in this passage which, in my view, is undesirable, is inconsistent with many of the authorities referred to above, and has the potential to lead to the unwarranted setting aside of subpoenas or refusals to inspect documents. Where apparent relevance of the documents subpoenaed to the issues in the case or to the cross-examination of a witness or witnesses is established, this should not generally lead to the setting aside of a subpoena. As King CJ put it in Carter at 453, where a document or documents sought by subpoena by their nature have a 'bearing on the issues in the case and may well have evidentiary value', a subpoena seeking such a document or documents will not amount to fishing. 70. Of course it will remain the case that, if it can be demonstrated that the party issuing the subpoena has done so for some improper, illegitimate or ulterior purpose foreign to the litigation, the Court in the exercise of its discretion may set aside the subpoena as an abuse of process or refuse access to the subpoenaed documents in spite of their apparent relevance. Provided, however, that the documents sought are apparently relevant to the issues that have or are likely to arise in the proceedings or have some evidential value (which may extend to value for the purposes of cross-examination, including testing the credit of witnesses including expert witnesses), to the extent it may be necessary to establish a legitimate forensic purpose, such a purpose may be presumed."
Per Brereton JA (at [89]): "I agree with Bell P, for the reasons given by his Honour, that an issuing party is not required to show that it is 'likely' (or 'on the cards') that the documents sought will materially assist its case, as distinct from that it is 'likely' (or 'on the cards') that they will add, in some way or another, to the relevant evidence in the case, and that the essential question is whether the documents called for are apparently relevant, or capable of providing a legitimate basis for cross-examination, in which case there is a legitimate forensic purpose for the issue of the subpoena. In my view, at least in civil proceedings and in the absence of any question of public interest immunity, no more is required to support the issue of a subpoena for production than that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. This reflects the notions that the documents relate to, throw light on, or are sufficiently relevant to the dispute; that they 'appear relevant in the sense that they relate to the subject matter of the proceedings'; or that they could possibly throw light on the issues in the case. Moreover, documents will add 'in some way' to the relevant evidence in the case if they are capable of assisting in cross-examination, or go to credit, and notwithstanding that they are inadmissible according to the rules of evidence." (footnotes omitted)
It is with those principles in mind that I consider whether to direct the Registrar to issue the summons for which the applicant has applied.
The applicant submits that the anonymous complaint to the respondent and the subsequent decision of the respondent, which is the subject of the appeal, raise alleged deficiencies in the applicant's pre-operative assessment, care, treatment and surgery of 15 patients. The Medical Council's decision was made in the context of possessing and reviewing clinical records relating to 5 of 15 patients involving the following procedures: 1. Patient 1: penile enlargement (length and girth, pubic liposuction, aesthetic circumcision and scrotal repair); 2. Patient 2: temporal brow lift, blepharoplasty (modifications around the eye region); mini fat graft to cheeks and eyelids; 3. Patient 3: lower eyelid surgery; 4. Patient 4: fat grafting, mini facelift, nlepharoplasty ; 5. Patient 5: breast augmentation.
Professor Deva was asked to give an expert opinion in relation to the above five patients and was provided with their clinical records. Professor Deva was subsequently provided with the clinical records of a further patient, who I shall call Patient 6, who underwent penile enlargement surgery (length and girth) and pubic lift, and the clinical records of a patient, who I shall call Patient 7, who underwent a mini facelift.
The applicant submits that for those reasons the summons is relevant because Professor Deva's surgical logs over the past decade will amount to objective evidence as to the basis of his opinions regarding the pre-operative, intra-operative and post-operative care given to Patients 1 - 7, the subject of this appeal.
The applicant also submits that: 1. Professor Deva's curriculum vitae does not demonstrate that his experience is current or amounts to an up-to-date expertise in the field of cosmetic surgery, in particular the procedures the subject of this complaint. They submit that Professor Deva's 140 publications are largely concentrated on his speciality interest area of surgical infection and biofilms in breast implants and/or in the context of lymphoma. The curriculum vitae discloses that, in 2002, Professor Deva published an article "Aesthetic Facial Surgery" and, in 2003, an article entitled "Outcomes following facelift surgery: recognising and avoiding dynamic contour irregularities". The applicant submits that in the practice of cosmetic medicine, which has grown exponentially over the last two decades, those two publications could not be said to reflect current thinking, standards and outcomes. 2. There is no evidence indicating that Professor Deva has any experience in penile enlargement surgery or temporal brow lift, blepharoplasty, fat grafts or mini face lifts. The applicant submits that it cannot be assumed that a plastic surgeon has expertise in cosmetic surgery and the precise surgery the subject of review. 3. Irrespective of what value may ultimately be placed on Professor Dev's list of publications and abstracts, it is Professor Deva's current surgical expertise, as compared to his academic and research expertise, that are relevant to the question of what weight if any the Tribunal will place on his expert opinions regarding the cosmetic surgical procedures under review. 4. The applicant relies on two reports of Dr Paul Curtin, Plastic and Reconstructive Surgeon, dated 3 April 2023 and 16 June 2023. Dr Curtin and Professor Deva differ in their opinions as to the appropriate surgical technique utilised by the applicant in the cosmetic procedures under review and, more broadly, in relation to any deviation of the expected standard of care delivered by the applicant in relation to the pre-operative, intra-operative and post-operative care delivered to the patients the subjective of review.
Having considered those submissions, I am not satisfied that the surgical logs of Professor Deva for the last 10 years are apparently or sufficiently relevant.
Professor Deva's curriculum vitae is attached to the applicant's written submissions. The short biography relevantly discloses the following: "Professor Anand Deva is the Program head in Plastic & Reconstructive Surgery at the Faculty of Health and Medical Science at Macquarie University. He is also co-director of the Surgical Infection Research Group at Macquarie University, which undertakes research into the prevention of surgical and medical device infection. Additionally, he holds senior staff specialist position and Conjoint Professor at Sydney Hospital in the Department of Hand and upper limb surgery. … Professor Anand Deva graduated from the University of Sydney in 1991 and was awarded first class honours and the University Medal in Medicine. After completing internship and residency at the Royal Prince Alfred Hospital in Sydney, he was admitted into advanced training in General Surgery in 1994 and completed a Masters of Surgery in 1996 investigating the disinfection and sterilisation of surgical instruments. He commenced advanced training in Plastic & Reconstructive Surgery in 1996 and obtained his Fellowship of the Royal Australasian College of Surgeons (Plastic & Reconstructive Surgery) in 2000. He has received numerous awards and prizes that recognise his contribution to research, teaching and healthcare innovation. Current positions held 1. Professor of Plastic & Reconstructive Surgery, Faculty of Medicine and Health Sciences, Macquarie University, Australia 2. Professor and Senior Staff Specialist, Hand Surgery, Sydney hospital and South Eastern Sydney Local Health District conjoint with Macquarie University 3. Joint Scientific Director Surgical Infection Research Group, Macquarie University 4. Director, Integrated Specialist Healthcare Education and Research Foundation & Integrated Specialist Healthcare 5. International Associate Editor, Aesthetic Surgery Journal."
The curriculum vitae lists Professor Deva's qualifications as follows: "Bachelor of Science (Medical) Pass with Distinction University of Sydney Conferred 14th June 1989 … Bachelor of Medicine, Bachelor of Surgery Class 1 Honours University Medal for Medicine University of Sydney Conferred 12th February 1991 Fellow of the Royal Australasia College of Surgeons Part 1 Conferred July 1992 Awarded the Gordon Taylor Medal for first place in Australasia Master of Surgery University of Sydney Conferred April 1998 Fellowship of the Royal Australasian College of Surgeons (Plastic & Reconstructive Surgery) Conferred January 2000"
The curriculum vitae also lists Professor Deva's previous appointments, hospital appointments and his education and training.
It would be unusual, in a medical disciplinary matter, to summons the medical records of the patients of a witness being put forward as an independent expert witness. This is not a use to which patients expect their medical records to be put, and it is prima facie contrary to the public interest to have patients' medical records exposed to scrutiny in a matter in which they are not involved and have no interest.
More importantly, there are various ways in which an expert's expertise can be established. Professor Deva has sought to establish his expertise in his curriculum vitae. The qualifications, experience and training of Professor Deva, as described in his curriculum vitae, are open for challenge by the applicant by way of cross examination, including the nature and frequency of the surgical experience Professor Deva may have. The weight that the Tribunal will give to Professor Deva's evidence will then be a matter to be decided in due course. The log of surgeries which Professor Deva has conducted over the past 10 years is, at best, of peripheral relevance to the issue of expertise and is not apparently relevant to establishing the expertise of Professor Deva or his ability to be able to assess the applicant's pre-operative assessment, care, treatment and surgery regarding the cosmetic surgical procedures under review.
Accordingly, I refuse the application to direct the Registrar to issue the summons.

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