Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ankem v Medical Council of New South Wales [2020] NSWCATOD 120 Hearing dates: On papers after 20 October 2020 Date of orders: 28 October 2020 Decision date: 28 October 2020 Jurisdiction: Occupational Division Before: N Hennessy LCM, Deputy President Decision: 1. A hearing is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The application by the Medical Council of New South Wales for a summons to be issued is refused. Catchwords: PRACTICE AND PROCEDURE – issue of summons – where respondent to an external appeal has applied for a summons to be issued to the Commissioner of Police, NSW Police Force to produce documents – where appeal is from decision of the respondent – rights of respondent on appeal - whether any legitimate forensic purpose Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Building Professionals Board v Hans [2008] NSWADTAP 13 Health Care Complaints Commission v Dowla [2018] NSWCATOD 171 Texts Cited: BC Cairns, Australian Civil Procedure, 12th ed, LawBook Co 2020 Category: Procedural and other rulings Parties: Dr Kiran Ankem (Appellant) Medical Council of New South Wales (Respondent) Representation: Counsel: M Cobb-Clark (Appellant) A Petrie (Respondent) Solicitors: Avant Law Pty Limited (Appellant) Medical Council of New South Wales (Respondent) File Number(s): 2020/00251221 Publication restriction: Disclosure of the name of Dr Ankem's former partner is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). REASONS FOR DECISION Background 1. Dr Ankem has appealed to the Tribunal from a decision of the Medical Council of New South Wales to suspend his registration. That decision was made following a hearing under s 150 of the Health Practitioner Regulation National Law (NSW) (National Law). Dr Ankem's appeal to the Tribunal is an appeal "with respect to a point of law": National Law, s 159B. At the time of the suspension decision Dr Ankem was the subject of criminal proceedings pursuant to s 323(a) of the Crimes Act 1900 (Cth) - act with intent to influence witness. By consent, the suspension decision was stayed pending the Tribunal hearing the matter on 20 November 2020. 2. The Medical Council has applied for a summons to be issued to the Commissioner of Police, NSW Police Force. The summons requests production of the following documents: 1. a copy of this Summons; 2. a copy of all incident reports, criminal charges and antecedents by name and fingerprint search, file notes, records of all charges and pending charges, records of results of all charges, records of interview, copies of "COPS" database entries and any other written documents in relation to Kiran Kumar Ankem, [date of birth deleted]; 3. a copy of the brief of evidence for Kiran Kumar Ankem [date of birth deleted] in criminal proceedings H 75551558; 4. a copy of all Statements and interviews including any written retractions of previous Statements for [name of Dr Ankem's former partner deleted] in criminal proceedings H 75551558 and H 71585020. 1. The purpose of the Medical Council seeking to issue this summons is "to seek further evidence in relation to Dr Ankem's previous and current criminal proceedings" which was not available at the time of the s 150 hearing. The Council submitted that the summons directly relates to the issues the subject of the s 150 hearing and the documents produced could be favourable to the Council or to Dr Ankem. In addition, the summons should be issued because of the protective nature of the jurisdiction. Section 150(1) provides that the Medical Council must suspend a practitioner's registration or place conditions on that registration if "it is appropriate to do so for the protection of the health or safety of any person or persons . . . or if satisfied the action is otherwise in the public interest." Pursuant to s 3A of the National Law: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. Dr Ankem opposes the issuing of the summons. Consideration 1. In Australian Civil Procedure 12th ed, LawBook Co 2020, BC Cairns describes the nature of an appeal to a court in the following way: An appeal is a procedure for a party to apply to an appellate court to have a decision set aside or varied in a manner that is favourable to the appellant. 1. An external appeal to the Appeal Panel under s 159B of the National Law is no different. Dr Ankem has appealed to the Tribunal to have the Council's decision set aside or varied in a manner that is favourable to him. The Council is the respondent to the appeal: Civil and Administrative Tribunal Rules 2014 (NSW), Rule 28(1)(b). The Council's role on appeal is confined to responding to the appeal Dr Ankem has lodged. 2. Pursuant to s 48(1) of the Civil and Administrative Tribunal Act 2013 (NSW), a summons may be issued by a Registrar on the application of a party to the proceedings or at the direction of the Tribunal. I adopt the principles for issuing a summons set out by the Tribunal in Health Care Complaints Commission v Dowla [2018] NSWCATOD 171 at [13] – [24]. Essentially, a summons must be for a "legitimate forensic purpose". That requires an assessment of the relevance of the documents sought by reference to the issues in the proceedings. 3. The Tribunal gave Dr Ankem leave to file amended grounds of appeal. The appeal is made solely under to s 159B(1) of the National Law. That provision allows Dr Ankem to appeal to the Tribunal from the suspension decision "with respect to a point of law". (1) A registered health practitioner or student who is the subject of action taken by the Council for the health profession under section 150, 150A or 150C may appeal, with respect to a point of law, to the Tribunal. Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) Subsection (1) does not limit a right of appeal under section 159. (3) The Council must not make a decision that is inconsistent with the Tribunal's decision with respect to a point of law under this section. (4) A registered health practitioner or student may not make an application to the Supreme Court for judicial review of action taken by a Council under section 150, 150A or 150C, being an application alleging any error of law, until an appeal under this section in respect of the point of law concerned has been made and disposed of. 1. The issue on appeal will be whether the Council erred "with respect to a point of law" identified by Dr Ankem. His grounds of appeal include "legal unreasonableness and disproportionality." The Tribunal's powers on appeal include to confirm the decision, set aside the decision or set aside the decision and make a new decision: National Law, s 159C(1). 2. On appeal, Dr Ankem is relying on the evidence that was before the Council at the s 150 hearing, together with the reasons for decision. He is also relying on communications from Council advising him of the hearing to support a finding that the Council has breached the rules of procedural fairness. Even if the Tribunal has power under common law principles to admit fresh evidence on an appeal of this kind, Dr Ankem does not seek to adduce fresh evidence. There is no scope for the Council to seek the same or a different outcome by the provision of further evidence on appeal. Based on the Medical Council's role on appeal, the grounds of appeal and the fact that Dr Ankem is not applying for fresh evidence to be admitted, the documents sought in the summons have no relevance to any issues in the proceedings. 3. It follows that there is no legitimate forensic purpose for a summons to be issued for the purpose of adducing evidence which was not available at the time of the s 150 hearing. The protective nature of the jurisdiction does not affect that conclusion. 4. The Medical Council submitted that s 150J of the National Law enables it to obtain the records from NSW Police directly. Dr Ankem disagrees. I do not need to determine that issue. Orders 1. A hearing is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The application by the Medical Council of New South Wales for a summons to be issued is refused. ********** 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: 28 October 2020