Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Al-Mozany v Dental Council of NSW [2021] NSWCATOD 3 Hearing dates: On the papers Date of orders: 13 January 2021 Decision date: 13 January 2021 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member Decision: (1) The appellant may use documents in the nature of patient records, statements made by him, expert opinions, and any other documents relating to his treatment of patients the subject of these proceedings whilst engaged by any member of the Gentle Dental Care group which have been produced to the Tribunal pursuant to the issue of a summons for production, whether or not they have been admitted into evidence, for the purpose of instructing Sparke Helmore solicitors in connection with investigations being conducted by the Health Care Complaints Commission arising out of his treatment of any of those patients but subject to the non-publication order made by the Tribunal in these proceedings. (2) The appellant may use the transcript of these appeal proceedings before this Tribunal for the purpose of instructing Sparke Helmore solicitors in connection with the same matters referred to in (1) above. (3) I stand over for further consideration any application made by the appellant for the use of the documents referred to in (1) above in connection with the defence of proceedings brought against him by the Gentle Dental Care group in the Supreme Court of NSW arising out of or related to his treatment of the patients referred to therein. That part of this Application will be further considered upon the appellant providing submissions to the Tribunal and respondent in support of the relevance of those documents to his defence of the Supreme Court proceedings. (4) I stand over for further consideration the application made by the appellant for the use of documents which have not yet been produced to the Tribunal. (5) I grant liberty to apply which may be exercised by either party at short notice. (6) Costs are reserved with liberty to apply. Catchwords: Practice and procedure – application for consent to use documents produced under summons in other proceedings – relevant principles including the use of documents admitted into evidence – necessity to particularise documents and their relevance – application granted in part – application stood over in part with liberty to apply Legislation Cited: Civil and Administrative Tribunal Act s 26 Health Practitioner Regulation National Law (NSW) ss 150, 150B (2), 159, 165B(5A) Cases Cited: Hearne v Street [2008] HCA 36 Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3 Texts Cited: NCAT Procedural Direction 2 Category: Procedural and other rulings Parties: Saad Abdul Hassan Al-Mozany (Appellant) Dental Council of NSW (Respondent) Representation: Solicitors: Appellant (Self-represented) Health Professional Councils Authority (Respondent) File Number(s): 2018/00385500 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, a non-publication order is made with respect to the name of any patient or former patient of the appellant Dr Al-Mozany or any information which may tend to identify any such person. REASONS FOR DECISION Background 1. These interlocutory proceedings arise out of an appeal under section 159 of the Health Practitioner Regulation National Law (NSW) ("the National Law") brought by the appellant Dr Saad Abdul Hassan Al-Mozany against a decision of the respondent Dental Council of NSW to suspend his registration as a dental practitioner. Those appeal proceedings are currently part heard. 2. The suspension of the appellant arose from an adverse consideration of the treatment afforded by him as an orthodontist to a number of his patients. Records pertaining to the appellant's treatment of these patients have become evidence in these proceedings. They were produced by various dental surgeries where the appellant worked, all of whom appear to have been members of a group of companies which I shall hereafter refer to as the Gentle Dental Care group and by an organisation known as Invisalign Australia Pty Ltd 3. Other documentation has also become evidence in these proceedings. I shall refer to that material shortly. 4. The appellant is concurrently involved in dealing with an investigation by the Health Care Complaints Commission ("HCCC") of complaints arising out of his treatment of some or all of these patients, for which purpose he has engaged solicitors, Sparke Helmore. Those solicitors do not represent him in the appeal proceedings with which the Tribunal is currently dealing. 5. In addition, the appellant is concurrently involved in the defence of proceedings in the Supreme Court of NSW brought against him by the Gentle Dental Care group with respect to or arising out of his engagement by that group to perform orthodontic work in surgeries with which they are associated. The appellant asserts that the circumstances of his treatment of some or all of the same patients, is relevant to those proceedings. 6. By application filed on 17 December 2020 the appellant has sought orders by way of interlocutory application that the records of 14 patients which have been produced to the Tribunal pursuant to a summons to produce and other material be made available to the solicitors representing him in his dealings with the HCCC. In addition, the appellant has sought orders that the same records and other material may be used by him in his defence of the Supreme Court proceedings brought by the Gentle Dental Care group. The appellant has not currently retained a solicitor in the proceedings before the Tribunal, but senior counsel represents him on a direct brief. 7. By virtue of the provisions of section 165B(5A) of the National Law this interlocutory application is to be dealt with by the Tribunal as presently constituted. 8. The proceedings are complicated by the fact that the appellant first issued summonses for the production of documents to the Gentle Dental Care group and to Invisalign Australia Pty Ltd on 20 September 2019 with respect to 10 named patients. He later issued summonses to practices within the Gentle Dental Care group on 25 November 2020 with respect to 4 additional patients and finally on 16 December 2020 to the Gentle Dental Care group and to Invisalign Australia Pty Ltd again with respect to the same 10 patients. 9. In his interlocutory application, the appellant identified the material which is sought to be made available to his solicitors for use in dealings with the HCCC and which is also sought to be used and relied upon in the Supreme Court proceedings. That material is as follows: 1. Material produced to the Tribunal in response to summonses issued by the Tribunal. 2. The transcript of hearings before the Tribunal. 3. The Dental Council's Exhibits A, B, C and D and any further evidence sought to be relied upon by the Dental Council in the proceedings before the Tribunal. 4. The appellant's folders 1 to 13 and any further evidence sought to be relied upon by the appellant in the proceedings before the Tribunal. 1. I shall refer discretely to each of these categories of material. I shall also refer to written submissions furnished by each party. Material produced to the Tribunal in response to summonses issued by the Tribunal 1. Material has been produced under the original summons dated 20 September 2019 for the purpose of the appeal proceedings before the Tribunal by a number of companies within the Gentle Dental Care group and by Invisalign Australia Pty Ltd. I have not perused that material for the purpose of considering this interlocutory application, nor has the appellant provided details of what material has been produced. For the purpose of the discussion which follows, I shall confine my consideration in general terms to that part of the material produced by the Gentle Dental Care group companies which relates to any person treated by the appellant. I understand from information made available during the course of the part heard proceedings that the appellant made use of devices manufactured and supplied by Invisalign Australia Pty Ltd as part of a system devised by that company to facilitate the realignment of teeth in work undertaken by orthodontists. I shall also confine my consideration of the material provided under summons by that company which relates in general terms to its system and the use of that system in the work of orthodontists and which relates in particular to the use of its system by the appellant in treatment afforded by him to patients through the Gentle Dental Care group companies. Any material produced under summons which is outside these descriptions will not form part of or be included in the exercise of any discretion in favour of the appellant for the purpose of this application to permit use of these summonsed materials. 2. The President of this Tribunal has issued Procedural Direction 2 which deals in general terms with the issue of summonses to give evidence and to produce documents for the purpose of proceedings before the Tribunal. These Procedural Directions are issued under section 26 of the Civil and Administrative Tribunal Act and by subsection (4) are binding on the Tribunal and on the parties to proceedings before it: 26 Procedural directions (1) The President may give directions (procedural directions) relating to the practice and procedures to be followed in, and to the actual conduct of, proceedings in the Tribunal. (2) The procedural directions must be— (a) publicly available, and (b) consistent with this Act, enabling legislation and the procedural rules. (3) Without limiting subsection (2)(a), it is sufficient compliance with that paragraph if procedural directions are published on the website of the Tribunal. (4) Each member, and the parties to proceedings and their representatives, must comply with any applicable procedural directions. 1. Clause 41 of Procedural Direction 2 states: Documents and other things obtained under a summons must only be used for purposes directly connected with the proceedings. Using the documents or other things for any other purpose or publishing their contents for any other purpose, may constitute contempt of the Tribunal and be punishable by fine or other orders. 1. However, Clause 41 is subject to Clause 3 which provides that: The Tribunal may excuse a person from complying with this Procedural Direction before or after the time for compliance. 1. Accordingly, the Tribunal is vested with a discretion to excuse compliance with Clause 41. The circumstances which apply generally to the use of material produced to a court pursuant to a summons for purposes outside the particular court proceedings is generally regarded as being the subject of an implied undertaking, as described in the joint judgment of Hayne, Heydon and Crennan JJ in the High Court of Australia in Hearne v Street [2008] HCA 36. At [96] their Honours said: Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. (Citations omitted) 1. Gleeson CJ and Kirby J in separate judgments agreed with the above statement of principle. 2. The underlying rationale for the statement of principle is the protection of persons who are compelled by various means to make information and documents available to a court which, if it were not for such compulsion, might be regarded as an undue intrusion into their privacy. However, this protection is subject to it being lost once any such information or documents are admitted into evidence in the proceedings because, in most cases, proceedings before courts (and before this Tribunal) are held in public and become part of the public record. There are, obviously, exceptions where the disclosure of that information or those documents may be either prohibited or restricted, as has occurred in the circumstances of these proceedings. The Tribunal has made a non-publication order prohibiting the publication of the name of any person who was a patient of the appellant, or any information which may tend to identify any such person, in order to protect their privacy. 3. Some of the material which is the subject of this part of the appellant's application consisting of patient records has been admitted into evidence in the appeal proceedings. As such, the only restriction on its use is limited by the terms of the non-publication order to which I have referred. 4. The remaining material which has been admitted into evidence consists of the documents filed by the respondent being Exhibit A in the proceedings. This material in general terms extends to complaints received with respect to the treatment afforded by the appellant to certain patients, information given to the respondent by the appellant, and material concerning the treatment and treatment practices utilised by the appellant, together with observations about those matters by professional experts retained by the respondent. This material also includes the transcript of the proceedings under section 150 of the National Law by which the suspension order was made. No order has been made affecting the confidentiality of any of that material and supporting documents. In the absence of any such order, prima facie such part of it which is on the public record as having been admitted into evidence may be utilised by the appellant for the purposes sought by him. 5. It is also necessary to add a caveat concerning the transcript of the section 150 proceedings. Section 150B (2) provides: 150B Audio recording of meeting [NSW] (1) A Council must cause an audio recording to be made of any proceedings of the Council in connection with the consideration by the Council of the exercise or proposed exercise of a function under this Subdivision in respect of a registered health practitioner or student— (a) during which the practitioner or student, or the practitioner's or student's adviser, is present; or (b) during which a person other than a member of the Council or a staff member of the Council is present and gives the Council oral information relevant to the Council's consideration. (2) A recording under this section is not admissible in evidence in— (a) civil or criminal proceedings in a court of law (other than proceedings under this Law); or (b) an inquest or inquiry under the Coroners Act 2009. 1. I note that the "audio recording" may be used in proceedings commenced under the National Law. It may be assumed that the involvement of the HCCC for the purpose of its investigations will either be confined to or substantially involved with proceedings under the National Law. I shall assume, but without deciding, that the reference to an "audio recording" includes a reference to a written transcription of that recording. I shall return to this aspect later when considering disclosure of the section 150 proceedings for the purpose of the Supreme Court proceedings involving the Gentle Dental Care group. 2. That part of the material produced under summons which has not been admitted into evidence is subject to the provisions of Clause 41, the general effect of which reflects that described in the implied undertaking referred to in Hearne extracted above. Presumably such material will be that confined to the summonses issued in November and December 2020. 3. Without being aware of the description of that material it is difficult to determine in any definitive sense whether and to what extent the appellant's application should be granted. In order to assist the parties to resolve any controversy between them, I shall discuss what principles might govern the exercise of the discretion created in Clause 3. 4. In Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3 Branson, Sundberg & Allsop JJ in the Full Federal Court described at [32] the following as a helpful guide: 31 In order to be released from the implied undertaking it has been said that a party in the position of the appellants must show "special circumstances": see, for example, Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217. It is unnecessary to examine the authorities in this area in any detail. The parties were not in disagreement as to the legal principles. The notion of "special circumstances" does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined. In Springfield Nominees, Wilcox J identified a number of considerations which may, depending upon the circumstances, be relevant to the exercise of the discretion. These were: • the nature of the document; • the circumstances under which the document came into existence; • the attitude of the author of the document and any prejudice the author may sustain; • whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain; • the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information): • the circumstances in which the document came in to the hands of the applicant; and • most importantly of all, the likely contribution of the document to achieving justice in the other proceeding. 1. Having regard to the matters listed above as being relevant "considerations" I shall proceed on the basis that these are matters which it is appropriate to take into account in determining whether to exercise discretion under Clause 3. 2. I repeat that in the absence of being informed of the precise description of any documents, I intend taking an in-principle approach in the discussion which follows. Access to documents by solicitors representing the appellant in connection with investigations being conducted by the HCCC 1. If, as I apprehend, the investigations being conducted by the HCCC with respect to which Sparke Helmore solicitors are representing the appellant concern the treatment afforded by the appellant to any of the patients whose records have been produced to the Tribunal, it is appropriate that those patient records be made available to those solicitors to assist them in representing the appellant. Both the respondent in determining to suspend the registration of the appellant, and the HCCC, are empowered to exercise their functions by the National Law and are mandated by the provisions of the National Law to consider as a primary matter the health and safety of the public. The consideration of both entities must be directed to that primary matter of concern in examining and dealing with the circumstances of the treatment of each of those patients by the appellant. It would be unfair to the appellant if his solicitors were denied an opportunity of examining the patient records. Whilst the appellant may not be the sole author of those records, to the extent that they relate to patients treated by him, it may be assumed that he made a significant contribution to their creation. 2. The same situation will apply to the extent that the Invisalign Australia records concerning each of the patients will have some bearing on the appellant's treatment of them. 3. To the extent that the records are already in evidence, there is no reason why they cannot be made available to the appellant's solicitors in connection with the HCCC investigations, subject only to the prohibition on the use of their names pursuant to the non-publication order which has been made. 4. I note for completeness that the respondent has indicated its consent to this position. 5. To the extent that any such records are not yet in evidence, and with respect to those the subject of the summons issued on 16 December 2020, the return date for which is 11 January 2021, it is not possible to take a definitive view about whether or not access should be granted to the appellant's solicitors. To this extent I express the tentative view in the interests of resolving, if possible, any controversy that if the documents which are produced have the same relevance to the matters being considered by the HCCC in connection with the conduct of the appellant as I have described above, then it would be appropriate that they be made available to these solicitors, and presumably the non-publication order will continue to apply because, as I understand it, the same patients are involved in these later summonses. 6. If the parties are able to reach sensible agreement about access to these documents being granted to Sparke Helmore on this basis and the Registry is notified accordingly, I will make an order to that effect "in chambers". If the parties cannot reach agreement, I expect that the matter will be raised for further consideration pursuant to the liberty to apply which I shall grant. 7. I apprehend that there will be a large overlap in the documents tendered before the Tribunal by the respondent and those to which the HCCC will have access with respect to its investigations. These would include statements given by the appellant, material produced to the respondent with respect to the proceedings conducted under section 150 of the National Law, and expert opinion retained by the respondent. In principle I see no impediment to that material being made available to these solicitors, because it has been admitted into evidence in these proceedings. 8. There is, however, material which has been filed by the appellant but has not yet been admitted into evidence, including lengthy affidavit material sworn on 30 October 2020 which pertains to the circumstances in which the appellant treated a number of patients. This material has been noted as Folders 10 to 13. Again, to the extent that this material is relevant to the investigations being conducted by the HCCC and will assist these solicitors in representing the appellant I can see no reason in principle why that information cannot be made available to them. 9. The respondent has objected to this approach but has not provided any submissions in support other than the fact that the material is not yet admitted into evidence. I note that to the extent that this is the appellant's affidavit, and it is he who seeks that its contents be made available, it is arguable that there is limited public interest in denying him the opportunity of obtaining advice about its contents for the purpose of concurrent investigations by an entity with a common interest to that of the respondent. I express the tentative view that there is no in-principle reason why this material should not be made available to the solicitors. Again, if there is any resultant controversy the parties have liberty to apply. If they are able to reach sensible agreement, the Registry should be notified. Use of the material in the Supreme Court proceedings 1. Unfortunately, the appellant's submissions do not describe the nature of the proceedings in the Supreme Court in which the Gentle Dental Care group is the other party. During the course of the part heard appeal proceedings mention was made of a commercial dispute, involving the appellant's engagement to work in the various dental surgeries conducted under that group's umbrella. Presumably the appellant may seek to have some of the material which is the subject of this interlocutory application admitted into evidence in those proceedings. 2. With respect to those documents which have been produced in answer to a summons which have not been admitted into evidence, the exercise of discretion to allow their use in the Supreme Court proceedings will depend upon their relevance to those proceedings. If, for example, one of the issues in the proceedings is whether and to what extent the appellant carried out his orthodontic work in a proper and appropriate manner, or otherwise so conducted himself, it is arguable that the patient records would be relevant, and that the appellant should be able to make use of them for the purpose of the proceedings. Whether and to what extent discretion will be exercised will be a matter for determination having regard to discretionary matters of the kind referred to in [24] above. 3. In general terms documents produced in answer to a summons which have been admitted into evidence before this Tribunal will be matters of public record and, save for any questions of confidentiality and consideration of the non-publication order which has been made, may be utilised in other proceedings. The same approach will apply to other documents which become open evidence in these proceedings, whether produced voluntarily by the respondent or otherwise. 4. However, the use which the appellant might make of the transcript of the section 150 proceedings will be limited by reason of the provisions of section 150B set out above. This will be a matter for the appellant. The transcript of hearings before the Tribunal 1. The respondent has also objected to the appellant making available to the solicitors the transcript of the proceedings before the Tribunal on 12, 13 and 14 February 2020. No particular reason has been given in support of this objection. Prima facie the proceedings were conducted in public, and although they are part heard and not yet complete, I can see no in-principle reason why the transcript should not be made available to the solicitors, on the basis of the discussion referred to above. Material not yet produced to the Tribunal 1. To the extent that the appellant has sought access to material not yet produced to the Tribunal, for example by way of response to the summonses for production most recently issued, the Tribunal will have no power or jurisdiction to make any orders with respect to access. 2. Once documents are produced in answer to a summons or are otherwise produced by way of the filing of affidavits or expert reports, access may only be gained for a purpose which is not directly connected with the proceedings before this Tribunal by leave under Clause 3 of Procedural Direction 2 unless and until the documents are admitted into evidence. Once admitted access will then be subject to any prohibition concerning confidentiality and disclosure. 3. In these circumstances, I decline to make any orders with respect to this material as sought by the appellant. However, as previously indicated, I intend granting liberty to apply to facilitate the quick disposal of any controversy. Orders 1. I make the following orders: 1. The appellant may use documents in the nature of patient records, statements made by him, expert opinions, and any other documents relating to his treatment of patients the subject of these proceedings whilst engaged by any member of the Gentle Dental Care group which have been produced to the Tribunal pursuant to the issue of a summons for production, whether or not they have been admitted into evidence, for the purpose of instructing Sparke Helmore solicitors in connection with investigations being conducted by the Health Care Complaints Commission arising out of his treatment of any of those patients but subject to the non-publication order made by the Tribunal in these proceedings. 1. The appellant may use the transcript of these appeal proceedings before this Tribunal for the purpose of instructing Sparke Helmore solicitors in connection with the same matters referred to in (1) above. 2. I stand over for further consideration any application made by the appellant for the use of the documents referred to in (1) above in connection with the defence of proceedings brought against him by the Gentle Dental Care group in the Supreme Court of NSW arising out of or related to his treatment of the patients referred to therein. That part of this Application will be further considered upon the appellant providing submissions to the Tribunal and respondent in support of the relevance of those documents to his defence of the Supreme Court proceedings. 3. I stand over for further consideration the application made by the appellant for the use of documents which have not yet been produced to the Tribunal. 4. I grant liberty to apply which may be exercised by either party at short notice. 5. Costs are reserved with liberty to apply. ********** 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: 13 January 2021