Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Al-Mozany [2021] NSWCATOD 51 Hearing dates: 26 March 2021 Date of orders: 30 April 2021 Decision date: 30 April 2021 Jurisdiction: Occupational Division Before: The Hon J Boland AM, Deputy President Decision: (1) That on or before 5 May 2021 the Health Care Complaints Commission provide to Dr Saad Abdul-Hassan Al-Mozany (the practitioner) a copy of all relevant DICOM data and any USB provided by Gentle Dental Care. (2) That both parties may have access to Invisalign material produced by Aligntech Pty Ltd in respect of Patients D, K and N in the practitioner's appeal proceedings (proceedings 2018/00385500) for the purpose of these proceedings. (3) Leave is granted to the Health Care Complaints Commission to issue a Summons directed to Gentle Dental Care Group Pty Ltd and/or associated entities. (4) That on or before 7 May 2021 the Health Care Complaints Commission provide the practitioner with its response to the letter dated 8 February 2021 concerning Dr Joseph Geenty discussing the practitioner's matter with colleagues. (5) Health Care Complaints Commission may serve on the practitioner on or before 31 May 2021 an Amended Complaint, if any, including an amended schedule to include Patient N. (6) Health Care Complaints Commission is to serve on the practitioner on or before 31 May 2021 all material on which it seeks to rely in support of the Complaint. (7) The practitioner is to serve on the Health Care Complaints Commission a Reply by 16 July 2021. (8) The practitioner is to serve on the Health Care Complaints Commission all material on which he seeks to rely by 16 July 2021. (9) The matter is listed for a Case Conference on 23 July 2021 at 2pm at John Maddison Tower, 86–90 Goulburn Street, Sydney. (10) Order 2 of the orders made on 15 January 2021 is discharged. (11) Health Care Complaints Commission's application filed 8 March 2021 is otherwise dismissed. (12) The practitioner's application filed 10 March 2021 is otherwise dismissed. (13) The costs of the competing applications are reserved. Catchwords: HEALTH — professional registration and discipline — professional misconduct — interlocutory application Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Legal Profession Uniform Law (NSW) Civil and Administrative Tribunal Regulation 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Council of the NSW Bar Association v Lott [2016] NSWCATOD 159 Lott v Council of the New South Wales Bar Association [2017] NSWCA 145 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 234 FCR 549; [2002] FCAFC 157 Medical Council of New South Wales v Lee [2017] NSWCA 282 Texts Cited: NSW Civil and Administrative Tribunal, "NCAT Procedural Direction 3 – Expert Evidence" (28 February 2018) Category: Procedural rulings Parties: Health Care Complaints Commission (Applicant) Dr Saad Abdul-Hassan Al-Mozany (Respondent) Representation: Counsel: A Petrie (Applicant) K Connor SC (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 2020/00365306 Publication restriction: Pending further order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting the publication by any person or entity of the name of any patient set out in the Complaint filed 23 December 2020. REASONS FOR DECISION Introduction 1. These reasons are in respect of two competing interlocutory applications concerning provision of documents and/or requests for further and better particulars. The Health Care Complaints Commission (HCCC) filed its interim application on 8 March 2021. The other interim application was filed on behalf of Dr Saad Abdul-Hassan Al-Mozany (the practitioner) on 10 March 2021. Additionally, both parties also seek leave to issue a Summons. In the case of the HCCC the proposed Summons is directed to the Proper Officer, Gentle Dental Care. The practitioner's proposed Summons is directed to Gentle Dental Care Group Pty Ltd (Gentle Dental Care) and other associated persons and entities associated with Gentle Dental Care. 2. On 23 December 2020 the HCCC lodged disciplinary proceedings in the Tribunal against the practitioner. The practitioner is registered as a dentist specialist under the Health Practitioner Regulation National Law (NSW) (the National Law). The practitioner is currently suspended and has appealed to this Tribunal under s 159 of the National Law against his suspension. 3. Prior to his suspension, the practitioner was a partner/shareholder in, and carried on practice in practices known as, Gentle Dental Care, conducted over five locations in metropolitan Sydney. 4. Complaint One of the Complaint brought by the HCCC asserts the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law. The Complaint relates to the practitioner's treatment of 13 patients whose names are set out in the schedule to the Complaint. During the course of the hearing of the interlocutory applications I was informed that the name of a fourteenth patient, Patient N, had accidently been omitted from the schedule. The patients, who are identified by letters of the alphabet, will be the subject of a non-publication order made by me at the conclusion of the present applications. 5. As earlier noted, it is not in dispute that the Dental Council of New South Wales (the Council), following proceedings under s 150 of the National Law, suspended the practitioner's registration. An appeal against that decision is part-heard. However, during the course of the interlocutory hearing, I was advised by the practitioner's senior counsel, Mr K Connor SC (Mr Connor) that the practitioner may not pursue his appeal but rather proposes to concentrate on the disciplinary proceedings. I was also informed that different solicitors act for the practitioner in the s 159 appeal to the solicitors acting in the disciplinary proceedings. 6. On 13 January 2021 the Hon F Marks, Principal Member, published reasons permitting the practitioner to use documents produced in the s 159 appeal in these proceedings. He was also granted leave to provide the transcript of the appeal proceedings to the practitioner's solicitors in these proceedings. 7. Reference has been made in these proceedings to litigation in the Supreme Court of New South Wales between Gentle Dental Care and the practitioner but no documents relating to those proceedings are in evidence in these proceedings. However, in his solicitor's affidavit relied on in these interlocutory applications, the solicitor, Mr Steven Canton (Mr Canton), at par 45, sets out an extract of correspondence related to the proceedings being instigated by Gentle Dental Care against the practitioner in the Supreme Court "claiming $3.6 million plus interest and costs". Procedural history 1. Three directions hearings have been conducted in this matter. On 15 January 2021 I made the following directions: (1) It is noted that the respondent's lawyers will provide to the Health Care Complaints Commission within 14 days copies of all documents as provided in Order 1 of the orders of the Hon F Marks in proceedings Al-Mozany v Dental Council of New South Wales [2021] NSWCATOD 3 (File No 2018/00385500). (2) Health Care Complaints Commission is to respond to requests by Dr Al-Mozany for further and better particulars, information and documents concerning each of the fourteen patients subject of the Complaint on or before 21 days after receipt of the request. (3) Health Care Complaints Commission is to respond on or before 5 February 2021 to requests numbered 1, 2, 3, 4, 6 and 12 in Sparke Helmore's letter dated 13 January 202[1]. (4) Health Care Complaints Commission is to respond on or before 5 February 2021 to requests [numbered] 8 and 10 in Sparke Helmore's letter dated 13 January 2021. (5) Health Care Complaints Commission is to give to the other party, any material on which that party relies on or before 26 February 2021. (6) The proceeding is listed for directions on 26 February 2021 at 10am at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney. (7) Liberty is granted to both parties to inspect File No 2018/00385500 (Al-Mozany v Dental Council of NSW). 1. The proceedings were stood over for directions on 26 February 2021 in the Health Directions List. 2. On 26 February 2021 I made the following orders: (1) Order 5 of the orders made on 15 January 2021 is varied to provide that the HCCC is to give to the other party any material on which that party relies by 31 March 2021. (2) The HCCC's request to discharge orders 2, 3 and 4 of the orders made on 15 January 2021 is stood over to 12 March 2021 at 11:20am. 1. As there was insufficient time to deal with the two interlocutory applications on 15 March 2021 I stood the applications over for hearing at a date and time to be notified by the Registrar. I also granted leave to the parties to inspect the appeal file and for Summonses to be issued to Gentle Dental Care. The HCCC's application 1. The HCCC now seeks that I make an order setting aside order 2 made on 15 January 2021. That is the order requiring the HCCC to provide certain further and better particulars of the Complaint to the practitioner. Other orders sought by the HCCC are for directions for the filing of a Reply by the practitioner and any material on which he relies by 12 May 2021 and the listing of the matter for a Case Conference after 12 May 2021. 2. Orders 5 and 6 of the orders sought by the HCCC are as follows: 5. The respondent be restrained from sending any further correspondence to the applicant seeking further and better particulars or seeking clarification of evidence served to date until the applicant's material is filed and served. 6. The applicant is to respond to the request for further and better particulars after 31 March 2021 provided the respondent advises the applicant which requests are still pressed after having regard to the applicant's evidence. The Commission has 28 days to respond to each further request after such requests are made. 1. In support of the orders sought, the HCCC states that it has been served with 48 letters from the respondent since the filing of the disciplinary proceedings requesting documents, information and further and better particulars. The HCCC states that the combined correspondence received totals over 800 pages. It is also recorded that the HCCC has responded to 14 of the letters but is unable to meet the deadline in the orders of 15 January 2021. 2. The HCCC also explains: The preparation of the Commission's evidence has been impacted by the amount of correspondence received from the respondent's solicitor. The Commission must prepare its evidence in this matter before it can respond to requests for further information from the respondent. The requests should not be excessive and should not attempt to litigate matters by correspondence which should be dealt with at the hearing. 1. The HCCC also seeks leave to issue a Summons in the form attached to its application. As noted above, the Summons is directed to the Proper Officer, Gentle Dental Care and seeks patient records for the 14 patients referred to in the Complaint. The practitioner's application 1. The practitioner seeks orders and directions in accordance with Annexure "A" to his application. He opposes the orders sought by the HCCC. The practitioner relies on an affidavit of his instructing solicitor, Mr Canton sworn on 10 March 2021 in support of his application. Annexure A to the application seeks that the Tribunal make 17 orders including in order 17 that the HCCC reply to 8 requests for further and better particulars set out in letters dated 21 January 2021, 22 January 2021, (3 letters), 25 January 2021 (2 letters) and 27 January 2021 (2 letters). 2. Proposed direction 18 requires the parties to confer about the matter generally within the next 7 days. 3. Mr Canton's affidavit in support of the application has exhibited to it voluminous material including correspondence between his firm and the HCCC. Issues in these applications 1. It is relevant to note that these proceedings are at a preliminary stage in the Tribunal. The HCCC has not served the material on which it seeks to rely in support of the Complaint, nor have any orders been made requiring the practitioner to file and serve a Reply or any material on which he relies. 2. It is also relevant to note that proceedings in the Tribunal are guided and informed by the objects in s 3 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). Of particular relevance to this application are s 3(c), (d), (e) and (f). Those provisions are as follows: 3 Objects of Act The objects of this Act are— … (c) to ensure that the Tribunal is accessible and responsive to the needs of all of its users, and (d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and (e) to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality, and (f) to ensure that the Tribunal is accountable and has processes that are open and transparent, and … Issues as identified by the parties Issues to be determined as identified by the HCCC 1. Ms A Petrie (Ms Petrie), counsel for the HCCC, asserted the orders sought by the practitioner should be refused, or at least the determination of them be adjourned, pending the service of the evidence the HCCC will rely on in support of the Complaint. Ms Petrie identified the following issues as requiring determination in this application: 1. Whether an order should be made which requires the HCCC to provide further and better particulars of the Complaint before the HCCC serves all the material on which it relies in support of the Complaint. 2. Whether a Summons should be issued by one or other of the parties or the Tribunal on its own initiative. Issues to be determined as identified by the practitioner 1. Mr Connor identified five broad categories of issues as requiring determination in these interlocutory applications. For convenience, I have reframed the issues identified by Mr Connor into questions. 1. Does the asserted failure of Gentle Dental Care to produce relevant documents require a Summons to be issued by the Tribunal itself pursuant to s 48(1)(b) of the NCAT Act? 2. Is it necessary and appropriate to make orders as set out in pars 4 to 9 of the practitioner's application? (Orders 4 to 9 as sought deal with aspects of the expert reports of Dr Joseph Geenty (Dr Geenty) relied on by the HCCC). 3. Is it appropriate at this stage of the proceedings to strike out or summarily dismiss particulars of the Complaint (pars 14, 15 and 16) pursuant to s 53 of the NCAT Act? 4. Should the HCCC be directed to provide answers to the requests for further and better particulars sought on behalf of the practitioner? 5. Should the HCCC be directed to provide all material sought on behalf of the practitioner? Other issues 1. During the hearing further matters arose relevant to Dr Geenty's expert reports. Dr Geenty is the expert on whose reports the HCCC rely in support of the Complaint. 1. Should the deficiencies, if any, in the HCCC's expert report be subject of orders or should the issue of admissibility or weight to be given to the expert report be a matter for the hearing (or at least a Case Conference)? 2. Do the two expert reports on which the HCCC apparently rely comply with the Tribunal's procedural direction? Is the HCCC entitled to rely on a report prepared by a professional officer of the Council to establish particulars in the Complaint? 1. These issues overlap with matters relevant to proposed orders 4–9 as sought by the practitioner. The Summons issue 1. Notwithstanding that, on 12 March 2021, I granted leave to the parties to issue Summonses for the production of documents by Gentle Dental Care, the parties produced draft Summonses with different schedules at this interlocutory hearing and sought that leave by granted to issue those Summonses. 2. In summary, the documents sought in the schedule to the Summons in respect of which the HCCC seeks leave are somewhat narrower than documents sought in the schedule proposed by the practitioner. Further, and of potential relevance, the Summons proposed by the HCCC refers only to Gentle Dental Care (not Gentle Dental Care Group Pty Ltd ACN 116 316 495 and other associated companies identified in the Schedule drafted on behalf of the practitioner). 3. In the course of his oral argument, Mr Connor submitted because of the commercial dispute between the practitioner and the other shareholders of Gentle Dental Care, or the various companies trading under the name Gentle Care, and/or the failure of Gentle Dental Care to produce all relevant records to date, that the Summons should be issued, not by the Tribunal at the request of the parties, but by the Tribunal itself. To this end Mr Connor relied on s 48 (1)(b) of the NCAT Act. Section 48 provides as follows: 48 Issue of summons (1) A summons for the purposes of this Act may be issued by a registrar— (a) on the application of a party to the proceedings, or (b) at the direction of the Tribunal. Note— See also section 46(2)(b). (2) The fee (if any) prescribed by the regulations is payable for the issue of a summons on the application of a party to the proceedings. (3) Such a summons must be signed by a registrar or as otherwise prescribed by the procedural rules and may require the person to whom it is addressed— (a) to attend and give evidence, or (b) to attend and produce documents or other things, or both. (4) The regulations may make provision for or with respect to excusing, in specified circumstances, a person who produces documents or other things in answer to a summons from attendance at the Tribunal. (5) A summons may be served within or outside the State. Consideration — issue of Summonses 1. I discern from Mr Connor's oral arguments that the basis on which he seeks that the Tribunal itself issue a Summons under s 48(1)(b) of the NCAT Act is that such a course would be likely to ensure compliance with the production of documents sought and that any costs associated with compliance by Gentle Dental Care (or the companies associated with it) would not be visited on the practitioner. 2. I do not accept that, in the circumstances of this case, it is appropriate or necessary for the Tribunal itself to seek production of documents. First, the HCCC as the prosecutor in these proceedings is ready, able and willing on the grant of leave to pursue the production of relevant documents. Secondly, if there is any failure to produce the relevant documents enforcement proceedings can be instituted as provided in the NCAT Act, the Civil and Administrative Tribunal Regulation 2013 (NSW), the Civil and Administrative Tribunal Rules 2014 (NSW) and relevant procedural direction (Summonses). Thirdly, both parties are legally represented and well able to serve the Summonses sought to be issued. This is not a case where a self-represented party, such as a person suffering a disability, is unable themselves to issue a Summons and requires assistance from the Tribunal, or the Tribunal itself forms the view it cannot determine issues between the parties without the issue of a Summons. I therefore decline to order the issue of a Summons as sought by the practitioner under s 48 (1)(b). 3. I turn then to the question of the differing documents sought in the schedule to the Summons proposed by the HCCC and that proposed by the practitioner. The practitioner seeks patient records for all 14 patients named in the Complaint agitated by the HCCC. The Summons additionally seeks for each patient documents in generally similar terms: 1. All communications between [patient's name] and Gentle Dental Care and anyone on behalf of Gentle Dental Care including emails, text messages and file notes. 2. All email communications between Gentle Dental Care and anyone on behalf of Gentle Dental Care and the HCCC or the Council (including the Health Practitioners Councils Authority concerning [patient's name]). 1. The schedule to the Summons proposed by the HCCC is directed to the production of patient records. 2. It appears to me that I must consider and determine whether there is a legitimate forensic purpose for the issue of the Summons as proposed on behalf of the practitioner, or whether as asserted by the HCCC, the documents sought by the practitioner are a "fishing expedition" in an endeavour to support the practitioner's claim that the patents' complaints in this matter were aided or encouraged by the other shareholders of the companies operating under the name Gentle Dental Care, and perhaps are inferentially relevant to the Supreme Court proceedings. 3. The relevant legal principles to be applied in respect of the issue of a Summons or the setting aside of a Summons are discussed in Council of the NSW Bar Association v Lott [2016] NSWCATOD 159 as follows: [40] Senior counsel for Mr Lott drew my attention to two decision[s] which emphasise documents required to be produced under summons should be those which have a "legitimate forensic purpose" and not a "fishing expedition" (see NSW Commissioner of Police v Tuxford [2002] NSWCA 139; Principal Registrar of the Supreme Court v Ali Tastan (1994) 74A CrimR 498 per Barr AJ. Other well-known authorities also refer to the "legitimate forensic purpose" test (see Commissioner for Railways v Small (1938) 38 SR (NSW) 564; National Employers' Mutual General Association v Waind and Hill (1978) 1 NSWLR 372 [1978] (see also National Employers' Mutual General Association v Waind & Hill (1979) 141 CLR 648 [1979] HCA 11. [41] It is not in dispute a party seeking access to documents produced under subpoena (or in this case summons) carries "at least a forensic onus of identifying how the documents called for by the notice are said to relate to a fact in issue in the case" (see Norris v Kandiah [2007] NSWSC 1296). [42] In One.Tel Ltd (in Liq) - Singtel Optus Pty Ltd v Weston [2010] NSWSC 1491 Ward J (as her Honour then was) reviewed the authorities, both criminal and civil, dealing with documents whose production has been sought under a Notice to Produce or subpoena. [43] Her Honour cited as relevant Brereton J's statement in Portal Software v Bodsworth [2005] NSWSC 1115. His Honour noted the test as being whether the documents have: A sufficient apparent connection to justify their production or inspection. [44] Senior counsel for Mr Lott succinctly described alternate bases on which documents may demonstrate a legitimate forensic purpose by demonstrating substantive relevance or adjectival relevance. He submitted: "Substantive" relevance (relating to direct proof of a factual issue in the proceedings) or "adjectival" relevance" relevance which encompasses the notion that it is "on the cards" that the material sought to be produced will throw light on issues in the case. [45] In criminal proceedings (Attorney General (NSW) v Chidgey [2008] NSWCCA 65 Beazley JA rejected the argument that mere relevance might be sufficient to establish a legitimate forensic purpose. [46] Ward J in One.Tel Ltd noted that Brereton J explained to satisfy the adjectival relevance test, as distinct from substantive relevance, "will be … if the material has apparent relevance and is established if the documents called for "could possible throw light on the issues in the main case". [47] Although judges in a number of cases have followed the test as enunciated by Brereton J in Portal Software that a legitimate forensic purpose will be established if it appears "on the cards" that the documents sought will materially assist, Ward J explained in One.Tel Ltd that the "on the cards" test has not been broadly embraced and referred to the decision of Nicholas J in ICAP Pty Ltd v Moebes [2000] NSWSC 306. [48] At [31] in One.Tel Ltd Ward J adopted the reasoning of Nicholas J in ICAP saying: Applying in this case the test in civil proceedings, as stated by Nicholas J in ICAP (namely that "it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that the documentation will", at [30]) and noting that it must be reasonable to infer that the documents so sought exist, a careful consideration is required of the issues in the proceedings to which the subpoenaed documents are or may be of relevance in order to assess whether there is a legitimate forensic purpose served by the subpoena. [49] In ICAP Australia Pty Ltd v BGC Partners (Aust) Pty Ltd [2009] NSWCA 307 Tobias JA referred to the use of the word "likely" in the context of "likely to materially assist an identified issue" as being any different from "on the cards". 1. Those principles were noted by Simpson JA (with whom Meagher JA and Sackville AJA agreed) to have been correctly stated (see Lott v Council of the New South Wales Bar Association [2017] NSWCA 145). 2. I turn then to consider whether all the material sought in the draft Summons is likely to assist in the identified issue of unsatisfactory professional conduct in the treatment of the 14 named patients. 3. As earlier noted, at this stage of the proceedings, the HCCC has not served its brief of evidence. I was informed by Ms Petrie the evidence will include statements by some or all of the patients identified in the Complaint. 4. Further, at this stage, I do not have the benefit, nor does the practitioner, of seeing what correspondence the HCCC include in the documents relied on to prove the Complaint, including in particular, correspondence with Gentle Dental Care and or the Council. 5. I am conscious that the HCCC is bound by the model litigant policy in civil litigation as applicable in New South Wales and pursuant to which par 3.1 provides: 3.1 The obligation to act as a model litigant requires more than merely acting honestly and in accordance with the law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations. Essentially it requires that the State and its agencies act with complete propriety, fairly and in accordance with the highest professional standards. 1. On the state of the evidence before me, I am not satisfied that substantial relevance is established or that it is "on the cards" that the production of email correspondence between the patients and Gentle Dental Care will assist determination of matters in issue. Further, I am satisfied that it is premature to seek from Gentle Dental Care the correspondence between it and the HCCC or the Council. I reach that conclusion because leave has already been granted to inspect all documents produced in the appeal proceedings and the HCCC has not served all material on which it relies. Gentle Dental Care should not be required to expend time and costs on collating and producing documents already available to the parties and which, if relevant, will be relied on by it in its proof of the Complaint. 2. Accordingly, I am satisfied, at this point in time, that leave should not be granted in respect of the draft Summons sought to be issued on behalf of the practitioner. 3. I am, however, satisfied that there is a genuine forensic purpose demonstrated by the HCCC in respect of the obtaining of complete patient records from Gentle Dental Care for those patients who are subject of the Complaint. It is apparent from the schedule to the practitioner's draft Summons that there are a number of corporate entities for each of the practices conducted at respectively Tahmoor, Wetherill Park, Campbelltown, Liverpool and Double Bay. It therefore appears to me it would be prudent, if the HCCC have not already done so, that appropriate searches should be conducted of the corporate entities and the draft Summons proposed to be issued is, if appropriate, amended accordingly in respect of the entities to whom it is directed. 4. In determining not to grant leave to the practitioner to issue the Summons for the documents sought by him at this point in time, it may be that after documents are produced by Gentle Dental Care and associated companies pursuant to the HCCC Summons, and the parties have inspected those documents, and witness statements have been served on the practitioner, the issue of any further Summons can be determined by the Registrar, or if required, by me as the List Manager. Orders 4 to 9 sought by the practitioner and provision of documents 1. It is convenient I now address the second and third issues identified by the practitioner's senior counsel. At the same time I will address, in general terms, issues concerning the admissibility of the expert report and/or whether that is an issue for a Case Conference or for determination by the presiding member at the hearing. 2. Proposed order 4 is as follows: The HCCC provide Dr Al-Mozany with (1) unredacted copies of Dr Geenty's expert reports; (2) Dr Geenty's CV; and (3) copies of all communications between the HCCC and Dr Geenty concerning or relating to Dr Al-Mozany in any way within seven days. 1. Proposed order 5 is as follows: The HCCC to advise Dr Al-Mozany whether or not Dr Geenty has provided a Subsection 30(3) Statement other than the one dated 30 June 2020 and to provide copies of any such Subsection 30 (3) Statements within seven days. 1. Proposed order 6 is as follows: The HCCC provide Dr Al-Mozany with its response to the letter dated 8 February 2021 concerning Dr Geenty discussing Dr Al-Mozany's matter with colleagues within seven days. 1. Proposed order 7 is as follows: The HCCC provide Dr Al-Mozany with its response to the letters dated (1) 5 February 2021 concerning the HCCC's First Brief provided to Dr Geenty; and (2) 9 February 2021 concerning the HCCC's Second Brief provided to Dr Geenty within 14 days. 1. Proposed order 8 is as follows: The HCCC to provide Dr Al-Mozany with a copy of the Statement of Facts provided to Dr Geenty with the HCCC's letter of 12 March 2020 within seven days. 1. Proposed order 9 is as follows: The HCCC to identify to Dr Al-Mozany the facts that Dr Geenty was asked to assume concerning Patients A to N within seven days. Consideration — proposed orders 4 to 9 1. I commence by noting that the exhibits to Mr Canton's affidavit include Dr Geenty's first report which deals with Patients A to J. The report is undated. It refers to attaching at Appendix "A" a copy of Dr Geenty's curriculum vitae. Paragraph 3.1 of the report lists the documents provided by the HCCC to Dr Geenty. The documents listed include records obtained from Gentle Dental Care and a Statement of Facts (also noted as Annexure A to the report). At 6.3 of the report Dr Geenty acknowledges that he has read the Tribunal's procedural direction in respect of Expert Evidence and he agrees to abide by the experts' Code of Conduct set out in the procedural direction. 2. At 6.2 of his report Dr Geenty states "I have discussed the matter with two colleagues in a generalised de-identified and hypothetical way. They are": [the colleagues' names have been redacted by the HCCC in the copy of the report provided to the practitioner's solicitors]. 3. On 20 March 2020 the investigating officer at the HCCC wrote to Dr Geenty. The letter notes the HCCC has obtained further material about five of the patients addressed in the first report and now seeks a further report in respect of patients identified as K to N. The supplementary report prepared by Dr Geenty (in the template form provided by the HCCC) is dated 14 April 2020. This report also refers to Dr Geenty's curriculum vitae being annexed to his report. Dr Geenty notes that he has not discussed this report with any colleague. The HCCC's submissions 1. In broad terms, the HCCC asserts that it is premature to consider orders 4 to 9 prior to the service of its brief of evidence. It is further submitted that the practitioner is seeking, at a preliminary stage, to challenge the admissibility of the expert report, or the reliance which may be placed on it, rather than this occurring at a Case Conference (when all material is filed) or at the hearing. The practitioner's submissions 1. The practitioner's submissions note that notwithstanding the order made on 15 January 2021 the HCCC has not complied with that order. 2. The practitioner seeks that he be provided with an answer to a request about whether or not Dr Geenty provided a statement pursuant to s 30(3) of the Health Care Complaints Act 1993 (NSW) prior to preparing his two reports. It is not in dispute that Dr Geenty signed a statement on 30 June 2020. 3. I accept that, on the evidence currently before me, it appears that Dr Geenty did not sign the required statement until after he had prepared his reports. I accept that his reports may be subject of challenge on that basis noting that the requirements of s 30(3) are mandatory, but I note the certificate ultimately provided does not disclose any financial or other interest which would preclude Dr Geenty's report being used in the proceedings if the requirements of s 30(4) are satisfied. 4. I turn then to the request made to the HCCC to provide information about the colleagues with whom Dr Geenty discussed the patients, or some of them, before preparing his first report. 5. The Tribunal's Procedural Direction 3 governs how expert evidence is received in proceedings, including proceedings such as these where the rules of evidence do not apply. Paragraph 19 of the procedural direction mandates, amongst other matters, that the expert set out his or her qualifications as an expert on the issue the subject of the report. Thus, I am satisfied that no later than when it serves its evidence relied on to prove the complaints, the HCCC must provide its letters of instructions to the expert, any statement of facts provided and the expert's curriculum vitae. 6. I accept that, rather than the HCCC being put to the time and expense of providing the relevant documents "piecemeal" to the practitioner's solicitors, all necessary and relevant documents should be provided when the HCCC serves its brief of evidence. I propose to make orders requiring service of the HCCC's documents. 7. I turn then to the issue of Dr Geenty discussing matters in issue with two unnamed colleagues and whether it is relevant and necessary for those colleagues to be identified. Although the Tribunal is not bound by the rules of evidence in respect of admissibility in health profession disciplinary proceedings (as distinct from proceedings under the Legal Profession Uniform Law (NSW)) the exposition of the law by Heydon JA (as his Honour then was) in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 provides useful guidance. At [85] his Honour explained: In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R [1999] HCA 2; (1999) 197 CLR 414, on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise" (at [41]). (Emphasis added.) 1. I note however the comments of Branson J in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 234 FCR 549; [2002] FCAFC 157 at [14] which are focussed not so much on admissibility of an expert report but rather on the weight which may be afforded to it. 2. The disclosure of the colleagues' names raises two issues. First, are the opinions expressed by Dr Geenty based wholly or substantially on his own knowledge? If not, then even though the reports may be admitted it will be a matter for the Tribunal hearing the disciplinary proceedings to consider what weight should be given to Dr Geenty's opinion about particular patients. Clearly, as he did not discuss the patients referred to in the second report that report appears to have been based wholly on his own specialist knowledge. 3. The question I must determine is whether the colleagues' names should be provided. As a matter of procedural fairness to the practitioner, I accept he may wish to cross-examine the colleagues to establish the extent, if any, that Dr Geenty's opinions are independent or influenced by his colleagues' views. I am satisfied therefore that proposed order 6 should be made. 4. I am satisfied that it is not in accordance with the objects of the NCAT Act or the conduct of proceedings under the National Law that orders 4, 5, 7, 8 and 9 should be made. To do so would incur unnecessary time and costs. Any outstanding matter can be raised by the practitioner's lawyers after the service of the HCCC's brief. 5. It is also appropriate at this stage I record that the submissions of senior counsel for the practitioner appear to challenge both the admissibility and weight which may be given to the expert reports of Dr Geenty in the proceedings. I am satisfied that determination of the admissibility and/or weight which may be given to the reports is premature until the reports and the annexures are served on the practitioner. This issue may require attention at a Case Conference particularly if the practitioner relies on his own expert evidence and it is appropriate for directions to be made for an expert conclave. Provision of documents 1. Proposed orders 10, 11 and 12 each seek in broad terms that the HCCC provide copies of correspondence between the HCCC and the Council and Gentle Dental Care including all s 34A notices. 2. It is unnecessary that I examine in detail the proposed orders. I am satisfied that many, if not all, of the documents sought such as s 34A notices are likely to be included, as the normal custom, in the HCCC's brief. Any deficiency in the provision of documents can be addressed at a Case Conference after service of the HCCC's material. Accordingly I decline to make proposed orders 10, 11 and 12. Strike out of various particulars 1. The practitioner seeks in proposed orders 13 and 14 that I strike out or summarily dismiss various particulars in par 4; 6(d) and (e); 8(a), (b) and (c); 9(c)(ii); 11(c)(ii); 12(a) and (b); 15(b)(iii); and 18(b) as it is asserted these complaints are not founded on the evidence of Dr Geenty. It is submitted that each of these particulars is based on evidence of an "internal officer of the Dental Council made in October 2018". 2. The submissions advance the proposition that the internal officer's report has been produced without reference to the procedural direction and without reference to the HCCC's Guidelines for Experts. It is further asserted that the Council officer only had incomplete records and the USB containing the records provided to the officer has been lost. 3. Reliance is placed on s 53 of the NCAT Act in support of orders to make proposed orders 14 and 15. 4. Section 53 of the NCAT Act, which is found in Part 4 dealing with practice and procedure, provides as follows: 53 Amendments and irregularities (1) The Tribunal may, in any proceedings, make any amendments to any document (for example, an application or appeal) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice. (2) Any such amendment may be made— (a) at any stage of the proceedings, and (b) on such terms as the Tribunal thinks fit, but may only be made after giving notice to the party to whom the amendment relates. (3) If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise. (4) The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings. 1. It is important to remember that s 53 is subject to s 35 of the NCAT Act. 2. Section 35 and the notes thereto provide as follows: 35 Application of Part Each of the provisions of this Part is subject to enabling legislation and the procedural rules. Note— The Division Schedule for a Division of the Tribunal may, in some cases, make special provision for the practice and procedure to be followed in connection with certain proceedings allocated to the Division for determination. The provisions of the Division Schedule prevail to the extent of any inconsistency with the provisions of this Part. See section 17(3). Section 4(4) also provides that any provisions of this Act that are expressed to be subject to the procedural rules have effect subject to any exceptions, limitations or other restrictions specified by the procedural rules. Enabling legislation may also make provision for matters relating to practice and procedure in relation to functions conferred on the Tribunal, including (for example) specifying periods within which applications or appeals under that legislation are to be made. 1. The circumstances when the practice and procedure provisions of the NCAT Act are inapplicable because the enabling legislation "covers the field" or a provision is inconsistent with the provisions of the enabling Act are cogently explained by Sackville AJA in Medical Council of New South Wales v Lee [2017] NSWCA 282. Section 165L of the National Law sets out the Tribunal's powers to make defined interlocutory orders. That section does not provide power for the Tribunal to amend a complaint or to strike out parts of a complaint. Although the constitution of the Tribunal to make an interlocutory order (as such an order is defined in the NCAT Act) is provided in s 165(5A) it is not without doubt that interlocutory orders in proceedings under the National Law, other than those set out in s 165L, can be made (relying on the definition of an interlocutory order in s 3 of the NCAT Act). 2. It is asserted on behalf of the practitioner that Dr Geenty does not refer to the identified particulars now sought to be struck out in his reports. Rather it appears that, when its evidence is served, the HCCC will rely on a report of Dr Robert Smith (Dr Smith), an orthodontist, to support the particulars, being his report prepared for the Council. I accept there is some confusion caused by or conflict between the HCCC's response to a request for further and better particulars and the statement in the Council's email of 5 September 2019 which states "Dr Smith is a Professional Officer of the Dental Council, not an expert". 3. However, it is unnecessary that I decide the issue of whether I have the necessary power under the NCAT Act or the National Law to strike out the particulars identified. This is because I have concluded it is not appropriate, at this point in the proceedings when the evidence on which the HCCC proposes to rely to support the Complaint has not been served, to determine if a particular or particulars are supported by expert evidence. It may be that Dr Smith will be qualified as a second expert in the HCCC's case. Conversely, it may be, if the identified particulars are not supported by expert evidence and proved to the satisfaction of the Tribunal at the hearing of the disciplinary proceedings, those particulars will not be established and this may reflect in any costs orders made at the conclusion of the proceedings. 4. I decline to make orders 13 and 14. 5. Proposed order 15 also seeks the strike out of a number of particulars. I decline to make this order on the same basis I have rejected proposed order 14. 6. The practitioner's orders sought include proposed order 16. Although framed as a request to a response for further and better particulars, the gravamen of this issue is the fact that the HCCC seeks to rely on record keeping guidelines which were in force at the time of the treatment of the patients but are asserted to be now "retired". It appears to me that the issue of reliance on the guidelines is a matter of relevance and/or weight to be considered by the Tribunal at the final hearing if record keeping complaints are still pursued by the HCCC. I am satisfied that this issue can best be addressed by the HCCC's consideration of whether it maintains a particular based on the guidelines in any Amended Complaint filed. I decline to make order 16. Requests for further and better particulars and provision of DICOM data and USB 1. The provision of DICOM data and a USB is sought in proposed order 1 of the practitioner's application. The nature of DICOM data is explained in Mr Canton's affidavit. It is asserted that Patients A to N had Cone Beam CTs taken at Gentle Dental Care and that these Cone Beam CTs produce DICOM data. 2. It is asserted at par 47 of Mr Canton's affidavit that "it appears that the HCCC had the DICOM Data concerning Patients A to J since October 2019. Yet the HCCC has not provided the DICOM Data for any of the patients to Dr Geenty." 3. Before me, Ms Petrie submitted the assertions about the DICOM data are incorrect, and the DICOM data had only recently come into the possession of the HCCC. She submitted information that Gentle Dental Care had earlier provided this data to the HCCC was not correct. 4. Doing the best I can on the material before me it appears it is not in dispute that: 1. the HCCC now have the DICOM data; 2. that data may be relevant to any expert opinion (I note that Dr Geenty received only "still" photographs of the patients); and 3. both parties should be able to provide the DICOM data to any expert they retain. 1. Accordingly I propose to make order 1 but deleting from it the words "provided to the HCCC on 17 October 2019 in response to a Section 34A notice within seven days". 2. Proposed order 2 deals with Invisalign material produced in the s 150 proceedings and which is now in the possession of the practitioner's solicitors. Having regard to Order 1 of the orders made by the Hon Frank Marks on 13 January 2021 it appears unnecessary that I make the order sought. However, for the avoidance of any doubt, as the order refers to the appellant but not the HCCC, I will make the order as generally sought by the practitioner. 3. Proposed order 17 contains 8 sub-paragraphs and seeks responses to requests for further and better particulars in respect of 8 of the patients the subject of the Complaint. The letters of request were provided to me in a folder of documents relied on by the HCCC. The particulars sought canvass matters which are independently sought in the orders proposed by the practitioner including matters relating to the DICOM data. The particulars request information about whether or not the HCCC had obtained a treatment plan for particular patients. The practitioner's solicitors' letter in respect of Patient G directs attention to a particular which asserts the practitioner failed to obtain a signed consent form, and reproduces an image of the patient's signature and a date of 31 March 2017. 4. From my preliminary assessment of the requests for further and better particulars it appears that the expert report of Dr Geenty, if relied on at the final hearing, may require the provision of a supplementary report. It also appears that relevant documents such as the DICOM data were not available to Dr Geenty, and that the provision of all Invisalign material and consent documentation may require the filing of an Amended Complaint. 5. I propose therefore, at this stage of the proceedings, not to make proposed order 17 but rather to make directions for the filing of an Amended Complaint and all of the HCCC's material by 31 May 2021. That period will provide an opportunity for all relevant material to be obtained including any additional material produced by Gentle Dental Care. Adopting this approach is likely to minimise costs and time to the parties and will not cause procedural unfairness to the practitioner because he will then know with a degree of certainty the case he has to meet. I also note that he can in the interim seek to have his part-heard appeal determined. 6. I also propose to make directions for the practitioner to serve a Reply and his evidence by 16 July 2021 and to appoint a Case Conference on 23 July 2021 at 2pm. At that conference, any request for further and better particulars then deemed necessary may be canvassed. Proposed order 18 1. This proposed order requires the parties to confer about the matter generally within the next seven days. I do not propose to make this order, but I would encourage the parties, if possible, to narrow the issues in dispute before the proposed Case Conference. Costs 1. Neither party sought that I make an order for costs. I propose to reserve the costs of the parties competing applications. Orders 1. That on or before 5 May 2021 the Health Care Complaints Commission provide to Dr Saad Abdul-Hassan Al-Mozany (the practitioner) a copy of all relevant DICOM data and any USB provided by Gentle Dental Care. 2. That both parties may have access to Invisalign material produced by Aligntech Pty Ltd in respect of Patients D, K and N in the practitioner's appeal proceedings (proceedings 2018/00385500) for the purpose of these proceedings. 3. Leave is granted to the Health Care Complaints Commission to issue a Summons directed to Gentle Dental Care Group Pty Ltd and/or associated entities. 4. That on or before 7 May 2021 the Health Care Complaints Commission provide the practitioner with its response to the letter dated 8 February 2021 concerning Dr Joseph Geenty discussing the practitioner's matter with colleagues. 5. Health Care Complaints Commission may serve on the practitioner on or before 31 May 2021 an Amended Complaint, if any, including an amended schedule to include Patient N. 6. Health Care Complaints Commission is to serve on the practitioner on or before 31 May 2021 all material on which it seeks to rely in support of the Complaint. 7. The practitioner is to serve on the Health Care Complaints Commission a Reply by 16 July 2021. 8. The practitioner is to serve on the Health Care Complaints Commission all material on which he seeks to rely by 16 July 2021. 9. The matter is listed for a Case Conference on 23 July 2021 at 2pm at John Maddison Tower, 86–90 Goulburn Street, Sydney. 10. Order 2 of the orders made on 15 January 2021 is discharged. 11. Health Care Complaints Commission's application filed 8 March 2021 is otherwise dismissed. 12. The practitioner's application filed 10 March 2021 is otherwise dismissed. 13. The costs of the competing applications are reserved. ********** 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: 30 April 2021