Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Caruana v Dental Council of New South Wales (No 2) [2021] NSWCATOD 193 Hearing dates: On the papers Date of orders: 29 November 2021 Decision date: 29 November 2021 Jurisdiction: Occupational Division Before: The Hon J Boland AM, Deputy President Decision: (1) The hearing fixed for 9 and 10 December 2021 is vacated. (2) The matter is listed for directions only on 4 February 2022 at 9.30am to fix new hearing dates. (3) The costs of the Dental Council of New South Wales for preparation of the hearing up to 26 November 2021 are reserved. Catchwords: HEALTH – Professional registration and discipline – Appeal against decision of Dental Council of New South Wales to suspend Richard Caruana from practising dentistry – Application to adjourn proceedings and vacate hearing dates. Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Caruana v Dental Council of NSW [2021] NSWCATOD 179 Category: Procedural rulings Parties: Richard Charles Caruana (Appellant) Dental Council of New South Wales (Respondent) Representation: Solicitors: Appellant (Self-Represented) Dental Council of New South Wales (Respondent) File Number(s): 2021/00217990 REASONS FOR DECISION Introduction 1. Richard Caruana (the practitioner) has filed an appeal under s 159 of the Health Practitioner Regulation National Law (NSW) (the National Law) against a decision of the Dental Council of New South Wales (the Council) made on 15 June 2021 to suspend him from practising dentistry. 2. The appeal is listed for hearing on 9 and 10 December 2021. A Reply filed by the Council on 4 November 2021 seeks orders that the appeal be dismissed and that the practitioner pay the Council's costs of and incidental to the appeal. 3. On 26 November 2021 the practitioner wrote to the Tribunal and requested that his appeal be adjourned. He was directed to seek the Council's response to his request. Also on 26 November 2021 the Council forwarded an email to the Tribunal with a copy to the practitioner. In the email the Council notes that it consents to the hearing dates being vacated, and requests the matter be listed for directions "at the start of next year". The Council agreed the application could be dealt with "on the papers". 4. The Council also sought an order that "the issue of costs of the Council preparing for the hearing up until today" be reserved. The request for an adjournment 1. In his email to the Tribunal dated 26 November 2021 the practitioner states he is seeking to obtain legal representation following the decision of Principal Member Marks to refuse to permit Ms Serene Teffaha to represent him in the appeal proceedings (see Caruana v Dental Council of NSW [2021] NSWCATOD 179). Ms Teffaha sought to represent the practitioner as a paid agent. The practitioner says he seeks the adjournment "to enable me to locate representation". He also states: "The actions of the Dental Council are nothing short of retaliatory. All faith and confidence will be lost in NCAT if they are going to indulge this brutality by the Dental Council. The adjournment should be provided to me to facilitate my ability to obtain alternative representation. I am in no position to represent myself and any expectation of the same is cruel and unfair". 1. I note and take into account that the Council does not oppose the adjournment sought. The Tribunal's guideline on adjournments 1. The Tribunal has a guideline in respect of adjournments. The guideline contains the following information: "1. This Guideline explains: • the general principles the Tribunal will apply to any adjournment request • when and how a party should ask for an adjournment • what grounds might convince the Tribunal to allow an adjournment • what happens if an adjournment is granted • what happens if an adjournment is refused • the alternatives to asking for an adjournment • any costs consequences for a party who asks for, or causes, an adjournment • specific issues relating to proceedings in the Guardianship Division. It is very important to make any adjournment request as soon as you realise an adjournment is necessary. You cannot assume the Tribunal will allow an adjournment even if all the parties agree." 1. Paragraphs 3 and 4 of the guideline explain as follows: "What are the general principles which the Tribunal will apply to any adjournment request? 3. The overriding principle is that when a date and time has been set for a hearing it will go ahead on that date and at that time, unless the Tribunal allows what is called an 'adjournment'. An adjournment means the Tribunal moves the set hearing date or dates to a later set date or dates. 4. In considering whether to allow an adjournment, the Tribunal will: • take into account the need to manage cases and hearings fairly and efficiently. This includes making sure cases are heard as soon as possible, and • allow an adjournment only if the party requesting it has a good reason and it is fair in all the circumstances to adjourn the hearing." 1. The ultimate matter for determination in any adjournment application is "where do the interests of justice lie". Consideration 1. The practitioner's notice of appeal discloses that the determination of the Council made under s 150 of the National Law was to suspend his registration and hence his ability to practise his profession. Thus the appeal raises matters of a most serious nature. 2. In this case I have taken into account that a panel has been appointed and dates fixed for the hearing. Accordingly, other matters which could have been heard have been delayed due to the priority given to the listing of the practitioner's appeal. This does not support granting the adjournment. 3. However, I do take into account that the practitioner's livelihood is at stake and the appeal is likely to raise complex issues of fact and law. In these circumstances, it is appropriate for the practitioner to have the benefit of legal advice and representation in the event he wishes to instruct a solicitor and/or a barrister to represent him. I also take into account that the Council do not oppose the adjournment. 4. I discern no prejudice to either party if the appeal is adjourned on the basis proposed by the Council, namely that the Council's costs of preparation up to 26 November 2021 are reserved. The appropriateness or otherwise of those costs may be determined at the hearing of the appeal. Orders 1. The hearing fixed for 9 and 10 December 2021 is vacated. 2. The matter is listed for directions only on 4 February 2022 at 9.30am to fix new hearing dates. 3. The costs of the Dental Council of New South Wales for preparation of the hearing up to 26 November 2021 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: 29 November 2021