Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Parikh [2022] NSWCATOD 116 Hearing dates: On the papers Date of orders: 12 October 2022 Decision date: 12 October 2022 Jurisdiction: Occupational Division Before: The Hon Jennifer Boland AM, Deputy President Decision: 1. The hearing listed for 4 days to commence on 17 October 2022 is vacated. 2. The matter is listed for directions on 25 November 2022 at 9.50am. Catchwords: HEALTH – registration and discipline – complaints – Application to adjourn hearing. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Texts Cited: Guideline 3 - Adjournments Category: Procedural rulings Parties: Health Care Complaints Commission (Applicant) Harshul Suresh Parikh (Respondent) Representation: Health Care Complaints Commission (Applicant Respondent (self-represented) File Number(s): 2021/00257880 Publication restriction: Nil REASONS FOR DECISION Introduction 1. The Health Care Complaints Commission (HCCC) has brought disciplinary proceedings in the Tribunal against Dr Harshul Suresh Parikh (the practitioner). The proceedings are listed for hearing for four days commencing on 17 October 2022. Dr Parikh is self-represented in the proceedings. 2. On 7 October 2022 the practitioner forwarded an email to the Registrar advising that his mother "had taken ill" in India, that he is an only child, and that he was going to India to care for her. The practitioner recorded that he had advised the HCCC late on the evening of 6 October 2022 that he was travelling to India. The practitioner asks that the hearing be adjourned. 3. On 8 October 2022 the practitioner sent a further email to the Registrar and the HCCC. He noted he had already sent medical certificates, travel documents, airline tickets and attached to the email his airline boarding pass and a copy of a stamp in his passport evidencing his arrival at Mumbai airport. 4. The HCCC wrote to the Registrar on 10 October 2022 by email and confirmed "the HCCC has had an opportunity to consider the respondent's material and that the HCCC remains neutral on the application and does not seek to be heard". The Tribunal's guideline on adjournments 1. In considering the practitioner's request for the adjournment of the disciplinary proceedings I have had regard to the guideline on adjournments applicable to matters in the Tribunal. 2. Guideline 3 (November 2021) sets out the circumstances in which an adjournment of a matter may be sought and provides information about the type of evidence which should be provided by an applicant in support of an adjournment application. Paragraphs 3 and 4 of the guideline provides as follows: 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 Tribunal is guided in its decision making in this area by the objects of the Civil and Administrative Tribunal Act and in health matters, the objects in s 3 and particularly s 3A of the Health Practitioner Regulation National Law as well as principles relevant to modern case management (see Aon Risk Services Australia Limited v Australian National University [2009] HCA 27). 2. The overarching principle to be considered in any application for adjournment is consideration of the question "Where do the interests of justice lie". The practitioner's evidence in support of the application 1. The practitioner has provided the following in support of his application: 1. A medical certificate from Dr Warren Shean dated 5 October 2022. This certificate refers to Dr Shean's belief that the practitioner has a sick family member who is quite unwell. 2. Medical notes from Dr Shabbir M Baldiwala, Consultant Physician and Diabetologist including a medication regime for Nikunj Suresh Parikh with a noted diagnosis of Type 2 Diabetes Mellitus, Hypertension, Rheumatoid arthritis and Right sided CVA (Acute). 3. Notes signed by Dr Baldiwala dated 5 October 2022 record a diagnosis of Acute Stroke requiring urgent hospitalisation. 4. A certificate signed by Dr Baldiwala dated 6 October 2022 disclosing that Mrs Parikh has suffered an acute right sided stroke and requires urgent hospitalisation. The certificate notes: She is an elderly lady living alone with her husband. Patient's only son Dr Harshul Parikh lives abroad and this letter is to help expedite his swift arrival by airport and immigration authorities on humanitarian basis 1. Airline ticket Sri Lankan Airlines for 7 October 2022. 2. Photocopy of immigration stamp (Immigration India) dated 7 October 2022. 1. The practitioner's first email to the registrar dared 7 October 2022 notifies the Tribunal that his mother has taken ill, that he is her only child and that he is going to India to take care of her. He requests an adjournment noting he is not sure when he will be back. 2. In his second email dated 8 October 2022 the practitioner advises that he will not be available on his mobile and only able to check emails periodically "whilst I attend to this emergency of my mum". Consideration 1. I am satisfied on the evidence provided by the practitioner that he has a cogent and valid reason for seeking to adjourn the hearing. 2. I accept that given the practitioner is self-represented, his need to be available for his mother, and the nature of the allegations in the complaint, it is not practical for the matter to be conducted by audio visual link. 3. I have taken into account the likely stress to be caused to the complainant in this case by an adjournment but ultimately have reached the conclusion the matter cannot properly proceed in the present circumstances. Future conduct 1. I am cognisant that a panel has been appointed for the purposes of this hearing and the members have read the material relied on by both parties. It will therefore, if practicable, be important to relist this matter for hearing when the panel members are available, and the practitioner has returned to Australia. 2. I propose to grant the adjournment sought by the practitioner, to vacate the hearings dates and to list the matter for directions in the Health List on 25 November 2022 at 9.50am. If the practitioner is unable to participate by AVL or mobile on that date or at that time, he should forthwith notify the Registrar so that an alternate directions hearing may be fixed. ORDERS 1. The hearing listed for 4 days to commence on 17 October 2022 is vacated. 2. The matter is listed for directions on 25 November 2022 at 9.50am. ********** 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: 12 October 2022