Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bar-Mordecai v Medical Council of NSW [2014] NSWCATOD 158 Hearing dates: 8 December 2014 Decision date: 08 December 2014 Jurisdiction: Occupational Division Before: J Boland AM ADCJ Decision: 1.The application that Boland AM ADCJ be disqualified from further participation in these proceedings is dismissed. 2.Directions made for filing and serving of documents for the substantive hearing. Catchwords: ADMINISTRATIVE LAW – Civil and Administrative Tribunal Act 2013 (NSW) – Where applicant seeks that the List Manager, Health Practitioner Division List recuse herself from the proceedings because of apprehended or actual bias. Where Medical Council has been granted leave to appear – appropriate future conduct of proceedings Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Coroner's Act 2009 (NSW) Health Practitioner Regulation National Law Cases Cited: Batey-Eldon v Batey Eldon [2010] FamCAFC 79 British American Tobacco v Laurie [2011] HCA 2 Re: Baby D (No 2) FamCA 176 Re:Jamie [2012] FamCAFC 8 Re United States Tobacco Company and Australian Federation of Consumer Organizations v the Minister of Consumer Affairs; the Trade Practices Commission and Australian Federation of Consumer Organizations [1988] FCA 317 Texts Cited: Australian Health and Medical Law Reporter (CCH) Category: Principal judgment Parties: Michael Bar-Mordecai (Applicant) Medical Council of NSW (a party to whom leave has been granted to appear Representation: Counsel: P Lowson (Respondent) Solicitors: M Bar-Mordecai (Applicant in person) Crown Solicitors Office (Respondent) File Number(s): 1420297 Publication restriction: Nil EX TEMPORE REASONS FOR DECISION Introduction 1. There are two applications before me today. They are an application by Mr Michael Bar Mordecai, who for convenience, I will refer to as "the applicant". The applicant is also the applicant in the substantive application before the Tribunal. The substantive application is an application under s 163A of the Health Practitioner Regulation, National Law, (the National Law) 2. The first application has been filed on a form of Notice of Motion which I will treat as an interlocutory application before the Tribunal. In that application Mr Bar Mordecai seeks that I recuse myself from further involvement in his substantive application, including exercising my function as List Manager of the Health Practitioner Division List. Second, in the event that I fail to disqualify myself, Mr Bar Mordecai opposes directions being made that require the Medical Council of NSW (the Council) to serve any documents on him without adequate notice to him and he proposes that the Council should not be permitted to sit at the bar table or cross examine at the substantive hearing. He also submits that he should not have to serve any material on the Council. Rather, he suggests the role of the Council should be identical with a member of the public sitting in the hearing room at the substantive hearing. 3. Also listed before me today for consideration was a foreshadowed potential application by the Medical Council of NSW (the Council) to be joined as a party to the proceedings pursuant to s 44 of the Civil and Administrative Tribunal Act (2013) (NSW). But no such application has been made before me. Background 1. I turn briefly to the background to this application. As provided under the National Law, the applicant lodged his substantive application with the Council which referred the application to the New South Wales Civil and Administrative Tribunal. The primary relief sought by the applicant, and which is within the Tribunal's jurisdictional competence, is a reinstatement order. Such an order, if granted, would empower the applicant to apply to the Medical Board of Australia to be reinstated as a medical practitioner. It is not in dispute that the practitioner's registration was cancelled and subsequent applications by him to be reinstated to date have been unsuccessful. 2. The applicant's substantive application was listed before me for directions for the first occasion on 29 October 2014. On that occasion Mr Ginters of counsel appeared for the Council. He made an oral application under s 165J(2) of the National Law for leave for the Council to appear in the proceedings. The leave application was adjourned to enable the applicant and the Council to file material in support of, and in the case of the applicant, opposing the Council's application. 3. The matter was relisted before me on 21 November 2014. On that occasion I was aware that documents or submissions had been filed by the Council on 19 November 2014 in accordance with directions I made on 29 October 2014. I was advised from the bar table by the applicant that he had not received the submissions until the following day. However, both parties were content for the matter to proceed before me on 21 November. I proceeded to hear the application for leave to appear and I reserved my decision. 4. Orders were made and reasons published on 28 November 2014. In summary, I granted leave to the Council to appear at the substantive hearing and to file such material as in its view would assist the Tribunal. 5. I stood the matter over until today for further directions and to deal with an application, if any, under s 44 of the Civil and Administrative Tribunal Act. 6. As requested by me, the applicant rather than addressing correspondence directly to me, wrote to the Registrar by letter dated 4 December 2014 (but date stamp received by the Tribunal on 3 December 2014). I am informed today that a copy of that letter was provided to the Council. In this application, as it does have some relevance, I will mark the letter as Exhibit A. Structure of these reasons 1. I turn now to how I propose to address the issues in these reasons. I propose to first deal with the applicant's application that I recuse myself from further involvement in the proceedings. After I determine the outcome of that application, it may, or may not, render the applicant's application, about how he suggests the substantive matter should be conducted, nugatory. The applicant's submissions 1. The applicant has indicated the basis of his application is as set out in his lengthy written submissions in support of the application. I do not intend in these reasons to detail each and every matter that the applicant raises. I have read each of the submissions and taken those submissions into account. However, I will, for the purposes of these reasons, highlight a number of the matters that the applicant raises in support of his application. The first nine paragraphs of the submissions are drafted on a basis which is indisputable. That is, procedural fairness to the parties and an impartial judicial mind is necessary to determine proceedings. In [8] of his submissions the applicant suggests that I do not exhibit procedural fairness. He says: "Procedural fairness requires an impartial judicial mind that has been lacking in Boland AM DCJ as reflected by the contrived findings against the applicant in her Honour's judgment." 1. He then suggests in [9] that the proceedings were not conducted fairly and that I had, in some manner, asked him or borne upon him to delete certain paragraphs in his material in support of the application which referred to Mr Ginters. 2. I dispute that submission. The transcript would make it very clear the circumstances in which those matters were withdrawn before me. In [10] he points out that I did not respect his rights by requiring the Council to answer each and every one of his lengthy submissions seriatim. 3. The applicant also says in subparagraph (b) that the findings I made were not consistent with a proper administration of justice and that I chose to disregard the fact that the Council did not act as a model litigant in these proceedings or in the former Tribunal proceedings. He thirdly submits that my consideration of his submissions was superficial and was: - meant to water down their force and, furthermore, her Honour Boland DCJ omitted to find the Medical Council had breached the Tribunal order, the service of its submissions by 19 November 2014. 1. I note in that regard the submissions were filed in the Tribunal on that date, but it is not disputed they were not received by the applicant until the following day. The submissions further deal with a number of matters relating to previous proceedings which were not relevant to issues before me. At [15] of his submissions the applicant makes very serious allegations against me. He says: The character defects identified in Boland DCJ with respect to para 8 above is, (a) telling half truth, Defined as a deceptive statement that includes some elements of the truth wherein paragraph 8 is truthful but incomplete in not identifying the Tribunal breach, and, (b) Dishonesty by omission where the conduct of the Medical Council in breaching the Tribunal order with service of the submissions out of time, was relevant, and not included in the finding.[original emphasis] 1. The applicant then proceeds in [18] to deal with some criticisms of my reasons in that he says that I failed to deal with a submission relating to Dr Robert's secretary which he indicates, if accepted, would have led to me finding that the Council had not acted as a model litigant. He also raises again assertions about my character, and I quote from [18] The character defect identified in Boland DCJ with regard to paragraph 23 above is dishonesty by stating that she did not understand. Where the conduct of the Medical Council in failing to analyse the medical documentation to draw cogent inferences by Dr Roberts was not a witness of truth was relevant and not included in Boland's AM's finding.[original emphasis and grammar]. 1. The applicant then refers to the fact that I did not refer to his submission in respect of proceedings in 2008 and 2009 before her Honour Judge Murrell (as her Honour then was) because her Honour had he asserts, "asked impermissible leading questions". In my reasons I did not deal with matters other than those that were relevant to the matters before me and I do not regard any of the matters relating to the 2008 or 2009 proceedings relevant to this application to disqualify myself. 2. The applicant also notes that he did have the right to seek leave to appeal against my interlocutory reasons but has chosen not to do so. I, therefore, do not have regard to those matters which he says are matters which may be capable of correction at appellate level. The relevant law 1. The relevant legal principles to be applied in an application such as the present one are not in doubt. I propose for the purposes of this hearing to refer to reasons in the matter of Batey Elton & Elton (2010) FamCAFC 79, a court of which I was a member. In that judgment at 61 the Court said: The principles which apply in respect of disqualification for actual or apprehended bias are clearly explained in two decisions of the High Court – Johnson v Johnson (2000) 201 CLR 488; (2000) FLC 93-014 and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. In the former case the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) set out the principles relevant to apprehended bias at 492-493 as follows: 11. It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. 12. That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision". The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial". 13. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case". Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. (footnotes omitted) The test to be applied was further expanded by the High Court in Ebner where the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) said at 348: The principle to be applied 19. Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case. 20. This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable. 21. It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise. 22. The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal. 23. Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence. (emphasis added) 1. In Strahan & Strahan (Disqualification) (2009) FLC 93-414 the Full Court (May, Boland and Thackray JJ) at paragraph 5 of their reasons referred to these two decisions as follows: It will be noted that the plurality in Johnson considered it unnecessary to undertake a detailed analysis of the principles relating to apprehended bias, preferring to rely on the test of "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide." The plurality in Ebner articulated a two step process to be used in applying that test in individual cases. The first step is the identification of the matters said to give rise to the apprehended bias. The second step requires consideration of the "logical connection" between the matters identified and the possibility, real not remote, of a deviation from the course of deciding the case on its merits. 1. Their Honours in Strahan went on, at paragraph 6, to refer to the decision of Mason J (as he then was) in Re JRL; Ex Parte CJL (1986) 161 CLR 342 where his Honour said at 352: It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established": Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. (footnotes omitted) The test to be applied in respect of actual bias is set out by their Honours Gleeson CJ and Gummow J in Re Minister for Immigration and Multicultural Affairs; Ex Parte Jia (2001) 205 CLR 507 at paragraphs 72 and 102. 1. Later on in the reasons in Batey-Elton a number of other authorities are referred to. Since the publication of that decision, I am aware and take note that the principles have been reaffirmed by the High Court more recently in British American Tobacco Australia Services Ltd v Lawrie (2011) HCA 2. Discussion and conclusions – apprehended bias application. 1. The applicant makes serious allegations against me. I note from his submissions, which I have earlier summarised, that he infers I would not bring an unbiased mind to his application and that I have shown prejudice, or as he describes it, dishonesty in dealing with his case. While the applicant makes a number of serious allegations against my character, the examples he gives, on my examination, could not be construed as deceitful or dishonest or to demonstrate half truths. In other words, I am satisfied there is simply no basis for this application. 2. As I perceive it, the whole basis of the applicant's application I should disqualify myself is because he is unhappy about the outcome of the Council's application that it be granted leave to appear. I am satisfied the applicant has failed to adduce any substantive evidence which demonstrates actual or apprehended bias. At its highest, his complaint is that there was a breach of my direction for service of submissions on him one day out of time. He had the opportunity at the hearing before me to seek an adjournment because of that delay and did not do so. I am satisfied his application that I should disqualify myself from any further participation in these proceedings should be dismissed and I propose to so order. The Medical Council's participation in the substantive hearing 1. I turn now to deal with the application which would seek to limit the role which the Medical Council can play in these proceedings. The National Law is silent as to what is encompassed when leave to appear is granted. I have looked for guidance on this topic and have turned to other New South Wales legislation. The most relevant legislation that I was able to identify is the provision in the Coroners Act 2009 (NSW) (s 60). That section is in the following terms: (1) A person granted leave to appear or be represented in coronial proceedings may apply to the coroner to have a particular person examined in the proceedings. Such an application can be made before or during the hearing of the proceedings. 1. There is commentary on this and similar inter state provisions in Australian Health and Medical Law Reporter (CCH) as follows: The legislation in each State and Territory give the coroner a broad discretion to determine who may appear at an inquest. Those granted the right of appearance may appear either in person or be represented by counsel or a solicitor. The right of appearance allows such persons to examine and cross examine any witness so long as it relates to matters relevant to the inquest. This right of appearance is generally restricted to any person who, in the opinion of the coroner, has sufficient interest in the subject matter of the inquest 1. I have also looked to the question of where leave has been granted to appear in other proceedings. There are several relevant decisions that I have in the short time that I have had available to me been able to locate which touch upon this issue. The first one is the decision of the Full Court of the Federal Court in Re: United States Tobacco Company and Australian Federation of Consumer Organisations v Minister for Consumer Affairs and Trade Practices Commission and Australian Federation of Consumer Organisations (1988) FCA 317 published on 15 September 1988. The second decision is the matter of Re: Baby D No 2 (2011) FamCA 176 published on 16 March 2011 (in which extensive reference is made to other authorities) and the decision of the Full Court of the Family Court in Re Jamie (2012) FamCAFC 8. In each of these cases either a statutory body or an organisation was granted leave to appear in proceedings where that organisation or body was not a party to the proceedings. 2. The principles on which the leave was granted are cogently set out by the Full Court of the Federal Court in the first decision to which I have referred. Courts have treated the applicant in such matters as a person seeking to appear as amicus curiae. I think the principles are relevant to this particular matter and they make it very clear, as does the decision of the Full Court of the Family Court in Re Jamie, that it is in the discretion of the Court to decide how it will best be assisted by a person or organisation given the right to appear. In each of those cases the right to cross examine has been considered one that was within the competence of the presiding judicial officer to order should occur. 3. I do not believe it is appropriate that I should fetter the discretion of whoever is the presiding judicial officer at the substantial hearing. But from the decisions to which I have referred it appears to me that a right to cross examine a party or a witness, if it would assist the Tribunal, is one that would be likely to be granted. 4. I also reject the applicant's submissions, in which he asserts that the Council's role should be one limited to a right to sit in the hearing room as a member of the public. Such a restriction on the Council would render nugatory the very right of leave to appear which has been granted. Further, it is very clear that the Council will only be able to assist the Tribunal if it has copies of the material which the applicant wishes to file and, further, I am satisfied it would be procedurally unfair to the applicant if any material the Council wished to seek leave to adduce was not served on him. I will accordingly make directions to that effect. ORDERS 1. Grant leave for the applicant to file in the Tribunal an application in the form of Notice of Motion which will be treated as an application in the Tribunal for interlocutory orders. 2. Dismiss the applicant's application that Boland ADCJ be disqualified from further hearing this matter. 3. The applicant shall on or before 12 January 2015 file in the Occupational Division Registry, New South Wales Civil and Administrative Tribunal (the Registry) 5 copies of any further material on which he seeks to rely in support of his application under s 163A of the Health Practitioner Regulation National Law 4. The applicant shall on or before 12 January 2015 serve one copy of the documents referred to in Order 3 of these orders on the Medical Council of NSW (the Council). 5. Pursuant to the leave granted on 28 November 2014 the Council shall on or before 9 February 2015 to file in Registry 5 copies any material which it submits will assist the Tribunal in determining the applicant's application. 6. The Council shall on or before 9 February 2015 serve one copy of the documents referred to in Order 5 of these orders on the applicant. 7. The applicant shall file in the Registry 5 copies of material in reply, if any, on or before 23 February 2015. 8. The applicant shall serve on the Council 1 copy of the material, if any, referred to in Order 7 of these orders on or before 23 February 2015. 9. The application is listed for hearing for five days in the week commencing 16 March 2015 at 10a.m. IT IS NOTED THAT THE APPLICANT asserted an estimated hearing time of two hours. 10. The venue for the hearing shall be notified to the parties by the Registrar. 11. The application is listed for further directions and in particular to assess the time required for the hearing in the week commencing 19 January 2015 other than on 19 January or 21 January 2015). The date and time of the further mention shall be notified to the applicant and to the Council by the Registrar. 12. The Registrar is requested to provide a copy of these orders to the applicant and to the Council. 13. IT IS NOTED THAT the Council is not a party to the proceedings, but has been granted leave to appear under s 165J (2) of the National Law and that the record has accordingly been amended. 14. IT IS FURTHER NOTED THAT the applicant has indicated he wishes to show some material in support of his application to the Tribunal and that it will be necessary for a computer to be available in the hearing room. The applicant's proposed material will be on a USB to be provided to the Tribunal. The relevance of the material shall be determined by the Presiding Judicial Officer at the hearing of the substantive application. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 Amendments 10 February 2015 - medium neutral citation corrected 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: 10 February 2015