Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Istephan [2017] NSWCATOD 15 Hearing dates: 5 December 2016 and by written submissions received on 19 December 2016 and 23 December 2016 Date of orders: 24 January 2017 Decision date: 24 January 2017 Jurisdiction: Occupational Division Before: Boland ADCJ, Deputy President Dr F A C Wright, Professional Member Dr A Lang, Professional Member F Taylor, General Member Decision: A preliminary hearing to determine whether Dr Andrew Istephan should be granted a certificate under s 128 of the Evidence Act 1995 (NSW) in respect of his evidence is to be conducted on 16 February 2017. Catchwords: PROFESSIONS AND TRADES – Where practitioner seeks a certificate under s 128 of the Evidence Act 1995 (NSW) – whether the practitioner is compellable – where practitioner proposes a separate hearing at which certificate is granted prior to inquiry into complaint Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Cornwell v The Queen [2007] HCA 12 Council of the NSW Bar Association v Power [2008] NSWCA 135 Ferrall and McTaggart as Trustees for the Sapphire Trust and Ors v Blyton and Blyton and Attorney-General of the Commonwealth (Intervener) [2000] FamCA 1442 Kalid Kaddour v The Queen [2013] NSWCCA 243 Lucire v Health Care Complaints Commission [2011] NSWCA 99 Ollis v Lelissari [2005] NSWSC 1016 Song v Ying [2010] NSWCA 237 Ying v Song [2009] NSWSC 1344 Texts Cited: Ritchie's Uniform Civil Procedure NSW 2005 Uniform Evidence Report 102 (2005) Australian Law Reform Commission Category: Procedural and other rulings Parties: Health Care Complaints Commission (Applicant) Dr Andrew Istephan (Respondent) Representation: Counsel: R Mathur (Applicant) Q Rares (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Abraham Legal Pty Ltd (Respondent) File Number(s): 1520261 Publication restriction: Under Schedule 5D cl 7 of the Health Practitioner Regulation National Law publication of the names of the patients set out in the Schedule to the Application for Disciplinary Findings and Orders filed 16 December 2015 is prohibited except to the parties to these proceedings and the Dental Council of NSW REASONS FOR DECISION Introduction 1. On 16 December 2015 the Health Care Complaints Commission (HCCC) lodged an application in the Tribunal seeking orders under the Health Practitioner Regulation National Law (NSW) (the National Law) against a dentist, Dr Andrew Istephan, (the practitioner). 2. The HCCC asserts the practitioner is guilty of unsatisfactory professional conduct and professional misconduct. It is also asserted that the practitioner is guilty of a criminal offence and that he is not a suitable person to hold registration under the National Law. The practitioner's registration is currently suspended. The schedule to the Complaint annexed to the application (the Complaint) sets out the names of seventy patients who it is asserted the practitioner treated in five aged care facilities. Among matters set out in the Complaint is the assertion that the practitioner treated all patients without their informed consent, or having first obtained substitute consent. 3. It is not in dispute that the practitioner was charged with, and convicted of, assault occasioning actual bodily harm in respect of eight of the seventy named patients in the Complaint. Charges were laid against the practitioner in respect of five additional patients, but these charges were subsequently not pursued by the Office of the Director of Public Prosecutions. 4. At the commencement of the hearing before us the practitioner had been served with all material relied on by the HCCC but that material, for reasons we explain below, had not been lodged in the Tribunal and was not tendered before us. 5. The practitioner's counsel proposes that we should conduct the hearing of this Complaint in two or three stages (a preliminary hearing to grant certificates under s 128 of the Evidence Act, (the s 128 hearing), a hearing to make factual findings about the conduct particularised in the Complaint (the liability hearing) and potentially a third stage to determine appropriate protective orders if any (the orders hearing)). For convenience only, we will refer to s 128 of the Evidence Act in these reasons as "s 128". 6. The procedure orally outlined by the practitioner's counsel, Mr Q Rares (Mr Rares) before us for the s 128 hearing is that he will call the practitioner who, after taking an oath or affirmation, will give evidence confined to his name and address. Thereafter, the practitioner will be available for cross-examination by the HCCC's counsel and may make admissions as to some or all of the complaints or particulars of them set out in the Complaint having first obtained the benefit of a certificate under s 128. Mr Rares then proposes the matter would be adjourned part-heard. Mr Rares did not identify any complaint or particular in respect of which a certificate would not be sought. Before us the HCCC did not object to this proposal, but rather supported it on the basis that if admissions are made it will shorten the hearing time required, and potentially reduce the fifteen volumes of material on which the HCCC presently relies. Subsequently, in written submissions the HCCC qualified its consent to the procedure noting a number of complaints and particulars set out in the Complaint in respect of which it is asserted there is no basis for the granting of a certificate. 7. We raised with the parties a number of concerns about the proposed procedure. These included the divergence in the authorities on the topic of when a certificate should be granted, the lack of any material, other than the Complaint, before us at that point to consider whether an "objection" could be properly considered under s 128 (2), and the effect of the s 128 hearing, if granted, on other professional disciplinary matters before the Tribunal. 8. In response to our concerns about the lack of evidence, Ms R Mathur (Ms Mathur) counsel for the HCCC tendered certificates of conviction, an indictment and a short transcript relevant to the empanelling of the jury at the practitioner's criminal trial. After a request by us, she orally identified the eight patients who were the subject of the criminal convictions and whose names are anonymised in the Complaint, as well as the five patients in respect of whom charges were not pursued. At the conclusion of the hearing on 5 December 2016, to save the cost of potential unnecessary photocopying, for the purposes of this decision only, the HCCC were directed to lodge with the Tribunal a USB (a memory stick) containing copies of all documents served on the practitioner. 9. While it is not in doubt that the practitioner could exercise his right to refuse to answer any question put to him during the course of any cross-examination on the basis the answer may tend to incriminate him and seek a certificate under s 128 at a liability hearing, as we were being asked to adopt a procedure which Ms Mathur candidly acknowledged in her submissions is "unusual" and "novel", we requested each party provide us with written submissions on the issues raised. Submissions were received from Mr Rares on 19 December 2016 and by Ms Mathur on 23 December 2016. 10. While we do not accept all of the submissions made on the practitioner's behalf in respect of a s128 hearing, and taking into account without any final determination, the HCCC's position that the procedure should be confined to only certain complaints and particulars of the Complaint, we have ultimately concluded in the very special and exceptional factual circumstances of this matter, to hold a s 128 hearing, as well as a liability hearing and potentially an orders hearing. Because of the length of time this matter has been in the Tribunal without a final resolution, on 9 December 2016 the presiding member fixed a hearing date for the potential s 128 hearing in advance (16 February 2017) of our decision on that hearing and for a final hearing (26 to 30 June 2017 inclusive). Our reasons for our decision are set out below. Procedural history 1. As noted above, the practitioner has not served any material on the HCCC, nor has he filed any material in the Tribunal. Orders and directions were made in February 2016 for the practitioner to file a Reply and all evidence on which he sought to rely by 27 May 2016 and a case conference was appointed for 22 June 2016. 2. At the case conference the Principal Member then presiding made an order vacating the order that the practitioner file a Reply and any evidence on which he wished to rely. It appears this order was made as the practitioner, for the first time, raised as an issue of concern the potential self-incrimination if he responded to matters set out in the Complaint. A direction was made as follows: 2. Within 14 days the parties must confer and notify the Tribunal in writing: (i) whether they agree to the proposal outlined by Counsel for the respondent to conduct a short hearing prior to the filing of the respondent's material and any further material by the applicant, for the purpose of taking evidence from the respondent about whether he admits to the particulars of the Complaints (ii) of four agreed dates (half-days) from 11 July 2016, they are available to attend a hearing/case conference. 1. The Principal Member's order was amended by her on 14 July 2016 to provide that the notification of convenient dates provided for in Order 2(ii) was to be made to the Tribunal by 12 August 2016. Notification of available dates was made and the matter was listed before us on 5 December 2016. However, on 24 November 2016, the HCCC advised the registry that "we will discuss between the parties whether the respondent will be in a position to file a document outlining admissions he feels he can make without the benefit of protection under s 128". That envisaged document has not been filed. 2. At the hearing on 5 December 2016, Mr Rares submitted that the practitioner would object to admitting some or all of the complaints and particulars on the basis to do so may expose him to further criminal charges. As we have earlier noted, the proposed procedure is that we will be asked to grant a certificate or certificates in respect of those unidentified complaints or particulars set out in the Complaint to which the practitioner objects to answering on the basis his answers may lead to further criminal charges against him. At the conclusion of that process the hearing will adjourn part-heard. It was not clear if the practitioner with the benefit of a certificate would then seek to file material in the Tribunal for the purposes of the liability hearing. 3. HCCC's broad support for the procedure to be adopted is to reduce the volume of material on which the HCCC rely and to which cross-examination is directed. It is submitted this process will shorten the hearing time and be in accordance with s 3 of the National Law. However, counsel for the HCCC did not, in her written submissions, support all of the submissions advanced on behalf of the practitioner in respect of this unusual or novel application. 4. On 5 December 2016 we were provided with several documents by the HCCC which we admitted into evidence including a copy of an indictment, two certificates of conviction, and a transcript of part of criminal proceedings before the District Court of NSW involving the practitioner. To facilitate our consideration of the application we requested that the HCCC provide us with a copy of the material served on the practitioner. The presiding member was provided with a copy of a USB (memory stick) containing the HCCC's documents on 23 December 2016. 5. As the application before us had not been formally documented in any form, nor had the document required by Order 2(i) of the Principal Member's order been provided to us, we set a time-table for the practitioner's counsel to provide details of the procedure he sought we should adopt, orders we should make together with submissions by 19 December 2016. Counsel for the HCCC agreed she could provide submissions on behalf of her client by 23 December 2016. Both parties agreed we would deal with the application "on the papers". 6. Detailed submissions were received from both parties on the dates provided. We take this opportunity to thank counsel for each party for their comprehensive submissions. 7. On 5 December 2016 we identified issues we thought were relevant to our consideration. The broad areas identified were: 1. Do the authorities on granting of certificate under s 128 in civil proceedings support dealing with an objection/s that answering question/s may tend to incriminate the practitioner as a preliminary matter, at a separate hearing, rather than the grant of a certificate if appropriate to do so being during the course of hearing the Complaint? Relevant to the question of a preliminary hearing is whether the practitioner should be required to identify the complaints and particulars of the Complaint which would not involve self-incrimination, and lodge material relevant to those matters forthwith thus shortening any preliminary hearing and perhaps the liability hearing? 2. If the authorities do support the preliminary procedure proposed, could the Tribunal consider properly any objection by the practitioner to giving particular evidence on a particular matter without the benefit of the material on which the HCCC rely to found the Complaint? 3. Absent evidence from the HCCC, how could we identify those matters which had already been subject of criminal convictions or where charges had been laid, but not subsequently prosecuted. 4. Would adopting the procedure proposed result in applications in every case where possible criminal charges could arise for a separate s 128 hearing. Ms Mathur referred to this issue in her submissions as "the floodgates argument" and we have, for convenience, adopted that terminology when discussing this issue in our reasons. 5. Is the proposed procedure compatible with the objects and guiding principles of the Health Practitioner Regulation National Law (the National Law) which is the enabling legislation and/or the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act)? 6. Will the proposed procedure actually shorten the hearing and reduce the volume of material to be relied on by the HCCC and read by us? The application and orders sought by the practitioner 1. As noted above, no formal application was lodged by the practitioner. Two further matters or issues arose at the hearing on 5 December 2016 and are addressed more fully in the written submissions. First, the practitioner's assertion that he is a compellable witness and secondly, that the practitioner will suffer a lack of procedural fairness unless he has the opportunity to obtain the s 128 certificate before he files any evidence. We address each of these matters below. The relevant statutory provisions 1. This application for the s 128 hearing requires consideration of the provisions of the National Law and the CAT Act and the Evidence Act. The National Law 1. We commence our discussion by reference to Schedule 5D cl 2 of the National Law (a NSW provision). This clause deals with the conduct of proceedings by a tribunal. It provides as follows: In proceedings before it, a Committee or the Tribunal is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in the way it thinks fit. 1. Cl. 11 of Schedule 5D provides that it is the duty of the Tribunal to hear inquiries or appeals under the National Law and determine those matters expeditiously. 2. The objects and guiding principles of the National Law include the following: (2) The objectives of the national registration and accreditation scheme are-- (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and … (3) The guiding principles of the national registration and accreditation scheme are as follows-- (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; … 1. If a practitioner admits a Complaint in writing a tribunal may exercise its discretion to determine whether or not it conducts an inquiry into a complaint (s 165H). 2. Notwithstanding the fact that a practitioner may not attend, the Tribunal is not precluded from proceeding with an inquiry into a Complaint as long as the practitioner has been given notice of the hearing (s 165l (a) and s 165J (3)). 3. While issues to be determined in this application essentially involve a question of law, there is no provision in the National Law that enables the application to be determined by a senior judicial officer or an Australian lawyer of more than seven years standing alone as is the case in respect of an appeal on a point of law (see s 165B (4)). Nor does the present application appear to fall within the definition of an interlocutory order as defined in s 4 of the CAT Act, except perhaps s 4(e) which may be determined by the List Manager or an Australian lawyer of more than seven years standing as provided in s 165 (5A) of the National Law. Our reasoning in this regard is fortified by the decision of the NSW Court of Criminal Appeal in Kalid Kaddour [2013] NSWCCA 243. Harrison J with whom Latham J and Garling J agreed, determined that the refusal to grant a certificate under s 128 during a voir dire in a criminal trial was not an interlocutory decision. The Civil and Administrative Tribunal Act 1. The objects of the CAT Act are found in s 3. The objects include s 3 (c), (d), (e), (f) and (g) as follows: 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 (g) to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members. 1. Part 4 (Practice and Procedure) applies to proceedings for professional disciplinary orders in the Occupational Division of the Tribunal, but the Part is subject to the enabling legislation (in this case, the National Law). Section 38 (4) requires the practice and procedure of the Tribunal to be implemented in a manner "so as to facilitate the resolution of issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings". This provision is subject to sub-section (5) which provides as follows: (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions. 1. Section 26 of the CAT Act deals with procedural directions. It is in the following terms: (1) The President may give directions ("procedural directions") relating to the practice and procedures to be followed in, and to the actual conduct of, proceedings in the Tribunal. (2) The procedural directions must be: (a) publicly available, and (b) consistent with this Act, enabling legislation and the procedural rules. (3) Without limiting subsection (2) (a), it is sufficient compliance with that paragraph if procedural directions are published on the website of the Tribunal. (4) Each member, and the parties to proceedings and their representatives, must comply with any applicable procedural directions. 1. Procedural Direction 4 applies to professional disciplinary matters in the Occupational Division. While the Procedural Directions requires the filing and service of a Reply in matters under the National Law, we accept that requirement must be subject to exceptions provided in the CAT Act, or the enabling legislation. For example, a practitioner is not required to set out material in a Reply that would disclose matters in respect of which a claim of privilege under Part 3.10 of the Evidence Act can be maintained. 2. Section 48 of the CAT Act, which is found in Part 4, empowers the Tribunal, of its own motion, to call any witness It provides as follows: (1) The Tribunal may: (a) call any witness of its own motion, and (b) examine any witness on oath or affirmation or require evidence to be verified by a statutory declaration, and (c) examine or cross-examine any witness to such extent as the Tribunal thinks proper in order to elicit information relevant to the exercise of the functions of the Tribunal in any proceedings, and (d) compel any witness to answer questions which the Tribunal considers to be relevant in any proceedings. (2) If the Tribunal decides to call a person as a witness under subsection (1) (a), the Tribunal may: (a) seek to procure the voluntary attendance of the witness before it by notifying the person in such manner as it thinks appropriate in the circumstances, or (b) issue a summons (or direct a registrar to issue a summons) to compel the attendance of the person before it. (3) Nothing in subsection (1) enables the Tribunal to compel a witness to answer a question if the witness has a reasonable excuse for refusing to answer the question. 1. It is not suggested in this case that the Tribunal should call the practitioner as a witness. We will discuss this provision shortly when considering each counsel's submissions of the topic of compellability. The Evidence Act 1. This application is squarely centred on s 128 of the Evidence Act. The National Law does not contain any provision relevant to the Tribunal to enable recourse to be had to this section. This is in contrast to Div 7 of Part 8 (a NSW provision) which requires a person to answer questions posed by an authorised person appointed by the Secretary notwithstanding the answer might tend to incriminate the person (see s 164D). However, s 164D (2) sets out a procedure, which in practice, broadly replicates the objection provision in s 128 (1) of the Evidence Act and prevents an answer given under objection from use in criminal proceedings. 2. Section 128, which has been amended since the introduction of the Evidence Act, and the notes thereto, presently provides as follows: (1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness: (a) has committed an offence against or arising under an Australian law or a law of a foreign country, or (b) is liable to a civil penalty. (2) The court must determine whether or not there are reasonable grounds for the objection. (3) Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness: (a) that the witness need not give the evidence unless required by the court to do so under subsection (4), and (b) that the court will give a certificate under this section if: (i) the witness willingly gives the evidence without being required to do so under subsection (4), or (ii) the witness gives the evidence after being required to do so under subsection (4), and (c) of the effect of such a certificate. (4) The court may require the witness to give the evidence if the court is satisfied that: (a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and (b) the interests of justice require that the witness give the evidence. (5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence. (6) The court is also to cause a witness to be given a certificate under this section if: (a) the objection has been overruled, and (b) after the evidence has been given, the court finds that there were reasonable grounds for the objection. (7) In any proceeding in a NSW court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence: (a) evidence given by a person in respect of which a certificate under this section has been given, and (b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence. Note : This subsection differs from section 128 (7) of the Commonwealth Act. The Commonwealth provision refers to an "Australian Court" instead of a "NSW court". (8) Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned. (9) If a defendant in a criminal proceeding for an offence is given a certificate under this section, subsection (7) does not apply in a proceeding that is a retrial of the defendant for the same offence or a trial of the defendant for an offence arising out of the same facts that gave rise to that offence. (10) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant: (a) did an act the doing of which is a fact in issue, or (b) had a state of mind the existence of which is a fact in issue. (11) A reference in this section to doing an act includes a reference to failing to act. (12) If a person has been given a certificate under a prescribed State or Territory provision in respect of evidence given by a person in a proceeding in a State or Territory court, the certificate has the same effect, in a proceeding to which this subsection applies, as if it had been given under this section. (13) For the purposes of subsection (12), a prescribed State or Territory provision is a provision of a law of a State or Territory declared by the regulations to be a prescribed State or Territory provision for the purposes of that subsection. (14) Subsection (12) applies to a proceeding in relation to which this Act applies because of section 4, other than a proceeding for an offence against a law of the Commonwealth or for the recovery of a civil penalty under a law of the Commonwealth. Notes : 1 Bodies corporate cannot claim this privilege. See section 187. 2 Clause 3 of Part 2 of the Dictionary sets out what is a civil penalty. 3 Section 128 (12)-(14) of the Commonwealth Act give effect to certificates in relation to self-incriminating evidence under the NSW Act in proceedings in federal and ACT courts and in prosecutions for Commonwealth and ACT offences. 4 Subsections (8) and (9) were inserted as a response to the decision of the High Court of Australia in Cornwell v The Queen[2007] HCA 12 (22 March 2007). 1. Notwithstanding Schedule 5D cl 2 of the National Law (which it will be remembered provides that the rules of law do not apply to proceedings under the National Law), by reason of s38 (3) (b) of the CAT Act, s 128 may, in appropriate circumstances, be relied on in professional disciplinary proceedings. Section 38 (3) (b) provides: (3) Despite subsection (2): (a) the Tribunal must observe the rules of evidence in: (i) proceedings in exercise of its enforcement jurisdiction, and (ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and (b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings. The authorities 1. Both parties have helpfully set out in some detail particulars of the relevant authorities on s 128. In her comprehensive submissions Ms Mathur refers to the present state of the law by reference to a number of authorities. We accept as relevant and accurate the summary in her submissions at [13] to [18]. 2. Ms Mathur's submissions commence by referring to the conclusions of the Full Court of the Family Court of Australia (the Family Court) in Ferrall and McTaggart as Trustees for the Sapphire Trust and Ors and Blyton and Blyton and Attorney-General of the Commonwealth [2000] FamCA 1442. In that case the Full Court held that the trial Judge, O'Ryan J, was correct in granting a certificate in respect of a party's evidence in chief (which in the Family Court is given by way of affidavit evidence). The Full Court held: We think the trial Judge was clearly correct in holding that it was within his discretion to grant such a certificate. Firstly, we think it would be unrealistic to limit the availability of a certificate to a situation where a witness is asked a particular question in cross-examination. We think the availability of a certificate clearly applies to evidence given in chief, otherwise an inappropriate forensic advantage would rest with the other party who would be in a position to prevent the question of an objection arising by simply not seeking to cross-examine. 1. In reaching this conclusion, the Full Court preferred the submissions of Mr P Brereton, SC, as his Honour then was, to those of Mr David Jackson QC. Mr Brereton's submission was noted to be to the effect that a broad interpretation should be given to the word "objects" in s 128 (1) and (2) thus enabling a party to give evidence in chief about which he or she would otherwise object on the basis the evidence may tend to incriminate him or her. 2. By contrast the Full Court noted Mr Jackson's interpretation of the word "objects" as follows: Mr Jackson QC for the applicants submitted that the question of whether a certificate should be granted arises only when the witness "objects" to giving evidence and in this regard they refer to the opening words of s.128(1) and the reference in s.128(4) to "overruling the objection". They said that in this case, the husband sought to give evidence and was not objecting to doing so and that as a consequence the terms of the section were not satisfied. 1. Thus, the decision in Ferrall turned on the Full Court's determination that a wide interpretation should be given to the word "objects" in s 128 (1) such that the section could be applied to either evidence given in chief or evidence elicited in cross-examination. 2. Campbell J in Ollis v Melissari [2005] NSWSC 1016 determined that the provision was available for a party giving evidence in reply, in circumstances where a certificate had been granted to the same witness on the same topic during his cross-examination. His Honour explained: It will be seen that the first step in the application of section 128 is the witness objecting to giving particular evidence, on one of the grounds set out in section 128(1). In my view, the expression "if a witness objects to giving particular evidence" is not to be construed in a narrow way, by reference only to someone saying "I object" in response to a particular question, in the course of taking evidence in court, in the way barristers traditionally do. Rather, the expression is to be construed more broadly, so that it also relates to the witness expressing an unwillingness to give the evidence. Further, it seems to me that the "particular evidence" which is referred to is not confined to particular questions, as they are asked one by one. Rather, it is capable of extending to a witness expressing an unwillingness to giving evidence on particular topics. 1. His Honour went on to further explain at [7]: I am strongly influenced in reaching this conclusion by the evident policy behind section 128. Part of that policy is that a way should be provided in which the claiming of a privilege against self-incrimination does not prevent a court hearing a civil case from obtaining relevant evidence, while at the same time to the extent the New South Wales Parliament has power to do so, not prejudicing in a subsequent criminal trial, the person who gives such evidence. That policy would be carried through only imperfectly if a section 128 certificate were not available concerning evidence given in re-examination. Further it would be a fundamental unfairness if a witness were encouraged by the giving of a section 128 certificate, to give evidence in relation to which he had a right to remain silent, and for the topic so opened up not to be able to be clarified by legitimate re-examination, if the cross-examination on that topic left a misleading or incomplete impression. I decline to believe that it was the intention of parliament to bring about a situation which caused that sort of fundamental procedural unfairness. 1. Mr Rares notes in a foot-note to his submissions that Campbell J's view is supported by the learned authors of Ritchie's Uniform Civil Procedure NSW 2005 at [51,135.25]. 2. The topic of when s 128 is applicable in civil proceedings is discussed by the NSW Court of Appeal in Song v Ying [2010] NSWCA 237. The court was dealing with an appeal against a decision of Ward J (as her Honour then was). Hodgson JA, in recording the reasons of the primary judge, noted her Honour had refused a certificate to a party to the proceedings in respect of his evidence in chief. His Honour noted the primary judge had considered the decision of the Full Court of the Family Court in Ferrall but had also taken into consideration apparently contradicting dicta in the High Court in criminal proceedings (Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12) where the plurality expressed doubt "about whether s 128 could apply in circumstances where an accused had objected to a question in chief asked by his counsel, on the grounds that his answer might tend to incriminate him". 3. His Honour further recorded in refusing the certificate in Ying v Song [2009] NSWSC 1344 the primary judge was noted to have determined a party, Mr Song, was not under compulsion to give evidence, and "she expressed disagreement with the view that all that is required is an unwillingness, without a certificate to give evidence, in circumstances where there is no compulsion to give evidence". 4. Hodgson JA, with whom Basten JA agreed, determined the issue was not one of whether a certificate is sought in respect of evidence to be given in chief, or in cross-examination. Rather at [18] his Honour focussed on whether a witness is compelled to give evidence. At [20] he noted: Plainly, in my opinion, if a witness gives evidence in chief because actually compelled to do so (by subpoena and threat of imprisonment), or because of the availability of such compulsion if he or she does not do so, there is no reason why that witness may not object to giving evidence in chief on the ground that that evidence may tend to incriminate. The question in my opinion is not whether the evidence is given in chief or in cross-examination, but rather whether an objection under s 128 is limited to an objection to giving evidence which the witness would otherwise be compellable to give. 1. His Honour agreed with the reasoning of the Full Court of the Family Court in Ferrall that it did not matter whether the certificate was sought in respect of evidence in chief or cross-examination, but concluded the Full Court's reasoning was flawed by reason of its failure to consider whether or not the witness was compellable. 2. While paying respect to the relevant persuasive authority of the Full Court of the Family Court's decision in Ferrall Hodgson JA determined, in the light of conflicting dicta of the High Court, that the Court should make it own determination. He explained at [26]-[27]: In my opinion, it is appropriate to construe s 128 against a background of the common law, where privilege against self-incrimination was relevantly a privilege against being compelled to give evidence that might tend to incriminate; and also against a statutory framework in which witnesses are generally compellable to give evidence. A party giving evidence in chief, in response to questions from that party's own legal representative, is not generally giving evidence which that party is, in any real sense, compellable to give: unless called by another party and asked questions in chief by that other party, a party's evidence in chief is given entirely at the choice of that party and is not evidence that the party is compellable to give at the instance of anyone else. It is true that a party's legal representative can ask questions in chief without specific instructions to ask them; but if the party instructed the representative to withdraw such a question, there would in my opinion be no possibility of the witness being compelled to answer the question, at least unless it was pressed by another party or the judge, in which case no doubt s 128 could apply. 27 In all cases apart from a party giving evidence in chief or re-examination in response to questions from the party's own legal representative, witnesses are compellable to give evidence either at the instance of the party calling them, or the party directing questions in cross-examination, or the judge (if the judge asks questions). It is compellability of this nature that gives sense to the word "objects" in s 128(1) and makes sense of the word "require" in s 128(4). In my opinion, such motivation as a defendant may have to give evidence to avoid having a judgment entered against him or her does not amount to relevant compellability. 1. We pause at this point in our discussion of the authorities to note that we consider the practitioner's position to be in one respect identical to that of Mr Song. We are satisfied the practitioner is not, in the circumstances before us, a compellable witness, although he could be if his attendance was required by the Tribunal pursuant to a Summons to give evidence. Rather, he does not wish to respond to the allegations in the Complaint by filing a Reply and evidence without the benefit of a certificate in circumstances where some of his evidence may tend to incriminate him. That he is not under compulsion to file any documents or even to appear at the hearing is made plain by Basten JA at [125] in Lucire v Health Care Complaints Commission [2011] NSWCA 99 (see also s165l of the National Law). Such a course may, albeit subject to careful consideration and qualifications, lead to the Tribunal drawing an adverse inference if the practitioner does not appear at the hearing and give an explanation for his or her conduct.(see Council of the NSW Bar Association v Power [2008] NSWCA 135.). 2. However, we accept that unlike Mr Song, the evidence the practitioner seeks to adduce with the protection of a certificate is not likely to be favourable to him. 3. The only other case of relevance to which we were directed is the decision of the NSW Court of Criminal Appeal in Kalid Kaddour 4. In Kalid Kaddour Harrison J with whom Latham and Garling JJ agreed followed the reasoning in Song v Ying. The appellant (Kaddour) sought special leave to appeal to the High Court. The special leave application was rejected. The parties' submissions The submissions on behalf of the practitioner 1. At the hearing on 5 December 2016 Mr Rares stressed that a preliminary hearing would save time and expense. Mr Rares acknowledged that there would be no impediment if the Tribunal found, during the course of the liability hearing, that the practitioner objected to answering a question on the basis that the answer might incriminate him, to us granting a certificate under s 128. But he submitted, unless there was a preliminary hearing, the Tribunal would be required to read 15 volumes of material and each party would be involved in more extensive preparation and potentially greater hearing time than would be the case if we had a preliminary hearing. 2. The written submissions relied on by the practitioner are comprehensive. They set out in some detail the procedure to be adopted when a witness objects to giving evidence without the benefit of the protection of a certificate. The submissions also refer to the Australian Law Reform Commission Uniform Evidence Report 102 (2005) (the ALRC report) and the policy considerations leading to the enactment of s 128. It is unnecessary we repeat or summarise those parts of the submissions filed on behalf of the practitioner. 3. The contentious issues arising from the submissions on behalf of the practitioner are twofold. First, it is asserted the practitioner is "compellable". At [23] it is asserted: The HCCC can call the respondent and compel him to give evidence: The HCCC already seeks to question my client in the Tribunal in relation to the allegations it makes against him. It has a right to call all witnesses that have relevant evidence. [The practitioner] both has relevant evidence and evidence specially and exclusively within his knowledge [original emphasis]. 1. The second matter in issue highlighted in the submissions under the heading "Once a witness is called, who compels them to answer questions" At [27] it is submitted that: A failure to allow [the practitioner] to give evidence would be a denial of procedural fairness. A failure to allow the HCCC to question him would be a denial of procedural fairness. …. A failure to allow any party to call a witness that has relevant evidence to give or a failure to allow any party to question any witness with relevant evidence is generally a denial of procedural fairness.[original emphasis] Submissions on behalf of the HCCC 1. Counsel for the HCCC in [2] to [3] of her submissions sets out the procedural history in the Tribunal from the commencement of proceedings on 16 December 2015 to the listing before us on 5 December 2016. Ms Mathur notes at [3] at a Case Conference on 22 June 2016 the practitioner raised "for the first time with the Tribunal a reluctance to file material, which would include admissions to alleged conduct". 2. We note the Case Conference was appointed to facilitate the efficient conduct of the hearing and to fix hearing dates. We pause to also note at this point the practitioner had not complied with any directions made on 5 February 2016, or sought to relist the matter before the List Manager. 3. The submissions go on to note that the HCCC does not, in the circumstances of this case, oppose a course "that facilities the formalisations of admissions, prior to the final hearing". It is submitted at [7] that "admissions prior to the final hearing will confirm those matters not in dispute and allows a focus on the real issues in dispute at the hearing". 4. Ms Mathur refers to some particular features of this matter noting: A unique feature of this case is not only the very large number of patients involved, but also their frailty. All seventy patients are accommodated in nursing homes by virtue of their age, illness, impaired cognition and/or physical disabilities. They are in the most vulnerable patient group. At a minimum, they are key witnesses on the issue of "informed consent". If no admissions are made prior to final hearing, the Commission- in order to meet its onus of proof-will require many (but not all) patients to give evidence- a requirement which would be highly stressful and potentially detrimental to many patients health and well being. It is in the public's interests to avoid having both the patients and their families relive the trauma of what the Commission alleges was clinically unwarranted and invasive procedures. In addition to the calling of patients, many nursing staff and/or family members would also be required to give evidence to meet the issue of informed consent. The Commission submits that if such a situation could be avoided, by permitting the taking of admissions prior to final hearing, it ought be facilitated. 1. Ms Mathur goes on to submit another relevant consideration to take into account in favour of holding a preliminary hearing is that "some of the most serious allegations in the Complaint allege conduct that arguably amounts to criminal battery or assault". She submits that fact "legitimately enlivens consideration of s 128 (2) of the Act". The submissions thereafter set out details of the number of patients named in the Complaint who were the subject of criminal proceedings, that convictions were recorded after findings by a jury in respect of five of the eight patients, and three convictions were as a result of the practitioner's guilty plea. She explains: The conduct which resulted in criminal convictions, involved lack of consent; no clinical indication for procedure and/or the invasive, irreversible nature of the preparation and/or reduction of teeth. The exact same conduct, in varying combinations – is alleged in relation to the balance of patients particularised in the Schedule to the Complaint before the Tribunal. A failure to obtain informed consent is alleged in relation to each and every patient. 1. The submissions, after referring to s 46 of the CAT Act, and the power of the Tribunal to call a witness and "compel" answers to questions go on at [20] to submit that the practitioner is not a compellable witness. The submissions, citing Lucire per Basten JA at [132] as authority state: The Respondent- being a party to proceedings is not a compellable witness, despite sec 46 of the Civil and Administrative Tribunal Act 2013. Contrary to the Respondent's assertion at RWS [23], the Commission cannot compel the Respondent to enter the witness box and give sworn evidence. The Commission can however ask the Tribunal to draw adverse inferences from his failure to give evidence at final hearing- in certain circumstances. 1. The submissions note that the proceedings are not criminal proceedings, but that "the governing statute in the Tribunal permits flexibility so as to accommodate the purposive character of this protective jurisdiction". The submissions go on at [26] to explain why the HCCC does not oppose a preliminary hearing. We will return to that reasoning in our discussion later in these reasons. 2. At [27] the submissions set out the HCCC's response to the contention in the submissions filed on behalf of the practitioner that a refusal to permit the practitioner to give evidence at a preliminary hearing would amount to a denial of procedural fairness or natural justice. It is submitted: Implicit in the Respondents argument is a suggestion that he will in effect be 'silenced' and unable to defend himself if no section 128 certificate were granted at preliminary hearing. We disagree. The Respondent has an unfettered right to serve and file any relevant documentary evidence he wishes to rely upon to outline his defence and/or an explanation and/or relevant subjective material. The Respondent further has an unfettered right to give relevant oral evidence at the final hearing and make full admissions and/or give full explanations motivating his conduct. If a preliminary hearing by way of sworn evidence by the Respondent was refused, and a section 128 certificate was not granted, the Respondent in effect has suffered no procedural unfairness at all. Nothing precludes his full disclosure of matters at any stage, including at final hearing under cross-examination. Unlike the criminal jurisdiction- the disciplinary jurisdiction does not operate under 'discounts' for 'early pleas of guilty'. 1. The submissions suggest that the only matter that may impact on the practitioner is a larger costs if the Complaint (or parts thereof) is proved. But as the submissions go on to note "what orders may or may not be made regarding a costs order, is a separate and distinct issue to the principles governing procedural fairness" 2. The submissions address our concern expressed when the matter was before us on 5 December there was insufficient material before us at that time to determine whether there were "reasonable grounds" to the foreshadowed objections the practitioner would take in cross-examination. It is not in dispute that since the hearing on 5 December 2016 in accordance with our direction a memory stick containing the HCCC's documents has been provided to us. The submissions note "the filed material corroborates that assertion [that a large portion of the Complaint deals with conduct which is similar to the conduct for which the practitioner has been criminally convicted". 3. The HCCC however submit that there are "no reasonable grounds for objection and a certificate under section 128 in relation to [the practitioner] answering questions under cross-examination to the following Particulars/Complaints: Complaint 1 Particular 6: inadequate or poor standard of care Particular 7: Failure to keep adequate records Complaint 2 Particular 6: Failure to keep adequate records Complaint 3 Particular 3: failure to place temporary crowns Particular 4: inadequate or poor standard of care Particular 6: Failure to keep adequate records Complaint 4 Particular 3: failure to place temporary crowns Particular 4: inadequate or poor standard of care Particular 6: Failure to keep adequate records Complaint 5 Particular 3: failure to place temporary crowns Particular 4: inadequate or poor standard of care Particular 6: Failure to keep adequate records Complaint 6 No sec 128 certificate in relation to whether he accepts that the conduct amounts to professional misconduct. Complaint 7 No sec 128 certificate in relation to matters for which he has already been criminally prosecuted and convicted. Complaint 8 No sec 128 certificate in relation to whether he accepts that he is not a suitable person to hold registration as a dentist". 1. In considering the "flood-gates" argument, Ms Mathur acknowledges that such a consideration could enliven policy considerations. In support a preliminary hearing, and arguing against adopting policy considerations in determining the matter, Ms Mathur submits the HCCC's support of the proposed s 128 hearing is "confined entirely to the facts and circumstances of this case, upon consideration of those matters outlined in paragraphs seven to nine above". We note we have set out the essential submissions in [7] and [9] earlier in these reasons. Discussion and conclusions 1. We turn to the issues we identified at the commencement of these proceedings. Do the authorities on granting of certificate under s 128 in civil proceedings support dealing with an objection/s that answering question/s may tend to incriminate the practitioner as a preliminary matter, at a separate hearing, rather than the grant of a certificate being during the course of hearing the complaint? Relevant to the question of a preliminary hearing is whether the practitioner should be required to identify the complaints and particulars of those complaints which would not involve self-incrimination, and lodge material relevant to those matters forthwith thus shortening any preliminary hearing and perhaps the liability hearing? 1. We have already referred to the different approaches to s 128 adopted by the Full Court of the Family Court of Australia on the one hand and the NSW Court of Appeal, and Court of Criminal Appeal on the other. We note the conflict between those decisions insofar as they relate to the granting of a certificate under s 128 to a party giving evidence in chief. 2. We have determined, and there is no disagreement by either counsel on this matter, and as presently advised absent High Court authority on the topic, that we should follow the reasoning of Hodgson JA in Song v Ying. We are satisfied the practitioner is not compelled to give evidence in chief, that the benefit of a certificate could not be afforded to the practitioner if he filed a statement and sought a certificate to cover the evidence in the statement prior to seeking to adduce the statement in evidence. In other words, we do not accept he could follow the procedure found acceptable by the Full Court of the Family Court in Ferral. 3. It follows then that we could either proceed to determine this part-heard matter at a liability hearing when a certificate could be granted during the course of the practitioner's cross-examination, if he determines to attend and participate in the hearing, or conduct a s 128 hearing. 4. In light of Mr Rares oral advice about the procedure he proposes should be adopted at the s 128 hearing (to limit the practitioner's evidence in chief to his name and address) it is arguable that the process to be adopted is one simply to avoid or overcome the fact that the practitioner is not compellable, but wishes to give evidence, but only with the benefit of a certificate first having been obtained. We accept however, that unlike in Song v Ying, some evidence which could be adduced after the granting of a certificate may not be favourable to the practitioner. 5. Further, we have taken into account Ms Mathur's submissions on the process. At [23] she records: The Commission does not perceive that the objective behind the proposed course by the Respondent is to 'manoeuvre' or 'massage' the most favourable evidence in his defence. It appears to have as its primary objective a quick and thereby cost efficient means of identifying and resolving the real issues in dispute. 1. We are satisfied that the HCCC has clearly indicated to the practitioner by means of the submissions now filed, those complaints or particulars of complaint to which it will not address questions in cross-examination. Thus, the areas to which cross-examination will be directed have been identified. This should facilitate the conduct of a preliminary hearing that is limited in time. 2. We agree with Ms Mathur that regardless of whether we conduct a s 128 hearing or only to deal with any objection to giving evidence in reply to answers in cross-examination, the practitioner will not suffer a lack of procedural fairness or breach of the rules of natural justice. 3. In considering whether to hold a preliminary hearing we have taken the following matters into consideration: 1. Our conclusion that the practitioner is not compellable and cannot be granted a certificate other than during cross-examination and perhaps re-examination. 2. The mandate under the National Law that inquiries are to be conducted with expedition. We are concerned that this matter has already been with the Tribunal for over twelve months with initial non compliance with directions by the practitioner. We consider a preliminary hearing on 16 February 2017 should enable the liability hearing (for which dates have been set) to be concluded efficiently within the days allocated or perhaps a shorter period. 3. The sheer number, age, and likely frailty of the large cohort of patients the subject of the Complaint. If the practitioner makes admissions with the benefit of a certificate about all or any of these patients not having given informed consent, or consent having been given by their "person responsible" or a guardian with a function to authorise dental treatment, it is likely such patients will not be required for cross-examination and the Tribunal can rely on the admission and statements filed by the HCCC the liability hearing. This should shorten hearing time, and avoid stressful cross-examination for such witnesses or their persons responsible or guardians. If the authorities do support the preliminary procedure proposed, could the Tribunal consider properly any objection by the practitioner to giving particular evidence on a particular matter without the benefit of the material on which the HCCC rely to found the complaint? Absent evidence from the HCCC how could we identify those matters which had already been subject of criminal convictions or where charges had been laid, but not subsequently prosecuted? 1. It is convenient to address these two identified issues together. Our concerns have been addressed since 5 December 2016 by the HCCC providing the memory stick with the documents, and by the identification in Ms Mathur's submissions of those patients, whose names appear in the Schedule to the Complaint crossed referenced to initials identifying them in the particulars of the Complaint, who were the subject of criminal proceedings. Would adopting the procedure proposed result in applications in every case where possible criminal charges could arise for a separate s 128 hearing. Ms Mathur referred to this issue in her submissions as "the floodgates argument" and we have for convenience, adopted that terminology when discussing this issue in our reasons. 1. This issue was not addressed directly in the submissions received on behalf of the practitioner. Ms Mathur submits that we should decide this case on its own unique facts, rather than policy considerations. 2. We have given primary weight in our determination in this matter to the unique circumstances of the patients the subject of the complaint, but we do not think it proper to ignore policy considerations. Issues relating to case management and the use of scarce judicial resources are highlighted by the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, albeit in the context of a late amendment to a pleading and consideration of the Federal Court Rules. But the discussion in Aon which requires courts and tribunals to have regard to other litigants having their cases heard in a timely and cost effective manner cannot be ignored. Further, there are particular features relevant to disciplinary proceedings which involve different considerations to ordinary civil litigation, particularly when the health and safety of the public are involved. Those proceedings should be heard and determined in a timely manner. Routine or regular use of preliminary hearings to determine whether certificates should be granted under s 128 before a substantive hearing is conducted is likely, absent the type of unique circumstances in this case, to increase hearing time, and lead to unnecessary delays. 3. We also have regard to the practical difficulties which are encountered to constitute and re-constitute a panel that includes a Senior Judicial Officer or Australian lawyer of not less than seven years standing, two professional persons and a lay person. Delays may be experienced by reason of lack of availability of members, particularly of the professional members due to other professional commitments. Also relevant is the cost to the relevant Council (in this case the Dental Council of NSW) and the expense to the public and the parties of multiple hearings Is the proposed procedure compatible with the objections of the Health Practitioner Regulation National Law (the National Law) which is the enabling legislation and/or the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act)? 1. We have to a large degree addressed this question already. We conclude the procedure, in the unique circumstances of this matter, is likely to expedite the final determination of this matter as required by the National Law. The consideration of the granting of the certificate should lead to identification of the real issues in dispute in accordance with the objects and principles of the CAT Act. The procedure to be adopted is in accord with the policy considerations discussed in the ALRC Report and referred to in the submissions made on behalf of the practitioner. Will the proposed procedure actually shorten the hearing and reduce the volume of material to be relied on by the HCCC and read by us? 1. We anticipate the proposed procedure will shorten the hearing. If full admissions are made by the practitioner in writing it may not be necessary to conduct an inquiry into the Complaint. If partial admissions are made it should shorten the hearing. 2. However, we doubt that the granting of a certificate if the practitioner's objection to answering questions posed by counsel for the HCCC is found to be reasonable, it will significantly reduce the volume of material to be read by us. We say this having regard to our obligations under s 165M (2) of the National Law. That provision requires us to set out any findings on material questions of fact, to refer to any evidence or other material on which the findings were based, and give reasons for our decision (see also Council of the NSW Bar Association v Power at [10] and [11]). Conclusion 1. After weighing all relevant factors, as discussed above, and having regard to the present state of the authorities on s 128, we conclude in the unique circumstances of this case we should conduct a s 128 hearing as a preliminary hearing on 16 February 2017. 2. We note as a result of the filing of the HCCC's submissions the particulars in respect of which cross-examination will not be directed have been clearly set out, and we now have the benefit of identification of matters that are already the subject of criminal proceedings. orders 1. A preliminary hearing to determine whether Dr Andrew Istephan should be granted a certificate under s 128 of the Evidence Act 1995 (NSW) in respect of his evidence is to be conducted on 16 February 2017. ********** 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: 24 January 2017