Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dowla [2018] NSWCATOD 52 Hearing dates: 6 April 2018 Date of orders: 06 April 2018 Decision date: 06 April 2018 Jurisdiction: Occupational Division Before: Boland ADCJ, Deputy President Associate Professor M Krause, Senior Member Dr A Reid, Senior Member J Barker, General Member Decision: 1. The proceedings are listed for a directions hearing on 3 August 2018 at 9.30am. Catchwords: PROFESSIONS AND TRADES – where presiding member has become unavailable – where Tribunal is reconstituted – where original published decision did not correctly reflect the decision of the panel Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law Category: Consequential orders (other than Costs) Parties: Health Care Complaints Commission (Applicant) Dr Mohammed Shareef-Ud Dowla (Respondent) Representation: Counsel: A Britt (Applicant) C Jackson (Respondent) Solicitors: Director of Proceedings, Health Care Complaints Commission (Applicant) Avant Legal (Respondent) File Number(s): 2017/00083334 Publication restriction: The Tribunal orders that any disclosure of the name or other identifying particulars of the patient whose name is set out in the schedule to the complaint and who is identified as Patient A is prohibited otherwise than is required by the parties for the proper conduct of the proceedings. Order made under Health Practitioner Regulation National law (NSW) Sch 5D cl 7. ex tempore REASONS FOR DECISION BOLAND ADCJ 1. The Tribunal has reconvened today in a reconstituted form to correct, on the record, an error in the reasons which were initially published in this matter on 8 March 2018. 2. This matter was originally listed before a panel comprised of his Honour, Acting Judge O'Connor, Associate Professor M Krause, Dr A Reid and Ms J Barker. Each of the members, except Acting Judge O'Connor, are present today in the hearing room. 3. Unfortunately, Acting Judge O'Connor has unexpectedly become unavailable to continue in this matter. As a consequence, following notification to both parties by the Tribunal, an Instrument of Re-constitution was signed by Acting President N Hennessy, LCM on 4 April 2018. I have been substituted for Acting Judge O'Connor as the Presiding Member of the panel for the Stage 2 hearing. 4. Since his Honour Acting Judge O'Connor became unavailable, a panel member, diligently if I may say so, on checking the published reasons, realised an error had been made and that the published reasons did not reflect the Tribunal's decision. On notice to the Registrar of this fact, the reasons, which had been published on NSW Caselaw, were accordingly removed. 5. As the error in the published reasons does not appear to be one falling within the criteria established in s 63(3) of the Civil and Administrative Tribunal Act 2013 (NSW) it was determined by the President that the Tribunal should be reconstituted to hear and determine the protective orders in this matter and for the panel members who sat with Acting Judge O'Connor to confirm, on the record, their findings in respect of the Stage 1 hearing. 6. As the published reasons indicated, in error, at [8] and at [102] that Associate Professor Krause dissented, in part, and that his separate reasons followed in the written decision, he and the other panel members will now take the opportunity to confirm, on the record, that the published reasons at [8] and [102] were wrong and did not reflect Associate Professor Krause's decision, or that of the whole panel. The panel decision was unanimous in all respects in its findings and conclusions. PROFESSOR KRAUSE 1. I confirm that my decision in this matter was in accordance with all other members of the then constituted panel. DR A REID 1. I confirm the panel decision was unanimous. MS J BARKER 1. I confirm the panel decision was unanimous. BOLAND ADCJ 1. The Tribunal's reasons for decision originally published on 8 March 2018 will now be republished on NSW Caselaw together with these supplementary reasons. 2. The Tribunal is advised that the practitioner now instructs new solicitors. He has instructed his new solicitors to file a Notice of Intention to Appeal in the NSW Court of Appeal. 3. In these circumstances, the Tribunal will not today fix a time-table and hearing dates for the Stage 2 proceedings. We note that, as no final orders have been made by the Tribunal, the conditions on the practitioner's registration imposed by the Medical Council of NSW remain operative pending further order of this Tribunal or the Court of Appeal. 4. For completeness, we also note that s 165C (2) of the Health Practitioner Regulation National Law does not apply because Acting Judge O'Connor has not "vacated office", rather he is unavailable for an indefinite period. Thus, in the event that the practitioner does not proceed with his appeal to the NSW Court of Appeal, this reconstituted panel can hear the Stage 2 proceedings and make appropriate protective orders. 5. We have therefore determined that the matter should be listed before the Presiding Member, or in her absence, the Acting List Manager, on 3 August 2018 at 9.30am for further directions. orders 1. The proceedings are listed for a direction hearing on 3 August 2018 at 9.30 am. ********** 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 12 April 2018 - typographical error DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 April 2018