Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ghosh v Medical Council of NSW [2019] NSWCA 264 Hearing dates: 21 October 2019 Decision date: 21 October 2019 Before: Barrett AJA Decision: 1. Order that paras 4, 8, 9 and 10 of the amended notice of appeal filed on 21 October 2019 be struck out. 2. The appellant pay the respondent's costs of the notice of motion filed on 11 October 2019. 3. Vacate the existing directions as to the filing of further submissions and direct in lieu as follows: that the respondent's submissions be filed and served by 4:00pm on 28 October 2019; and that any submissions in reply of the appellant be filed and served by 4:00pm on 31 October 2019. Catchwords: PROCEDURE – motion seeking dismissal of appeal for want of due despatch or because no reasonable cause of action shown or because the appeal is an abuse of the process of the Court – no matter of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), cl 29 of Sch 5 Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 13.4, 13.4 Cases Cited: Ghosh v Medical Council of NSW [2019] NSWCA 25 Shaw v State of New South Wales [2012] NSWCA 102 Category: Procedural and other rulings Parties: Dr Ratna Ghosh (appellant) Medical Council of NSW (respondent) Representation: Counsel: A Williams (appellant) O Jones (respondent) File Number(s): 2018/389585 Publication restriction: N/A Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Occupational Division Citation: [2018] NSWCATOD 186 Date of Decision: 20 November 2018 Before: ADCJ Knox SC, G Dore, L Cotterell, S Lovrovich File Number(s): 2018/8057 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] judgment 1. In these proceedings, Dr Ghosh (whom I shall call "the appellant") challenges a decision of the New South Wales Civil and Administrative Tribunal (or "NCAT"), made in its Occupational Division on 20 November 2018, imposing a condition that she not practise as a medical practitioner. 2. At this point, I am dealing with a motion filed by the respondent Medical Council on 11 October 2019, seeking an order that the appeal be dismissed for want of due despatch (Uniform Civil Procedure Rules 2005 (NSW), r 12.7(1)), or because no reasonable cause of action is shown (r 13.4(1)(b)), or because the appeal is an abuse of the process of the Court (r 13.4(1)(c)). 3. The chronology should be recited in some detail. 4. On 18 December 2018, the appellant filed a notice of intention to appeal. A notice of appeal was filed on 8 February 2019, together with a notice of motion seeking referral for pro bono legal assistance. That motion was heard on 18 February 2019, and a referral to a barrister was made, limited to advice on prospects of success: Ghosh v Medical Council of NSW [2019] NSWCA 25. 5. On 5 March and 3 April 2019, the proceedings were adjourned to allow time for receipt of the barrister's advice by the appellant. On 15 May 2019, the barrister informed the Court that he had not completed his advice because certain documents were needed. On 12 June 2019, the barrister appeared for the appellant, informed the Court that he had advised the appellant as to her prospects of success, that the appellant had not accepted his advice, and that in accordance with the bar rules, he had withdrawn his representation. 6. Also on 12 June 2019, the legal representative of the respondent Medical Counsel informed the Court that a short adjournment had been agreed to allow the appellant to amend her notice of appeal and that if there were no amendment, the respondent would seek summary dismissal. The barrister who had advised the appellant and who was in attendance stated that the appellant intended to obtain legal representation and to make those amendments. 7. Directions were then made that an amended notice of appeal and written submissions be filed and served by 10 July 2019 and that the matter be listed for further directions on 17 July 2019. 8. Nothing was filed and served by 10 July 2019. 9. At the directions hearing on 17 July 2019, the appellant sought a further two weeks for the filing and service of the amended notice of appeal and written submissions. An extension was granted to 31 July 2019, and the matter was stood over to 7 August 2019. 10. Nothing was filed and served by 31 July 2019. 11. On 7 August 2019, the appellant was represented by a solicitor who said that she had instructions to brief counsel, and sought further time for the filing and service of the amended notice of appeal and the written submissions. An extension was granted until 23 August 2019, and the matter was stood over to 28 August 2019. 12. Nothing was filed and served by 23 August 2019. 13. At the hearing on 28 August 2019, the same solicitor appeared and said that she had only received volume 2 of the Blue Book the day before. By consent, the time for the amended notice of appeal and written submissions was extended to 25 September 2019. Directions were also made for filing and service of the respondent's submissions and for the appellant's submissions in reply. At the same time, the matter was listed for a two day hearing, commencing on 6 November 2019. 14. On 15 September 2019, the respondent was informed that the solicitor who had appeared for the appellant on 7 and 28 August was no longer acting for the appellant. On 23 and 24 September 2019, there was correspondence between the parties which resulted in an agreement that the appellant should have until 2 October 2019 to file and serve the outstanding material. In that correspondence, the respondent put the appellant on notice that if she did not meet that deadline, it would seek summary dismissal, something indeed that had already been clearly foreshadowed at the 17 June 2019 directions hearing. 15. On 30 September 2019, the respondent was informed by yet another solicitor that he had been retained by the appellant. At that solicitor's request, the respondent furnished him with a copy of the notice of appeal. It also informed him that an application for summary dismissal would be made if the 2 October deadline was not met. 16. The 2 October deadline was not met. The appellant herself contacted the respondent on that day, asking for an extension until 9 October 2019. That request was refused. 17. On 8 October 2019, the appellant emailed the Registrar of the Court of Appeal, asking that the forthcoming directions hearing be vacated; and the respondent, by like email, declined to consent to that course. 18. A directions hearing took place on 9 October 2019. The appellant informed the Court that she was in the process of obtaining new counsel, and that she wanted an extension of time and a list of available hearing dates. The respondent, for its part, sought an order vacating all current orders and vacating the hearing dates. The Registrar indicated that he would not vacate the current orders or the hearing dates, without a notice of motion. He also directed that the appellant file and serve the amended notice of appeal and written submissions by 16 October 2019, at the same time listing the matter for directions today. 19. This morning, before 9.30am, the appellant submitted several documents through the e-filing system. It is obvious that all were prepared without legal assistance. One is entitled "Amended notice of appeal" and another is entitled "Appellant's submissions on appeal". In a literal sense, therefore, the long outstanding directions were complied with before Court hours this morning, although not, of course, as to timing. What I mean by this is that documents appearing to be intended to satisfy the directions were filed but not within the required time. 20. When the matter came before me this morning, on referral from the Registrar, the respondent moved on its motion for summary dismissal. The appellant was represented by Mr Williams who had come into the matter only on Friday. He had virtually no knowledge of the case. Mr Williams sought an adjournment of the motion, which I refused, being of the opinion that the appellant had been on notice for a very long time of the respondent's intention, and had had more than adequate opportunity to prepare for the hearing of the motion that the respondent had filed. Mr Williams indicated that he did not know whether he would be briefed to appear on the hearing of the appeal. 21. As I have said, default in compliance with the directions concerning an amended notice of appeal and submissions have now been complied with in a strictly literal sense, albeit not in accordance with the time specifications laid down by the Court. That causes the emphasis now to be on the second part of the respondent's motion concerning lack of reasonable grounds and abuse of process. 22. As to the first of these alternatives, the question is whether there is a high degree of certainty that an appeal on the stated grounds will fail and that the case is clearly one in which the Court should intervene to prevent the appeal being litigated: Shaw v State of New South Wales [2012] NSWCA 102 at [32]. As to the abuse of process basis, the same issue regarding lack of prospects of success is raised. 23. The amended grounds of appeal and the submissions in support of them are diffuse and difficult to understand, particularly where, as here, the permitted scope of the appeal from NCAT is confined by cl 29(4)(b) of Sch 5 to the Civil and Administrative Tribunal Act 2013 (NSW) which allows appeal as of right "on any question of law" and appeal, with the leave of the Supreme Court, "on any other grounds". No application for leave to advance "any other grounds" has been sought, with the result that the appeal can be pursued only on questions of law, which of course should be sufficiently set out in the grounds of appeal and supporting submissions. 24. There needs to be found in the grounds of appeal articulation of questions of law which NCAT answered wrongly. As I have said, the grounds are difficult to understand, but aided by the accompanying submissions, I have found enough to make me think that questions of law are arguably raised by some of them. Grounds directed to the failure to consider relevant evidence and to take into account relevant considerations may entail error of law. Grounds referring to denial of procedural fairness and reasonable apprehension of bias much more clearly do so. 25. The problem is to discern from the submissions any coherent basis in support of those grounds. As to the first broad set of grounds I have mentioned, the complaint is overwhelmingly that NCAT made erroneous findings of fact, particularly as to the mental health of the appellant. As to the second set of grounds, there is, I think, just enough said in the submissions to make these arguable, although probably only fairly faintly arguable. 26. Looking at the specific grounds in the amended notice of appeal of today's date, I am of the opinion that, in the context of an appeal of this kind limited to questions of law, several of them are clearly defective or deficient and should not be allowed to progress. The grounds that must be struck out are grounds 4, 8, 9 and 10, which either go wholly to factual matters or raise quite extraneous or untenable issues. In the case of ground 9, for example, it is said that NCAT had no jurisdiction - yet, it was the appellant herself who had invoked the jurisdiction of NCAT. The remaining grounds, that is those other than 4, 8, 9 and 10, should stand and be allowed to go forward, although there must be significant doubt as to how they will fare in the long run. 27. I note in conclusion that the respondent had no practical alternative but to bring this motion, given the egregious default of the appellant in compliance with directions that existed until early this morning. The fact that matters were put on some tenuous basis of regularity (although obviously not as to timing) just before Court hours today, operated significantly to the detriment and prejudice of the respondent who came here today without notice of what would be produced. In the result I make the following orders on the respondent's notice of motion filed on 11 October 2019: 1. Order the paras 4, 8, 9 and 10 of the amended notice of appeal filed today be struck out. 2. Order that the appellant pay the respondent's costs of the notice of motion heard today. 1. There is no order vacating the hearing date [Submissions on directions for further progressing the appeal]. 1. I do, however, vacate the existing directions as to the filing of further submissions, and direct in lieu as follows: that the respondent's submissions be filed and served by 4pm on 28 October 2019; and that any submissions in reply of the appellant be filed and served by 4pm on 31 October 2019. ********** 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: 25 October 2019