Re Michael Bar-Mordecai
[2006] NSWMT 10
•12 December 2006
New South Wales
Medical Tribunal
CITATION: Re Michael Bar-Mordecai [2006] NSWMT 10 TRIBUNAL: Medical Tribunal PARTIES: NSW Medical Board
Mr Michael Bar-MordecaiFILE NUMBER(S): 40023 of 2006 CORAM: Rein, SC DCJ - Pasfield, Dr M - Gordon, Dr R - Mair, Dr J CATCHWORDS: Former medical practitioner's application for review - effect of specification pursuant to s 92(3)(a) Medical Practice Act 1992 of a period within which application for review cannot be brought - whether legislative proscription can be overcome - discussion of powers of Tribunal LEGISLATION CITED: Medical Practice Act 1992 Pt 6 Div 3, ss 87, 92, 94A, 154
Poisons and Therapeutic Goods Regulation 2002 reg 58
Supreme Court Act 1970 ss 75A, 84
Supreme Court Rules Pt 51 r 19
Uniform Civil Procedure Rules Pt 50.3(2)
Wills, Probate and Administration Act 1898CASES CITED: Akins v National Australia Bank (1994) 34 NSWLR 155;
Bannister v Walton (1993) 30 NSWLR 699;
Bar-Mordecai v HCCC [2002] NSWCA 192;
Bar-Mordecai v Hillston [2004] NSWCA 65;
Bar-Mordecai v Rotman (NSWSC, 120009/94, BC9804682);
Bar-Mordecai v Rotman [2000] NSWCA 123;
Ex parte Currie; Re Dempsey [1970] 1 NSWR 617; (1969) 70 SR (NSW) 443;
Ex parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357 ;
Gallo v Dawson (1990) 93 ALR 479; 64 ALJR 458;
John Fairfax & Sons Pty Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465;
Knaggs v Solicitors Statutory Committee (No 2) (1992) 27 NSWLR 603;
Re Zaidi [2006] NSWMT 6;
Rohatgi v Medical Tribunal of NSW (Rohatgi [No 1]) (unreported, NSWCA 20/4/94);
Saville v Health Care Complaints Commission [2006] NSWCA 298;
Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82DATES OF HEARING: 16 November 2006 DATE OF JUDGMENT: 12 December 2006 LEGAL REPRESENTATIVES: Ms K Richardson of counsel (NSW Medical Board)
Mr Michael Bar-Mordecai (in person)ORDERS: 1. Mr Bar-Mordecai’s Notice of Review/Appeal under s 87 of the Medical Practice Act 1992 is dismissed.; 2. Mr Bar-Mordecai’s Notice of Review/Appeal under s 94A and s 92(3)(a) of the Medical Practice Act 1992 is dismissed.; 3. Mr Bar-Mordecai to pay the costs of the NSW Medical Board.
JUDGMENT:
ORDERS
1. Mr Bar-Mordecai’s Notice of Review/Appeal under s 87 of the Medical Practice Act 1992 is dismissed.
2. Mr Bar-Mordecai’s Notice of Review/Appeal under s 94A and s 92(3)(a) of the Medical Practice Act 1992 is dismissed.
3. Mr Bar-Mordecai to pay the costs of the NSW Medical Board.
REASONS FOR JUDGMENT
1 Mr Michael Bar-Mordecai (“Mr Bar-Mordecai”) was the subject of complaints lodged by the Health Care Complaints Commission (“HCCC”) in respect of his practice of medicine in the period 1983 to 1994. The complaints were dealt with by the Medical Tribunal in a judgment of 6 September 2000. The Tribunal was constituted by Judge Cooper as Deputy Chairperson, Dr J Woodforde, Dr J Richards and Ms M Brophy, and we shall refer to that Tribunal as “ the 2000 Tribunal ”.
2 The 2000 Tribunal found that Mr Bar-Mordecai had engaged in improper and unethical conduct in a number of respects which can be summarised thus:
(1) he had commenced a sexual relationship with a patient (Mrs Hillston);
(2) he had continued to treat Mrs Hillston whilst maintaining the sexual relationship;
(3) he had whilst treating Mrs Hillston obtained financial advantages from her;
(4) he had undertaken a course of conduct while treating Mrs Hillston in order to obtain financial benefits from her on her death, including destroying or suppressing her will;
(5) he administered in or about June 1994 30 mg of morphine in one dose to Mrs Hillston, a quantity that was an inappropriate single dose, particularly in her circumstances;
(6) he inappropriately signed a medical certificate of cause of death of Mrs Hillston at a time when he was treating her, considered himself to be a potential beneficiary of her estate and was engaged in a personal relationship with her;
(7) he lied on oath in written and oral testimony in proceedings 12009 of 1994 in the Supreme Court of NSW in relation to the supposed destruction of Mrs Hillston’s will;
(8) he failed to keep a drug register in June 1994 for drugs of addiction in contravention of reg 58 of the Regulations made under the Poisons Act 1966 ;
(9) he disclosed to the husband of Patient B (Patient C) confidential information obtained in the treatment of Patient B.
3 The 2000 Tribunal emphasised that its role was not to punish the doctor but to protect the public and it ordered that the doctor (as he then was) be deregistered, and “that an application for review of these orders may not be made until after the expiration of seven years from the date of this judgment”. The 2000 Tribunal also ordered Mr Bar-Mordecai to pay the costs of the complainant (the HCCC).
4 Mr Bar-Mordecai filed in the Tribunal an application dated 14 September 2006, seeking a review of the 2000 Tribunal’s orders pursuant to s 87 of the Medical Practice Act 1992 (“ the MPA ”). On 31 October 2006, he filed what is described as a Notice of Review/Appeal under s 94A of the Medical Practice Act , amended by consent on 16 November 2006 to “under s 94A and s 92(3)(a)”. It was agreed that s 87 of the MPA is not the relevant section since that deals with an appeal from a decision of a Professional Standards Committee, and it follows that that Notice should be dismissed. It was agreed that the question of competency of the second Notice should be determined on the basis that Mr Bar-Mordecai’s application so far as it relates to the findings and orders of the 2000 Tribunal was brought pursuant to any applicable part of Div 3 of Pt 6 of the MPA (ie ss 92, 93, 94 and 94A). Mr Bar-Mordecai also seeks orders for immediate registration, an order that the government of NSW pay him compensation of $10 million, the setting aside of costs orders previously made by the Tribunal, a public apology, and a suppression order in respect of the judgment of Einstein J in Bar-Mordecai v Rotman (NSWSC, 120009/94, BC9804682).
5 Part 6 Division 3 of the MPA is in the following terms:
“ Division 3 Review of suspension, deregistration or conditions
92 Right of review
(1) A person may apply to the appropriate review body for a review of an order of a Committee, a Performance Review Panel, the Chairperson or a Deputy Chairperson, the Tribunal or the Supreme Court:
(a) that the person is suspended from practising medicine, or
(b) that the person’s name be removed from the Register or that the person not be re-registered, or
(c) that conditions be placed on the person’s registration.
(2) A person may also apply to the appropriate review body for a review of an order made under this Division.
(3) An application for review of an order may not be made:
(a) while the terms of the order provide that an application for review may not be made, or
(b) while an appeal under this Part to the Tribunal or the Supreme Court in respect of the same matter is pending.
93 The appropriate review body
(1) The appropriate review body is the Tribunal except in a case where the order being reviewed provides that it may be reviewed by the Board, in which case the Board is the appropriate review body.
(2) An application for review must be lodged with the Registrar of the Tribunal who is to refer it to the appropriate review body.
94 Powers on review
(1) The appropriate review body is to conduct an inquiry into an application for review and may then do any of the following:
(a) dismiss the application,
(b) by its order terminate or shorten the period of the suspension concerned,
(c) make a reinstatement order,
(d) make an order altering the conditions to which the person’s registration is subject (including by imposing new conditions).
(2) A reinstatement order is an order that the person be registered subject to the same conditions and limitations (if any) to which the person’s registration was subject immediately before the person ceased to be registered. The appropriate review body may also impose conditions on the person’s registration or alter the conditions to which the person’s registration is to be subject under the reinstatement order.
(3) The Board is to cause such recordings to be made in the Register as may be necessary to give effect to a reinstatement order.
(4) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time.
94A Inquiry into review application
(2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision, unless significant fresh evidence is produced that was not previously available for consideration, and the appropriate review body is of the opinion that, in the circumstances of the case, the decision to make the order, or any finding on which the decision was based, should be reconsidered.” [emphasis added](1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned.
6 Mr Bar-Mordecai has in his application identified what he says is “significant fresh evidence” and what he says is “significant new evidence”. The application also contains a section headed “Perversion of the course of justice” with assertions of claimed perversion of justice by the 2000 Tribunal, the HCCC and the NSW Court of Appeal. The oral submissions of Mr Bar-Mordecai expanded his complaints to include four members of the High Court, who had refused his two special leave applications. One of those special leave applications related to the Court of Appeal’s decision in Bar-Mordecai v Hillston [2004] NSWCA 65, and one to its decision in Bar-Mordecai v Rotman [2000] NSWCA 123.
7 The NSW Medical Board (“ the Board ”) on 20 October 2006 filed a notice of motion seeking to have Mr Bar-Mordecai’s application struck out, stayed or dismissed. Essentially the Board’s grounds for the motion are that by virtue of s 92(3)(a), Mr Bar-Mordecai is precluded from bringing his application before 6 September 2007 (ie before the expiry of 7 years from the 2000 Tribunal’s orders), by reason of the proscription against application for review (“ the proscription ”).
8 Ms K Richardson of counsel appears for the Board. Mr Bar-Mordecai represents himself.
9 There was an application by Mr Bar-Mordecai that each of the members of the Tribunal disqualify themselves for various reasons, but that application was not pursued.
10 It was agreed by the parties that the question for determination on the Board’s Notice of Motion is a question of law, and accordingly that the decision of the Deputy Chairperson is the decision of the Tribunal pursuant to s 154(1) of the MPA . To avoid any doubt, it should be noted that the decision and reasons expressed in this judgment are those of the Deputy Chairperson.
11 The Tribunal received written and oral submissions from Ms Richardson and from Mr Bar-Mordecai. Mr Bar-Mordecai handed up some outlines of argument relating to alleged malicious prosecution by the HCCC and alleged conspiracy, (in which latter document Mr Bar-Mordecai has extracted, he says, a portion of the transcript of a video which Mr Bar-Mordecai made – which video is referred to along with two others in the 2000 Tribunal’s decision at pp 33-34) and relied on a document entitled “Applicant’s Defence to Strike-Out Motion”. Leave was granted to both the HCCC and Mr Bar-Mordecai to provide further written submissions, and written submissions from Ms Richardson dated 20 November 2006 and written submissions from Mr Bar-Mordecai dated 27 November 2006 were received.
12 The two questions which arise are first, whether as the Board contends the prohibition against application for review in s 92(3)(a) applies to all reviews of a previous Tribunal decision, where the previous Tribunal has set a period in which an application for review may not be made. The contrary argument proceeds from a position that s 94A is dealing with a review different to the review in s 92 and is not merely explanatory of how reviews pursuant to s 92 are to be conducted. Although this argument seemed to be abandoned at the hearing by Mr Bar-Mordecai, it has been reiterated in his further written submissions and must be dealt with. The second question is whether, if the Act by its express terms precludes an application made within the period of the proscription, this Tribunal has power to disregard the proscription contained in s 92(3)(a).
The effect of s 92(3)(a)
13 Where a doctor has been removed from the register and seeks reinstatement, the application for reinstatement can be on one of two bases. First, the applicant may put his or her application on the basis that the findings and orders of the earlier Tribunal should never have been made and that the currently constituted Tribunal should not proceed upon the basis that the previous findings of fact and orders were correctly made. Second, the applicant may accept the findings of the earlier Tribunal and seek to demonstrate that notwithstanding the misconduct, unprofessional practice or flaws in character that led to deregistration, he/she is now of sufficiently good character and sufficient professional standards and education to justify re-registration: see Ex parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357 on the issue of good character, and see Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 at 99 and Re Zaidi [2006] NSWMT 6 at [42] on the heavy onus faced by a deregistered practitioner. Sometimes the applicant advances both arguments in the alternative.
14 Section 92(3)(a) says that no applications for review can be made within the period within which the previous Tribunal by the terms of orders made by it provided that application could not be made. When a Tribunal imposes a proscription of the kind imposed here, it does not, by specifying a period, thereby indicate that upon the expiry of the relevant period the deregistered practitioner will be entitled to re-registration, but rather only that no application for review and re-registration can be made prior to the end of the specified period. The Tribunal will, if application is made, have to consider whether re-registration is appropriate having regard to relevant criteria. Section 94A(1) says that a review “under this Division” (ie Division 3, reproduced above) is to determine the appropriateness, “at the time of the review”, of the order concerned, and s 94A(2) mandates that the review is not to review the decision to make the order or any findings made in connection with the making of the decision unless two conditions are satisfied:
(1) significant fresh evidence is produced that was not previously available for consideration;
(2) the Tribunal is of the opinion that, in the circumstances of the case, the decision to make the order, or any finding on which the decision was based, should be reconsidered.
15 If both (1) and (2) are met, the Tribunal is then to consider whether to determine the appropriateness of the orders previously made.
16 The words “a review under this Division” make it clear that s 94A is first an adjunct to understanding how the review process is to operate, namely that the appropriateness of the order is to be viewed as at the time of the review, not as at the time that the original order of the Tribunal was made and second, is a restriction on the right of review – namely that there can be no review in the absence of fresh evidence and a satisfaction on the part of the Tribunal in the light of that fresh evidence that, in the circumstances of the case, it is appropriate to reconsider the decision made by the earlier Tribunal. If and only if those two requirements are met, may the Tribunal then proceed to reconsider the earlier findings and orders and either conclude that the previous decision should stand or not.
17 The distinction between “fresh evidence” and “further evidence” is well developed in relation to the NSW Court of Appeal: see s 75A(8) of the Supreme Court Act 1970 , Supreme Court Rules Pt 51 r 19, and see Akins v National Australia Bank (1994) 34 NSWLR 155 at 160E-F. Where the deregistered practitioner seeks to attack the findings and orders of the earlier Tribunal the requirements of s 94A must be met. A question arises as to whether s 94A has any application to a case in which the deregistered practitioner is not seeking to attack the findings and orders of the earlier Tribunal but rather puts his or her case solely on the basis of a reformation of character, or of his or her overcoming a fundamental lack of knowledge or skill that led to deregistration. Evidence of reformation of character since the earlier Tribunal decision would be fresh evidence not previously available – whether it is significant or not would depend on its extent and quality. If s 94A is read as covering all reviews, then the passage of time alone could not found an application for re-registration, but that is clear from the decisions dealing with the onus placed upon the party seeking re-registration in any event: see [13] above. It is not necessary to resolve that question in this matter because if s 94A is not relevant then the only source of a right of review is s 92, and Mr Bar-Mordecai does seek to attack the findings and orders of the 2000 Tribunal decision, which makes s 94A relevant.
18 Section 94A, as the heading indicates, involves an inquiry into matters pertinent to the review. It does not provide a separate and discrete review process devoid of the contents of other sections in the Division. Those other sections define the appropriate review body, the powers of review, and specifies who may apply for review.
19 Section 92 delineates the matters which are available to be reviewed. Section 92(1)(b) refers to an order for removal. Section 92(1) nowhere mentions an order specifying the period in which an application for which review may not be made, as a subject of review. It follows in the Tribunal’s view that the MPA does not permit any application to be made to the Tribunal before the expiry of the period specified in accordance with s 92(3)(a), whether challenging the findings and orders of the earlier Tribunal or not, and even if based on significant fresh evidence not previously available.
20 In Rohatgi v Medical Tribunal of NSW (Rohatgi [No 1]) (unreported, NSWCA 20/4/94) the Court of Appeal considered that the Tribunal, in failing to review findings made by an earlier Tribunal, had fallen into error because the Tribunal had considered that it was not open for it to embark upon such a review. The Court of Appeal held that a Tribunal could take the view that it was not appropriate to review the findings of the earlier Tribunal but should not regard itself as unable to do so. The MPA did not at that time contain s 94A.
21 The Board has drawn to the Tribunal’s attention the decision in Saville v Health Care Complaints Commission [2006] NSWCA 298 in which Basten JA (with whom Handley and Tobias JJA agreed) said at [14]:
“One of the anomalies to which the President may have been referring [this was a reference to the judgment of Mason P in Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82] is that under s 94(1) the Tribunal may conduct “an inquiry into an application for review” and may, amongst other things, vary the period of suspension, reinstate the practitioner to the record, alter the conditions to which the registration is subject (including by the imposition of new conditions) or may dismiss the application. Further, the review may extend to a review of the original order made by the Tribunal if there is significant fresh evidence produced to it: s 94A(2). If that evidence provides a basis for concluding that there was no professional misconduct in a particular case and the practitioner should not have been deregistered, but the Tribunal erroneously rejects the material, the practitioner has no right of appeal. Alternatively, if the fresh material arguably justified a different exercise of the disciplinary power, which was not undertaken, the broader rights of appeal (not limited by reference to relief available under prerogative writs), but available under s 90(1)(b), would be unavailable when the matters were raised by way of review.”
22 Saville was a case concerned with an appeal pursuant to s 90(1) from a decision of a Tribunal hearing an appeal from a decision of a Professional Standards Committee under s 87.
23 As Mr Bar-Mordecai pointed out in para 10 of his written submissions, Saville was not concerned with the date of review.
24 Mr Bar-Mordecai, in his further written submissions, incorrectly describes the Rohatgi judgment as authority for the proposition that the Tribunal “should re-examine its original judgment on a review application”. As I have noted, Rohatgi is authority for the proposition that prior to the introduction of s 94A, the Tribunal had power to review earlier findings and orders if it thought it appropriate to do so.
25 It seems that the amendment to the MPA in the form of s 94A had regard to the decision in Rohatgi (No 1) . The Second Reading Speech to the Medical Practice Amendment Bill 2000 contained the following:
Accordingly, the bill provides at clause 94A of schedule 1 that the review is not to revisit the correctness of the original decision unless significant fresh evidence is produced that was not previously available and the review body is of the opinion that in the circumstances of the case the original decision should be reconsidered.”“The Medical Practice Act contains comprehensive avenues of appeal and review. The Medical Tribunal, the chairperson and deputy chairpersons of which are District Court judges, are primarily responsible for reviewing disciplinary orders. As a result of several court cases, review applications now permit the original findings that resulted in disciplinary orders being made to be revisited and the original matter essentially re-heard. Clearly, the onus in these types of proceedings should be on the applicant demonstrating that his or her circumstances have changed and that registration with or without particular conditions is appropriate in the circumstances.
26 Both the Second Reading Speech and the passage from Saville support the view that the review in question is a review under s 92 and that s 94A regulates the matter capable of review.
27 Mr Bar-Mordecai relied on a letter dated 25 September 2006 sent by the Board. He interpreted the letter as asserting that a review based on significant fresh evidence was not subject to the proscription imposed pursuant to s 92(3)(a). The Tribunal does not read the letter in that way and Mr Bar-Mordecai accepted that the letter was open to an alternative interpretation since it does clearly state in the second paragraph that the Board’s view is that no application can be brought before September 2007. In any event the letter cannot be relied on as a formal admission nor is any estoppel asserted (and nor could it be).
Power to ameliorate the effect of s 92(3)(a)
28 Mr Bar-Mordecai propounded an argument that the Tribunal has “an unwritten power” “beyond the Act”: see para 2 of Mr Bar-Mordecai’s written submissions of 27 November 2006. He urged the Tribunal to “be innovative”, to be a “roving tribunal for correcting a miscarriage of justice” (T60.30), to provide checks and balances to what he described as “a miscarriage of justice”, “malicious prosecution” by the HCCC, “fraud and perjury” of the witnesses before the Tribunal, “wilful misjustice”, “conspiracy” by an earlier Tribunal and Judges of the Supreme Court who have acted in such a way, he claims, as to deprive him of six million dollars of Mrs Hillston’s estate and of his livelihood as a medical practitioner, and other species of alleged wrongdoing by many judges at various levels of the judicial hierarchy including members of the Court of Appeal and the High Court. See T25-27, T35, T50-55, T60.
29 The interpretation for which he contended, he said, would permit justice to be done and prevent perpetuation of a miscarriage of justice. The supervisory jurisdiction, he argued, was based on the need for justice overarching any legislative restriction.
30 Mr Bar-Mordecai illustrated the point with an example which can be synthesised thus:
Assume a practitioner is found by a tribunal to have murdered a patient, notwithstanding his denial, and is deregistered with a “no-application” order with a seven year period specified. Two years after this, another person owns up to killing the patient. The seven year period stands and the practitioner could not on the approach which the Board urges do anything, he says.
31 There are, I think, three answers to his contention. The first and short answer is, as Ms Richardson submitted, that this Tribunal is a statutory Tribunal whose powers are those conferred by relevant legislation. The Court has no powers to ignore or step around mandatory restrictions imposed by the MPA . If a section or subsection was ambiguous and one way of reading the subsection led to the wider aspects or interests of justice being served then it would be open to the Tribunal to adopt the more expansive interpretation rather than the narrow. No such ambiguity was identified or asserted.
32 It was said in Ex parte Currie; Re Dempsey [1970] 1 NSWR 617; (1969) 70 SR (NSW) 443:
“The [Medical Tribunal] is purely a statutory tribunal subject to the well-recognized limitations of power of such an [inferior court or tribunal]. If the power does not flow from the Act as properly construed, it cannot exist. The jurisdiction of an [inferior court or tribunal] is defined by the Act of Parliament by which it is constituted or such general provisions of statutes which extend such jurisdiction. It is in connection with jurisdiction that lie the chief distinctions between superior and inferior courts. Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court … Such a tribunal is not invested with those powers which are commonly exercised by courts of supreme judicature such as the Supreme Court of this State or higher tribunals.”
See also John Fairfax & Sons Pty Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476 per McHugh JA, and Knaggs v Solicitors Statutory Committee (No 2) (1992) 27 NSWLR 603.
33 It is no part of the Tribunal’s role to override the clear and express terms of the legislation, even were it to consider that some injustice in a broad sense had occurred. In saying that, the Tribunal is not to be understood as accepting that here there is or might be any basis for the very serious and grave allegations made against highly respected judicial officers and former Tribunal members by a person who feels aggrieved by decisions that have, in the main, been unfavourable to him and his interests.
34 The second answer is that using the hypothetical example to which reference has been made, and assuming there to be no issue as to the facts of the hypothetical case, then it would almost certainly be open to the wronged practitioner to apply to the Court of Appeal for leave to appeal out of time. That Court, as part of a superior court of record, has a wide inherent power to ensure that the interests of justice are met: see UCPR Pt 50.3(2) and the notes at [50.3.10] of “Ritchie’s Uniform Civil Procedure”, LexisNexis; and see Gallo v Dawson (1990) 93 ALR 479; 64 ALJR 458.
35 Mr Bar-Mordecai in the context of the discussion of the question of whether there would be a remedy for the hypothetical practitioner wrongly accused of a significant crime and deregistered, made the point that if he were required to make any application to the Court of Appeal he would face considerable difficulties because he has, he says, been declared a vexatious litigant pursuant to s 84(1) of the Supreme Court Act 1970 . The particular consequence of his having been declared a vexatious litigant cannot impel this Tribunal to take a view of the legislation that would otherwise be inappropriate. A question arose in the course of submissions as to whether Mr Bar-Mordecai would need the leave of the Court of Appeal to bring an application before the Tribunal but it is not necessary to consider that point.
36 Mr Bar-Mordecai requested that the Tribunal order or declare that he could make application to the Court of Appeal to appeal out of time. Not only does this Tribunal have no power to order the Court of Appeal to do anything (the Court of Appeal is the Court to which appeals from this Tribunal’s decisions can be brought and it has authority over this Tribunal in the chain of precedent) or to make declarations of the kind under discussion, but there is no clear admission of guilt by a third party of the type described in the hypothetical example that exonerates Mr Bar-Mordecai, and Mr Bar-Mordecai has already previously appealed to the Court of Appeal in relation to the 2000 Tribunal decision. This links to the third point.
37 The arguments of Mr Bar-Mordecai all proceed on the premise that Mr Bar-Mordecai’s assertions of errors, wrongdoing and conspiracy have a factual basis, and upon the premise that they involve significant fresh evidence that was not available to the 2000 Tribunal.
38 For the reasons already given, it is not strictly necessary for this Tribunal to consider the arguments that Mr Bar-Mordecai proposes to advance on his application for review, since if the Tribunal has no power to entertain them, the presence of merit is irrelevant, and if it has power to entertain them, the apparent absence of merit is also irrelevant for present purposes, but since so much of Mr Bar-Mordecai’s argument for disregarding of the proscription is based on his assertions of injustice it should be noted that Mr Bar-Mordecai’s arguments, other than those that involve attacks on the integrity of various judicial officers of other Courts, seem to focus on issues in respect of the 2000 Tribunal that were considered by the Court of Appeal in Bar-Mordecai v HCCC [2002] NSWCA 192: see at [8]-[10], [25] and [38] (de facto relationship point), and [21]-[24] (administration of morphine). The asserted discrepancy between the findings as to the existence of a de facto relationship by the Court of Appeal in Bar-Mordecai v Hillston and the 2000 Tribunal was itself considered in Bar-Mordecai v HCCC at [7]-[10].
39 Mr Bar-Mordecai also attacks the findings of the 2000 Tribunal as biased and he went even further in his oral submissions before this Tribunal, seeking to impugn the integrity of Judge Cooper (and as with other judicial officers and former Tribunal members, apparently based on no more than them making findings adverse to Mr Bar-Mordecai). The Court of Appeal in rejecting Bar-Mordecai’s appeal from the 2000 Tribunal’s decision noted his claims of bias and perjury, and remarked that a preference for one witness’ evidence over another “cannot be the basis for any allegation of bias”, and referred to the function of fact finding by the Tribunal (see [35] and [36]) and the limited nature of the appeal available (see [2]) per Beazley JA, with whom Meagher JA and Pearlman AJA agreed.
40 Mr Bar-Mordecai appears to wrongly characterise the 2000 Tribunal’s views about the de facto relationship. The 2000 Tribunal made it clear that it did not regard it as necessary to resolve the question of whether Mr Bar-Mordecai and Mrs Hillston were in a de facto relationship for the purposes of the Wills, Probate and Administration Act 1898 and did not regard the findings of Einstein J in Bar-Mordecai v Rottman as binding upon it: see pp 7-8 and 14-15 of the 2000 Tribunal decision in Exhibit “A”. The 2000 Tribunal accepted Mr Bar-Mordecai’s own evidence (see Exhibit “A” p 5) that there was a close personal and sexual relationship that commenced three weeks after the death of Mrs Hillston’s husband and continued thereafter, and on that basis concluded that it was inappropriate for him to have continued to treat Mrs Hillston.
41 The question of whether the existence of a long term personal and sexual relationship between a doctor and patient could in the circumstances as revealed by the evidence before the 2000 Tribunal continue to constitute a breach of the obligations of the medical practitioner, was answered adversely to Mr Bar-Mordecai. The refusal of Mr Bar-Mordecai to then see any error in his conduct, and evidence that he had sexual relations with other patients only compounded the concerns of the 2000 Tribunal: see pp 11-12, 71 and 72 of Exhibit “A”. If there is a discrepancy between the Court of Appeal’s decisions in Rotman and in Hillston (because in the first the finding of absence of a de facto relationship was confirmed on appeal, and in the second it was overturned on appeal), it may be explicable on the basis of a difference in the evidence presented before Einstein J on the one hand or Bryson J (as he then was) on the other. Whether or not that is so, neither finding is relevant to the 2000 Tribunal decision because the 2000 Tribunal eschewed any need to resolve the question of the existence of a de facto relationship. Mr Bar-Mordecai asserted that its failure to do so was an error of law, but that alleged failure was rejected by the Court of Appeal.
42 The only avenue open to a practitioner who feels aggrieved by an order deregistering him and the imposition of a proscription, prior to expiry of the time specified in the Tribunal decision, is to challenge the deregistration on a point of law (s 90(1)(a)) and or to challenge the proscription as to its duration or formulation pursuant to s 90(1)(b). Both those avenues have been taken by Mr Bar-Mordecai and he has been unsuccessful in his challenge to the 2000 Tribunal’s conclusions in both respects.
43 I think Mr Bar-Mordecai is correct in his assertion that there is an integral relationship between the order for deregistration and the period within which the practitioner is precluded from applying for re-registration. The legislature obviously intended that the decision of a Tribunal made up of four members would have a significant degree of finality – with scope for correction by the Court of Appeal if there has been an error of law and/or a wrongly formulated or excessive period of proscription for review. Restrictions on the right of appeal are well known in the civil jurisdictions eg leave required in matters involving less than $100,000, special leave requirements for High Court appeals, limits on appeals from magistrates’ decisions, and even in relation to criminal matters before a jury there are some restrictions on matters that can be agitated on appeal by a convicted person.
44 The consequences of deregistration are significant and often far more significant than judgment in a civil court – that is why the Tribunal is required, in reaching its conclusions on factual matters, to have regard to the seriousness of the conduct in respect of which it is being asked to make findings: see Bannister v Walton (1993) 30 NSWLR 699 at 711F, 712D, 734E and 734G.
Conclusion
45 The Tribunal accepts the contentions of the Board that:
(1) Section 92(1) specifies the orders of an earlier Tribunal which may be reviewed by the newly constituted Tribunal, and an order that an application may not be made within a specified time is not one of them. Nor is an order for costs.
(2) Section 94A provides a filter mechanism for reviews under s 92, and does not itself create a separate right of review.
(3) The proscription in s 92(3)(a) (against bringing an application for review within the time specified) applies to all reviews of the orders and findings of an earlier Tribunal.
(4) The Tribunal has no power to override the proscription against application within a specified period even where there is evidence of, or at least a prima facie indication of, some unfairness to a deregistered person.
46 In the view of the Tribunal the application of Mr Bar-Mordecai has been brought in contravention of s 92(3)(a) of the MPA and should be dismissed. It is not therefore strictly necessary to deal with the question of the additional prayers for relief in the Application for Review although it is clear that the Tribunal has no power to make orders of the kind sought by Mr Bar-Mordecai in (c) to (g) and that would be a separate and additional basis (quite apart from their scandalous form) for striking out those prayers for relief.
Costs
47 The Board seeks an order that Mr Bar-Mordecai pay its costs of the motion and the Tribunal accepts that, as the unsuccessful party, Mr Bar-Mordecai should pay the Board’s costs of these proceedings.
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