Civil and Administrative Tribunal New South Wales Medium Neutral Citation: EFQ v Medical Council of NSW [2020] NSWCATOD 135 Hearing dates: 20 February 2020 Date of orders: 26 November 2020 Decision date: 26 November 2020 Jurisdiction: Occupational Division Before: Le Poer Trench ACDJ, Principal Member Decision: (1) The Appellant is refused leave to file/make an appeal against the order of the Medical Council made 24 October 2018 which imposed conditions upon her registration as a medical practitioner. (2) The Appellant is to pay the costs of the Medical Council thrown away by the change, on the first day of the hearing (20 February 2020), in the nature of the appeal which the Appellant would conduct should she be granted leave. (3) The Appellant is to pay the costs of the Medical Council in relation to this hearing. (4) The name of the Appellant be shown in all reporting of this decision as EFQ, the pseudonym allocated to the practitioner by the Tribunal. (5) The name of any patient referred in the evidence in this proceeding not be published. Catchwords: PROFESSIONS AND TRADES – health and professionals – medical practitioners – disciplinary proceedings –Appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Court Suppression and Non-publication Orders Act 2010 Health Practitioner Regulation National Law (NSW) Medical Practice Act 1992 (NSW) (repealed) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Ameisen v Medical Council of NSW [2015] NSWCATOD 49 Australian Securities and Investments Commission v DJL and The Central Authority [2000] HCA 17 Edensor Nominees Property Ltd (2001) 204 CLR 559 Fryer v HCCC [2015] NSWCATOD 177 Ghosh v Medical Council of NSW [2020] NSWCA 122 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Quan (Publication Application) [2019] NSWCATOD 160 Health Care Complaints Commission v Reid (Publication Application) [2019] NSWCATOD 31 House v The King [1936] HCA 40; 55 CLR 499 Lindsay v NSW Medical Board [2008] NSWSC 40 Reinhart v Welker (2011) NSWLR 311 Ristevski v Medical Council of NSW [2016] NSWCATOD 18 Steel v Medical Council of NSW [2020] NSWCATOD 77 Texts Cited: Nil Category: Principal judgment Parties: EFQ (Appellant) Medical Council of NSW (Respondent) Representation: Counsel: P King (Appellant) A Stafford (Respondent) Solicitors: Medical Council of NSW (Respondent) File Number(s): 2019/00344001 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure and or publication of the name of the medical practitioner who has been allocated the pseudonym "EFQ" and/or the name of any patient referred to in the evidence, is prohibited. REASONS FOR DECISION Background 1. The Appellant, EFQ is a medical practitioner. She is currently the subject of a decision of the Medical Council made 24 October 2018, which imposed conditions upon her registration. It is that decision which she seeks leave to appeal. 2. The pseudonym EFQ was allocated to the Appellant on 10 January 2020 by the Registrar when the Appellant applied for "a confidentiality order". Clearly the Appellant was seeking to have her name supressed. 3. During the hearing of the application for leave to appeal, no application was made by either party in relation to the continuation of the anonymising of the Appellant's name. As will be seen hereafter, I do propose to make an order which requires the Appellant's name to be anonymised for the purpose of the publication of these reasons and orders. 4. The Appellant, EFQ, is a medical practitioner. By order made 26 November 2020 the name of the practitioner was required to be anonymised as EFQ. 5. EFQ (the Appellant) seeks leave to appeal against conditions imposed on her registration as a Medical Practitioner, conditions which were imposed by the Medical Council of NSW (the Respondent) on 24 October 2018. There is an issue as to whether she needs leave to file or make that appeal and have it heard by the Tribunal, given the delay between the imposing of the conditions by the Medical Council and the time of the filing of the Appellant's appeal document on 9 January 2020. 6. The Appellant commenced proceedings in the Tribunal by filing an Appeal on 9 January 2020. To the extent that action amounted to a challenge to the conditions imposed by the Respondent upon the registration of the Appellant, such challenge was filed "out of time". The Appellant seeks leave to be able to proceed with her action even though the action commenced outside the time permitted by the Civil and Administrative Tribunal Act 2013 (NSW), the applicable Rules and the Health Practitioner Regulation National Law (NSW) (the "National Law"). There is an argument, which is later addressed, as to which Act or Rule sets the time in which an appeal is to be filed/made against a determination of the Medical Council. 7. The Appellant filed a document titled External Appeal form, in the Tribunal office on 9 January 2020. The form gave notice that the Appellant sought to challenge, by way of appeal, the conditions imposed by the Respondent against the registration of the Appellant as a medical practitioner, on 24 October 2018. In identifying the nature of the relief she sought, the Appellant identified s 159 and s 159B of the National Law as the sections under which she grounded her appeal. 8. When the hearing commenced on 20 February 2020 the Appellant sought to amend the "Grounds of Appeal" specified in the External Appeal form, which she had filed on 9 January 2020, so as to substitute the following grounds: "The Medical Council of NSW acted without power when it purported to order on 24 October 2018 that pursuant to s. 150 of the National Law a condition be imposed on the Registration of the Appellant that she "not practice medicine" AND a condition that she authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. Such conditions be declared a nullity and void ab initio." 1. The Appellant made application for leave to file/make her Appeal out of time, should the Tribunal find that such leave was necessary. 2. The Appellant made clear, at that time she reframed the Appeal she sought to argue, that the appeal was made pursuant to section 159B and not s 159 of the National Law. That was important because it set the manner in which the Appeal would be conducted. Section 159 requires an Appeal to be conducted "as a new hearing" (159(3)). Section 159B does not prescribe such a procedure. Rather, a Note to the section provides: "An appeal under this section is an external appeal to the Tribunal for the purpose of the Civil and Administrative Tribunal Act 2013." Section 31 of that Act defines the words "external appeal". 1. For the purpose of considering if the Appellant should be granted leave to have her appeal heard, it is important to understand the different procedure which is applicable to an appeal pursued pursuant to s 159B and one pursued under s 159. 2. The manner in which an appeal made under s 159B is to be conducted and determined is the subject of a recent decision of Boland ADCJ in Steel v Medical Council of NSW [2020] NSWCATOD 77. In that matter, Her Honour formulated the grounds of appeal which were apparent from the material relied upon by the Appellant and referred to in the hearing. She set out the following: "The practitioner in his appeal raises essentially five topics for determination: (1) Did the delegates err by failing to follow earlier Tribunal decisions and in particular Coutinho v Dental Council of New South Wales [2018] NSWCATOD 98? (2) Did the delegates err in law by addressing the question "Does the practitioner's action accord with the public interest?" rather than addressing the words of the statute namely, that the Council must if it is "otherwise in the public interest" take action? [my emphasis] (3) Did the delegates misdirect themselves in posing and answering the question "Should the practitioner be suspended, if not should conditions be placed on his registration?" rather than considering suspension or conditions? [my emphasis] (4) Did the delegates fail to take into account a relevant factor or factors in determining it was appropriate to take action in the public interest? (5) Was the decision to suspend the practitioner's registration so unreasonable that no reasonable decision maker could have so ordered?" 1. As can be seen, Her Honour formulated grounds similar to that which might be seen in a Notice of Grounds of Appeal filed in a Court of Superior record. Clearly Her Honour had in mind the application of principles flowing from House v The King [1936] HCA 40; 55 CLR 499 with the framing of those grounds in those terms. 2. Her Honour set out provisions of the applicable legislation which prescribe the availability of an appeal process: "19 The appeal is brought under s 159B of the National Law. That section which is found in Division 6 Sub-division 2 of Part 8 of the National Law provides as follows: (1) A registered health practitioner or student who is the subject of action taken by the Council for the health profession under section 150, 150A or 150C may appeal, with respect to a point of law, to the Tribunal. Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) Subsection (1) does not limit a right of appeal under section 159. (3) The Council must not make a decision that is inconsistent with the Tribunal's decision with respect to a point of law under this section. (4) A registered health practitioner or student may not make an application to the Supreme Court for judicial review of action taken by a Council under section 150, 150A or 150C, being an application alleging any error of law, until an appeal under this section in respect of the point of law concerned has been made and disposed of. 20 An appeal under s 159B is an external appeal for the purposes of the Civil and Administrative Tribunal Act 2013 (NSW) (see s 31). The appeal is to be heard by a division member who is a senior judicial officer (see s 165B (4) of the National Law). 21 I note that the phrase "points of law" has been construed as having a wider connotation than "error of law" (see Health Care Complaints Commission v Karalasingham [2007] NSWCA 267). 22 The Tribunal's powers on determining an appeal under s 159B or under s 159 are also found in Division 6 Sub-division 2 in s 159C. Section 159C provides: 159C Tribunal's powers on appeal [NSW] (1) On an appeal against a decision of a Council, the Tribunal may by order— (a) confirm the decision; or (b) set aside the decision; or (c) set aside the decision and make a new decision (being a decision that the Council could have made). (2) The Tribunal's order must not cause a suspension or conditions imposed by a Council to have effect beyond the day on which a related complaint about the person is disposed of." 1. In Health Care Complaints Commission v Karalasingham [2007] NSWCA 267, the Court of Appeal considered appeals under a "point of law" under the now repealed Medical Practice Act 1992 (NSW) as: An appeal "with respect to a point of law" pursuant to s 90(1)(a) of the Medical Practice Act 1992 (NSW) does not require that a matter of law be separately identified and decided by the Tribunal. It is sufficient that the Tribunal needs to identify and apply a principle in reaching its decision and, in doing so makes an error with respect to a point of law. 1. We note, under the repealed Medical Practice Act 1992 (NSW), an appeal to the Supreme Court pursuant to section 90 lay against the "Tribunal's decisions and actions" … "with respect to a point of law". 2. Having stated with precision the relief being sought, the parties agreed to proceed by way of identifying evidence and providing written submissions. 3. The documents which were identified as being relied upon as evidence in the hearing, together with documents which were identified as aide-memoires and written submissions, are as follows: 1. Exhibit A1: Documents behind Tab's 1 to 13 inclusive of the Respondents tender bundle filed in the Tribunal. 2. Exhibit A2: External Appeal form filed by the Appellant on 9 January 2020. 3. Exhibit A5: Paragraphs 50 to 84 and paragraph 157 of the affidavit of the Appellant filed 5 February 2020 (subject to objection provided for in the Directions made 20 February 2020). 4. Also marked at that hearing was the Appellants Outline of Case and a Chronology provided by the Appellant. 5. The Respondent provided a bundle of documents which it relied upon. 1. Following the hearing, the Appellant filed a number of affidavits without leave. The affidavits of the Appellant, which are not included in the list set out above and yet are referred to in the Consolidated Submission dated 28 August 2020, are as follows: * Appellant's affidavit of 19 February 2020. * Appellants amended affidavit of 25 February 2020. * Appellants affidavit of 28 February 2020. * Appellants affidavit 11 August 2020. * Appellant's affidavit of 13 August 2020. 1. Most of the affidavits the Appellant filed without leave, address matters which followed the Medical Council setting the conditions on 24 October 2018 and consequently had little relevance to the grounds of appeal the Appellant seeks to pursue, as the grounds address events which predate 24 October 2018. I will address that evidence, should it be necessary to do so, in order to determine the application for leave to file/make the appeal out of date. 2. With the assistance of the parties, the following directions and orders were agreed to and subsequently made on 20 February 2020: 1. In relation to the application by the Appellant for leave to file an appeal against the imposition of conditions on 24 October 2018 by the Respondent against the registration of the Appellant as a medical practitioner, the Respondent Council is to file and serve it's written submission on that issue by the close of business 21 February 2020. The Appellant is to respond in writing (file and serve) within seven days AND the Respondent is to file and serve any Reply thereto within a further seven (7) day period. 2. The Tribunal notes the Appellant seeks leave to amend the External Appeal form filed 9 January 2020 so as to seek the relief read onto the record today and in so doing relies upon s 159B of the National Law and abandons the appeal based upon s 159. The Tribunal notes that the Respondent does not oppose the Appellant amending as sought, subject to the Appellant first being granted leave to file her Appeal out of time as referred to in these directions. 3. The Respondent seeks an order for costs in relation to the costs thrown away, if any, resulting from the amendment. The Respondent is to file and serve written submissions in support of the application for costs on or before the close of business on 21 February 2020. The Appellant is to respond by filing and serving her submissions on the cost application on 21 February 2020. 4. The Tribunal notes that the Appellant relies upon the written submission provided to the Tribunal today (20 February 2020) and marked for identification as A3, in support of her appeal. 5. The Respondent is to file and serve on the Appellant a list of any objections to the evidence of the Appellant, identified in exhibit A5, within seven days and the Appellant is to respond in writing and file and serve within seven days of receipt of the Respondent's list of objections, any response to each objection which the Appellant submits should be rejected. 6. The Respondent is to file and serve written submissions in support of it's case and in response to the submissions identified in the document marked A3 by 13 March 2020. The Appellant is to file and serve any Reply to those submissions within seven (7) days of receipt of same. 7. The Respondent is to identify any document (contained in the evidence/documents filed in this case) it relies upon in support of its submission where such evidence/document is additional to the documents identified by the Appellant and marked as exhibit A1, in answer to any of the evidence identified by the Appellant as contained in exhibit A5, or in support of its submission on s 159B. 8. Each party is to include in the written submission filed and served pursuant to direction (5) hereof, any application for costs and any submission in support or rejection of such a costs application. 9. Each party may apply in writing for further directions at any time prior to the Tribunal delivering judgment in this matter. 10. Judgment is reserved. 11. The Tribunal notes the request of the Appellant that the judgment be published in this matter before 31 March 2020, as the Appellant has a proceeding in the Supreme Court of NSW listed for hearing on that day, and the Appellant may wish to rely on the judgment of the Tribunal in support of her case in that court. 12. The Tribunal notes that the Respondent has informed the Tribunal that there is a decision pending in the NSW Court of Appeal which may determine whether the Respondent has the power to make the conditions complained of by the Appellant. (Later identified in these reasons as Ghosh). 1. The Respondent provided its submission on 13 March 2020. In that document, the Respondent set out the further evidence it would rely upon following the change in the nature of the appeal. The documents to be relied upon are: 1. Annexures SC1 (at f 176), SC3 (at f 181-182) and SC39 (at ff 426-427) to the affidavit of the Appellant affirmed 3 February 2020. The Respondent also relies upon tabs 14 to 22 of the Respondents documents filed in the Tribunal. I will have regard to those documents in this determination. 1. Following the hearing on 20 February 2020 there were other events which have impinged upon the Tribunal being able to provide a determination in a timely manner. 2. On 2 March 2020, the Appellant corresponded with the Registrar seeking access to documents which had been the subject of a Summons issued by the Appellant prior to the hearing on 20 February 2020, and not pursued by her before the Tribunal on 20 February 2020. That application was heard by Le Poer Trench ADCJ and the following orders made on 13 May 2020: 1. The application by the Appellant for access to any documents contained in package marked S1, produced to the Registrar pursuant to paragraph B, of the Schedule to the Summons, issued on 11 February 2020 and addressed to the Respondent, is refused. 2. The documents contained in the packet marked S1, as described in order 1 hereof, are to be held by the Registrar, until 28 days after the final judgment, in this matter, is delivered by the Tribunal. 1. The finalising of the determination was also delayed as the Tribunal awaited the decision of the New South Wales Court of Appeal decision in the matter of Ghosh v Medical Council of New South Wales [2020] NSWCA 122 (Ghosh) which was delivered on 26 June 2020. That decision was important because it was understood to have addressed one of the main arguments pressed by the Appellant that a condition imposed by the Medical Council of NSW in the following terms was outside of the power to so impose. The conditions imposed upon the Appellant's registration as a medical practitioner were imposed on 24 October 2018 in the following terms: "Practice Conditions: 1. Not to practice medicine. 2. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions." 1. Following the Court of Appeal delivering its decision in Ghosh, the matter was relisted before the Tribunal for further mention. That listing occurred on 14 August 2020. On that occasion, there was a discussion with the Appellant's counsel about the impact of the decision in Ghosh on the appeal pursued by the Appellant. The Tribunal was informed by counsel for the Appellant that the decision in Ghosh did not determine the question raised by the Appellant in the appeal before the Tribunal. 2. Notwithstanding the Appellant was represented on that occasion by counsel, no request to reopen the hearing to press for the additional affidavits filed by the Appellant as referred to earlier in these reasons, was made. On that occasion however, it was asserted by counsel for the Appellant that the decision of the Court of Appeal in Ghosh was not support for the proposition that the Medical Council did have power to make a condition of practice in the terms "Not to practice medicine". 3. On the occasion of the matter being back before the Tribunal, further directions were made as follows: 14 August 2020 Directions 1. The Appellant EFQ is to file and serve a consolidated submission in support of her appeal which addresses, inter alia, the following: Why the Appellant should be permitted to reopen and be permitted to rely upon the affidavit evidence filed by her since the hearing of the appeal; If permitted to reopen what is the evidence the Appellant now relies upon in support of her appeal? What is the effect of the Court of Appeal decision in Ghosh v Medical Council of NSW [2020] NSWCA 122, on the issue of whether the condition imposed by the Medical Council in its order, now under appeal by EFQ? All other grounds of appeal. The submission is to be filed and served by 31 August 2020. 2. The Respondent is to file and serve its submission in response by 18 September 2020. 3. The Appellant is to file and serve any reply by 25 September 2020. 1. Those directions have now been complied with. Appellants application to re-open to rely upon further affidavit evidence to that identified and tendered on 20 February 2020 1. In relation to the "Leave to re-open" question referred to in the directions of 14 August 2020, the Appellant addressed that direction at paragraphs 118 to 122 of her submission. As those paragraphs are short in length I set same out in full here: 118. The Appellant seeks to use in evidence her affidavit of 3 February 2020 which contains the full account of its communications with the Council, where the Respondent has deliberately excluded relevant emails to make false allegations. It is also widely referred to in these submissions and provides the comprehensive account of the case before NCAT. 119. The Appellant similarly relies on the affidavit of 25 February 2020. Although Dr Ilchef's report is inadmissible by law, the manipulation of evidence and deceit employed by the Council is explored in detail, where both Dr Ilchef and the Council exploit their clinical knowledge and skills mala fides and demonstrates the gross lack of ethical conduct by the Council. This affidavit is similarly referred to in these submissions. 120. The Appellant relies on the affidavit of 19 June 2020 and it refers in detail to the retraction of the allegation of mental illness of the Appellant, and the ways manipulated and false evidence has been taken advantage of by the Respondent, informing the Respondent's case in chief. This affidavit is similarly referred to in these submissions. 121. The Appellant relies on the affidavit of 11 and 13 August 2020 which summarises the evidentiary findings from SC2018 and addresses the allegations of impairment that the Council rely on for the ban on the Appellant's practice. This affidavit is similarly referred to in these submissions. 122. Further, a second report by Mr Stephen New IT expert who has examined the annexures of the Appellant's affidavit of 3 February is attached supporting her concerns of wrongful access to her internet site. 1. Firstly in relation to the above paragraphs from the Appellant's submission, no leave was required in relation to the affidavit of 3 February 2020, provided the paragraphs read were within the parameters detailed by the Appellant on 20 February 2020 when the evidence to be relied upon was identified and tendered. Next, I note that if any additional paragraphs are now sought to be relied upon for the purpose of providing copies of relevant communications between the Medical Council and the Appellant no leave was sought. 2. The submission by the Respondent, which seems to be the only submission which addresses the leave to re-open the application of the Appellant, is contained in the submission of 18 September 2020 and is as follows: "If it be assumed that all of the materials are now relied on (which appears to be the case given [4] in the 31 August 2020 affidavit) it is not apparent how any of the new evidentiary material is probative of any question before the Tribunal for the purpose of the s 159B appeal on errors of law." 1. The nub of what is submitted by the Respondent in relation to the additional affidavit material sought to be relied upon by the Appellant, is that it is not relevant to the determination to be made by the Tribunal and therefore is not admissible or alternatively can be given no weight in the determination. 2. I propose to consider the context in which the additional evidence of the Appellant is raised and, if there be any of that evidence which could be potentially relevant to the determination I am required to make, I will allow the Appellant to re-open her case to rely upon that evidence. 3. It is important that I do not lose sight of the initial objection by the Medical Council to the hearing of the appeal. That objection is that the appeal is filed out of time. As such it falls to the Appellant to satisfy the Tribunal that she should be given leave to proceed with the appeal. 4. I now turn to consider the principles of law to be applied to the consideration of granting leave to appeal out of time against the decision of the Medical Council made 24 October 2018. 5. Section 161 of the National Law provides as follows: 161 When appeal must be made [NSW] An appeal under this Division or Division 14A, other than an appeal on a point of law, must be made— (a) within 28 days after the day the person making the appeal was given notice of the decision being appealed against; or (b) within the longer period allowed by the Tribunal. (Emphasis added) 1. That section is relied upon by the Appellant, as will be seen later, to support her contention that there is no time limit on an appeal under s 159B of the National Law. However, as stated earlier in the decision of Steel, Boland ADCJ determined that an appeal under s159B of the National Law is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013 ("the CAT Act"). 2. The definition of "external appeal" in s 5 of the CAT Act defines that term by reference to s 31 of that Act. Section 31 of the CAT Act is as follows: 31 External appeal jurisdiction of Tribunal (1) The Tribunal has "external appeal jurisdiction" over a decision (or class of decisions) made by an external decision-maker if legislation provides that an appeal may be made to the Tribunal against any such decision (or class of decisions). (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its external appeal jurisdiction-- (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings. (3) An "appealable external decision" is a decision of an external decision-maker over which the Tribunal has external appeal jurisdiction. (4) An "external appeal" is an appeal to the Tribunal against an appealable external decision. (5) A provision of enabling legislation that provides for a decision of an external decision-maker to be appealed to the Tribunal extends to the following- (a) a decision made by a person to whom the function of making the decision has been delegated, (b) if the provision specifies the decision-maker by reference to the holding of a particular office or appointment--a decision by any person for the time being acting in, or performing any of the duties of, the office or appointment, (c) a decision made by any other person authorised to exercise the function of making the decision. (6) Nothing in this section permits external appeal jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act. 1. The time in which an appeal is to be lodged, if an external appeal, is set out in the Civil and Administrative Tribunal Rules ("the CAT Rules"). 2. Subrules 25(4) and (4A) of the CAT Rules provide (emphasis added): (4) Unless the Tribunal grants an extension under section 41 of the Act, an external or internal appeal must be lodged— (a) in the case where the enabling legislation specifies the period within which the appeal is to be made—within the period specified, or (b) in the case of an internal appeal against a decision made in residential proceedings - within 14 days from the day on which the Appellant was notified of the decision or given reasons for the decision (whichever is the later), or (c) in any other case—within 28 days from the day on which the Appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later). (4A) For the purposes of subrule (4), the day on which reasons are given is the day on which reasons are first given, whether orally or in writing. 1. The effect of the CAT Rules 25(4) and (4A) in relation to this decision is that if the Rules do apply, then the date for the 28 day period to commence was the date the Medical Council provided its reasons for the imposition of the conditions it placed upon the Appellant's registration. That date was 20 December 2018. 2. If the above set out sections of the CAT Act and the CAT Rules are the relevant legislative provisions which prescribe the time in which an appeal pursuant to s 159B of the National Law can be lodged, then in this case there is no issue raised to the assertion by the Respondent that the appeal is lodged out of time by a substantial margin. It is to be remembered that the Appellant asserts those provisions do not apply to an appeal under s 159B of the National Law. 3. I have considered the following decisions in informing myself as to the principles of law to be applied when considering whether to extend the time within which this Appellant may file her appeal: Gallo v Dawson [1990] HCA 30 (Gallo); Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson); Khan v Medical Council of NSW [2016] NSWCATOD 88 (Khan); Roberts v Nursing and Midwifery Board of Australia [2017] NSWCATOD 109 (Roberts). 1. It is well accepted that the High Court decision in Gallo establishes the relevant considerations to be taken into account when exercising the discretion to extend time for an appeal. The following reasoning of McHugh J in Gallo (at [2]) is regularly cited in Tribunal decisions when considering this question: "The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. [1978] VicRp 27; (1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an Appellant upon proof that strict compliance with the rules will work an injustice upon the Appellant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the Appellant succeeding in the appeal: see Burns v. Grigg [1967] VicRp 113; (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the Respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the Appellant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. [2]" 1. Boland ADCJ in Roberts stated: "The principles in respect of granting an extension of time are well established. Essentially, it is necessary to ensure that the rules do not work an injustice. [23] In this case, to consider whether an extension of time should be granted, it is necessary to consider whether there is a legitimate basis for the set aside application and whether failure to set aside the Tribunal's decision will cause an injustice to the Appellant. That consideration goes to the merits of the Tribunal's decision to dismiss the Appellant's appeal or to grant an indefinite adjournment of it. [24]" 1. In Jackson, the Tribunal comprehensively discusses the relevant considerations when considering a time extension request (at [22]): "The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: …. (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The Appellant's prospects of success, that is usually whether the Appellant has a fairly arguable case; and (d) The extent of any prejudice suffered by the Respondent (to the appeal), - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the Appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]." 1. The Appeal pursued by the Appellant was filed on 9 January 2020. That is 12 months after the reasons for the decision of the Medical Council were published (20 December 2018). 2. By letter dated 21 December 2018 the Medical Council provided the Appellant with the reasons for the decision made on 24 October 2018 to impose conditions upon her registration. In an earlier letter dated 24 October 2018, sent to the Appellant by the Medical Council, the Appellant was advised of the condition imposed on that day by the Medical Council and also advised in that letter, she had a "Right of Review". The letter also advised her she had a "Right of Appeal". That latter information is relevant to further argument put by the Medical Council in relation to the leave to appeal out of time argument. 3. Under the heading "Right of Review" in the letter of 24 October 2018, the Appellant was advised as follows: "You may seek a review of the Council's decision to impose conditions on your registration at any time. Applications for review must be in writing. Upon receiving your application for review, the Council will review its decision in light of any new evidence or material submitted. Therefore your submission should address the change in your circumstances which you believe would warrant the Council making a new decision. Following the review, the Council may affirm, vary or set aside its decision or take any action it has power to take under s150." 1. Under the heading "Right of Appeal" the Appellant was advised as follows: "You may appeal against the Council's decision to the NSW Civil and Administrative Tribunal (NCAT). If you are considering an appeal to NCAT, we would recommend that you obtain urgent independent legal advice." 1. I note the letter did not set out any time limit for the filing of an appeal against the Council's decision to impose conditions on the Appellant's registration. 2. The consolidated submission of the Appellant is dated 28 August 2020. On 7 September 2020. Mr Peter King, counsel for the Appellant, provided a list of typographical mistakes in that document. I have made the alterations which were requested. 3. On 18 September 2020, the Medical Council provided its submission. In that submission, the Medical Council submits the Appellant's submissions are not a consolidation of existing submissions but rather a substantial rewording and re-arguing of the whole of the Appellant's submissions in chief. The Medical Council has refused to respond to the re-argued submission of the Appellant and relies upon its earlier submissions, which address all but what it describes as the Appellant's Ground 4 and also her submission on the decision of the Court of Appeal in Ghosh. 4. That was the subject of a Reply of the Appellant dated 25 September 2020. I will address that Reply document later in these reasons. 5. The Appellant addressed the fact that she was out of time with the making of her appeal. In her submission of 28 August 2020 at page 35 under the heading "Extension of Time", the Appellant answers the submission of the Respondent Council which was provided in writing dated 21 February 2020. I will therefore set out the submission of the Respondent before addressing the submission of the Appellant. 6. In its submission of 21 February 2020, under the heading "Application for extension of time to appeal ought be dismissed," the Respondent submitted as follows: (i) The appeal under s.159B does not become the subject of s.161 of the National Law as to the time in which to make an appeal. The Respondent submitted: "An appeal under section 159B of the National Law is an "external appeal" under s 31 of the Civil and Administrative Tribunal Act 2013 (CAT Act): see subsections 31(1), (3) and (4) as well as the note to s 159B(1) of the National Law. Subrules 25(4) and (4A) of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules) apply. (see earlier set out in these reasons) (ii) The Respondent submits that in this case, the "later" of the circumstances under subrule 25(4)(c) was the day on which the Appellant was given the reasons for the decision. The Appellant names that date as 21 December 2018 in the External Appeal form filed by her on 9 January 2020. The Respondent submits the construction of the Civil and Administrative Tribunal Rules 2014 means the last day for the filing of the Appeal, within time, was 20 January 2019. I note there is no argument against that submission. (iii) The Appellant did file an Administrative Review Application Form on 1 November 2019 and if that sets the extent of the delay in filing of the Appeal then the lodging of same was in excess of nine months out of time. (iv) An application to extend the time for appeal for the purposes of rule 25 is made under s 41 of the CAT Act, which provides: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired. (v) The over-arching consideration when determining whether an extension of time ought be granted is whether the strict application of the time limitation will or may occasion injustice (Anthony v Chris Savage Pty Ltd [2003] NSWSC 698 at [35]. Also see Slattery v Fordyce [2019] NSWSC 173 at [209] and [289]. (vi) The Respondent referred to the decision of the Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. (vii) The discretionary power to grant an extension of time under s 41 is unfettered but must be exercised judicially having regard to s 36 of the CAT Act and the need to "facilitate the just, quick and cheap resolution of the real issue in the proceedings". (viii) S 36 of the CAT Act is as follows: 36 Guiding principle to be applied to practice and procedure (1) The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it-- (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal-- (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the 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. (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. (ix) In this case, there is no substantial injustice to the Appellant if the extension of time is refused because there are clearly other pathways that would enable the conditions she seeks to impugn to be removed. She can: (a)seek a review under s 150A of the National Law; or (b)she can cooperate with the process that is required as a consequence of the Council's Decision, being attendance at an Impaired Registrants Panel inquiry convened by the Council (with or without first cooperating with Council's preliminary requirement under s 152B of the National Law that she attend a Council Appointed Practitioner assessment). The substantial delay has not been met with any adequate explanation for delay. (x) The email dated 18 January 2019 (Tab 12 of exhibit A1) from the Medical Council to the Appellant included the following: "Also stated in the letter sent on 24 October 2018, you also have the right to request a review under s150A of the National Law at any time. This application is to be made in writing to the Council and your submission should address the change in your circumstances which you believe would warrant the Council making a new decision." The Respondent points out that "despite references to the Appellant being unrepresented (paragraphs 5 and 7 of the Appellant's reasons as to why the appeal was lodged out of time in the External Appeal Form filed 9 January 2020 – Exhibit A2), there was in fact evidence of a solicitor acting for her on the day of the Council's Decision. On 24 October 2018 at 10:31am, the date of the Decision, Mr Peter McKell, solicitor, asserted that he acted for the Appellant. On 24 October 2018 at 9:37am the Appellant informed the Respondent by email that she had a barrister and referred to consultation with her legal representatives (see Exhibit A1 Tab 4). (xi) From 15 May 2019 the Appellant was also on notice from the Judgment of Justice Adamson, in a Supreme Court proceeding in which the Appellant was a party, that an appeal was available to her under s159B, subject to obtaining an extension of time from the Tribunal. The Respondent says that notwithstanding the Appellant was represented when before the Supreme Court there was still no appeal filed in the Tribunal until November 2019. (xii) The Council acknowledged in the submission that there is an argument to be had about the second question of law framed at paragraph 1(ii) of Exhibit A3. That ground is stated as "The decision was made in breach of rules of natural justice and for that reason also made a jurisdictional error (see Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57)". The Medical Council submits that the prospects of success on that ground for the Appellant are poor because of the evidence demonstrating the Appellant was given notice of the proceedings which ultimately gave rise to the determination on 24 October 2018. (xiii) It is submitted that the content of procedural fairness afforded for the purpose of s 150 proceedings, which are intended to be protective of the public, does not extend to an Appellant, absent any real explanation for not being able to attend at the time proposed by the Council, being able to dictate a time that is convenient for her and/or her legal representative to attend such proceedings. (xiv) It was reasonable for Council to convene the s 150 proceedings when it did, having received the Appellant's response to the allegations in issue on 24 September 2018. (xv) The Respondent submits that no substantial injustice is suffered by the Appellant because there are two ways forward available to the Appellant under the National Law and given that the reason for the delay has not been adequately explained, leave to extend the time for appeal ought be refused. 1. The Appellant addressed the submission of the Respondent on the extension of time to make her appeal, at paragraph 124 of the Consolidated Submission dated 28 August 2020. She submits that the Tribunal should reject the submission of the Respondent and grant the leave, should that be necessary, to permit the Appellant to prosecute her appeal. 2. Under the heading "Why no extension is required" and at paragraph 125, the Appellant submitted the appeal: "comprises an external appeal under the Civil and Administrative Tribunal Act 2013 [NCAT Act] section 31. The matter is accordingly an appealable external decision under section 31(3) of the NCAT Act. Under subsection (2) of section 31 and section 53 the Tribunal has power to amend which it has on 20 February 2020 already exercised in the Appellant's favour. (I note that portion of the submission appears to contradict the argument put elsewhere in the submission that the time limit for the filing of an appeal under section 159B is set by s.161 of the National Law which sets no time limit at all.) 1. The Appellant then set out at paragraph 126 and 127 of her submission: "126. The Medical Council in its submissions of 21 February 2020 [RS] accepts that no time limit arises under National Law in respect of a complaint made under section 159B where the appeal is on a point of law, and that the present appeal as amended and explained in the Appellant's written submissions provided to the Tribunal on 20 February 2020 is such an appeal: see also par. 4 of the Order of 20 2 2020. That concession is properly made because section 161 provides: 'An appeal under this Division or Division 14A, other than an appeal on a point of law, must be made – (a) within 28 days after the day the person making the appeal was given notice of the decision being appealed against; or (b) within the longer time period allowed by the Tribunal'. 127. However, the Medical Council's submission contends that apart from the National Law, in particular the in-built appeal provisions and time limits set out in National Law Part 8.6, there is in effect a second hoop for the Appellant to jump through. This is comprised in sub-rules 25(4) and (4A) of Civil and Administrative Tribunal Rules 2014. This contention should be rejected. It makes the statutory exception provided for by the Parliament under section 161, which the Medical Council admits the Appellant satisfies, a chimera. Further, as put below, it is contrary to the proper construction of both NCAT Act and the National Law". 1. I have carefully studied the submission of the Appellant on this point and find I am unable to accept it. 2. I do accept the submission of the Respondent as to the statutory provisions which apply to the time in which an appeal pursuant to s 159B on a point of law should be filed, if one is sought to be made against an order/condition or outcome of a Medical Council of NSW determination. 3. The proposition that there is no time limit for the filing of such an appeal on a point of law, I cannot accept. In the unlikely circumstance that I am incorrect in that determination on this point, and in the event that it was not appropriate to have regard to the provisions of the CAT Act, I conclude that the Tribunal would look to the Uniform Civil Procedure Rules 2005 (NSW), the Supreme Court Act 1970 (NSW) and any power the Tribunal might have as "inherent jurisdiction" to control its own processes. Such jurisdiction is available, even in courts which are created by statute. See: Australian Securities and Investments Commission v Edensor Nominees Property Ltd (2001) 204 CLR 559 at 590 [64]; DJL and The Central Authority [2000] HCA 17. 4. In such circumstances I would conclude that a time in which to lodge/make an appeal against the decision of the Medical Council, challenged in this case, would be 28 days or one calendar month. That I would regard as a reasonable period and one which has been adopted across many civil jurisdictions in NSW. 5. The Appellant also addressed "Why an Extension should be Granted if Required". 6. The Appellant submitted that leave to appeal out of time should be given because the interests of justice require same having regard to the merits of the case. I will in these reasons be considering the merits of the appeal the Appellant seeks to pursue. 7. The Appellant referred the Tribunal to relevant decisions and to the concession made by the Respondent in paragraph 18 of its submission. 8. Apart from the outcomes urged upon the Tribunal by each party, there is no serious dispute about the principles to be applied by the Tribunal in the consideration of whether leave should be granted to the Appellant, to file her appeal, out of time, if such leave is found by the Tribunal to be required. The Consolidated Submission of the Appellant dated 28 August 2020 The Non-Practicing Condition and Ghosh 1. The Appellant argues that the decision of the NSW Court of Appeal in Ghosh v Medical Council of NSW [2020] NSWCA 122 determines that the condition imposed by the Respondent on the Appellant's registration as a medical practitioner, is not within the power of the Medical Council to impose. The Respondent submits that is plainly not correct. The Respondent submits that the Appellant is arguing that the Tribunal should accept and follow what it describes as the dissenting judgment of Simpson AJA. 2. It is important to remember the grounds of appeal which were articulated by the Appellant before the Tribunal on 20 February 2020. The ground is an appeal under s 159B that "The Medical Council of NSW acted without power when it purported to order on 24 October 2018 that pursuant to s 150 of the National Law a condition be imposed on the Registration of the Appellant that she "not practice medicine". 3. The decision in Ghosh was a majority decision (Brereton JA and Emmett AJA) on the subject point. Simpson AJA did not agree with the decision of the majority on the point of imposing a "non-practising condition". 4. There were other aspects to the appeal upon which the Appellant in Ghosh was successful, with the appeal being allowed. In relation to that outcome, we note that the appeal heard by the Tribunal in Ghosh was brought pursuant to s 159 of the National Law (it was required to proceed as a de novo hearing under s 159(3)) and not s 159B of the National Law, which is the section under which the Appellant in this case has elected to proceed (an appeal on a point of law). 5. Brereton JA delivered the lead judgment in relation to the imposition by the Medical Council of a "non-practising condition". In the published judgment, Brereton JA sets out his reasons between paragraph [35] and [42]. Here we set out what His Honour said in paragraphs [35] to [42] inclusive: "Ground 2: the non-practising condition [35] Ground 2 in the revised appeal grounds was: The Tribunal erred in law in confirming the decision of the Council to impose a condition upon the Appellant's registration as a medical practitioner that she was not to practise, which condition is not a condition within the meaning of s. 150 and/or s. 150A of the National Law. [36] It is clear that NCAT confirmed the non-practising condition, rather than a suspension, for the same reasons as the Council at the s 150A hearing (emphasis in original): [178] The Tribunal does not accept that submission, rather, accepting the approach of the Medical Council in its Reply. To the extent that there is, or may be, a lacuna in the legislation (as suggested or implied), the Tribunal is of the view as a matter of statutory interpretation that the National Law is purposive legislation for the purposes of s 15AA of the Acts Interpretation Act 1901 (Cth) and s 33 of the Interpretation Act 1987 (NSW). The clear purpose of the legislation is to ensure that a medical practitioner who has been found (as here) to have issues going to her fitness to practice is subject to a regime whereby the Medical Council as the regulatory authority has the flexibility to ensure that she will properly treat the health and safety of members of the public – see generally Mills v Meeking [1990] HCA 6; (1990) 91 ALR 16 per Dawson J at 30-31 (with reference to the Victorian Acts Interpretation Act); Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; (1998) 153 ALR 490 at 509 per McHugh, Gummow, Kirby and Hayne JJ. It is not a situation (if that is what is contended for) where a medical authority should only have the option of letting the practitioner back to practice subject to conditions. The Tribunal accepts that there are good policy, administrative and supervisory reasons why a variety of responses and options might be considered by a regulatory authority in these circumstances, and for different time periods, when different professional opinions are received. It may be, for example, that a practitioner could maintain registration and work in a situation other than direct patient care – such as being a university lecturer. Accordingly the Tribunal rejects that submission that there has been an error of law and what flows from it. [37] However, resolution of the question raised by this ground does not require determination of whether or not there is any such "lacuna" as the Council and the Tribunal posited. The essential question for this Court is whether such a "condition" was a condition relating to the practice of medicine, within those contemplated by s 150(1). The argument that it was not was, in essence, that because it prohibited practising, it was not a condition relating to practising the profession, but amounted to a suspension rather than a condition. [38] The conditions which a Council is authorised by s 150(1) to impose are "the conditions relating to the practitioner's practising the health profession the Council considers appropriate". Section 150(1) relevantly provides: (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest- (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or (c) by order impose on a student's registration the conditions the Council considers appropriate. [39] A condition is imposed on and attaches to the practitioner's registration. Such a condition reduces the freedom of action that the registration would otherwise confer. The only limitation on the types of condition that may be imposed is that the condition must relate to the practitioner's practising the profession. Thus a condition that bore no relation to the practice of medicine would be outside the scope of s 150(1). However, that the scope of conditions is not confined to how the practitioner actually conducts his or her practice is illustrated by s 150(5), which provides: Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition. [40] A practitioner can be registered without having a right to practise: Pt 7, Div 5 provides for non-practising registration, and s 75 provides that a registered health practitioner who holds non-practising registration in a health profession must not practise the profession.[16] However, such registration permits the practitioner to retain the title of medical practitioner. [41] There is a distinction between suspension and a non-practising condition. The former has the consequence that the practitioner is taken not to be registered during the period of the suspension.[17] The latter leaves the practitioner registered, with the associated privileges, other than the right to practise. In effect, it makes the registration equivalent to a non-practising one, so long as the condition remains in place. But unlike suspension, the practitioner remains registered. In that way, it is a more moderate measure than suspension. [42] I therefore accept that a non-practising condition is a condition relating to the practitioner's practising the profession, within s 150. This ground fails." 1. Emmett AJA, at paragraph [135], stated the following: "[135] I have had the advantage of reading in draft form the proposed reasons of Brereton JA. I agree with his Honour, for the reasons proposed, that the Tribunal failed to undertake the essential task of identifying the nature and extent of any risk posed by Dr Ghosh to patients or the public, so as to determine the critical issue, namely whether there was such unacceptable risk as to require immediate suspension. Accordingly, the appeal should be allowed, and the orders of the Tribunal should be quashed. I also agree with his Honour that, in circumstances where the s 150 hearing, the s 150A hearing, and the Tribunal have each considered that Dr Ghosh should not be permitted to practise, it would be imprudent for this Court to reinstate her, in the absence of a full review of the evidence, even on an interim basis. The appeal from the s 150 decision must therefore be remitted to the Tribunal, differently constituted, to be heard again. I agree with the orders proposed by Brereton JA, including the order as to costs. I also agree with his Honour's observations consequent upon the subsequent disqualification of Dr Ghosh by the Tribunal." 1. Simpson AJA delivered a dissenting judgment on the point referred to above in the decision of Brereton JA. Her Honour set out relevant provisions of the National Law and concentrated her determination around the interpretation of those provisions. Her conclusion is set out at paragraph [176] and following in the decision. With respect, both the decisions of Brereton JA and Simpson AJA are easily followed by the reader and ring with compelling logic. 2. We conclude that Emmett AJA did agree with the determination of Brereton JA as set out above. We conclude that no other reasonable conclusion is available. We are therefore bound by the determination of the majority of the NSW Court of Appeal on the point of law relevant to this determination. 3. To the extent that the Appeal pursued by the Appellant before us is isolated only to the power of the Medical Council to make the condition against the registration of the Appellant "not to practice medicine", we conclude that condition is within the power of the Medical Council to make. In so deciding, we confirm we have no discretion to decide otherwise given our conclusion as to the ratio decidendi of the Court of Appeal in Ghosh. 4. However, the appeal under consideration is not confined to the power to make the condition "not to practice medicine". The appeal is wider and addresses the pathway followed in the lead up to the decision of the Medical Council. It is that aspect of the judgment of Simpson AJA in Ghosh which has been addressed in particular in the submission of the Appellant. 5. To the extent that it was submitted that the portion of the order made by the Medical Council on 24 October 2018 that "a condition that she authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions" is outside the power of the Medical Council to impose, no submission was directed specifically to that argument. I have assumed the reason is that if the condition appealed against is without power to be made and thereby is void, then the further provision, which is aimed at monitoring compliance with the "Non-Practicing" condition, also falls away. THE APPELLANT'S SECOND GROUND OF APPEAL 1. In the "Consolidated Submission of the Appellant", dated 28 August 2020, the second ground articulated in support of the Appeal is that: "(i) The statutory pathway followed by the complainant did not comply with the mandatory requirements of Part 8.4 of the Health Services Act 1997 [NSW]." (ii) Dr Padhi failed to follow the statutory pathway "he claimed to rely on under section 144 of the National Law in the complaint he made to the Medical Council". 1. The submission is that such a failure deprives the Medical Council of power to make any order against the Appellant. 2. The Appellant argues that the third ground in support of her case is that: "even if the imposed condition not to practice medicine was valid i.e. was a condition the Council otherwise had power to make, the decision and order were made in breach of the rules of natural justice." 1. The submission of the Appellant further states "there was no evidence of the complaints which itself is an error of law". This submission is supported by subsequent events where the employer of Dr Padhi, the Western Sydney Local Health District (WSLHD): "has retracted all claims of impairment of the Appellant at the time of the complaint being made upon which complaint the Medical Council acted and subsequently imposed its' condition upon the medical registration of the Appellant". 1. Additionally, the Appellant submits there were failures by both the Medical Council and Dr Padhi to comply with the requirements of the National Law in the making of the complaint and in the determination of same, in particular because the complainant (Dr Padhi), "was not qualified to diagnose" the Appellant at the time of making the complaint. 2. The Appellant submits that critical to her case is the subsequent retraction by WSLHD of its "allegations of impairment" of the Appellant. 3. In support of those grounds, the Appellant set out her supporting submissions. The submission was provided under the heading "Contravention of the Health Services Act 1997 ("HSA")/National Law Pathways [Ground 1(ii)]". 4. The argument of the Appellant under this ground is that, as the Appellant was a Visiting Medical Officer (VMO) appointed by the WSLHD to Redbank House, Dr Padhi and the WSLHD were required to follow the requirements of Part 8.4 of the HSA. The Appellant argues that, had that pathway been followed, there would have been a different outcome for the Appellant. 5. The provision of the HSA, which the Appellant specifically refers to in her submission, is as follows: HEALTH SERVICES ACT 1997 SECT 105 Public health organisation to notify visiting practitioners of certain decisions (cf PH Act s 33H) (1) If a public health organisation-- (a) reduces any clinical privileges of a person appointed as a visiting practitioner that have previously been granted, or (b) does not re-appoint a person as a visiting practitioner, or (c) suspends or terminates the appointment of a person as a visiting practitioner, it must give notice in writing to the person of its decision (and the reasons for the decision) within 14 days of the date of the making of the decision. (2) In this Part, "clinical privileges" means the kind of clinical work (subject to any restrictions) that the public health organisation determines the visiting practitioner is to be allowed to perform at any of its hospitals. 1. The Respondent addressed this ground of the Appeal in the submission provided by it and dated 13 March 2020. 2. The Appellant referred to section 144 of the National Law in her submission and said there had not been a complaint made under that section. That section states as follows: Subdivision 1 making complaints [NSW] 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner— (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. (b) Unsatisfactory professional conduct or professional misconduct A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. (c) Lack of competence A complaint the practitioner is not competent to practise the practitioner's profession. (d) Impairment A complaint the practitioner has an impairment. (e) Suitable person Health Practitioner Regulation National Law (NSW) No 86a [NSW] Current version for 1 July 2019 to date (accessed 6 November 2019 at 09:28) Page 113 of 314 A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession. 1. In relation to that part of the ground which claims there was no complaint made to the Medical Council under s 144 of the National Law, the Respondent submitted as follows: Section 150(4) of the National Law makes clear that section 150 Proceedings can be conducted whether or not a complaint has been made or referred to the Council about the practitioner, and whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee at the Tribunal. 1. Section 150(4) is as follows: (4) A Council for a health profession may take action under this section— (a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and (b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal. 1. The Appellant submitted that the Council had acted "ultra vires" in making the condition "not to practice medicine" as only a Professional Standards Committee and the Tribunal can make an order under s 146B(3) of the National Law. We include the whole of this section for context: 146B General powers to caution, reprimand, counsel etc [NSW] (1) A Committee may do one or more of the following in relation to a relevant health practitioner the subject of a complaint referred to it— (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order that the practitioner seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order that the practitioner complete an educational course specified by the Committee; (e) order that the practitioner report on the practitioner's practice at the times, in the way and to the persons specified by the Committee; (f) order that the practitioner seek and take advice, in relation to the management of the practitioner's practice, from the persons specified by the Committee. (2) If the relevant health practitioner is not registered, a direction may still be given under this section but has effect only so as to require the conditions concerned to be imposed when the health practitioner is registered. (3) If a Committee acting under this section makes an order or directs that any condition be imposed on a health practitioner's registration, the Committee may order that a contravention of the order or condition will result in the health practitioner's registration in the health profession being cancelled. (4) The order or condition concerned is then a critical compliance order or condition. 1. I note the condition made by the Medical Council the subject of the complaint by the Appellant, is not an order as described in s 146B(4). 2. I include the submission of the Respondent on this issue, at paragraphs [86] to [90], as the passage states with particularity the argument. I have excluded any reference to the Appellant's name which is contained in the submission, as repeated here: [86] The language of s 150(1), referring as it does to the fact that Council "must" take action if "at any time" it is satisfied as to the alternate matters set out in the chapeau to the subsection, also makes it clear that a complaint, of a type referred to in s 144 or otherwise, is not a pre-requisite to action being undertaken under section 150 of the National Law (the term "complaint" is not used in subsection 150(1) at all). [87] While Part 8, Division 3 of the National Law is headed "Complaints", the terms of s 150(4) are clear. The predecessor to s 150 of the National Law, s 66 of the Medical Practice Act 1992, had an equivalent provision in subsection 66(3), and Part 4 of that Act (which included s 66) was headed "COMPLAINTS ETC ABOUT MEDICAL PRACTITIONERS". [88] The fact that ss 150(3)(b), 150D, 150E (albeit that these provisions are not applicable here) refers to a "matter" being referred as a complaint, or a "matter" being referred to the HCCC, or a "matter giving rise to the proposal" being referred to performance assessment, also suggests that the question that was under consideration in the s 150 proceedings need not be a "complaint" at the time it is considered by the delegates of the Council. [89] Secondly, caselaw confirms that the provision should be construed so that the power may be exercised not only on the basis of complaints but even allegations. It is plain that allegations were before the Council's delegates at the time of their Decision. The allegations comprised in the notification of Dr Padhi were set out at tab 3 folio 24 of Exhibit A1, which the Appellant tendered. [90] It is noted that, even if it were correct that there needed to be a complaint under s 144 to found jurisdiction under s 150 (which is not required for the reasons above), arguably the HCCC's reference of the notification from Dr Padhi to the Council constituted a complaint to the Council from the HCCC anyway. This is because "any person" (s 144(1)) can make a complaint to the Council (s 144C). 1. In relation to the complaint of the Appellant that the authorised pathway for resolving impairment issues was not followed, the Medical Council submitted, between paragraph [91] and [105], its argument on that ground. Again it is set out with particularity and clarity. I have removed any reference to the Appellant's name which was contained in the submission of the Respondent, which is repeated in these reasons. The submission from paragraph [91] to [105] is as follows: Authorised pathway for resolving impairment issues not followed [91] It is not apparent how an allegation that the authorised pathway for resolving impairment issues was not followed, is capable of constituting an error with respect to a point of law in respect of the Council's Decision to take the action under s 150. [92] There are no special prerequisites to the exercise of the s 150 power for impairment matters (only the usual requirements in s 150 for the exercise of the power in any matter where conditions are imposed to protect the public). Rather, if action is taken under s 150 because, in the Council's opinion, the practitioner or student has an impairment, that has under s 150F (and other provisions) consequences subsequent to that decision to take action. That is, any alleged failure of the Medical Council to follow a process after the Council's Decision was made under s 150 cannot constitute an error of law in the Council's Decision. [93] Even if the subsequent processes followed in respect of impairment were capable of impugning the Council's Decision somehow (which is not apparent), the required process for impairment was followed and is identified in Exhibit A1 and in the Respondent's Documents beyond Exhibit A1 up to Tab 22. [94] The Council's delegates, given their "conclusion that (The Appellant) is impaired and because of [their] concerns for her mental health", referred the matter to an Impaired Registrant's Panel "subject to the consultation provisions of section 150F of the National Law". [95] S 150F(2) requires the Council to notify the Commission that it has taken action because a practitioner has an impairment. The Council is required to consult with the Commission about whether the matter should be dealt with as a complaint or referred to an Impaired Registrants Panel: s 150F(3). If the matter is not dealt with as a complaint, the Council is required to refer the matter to an Impaired Registrants Panel: s 150F(7). [96] "Impairment" is defined in s 5 of the National Law: impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect— (a) for a registered health practitioner or an Appellant for registration in a health profession, the person's capacity to practise the profession; or (b) for a student, the student's capacity to undertake clinical training— (i) as part of the approved program of study in which the student is enrolled; or (ii) arranged by an education provider. [97] In the Appellant's case, the Commission agreed with the Council during the consultation process that the Appellant should be referred to an Impaired Registrants Panel. [98] On 22 January 2019 the Council resolved that "a CAP and IRP are required but put on hold, and (the Appellant) is contacted for review in 3 months to assess her ability to attend for an IRP". CAP is a reference to a Council Appointed Practitioner assessment under s 152B of the National Law. The Council's minutes noted: "NB. According to advice from the Council's FTP team, (the Appellant) should be contacted in a few months but not actively chased for the IRP, as she did not appear well enough to attend an IRP at present". That is, Council resolved to refer the matter to the Impaired Registrants Panel, consistently with s 150F(7), but the timing of when the Panel would be convened would be subject to the proposed contact with the Appellant. [99] The Council wrote to the Appellant on 20 June 2019 to confirm that the HCCC had agreed with the Council's recommendation that she be referred to an Impaired Registrant's Panel and to notify her of a proposed Council Appointed Practitioner assessment prior to the Impaired Registrant's Panel taking place. (The Appellant) indicated that she considered the assessment "not appropriate" on 21 June 2019. On 27 June 2019 the Council explained to the Appellant the basis for referral to the assessment, before the Impaired Registrant's Panel is convened. The Appellant responded by email on 29 June 2019. [100] On 1 July 2019 the Medical Council responded that the Council Appointed Practitioner assessment and the Impaired Registrants Panel are an opportunity to return to practice if she were assessed as well enough to do so and pointed out that s152B of the National Law deems a failure to attend the assessment without reasonable excuse is evidence that a practitioner does not have sufficient physical or mental capacity to practice. [101] After further correspondence, Mr Peter McKell, solicitor, wrote to the Medical Council by email on 16 July 2019 indicating that due to the history relating to the matter "whereby she has been advised not to attend the medical appointment arranged". The Medical Council sought confirmation of what Mr McKell meant by his email. [102] On 7 January 2020 the Medical Council wrote to the Appellant again and insisted on the Appellant's attendance for a Council Appointed Practitioner assessment on 29 January 2020. The Appellant responded at 4:49pm that day inviting the Council to review the earlier correspondence relating to the previous Council Appointed Practitioner assessment and responded again at 5:19pm. [103] That is, even though the Impaired Registrant Panel process is subsequent to the Decision (and so cannot impugn the Decision), the ground of appeal is not made out in any event because Council has in fact sought to follow the process in the National Law. [104] Exhibit A3 raises certain "pathway" issues specifically: (a) paragraph 24 asserts, among other things, that the section 152B process was designed to attempt to bolster an impermissible decision. However, there is nothing unusual about an assessment being required by an independent practitioner for the assessment to be provided to the Impaired Registrant's Panel and this course is plainly available under the National Law; (b) paragraph 25 refers to a "failure" to require the Appellant to undergo a performance assessment under s 150(5), but this provision is only a power to impose a condition requiring a performance assessment (not an obligation). It requires the concurrence of the HCCC and a performance assessment is directed to addressing performance issues, rather than impairment issues. That paragraph also refers to a failure to record the proceedings under s 150B, but that section in fact makes it clear that no audio recording is required if the practitioner is not present or if oral information is not given by a 3rd party (not being a member of the Council or a staff member); (c) paragraph 26 refers to a failure to exercise powers under s150J to obtain medical records and evidence from NSW Health concerning Redbank House and the incidents in question. However, there is no obligation on the Council in these circumstances to utilise s 150J and as Hall J in Lindsay made clear, a section 150 proceeding is not a full blown adversarial proceeding – the delegates are not attempting (and indeed are precluded from) making final determinations on whether allegations can be proven; (d) paragraph 27 asserts that the Council was required under s 150D to refer the matter for investigation to the HCCC. However, subsection 150D(5) makes it clear that s 150D does not apply if action is taken under s 150 because, in the Council's opinion, the practitioner or student has an impairment – s 150F is the correct course for these cases; (e) paragraph 28 refers to the Council not having complied with s 150F regarding a finding of impairment in connection with this not being notified to the Appellant in advance of the hearing or otherwise. Firstly, there is nothing in s 150F that requires the Appellant to be notified – under s 150F the notification of action involving impairment is required to be made to the HCCC after action is taken under s 150. Secondly, the Appellant was notified before the hearing of Dr Padhi's notification to AHPRA that the Appellant was allegedly unwell twice. Once when she was given an opportunity to respond to the allegations for the purpose of the Conduct Committee and again when she was provided with an electronic copy of the brief for the s 150 proceedings. Further, the Appellant was notified in the delegate's reasons that the action was taken on bases that included impairment. Finally, the Appellant was advised on 20 June 2019 that the HCCC concurred with the Council regarding reference to an Impaired Registrants Panel; and (f) paragraph 28 refers to a failure to investigate under s 150F(6). This is misconceived, because s 150F(6), following as it does subsections (4) and (5), and referring as it does to (emphasis added) "the complaint", is referring to the complaint the subject of subsections (4) and (5). If the HCCC and/or Council are not of the opinion that the matter should be dealt with as a complaint under those subsections, there is nothing to investigate under subsection (6). [105] Both parts of this appeal ground are misconceived and do not provide a basis for setting aside the Decision. 1. The Respondent addressed other assertions made in the document tendered as exhibit A3. The submission addresses the following: 1. Paragraph 5 of exhibit A3. That the Medical Council should have made enquiries as to the Appellant's standing. That assertion is rejected by the Respondent, which says the delegates specifically requested the Appellant provide her curriculum vitae. 2. In relation to a complaint from the Appellant that the Medical Council did not mention that the Appellant was a person of "Good Standing" and that there had been no complaints to that body about her, as her Society (RANZCP) had certified, the Respondent submits there is no submission as to how that information could have contributed to the 150 proceeding. The delegates did not assume there were any other complaints about the Appellant other than the one they were addressing. There was no allegation she was not a fellow of the Society. 3. In answer to the allegation that the two areas of "probable risk" identified in the reasons were not notified to the Appellant before the order was made by the Council, the Council refutes that submission. 4. The Respondent identified the first risk as "an impairment which has the capacity to affect her clinical performance and so put the health and safety of the public at risk". The Respondent says that the original notification from Dr Padhi was provided to the Appellant with the brief, and to which the Appellant was asked to respond for the Conduct Committee meeting. The notification used the words, "During my limited interaction I believe she is unwell and needs urgent medical attention". The Respondent says a potential impairment was squarely in issue. 5. The second risk identified was "that as a result of the events in the workplace that led to her termination from Redbank House in January 2018, and/or as a result of her impairment, EFQ is preoccupied with legal matters to such a degree that she was unwilling or unable to attend the s 150 hearing and by her report is currently unable to work". The Respondent says these words encapsulate the words actually used by the Appellant in her communication to the Medical Council prior to the hearing and which are set out in exhibit A1 Tab 3 f 140. The Respondent submits there was no obligation on the Medical Council, as a matter of procedural fairness, to put to the Appellant matters that she herself identified to the Council. 6. In response to the submission of the Appellant in exhibit A3 [21] the Respondent says that the Council's statement that the Appellant is "unable to work", plainly referred to the Appellant's assertion that she had not been able to work in a clinical role due to the severity of the workplace abuse and undermining of her reputation. 7. In relation to the failure to nominate an "identified risk" argument put by the Appellant, the Respondent submitted: "Council in fact concludes at page 6 of its reasons that "We therefore have determined that there is sufficient risk to the health and safety of the public to justify taking action under s 150 of the National Law". This constituted evidence of satisfaction for the purpose of s 150(1) that it was "satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons)". To read the reasons of the delegates of the Council otherwise is to impermissibly review the reasons with a fine toothcomb. There did not need to be evidence that a particular person was subject to safety concerns, it was enough for the delegates of the Council to be satisfied that there was evidence that satisfied it that it was appropriate to take action for the protection of the health or safety of any person. It was not their role to make findings of impairment or findings in respect of any particular incident, as was clear from [name redacted]". 1. The Respondent submits, contrary to the assertion by the Appellant that the conditions imposed by the Council are "permanent", there is a clear path in the statutory scheme to review the condition and that is available to the Appellant. 2. In answer to a submission from the Appellant that section 60 of the CAT Act has application to the proceedings, the Respondent says such submission is in error. That section deals with the question of costs in the proceedings and the Respondents submissions in relation to costs of this appeal and the costs thrown away by the Appellant changing the nature of the appeal on the first day of the hearing, are addressed later in these reasons. Determination of Incorrect Pathway ground 1. I have considered the submissions of both the Appellant and the Respondent on this ground as particularised above. I find the submission of the Respondent compelling on this proposed ground. I accordingly conclude there is no merit in the ground. 2. To the extent it is necessary to do so, I find that there was no failure by the Medical Council to follow the statutory pathway designated in the National Law and the CAT Act. I find the HSA Part 8.4 did not operate to nullify the determination by the Medical Council to impose the conditions upon the registration of the Appellant as a medical practitioner, which were imposed on 28 October 2018. 3. Further, I find the manner in which Dr Padhi acted in making his report or complaint to the Health Care Complaints Commission (HCCC), did not nullify the actions of the Medical Council in imposing the conditions on the Appellant's registration. Ground 2: The decision is infected by jurisdictional error because it was made in breach of the Rules of Natural Justice 1. The Appellant addressed this ground in the Consolidated Submission filed 28 August 2020 commencing at paragraph [36]. 2. The Appellant addressed matters of law at paragraph [36], and then in paragraph [37] stated as follows: "A timeline is provided demonstrating contravention of the due process requirements of the National Law from the outset and the extent of procedural unfairness to the Appellant to date." 1. The Appellant then set out the timeline and evidence she said constitutes the "contravention of the due process" and the "procedural unfairness". 2. The Appellant's submission on this point is some 17 pages long and at times appears to excurse away from the ground. However, doing the best I can, I have identified the following points made by the Appellant which do address the ground, which in essence is that the Appellant was denied procedural fairness and natural justice by the Medical Council prior to it making the determination that a condition should be attached to the Appellant's registration as a medical practitioner. The Appellant's submission on this ground cover the following specific assertions: 1. On 22 August 2018, an email from the Council advised the Appellant of a complaint by Dr Padhi. The letter from the Council said there were concerns regarding the Appellant's "manner and poor attitude towards colleagues and patients whilst employed as a Visiting Medical Officer at Redbank House Acute Adolescent Unit". The Council stated it had received a copy of the Appellant's "response to the Commission dated 17 July 2018". The Appellant says no response was provided by the Appellant. 2. It is asserted that the Medical Council refused to provide medical records to the Appellant in contravention of s 150J of the National Law. 3. It is asserted that the Medical Council failed to itself require Redbank House to provide relevant medical records and that breached its obligation under s 150 of the National Law to act appropriately. 4. It is asserted the Medical Council failed in its duty to act "appropriately" under s 150, in that it did not seek and review critical clinical material where it heard a complaint in the absence of the Appellant. 5. It is asserted that: "as the Appellant advised the Council that she did not voluntarily consent (to the imposition of conditions as proposed), but in contravention to the Medical Council's own publications and section 152L, it again, circumvented the appropriate pathway as to have investigated the Appellants complaint would have required that the HCCC investigate the complaint, thereby avoiding (sic) the matter be dealt with in an expeditious and fair manner." 1. It is submitted by the Appellant that: "The Council took more than six months to respond to the complaint entered by Dr Padhi to AHPRA on 9 February 2018, and that in itself amounts to procedural unfairness". 1. It is submitted by the Appellant that: "At no stage did WSLHD nor the Council adhere to the NSW policy directive for managing complaints and concerns about clinicians which sets out a due process to be followed." The Appellant then referenced the web site - www1.health.nsw.gov.au/pds/ActivePDSDocuments/PD2018_032.pdf, which is a NSW Health Department website Policy, which states: "MANAGING COMPLAINTS AND CONCERNS ABOUT CLINICIANS PURPOSE This Policy Directive provides a standard approach for the management of serious complaints and concerns about clinicians working in NSW Health. This Policy and its Procedures are to be used in conjunction with the applicable Policy Directives' provisions relevant to the subject matter of the complaint or concern. A serious complaint or concern is one that is assessed as alleged misconduct or alleged unsatisfactory performance: requiring administrative action against the clinician to manage risks to patient or staff safety pending any findings about the complaint or concern, and/or notifications to external agencies, and/or a disciplinary response if it were to be substantiated. This includes cases where the clinician has resigned or stopped working in NSW Health after receipt of the concern or complaint, but had they remained, administrative action, external notifications or a disciplinary response would have been required. This Policy Directive applies to all health practitioners or health service providers working in NSW Health (whether or not the person is registered or required to be registered under the Health Practitioner Regulation National Law (NSW)). This includes clinicians employed, contracted, paid under a fee for service arrangement, on an honorary appointment, engaged under some other arrangement, or as a student on placement." 1. It is submitted the Medical Council: "contravened s 237 of the National Law, where the Council must act on complaints which were made and acted upon in good faith. This did not occur. There were no underlying complaints. Dr Padhi's complaint was not made in good faith." 1. It is submitted that the determination by the Medical Council of the complaint was not "urgent" as asserted by the Medical Council representative Ms Ratcliff in October 2018. It is submitted: "this left the Appellant with insufficient time to attend with legal representation seeking an adjournment of just a few days to prepare and then the Council proceeded without the Appellant on 24 October 2018". It is asserted that the Council "by this behaviour also contravened section 171B of the National Law which confirms the Appellant the right to be legally represented." 1. It is submitted that "the council did not respond to the email sent by the Appellants solicitor relating to a short adjournment of days whatsoever." The reference to the email from the Appellant solicitor is footnoted as Appellants affidavit of 3 February 2020 annexure SC 17. (NOTE: The letter in question is set out on page 321 of the affidavit and contains no request for an adjournment. The wording of the letter suggests the hearing should not proceed. It also suggests the Appellant wishes to have legal representation at the hearing.) 2. The Appellant submits that the Council "never provided the Appellant with a review date of the suspension or ban". 3. The Appellant said: "The Council denied the Appellant a review". (NOTE: As can be seen below this is not a correct statement of fact). 4. It was submitted that: "After giving notice of the order the Council inappropriately said the Appellant could only review the order if there was a change in her life circumstances." (NOTE: as set out later there is no reference to "life circumstances" in the information provided to the Appellant by the Respondent on and after 24 October 2018). 1. The Appellant complained that the Council had failed to comply with sections 150D and 150F(2), however, each of those sections refers to action to be taken by the Medical Council after it reached the decision to impose the condition on the Appellant's registration. 2. The Appellant submits the Council did not act on the offer made by the Appellant in writing on 24 September 2018, that she would voluntary submit herself for review by the Council. The email by the Appellant to the Medical Council is set out on pages 229 to 241 of the Appellant's affidavit. The evidence to support this submission is said to be found on page 230 of the Appellant's affidavit. The words, which the Appellant now attributes to be "voluntarily submit herself for review" are found on page 230 of the affidavit and do not support the submission made. The words used by the Appellant on page 230 of the affidavit are: "I have no hesitation in inviting you to observe my conduct in future clinical interactions and offering evidence of what constitutes illegal access to my online accounts." That is an entirely different review to the interview with a Council Appointed Practitioner (psychiatrist) as required by the Medical Council. 1. The Appellant submits the Medical Council denied her the right to representation before the council for the hearing on 24 October 2018. The evidence referred to by the Appellant does not support that submission. 2. The Appellant submits she was not provided with any "particulars of any charge" which she was to face in the hearing before the Medical Council on 24 October 2018. 3. The Appellant submitted that there was a failure to accord natural justice because the Medical Council did not consider it had a duty to hear from the Appellant and if it did, to take into account her response. 4. The Appellant submits the Medical Council breached s 150J of the National Law in that it did not take action to enquire into her work history or obtain references from the Appellant's employer, other than to call for her to provide a CV. As set out below, we are satisfied that s 150J does not require the Medical Council to undertake such an enquiry. That section empowers the Medical Council to obtain evidence which it seeks in an inquiry. In any event, the Medical Council asked the Appellant for her CV and the Appellant did not provide that. 5. The Appellant has raised as a ground that there were insufficient reasons given by the Medical Council for the conditions it imposed. In particular, the Appellant submits the Medical Council did not consider the material she had provided. That material is comprised of 13 pages of typed submissions which is contained in the Appellant's affidavit commencing at page 229. The information provided by the Appellant can be adequately described, in my view, as a complaint against others with whom she had interaction in the workplace rather than addressing the concerns raised about her behaviour and mental health. She did give her view about the interaction with the named patients and parents in the complaint which had been provided by Dr Pahir. However, by not presenting herself to the inquiry, it meant the Panel had no ability to question her about her version of the disputes or her statements made in the submission which may have raised concern about her mental health at the time. 6. The Appellant submits "the Medical Council failed to exercise its jurisdiction an aspect of procedural unfairness, rendering its decision on this further basis void." The submission is that the Council failed to find that the Appellant poses a risk to the safety or health of the public that warrants action to be taken by the council. That submission overlooks the final paragraph of the decision of the Council in the section 150 hearing which states as follows: "We therefore have determined that there is sufficient risk to the health and safety of the public justify taking action under section 150 of the National Law." 1. The Appellant submits that the Medical Council failed to find she was impaired as referred to in section 150F and the definition of impairment in section 5 of the National law. 1. Some of the submission of the Appellant, as I have pointed out above, is factually incorrect. Some of the submission has been addressed earlier in these reasons and I do not re-tread that ground. 2. In relation to the claim by the Appellant that the Medical Council had refused to provide her with medical records, in contravention of s 150J, I conclude that assertion is made as a result of a misreading of the section. In relation to the claim that the Medical Council had not acted appropriately by itself failing to obtain from Redbank House copies of medical records in relation to particular named patients in the complaint raised about the Appellant, I find s 150J does not impose an obligation on the Medical Council to obtain medical records in relation to a matter under consideration by it. The section enables the Council, should it so desire, to require others to produce documents and/or provide information to it. Clearly, it would exercise that power in the process of a legitimate function of the Council. 3. In relation to the complaint that the Medical Council did not act "appropriately" in that it failed to seek and review "critical clinical material", I am not satisfied that has been established, as I set out later in these reasons. 4. The assertion by the Appellant that section 150L of the National Law required the Medical Council to refer the matter to the HCCC investigation is not, in my view, a requirement of that section. 5. I do not accept the submission that, as it took the Council more than six months to respond to the complaint entered by Dr Padhi to the Australian Health Practitioner Regulation Agency (AHPRA) on 9 February 2018, this amounted to procedural unfairness. The Appellant has not demonstrated how that was so in her case. 6. In relation to the submission that the Council failed to adhere to the NSW policy directive for managing complaints and concerns about clinicians, which sets out a due process to be followed, the Appellant has not established a requirement for the Medical Council to undertake that process or that the Medical Council is not permitted to proceed in the manner in which it did against the Appellant, either at all, or until it has complied with the policy directive. 7. The Appellant submitted the Medical Council contravened s 237 of the National Law. It is submitted that contravention occurred because the complaints made by Dr Padhi were not made in good faith. I conclude this quoted section of the National Law does not operate in the manner asserted by the Appellant. The section operates to protect from liability a person making a notification which is made or provided "in good faith". 8. In relation to the assertion by the Appellant that the Medical Council contravened section 171B of the National Law. The section provides that "at the inquiry held by the Committee, the relevant health practitioner and any complainant are entitled to attend and to be represented by an Australian legal practitioner". The section makes other provisions including the following: "(4) This section does not prevent the Committee from proceeding in the absence of the relevant health practitioner or the complainant, if the practitioner or complainant has been given notice of the inquiry." As will be seen in the recited history of this matter, which appears hereafter in these reasons, the Appellant was given relevant notice of the inquiry and the Appellant was urged to contact her professional indemnity insurer. Further, the person nominated by the Appellant as her solicitor was also notified of the hearing date. 1. The submission by the Appellant that her solicitor sought an adjournment of the proceedings before the Medical Council on 23 October 2018, is not substantiated by the evidence provided by the Appellant at page 321 of her affidavit. The letter protests the conducting of the hearing but does not seek an adjournment of any nature let alone one for "a short adjournment of days". 2. The submission by the Appellant that she was not provided with a review date for her suspension or ban is met with the answer that there is no evidence that she has, as yet, sought a review of the condition imposed upon her registration on 24 October 2018. As can be seen in the evidence referred to below, the Medical Council has endeavoured to review the Appellant's circumstances by arranging for her to attend upon a Council Appointed Medical Practitioner who could review her medical condition and provide evidence to the Impaired Registrants Panel. The Appellant has not accepted any of the appointments which have been arranged for her. 3. The Appellant's assertion that the Medical Council inappropriately said the Appellant could only review the order if there was "a change in her life circumstances" is incorrect. The decision of the Medical Council s 150 Hearing provided to the Appellant on 20 December 2018, made clear the Appellant could seek a review of the decision under section 150A of the National Law. That section empowers the Council under 150A(4) as follows: "A Council may vary or set aside a decision only if the Council is satisfied there has been a change in the registered health practitioners circumstances that justifies the variation or sitting aside of the decision." There is no reference in that section to "a change in the life circumstances" of a practitioner. Further, the Medical Council did not use those words in any communication with the Appellant which I can find in the evidence. I make no statement or conclusion as to whether there is at law a difference of consequence to this determination, between the words "Life circumstances" as used by the Appellant and the word "circumstances" as used in s 150A of the National Law. 1. The Appellant has submitted that the Medical Council denied her representation at the hearing before it on 24 October 2018. That submission is not correct and evidence to the contrary has been provided by the Appellant in annexes to her affidavit. The Appellant was urged by the Medical Council to contact her professional indemnity insurer at a very early stage in the communication between the Medical Council and the Appellant. The Medical Council also wrote to the person nominated by the Appellant as her solicitor. Some of that correspondence is identified and referred to in these reasons. 2. The submission by the Appellant that she was not provided with any details of any charge which she was to face before the Medical Council on 24 October 2018 misunderstands the purpose of the hearing on 24 October 2018. The purpose of the hearing was not to hear "a charge" against the Appellant. The purpose was to determine if the Appellant was impaired as a practitioner and, if so, what protective orders needed to be made. Details of the circumstances leading to the hearing on the 24 October 2018 were provided to the Appellant. The details were encompassed in a document created by Dr Padhi and others, detailing concerns about the Appellant's interaction with patients, patient's parents and other staff while she worked at Redbank House. 3. The submission by the Appellant contends there was a failure of natural justice because the Medical Council did not consider it had a duty to hear from the Appellant and, if it did, to take into account her response. The statement referred to by the Appellant merely recognises the statutory power imposed on the Medical Council during a hearing, pursuant to section 150 of the National Law. Section 152H enables a Council "Impaired Registrants Panel" to conduct an inquiry in the absence of the registered health practitioner where the practitioner has been given notice of the inquiry. In this matter, the Medical Council gave the Appellant an opportunity to appear before the Panel personally, by phone or through representation. 4. I pause here to refer to the submission of the Medical Council provided on 21 February 2020. This submission was referred to by the Appellant in her Consolidated Submission at paragraph 135(i). She submitted the Medical Council "expressly concedes that 'there is an argument to be had' by the Appellant, arising from the failure of the Medical Council to afford to the Appellant natural justice in making their decision." However, what had been said by the Medical Council in that submission addressed the proposed ground of appeal by the Appellant which was stated to be: "The decision was made in breach of the rules of natural justice and for that reason also made in jurisdictional error." This statement recognised the circumstance that the condition was imposed upon the Appellant's registration without the Medical Council hearing personally from the Appellant. It is necessary however, to see what the Medical Council had actually submitted about that matter. 5. The Medical Council submitted: "[18] The Council acknowledges that there is an argument to be had about the second question of law framed at paragraph 1(ii) of Exhibit A3. [19] However, the Council submits that the merits of the Appellant's appeal on that question of law are not strong because the Appellant was given every opportunity to be heard at the s 150 proceedings on 24 October 2018: she was first notified of the proceedings on 11 October 2018 (Respondent's Documents (also Exhibit A1) tab 3 f 23), she was given the date of the proceedings on 12 October 2018 (Respondent's Documents (also Exhibit A1) tab 3 f 21-22), she was given further notice with a brief on 17 October 2018 (Respondent's Documents (also Exhibit A1) tab 1 ff 1-5), and the Council sought to make contact with her so she could be heard by telephone on 24 October 2018 (Respondent's Documents (also Exhibit A1) tabs 5 and 6). No explanation was given as to why she and/or a suitable legal advisor were physically unable to attend on that day, only a general explanation from a solicitor that she must give priority to other Court proceedings (Respondent's Documents (also Exhibit A1) tab 2 f 7) and a general admonition that a legal advisor should be able to attend – something that the Council had never sought to deny her –and that the availability of a legal representative would need to be considered (Ibid.; see also Respondent's Documents (also Exhibit A1) tab 4 f 122). [20] No explanation was offered for either why a legal representative was not sought from 11 October 2018 or why no legal representative could be found to attend on 24 October 2018. It is submitted that the content of procedural fairness afforded for the purpose of s 150 proceedings, which are intended to be protective of the public, does not extend to an Appellant, absent any real explanation for not being able to attend at the time proposed by the Council, being able to dictate a time that is convenient for her and/or her legal representative to attend such proceedings." 1. The other relevant submission put by the Medical Council later in its submissions is that the decision of the Medical Council is only interim in nature, and the Appellant could use s 150A to review the decision when she was ready to meet with the Medical Council. 2. The Appellant submitted that the Medical Council failed to find she was impaired pursuant to section 150F and the definition of impairment in section 5 of the National law. That definition is: "impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affect or is likely to detrimentally affect (a) for a registered health practitioner or an Appellant for registration in a health profession, the person's capacity to practice the profession." 1. Contrary to the submission of the Appellant, the Council did consider there were two identified areas of probable risk in the matter. The term "probable risk" is referable to the public. The second last paragraph of the reasons provided by the Council for imposing the conditions on the Appellant's Registration, identify the risk which concerned the Medical Council. 2. In support of the conclusions reached in relation to submissions made by the Appellant, which attack the jurisdictional competence of the determination by the Medical Council to impose the conditions complained of by the Appellant, I here set out portions of the evidence, largely provided by the Appellant in this matter. 3. The letter of 22 August 2018 from the Medical Council to the Appellant appears at page 182 of the Appellant's affidavit, affirmed 3 February 2020. The letter enclosed a copy of the complaint from Dr Padhi. The letter stated: "Before any further consideration, we are inviting you to make additional comments on the issues raised. The Council is concerned about your manner and poor attitude towards colleagues and patients whilst employed as a visiting medical officer at Redbank Acute Adolescent Unit. We have received a copy of your response to the Commission dated 17 July 2018. If you wish to provide further comments, please ensure this is received by 11 September 2018. You may wish to contact your medical defence organisation before responding. Please note that Dr Padhi may be provided with a copy of your response, however medical records will not be released. Our website provides useful information about what happens when a complaint has been made about you. If you have any questions please contact me (Number provided). The letter is signed by Gina Tomasiello, Assistant Program Officer-Conduct" 1. The letter of 22 August 2018 was sent by email to the Appellant. It had two attachments described as "Complaint dated 9 February 2018 and Response dated 17 July 2018". The Appellant responded by email the same day acknowledging "the contents including attachments I have received and reviewed." 2. The complaint document from Dr Padhi detailed the concerns he had and the reports of interactions between the Appellant and patients and staff. Dr Padhi said he had a conversation with the Appellant on 12 January 2018 and subsequently with her locum agency. He concluded with the following words "during my limited interaction I believe she is unwell and needs urgent medical attention." The notification was made by Dr Padhi to AHPRA on 9 February 2018. 3. At page 223 of the affidavit of the Appellant is a response dated 11 September 2018 from the Medical Council to the email of the Appellant dated 10 September 2018. It refers to the responses from the Appellant dated 10 September 2018 and 22 August 2018. It apologises for the delay in response. It advises that the Council is unable to offer an extension of 90 days as a delay of that length would mean delaying the matter going before the Conduct Committee. However the time was extended until 24 September 2018. It further advises that "as your response to the Health Care Complaints Commission was extensive you do not need to provide a further response to the Medical Council." The letter advised that "you will be contacted a few weeks after the Conduct Committee meeting on 9 October 2018, with the outcome." 4. The email from the Appellant to the Medical Council of 10 September 2018 requested the 90 day extension to respond to the complaint received. The Appellant informed the Medical Council that she had submitted "Lengthy complaints to the HCCC and the Independent Commission Against Corruption in relation to the matter". She advised that the complaints are the subject of legal proceedings due to a history of severe workplace abuse which has necessitated legal action." The Appellant advised that her solicitor was Mr Peter McKell. 5. On 24 September 2018, the Appellant sent to the Medical Council a 13 page response to the complaint. The response contained lengthy complaints by the Appellant about Dr Padhi and then addressed each of the details of the complaints which had been received by the Medical Council and forwarded to the Appellant for her response. I note here the evidence that there was no complaint made directly to the Medical Council about the Appellant. The complaint was provided to the Medical Council by the HCCC. 6. On 12 October 2018, the Appellant was advised by email from the Medical Council that: "The Council's Conduct Committee resolved that urgent proceedings should be held in line with section 150 of the Health practitioners Regulation National Law (NSW). In ensuring the Council complies with its obligations to protect the public, it aims to hold proceedings as soon as possible. This matter has just been set down on Wednesday, 24 October 2018 at 10 am. The hearing will take place in the Medical Council Hearing Rooms, Gladesville Hospital. Full details, including a map will be provided to you next week including the brief of documents." Attached to the email were a number of documents including "s150 Brief (Documents 1 to 8) and a copy of a letter from the Medical Council dated 17 October 2018. The Appellant has included those documents between pages 246 and 303 of her affidavit. 1. On 19 October 2018, the Medical Council wrote to the Appellant by email requesting a copy of her "CV for the hearing next week." 2. On 22 October 2018, the Medical Council wrote to Mr McKell, the solicitor nominated by the Appellant in correspondence with the Medical Council prior to that date. The letter advised of the hearing to be held on 24 October 2018. The letter informed: "The Medical Council will be holding proceedings under s150 of the National Law on Wednesday, 24 October 2018 and these proceedings can occur in (the Appellants) absence." 1. At page 307 and 308 of the Appellant's affidavit is a printout from the Federal Court of Australia which shows the Appellant instituted proceedings in that Court on 21 August 2018. The proceeding was against "Royal Australian And New Zealand College of Psychiatrists and Ashwini Padhi. On 18 October 2018, Justice Flick made directions in that case. The order required the Appellant (named as the Appellant in that proceeding) to file and serve all evidence by 23 November 2018. The proceeding was stood over to a "case management hearing" on 19 December 2018. 2. On 23 October 2018, Mr Peter McKell, solicitor, responded to the email from the Medical Council and informed the Council as follows: "I do not act for (the Appellant) in this matter but she does seek advice time to time generally. Regarding the hearing on 24 October 2018 my advice to her is that she should attend at the time and place convenient to both parties and 24 October 2018 is not convenient due to her self representation in several court matters where she has pressing timetables she cannot ignore and must give priority. She accordingly advises she will attend a hearing on a convenient date once these commitments are completed which takes up most of her time at present, and I have also recommended she appears with legal representation whose availability will also need to be considered. Accordingly she requested a postponement or maintains she will be denied natural justice." 1. The letter from Mr McKell was responded to by the Medical Council on the same day. The email advised that "the s150 proceeding will occur tomorrow at 10 am." The email provided a recommendation that the Appellant attend the hearing in person, however, it said "if as (the Appellant) states in her email of 19 October, she will not be attending, this can also be done through written submissions to the Council". The email also advised that the Appellant could send a submission by email which would be provided to "the delegates". 2. On 24 October 2018, the Medical Council provided to the Appellant a letter dated 23 October 2018, which provided her with the "Practice Conditions" which she could consent to. The letter stated: "The Medical Council of NSW has scheduled a s150 Proceedings to be held on 24 October 2018 as the Council has decided to consider whether it is appropriate that it take immediate action to protect the health and safety of the public or otherwise in the public interest. If the council considers that action is appropriate it can either suspend your registration or impose conditions on your registration. You are entitled to be heard in relation to this matter and the Council intends to convene a hearing for this purpose. The Council received an email from Mr McKell, dated 23 October 2018, stating that you are requesting the matter be postponed due to your ongoing court commitments. Due to the nature of s150 Proceedings being urgent interim action, the Council must be assured of the ongoing protection of the health and safety of the public if it is to postpone proceedings as requested. As such you may consent to the following conditions being imposed on your registration via the process set out in section 41P of the Law (enclosed): Practice Conditions: 1. Not to practice medicine. 2. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions." The letter advised that the Appellant could sign the enclosed consent form and return it to the Council: "If the Council do not receive the signed consent by 10 am on 24 October 2018, the Council will (be) proceeding with the hearing as scheduled. At this time the delegates may phone you to allow you to present information via phone." 1. Importantly, for the purpose of this ground of appeal, the letter of 23 October 2018 from the Medical Council to the Appellant contained the following: "Review You may apply to the Council for a review of the conditions (including conditions you have consented to) at any time. If you apply for a review the Council will consider any change in your circumstances and whether the public would be appropriately protected if any requested changes were made." 1. On 24 October 2018 at 10.31am, Mr Peter McKell wrote to the Medical Council advising that he now acted for the Appellant and had been provided with a copy of the letter from the Medical Council dated 23 October 2018. He objected to the proposed course of action set out in the letter. He asserted no particulars of the charge against the Appellant were provided in the letter. He claimed it was contrary to the interests of natural justice to proceed to hear and determine her suspension or removal from the profession in the manner set out. He advised he had been informed by the Appellant that the adjournment sought had been refused. She had told him the Medical Council proposes to proceed in her absence. He informed the Medical Council "It is clear in the circumstances that the proposed hearing cannot proceed." At 10.31 am on 24 October 2018, the Medical Council sent an email to the Appellant responding to her email which had been sent that day at 9:37 am. The Medical Council advised: "The delegates are currently reviewing the information you provided. They would appreciate being able to talk to you about this matter in order to allow them to make a decision about an appropriate course of action. They are proposing to call you at 11 am on your mobile phone. I have left a message on your mobile as well with this information. The delegates also requested again that you provide a copy of your CV which will assist them as well." 1. The email from the Appellant to the Medical Council at 9.37 am on 24 October 2018 stated as follows: "thank you for your email. I have received and read your email and attachment. I do not feel I can sign any letter without consultation with my legal representatives, including my barrister who has been actively involved in this matter to date for some time. I received your email at 1650 yesterday and it is impossible for me to respond to this matter without further time to allow such consultation. We sent an extensive complaint to the HCCC in March of this year, can you please advise if the board has read this or if you would like us to forward this document? I sincerely thank you for understanding the set of circumstances before me including current proceedings in the Supreme Court of NSW exploring the very complaint upon which you are responding." 1. At 11.07 am, the Medical Council sent an email to the Appellant advising that it had tried to contact her on her mobile phone from the hearing room with the delegates. It stated that the delegates would like to have an opportunity to discuss the matter with the Appellant in order that they could then undertake a risk assessment. The Appellant was advised that the delegates would remain at the hearing until 12 noon to give her an opportunity to call. The phone number for the hearing room was provided. 2. On 24 October 2018, the Medical Council sent a letter to the Appellant advising that the Council had imposed conditions on her registration. The conditions included a Practice Condition "not to practice medicine". 3. On 20 June 2019, the Medical Council sent the Appellant and the Appellant's solicitor a letter (undated). The letter is set out at page 387 of the Appellant's affidavit of 3 February 2020. The letter enclosed a copy of the section 150 Decision of 20 December 2018 (at tab 9 of the Respondents material). That decision imposed the following conditions on the Appellant's registration "as of 24 October 2018". The Practice Conditions are re-stated as follows: "1. Not to practice medicine. 2. To authorise and consent to any exchange of information between the Medical Council of New South Wales and Medicare Australia for the purpose of monitoring compliance with these conditions." The decision also gave rise to a Referral which was stated as follows: "given our conclusion that (the Appellant) is impaired and because of our concerns for her mental health, we referred this matter to an Impaired Registrants Panel subject to the consultation provisions of section 150F of the National Law." Under the heading at the conclusion of the decision, "Appeal and Review Rights", the following is set out: "(The Appellant) has the right to appeal these conditions to the NSW Civil and Administrative Tribunal. And appeal must be lodged with the Tribunal within 28 days after notice of the action taken by the Council under section 150 of the National Law (NSW) has been given to the practitioner. The (Appellant) also has the right to seek a review by the Medical Council of this decision, under section 150A of the National Law. Under section 150C of the National Law (NSW) the Council may also, at any time, alter or remove conditions imposed on (the Appellant's) registration as a result of these proceedings." 1. In a letter attached to the email to the Appellant (undated) but referring to an email from the Appellant of 21 June 2019, (at page 387 of the Appellants affidavit) the Medical Council answered the Appellant's question as to why the Medical Council wished to send her to an assessment by a Council-appointed practitioner. The Medical Council said in that letter: "As to why the Council wishes to send you to an assessment now, this is because the imposition of conditions under section 150 of the Health Practitioners Regulation National Law (NSW) is an interim measure pending further action. In other words, these conditions are not intended to remain in place indefinitely." The letter further advised that the assessment by a Council Appointed Practitioner and an Impaired Registrants Panel is to consider if conditions imposed continue to be necessary. The letter further said: "Please be aware that proceedings you may have commenced against the Council do not affect this process." 1. By letter dated 20 June 2019 to the Appellant, the Medical Council advised that the Appellant must undergo an examination by a Council appointed psychiatrist in order to obtain an independent assessment of her health. The name and address of the practitioner together with the date and time of an appointment was set out in the letter. 2. By letter dated on or about 29 June 2019, the Appellant advised the Medical Council that she was seeking an injunction against the Council. That order was being sought in the Supreme Court of New South Wales. It was implicit in the reply that the Appellant would not be attending upon the appointment with the Council Appointed Practitioner. 3. By a letter dated 7 January 2020, the Medical Council advised the Appellant that a further appointment for her to attend upon a Council Appointed Practitioner had been made. The name and address of the practitioner were provided and the date and time of the appointment was provided. The Council said: "the Council has freshly considered the available information and decided that you must undergo an examination by a Council Appointed Practitioner (psychiatrist) under section 152B" of the National Law. The Respondents submissions 18 September 2020 1. The Respondent firstly protests that the Appellant has not presented a consolidated submission but rather the Appellant has taken the opportunity to substantially reword and re-argue the whole of the Appellant's submission in chief. This is outside the direction made by the Tribunal and results in unfairness and particularly cost to the Medical Council. Further, the Medical Council submits the Appellant has rearranged and renumbered the grounds of her appeal. 2. The Medical Council, I agree sensibly, resolved not to restate its earlier extensive submission, rather it chose to address what was seen as a response to the direction of the Tribunal to address the decision in Ghosh and also address what it sees as new grounds or new arguments addressing the original grounds. 3. The Respondent submits that the Health Services Act 1997 has no relevance to the Council or these proceedings. It submits that the evidence shows the allegations were brought to the attention of the Medical Council by the HCCC. 4. The Respondent otherwise relied upon its submissions dated 13 March 2020 paragraph [91] to [105]. 5. The Respondent submits there are no special pre-requisites to the exercise of the section 150 power for impairment matters. It submits that any alleged failure of the Medical Council to follow a process after the Council's decision was made under section 150 cannot constitute an error of law in the Council's decision. It submits that the required process for impairment was followed and is identified in exhibit A1 and in the Respondent's documents found in exhibit A1 up to Tab 22. 6. The Respondent says that Tab 10 of the Respondent's material demonstrates the HCCC agreed with the Council during the consultation process, that the Appellant should be referred to the Impaired Registrants Panel. I note that the letter dated 14 January 2019 from the Medical Council to the Appellant at Tab 10 of the Respondents material advises her of that outcome. 7. The Respondent referred to the evidence of the Medical Council making an appointment for the Appellant to attend upon a Council Appointed Practitioner. The Medical Council advised the Appellant the process is an opportunity for her to return to work. On 16 July 2019, the Appellant's solicitor wrote by email to the Medical Council advising the Appellant "has been advised not to attend the medical appointment arranged, particularly where legal proceedings are currently before the court." (Tab 20 Respondents material) 1. On 7 January 2020, the Medical Council again wrote to the Appellant appointing a time for her to attend before the Council Appointed Practitioner. The Appellant, in her submission to the Tribunal, attributed some ulterior motivation on the Medical Council's part in making the appointment. The Appellant did not accept the appointment, nor did she attend on same. 2. The Respondent addressed specific submissions by the Appellant on this ground. Those which were addressed are largely identified earlier in these reasons. 3. The Respondent addressed the submission by the Appellant that the Council had failed to record the proceedings as required under section 150B. The Respondent submitted that the section, in fact, makes it clear that no audio recording is required if the practitioner is not present or if oral information is not given by a third party. 4. In answer to the submission by the Appellant (at paragraph [26] of her submissions) that the Council failed to use section 150J to obtain medical records and evidence, the Respondent referred to the decision by Hall J in Lindsay v NSW Medical Board [2008] NSWSC 40 (Lindsay), which made clear section 150 proceedings are not full blown adversarial proceedings. The delegates are not attempting (and indeed are precluded from) making final determinations on whether allegations can be proven. 5. In response to paragraph 27 of the Appellant's submissions, the Respondent said that under section 150D(5) that provision does not apply if the action is taken under section 150F because, in the Council's opinion, the practitioner has an impairment. In such circumstances, section 150F is the correct course for those cases. 6. In relation to paragraph 28 of the Appellant's submission, the Respondent submits that the submission of the Appellant is misconceived because section 150F(6), following as it does subsections (4) and (5), and referring as it does to "the complaint", is referring to the complaint the subject of subsections (4) and (5). The Respondent submits that if the HCCC and/or the Council are not of the opinion that the matter should be dealt with as a complaint under those subsections, there is nothing to investigate under subsection (6). Determination of this Ground 1. I conclude that the Appellant has failed to make out the ground, or make a case to establish that she has a case to argue on Appeal which might have some merit. I agree with the submission of the Respondent that the ground of appeal is misconceived or is likely to be so found if leave to appeal was granted in this case. Appellant's submission that "The Councils Role is That of a Protective Jurisdiction Not Punitive" 1. In this submission, as part of the consolidated submission dated 28 August 2020 and signed by the Appellant's counsel, the ground is stated to be part of ground 2. 2. The Respondent, in addressing this ground, suggests it possibly falls under a "No admissible evidence ground". The Respondent submits that the submission provided by the Appellant, under the above set out heading: "has nothing to do with the "no admissible evidence" ground and appears to be a new 5th ground based on a failure to take into consideration matters that the Appellant alleges were required to be taken in to account". I agree with that summation of the Appellant's submission under the subject heading. 1. The Council's submission on this heading are set out as follows: [32] The Appellant asserts that the following were factors that should have been considered but were not: (a) whether her conduct was deliberate or reckless; (b) whether the practitioner demonstrated insight; (c) what efforts the practitioner made to improve skills and knowledge following the complaint or notification; (d) what other contributing factors may have played a role in the conduct in question; (e) whether there is a pattern of behaviour; and (f) the potential for harm. [33] The Appellant's submissions on each of these matters effectively assert that the Council should have taken each of these matters into account in a particular way and to a particular extent. [34] It may be noted that none of these considerations appear expressly in the text of s 150 of the National Law. The only guidance given by the statutory language is that the Council (or its delegates, in this case) must make an Order of a prescribed type if "at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest'. These words are necessarily broad in the discretion they confer as to when it might be "appropriate" for the protection of the health or safety of persons, or the public interest, given their purpose in providing interim protection for the public. [35] In Aboriginal Affairs, Minister for v Peko-Wallsend Ltd (1986) 162 CLR 24 at [55] Brennan J considered: "The Court has no jurisdiction to visit the exercise of a statutory power with invalidity for failure to have regard to a particular matter unless some statute expressly or by implication requires the repository of the power to have regard to that matter or to matters of that kind as a condition of exercising the power". [36] In Foster v Minister for Customs & Justice (2000) 200 CLR 442 at [23], Gleeson CJ and McHugh J referred to this principle and considered that (omitting references): "The level of particularity with which a matter is identified for the purpose of applying this principle may be significant. A related question arises where the failure complained of is not a complete failure to address a certain subject, but a failure to make some inquiry about facts said to be relevant to that subject". [37] Gaudron and Hayne JJ in Foster [38] considered: "The relevant state of satisfaction is of matters described in qualitative terms which call for the making of value judgments about which reasonable minds may differ". [38] These principles have been applied in other administrative law contexts in New South Wales and Federally for the proposition that a decision maker is not bound to take into account "in a particular manner and to a particular extent even those matters that are (expressly or impliedly) prescribed by the statutory scheme (see Drake-Brockman v Minister of Planning [2007] NSWLEC 490; (2007) 158 LGERA 349 at [126] per Jagot J; Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (No 2) [2012] FCA 403; (2012) 187 LGERA 161 at [83]-[84] per Besanko J (upheld on appeal). At least, it may be said that a requirement to take matters into account in a particular manner and to a particular extent is not required unless that requirement is disclosed (expressly or impliedly) by the statutory scheme. [39] In this case, there is nothing in s 150 of the National Law that required the stated matters specifically to be taken into account in the way that the Appellant contends and, even to the extent that aspects of those considerations might have been potentially relevant here, it is contended that the delegates of the Council properly took into account matters it was entitled to take into account for the purpose of s 150, arising on the materials before it. There is also nothing disclosed in the Council's Reasons that would suggest that the power was being exercised for "punitive" purposes, rather than for the proper purpose of s 150. [40] Section 150 is of the same type as other statutory provisions from which the decision maker's obligation to take particular matters into account (at the level of specificity of those considerations proposed by the Appellant, anyway) cannot be discerned, with the consequence that it cannot be the "the source of any obligation to take particular matters into account, in point of detail". [41] There was no error of law disclosed in the Council's review of the materials before it and the considerations that it took into account for the purpose of s 150 of the National Law. It also clearly identified the potential for harm, including insofar as it identified "two areas of probable risk" in its reasons. [42] The Appellant's submissions on this 5th ground are also replete with references to fresh evidence and new assertions that were not in the materials placed before the delegates of the Council at the time the decision was made. This is irrelevant to a s 159B appeal. The Appellant had an opportunity to place such material before the delegates of the Council at the time and the delegates considered so much material as had been provided by the Appellant. [43] To the extent that the Appellant appears to be challenging the merits of the decision, this could only properly be done by way of a s 159 appeal, which the Appellant has withdrawn. If the Appellant proposes to re-agitate a s 159 appeal it should do so clearly and the Council should be given an opportunity to call the full scope of merits evidence that it would have tendered if the Appellant had proceeded with its merits appeal on the first day of the hearing. 1. I accept the submission of the Respondent, in relation to the above heading. I agree the submission of the Appellant departs from matters which are relevant to an appeal under s 159B. The Appellant cannot, at this time, change again the nature of the Appeal she brings and revert to an appeal which in part, now addresses a matter which could have been pursued had she not abandoned her appeal under s 159. To the extent that the ground sought to be pursued is one of "No admissible evidence", I find no merit in that ground. I accept the submission of the Respondent on that ground. Evidence and related issues in the Council Proceedings [Ground 2] 1. The Appellant addressed the above heading in her consolidated submission dated 28 August 2020. 2. In paragraph 104 of her submission, the Appellant addresses her right to a new hearing with fresh evidence. Such an appeal would be available to her under s 159 of the National Law. However, the Appellant elected to abandon the appeal she had originally filed under that section and proceed with an appeal under s 159B. That is an appeal on a point of law. 3. The Respondent, in its submission in response, points out that it had prepared for an appeal by the Appellant based upon s 159. That preparation included the accumulation of the evidence it would have called in support of it's case. The Appellant cannot now change the nature of the appeal again. 4. The Appellant then submitted that the Council proceeded with an absence of admissible evidence on the allegation of impairment. The Appellant detailed her support for that submission. Some of the submission addresses occurrences which post-date the making of the order for conditions to be imposed upon the registration of the Appellant. 5. The Medical Council provided a comprehensive and well-argued submission in relation to this "new ground" of the Appeal, which the Appellant would pursue if leave is granted. I here include part of the submission relied upon by the Medical Council: "From paragraph [107] the Appellant addresses the substance of Ground 4 that the Council allegedly "proceeded upon an absence of admissible evidence of the allegation of impairment'. [47] Firstly, the principles from Lindsay v NSW Medical Board [2008] NSWSC 40 which demonstrate why this ground is misconceived are already addressed in the Council's Submissions. In particular: (a) the material relied on may include material that would not conventionally be considered as strictly evidentiary in nature, such as complaints and allegations™ (that is, as explained in more detail in the Council's Submissions there need not even be a "complaint" within the meaning in the National Law); (b) an allegation will be expected to have been made or confirmed in writing, whether or not it has yet been reduced to a formal witness statement (quote from Lindsay at [78]) (c) the source and potential seriousness of the complaint will be relevant to the weight to be given to it; and (d) observations and conclusions for the purpose of s 150 are not to be equated with findings on material questions of fact (the interim process does not involve making findings of fact or the determination of the merits of an allegation) (quote from Lindsay at [79]). [48] Secondly, there was plenty of material of the type identified in Lindsay that the delegates of the Council had before them. See the Council's Submissions from [48]-[69] as to the summary of the events leading up to the decision and the references to materials in the Respondent's Documents that were before the decision maker. The delegates' reasons specifically indicate on page 5 "Before us was a complaint detailing concerns raised by the Director of Clinical Services, two other medical practitioners, including an advanced trainee in psychiatry, an acting Nursing Unit Manager and acting Operations Manager...". It is not correct that the delegates only considered the allegations of Dr Padhi (cf Appellant's New Submissions at [113]). [49] This is not "no evidence" of the type that has founded an error of law in the authorities referred to in [108] of the Appellant's New Submissions. Further, the Appellant understates the extent of material that was before the delegates of the Council, and that was recorded in the reasons as having been considered (including material provided to the Medical Council by the Appellant herself), at [109] and [110]-[113] of the Appellant's New Submissions. The fact that the Appellant considers some of that material to be "flawed" or that the person making the allegation had no clinical qualifications (at [109]) is wholly irrelevant to the question of whether the Council's delegates made an error of law. Section 150 does not require the allegation to come from a medical practitioner. There was no delay in the expedition with which the Council acted after it was made aware of the allegations given the circumstances identified at [54]-[58] and [73] of the Council's Submissions. [50] Thirdly, the allegations from Dr Padhi did not need to constitute "evidence of an expert opinion as to psychiatric impairment or diagnosis", or evidence that would have been admissible under the Evidence Act 1995 (cf Appellant's New Submissions at [114]), for it to be a relevant consideration for the delegates of the Council under the principles in Lindsay. The fact that the allegations came from a doctor, even if he was not yet a qualified Australian psychiatrist or member of the RANZCP as the Appellant alleges, gave the source of the complaint sufficient gravitas for it to be given the weight the delegates gave it, in the sense referred to in Lindsay. The fact that he was allegedly junior to the Appellant and "merely an administrative clinical director", to use the Appellant's words, far from assisting the Appellant, tends to suggest that he was in a role with sufficient authority that the delegates were entirely correct to give the allegation the weight they did. [51] There was no question of some final diagnosis of "psychiatric impairment" and the "observations or conclusions" of the Council's delegates (to use the words from Lindsay) for the purpose of s 150 (including even the "impairment" reasoning and conclusions) do not constitute final findings or diagnoses. The Appellant's New Submissions confuse "psychiatric impairment" with "impairment" under the National Law: the latter is not a medical diagnosis but, as the Council's Submissions identify at [96], is a defined term in s 5 of the National Law. The delegates did not need to have an "opinion" of somebody else in front of them somehow diagnosing "impairment". Section 150F makes it clear that whether there is an "impairment" is a matter for the "opinion" of the delegates. Indeed, the whole purpose of s 150F is that any interim "opinion" (see the language in s 150F(1)) that there is an impairment for the purpose of s 150 translates into a process where that "opinion" can be fully investigated - either by an Impaired Registrant's Panel process or by a formal complaint. Further, "impairment" is not a prerequisite to the exercise of power under s 150 in any event - an "opinion" as to impairment, if it is one of the bases for making Orders under s 150, is something that has necessary consequences under s 150F, but Orders can be made under s 150 without there being an impairment. [52] Fourthly, that the Western Sydney Local Health District (WSLHD) may have "retracted any diagnosis or evidence of mental illness on Day 10 ofSC2018 relating to paragraph 72 of [Dr Padhi's] affidavit which made allegations of paranoia of the Appellant and inferences made regarding the two families" (if that is indeed what the affidavit referenced at paragraph [117] fn 86 of the Appellant's New Submissions shows - because so much is not clear on the face of the relevant paragraphs of that affidavit - but let it be assumed for the purpose of these proceedings that this submission can be taken at its highest), has no relevance to whether the delegates of the Council were in error in the Council's Decision. [53] The fact that an entity that is neither Dr Padhi nor the Medical Council withdrew an allegation asserted to be made by Dr Padhi in proceedings in another jurisdiction outside of the Tribunal, where those proceedings are dealing with another question, long after the Council's Decision was made, has no relevance whatsoever to an appeal in connection with alleged errors of law in respect of the Council's Decision. As above, the delegates did not base the Council's Decision wholly on Dr Padhi's allegations (there were others). Dr Padhi's opinion was not the relevant "opinion" for the purpose of "impairment" - it was no more than an allegation and one factor to be taken into account. WSLHD's motivations for withdrawing the allegation in the other proceedings are not disclosed in the evidence in any event. [54] Further, and possibly most importantly, if the Appellant's assertion is that the decision should be reconsidered on the basis of some change in circumstances associated with alleged new evidence that Dr Padhi's complaint is misconceived, there are two ways in which the Appellant could achieve that: either by way of a s 159 appeal to the Tribunal where the merits of the decision could be reviewed as at the date of the Tribunal's decision (which type of appeal the Appellant specifically abandoned on the first day of hearing) or by making a s150A application to the Council for a review of the condition. The Appellant has so far chosen to take neither course. [55] For completeness it is noted: in respect of the Appellant's New Submissions at [115], that section 150J of the National Law does not "require" anything (see [104(c)] of the Council's Submissions) and certainty does not require "release" of medical records that the Council does not have (or for the Council to obtain them); and I am instructed that the Medical Council disputes any allegations (all of which are unsupported by evidence) that the Medical Council has "excluded relevant emails to make false allegations", "manipulated evidence" or engaged in "deceit" (Appellant's New Submissions at [118]-[120] - and where-ever appearing elsewhere in those submissions). 1. I find the Council's submission on this ground compelling and accept the submission as an answer to the ground of Appeal which the Appellant would seek to pursue if granted leave to appeal. 2. The Appellant provided a submission under the heading of "Prohibiting the Council from Further Action until Conclusion of All Court Proceedings" 3. The Appellant submits, presumedly on the basis that the Tribunal would find in her favour and grant her leave to appeal the decision of the Medical Council which imposed conditions on her registration: "The Council ought be prohibited by this Tribunal as soon as possible from taking additional or further actions against the Appellant." 1. No head of power which would enable the Tribunal to make such a prohibition is cited by the Appellant. The Appellant submitted in support of her submission that the Council has the intention to continue to apply conditions to the Appellant irrespective of the outcome of these proceedings. However, there is nothing provided in the submission to demonstrate the Council has any such intention. 2. The Respondent submits there is no power for the Tribunal to make the order sought or take any action to achieve the result which the Appellant seeks in the subject submission. 3. I conclude there is no basis for the submission put by the Appellant and, in any event, it does not address a ground of possible Appeal. Rather, it is founded upon a presumption that leave to appeal will be granted and that the appeal would succeed. Those two outcomes are yet to be achieved by the Appellant. Appellant's submission in Reply 1. On 25 September 2020, the Appellant filed a reply submission which she titled "Reply of the Appellant to Medical Council's Submission of 18 September 2020." The submission is signed "The Appellant 25 9 2020" i.e. it has not been signed by her counsel, or her solicitor, unlike her consolidated submission earlier referred to. 2. In that submission, the Appellant submitted that the matter should be relisted again to enable a brief oral or AVL hearing: "to take the Tribunal briefly through the consolidated written submissions of the parties, being due process sought and agreed to by both parties in their respective submissions." 1. Since the filing of the above referred to submission, the Appellant has also filed a document titled "Application for Stay or Interim Order". The document was filed by email on 22 October 2020. One of the orders sought is: "The arguments of the parties be presented orally having regard to their written submissions by direction of the presiding member Le Poer Trench AJ." This application will be addressed further in these reasons. 1. The submission was largely not a reply to the submission of the Respondent, rather, it restated submissions provided earlier by the Appellant and then added to the submissions in a manner which was not a reply. The Appellant provided further submission about the decision in Ghosh. 2. In general, it is reasonable to say that a Submission in Reply should be confined to addressing factual and/or legal errors identified in the submission under reply. It may also include reference to evidence which would contradict the proposition being asserted in the submission under reply. There is no other prescription as to how a submission in reply ought by confined in the National Law or the NCAT Act. Likewise the Uniform Civil Procedure Act and the Supreme Court Rules. 3. Some of the submission is difficult to follow, however, I accept the Appellant was dissatisfied with the actions of the Medical Council post the making of the Conditions in relation to which the Appellant seeks leave to appeal out of time. 4. There is nothing in the submission from the Appellant which is a submission in Reply. The submission consists largely of a restatement of the earlier submission, which we have already considered, or an attempt to revisit and expand the submission made on 28 August 2020 without leave of the Tribunal or consent of the Medical Council. Otherwise, the submission does in some areas excurse into submission which is not relevant to the merit of the Appeal she wishes to have heard, or the circumstances which otherwise might be relevant to the question of leave being granted to her. Application for Stay or Interim Order filed by the Appellant on 22 October 2020 1. The Appellant filed an application on 22 October 2020. The application was titled "Application for stay or interim order". In that application the Appellant sought 4 orders. The orders sought were as follows: 1. That the proceeding be re-listed forthwith to be heard and decided according to equity, good conscience and substantial merits. 2. The arguments of the parties be presented orally having regard to their written submissions by direction of the presiding member Le Poer Trench AJ. 3. Further to the foregoing orders that a further conduct of the proceedings be expedited. 4. Costs. 1. I note in the Application there is no order sought which could be described as a stay. 2. In response to the filing of that Application, the Registrar sent the following communication to the Appellant: "I refer to the application for stay or interim order that has been filed by the Appellant. The application has to be listed before the presiding Member Judge le Poer Trench. The first available date that the Judge is available is the 14 December 2020. I have been advised that the panel is proposing to deliver the judgment before the 30 November 2020. Please advise whether you still will require the application for stay to be listed. Registrar" 1. On the 3 November 2020, the Appellant wrote: Dear Registrar, Thank you for your correspondence. Should I suggest one course over another would cause me to influence the administration of justice. I ask the Tribunal to reach a decision as to whether the application for a hearing will cause prejudice or harm in being denied or allowed with respect to the Tribunal's final judgement. I anticipate that with every application filed such as the most recent one in question, the reasons for any decision would be published by the Tribunal. Kind Regards, [name redacted] 1. On 6 November 2020, the Appellant again wrote to the Registrar with the following: Dear Registrar Further to my email on 3 November 2020, it is unclear what evidence the Tribunal relies upon for its decision based on the last orders following the directions hearing. Given that without knowing this and the seriousness of my claim, it would be preferable to be granted a hearing in reference to my application for an interim order. I still feel that the decision that I have been asked to make is difficult and presents disadvantages either way in explaining the rationale in my last email without any intention to cause difficulty or confusion. Kind regards, [name redacted] 1. Having directed that the parties provide their submissions in writing and, given that direction has been complied with by both parties, I can see no purpose in re-listing the matter for further oral submission which addresses only the submissions already provided. Further, the conduct of the proceedings has now been extended over a relatively lengthy period which commenced on 20 February 2020. I propose therefore to deliver our reasons in this matter and vacate the return date of 14 December 2020, as it will become unnecessary. Determination of Application for leave to Appeal out of time 1. As set out earlier in these reasons, the decisions which guide the application of principle in relation to this determination require a number of considerations. Crystallising that principle to a list of considerations, I determine the following will require consideration: 1. The history of the proceedings. 2. The conduct of the parties. 3. The nature of the litigation. 4. The consequence for the parties of the grant or refusal of the application for extension of time. 1. In this case, the "nature of the litigation" will also involve a consideration of the prospects of the Appellant succeeding in the appeal. That will involve an assessment of whether the Appellant has a "fairly arguable case". If the Appellant's explanation for delay is "less than satisfactory" the Appellant may need to show her case "has more substantial merit than merely being fairly arguable". 2. When considering the "history of the proceedings", I will look to the explanation for delay provided by the Appellant. History of the Proceedings and the Appellants explanation for delay 1. The evidence relied upon by the Appellant is contained in paragraph [50] to [84] and in paragraph [157] of her affidavit filed 5 February 2020. None of those paragraphs contained any explanation for delay in the filing of her appeal out of time. 2. In the document marked exhibit A3 (The Appellants Outline of Case dated 20 February 2020) there is no submission which addresses the delay in filing of the Appeal. 3. In the Consolidated Submission of the Appellant dated 28 August 2020, the Appellant provided submissions under the heading "Extension of Time" which I have addressed earlier in these reasons. Under that heading, the Appellant argued no extension of time was required. As stated earlier, I did not accept that submission. 4. I am left with there being no direct evidence explaining the delay which has been occasioned in this case in the filing of the appeal the Appellant seeks to pursue. 5. When considering other peripheral evidence, it seems the Appellant has been involved in other litigation, some of which has been expressly referred to by the Appellant in her submissions. That litigation, in the Supreme Court of NSW, is connected with the appeal she seeks to have determined, because both actions have had their routes in the manner in which she performed as a medical practitioner when employed at Redbank House. 6. Even if I find that part of the Appellant's reason for delay in filing of her appeal has been because she was engaged in other litigation, there is no explanation of how that was so encompassing of her time and efforts that she could not have filed her appeal at an earlier time. There is also no explanation as to why the solicitor, Mr McKell, who represented her from time to time, in about October 2018, could not have assisted her with the filing of the relevant document. 7. Paragraph [135(v)] of the Consolidated submission of the Appellant is the only place in her submission where she offers any explanation for delay. At that paragraph, the Appellant says the delay was occasioned by the Medical Council not considering the "complaint" from Dr Padhi until 9 months after it was made. Because of that delay, the Appellant says she did not have access to the evidence of "what happened at Redbank House and in the Council". This is a focus by the Appellant on the content of the complaint by Dr Padhi and other personnel, patients and parents of patients with whom the Appellant had interaction through the workplace at Redbank House. However, there is no reason why the Appellant could not have attended before the Medical Council to give her version of the circumstances and also to demonstrate she did not have signs/symptoms of any mental health disorder which might have impacted upon her practice as a medical practitioner. 8. The Appellant also said there was a delay by the Medical Council of two months in handing down its decision. The decision was provided in December 2018. The Appellant does not suggest how that delay then impacted upon her in such a manner that she was unable to file her Appeal for another year. 9. Finally, the Appellant said the delay thereafter was: "partly explained by the above considerations and by the fact that during the period the Appellant was very unwell and felt beset by litigation in trying to write the wrong to her often without legal assistance." 1. The Appellant provided no evidence of her poor health during the relevant period of delay in the filing of her appeal. It may be that the Appellant was confident her argument that "No explanation of delay is required", that she omitted to provide that medical evidence. However, the fact remains that although there is some evidence of delay, it is very vague and really not capable of being given significant weight in the determination of the leave to appeal out of time determination. 2. I find, for the purposes of that which follows, the Appellant has provide a less than satisfactory explanation for the delay. The conduct of the parties 1. There is nothing of consequence about the conduct of the parties which has been the subject of the submissions provided. The nature of the litigation 1. The litigation involves the Appellant seeking to appeal against a condition imposed upon her registration as a Medical Practitioner. The proceeding involves the application of the National Law and the NCAT Act. 2. The litigation is serious in its impact upon the Appellant as, if she is not granted leave to appeal then she loses her ability, through that process, to set aside the decision of the Medical Council and possibly have the condition removed from her registration. However, as is seen below, the Appellant has another avenue available to her to have the condition removed from her registration. 3. Other aspects of the "nature of the litigation" which potentially have application to this issue, are found in the legislation which created and controls the operation of the Tribunal. 4. Section 5(d) of the Civil and Administrative Tribunal Act 2013 ("CAT Act") includes an object "to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible". 5. Section 38 of the CAT Act provides: "(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice". The consequence for the parties of the grant or refusal of the application for extension of time 1. If the Appellant is granted leave to appeal out of time, then she will be able to proceed with her appeal. It is likely she has done the work necessary to present her case in the submissions she has provided in this leave application so far. The same would be true for the Medical Council. However, the Medical Council would incur additional cost in instructing lawyers to appear on its behalf, whereas the Appellant may appear on her own behalf. She could, of course, engage a solicitor or counsel to appear for her at the hearing of the Appeal, as she has done on 20 February 2020 and/or to prepare part or all of the submissions she would be required to provide. I have assumed she would incur legal costs, at least of some magnitude, for the purpose of considering her Application for leave. 2. If the leave to proceed out of time is refused then the Appellant loses her ability to challenge the imposition of the conditions on her registration through the appeal process. She would, however, have the opportunity to have the decision to impose the condition reviewed should she use the provisions of s 150A of the National Law. She could also present herself to the Council Appointed Practitioner, as was requested twice by the Medical Council, so that the Medical Council could consider if she was, at that time, an impaired practitioner. 3. The decision of the Medical Council to impose the condition is an interim order only and can be the subject of review before the Medical Council at a time largely at the calling of the Appellant, in the sense that she would have to apply for the review of the decision of the Medical Council. Does the Appellant have a "fairly arguable case" 1. I have considered the grounds of the Appeal which the Appellant seeks to argue should she be given leave. There is not, so far as I can determine, any stand out ground or submission addressing a ground, which raises a question of: error of law, failure to apply a matter of law, failure to undertake a mandatory obligation, failure to have regard to relevant fact, an erroneous application of law, or an example of the Medical Council relying upon irrelevant fact, which has been identified by the Appellant in her submission and then successfully argued the identified alleged error be accepted as same. 2. The Appellant did argue she had not been afforded procedural fairness and that she had been denied natural justice. Those grounds have been extensively examined in these reasons and have been rejected as viable grounds of appeal which might give rise to a "fairly arguable case". 3. As is set out earlier, if the Appellant's explanation for delay is "less than satisfactory" the Appellant may need to show her case "has more substantial merit than merely being fairly arguable". In this case, I have found that the Appellant's explanation for delay is "less than satisfactory". That determination then casts a more onerous obligation on the Appellant. I am satisfied the Appellant has failed to demonstrate that she has a case with more substantial merit than merely being fairly arguable. Conclusion 1. The conclusion I reach is that the Appellant has failed to establish a case which would warrant the granting of leave for her to file/make her appeal against the imposition by the Medical Council on 24 October 2018, of the Conditions upon her registration as a Medical Practitioner. As a result, the application of the Appellant for such leave will be refused. Costs thrown away as a result of the Appellant abandoning her s 159 appeal on the first day of the hearing and otherwise amending her Grounds of Appeal 1. The Respondent seeks costs lost as a consequence of the Appellant changing the nature of her appeal on the first day of the hearing before the Tribunal namely, 20 February 2020. The Respondent addressed this application in the submission provided on 13 March 2020. 2. The Tribunal has power to make a party to proceedings before the Tribunal pay the costs of another party to the proceeding before the Tribunal. 3. The Medical Council seeks its costs in two causes. Firstly, its costs thrown away by the change in the nature and scope of the Appeal now prosecuted by the Appellant. It is noted that the Appellant first proposed the appeal would be one under s 159 of the National Law. As such, it would proceed as a fresh hearing of the matter/complaint which was before the Medical Council and which led to the decision to impose conditions upon the Medical Registration of the Appellant. 4. When before the Tribunal on the 20 February 2020, the Appellant changed the appeal to one brought under s 159B, being an appeal on a point of law only. 5. The Medical Council in its submission dated 21 February 2020, addressed the question of costs thrown away from the Appellant's Amendment and Abandonment of a s 159 appeal. 6. The Medical Council says it is entitled to its costs thrown away because of that change. Lest it be lost on the Appellant, the Tribunal is aware that preparation for a fresh hearing requires quite different preparation to preparing for an appeal confined to s 159B. 7. The second cause in which the Medical Council seeks its costs be paid by the Appellant is if the Appellant fails to be granted leave to appeal against the decision of the Medical Council. The Medical Council submits that in such circumstances there should be an order for payment of its costs. 8. The Medical Council refers the Tribunal to the decisions of the Tribunal in the following cases: Fryer v HCCC [2015] NSWCATOD 177 at [103]-[106], Ameisen v Medical Council of NSW [2015] NSWCATOD 49 at [90] to [92] and Ristevski v Medical Council of NSW [2016] NSWCATOD 18 at [67] to [89]. The Medical Council submits that there is nothing in the facts surrounding this hearing or the actions of the Medical Council which ought suggest the Medical Council should not receive an order for its costs. 9. The Appellant in her Consolidated Submission addressed the cost issue at page 42 of the submission. The Appellant sought an order for costs against the Medical Council. The reason stated is as follows: "The Council has continued, in a long winded and obscure fashion, and after the issues were brought to attention, with the matter without evidence or sufficient evidence, and has raised new factual and legal issues that ought not to be permitted under section 159B or for that matter section 150. Yes it has pressed for its order when there is no justification under the National Law or the NCAT Act for it." The Appellant submitted that some issues have been conceded by the Medical Council. Determination of the Cost Applications Jurisdiction 1. Under s 165B(5A) of the Health Practitioner Regulation National Law (the National Law) the Tribunal, when constituted to make an ancillary decision as defined in the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), is to be constituted by the Tribunal List Manager or the judge or legal member presiding at the hearing. 2. Section 4 of the NCAT Act defines "ancillary decision". Sub-para (b) of the definition is "a decision concerning the awarding of costs in proceedings". Schedule 5D cl 13 of the National Law gives the Tribunal power to award costs. We have set out clause 13 earlier in these reasons. 3. The following decisions are often quoted in Tribunal hearings to assist the Tribunal to determine an application for costs: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) Health Care Complaints Commission v Do [2014] NSWCA 307 (Do) Sivathasan v Health Care Complaints Commission [2018] NSWCATOD 115 (Sivathasan) Health Care Complaints Commission V Haasbroek [2018] (N0 2) NSWCATOD 198 (Haasbroek (No 2)) 1. In Haasbroek (No 2) the Tribunal ordered the practitioner to pay 50% of the costs of the Health Care Complaints Commission (HCCC). In that case, the Tribunal had imposed a "Reprimand" on the practitioner upon the determination of a complaint brought by the HCCC. 2. In its determination, the Tribunal cited the decision of Health Care Complaints Commission v Philipiah and, in particular, the words of Meagher JA. That passage, at [42]-[44], is as follows: [42] As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). It has not been suggested by the Doctor that any of those factors applied. [43] As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95). [44] It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made. 1. The Tribunal noted in Haasbroek (No 2), that the principles referred to in Philipiah are also referred to in the decision of Do. 2. In Sivathasan the Tribunal ordered that the HCCC pay one half of the Practitioner's costs. The Tribunal found that, in that case, that there were facts that gave rise to the circumstance which "displaced the usual rule that an unsuccessful party pays the costs of the successful party." 3. In this determination, the Medical Council has been wholly successful in opposing the application of the Appellant to file/make an appeal against its order out of time. 4. Nothing has been put by the Appellant which can be seen to detract from the proposition that "the costs of proceedings before the Tribunal should follow the event". The limited insight into the Appellant's financial circumstances may suggest that she is impecunious, given that she has been out of employment as a medical practitioner since the imposition of the condition by the Medical Council on 24 October 2018. However, that is a matter which is addressed in Philipiah where it was said "mere impecuniosity is not a justifiable reason for departing from that rule". 5. The Appellant did submit that the Medical Council made concessions, however, the only concession made, which I can find in the submissions is that as the order made by the Medical Council was made in the absence of the Appellant, there is an avenue for argument that the Appellant was denied natural justice. However, as can be seen in these reasons, I cannot find an error in the approach taken by the Medical Council, given the opportunity which was extended to the Appellant to attend before the Medical Council prior to it making its order and also having regard to the provisions of s 150A which provides for the Appellant to review the interim decision of the Medical Council at a time of her choosing. 6. The concession the Medical Council did make was in relation to the start point for the calculation of the time to run in which the Appellant could have filed/made an appeal without the requirement to obtain leave from the Tribunal. There still remained a lengthy period of time between the last date upon which the Appellant could have filed her appeal, without needing leave, and the date upon which she did lodge her appeal. 7. In the circumstances, I conclude that the Appellant should pay the costs of the Medical Council, both of the hearing of the Appellant to file/make the appeal out of time and also the costs thrown away by the change on 20 February 2020 of the Appellant's case so as to proceed with an appeal under s 159B of the National Law and abandon the appeal under s 159 that Act. The Name of the Appellant on the proceeding title 1. Before this matter reached a hearing before the Tribunal on 20 February 2020, the Appellant applied to the Registrar for what she termed "a confidentiality order". By that she clearly sought that her name be suppressed. 2. The request came before the Registrar, who directed that the Appellant be allocated the pseudonym EFQ until such time as the Tribunal could consider the Appellant's application. Clearly that was an appropriate course for the Registrar to have taken. The proceeding has been known by the title EFQ v The Medical Council of NSW since that action by the Registrar. 3. The Appellant did not pursue an application for suppression of her name when the matter was before the Tribunal, however, clearly that was an oversight. The Medical Council made no application about the anonymising of the Appellant's name, however, given there was no formal application before the Tribunal by the Appellant addressing that matter, there was no requirement for the Medical Council to have made any submission addressing same. 4. Section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) establishes the Tribunal's power to make an order in the nature of that clearly sought by the Appellant. 5. Section 64 of the NCAT Act is as follows: CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 2013 - SECT 64 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders- (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 1. The decision of the Tribunal in Health Care Complaints Commission v Quan (Publication Application) [2019] NSWCATOD 160 establishes the Tribunal may make an ancillary order pursuant to s 64 of the NCAT Act. 2. The decision of the Tribunal in Health Care Complaints Commission v Reid (Publication Application) [2019] NSWCATOD 31 establishes that there is no conflict between s 64 of the NCAT Act and cl 7 of Schedule 5D of the National Law, since cl 7 is limited to a defined period of time "when the members of the panel to hear a matter have been appointed." 3. In deciding whether to make a suppression order or non-publication order, the Tribunal must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice (s 6 Court Suppression and Non-publication Orders Act 2010 (Suppression Act). 4. Section 8(2) of the Suppression Act provides an order must specify the grounds on which the order is made, per section 8(1), inter alia, as follows: (iii) the order is necessary to protect the safety of any person. 1. Section 9 of the Act provides an order can be made at any time during proceedings or even after proceedings have concluded (see section 9(3)). 2. The submissions and affidavit evidence of the Appellant show how significantly the circumstances surrounding the departure from employment, which the Appellant held with a Government controlled medical service. Her communication with the Medical Council also illustrates to me the tumultuous impact upon the Appellant of the plethora of litigation she has been engaged in across a number of jurisdictions since that event. 3. The conditions imposed upon the registration of the Appellant by the Medical Council have been notified to AHPRA. Those conditions will remain, following the decision made herein, until removed by the Medical Council. That may occur through further action taken to review those conditions. 4. I conclude there is no public safety purpose served in this case through the publication of the Appellant's name. There is no deterrent message to the medical profession in knowing the name of the Appellant. Nothing is gained within the medical profession by knowing the name of the Appellant, at this stage of the action thus far taken by the Medical Council of NSW against the Appellant. 5. If the Appellant is impaired, as is taken to be the case by the Medical Council, until the Appellant is prepared to meet with the Medical Council appointed practitioner, and a report is provided to the Medical Council upon which it might be satisfied the Appellant is not impaired, any additional stress placed upon her by the publication of her name as the Appellant in this proceeding, is I conclude potentially injurious to her health. 6. I conclude an order which suppresses the name of the Appellant, is necessary to protect the safety of the Appellant. 7. I acknowledge that section 6 of the Suppression Act reflects the legislative intention that orders under the Act should only be made in exceptional circumstances (see Reinhart v Welker (2011) NSWLR 311 (Reinhart) at [26] and [32]). I conclude however, the making of the order would not frustrate the administration of justice or any other public interest. 8. As a consequence of my determination on this point, I will order that the name of the Appellant be shown in all reporting of this decision as EFQ, the pseudonym allocated to the Appellant practitioner by the Tribunal. 9. The Tribunal is conscious of the hurt and damage to her reputation which the Appellant has addressed in her submission and the Tribunal is not minded to add to that circumstance by requiring the Appellant's name to be published. Further, this is not a case where the Tribunal considers it is in the public interest that the Appellant's name be published. There is also the possibility, if not probability, that the Appellant will take the matter for review and should she be successful there will no doubt be a request that the anonymisation of her name continue. 10. I will also order that the name of any patient referred to in the evidence presented in this proceeding not be published. Orders 1. The Appellant is refused leave to file/make an appeal against the order of the Medical Council made 24 October 2018 which imposed conditions upon her registration as a medical practitioner. 2. The Appellant is to pay the costs of the Medical Council thrown away by the change, on the first day of the hearing (20 February 2020), in the nature of the appeal which the Appellant would conduct should she be granted leave. 3. The Appellant is to pay the costs of the Medical Council in relation to this hearing. 4. The name of the Appellant be shown in all reporting of this decision as EFQ, the pseudonym allocated to the practitioner by the Tribunal. 5. The name of any patient referred in the evidence in this proceeding not be published. ********** 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: 26 November 2020