Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Samuell v Medical Council of New South Wales [2020] NSWCATOD 149 Hearing dates: 23 November 2020 Date of orders: 17 December 2020 Decision date: 17 December 2020 Jurisdiction: Occupational Division Before: Cole DCJ, Deputy President Decision: (1) The application by the Medical Council of New South Wales for the dismissal of this appeal under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) is granted. (2) The appeal is dismissed. Catchwords: PROFESSIONS AND TRADES - health care professionals - medical practitioners – application to dismiss appeal Legislation Cited: Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: AVS Group Australia Pty Ltd and Tony Sleiman v Commissioner of Police [2012] NSWADTAP 24 Fox v Commissioner of Police [2016] NSWCATAD 77 NG v Chinese Medicine Board of Australia [2017] NSWCATOD 36 Steel v Medical Council of New South Wales [2020] NSWCATOD 77 Category: Principal judgment Parties: Dr Doron Samuell (Applicant) Medical Council of New South Wales (Respondent) Representation: Counsel: P Griffin SC (Applicant) A Stafford (Respondent) Solicitors: Moray & Agnew (Applicant) Health Professional Councils Authority (Respondent) File Number(s): 2020/00158938 Publication restriction: Nil REASONS FOR DECISION 1. Dr Samuell has appealed, pursuant to s 159B of the Health Practitioner Regulation National Law (NSW) ('the National Law'), against the imposition of a condition upon his registration as a medical practitioner. The condition was imposed by the Medical Council of NSW ('the Medical Council'). The condition came into effect on 30 April 2020 and was removed on 11 August 2020. 2. The Council has now applied for an order under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) ('the CAT Act') dismissing Dr Samuell's appeal. Dr Samuell opposes that application. 3. There was no dispute as to the facts relevant to the Council's application for the dismissal of the appeal. Background 1. In March 2020, the Council received a complaint in relation to Dr Samuell. 2. The Council conducted a hearing under s 150 of the National Law. The hearing began on 15 April 2020 and continued on 29 April 2020. 3. On 30 April 2020, the Council advised Dr Samuell that a condition had been imposed upon his registration. 4. The Council produced written reasons for its decision on 25 May 2020. 5. Dr Samuell's solicitors corresponded with the Council. On 17 June 2020, the Council agreed to a 'stay' of the condition. This was an informal 'stay', agreed between the Council and Dr Samuell without any recourse to the Tribunal. It really seems to have amounted to an agreement by the Council not to seek to enforce the condition on Dr Samuell's registration, which remained in place at that time. 6. On 11 August 2020, the Case Management Committee of the Council resolved to remove the condition from Dr Samuell's registration. The condition was subsequently removed and no longer appears on the record. 7. Dr Samuell was informed of the removal of the condition from his registration by letter dated 12 August 2020. The Council's application for the dismissal of Dr Samuell's appeal 1. The Council has applied for the dismissal of Dr Samuell's appeal under s 55(1)(b) of the CAT Act. The application is made on the basis that the condition in issue in the proceedings has been removed, and that the proceedings are therefore now frivolous, vexatious or lacking in substance. The CAT Act, s 55(1)(b) 1. The CAT Act provides, in s 55(1): 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances— (a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings. 1. The power provided for in s 55 is discretionary. The Council's submissions 1. It was submitted on behalf of the Council that action taken under s 150 of the National Law is interim in nature and has the purpose of protecting the public. The process under s 150 of the National Law does not require the Council to find any facts or draw any conclusions about the medical practitioner in question. 2. The condition imposed, which was a condition requiring Dr Samuell to undergo a performance assessment, was removed on 11 August 2020, when the Case Management Committee also resolved to refer Dr Samuell to a performance assessment under s 154 of the National Law. It was argued that, in these circumstances, the hearing and determining of Dr Samuell's appeal, which, following an amendment to the grounds of appeal, became solely an appeal with respect to points of law, and not an appeal on the merits, would be futile. 3. The National Law provides, in s 159C: 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. It was argued that, given that the Council agreed on 17 June 2020 not to enforce the condition, and given that there is no reason to think that any action in relation to the condition is or has been contemplated, no practical reason for the proceedings can be discerned. 2. It was submitted that the Tribunal could not grant any relief in the proceedings which would have any practical effect. 3. The Council said that the imposition of the condition under s 150 did not involve any reputational damage to Dr Samuell, as there was no adverse finding involved in the imposition of the condition. 4. The Council pointed to the statutory provisions in the National Law which provide for the relevant right of appeal (s 159B), the Tribunal's powers on appeal (s 159C) and the objects of the National Law (s 3, s 3A and Schedule 7). The Council also referred to s 55(1) of the CAT Act, which provides for the dismissal by the Tribunal of proceedings before it in the circumstances specified in the section, including that the proceedings are: Frivolous or vexatious or otherwise misconceived or lacking in substance 1. The Council referred to the decision in NG V Chinese Medical Board of Australia [2017] NSWCATOD 36 from [44] and argued that, having regard to the objects of the CAT Act, the cost and time which would be expended upon an appeal which would be of no practical utility, and the expectation that the Tribunal will conform with the guiding principle in s 36 of the CAT Act and 'facilitate the just, quick and cheap resolution of the real issues in the proceedings', all support the application for the dismissal of the proceedings. 2. The Council argued that where proceedings of this kind can achieve no real purpose other than vindication, the appropriate exercise of the Tribunal's discretion is to dismiss the proceedings. It was submitted that, in any event, given that no findings have been made against Dr Samuell, and the condition required a performance assessment to be made, which does not imply any concluded position regarding Dr Samuell's conduct, and given that the condition no longer appears on the register, there was no reputational damage to be redressed. Dr Samuell's submissions 1. In the submissions in Dr Samuell's case, emphasis was laid upon the grounds for the appeal. These were said to be (in summary): * Bias or apprehended bias, relating to whether one of the three delegates of the Council who made the decision under s 150 to impose the condition should have recused himself because of his past professional relationship with Dr Samuell and also because of comments he had made in the past in writing in relation to reports written by Dr Samuell. * A denial of procedural fairness because the delegates did not conduct a telephone or video hearing, but considered written submissions on 15 April 2020, gave Dr Samuell the opportunity to provide further written submissions and then considered those further written submissions on 29 April 2020. * The delegates took into account irrelevant considerations. This relates to the manner in which the delegates are said to have viewed the sheer number of complaints against Dr Samuell, rather than investigating those complaints individually. It was asserted that the delegates improperly concluded that complaints made against Dr Samuell subsequent to an interview with him in late 2014 regarding previous complaints automatically justified action being taken against him without consideration of the substance of the more recent complaints. * The delegates failed to take into account relevant considerations. This relates to the decisions of other bodies with respect to 'other complaints against Dr Samuell'. Further, it was said that the delegates should have viewed a videotape of Dr Samuell's interview with a recent complainant 'to fairly assess his contemporary technique and reach a balanced view on the most relevant evidence'. * The delegates erred in finding that Dr Samuell had a conflict of interest in that his work for large workers' compensation insurers meant that he could not be an objective consultant. * The imposition of the condition was more onerous that was necessary to achieve the purposes of the National law, was not supported by evidence and was unreasonable. 1. It was asserted that the Council had advised the following bodies of the imposition of the condition: * Health Care Complaints Commission * Medical Council of New Zealand * Department of Veterans Affairs * Pharmaceutical Services Unit * State Insurance Regulatory Authority (SIRA) 1. It was asserted that SIRA wrote to Dr Samuell on 15 July 2020 and told him that it had been informed of the imposition of the condition. It was said that, since then, Dr Samuell had only received one referral from SIRA. The inference was that he would ordinarily expect to receive more referrals from SIRA than one in that period of time. 2. It was accepted that the Tribunal has the power to dismiss the proceedings under s 55(1)(b) of the CAT Act. 3. The gravity of ordering the summary dismissal of proceedings was emphasised in Dr Samuell's case. 4. It was argued that the conditions for a dismissal of the proceedings under s 55(1)(b) of the CAT Act were not present in this case. 5. It was said that, although the condition the subject of the Council's decision had been removed, the decision by the Council to impose that condition had not been revoked or rescinded and 'remained a live issue'. 6. In essence, it was argued on behalf of Dr Samuell that the decision under s 150 of the National Law to impose the condition would continue 'to prejudice his legitimate interests' even although the condition has been removed, because the decision to impose it has not been revoked or rescinded. In written submissions, the following was argued: Whilst the Council has removed the condition and imposed the performance assessment under an alternate provision, the Council has not accepted that the decision to impose a condition was infected by jurisdictional error, such that the decision had no legal effect. Accordingly, the decision and its reasoning will remain on Dr Samuell's record. The Council will therefore no doubt continue to rely on the decision, including the reasoning, in any future dealings with Dr Samuell (including the performance assessment Dr Samuell has been ordered to otherwise attend). The decision will continue to prejudice Dr Samuell's dealings with the Council, unless it is set aside. 1. It was also said, in the written submissions, that: Given the ongoing reliance of the Council on the decision (unless it is set aside), there is clear utility in having the decision formally overturned by the Tribunal. 1. Emphasis was laid upon the provision in s 159C of the National Law for the Tribunal to 'set aside' a decision, without necessarily then making a new decision. 2. Dr Samuell contested the Council's submission that the s 150 decision was an interim decision and formed part of the process of determining whether any action ought to be taken at all. The Council's submission was described as 'purely theoretical and fanciful'. It was argued that the imposition of any condition on a medical practitioner's registration would have an adverse impact on their professional reputation and career. 3. It was asserted that Dr Samuell had suffered actual reputational harm. Particular emphasis was placed upon the correspondence between the Council and SIRA, which began with a letter dated 5 September 2019 from the Council and the Health Care Complaints Commission to SIRA, which referred to 62 complaints having been received in relation to Dr Samuell since 2000, and expressed concern about the content of those complaints. The letter said: …The regulators are concerned that the distress experienced by many patients due to their interactions with Dr Samuell is undermining their confidence in both the NSW workers compensation system and the medical profession. We write seeking your advice as to whether SIRA has considered the status of Dr Samuell's current suitability to work as an assessor in the Workcover setting due to the high volume of complaints received. 1. A further letter was sent from the Council to SIRA dated 24 June 2020, on a confidential basis. This letter said that 66 complaints had been received in relation to Dr Samuell by the health regulators since 2000. The letter informed SIRA of the condition place on Dr Samuell's registration. The letter also said: The table at appendix 1 identifies the date of receipt and receipting body of each of these complaints as well as the outcome of the assessment. The majority of the matters were discontinued at assessment as it had been the view of the HCCC that conduce in an IME [Independent Medical Examination] was not within the bounds of clinical practice and therefore were not dealt with by the regulators. This is no longer the view of the co-regulatory authorities in NSW. 1. It was asserted that SIRA had now formed a preliminary view that Dr Samuell may not meet the criteria in clause 1.18 of the Motor Accident Guidelines and may not be suitable to undertake IMEs by referral from SIRA. 2. The written submissions in Dr Samuell's case said: 47 Whilst it is not disputed that there is no final determination resulting from a s 150 decision, it is evident that this is not universally known and appreciated by interested third parties or the general public. This is particularly so when having regard to the manner in which the Council has presented the circumstances to SIRA, in propounding adverse conclusions about Dr Samuell without providing adequate context, let alone following on from a final hearing. SIRA has consequently given considerable weight to the information provided by the Council without being informed that the conclusions reached by the Council are the subject of an appeal. 48. Further, Dr Samuell is contractually obliged to advise his contract providers when a condition has been placed on his registration. As a condition was placed on his registration, he was required to notify all his contract providers or the condition, irrespective of the fact it was an interim measure. Dr Samuell was also required to disclose the reasons for the decision. This has resulted in a further loss of a significant volume of work together with reputational harm. 1. It was argued that it would not be in the public interest for the Council to be able to 'sidestep' an appeal, and that it was necessary for the appeal to be heard to maintain public confidence in the Tribunal. Consideration The power to dismiss the proceedings under s 55(1)(b) of the CAT Act. 1. It was accepted by both parties, and I agree, that s 55(1)(b) of the CAT Act is applicable to these proceedings. The nature of proceedings under s 150 of the National Law 1. The National Law provides, in s 150: 150 Suspension or conditions of registration to protect public [NSW] (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. (2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens— (a) the complaint about the practitioner or student is disposed of; (b) the suspension is ended by the Council. (3) If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must— (a) suspend the practitioner's or student's registration until a complaint concerning the matter is dealt with by the Tribunal; and (b) refer the matter to the Tribunal as a complaint. (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. (5) 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. (6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned. (7) If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who— (a) is not a registered health practitioner or student in the health profession for which the Council is established; and (b) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act. 1. In Steel v Medical Council of New South Wales [2020] NSWCATOD 77, Judge Boland set out a comprehensive summary of the recent judgments of the Court of Appeal in relation to the nature of s 150: 26. Three recent decisions of the Court of Appeal (Kirby v Dental Council of New South Wales [2020] NSWCA 91, Health Care Complaints Commission v Windsor [2020] NSWCA 110 and Ghosh v Medical Council of New South Wales [2020] NSWCA 122) have considered the provisions of Division 3 Sub-division 7 and Division 6 Sub-division 2 of Part 8 of the National Law. In Kirby v Dental Council of New South Wales Brereton JA in his reasons explained the role of s 150 at [12] and [15] as follows: 12 Exercise of the power under s 150(1) to suspend or impose conditions necessarily requires that the Council undertake an evaluation of circumstances concerning a practitioner that come to its notice. Although a complaint may be the means by which relevant circumstances that require consideration of action under s 150 may come to a Council's notice, s 150(4) makes clear that a complaint is not necessary to enable the Council to act; in other words, it may act of its own motion. … 15 In the context of a provision headed "Suspension or conditions of registration to protect public", and the objective and guiding principle stated in s 3A, the touchstone for the exercise of the Council's power under s 150(1) to make an order suspending the practitioner's registration or imposing conditions on it is that the Council be satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons, or that the action is otherwise in the public interest. If so satisfied – regardless of how the matter comes to its attention – it must act. The power is conferred purely for the protection of the public, and thus the Council's sole concern is what if any action is required for the protection of the health and safety of any relevant persons and/or the public interest. This is not a professional disciplinary power, but purely protective. Although disciplinary proceedings may flow from s 150 action (as a result of the referral to the HCCC under s 150D), they are dealt with separately, under other provisions of the National Law which provide for dealing with complaints.[7] As NCAT in its decision rightly observed, the role of a Council in undertaking a s 150 inquiry is to protect the public, and in a case such as the present, where serious allegations have been made which, if true, could lead to suspension or cancellation of the practitioner's registration but the evidence is incomplete and further investigation is needed, the issue for the Council is not whether the allegations are proved, but whether the evidence establishes a risk to the public requiring suspension, or imposition of a condition, for protection of the public.[8] [footnotes omitted] 27. Also relevant is the decision of Barrett AJ in Kirby v Dental Council of New South Wales [2018] NSWSC 1869 and that of Harrison AsJ in Pharmacy Council of New South Wales v Ihrahim [2020] NSWSC 708. 28. Barrett AJ, when discussing s 150 explains at [6]: 6 Section 150(1) assumes, clearly enough, that a Council will perform an evaluative task in relation to circumstances concerning a practitioner that come to its notice. The evaluation must focus entirely on what is required to protect the health and safety of relevant persons and on the requirements of the public interest. Considerations of punishment are foreign to the assessment. 29. In an appeal to the Court of Appeal from Barrett AJ's decision, Payne JA described an action under s 150 at [2] as follows: 2 As to Dr Kirby 's principal complaint, as Brereton JA explains, the statutory context in the present case was that the Dental Council of New South Wales ("the Council") was bound to act if a particular state of affairs appeared to it. Section 150 of the Health Practitioner Regulation National Law (NSW) ("the National Law") imposes a positive duty on the Council to act, in one of several specified ways, if the Council is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons or otherwise in the public interest. The Council's duty to act does not depend on the existence of an initiating complaint. Here, the Council was satisfied that Dr Kirby 's conduct made it appropriate to act to protect the public health and safety of citizens of New South Wales. [original emphasis] 30. In Pharmacy Council v Ibriham Harrison AsJ was determining an appeal against an external appeal to the Tribunal by a pharmacist whose registration was suspended by the relevant Council under s 150. Her Honour referred to the decision of Hall J in Lindsay v NSW Medical Board [2008] NSWSC 40 under the forerunner of s 150 namely s 66 of the Medical Practice Act 1992 (NSW) (repealed). Hall J in Lindsay explained that proceedings under s 150 are interlocutory in nature and do not involve making findings of fact or the determination of the merits of any complaint. Her Honour discusses the "second limb" of s 150 ("otherwise in the public interest"). At [32] her Honour referred to the second limb as follows: 32 As such, and in the context of ss 3 and 3A of the National Law, the "public interest" referred to in s 150 includes considerations of maintaining public confidence in the scheme for regulating health practitioners, and the "competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession": see Hanna at [18]. [footnotes omitted] 31. In Ghosh v Medical Council of New South Wales Brereton JA at [5] emphasised, by reference to the decision in Kirby v Dental Council of New South Wales, the "purely protective character of the s 150 (1) function" and that "the touchstone for the exercise of the Council's power …to make an order suspending the practitioner's registration or imposing conditions on it is that the Council be satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons or that the action is otherwise in the public interest". 32. At [103] his Honour explains on a hearing under s 159 (when the Tribunal is considering afresh whether it is appropriate for action to be taken under s 150 (1)) it is necessary for a Tribunal "to take the essential step of identifying what the risk was, and whether it was unacceptable". 33. Earlier, in para [98] and in footnote 54, Brereton J clarifies, by reference to the decision in Karimi v Medical Council of New South Wales [2017] NSWCATOD 180, that the Tribunal or Council must consider whether a practitioner's conduct involves an unacceptable risk either to the health and safety of the public and a similar, not lesser test in the case of public interest, noting that "an acceptable risk could not justify s 150 action". 34. In determining this appeal, I am conscious that generally an appeal on a point of law is heard and determined at the same time as an appeal under s 159. As the latter hearing is a hearing do novo any error of law "falls away" or is overcome by the exercise on a rehearing. 35. I also take into account in construing s 150 that its predecessor (s 66 of the Medical Practice Act 1992 (NSW)) used different language. The present section differs from its predecessor in that s 66 required the Board exercising power under the section to suspend or impose conditions on a medical practitioner if it was satisfied such action was necessary for the protection of the health and safety of the public or if satisfied the action was otherwise in the public interest. Section 150 now imposes a less stringent test of "appropriate" to take action. 1. There can be no doubt that orders made by the Council under s 150(1) of the National Law are interim in nature, and that, in the process leading to the decision to make an order, the Council is not required to make, and, in practice, does not make, a conclusive assessment as to whether allegations about the practitioner's conduct are true. The exercise the Council engages in under s 150 is a risk management exercise. 2. I reject the Applicant's argument that the Council's decision under s 150 of the National Law in this matter will inevitably have an adverse impact upon the future dealings of the Council with Dr Samuell. There is nothing in the provisions of the National Law, or in the material before me which supports that argument. Meaning of frivolous, vexatious or otherwise misconceived or lacking in substance 1. The meaning of the grounds set out for the exercise of the discretion to dismiss proceedings under s 55(1)(b) of the CAT Act was explored in detail in NG v Chinese Medicine Board of Australia [2017] NSWCATOD 36 (Ng). The following passage from the decision of Judge O'Connor in AVS Group Australia Pty Ltd and Tony Sleiman v Commissioner of Police [2012] NSWADTAP 24 was quoted with approval: 24 There is no fixed rule of the kind for which the Commissioner contends that would have required the Tribunal to enter an order of dismissal simply because the underlying entitlement, licence or authority had ceased to operate. 25 In these circumstances, the question of whether the Tribunal should continue to deal with the dispute is to be judged by reference to discretionary considerations relating to the proper management of the proceedings, and having regard to the statutory powers given to the Tribunal including its formal powers of dismissal. 26 Those discretionary considerations will include the question of whether there is a live dispute or controversy. In that regard, I accept, of course, that it is not appropriate that the Tribunal, or the Appeal Panel, spend time dealing with idle disputes or giving advisory opinions, both for resources reasons as well as ones of intellectual precision. I accept, too, that a dispute may lose its character as a real controversy during the time it is before the Tribunal or the Appeal Panel. 1. Also quoted with approval in Ng was the following passage from the decision of Professor Walker in Fox v Commissioner of Police [2016] NSWCATAD 77 at [26]–[31], which accurately sets out the law applicable in the present matter: 26. Section 55(1)(1)(b) provides that the tribunal "may dismiss at any stage any proceedings before it" if it considers that "the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance". In everyday usage such language would appear to carry somewhat censorious overtones, but its technical legal meaning is simply that the application lacks a legal foundation. Thus in 601 Management Company Pty Ltd v Commissioner of State Revenue [2011] VCAT 2129, [12], the Victorian tribunal observed that the words "frivolous, vexatious and lacking in substance are very pejorative terms" that refer, in this context, "merely to matters which are not legally properly based". The term "misconceived" represents a claim that does not "disclose a cause of action", while "lacking in substance" may be seen as referring to a claim where the defendant could obtain summary judgment: Alchin v Rail Corporation of New South Wales [2012] NSWADT 142. There is also an overlap between the concepts identified in s 55(1)(b). For example, a proceeding may be frivolous or misconceived because it is lacking in substance: Worldwide Enterprises Pty Ltd v Westpac Banking Corporation [2010] VCAT 1125, [39]. 27 The words "at any stage" mean inter alia that an application that is legitimate when commenced can become vexatious because of changes in circumstances. Thus, if no purpose will be achieved by continuing the application, even though the applicant is genuine in his or her belief in the matter raised, the application should be struck out: Re Williams and Australian Electoral Commission [1995] AATA 160, (1995) 38 ALD 366. The defect must be apparent on the face of the pleading (Cairns, Australian Civil Procedure, 10th edn. 2014, 508) or, in the case of tribunal proceedings on the face of the statements of facts and contentions, and evidence is not normally admissible on the point (ibid). A proceeding that constitutes an abuse of process may be dismissed as frivolous or vexatious: Re Hinds and Australian National University [2012] AATA 495, (2012) 129 ALD 476, 480, [18] (the tribunal in that case assumed the correctness of a submission on that point by ANU); see also Pearce, Administrative Appeals Tribunal (2014), 15.14. 28. In Re Filsell and Comcare [2009] AATA 90, [33], Jarvis DP set out the principles to be followed in relation to such applications under the corresponding federal legislation. They included the following: (a) the word "frivolous" in combination with "vexatious" is a technical legal term, which means that there is no legal basis for the proceeding; it does not necessarily connote that an applicant has acted frivolously in bringing proceedings…. (b) the expression "vexatious" can include proceedings brought with the intention of annoying or embarrassing or harassing the other party, or for some collateral purpose other than having the court or tribunal adjudicate on the issues raised by the proceedings, or, irrespective of the motive of the litigant, if the proceedings are "so obviously untenable or manifestly groundless as to be utterly hopeless": Attorney-General v Wentworth (1988) 14 NSWLR 481, 491 per Roden J, or if the proceedings have "no reasonable prospect at all of success"…. 29. A proceeding is thus vexatious if it is brought for a collateral purpose (Cabot v City of Keilor [1994] 1 VR 220, following Wentworth) or if the outcome of the proceedings, whether successful or not, will be devoid of any practical effect: Re Williams at 374. The proceeding is "misconceived" if it is obviously untenable, for example if the claim is statute-barred: Sleigh v Victoria [2010] VCAT 2057, [8]). The cost implications for both the tribunal and the respondent of continuing the proceeding are also relevant, as Jarvis DP observed in Filsell: (d) However, if proceedings have no reasonable prospects at all of success, they should be dismissed …, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing" (loc. cit. supra). 30. That consideration was also applied in Re Irving and Repatriation Commission (1997) 46 ALD 20. The tribunal (the AAT) there stated that the desire to restore honour and secure vindication had to be balanced against other factors, including the cost to the respondent. The proceedings in that case could have no practical effect as the applicant would receive no monetary benefit from a favourable result. They should therefore be dismissed as vexatious (at 26). 31. Where the applicant is seeking only restoration of honour (i.e. clearing his name) and has no chance of success in the proceeding, the matter should be dismissed (id.). While the power should be exercised cautiously and sparingly (Re Williams, [39]), the High Court explained in Williams v Spautz (1992) 174 CLR 509 that it is not necessary for the sole purpose in continuing an action to be collateral to the process, and concluded rather that it is sufficient that the collateral purpose is the predominant one. That proposition was adopted in Re Hinds and Australian National University [2012] AATA 495, (2012), 129 ALD 476, 480 – 481; see also Burns v Laws [2005] NSWADT 229, [9]. In Spautz, Brennan J pointed out that there is no impropriety of purpose in maintaining a proceeding with an ulterior purpose or motive, but said the matter should be dismissed if the proceeding was for a purpose that did not include, at least to any substantial extent, the obtaining of relief within the scope of the remedy. Reputational Harm and the power to set aside 1. Dr Samuell seeks to continue with his appeal on points of law under s 159B of the National Law on the basis that, although the condition the subject of the Council's order has been removed, the decision to impose that condition has not been revoked or rescinded. It was argued that the refusal on the part of the Council to revoke or rescind the decision to impose the condition would continue to have an impact upon deliberations by the Council with respect to Dr Samuell. It was also argued that the imposition of the condition has caused Dr Samuell reputational damage, which should be ameliorated or redressed by the setting aside of the decision to impose the condition. 2. The National Law, in s 159C, gives the Tribunal power to set aside a decision of the Council without making a new decision. 3. Dealing firstly with the argument that, if the Council's decision under s 150 of the National Law to impose the condition is not set aside, it will affect the Council's future deliberations with respect to Dr Samuell, as I have said above, at [43], there is nothing in the provisions of the National Law, or in the evidence, which leads to the conclusion that this will be the case. 4. In addition, it should be borne in mind that the Council's proceedings under s 150, at which it was decided to impose the condition the subject of these proceedings, arose from a complaint against Dr Samuell made in March 2020. That complaint has not yet been resolved. Dr Samuell has been referred for a performance assessment under s 154 of the National Law. The Council's future deliberations with respect to Dr Samuell under the National Law are likely to focus upon the substance of the March 2020 complaint, other outstanding complaints and the outcome of the performance assessment, rather than the process undertaken by the Council in April 2020 in response to the March 2020 complaint. 5. The appeal on points of law challenges various procedural aspects of the process undertaken by the Council in April 2020 in response to the complaint. The appeal does not relate to the merits of the Council's decision to impose the condition. The resolution of the arguments with respect to the points of law raised in the appeal would not, logically, have any impact upon the Council's future deliberations with respect to Dr Samuell's conduct as a medical practitioner. 6. For the same reasons, the resolution of the arguments with respect to the points raised in the appeal would not, logically, have any impact upon Dr Samuell's reputation. It was argued in Dr Samuell's case that the Tribunal should take into account the possible perceptions of 'third parties and the general public' who, it was asserted, are unlikely to understand the role played by s 150 of the National Law in the regulatory system, as to the significance of the decision being set aside. I reject that submission. The interests of justice are unlikely to be served by the Tribunal taking into account ill-informed, uninformed or mistaken perceptions. 7. It was argued in Dr Samuell's case that the provision of information to the bodies listed in [24] has caused him reputational harm and a diminution in the quantity of work being referred to him. No evidence was provided to support this claim. Assuming, however, that it is true, there is no basis for the belief that, in the event that the Council's decision were to be set aside on one or more of the points of law set out in the appeal, reputational harm would be ameliorated. In any event, at least with respect to SIRA, some of the communications between SIRA and the Council pre-date the complaint which prompted the proceedings under s150 of the National Law by about six months, and, rather than dealing with the complaint of March 2020, on the face of it, deal with in excess of 60 complaints made prior to the March 2020 complaint. 8. The setting aside on procedural grounds of the decision of the Council to impose a condition which has now been removed would serve none of the purposes of the National Law set out in ss 3 and 3A. The allocation of the time and resources of the Tribunal and the parties to the arguing of the appeal on the points of law, in all of the circumstances, would not be consistent with the object of the Tribunal set out in s 3(d) of the CAT Act, which speaks of the Tribunal resolving 'the real issues in proceedings justly, quickly, cheaply and with as little formality as possible'. In short, it would put the Tribunal and the parties to significant expense and effort for an outcome of no practical effect. 9. It was submitted on behalf of Dr Samuell that the dismissal of the proceedings would not be in the public interest and would not maintain the confidence of the public in the Tribunal. For all of the reasons set out above, I reject that submission. Conclusion 1. This appeal was instituted for a proper purpose. However, once the condition the subject of the appeal was removed from Dr Samuell's registration on 11 August 2020, and the appeal became solely an appeal on points of law under s 159B of the National Law, then the appeal ceased to have a practical purpose in terms of Dr Samuell's registration and the objects of the National Law. The appeal became an appeal which is misconceived and lacking in substance. Although a remedy, namely the setting aside of the Council's decision on 30 April 2020 to impose the condition, is technically available under s 159C of the National Law, the granting of that remedy would have no practical effect in the context of the scheme provided for by the National Law and is unlikely to have any other effect which should properly be taken into account. 2. As the making of the decision under s 150 of the National Law did not involve the Council arriving at a concluded view of the facts or a characterisation of Dr Samuell's professional conduct, but was simply the outcome of a risk assessment, the setting aside of the Council's decision on procedural grounds, in circumstances where the practical effect of that decision has already been removed with the removal of the condition, should have no effect upon any reputational impact suffered by Dr Samuell as a result of the making of the decision. 3. Balancing the cost and time to the Tribunal and the parties if the matter proceeds against the utility of the matter proceeding, the correct exercise of the Tribunal's discretion is to grant the application of the Council to dismiss these proceedings under s 55(1)(b) of the CAT Act. Orders 1. The application by the Medical Council of New South Wales for the dismissal of this appeal under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) is granted. 2. The appeal is dismissed. ********** 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: 17 December 2020