Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ng v Pharmacy Council of New South Wales [2022] NSWCATOD 49 Hearing dates: On the papers Date of orders: 09 May 2022 Decision date: 09 May 2022 Jurisdiction: Occupational Division Before: R C Titterton OAM, Senior Member Decision: 1. The decision of the respondent of 2 November 2021 (reasons dated 6 December 2021) (respondent's reference 141326/21) is set aside. 2. The decision of the respondent of 2 November 2021 (reasons dated 6 December 2021) (respondent's reference 142055/21) is set aside. 3. The respondent to pay the appellants' costs of the appeals as agreed or assessed. Catchwords: PROFESSIONS AND TRADES – health care professional – pharmacy – appeals from decisions of the Pharmacy Council of New South Wales Legislation Cited: Health Practitioner Regulation National Law (NSW) – ss 41O, 41P, 139B, 150, 150A, 150C, 159, 159B, 159C Cases Cited: Alstom Transport Australia Pty Ltd v Comptroller-General of Customs [2020] FCAFC 43 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Kiao v West (1985) 159 CLR 550 Medical Council of NSW v Smithson [2021] NSWCA 53 R v Fisher (2009) 22 VR 343 at 352 Re JRL; Ex parte CJL (1986) 161 CLR 342 Shields v Overland (2009) 26 VR 303 Category: Principal judgment Parties: In 2021/339424 Horatio Hoi Ka Ng (Appellant) Pharmacy Council of New South Wales (Respondent) In 2021/339431 Irene Ng (Appellant) Pharmacy Council of New South Wales (Respondent) Representation: In 2021/339424 Counsel: K Richardson SC and H Cooper (Appellant) K Lindeman (Respondent) Solicitors: McLachlan Thorpe Partners (Appellant) Health Professional Councils Authority Legal (Respondent) In 2021/339431 Counsel: K Richardson SC and H Cooper (Appellant) K Lindeman (Respondent) Solicitors: McLachlan Thorpe Partners (Appellant) Health Professional Councils Authority Legal (Respondent) File Number(s): 2021/339424 and 2021/339431 REASONS FOR DECISION Introduction 1. These reasons deal with two separate appeals: an appeal brought by Mr Horatio Hoi Ka Ng (appeal 2021/339424) and an appeal brought by Mrs Irene Ng (appeal 2021/339431), from decisions of the Pharmacy Council of New South Wales (Council) under s 150A of the Health Practitioner Regulation National Law (NSW) (National Law) (together, the 150A Decisions). 2. The appeals are relevantly brought pursuant to s 159B of the National Law. While the appeals were also brought pursuant to s 159 of the National Law, on 21 January 2022 orders were made for the s 159B appeals to be dealt with first. Accordingly, these reasons are only directed to the appellants' s 159B appeals. It is anticipated that it will not be necessary for the appellants to press the s 159 appeals. 3. The Council agrees that it erred in law in making the s 150A Decisions, and submits that the Tribunal should exercise its powers under s 159C(1)(b) of the National Law to set aside the s 150A Decisions. The s 150A Decisions Mr Ng 1. Mr and Mrs Ng own CustomCare Compounding Pharmacy (Pharmacy) at Dural and Rhodes Discount Chemist at Rhodes. They also own pharmacies in South Australia and Victoria. 2. On 26 March 2021, the Council received an anonymous complaint about the Pharmacy's compounding practices. On the same date, the Council also received a complaint regarding Mr Ng, alleging various illegal practices. 3. On 29 March 2021, the Council considered these complaints and determined to conduct proceedings under s 150 of the National Law. The proceedings were adjourned, and the Council accepted Mr Ng's request to consent to conditions under s 41P of the National Law. 4. The s 41P conditions Mr Ng accepted were: 1. not to compound; 2. not to allow compounding in any pharmacy in which he has a financial interest; 3. not to supply any product that has been compounded in any pharmacy in which he has a financial interest; 4. not to allow the supply of any product that has been compounded in any pharmacy in which he has a financial interest; 5. that he must by 30 April 2021: 1. inform all pharmacists in his employ of the conditions on his registration; 2. provide evidence to the Pharmacy Council of NSW that he has done so. 1. Following receipt of new information on 7 May 2021, the Council commenced separate proceedings under s 150C of the National Law and the following additional conditions were imposed on Mr Ng's registration: 1. not to work as the Pharmacist-In-Charge: 1. upon entering the premises in which he works, he must notify the Pharmacist-In-Charge; 1. to nominate a minimum of one Pharmacist-In-Charge for CustomCare: 1. by 17 May 2021 must provide evidence to the Council that he has nominated a minimum of one Pharmacist-In-Charge; 1. to practise under Category A supervision in accordance with the Council's Compliance Policy - Supervision (as varied from time to time): 1. the supervisor is to be approved by the Pharmacy Council of NSW; 2. to authorise the Council to provide proposed and approved supervisors with a copy of the relevant decision/report; 3. participate in review meetings with his supervisor on a weekly basis; 4. each review meeting is to be held for a minimum of one (1) hour; 5. To authorise the supervisor to provide reports to the Council on a fortnightly basis; 6. not to practise as a pharmacist until a supervisor has been approved by the Council; 7. to bear responsibility for any costs incurred in satisfying this condition. 1. not to possess any keys, access codes, smart cards or access cards to any pharmacy: 1. by 17 May 2021 must provide evidence to the Council that he has relinquished all keys, access codes, smart cards or access cards in his possession to another pharmacist. 1. On 13 October 2021, Mr Ng made an application under s 150A of the National Law for review of the Council's decision to impose conditions on his registration, noting that the request for review was only of the additional conditions imposed at the s 150C hearing on 7 May 2021. 2. A hearing before the delegates of the Council was held on 28 October 2021. The Council delegates were Ms Susan Lovrovich as Chair, Ms Majella Hill and Mr Jonathan Chen. 3. Mr Ng was in attendance, and assisted by Ms Kate Richardson SC. 4. At the outset of the hearing, the delegates disclosed that they knew Mr David Preswick, Mr Ng's mentor, and Mr Michael Cross, Mr Ng's supervisor, through their work at the Council as well as professionally. 5. In addition, Mr Chen disclosed that Ms Phui Yee Ch'ng was the purchaser of the Professional Services Room which had been attached to the Pharmacy and that he knew her professionally. Mr Ng did not raise any objection regarding these disclosures. 6. The s 150A Decision records that the central issue for the delegates to consider was whether there had been a change in Mr Ng's circumstances that justified the setting aside or varying of the Council's decision to impose conditions on his registration. To determine this issue, the delegates stated that they had to answer the following questions: 1. what changes had there been to Mr Ng's circumstances? 2. do those changes justify the setting aside or varying of the Council's decision to impose conditions on his registration? 1. At p 12 of the Decision the delegates set out the changes in Mr Ng's circumstances, and at pp 13 to 21 Mr Ng's current practice arrangements including the services he provided. Having done so, at pp 19 to 21 the delegates considered whether those changes justified the setting aside or varying of the Council's decision to impose conditions on his registration. The delegates concluded that they were unable to lift the conditions at this time and varied them to cover any retail pharmacy or compounding business Mr Ng might or own or work in in the future. In addition, they said that Mr Ng did not have sufficient knowledge and understanding to meet the requirements of a practising community pharmacist-in-charge, nor did he have a sufficient understanding of the responsibilities of a proprietor. 2. Pursuant to s 150A of the National Law the delegates varied the decision of the delegates set out in [8] above and imposed the following conditions: 1. not to work as a pharmacist in charge; 1. upon entering the premises in which he works, he must notify the pharmacist in charge; 1. to practice under Category A supervision in accordance with the Council's Compliance Policy - Supervision (as varied from time to time): 1. the supervisor is to be approved by the Council; 2. to authorise the Council to provide proposed and approved supervisors with a copy of any relevant decision/report; 3. to participate in review meetings with his supervisor on a weekly basis; 4. each review meeting is to be held for a minimum of 1 hour; 5. to authorise the supervisor to provide reports to the Council on a fortnightly basis; 6. not to practice as a pharmacist until a supervisor has been approved by the Council; 7. to bear responsibility for any costs incurred in satisfying this condition; 1. not to compound; 2. not to allow compounding in any pharmacy in which he has a financial interest; 3. not to supply any product that has been compounded in any pharmacy in which he has a financial interest; 4. not to allow the supply of any product that has been compounded in any pharmacy in which he has a financial interest; 5. not possess any keys, access codes, smart cards or access cards to any pharmacy: 1. by 9 November 2021 must provide evidence to the Council that he has relinquished all keys, access codes, smart cards or access cards in his possession to another pharmacist. The evidence must be signed and dated by a pharmacist who has received possession of the above; 1. within 7 days of a change in the nature or place of his practice, including obtaining financial interest in a new pharmacy, he is to forward evidence to the Council that he is not in possession of any keys, access codes, smart cards or access cards to his place of practice. The evidence must be signed and dated by a pharmacist who has received possession of the above; 2. to immediately provide all pharmacists, pharmacist in charge and proprietors of his place of employment with a copy of all conditions on his registration and to provide the Council with proof of having done so within 14 days of the date that this condition is imposed. 3. within 7 days of a change in the nature or place of his practice, including obtaining financial interest in a new pharmacy he is to forward evidence to the Council that he has provided a copy of these conditions to all the pharmacist, pharmacist in charge and proprietors of his place of employment. Mrs Ng 1. On 29 March 2021, the Council, having considered similar if not identical complaints to those made against Mr Ng, imposed the same conditions on Mrs Ng's registration as were imposed on Mr Ng's registration and are set out in [6] above. 2. Following the receipt of new information on 7 May 2021, the Council commenced separate proceedings under s 150C of the National Law and the following same conditions were imposed on Mrs Ng's registration as were imposed on Mr Ng's registration and set out above at [8]. 3. On 13 October 2021, Mrs Ng made an application under s 150A of the National Law for review of the Council's decision to impose conditions on his registration, noting that the request for review was only of the additional conditions imposed at the s 150C hearing on 7 May 2021. 4. A hearing before the delegates of the Council was held on 28 October 2021. Again, the Council delegates were Ms Susan Lovrovich as Chair, Ms Majella Hill and Mr Jonathan Chen. 5. Mrs Ng was in attendance, and assisted by Ms Kate Richardson SC. 6. Again, at the outset of the hearing, the delegates disclosed that the delegates knew Mr David Preswick, Mr Ng's mentor, and Mr Michael Cross, Mr Ng's supervisor, through their work at the Council as well as professionally elsewhere. 7. Again, Mr Chen's disclosed that Ms Phui Yee Ch'ng, was the purchaser of the Professional Services Room which had been attached to the Pharmacy and that he knew her professionally. Mrs Ng did not raise any objection regarding these disclosures. 8. The s 150A decision records that the central issue for the delegates to consider was whether there had been a change in Mr Ng's circumstances that justified the setting aside or varying of the Council's decision to impose conditions on his registration. To determine this issue, the delegates stated that they had to answer the following questions: 1. what changes had there been to Mrs Ng's circumstances? 2. did those changes justify the setting aside or varying of the Council's decision to impose conditions on her registration? 1. At p 12 of the Decision the delegates set out the changes in Mrs Ng's circumstances, and at pp 12 to 21 Mrs Ng's current practice arrangements. Having done so, at pp 21 to 22 the delegates considered whether those changes justified the setting aside or varying of the Council's decision to impose conditions on his registration. 2. The delegates acknowledged that Mrs Ng had spent considerable time and effort in working on aspects of her proprietorial oversight and in attempting to enhance her clinical knowledge, but were not convinced that she was at the level expected of a practising pharmacist of some 20 years' experience, stating that in many ways her clinical knowledge was quite rudimentary. 3. As with Mr Ng, the delegates considered that Mrs Ng's conditions should not be lifted and should be varied to encompass any pharmacy Mrs Ng might wish to work in until such time as she could demonstrate to the satisfaction of the Council that her knowledge, understanding, judgement, care, practice and oversight are of an adequate level to ensure the protection of the health and safety of the public. 4. Accordingly, the delegates varied the decision of 7 May 2021 and imposed the same conditions on Mrs Ng as they had imposed on Mr Ng and are set out in [16]. Preliminary matter 1. Since the Council made the s 150A Decisions, the Council has exercised its power under s 150C of the National Law to alter or remove the conditions imposed under s 150A. 2. Specifically, on 18 March 2022 the Council removed a number of conditions on Mr and Ms Ng's registration which were imposed under the s 150A Decisions, altered one condition and imposed additional conditions. 3. At the time of preparing the Tribunal's reasons, reasons for the Council's s 150C Decisions in respect of each of Mr and Ms Ng had not been published. 4. In those circumstances, the parties submit that a question of utility arises in respect of the present appeals, as the s 150A Decisions have, in practical terms, been superseded by the more recent s 150C decisions of the Council. 5. The appellants contend, and the Council accepts, that there is utility in the Tribunal granting the relief sought in the present appeals, notwithstanding the Council's more recent s 150C decisions. This is because, absent the grant of the relief sought by the practitioners in the present appeals, the 150A Decisions will remain in force. 6. The parties submit that the continued existence of the s 150A Decisions may have consequences for the practitioners in the future notwithstanding the fact that they have, in practical terms, been superseded. They give the example that, if a complaint were made against the practitioners in the future, the Council would be required to have regard to the s 150A Decisions in exercising its functions under Part 8 of the National Law, by reason of the operation of s 41O of the National Law. The s 150A Decisions indicate they were to be provided to certain other regulatory bodies, namely the Health Care Complaints Commission, the Pharmaceutical Regulatory Unit of the Ministry of Health, the Therapeutic Goods Administration, the Australian Health Practitioner Regulation Agency, the Medical Council of NSW, the Victorian Pharmacy Authority, the Pharmacy Regulation Authority South Australia and the Benefits Integrity and Digital Health Division of the Department of Health. 7. The parties jointly submit that if the decisions are not set aside by the Tribunal, it may be that those other regulatory bodies will have regard to the s 150A Decisions in the future, notwithstanding the fact that the Council accepts the decisions are infected with legal error. 8. The Tribunal accepts these submissions and considers that the appropriate course is to consider the two appeals. Mr Ng's appeal 1. Mr Ng submits, and the Council accepts, that the s 150A decision made by the Council in respect of Mr Ng was infected by legal error on the basis that: 1. the Council misunderstood the nature of its statutory task when making a decision under s 150A of the National Law by making findings that Mr Ng had breached s 139B(h)(ii) of the National Law and thus engaged in unsatisfactory professional conduct; 2. the Council made a decision under s 150A of the National Law in circumstances where there was a reasonable apprehension of bias affecting the Council; and 3. the Council denied Mr Ng procedural fairness in making findings by reference to evidence given by Mrs Ng in a separate proceeding, without according Mr Ng the opportunity to respond to that evidence. Misunderstanding the nature of its statutory task 1. The parties jointly submit that in the Council's reasons for decision, at [28], [30], [55] and [58] - [59], the Council made findings to the effect that Mr Ng had breached s 139B(h)(ii) of the National Law. This is correct, as those paragraphs state: 28. Mr Ng continued that he has an agreement with the doctor has also asked them to provide that service as he can guarantee the integrity of the cold chain delivery, although he does not have a written agreement with the doctors. We suggested to Mr Ng that this appeared to be a closed-loop arrangement and a breach of the National Law section 139B(1)(h)(ii), which Mr Ng denied, insisting that the patients have choice. We found this implausible as Mr Ng advised that the Pharmacy delivered these injections to surgeries all over the State, including to Coffs Harbour and Orange. Every pharmacy in Australia has the manage cold chain products and the common practice is for a pharmacy to hold the product until the patient picks it up on their way to their appointment. We advised that there was a greater potential risk involved in a six-hour delivery journey from the Pharmacy to the surgery in Coffs Harbour compared with a short trip from the local pharmacy in Coffs Harbour to their doctor, also in Coffs Harbour. 55. For example, we are concerned that Mr Ng has not undertaken essential training in the lunch requirements for COVID vaccination, does not understand the requirements for Staged Supply and is still undertaking closed loop arrangements for Lucentis and Eylea, in direct contravention of section 139B(1)(h)(ii) of the National Law, despite this being a concern during the previous s150 hearing. It is conceivable that some of these deficits could have been addressed by Mr Ng's category A supervisor if he had more time under supervision. As it stands, Mr Ng has only had the benefit of approximately 4.5 hours of category A supervision since the s150 hearing in May 2021. Further we consider that the amount of supervised practice in situ that the Board requires when changing one's scope of practice has not been met. 58. In addition, it is clear that there is a closed-loop arrangement between CustomCare Compounding Pharmacy and the Ophthalmic practices he supplies. It was very concerning to us that even after our discussions with him that Mr Ng did not agree that what was occurring amounted to a closed-loop arrangement. Nor did Mr Ng acknowledge that he was providing a benefit to the practices by the very expensive vaccine fridges he supplies, monitors and services. 59. The Public expects that pharmacists act at all times with the utmost integrity, and in compliance with all aspects of the various laws, codes and guidelines which underpin the profession. Not only is Mr Ng still breaching some of these laws, his lack of candour is less than that required of a pharmacist. In addition, he lacks insight into the concerns we have raised and has given no indication of his desire to address them. He still maintains relationships and services the clinics associated with his compounding business and retains ownership of all aspects including all the infrastructure and data records. 1. The parties jointly submit that the Council's statutory task under s 150A of the National Law was relevantly to reconsider its earlier decision under s 150 of the National Law in respect of Mr Ng: see s 150A(2)(b). Following such reconsideration, the Council was empowered to either affirm or vary the decision, or set aside the decision and take any action the Council has power to take under s 150: see s 150A(3). Under s 150 of the National Law, the Council was empowered to suspend or condition Mr Ng's registration, if satisfied of certain matters. 2. The parties jointly submit that it forms no part of the Council's statutory task under s 150A to make findings of unsatisfactory professional conduct in respect of practitioners. The parties (including the Council) submit that by making such findings the Tribunal should conclude that the Council misunderstood its statutory task. 3. The parties jointly submit that a decision-maker misunderstanding its statutory task in making a decision constitutes an error of law, and may require the relevant decision to be set aside: Medical Council of NSW v Smithson [2021] NSWCA 53; Alstom Transport Australia Pty Ltd v Comptroller-General of Customs [2020] FCAFC 43. 4. The parties jointly submit that, in the present circumstances, where the Council's findings to the effect that Mr Ng contravened s 139B(h)(ii) were repeated multiple times in the Council's reasons, and appear to be central to the Council's ultimate decision to impose conditions on Mr Ng's registration, it is accepted that (to the extent it is necessary to so conclude) the Council's error in misunderstanding its statutory task was material, and should result in the Tribunal setting aside the s 150 decision in respect of Mr Ng. Reasonable apprehension of bias 1. The parties jointly submit that Mr Ng's application under s 150A of the National Law for a review of the Council's decision under s 150 of the National Law was premised on a number of changes in circumstances since the Council's original s 150 decision. One of those changes was Mr Ng's claim that he had closed a Professional Services Room that had been attached to a pharmacy at Dural that Mr Ng owned, together with Mrs Ng. An issue in dispute at the s 150A hearing was the extent to which Mr Ng continued to have some involvement in a non-PBS private pharmacy being operated by Ms Phui Yee Ch'ng in the space that was previously the Professional Services Room. 2. One of the delegates, Mr Chen, who conducted the s 150A hearing in respect of Mr Ng disclosed at the outset of the hearing that he knew Ms Ch'ng professionally. It is not in dispute between the parties that the delegate did not disclose the full extent of his connection to Ms Ch'ng at that time (which connection included that the delegate had Ms Ch'ng's contact details, and communicated with her via a messaging service about personal matters). 3. The parties agree that without the knowledge or consent of Mr Ng, the delegate communicated with Ms Ch'ng via a messaging service after the s 150A hearing had been conducted, but before reasons had been delivered by the Council, including about a matter relevant to the delegate's deliberations. 4. The parties submit, and the Tribunal accepts, that the test for apprehended bias is encapsulated in the so-called "double might" test stated in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6], namely: Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver … or necessity …, a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. 1. The question is one of possibility of partiality (real and not remote), not probability: Ebner at [7]. 2. The Council accepts that Mr Chen's relationship with Ms Ch'ng and, in particular, his communications with Ms Ch'ng outside the bounds of the s 150A hearing about matters relevant to his deliberations, are matters that "might" lead a fair-minded observer to conclude that the delegate "might" not bring an impartial mind to the resolution of issues in dispute at the s 150A hearing, in circumstances where the question of Mr Ng's ongoing involvement in the pharmacy being operated by Ms Ch'ng (if any) was centrally in issue at the s 150A hearing. 3. In those circumstances, the Council accepts, and the parties jointly submit that the Tribunal should conclude that the Council erred with respect to a point of law by proceeding to make the s 150A decision in respect of Mr Ng, in circumstances where there was a reasonable apprehension of bias affecting the Council. Making findings by reference to Mrs Ng's evidence 1. The Council accepts that it erred in law in rejecting Mr Ng's otherwise unchallenged and uncontradicted evidence at paragraphs [37], [49] and [56] of its reasons for its s 150A decision, on the basis of evidence given by Ms Ng in a different hearing, without according Mr Ng the opportunity to respond to that evidence. 2. The Council relevantly stated: 37. We referred to the fact that Mr Ng previously supplied large/bulk quantities of commercially available eye drops such as Maxidex directly to the doctors' surgeries and we asked him if he still engaged in this practice. His response was "No". However, in our subsequent hearing with Mrs Ng she advised that they were providing bulk quantities of commercially available eye preparations as well as other goods via their wholesaling business Concept Health Pharma Pty Ltd which was situated at Unit 8, 917-923 Old Northern Rd, Dural. Unit 8 was previously used as the lunchroom for the PSR which was located at Unit 9, 917-923 Old Northern Rd, Dural and has been leased to Ms Phui Yee Ch'ng. Mr Ng's lack of candour was concerning to us. … 49. Mr Ng was adamant that he has not given Ms Ch/ng any help at all. However, we have concerns about Mr Ng's candour because Mrs Ng's responses later in the day were completely at odds with Mr Ng's responses. … 56. Mr Ng stated that he does not undertake any wholesaling at this time, but we note that in the subsequent hearing, Mrs Ng stated that they own Concept Health Pty Ltd which operates a wholesaling business from Unit 8, 917-923 Old Northern Rd, Dural. Mrs Ng stated that this business wholesales schedule 2, 3 and 4 drugs such as Maxidex, Minims, Pilocarpine and Ocuflox. Some of these items were also delivered as part of the cold chain delivery process that was outlined in the closed loop arrangements above. We found Mr Ng's lack of candour concerning. 1. The parties jointly submit that the rules of procedural fairness apply to s 150A hearings. While the requirements of procedural fairness are flexible and adaptable to the circumstances of the particular case (Kiao v West (1985) 159 CLR 550 at 612), generally speaking, a decision-maker must decide a case on the material presented to him or her by the parties, in the presence of the parties, and the receipt of evidence in the absence of a party will ordinarily amount to a breach of the rules of procedural fairness: Re JRL; Ex parte CJL (1986) 161 CLR 342; R v Fisher (2009) 22 VR 343 at 352; Shields v Overland (2009) 26 VR 303 at 332. 2. In the context of the s 150A hearing conducted in respect of Mr Ng, the parties submit that Mr Ng ought to have been given the opportunity to respond to evidence given by Mrs Ng in a different (and subsequent) hearing, to the extent that the Council intended to rely upon such evidence in rejecting Mr Ng's own evidence. The submit that the failure of the Council to do so was a breach of the rules of procedural fairness, and amounted to an error of law. 3. For these reasons, the parties jointly submit that the Tribunal should exercise its power under s 159C(1)(b) of the National Law to set aside the s 150A Decision in respect of Mr Ng. Consideration 1. This is an external appeal from a decision of the Council: see s 31 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Section 79 of the NCAT Act provides that: 79 Making and determination of external appeals (1) An external appeal may be made to the Tribunal by a person entitled to do so under enabling legislation on such a basis or grounds, or in such circumstances, as may be provided by that legislation. (2) In determining an external appeal, the Tribunal may— (a) in the case of enabling legislation that specifies the orders that may be made by the Tribunal on the appeal—make any of those orders, or (b) in any other case—make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following— (i) the appeal to be allowed or dismissed, (ii) the decision under appeal to be confirmed, affirmed or varied, (iii) the decision under appeal to be quashed or set aside, (iv) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (v) the whole or any part of the case to be reconsidered by the decision-maker whose decision is under appeal, either with or without further evidence, in accordance with the directions of the Tribunal. 1. The Tribunal accepts that the matters relied on by both parties, namely the Council misunderstanding the nature of its statutory task, the reasonable apprehension of bias of one Council delegate and the denial of procedural fairness to Mr Ng by the Council making findings by reference to Mrs Ng's evidence without affording Mr Ng the opportunity of being heard, when considered cumulatively require the setting aside of the s 150A Decision in respect of Mr Ng. 2. Ordinarily a finding of apprehended bias of itself would be sufficient to allow an appeal, however the Tribunal declines to make that finding in the absence of any evidence on the matter. Nevertheless, while Tribunal notes that there was no evidence tendered as to the events relied on in relation to the apprehended bias of Mr Chen, it accepts that it was the common position of both parties that the events had occurred. 3. In the circumstances, it is sufficient to find that the three matters relied on by Mr Ng to support the appeal when considered cumulatively warrant the appeal being allowed and the decision being set aside. Mrs Ng's appeal 1. Analogous submissions were made in respect of Mrs Ng. The parties submit that the Council's s 150A decision in respect of Mrs Ng was infected by the same errors identified in Mr Ng's appeal, and should be set aside on the same basis. Specifically: 1. the Council made findings that Mrs Ng had breached s 139B(h)(ii) of the National Law at [45]-[46] of its reasons, which findings involved a misunderstanding of the Council's statutory task. Those paragraphs state: 45. It is a concern to us that Mrs Ng did not exhibit the insight we would have expected, given our discussion with her around the ethics of consent and assigning the pharmacist's role to the doctor, so that a patient would feel unable to separate them and may feel there are consequences for their treatment were they to decline the service offered. We formed the view that a closed-loop arrangement was in place and that was a breach of the National Law section 139B(1)(h)(ii). 46. Mrs Ng advised that on the consent form there are three options for payment: cash, cheque or direct deposit. If cash payment was made it was left at the clinic for on-forwarding to the Pharmacy. If credit card payment was used, details on the consent form were completed authorising the Pharmacy to deduct the payment. The cash and forms were collected by their courier, Mr Cheddi, at the time of his regular weekly delivery of the medications. The patients did not see the prescriptions or sign for the receipt of the medication on the prescriptions but signed the consent form which informed them that the prescription would be sent directly to the Pharmacy. This is further evidence of the closed loop arrangement whereby the clinic collects payment of behalf of the Pharmacy. 1. the Council erred in making the s 150A decision in respect of Mrs Ng in circumstances where there was a reasonable apprehension of bias affecting the Council, for the same reasons as outlined above in respect of the decision relating to Mrs Ng; and 2. the Council erred in making adverse credit findings against Ms Ng at paragraphs [37] and [55] of its reasons for its s 150A decision in respect of Ms Ng, based on evidence given by Mr Ng at a separate hearing, without Ms Ng being given the opportunity to respond to that evidence (Ground 1(b) of Ms Ng's appeal). 1. As to this last matter, at [37] and [55] of the s 150A decision in respect of Mrs Ng the Council stated: 37. When asked whether any of these items were delivered to the doctors in Coffs Harbour, for instance, and Mrs Ng responded, "Um, no I don't know, I'm not too sure as I don't do the Concept, but I know they place some orders for certain things in my wholesale licence, um, premises (sic)". Mrs Ng stated that there might be Maxidex that has been dispensed for a patient going to Coffs Harbour along with dispensed Lucentis prescriptions from the Pharmacy and said the Maxidex from the wholesale business might also be delivered to Coffs Harbour "but not necessarily on the same day". We formed the view that Mrs Ng was being evasive and less than candid with us noting her response differed from Mr Ng's response earlier in the day. … 55. We asked Mrs Ng if she sold the business as a going concern, and she replied "yes" in which case the records should have gone with the business. Mrs Ng then argued she closed the business but also admitted they had been paid goodwill, a fact that Mr Ng denied in his hearing. We formed the view from what Mrs Ng stated that she did not close the business but had stopped trading (compounding) at the PSR when conditions were imposed on her registration for a period and then sold it sometime later as a going concern to Ms Ch'ng. We shared the view of her supervisor that Mrs Ng may have been giving some help to the new owner. 1. As with Mr Ng, the Tribunal accepts that the matters raised by Mrs Ng and accepted by the Council cumulatively require the setting aside of the s 150A Decision in respect of Mrs Ng. Costs 1. The Council does not oppose a costs order. Orders 1. The Tribunal orders that: 1. The decision of the respondent of 2 November 2021 (reasons dated 6 December 2021) (respondent's reference 141326/21) is set aside. 2. The decision of the respondent of 2 November 2021 (reasons dated 6 December 2021) (respondent's reference 142055/21) is set aside. 3. The respondent to pay the appellants' costs of the appeals as agreed or assessed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 09 May 2022 - Corrected date of Orders and Date of Decision from 06 May 2022 to 09 May 2022 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: 09 May 2022