Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hanna v Dental Council of New South Wales [2022] NSWCATOD 54 Hearing dates: 20 April and 3 May 2022 Date of orders: 12 May 2022 Decision date: 12 May 2022 Jurisdiction: Occupational Division Before: H J Dixon SC, Senior Member Decision: 1. Pending further order, there be a stay of the order of 18 March 2022 made by the Respondent suspending the registration of the Applicant to practise as a dentist with effect from 18 March 2022. 2. The parties have liberty to apply to vary or cancel order (1) on 24 hours' notice in the event that the Applicant fails hereafter to comply with the conditions imposed on his registration by the Respondent on 23 November 2021. 3. The costs of the stay application are reserved. Catchwords: Health – Professional registration and conditions on registration – application for stay of suspension of entitlement to practise as dentist Legislation Cited: Civil and Administrative Tribunal Act 2013; Health Practitioner Regulation National Law (NSW) Cases Cited: Ansari v Medical Council of New South Wales [2021] NSWCATOD 138; Berger v Council of the Law Society of NSW [2013] NSWSC 278; Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115; Ghosh v Medical Council of New South Wales [2020] NSWCA 122; (2020) 102 NSWLR 303; Hill v Medical Council of New South Wales [2019] NSWCATOD 52; Lindsay v NSW Medical Board [2008] NSWSC 40; Liu v Chinese Medicine Council of New South Wales [2019] NSWCATOD 13; Medical Council of NSW v Lee [2017] NSWCA 282; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; Pridgeon v Medical Council of New South Wales [2022] NSWCA 60; Segal v Medical Council of New South Wales [2020] NSWCATOD 86; Taylor v Medical Board of Australia [2018] NSWCATOD 50 Texts Cited: None Category: Procedural rulings Parties: James Hanna (Applicant) Dental Council of New South Wales (Respondent) Representation: Counsel: A Robinson SC and J Alderson (Applicant) A Petrie (Respondent) Solicitors: Law Partners (Applicant) Health Professional Councils Authority (Respondent) File Number(s): 2022/00090987 Publication restriction: Nil Reasons for decision Introduction 1. On 18 March 2022 the Dental Council of New South Wales (the Council) suspended the registration of Dr James Hanna, a dentist practising in Sydney (the Applicant) pursuant to s 150(1) of the Health Practitioner Regulation National Law (NSW) (the National Law). That decision took effect on 18 March 2022. Written reasons for the decision were published by the duly appointed delegates of the Council on 7 April 2022 who made the suspension order. 2. The Applicant has appealed to the Tribunal pursuant to s 159 of the National Law for the reason that the decision of the Council is wrong and it is not the correct or preferable decision. 3. The Applicant also appeals the decision with respect to a point of law pursuant to s 159B of the National Law. 4. The Applicant now seeks a stay of the operation of the decision. A stay is only available in respect of the appeal based on s 159B of the National Law which is limited to appeals on a point of law. (See Medical Council of NSW v Lee [2017] NSWCA 282 at [13] to [14], [93] and [96].) 5. The power to grant a stay of the Council's decision pursuant to s 150 is set out in s 165L(2) of the National Law as follows: The Tribunal may, in respect of an appeal under s 159B, make an order staying the decision of the Council appealed against until the appeal has been disposed of. 1. The principles to be applied when considering whether to grant a stay are well established (Ansari v Medical Council of New South Wales [2021] NSWCATOD 138; Hill v Medical Council of New South Wales [2019] NSWCATOD 52; and Liu v Chinese Medicine Council of New South Wales [2019] NSWCATOD 13). 2. Those principles can be summarised as follows: (a) The onus is on an applicant for a stay to make out a case that it is appropriate to make such an order. (b) An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal. (c) The Tribunal may take into account the strength or otherwise of the case of the party seeking the stay. (d) The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies. (e) In exercising the discretion the Tribunal will weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties. (f) The overriding principle in an application for a stay is to ask what the interests of justice require. 1. An appeal on a point of law and the stay application are to be determined under the National Law. As with all applications under the National Law the object in s 3A is relevant, namely, that the health and safety of the public is to be the paramount consideration and is a matter entitled to significant weight once it appears that a professional person has misconducted him or herself to a substantial degree (Segal v Medical Council of New South Wales [2020] NSWCATOD 86 at [43] to [47] per Boland DP). 2. Each case must turn on its own specific facts. The Applicant bears the onus of establishing that it is appropriate to grant the stay (Taylor v Medical Board of Australia [2018] NSWCATOD 50 at [59] per Boland DP). The Applicant's Grounds 1. The Applicant contends that the Council erred in its decision on the following grounds: (i) The decision was afflicted with legal unreasonableness in that: (a) The decision did not logically follow from the stated reasoning and it was harsh and unreasonable; (b) The Applicant was wrongly denied the receipt by the Council of a further opinion of Dr Glenys Dore (Consultant Psychiatrist and Specialist in Addiction Medicine); (c) The Council wrongly failed to wait for the receipt of a further opinion of Dr Dore; (d) The Council wrongly determined that it could not impose any conditions on the Applicant's registration that could address its concerns; (e) The Council wrongly failed to consider and to engage with and evaluate the Applicant's evidence as to his alleged non-compliance with the sampling methodology that was in place. This was also a failure to afford the applicant procedural fairness; (f) The decision bespoke of legal error (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68], [70], [71]-[74], [76], [82] and [85]) (Ground 1). (ii) The Council wrongly failed to first seek out a further opinion from Dr. Glenys Dore (Consultant Psychiatrist and Specialist in Addiction Medicine) as to events that occurred after the delivery of her report to the Council on 31 January 2022. The Council had, in the premises, a duty to make that inquiry (Ground 2). (iii) The Council made the following findings without first putting them to the applicant or putting to him that it considered them open to be found. This constitutes an denial of procedural fairness (Mahon v Air New Zealand Ltd [1984] AC 808): (a) The finding that the applicant was non-compliant with 5 out of 10 stated criteria in the Council's Urine Drug Screening policy and procedure (reasons at page 5.6); (b) The finding that there was a pattern suggesting the Applicant concealed the use of illicit substances (Reasons at page 5.8); (c) The medical report of 7 February 2022 established that the Applicant ingested cocaine (Report at page 5.9); and/or, (d) That the Applicant is unable to abstain from illicit substances (Report at page 9.8) (Ground 3). (iv) The Council failed to set out lawful reasons for the decision, holding only that "we are of the view that it is appropriate to suspend the practitioner's registration in the interests of the health and safety of the public". Lawful reasons were required to be set out (Ground 4). (v) The Council failed to deal with and consider, engage with and evaluate the substantial arguments and evidence of the Applicant which is a denial of procedural fairness here - Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24], [95] and Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13 at [77]; McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609; Rodger v DeGelder (2015) 71 MVR 514 at [89]–[94]; Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443 (Ground 5). Section 150 1. Section 150 reads as follows: 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. The s 150 power available to the Council is of a particular kind, namely, where immediate action of an emergency kind require the Council to act. 2. In Ghosh v Medical Council of New South Wales [2020] NSWCA 122; (2020) 102 NSWLR 303 at [9] it was held in the Court of Appeal as follows: [9] On such an appeal NCAT is required to exercise afresh the administrative discretion in s 150, as if it were the Council, upon the evidence (including any additional evidence that was not before the Council) before it, and having regard to the considerations relevant to the exercise of the discretion conferred by s 150. As was explained by NCAT (constituted by a tribunal in which Wright J presided) in Karimi v Medical Council of New South Wales, the approach required of NCAT on an appeal of this kind is as follows: [123] … The applicable principles derived from the relevant provisions of the National Law, as discussed in Crickitt and Hanna, may be summarised as follows: (1) Nature of the appeal The Tribunal is to conduct the appeal by way of a new hearing and may consider evidence that was not before the Council as the original decision-maker. The Tribunal's task is not to review the decision of the Council and determine whether its decision was reasonably open in the circumstances. The Tribunal is called on to exercise afresh the administrative discretion in s 150(1) having regard to the material before it. (s 159(3) of the National Law and Hanna at [17]-[18]). (2) Protective jurisdiction The jurisdiction being exercised is directed to the immediate action that may need to be taken in order to protect the health or safety of any person or persons or the public interest. (ss 3A and 150 of the National Law, Hanna at [17] and Crickitt at [47]) (3) Consequences of suspension The exercise of the power to suspend can be described as "draconian" and will have grave consequences for a practitioner, affecting not only the ability to earn a livelihood, but also the continuing ability to use his or her professional skills. Nevertheless, this is but a consequence of any appropriate exercise of discretion, and not a determining factor. (Crickitt at [56]; see also X v NSW Medical Board (1993) 32 ALD 330 and Lindsay v NSW Medical Board [2008] NSWSC 40 at [80], which considered s 66 of Medical Practice Act 1992 (NSW), being the predecessor to s 150 of the National Law) (4) No need for a detailed enquiry The existence of the power, and the fact that it may be exercised without any formal complaint having been made against the practitioner, and without any disciplinary proceedings having been commenced, is indicative that the Tribunal need not embark upon a detailed enquiry, and may base its reasons on material which would not conventionally be considered as evidence in a strict sense as would be admissible in a court. (Crickitt at [56]; see also Lindsay at [76]) (5) Not required to make any conclusive findings Because the circumstances in which the power under s 150 is to be exercised include that there may be a continuing dispute as to precisely what occurred and why and that investigations into complaints concerning the practitioner by bodies such as the HCCC may not have been completed or even commenced, the Tribunal is not required to make conclusive findings of fact based on the material before it. (s 150 of the National Law and Hanna at [19]) (6) Pre-conditions on power to suspend The Tribunal must assess whether "it is appropriate for the protection of the health and safety of any person or persons" or "is otherwise in the public interest" to make such orders as are permitted by s 159C. The Tribunal's task is in essence to consider whether, on the material before it, allowing the practitioner to practice, or to practice with certain conditions, involves an unacceptable risk to the health and safety of the public (or particular members of the public) or otherwise involves a risk not in the public interest. (ss 150, 159 and 159C of the National Law and Hanna at [20]) (a) Scope of "protection of the health and safety of person or persons" The "protection of the health and safety of any person or persons" does not require there be actual harm suffered by any person. Because s 150 is concerned with protection, it is sufficient if it can be demonstrated that there is a potential for harm. This approach is fortified by the alternative test of a consideration of the public interest. It would be in the public interest to prevent harm being suffered by a person or persons if it could be predicated that this may occur. (Section 150 of the National Law and Crickitt at [48]) (b) Scope of "public interest" The "public interest" consideration will always also include the need for patients and others to have confidence in the competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession (ss 150 of the National Law, Hanna at [18] and Crickitt at [56]) (7) No need to determine whether conduct is "professional misconduct" or "unsatisfactory professional conduct" Apart from what is involved in assessing the risk referred to in the preceding subparagraphs, it is not otherwise necessary for the Tribunal to determine whether the conduct under notice constitutes "professional misconduct" or "unsatisfactory professional conduct" or to make findings as to the fitness of the practitioner to retain registration as a medical practitioner. Those are matters that may fall to be addressed at a later stage, if and when disciplinary proceedings are taken against the appellant. (s 150 of the National Law and Hanna at [22]) (8) Nature of suspension power under s 150 An order made under s 150, including a suspension order, is in the nature of an interlocutory order and often must be made on the basis of limited information. (s 150 of the National Law and Crickitt at [51] and the authorities cited there; Lindsay at [79]) (9) Council's separate power to reconsider suspension A practitioner may also apply directly to the Council for a review of a s 150 decision to suspend a practitioner's registration. If satisfied there has been a sufficient change in the practitioner's circumstances, the Council can affirm or vary the decision or set it aside and take any action it has power to take under s 150. (s 150A(2)(b) and (3) of the National Law). 1. More recently and just prior to the hearing of the stay application the Court of Appeal handed down the decision in Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 (Bell CJ, White JA and Harrison J). 2. The Court of Appeal analysed the power under s 150 in the context of the powers available under Part 8 of the National Law, in particular Division 3. 3. The Court commenced the analysis of the legislation thus: [47] Division 3 of Pt 8 of the Health Practitioner Regulation National Law (NSW) of 2009 is headed "Complaints". The heading of the Division and the Subdivisions are to be taken to be part of the Act: Interpretation Act 1987 s 35(1). The headings to the sections are not to be taken to be part of the Act but a part of the extrinsic material that can be used in the construction of the Act as allowed by ss 34, 35(2) and (5). Subdivision 1 is headed "Making complaints" and includes s 144 which sets out the grounds of complaint that can be made about a registered health practitioner: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner-- (a) 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) A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. (c) A complaint the practitioner is not competent to practise the practitioner's profession. (d) A complaint the practitioner has an impairment. (e) A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession. 1. As is the case here, no complaint had been made against Dr Pridgeon under s 144. 2. The Court then held: [52] By reason of the limitation in s 145D(1), the Medical Council could not have suspended Dr Pridgeon's registration even if a complaint had been made. If the Medical Council had formed the opinion that the complaint warranted suspension, it would have had to refer it to the Tribunal. If a complaint had been made, Dr Pridgeon would have been entitled to attend the meeting of the Medical Council at which the complaint was considered and to make submissions: s 148D(1). [53] This is the setting in which s 150 is to be found. It is contained in a Division headed "Complaints" and in the context of provisions that contemplate that if a complaint is made, it will be the Tribunal and not the Medical Council that would have the power to suspend. Section 150 is contained in Subdivision 7. The heading to that Subdivision is "Powers of a council for protection of public". 1. Having set out the terms of s 150 the Court continued: [55] Section 150(4) makes it clear that the Medical Council was entitled to take action notwithstanding that no complaint had been made to it about Dr Pridgeon. However, a relevant question for the Council is whether it should act under s 150 where no complaint has been made. [56] The context indicates that the usual way in which a complaint against a doctor should be dealt with is by the making of a particularised complaint, which the doctor can address at an oral hearing and which, if sufficiently serious to warrant suspension, is to be referred to the Tribunal. This suggests that the power of the Medical Council to suspend a doctor's registration under s 150 should be reserved for urgent cases. This is confirmed by the Explanatory Note relating to s 150, which refers to the Medical Council's powers "to act where it is necessary to take urgent action for the protection of the public", and the Second Reading Speech for the Health Practitioner Regulation Amendment Bill 2010, which referred to cases of urgency or emergency in the following terms: "The principal definition of 'unsatisfactory professional conduct' in this bill is in proposed section 139B. Sections 139C and 139D go on to set out additional matters relevant to medical practitioners and pharmacists respectively. I further advise the House that, as with the definitions of 'unsatisfactory professional conduct', the other aspects of the existing complaints processes are to be carried over with little change. There is a small number of areas in which there will be change, and many of these changes reflect changes brought about by the national registration system. These areas of change include: changes required to reflect the registration of students in all professions and changes to the council's powers regarding emergency suspensions. … With respect to the changes to provisions concerning emergency suspensions, I advise the House that the changes proposed involve moving from emergency suspensions of not more than eight weeks in duration to emergency suspensions that are not time limited. While this is an extension of the suspension power, it must be noted that a practitioner who is subject to such a suspension may apply for a review of that suspension at any time and as frequently as he or she wishes. Of course, a council will be able to decline to accept an application that is frivolous or vexatious. However the professional and board representatives who have considered this matter agree that it is appropriate and that the right to apply for a review at any time meets any concerns about procedural fairness…" [Emphasis added] [57] Additionally, although there is no definition of "public interest", the content of the expression is informed by the heading to Subdivision 7 that the powers provided by s 150 are to be exercised for the protection of the public. … [68] First, in the context of Subdivision 7, the reference to the "public interest" should be understood as a reference to the public interest in the protection of the public's health and safety. The content to be given to that protection must take its meaning from the conduct of the practice of medicine in respect of which a medical practitioner's registration is granted. In the present case, the relevant public interest must be in the conduct by Dr Pridgeon of his profession as a medical practitioner. There may, arguably, be some wider, unspecified public interest in limiting the potential for the rule of law to be undermined by conduct of a medical practitioner that is said to be in defiance of an order of the court, but which is unrelated to the practice of medicine which the National Law regulates. However, the honourable reputation of the medical profession that is said possibly to be affected by conduct of that description is not a concern that relevantly informs the particular public interest in the protection of the public with which s 150 is concerned. … [70] Thirdly, the context of s 150 suggests that it should only be invoked as an emergency power where the circumstances are urgent. The Medical Council's submissions specifically acknowledge and accept that the powers in s 150 form part of a selection of emergency powers that were introduced into the National Law. However, that is not this case. This implication arises from the fact that Division 3 provides for the primary mechanism for regulating the profession by way of particularised complaints, including an oral hearing if sought, to be dealt with by the Tribunal, not the Medical Council, if suspension is sought. That construction is reinforced by the Explanatory Memorandum and the Second Reading Speech. There was no urgency in this matter at any time before or during the Tribunal hearing. 1. To this analysis must be added earlier observations by the Supreme Court and the Tribunal in respect of s 150 or its equivalent. 2. In Lindsay v NSW Medical Board [2008] NSWSC 40 it was said, relevantly for present purposes, in respect of predecessor legislation that a power of suspension that the Medical Board or its delegate called for an assessment of risk, including the nature and extent of risk arising from the particular conduct of the practitioner (per Hall J at [76]). 3. In Berger v Council of the Law Society of NSW [2013] NSWSC 278 the Court was dealing with an appeal against the suspension of a practising certificate of a solicitor. In relation to whether it was "necessary" in the public interest to suspend held that the protection of the public meant that the public interest was entitled to significant weight (at [10] per Beach-Jones J). Although the test there under consideration was "necessary" as opposed to "appropriate to do so for" the Council in this case was in my view entitled to approach its task in a similar way. His Honour further proceeded to hold that the appropriate approach is one that required the Law Society to be satisfied that the available material concerning a complaint against a practitioner demonstrates that the continued holding of a practising certificate by the practitioner pending its determination (of the complaint) presents such an unacceptable risk to clients, the public generally or the administration of justice that it is necessary that their certificate be suspended (at [18]). 4. In the Tribunal, to similar effect is the decision, for example, in Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 at [56(4)] where it was held that what was required under s 150 is the formation of a "reasonable belief" that because of the health practitioner's conduct or performance the practitioner poses a serious risk to persons, and that it is appropriate to take immediate action to protect public health or safety. Materials Before the Tribunal 1. The Applicant relies upon three affidavits in support of the application for a stay, namely, an affidavit sworn on 29 March 2022, an affidavit sworn on 14 April 2022 and an affidavit sworn on 4 May 2022. 2. In response, the Council has tendered without objection the documents considered by the delegates of the Council in respect of the hearing on 18 March 2022, a transcript of those proceedings, a summary of the test results dated 19 April 2022, a report from a clinician Dr G Dore dated 28 January 2022 and pathology reports from UML Pathology conducted on test samples collected on 22 September 2021. 3. Following the hearing on 20 April 2022 the Respondent approached the Tribunal to seek leave to tender a further report received from Dr Dore dated 19 April 2022 together with a letter of instruction from the Council to Dr Dore dated 7 April 2022. 4. This report had been sought by the Council after the decision to suspend the registration of the Applicant on 18 March 2022. 5. The instructions to Dr Dore contained the materials before the delegates on 18 March 2022 and a copy of their reasons of 7 April 2022. 6. This report was not available to the representatives of the Respondent prior to the hearing of the stay application on 20 April 2022 and they only became aware of it after the conclusion of the hearing. They took steps to immediately approach the Tribunal to seek to tender the documents. 7. In order to meet the availability of counsel for the parties the first opportunity to re-list the matter for hearing was 3 May 2022. 8. The Tribunal also invited counsel for the parties to make any submissions they wished to make in respect of the decision of the Court of Appeal in Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 (a decision handed down on 14 April 2022 and not raised or referred to in the hearing on 20 April 2022). 9. After hearing submissions on 3 May the report and letter of instruction was provided to the Tribunal and marked for identification. Counsel for the Respondent submitted that these documents should be admitted into evidence as they were relevant to the stay application in two respects, namely, they went to the question of the strength of the grounds of appeal and, secondly, to the need for the protection of the public. 10. It was accepted by the Respondent that if these documents were admitted into evidence the Applicant would be entitled to respond and lead whatever evidence sought desirable in response. 11. Counsel for the Applicant initially resisted the submission by the Respondent that the Tribunal should view the documents in order to make an assessment as to relevance and admissibility. 12. During the submissions on 3 May the Applicant's counsel indicated that the Applicant wished to tender an affidavit which dealt with the voluntary testing regime the Applicant had adopted since the suspension of his entitlement to practise on 18 March 2022. An incomplete draft was provided to the Tribunal and the Respondent to review. 13. Following further submissions the parties accepted the following course to deal with the opposing submissions in respect of the three documents: (i) the Tribunal was entitled to review the report and letter of instructions to Dr Dore; (ii) the Tribunal would reserve its decision as to whether the report and letter of instructions should be admitted into evidence, given the submissions made as to relevance and challenges to its contents by the Applicant; (iii) if the documents were admitted into evidence the Applicant sought to rely on a sworn affidavit in response which would be filed within 48 hours and later supplemented by any test results becoming available by no later than 5.00pm on 6 May 2022 which would then be admitted into evidence; (iv) the parties would not seek to make any further submissions or lead any further evidence in relation to the report of Dr Dore or the Applicant's response. 1. On 4 May 2022 the Applicant filed and served his affidavit in response and on 5 May 2022 the Applicant's representatives provided to the Tribunal a report from the laboratory with test results which I will deal with later. 2. Pursuant to s 38(6) of the Civil and Administrative Tribunal Act 2013 (the CAT Act) the Tribunal is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all the relevant facts in issue in any proceedings. In my view, the materials which each of the parties wish to place before the Tribunal should be admitted into evidence and, as a result, the letter of instruction of 7 April 2022 from the Dental Council to Dr G Dore will be admitted, the report of Dr Dore addressed to Mr C Borg, Executive Officer of the Dental Council of New South Wales dated 19 April 2022 will be admitted into evidence. 3. In addition, the affidavit of the Applicant dated 4 May 2022 will be admitted into evidence and also the report of tests provided to the Tribunal on 5 May 2022. 4. In my view, the contents of these documents are relevant to the determination of the stay application. Dr Dore's Report of 19 April 2022 1. In her report of 19 April 2022 Dr Dore expressed the opinion that she considered that there is growing evidence to support an opinion that the Applicant meets the statutory definition of impairment in the form of a substance use disorder. She did not, however, express an opinion that the Applicant did meet the definition of impairment. Dr Dore continued that in her opinion it was not possible for the Council to be reassured that the Applicant is safe to practise, and that the health and wellbeing of his patients are not potentially at risk, while he continues to breach the conditions on his registration. 2. Dr Dore recommended in the first instance that the Applicant would need to provide evidence of sustained compliance with urine drug testing before consideration could be given to his return to clinical practice. She considered that this should involve at least 3 months of negative thrice weekly urine drug tests, in full compliance with the Council's drug screening policy. 3. Dr Dore also considered that the Applicant should have a number of other health related conditions on his registration. 4. There is no evidence before the Tribunal that any of these opinions or recommendations are endorsed by the Council or that the Council would accept them in forming a judgment of the kind required under s 150. 5. In addition, and understandably, the report does not take into account the voluntary steps which the Applicant has taken in respect of drug testing since 18 August 2021. 6. The Applicant says in the affidavit of 4 May 2022 that of his own volition he has continued to present for urine drug testing effective from 18 March 2022 which, together with the laboratory reports that now have been provided indicate that he returned negative tests for 18 and 29 March, 8, 13, 19, and 22 April 2022. 7. The result for 26 April was that no drugs were detected in the urine sample provided. However, the pathology report dated 4 May 2022 indicated that the urine sample was very dilute which suggested a large water intake prior to the provision of the sample (and ruled out possible adulteration of the sample after collection). 8. The results for the tests conducted on 29 April, 2 May and 4 May 2022 are not yet available to the Council or the Applicant (although I note that the commentary accompanying the provision of test results provided on 5 May 2022 refers to 29 April which may be in error. 9. Accordingly, the results available for the period 18 March to 26 April show that 7 tests were conducted, 6 of those tests reveal that no drugs were detected in the sample by two methods of analysis and one test was inconclusive. There is no evidence before the Tribunal concerning the particular circumstances relating to the diluted sample analysed and whether there is a valid explanation for why, and how, a sample in that form was provided for testing. 10. On the evidence I note that there was previously a diluted sample the subject of testing on 14 December 2021 and also on 23 December 2021 although on the latter occasion the Applicant provided a medical certificate as he was unwell. There is an issue as to the attendance requirement for the latter test immediately after the medical certificate expired as there may have been some confusion because the medical practitioner recorded that the test should be conducted on 23 December 2021, a day later than the protocol required. Earlier s 150 Proceedings 1. The Applicant has been the subject of a number of proceedings pursuant to s 150 of the National Law before the Council, namely, proceedings on 13 July 2021, 1 September 2021, 23 November 2021 and then in respect of the current application on 18 March 2022. 2. The s 150 hearing on 13 July 2021 was conducted following a criminal charge brought against the Applicant on 25 February 2021 to which he pleaded guilty in respect of possession of a prohibited substance. The Applicant was placed on a conditional release order by the District Court for a period of 2 years with no conviction recorded. At the conclusion of the hearing on 13 July 2021 the Council ordered the Applicant's registration be subject to a condition that required him to attend by 14 August 2021 testing for drugs by means of hair testing of his beard. It was noted that the test would require hair with a minimum length of 3 centimetres. 3. The Applicant claimed that he was unable to attend for testing on 14 August 2021 due to Covid travel restrictions but attended for hair testing at the Laverty Westmead Clinic on 23 August 2021. Upon attending for the test the Applicant was informed that his beard was too short for the test to be taken. 4. A second s 150 proceeding was held on 1 September 2021 in relation to the hair testing issue. The Council accepted that the Applicant had not altered his beard hair and the length of his hair was no longer than 1 centimetre when he presented for testing. The Council ordered that the Applicant attend for hair drug testing by 23 September 2021. The Applicant attended for hair testing at the Laverty Westmead Clinic on 22 September 2021. On 7 October 2021 he was informed that the hair drug test showed a positive result for a very small trace of cocaine cocaethlene, benzoylecgonine and promethazine. 5. A third hearing was convened on 23 November 2021 in respect of that positive result. At the conclusion of the hearing the Council ordered that the Applicant comply with the Dental Council's Drug Screening Policy and Participant Procedure and was required to attend for urine drug screening on a random basis. In written reasons for that decision the delegates observed the following: It must be noted that as the sample was collected from a body site other than scalp (head), the time period covered by this test is less clear. The test disclose substance is used up to six or even nine months prior to the time of collection. There is also a risk that substances may be incorporated into existing hair through sweat or other secretions hence, the time period may stand up to an including the date of sample collection. It was thus an inconclusive test. 1. As part of the regime in place following the 23 November 2021 proceedings the Applicant attended on and was reviewed by Dr Glenys Dore, Consultant Psychiatrist and Specialist in Addiction Medicine. The review took place on 28 January 2022. Dr Dore produced a report dated 28 January 2022. Dr Dore's opinion was that while the Applicant has previously used illicit substances he did not have features of an addiction nor did he meet the criteria for Substance Use Disorder. 2. Dr Dore further concluded that there was no evidence before her to indicate that the Applicant was currently, at the end of January 2022, impaired from any form of mental health condition or substance misuse. Dr Dore further stated that conduct involving the possession and use of illicit substances by a health practitioner raises specific regulatory concerns for Councils even in the absence of impairment. These concerns are focused on public protection and public interest, and usually trigger a period of oversight and monitoring. 3. Shortly after this, the Applicant on 7 February submitted a sample under the regime for testing and on 14 February he was notified of the results. The test was positive. 18 March 2022 s 150 Proceedings 1. As a result of this test result the Council informed the Applicant by letter dated 11 March 2022 to the effect that on 4 March 2022 it considered information received from its monitoring team about the Applicant's "compliance issues" in adhering to the Drug Screening Policy and meeting the requirements of the urine drug screening (UDS) condition on his registration. He was advised that the Council would now consider whether it is appropriate to suspend or place conditions on his registration while this information is assessed and that the Council must take immediate action if it considers it is in the public interest or to protect any person's health or safety. 2. At the commencement of the proceedings on 18 March 2022 the duly appointed panel of delegates of the Council advised the Applicant that the proceedings had been convened under s 150 of the National Law to determine whether any action should be taken by either suspending his registration as a dental practitioner, or by imposing conditions on his registration. He was informed that the Council must take action if at any time it is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons or is satisfied that the action is otherwise in the public interest. He was advised that it was important to note that the nature of those proceedings were not adversarial. 3. During the course of the hearing it was emphasised to the Applicant that the hearing was being held because of the problem with compliance with his conditions, the drug screening requirements. He was informed that the conditions meant that if he complied with the conditions that the regulator had put on his entitlement to practise it meant that he could keep practising but if he did not comply then the public could not be reassured that they are not at risk and that he may then not be able to practise. 4. At the conclusion of proceedings on 18 March the delegates advised the Applicant that having considered the materials before them, including the submissions that the Applicant had made, they had decided to suspend his registration as a dental practitioner effective immediately. He was informed that the delegates were satisfied that this action was required to protect the health and safety of the public and that the suspension was an interim measure to protect the health and safety of the public the suspension, however, currently it applies indefinitely. The Council's Reasons 1. Written reasons for the decision were provided by the delegates of the Council on 7 April 2022. 2. I set out below part of the reasoning of the delegates although I have regard for the reasons as a whole. 3. Relevantly: (a) It was noted the hearing had been called by Council due to the Applicant's non-compliance with the UDS conditions imposed on his registration on the 23 November 2021. (b) The central issue for consideration was whether it is appropriate to take action under s 150 of the National Law (NSW) in respect of the Applicant for the protection of the safety or health of the public or otherwise in the public interest. The task under s 150 of the National Law involves a risk assessment having regard to the guiding principle stated in s 3A of the National Law that the protection of the health and safety of the public must be a paramount consideration. (c) It was noted there had been three complaints received by Council in relation to the Applicant. Of these, one complaint related to a drug and poisons offence, one related to inadequate or inappropriate treatment and one related to providing care beyond his scope of practice. Of the three prior complaints the most recent complaint related to drug and poisons offences which was received by Council on the 9 July 2021. The hearing on 18 March was now the fourth s 150 hearing arising from this complaint. The current and previous hearings have been held due to ongoing concerns regarding the potential impairment of the practitioner and non-compliance with conditions placed on his registration. (d) The issue of whether the practitioner had the necessary standard of practise, knowledge and understanding so as not to pose a risk to the health and or safety of the public was not assessed during the hearing as they did not form the basis of the current concerns related to the Applicant. (e) Consideration was then given to whether the practitioner was impaired. The delegates stated that while the fundamental purpose of the hearing was not to establish the issue of impairment but more so address the issue of non-compliance with registration conditions related to UDS, they noted the findings of the independent health assessment conducted by Dr Glenys Dore, Consultant Psychiatrist and Specialist in Addiction Medicine. They noted that in her report Dr Dore concluded that while the Applicant has previously used illicit substances the Applicant did not in her opinion meet the criteria for impairment. (f) In respect of whether any impairment raised concerns for the health or safety of the public the delegates stated that while noting Dr Dore's findings which they believed needed to be revisited in light of the most recent positive UDS results on the 7 February 2022, they remained cognisant of the Council's role in promoting the health and safety of the public who access care provided by the Applicant. This role is reinforced by Dr Dore's comments related to the concerns illicit substance use raises for regulators in her report. As delegates of the Council they took the view that possession and use of illicit substances is a serious matter and presents a risk to public confidence and a potential threat to patient safety should the practitioner practise while affected by illicit substances. (g) The delegates than addressed a question central to the exercise of the powers available under s 150 of the National Law, framed as follows: Does the practitioner's practice pose a risk to the health or safety of the public? They concluded that they formed the view that the Applicant's ongoing non-compliance with the UDS conditions on his registration, which were imposed in order to assure the safety of his patients, is a significant issue when viewed from a regulatory perspective and does little to provide assurance that the potential risk to patients is being minimised. (h) In respect of whether the circumstances were such that it was otherwise in the public interest that action be taken that affects the practitioner's practice the delegates stated as follows: given that the Applicant's compliance with the UDS policy and consistently returning negative results was to provide the Council with the assurance that he posed no risk to the health and safety of the public, the results to date both in terms of compliance with the policy and the return of dilute samples or positive results suggested that further action was warranted given that the assurance sought by Council has not been achieved. (i) In response to questions as to whether the Applicant had an understanding of the clinical picture his ongoing non-compliance and test results are portraying he indicated that he understood that the picture that was emerging would not be positive to anyone looking at the situation from the outside. He reiterated that he believed he had done everything that had been asked of him and that he was not impaired. The Applicant indicated that he understood that he needed to have one hundred percent compliance with the screening policy and consistently return negative results and not have dilute samples. (j) The delegates then turned their minds to whether there were conditions that could be imposed on the practitioner's registration that would: (a) sufficiently mitigate any identified risks to the health or safety of the public; or (b) would mitigate concerns regarding the public interest? They concluded that they were of the view that the current conditions related to random urine drug screening would usually address the issues of mitigating identified risks and the public interest in situations where concerns exist that a practitioner may be using illicit substances on a regular basis. Further, given the previously identified issues with the Applicant related to using hair testing for drug screening, they did not believe there were other conditions that could be applied in this context. (k) Given that view consideration was then given as to whether it was appropriate that the practitioner's registration be suspended. The panel stated that based on the information before them they had the following situation which had emerged regarding this dental practitioner. ● The practitioner was found to be driving under the influence of cannabis in November 2020. He was later fined and his licence was suspended for three months. ● At the time that he was stopped by Police in November 2020 the practitioner admitted that he was in possession of eleven small bags of cocaine totalling 6.9 grams. He was charged with possessing a prohibited drug. The matter went to court and no conviction was recorded. The practitioner was placed on a good behaviour bond for two years. ● The practitioner failed to disclose the charge to Ahpra as required under s 130 of the National Law. ● S150 proceeding were conducted in July 2021 and orders were made for the practitioner to undergo hair drug testing of his beard by the 14 August 2021 and a referral was made to an Impaired Registrants panel. ● The practitioner did not attend for testing by the required date citing concerns re potentially breaching the Covid-19 public health orders in place at that time. A second s 150 hearing was conducted on 1 September 2021 where the practitioner once again was required to present for hair drug testing by the 23 September 2021. ● A hair testing drug screen using a sample of the practitioner's beard was conducted on the 22 September 2021 which was positive for cocaine, cocaine metabolites and promethazine. ● A s 150 hearing was conducted on the 23 November 2021 as a result of this finding. The outcome was that the practitioner was to undergo random urine drug screening (UDS) and participate in a health assessment by a Council Directed Health Assessor (CDHA) specialising in Addiction Medicine. The rationale for these conditions was explained at the time as was the need to demonstrate compliance and return consistently negative results during the screening period. ● The UDS commenced in December 2021. The practitioner up to the date of this hearing has only been compliant with 40% of the required screening dates. There have been issues with non-attendance, missing two out of three Monday screenings and returning a positive result on the third scheduled Monday screening, dilute samples and the provision of medical certificates. The practitioner has also attended for testing on dates when he was not required to do so. The significance of the Monday testing has been referenced elsewhere in this report. ● The assessment with the CDHA was conducted in January 2022. The CDHA did not conclude that the practitioner was impaired but recommended continuation of the UDS for six months in order to provide regulatory assurance that the practitioner was not using illicit substances. ● A week after the release of the assessment report by the CDHA the practitioner once again tested positive for cocaine and its metabolites. ● The practitioner has now returned two positive results for the same drug using two different testing methods approximately four and a half months apart. In each instance the practitioner has sought to attribute the results to contamination though his association with individuals who use drugs. ● On each occasion where he has returned a positive screening result the practitioner has taken it upon himself to make contact with the testing laboratory to discuss the results even though this is not supposed to occur. On each occasion the practitioner has used these discussions to call into question the veracity of the results or their significance. The practitioner has indicated he will continue to make contact with the laboratory in each occasion he returns a positive result." (l) In conclusion the delegates stated that they had formed the view that the Council had afforded the Applicant every opportunity to demonstrate that he is not using illicit substances since July 2021. Given the above summary of findings which demonstrated ongoing non-compliance with the Council's urine drug screening policy and the Applicant continuing to return a positive result for cocaine and its metabolites they were of the view that the Applicant has failed to demonstrate this abstinence. Accordingly, they were of the view that it is appropriate to suspend the practitioner's registration in the interests of the health and safety of the public. Given that Dr Dore did not have access to the positive screening results from the 7 February 2022 when she wrote her report, the panel was of the opinion that Council should advise Dr Dore of these results and ascertain whether this would change her clinical opinion regarding the issue of impairment. 1. The decision then records the order made on 18 March 2022 that under s 150(1)(a) of the National Law the Council suspended the Applicant's registration with effect from 18 March 2022. Consideration of Council's Reasoning 1. From the transcript of the proceedings on 18 March and from the reasoning set out above it must be noted that: 1. emphasis was placed on the Applicant's apparent failure to comply with the testing requirements imposed on him on 23 November 2021; 2. the delegates were considering whether it was appropriate to suspend or place conditions on registration whilst the Council was to assess the information provided by the monitoring team; 3. the panel was of the view that the 23 November 2021 conditions usually addressed the issues of mitigating identified risks and the public interest in situations where concerns exist that a practitioner may be using illicit substances on a regular basis; 4. in respect of whether the Applicant's practice posed a risk to the health and safety of the public, the panel concentrated on ongoing non-compliance with the conditions which it was said did little to provide assurances that the potential risk to patients was being minimised but there was, it appears, no assessment of the degree of risk that this situation posed; 5. a view was formed that the results to date both in terms of compliance with the policy and the returns of dilute samples or positive results suggested that further action was warranted given the assurances that had been sought by Council had not been achieved but there was no analysis in the formation of this view of the degree of risk involved or that it was such that immediate urgent action was justified; 6. although it is clear that there were a number of issues concerning strict compliance with the testing requirements the two positive tests were four and a half months apart and leave open the question of why, in those circumstances the emergency powers under s 150 of the National Law were required to be invoked; 7. the positive test returned on the test sample supplied by the Applicant on 7 February 2022 appears on the materials before the Tribunal to have related to a social function on the previous day, a Sunday and, as counsel for the Council accepted, there is no evidence that the Applicant was at any time conducting his practice whilst under the influence of illicit drugs or impairment; 8. in the conclusions by the panel that they were of the view that the Applicant had failed to demonstrate his abstinence there does not appear to be any analysis, and the reasons do not express any view, as to the degree of risk this posed so as to found the required opinion for the exercise of the exceptional power under s 150 designed to deal with emergencies; 9. it is not clear how the Applicant's approach to the testing clinic to discuss his positive results was relevant to the exercise of power under s 150 as set out by the Court of Appeal in Pridgeon. 1. It is also relevant in my view that there was no indication in the report of 28 January 2022 provided by Dr Dore that immediate urgent action was justified. Dr Dore found no features of addiction and also that the Applicant did not (then) meet the criteria for Substance Use Disorder. 2. During the resumed hearing before me on 3 May 2022 the Council submitted that the Applicant's conduct is capable of amounting to unsatisfactory professional conduct within the meaning of s 139B(1) and misconduct within the meaning of s 139E of the National Law. It was further contended that the Applicant's conduct is also capable of coming within the ambit of s 144(e) that he is otherwise not a suitable person to hold registration. 3. None of those grounds arose for consideration by the Council in the proceedings on 18 March 2022 and if complaints based on those grounds were made the matter would be required to be dealt with by the Tribunal. As made clear by the Court of Appeal in Pridgeon, by reason of the limitation in s 145D(1) of the National Law the Council cannot suspend a practitioner's registration if a complaint were made and if the Council had formed the opinion that the complaint warranted suspension it would have had to refer it to the Tribunal. 4. The contention that the Applicant's non-compliance with the conditions imposed on his entitlement to practise as a dentist are capable of being dealt with upon complaint by the Tribunal, in my view, emphasises the need for assurance that, given the different nature of the power of suspension concerning emergency suspensions for the protection of the health and safety of any person or persons, there needed to be material supporting a view and conclusion that the degree of risk was such that on an urgent basis the Council should act pre-empting any steps the Tribunal may take in respect of complaints made. 5. Counsel for the Respondent submitted that the decision by the panel on 18 March 2022 was in accordance with the first limb of s 150(1) and that the wider public interest considerations (otherwise in the public interest in the second limb) do not arise in this application. The Point of Law Question 1. On 18 March the Council delegates did not have the benefit of the reasoning and proper interpretation of s 150 as set out by the Court of Appeal in Pridgeon v Medical Council of New South Wales and it does not appear that there were any submissions made to the panel about the limited circumstances and purpose for which s 150 powers may be exercised. 2. The Council was required to have an opinion that it was appropriate to suspend the Applicant's registration, to do so for the protection of the health or safety of any person or persons. 3. That opinion was required to be formed in the context of the legislative scheme in Part 8 Division 3 of the National Law, and as explained by the Court of Appeal in Pridgeon in the context that Division 3 provides for the primary mechanism for regulating the profession by way of particularised complaints to be dealt with by the Tribunal, not the Council if suspension is sought. 4. That opinion was also to be informed by s 3A, the protective nature of the National Law but in the context where s 150 suggests that the powers should only be invoked as an emergency power where the circumstances are urgent. 5. The formulation of the opinion required an assessment of the risk, and the degree of risk, to which patients were likely to be exposed with ongoing practise. I accept that the nature of the exercise under s 150 by the Council delegates did not require findings of fact but the opinion needed to be formed with the legislative purpose of s 150, as outlined above by the Court, in mind. 6. Ground 1 of the Notice of Appeal relies on the contention that the decision is afflicted with legal unreasonableness in a number of respects, including that the decision did not logically follow from the stated reasoning and it was harsh and unreasonable, and also that it bespoke of legal error. Reliance was placed on Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68] to [85]. 7. In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 the Full Court of the Federal Court analysed the concept of whether the exercise of discretion was legally unreasonable in some detail. In the judgment of Justice Griffiths his Honour stated by reference to the decision in Li, that significantly, the plurality emphasised that the legal standard of reasonableness is the standard which is indicated by the true construction of the relevant statute. His Honour also made reference, in detail, to the Full Court's decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 and set out the relevant principles established in Singh summarised as follows: [61] (a) legal unreasonableness "is invariably fact dependent" and requires a careful evaluation of the evidence. The outcome of any particular case in which it is claimed that there has been a legally unreasonable exercise of a discretionary power will depend on the application of the principles from Li and the authorities discussed therein, rather than on an analysis of factual similarities or differences between individual cases, including Li (at [42]); (b) there is a presumption of law that the Parliament intends an exercise of statutory power to be reasonable (at [43]); (c) there are two species of legal unreasonableness, namely where the review court has identified an underlying jurisdictional error in the decision-making process but the concept of legal unreasonableness can also be "outcome focused" where there is no "evident and intelligible justification" (citing Li at [66] per Hayne, Kiefel and Bell JJ and at [105] per Gageler J) (at [44]); (d) where there are reasons in support of an exercise of discretion, those reasons provide the focus for an assessment as to whether the decision is unreasonable in the legal sense and, in such a case, it would be rare where the reasons demonstrate a justification but the ultimate exercise of the power is found to be legally unreasonable ([45]-[47]); and (e) perhaps most importantly of all, the standard of legal unreasonableness applies across a wide range of statutory powers, but the indicators of legal unreasonableness are found in the scope, subject and purpose of the particular statutory provisions in issue in any given case, as well as being fact dependent (at [48]). 1. His Honour went on (at [62]) to emphasise that the approach required is: … one which focuses central attention on the question whether an administrative decision is one which is within the authority of the decision-maker to make. This necessarily requires that close attention be given to relevant features of the particular statutory framework within which that authority arises. That framework necessarily includes the subject matter, scope and purpose of the relevant statutory power. But the statute also frequently provides additional indicators which assist in determining whether a particular exercise of a statutory discretionary power is one which exceeds the authority of the decision-maker and is legally unreasonable. (Emphasis in the original.) 1. It would not appear that in this case the Tribunal had regard to the purpose for which the opinion under s 150 was to be formed, namely, an emergency power where the circumstances are urgent and where Division 3 proceedings are the primary mechanism for regulating practitioners is that under Division 3 which provides for the primary mechanism by way of particularised complaints. 2. In my view this ground of appeal, based on these authorities, raises at least an arguable case in favour of the Applicant on the appeal. Contrary to the position by the Respondent, Dr Dore's later report of 19 April 2022 does not alter or undermine this ground of appeal. 3. The ground of appeal dealing with the failure to set out lawful reasons may also arise. A failure to give adequate reasons may amount to an error of law. If this ground is designed to encompass that no reasons were provided which reflect an appreciation that the power was one confined to urgent circumstances, and confined in the way referred to above, it is reasonably arguable that the panel failed to give reasons for why the emergency power was to be exercised as opposed to the primary mechanism for regulating the profession as set out in Pridgeon (at [70]). 4. As I understand the very limited submissions by counsel for the Applicant it was contended that the Applicant was wrongly denied the receipt by the Council of a further opinion by Dr Dore and that the Council was under a duty to make an enquiry of her as to whether, with the benefit of the 7 February 2022 positive test result, her views would be different. 5. In a case where this issue has not been fully argued I am not persuaded that the ground substantiates that the Council was under any such duty if the members of the panel in a proper appreciation of their task to deal urgently within an emergency situation formed the requisite opinion as to the appropriateness of taking action. 6. Further, in absence of a fully argued case I am not persuaded that the Applicant was denied procedural fairness in this regard. 7. In respect of Ground 3 I am not persuaded that an arguable case has been made out as the matters appear to me to have been sufficiently raised during the proceedings so as to allow the Applicant an opportunity of responding. 8. In respect of Ground 5 I am not persuaded that the Applicant has sufficiently articulated its argument and point of law arising in respect of this Ground. 9. I recognise that ultimately there is a high threshold to be met by the Applicant in his appeal but I am doing no more than identifying an arguable case without any indication of its ultimate success. Balance of Convenience 1. The immediate suspension of the practitioner's entitlement to practise as a dentist was a drastic step. On the evidence before the Tribunal it has had a very significant financial impact on him and will continue to do so no doubt with increasing effect. In addition, given the immediate effect of suspension it is likely to have inconvenienced his patients of which, on the basis of his loss of income demonstrated in his affidavit material, there must be very many. 2. In respect of the balance of convenience I also take into account the following: 1. on one view the panel was most concerned about non-compliance with the testing regime which would usually achieve the desired outcome, if complied with; 2. if complied with, the regime appears to be preferable to the beard testing regime; 3. it appears that the Applicant is now showing a greater awareness of his obligations by means of voluntarily undertaking testing after the decision of the Tribunal on 18 March 2022 and by the undertaking he gives to the Tribunal that if a stay were granted he would be willing to abide by additional conditions or conditions similar to participating in psychological/medical treatment programs as provided by the regulatory authority and drug screening scheduled urine testing three times per week and weekly blood tests; 4. however, in this regard the dilute result for the test conducted on 26 April 2022 is troubling. Whether or not it undermines the Applicant's commitment, and to what extent, is not apparent on the evidence before me. Previously, when a dilute results were returned it was not sufficient to warrant urgent immediate action of suspension by the Tribunal; 5. the parties accepted that in the event that a stay were granted the testing regime that was imposed on the Applicant on 23 November 2021 would again be in place and the question then, of course, is whether it would be complied with; 6. I recognise also that in the event that there is a failure on the part of the Applicant to fully comply with the testing regime and the risk to patients was such that immediate urgent action was required the powers available under s 150 would still remain available to the Council, in the manner outlined by the Court of Appeal in Pridgeon; 1. I have also considered the relevance of Dr Dore's report of 19 April 2022 in respect of the balance of convenience. As I have mentioned above, the report does not identify a need for urgency but that, of course, is in the context where the Council had already suspended the Applicant's right to practise. I also have regard for the fact that the report is premised on the suspension already having been granted and there is a challenge by the Applicant to the reasoning and entitlement of the Council to suspend the Applicant's entitlement to practise on the evidence before it. I also have regard for the fact that the Council was not in receipt of the report at the time of suspension and on the evidence presently before the Tribunal, has not endorsed or adopted it. 2. Moreover, if upon consideration of this latest report by the Council it gives rise to a concern that immediate action should be taken, other than compliance with the existing regime, further action could be taken by the Council pursuant to s 150. In that regard I note that Dr Dore did not conclude that the Applicant was in her view impaired. Dr Dore's report also qualified the risk as arising if the Applicant continued to breach the conditions imposed on him. From that observation I conclude that provided the Applicant does comply with the conditions he does not pose a significant risk to his patients. 3. I have also considered whether it would be appropriate in this instance, if a stay were to be granted, to make it subject to conditions. The Council in these proceedings challenged the power of the Tribunal to issue a stay subject to conditions, such as, for example, a more onerous testing regime, or any other measures for the protection of the public. Counsel respectfully submitted that the Tribunal should not follow earlier decisions in which such an approach was adopted. The Applicant argued that the power did exist to grant a stay subject to conditions. 4. I also intend to grant liberty to apply in the event of a stay in circumstances where there is non-compliance with the testing regime in a manner which requires further immediate consideration of the risk to the public, bearing in mind the protective nature of the statutory regime under considerations. 5. The approach I propose to adopt does not require the resolution of the power to grant a stay subject to conditions with the potential for a challenge at a later stage. In my view, a stay subject to an entitlement by way of liberty to apply in the event of non-compliance with the regime imposed on 23 November 2021 would, together with further s 150 proceedings if required, provide a level of protection to the public in the circumstances of this case and will be sufficient to mitigate the risks to the public during the period of the stay. In my view if the Applicant complies with the conditions there is insufficient evidence before the Tribunal to conclude that he poses an unacceptable risk to the public. 6. In coming to this view I also take into account the fact that the parties have each urged upon the Tribunal the need for an expedited hearing of the appeal and I urge the parties in that regard to attempt to set a realistic time table to shorten the period for an appeal. 7. The stay is thus likely to operate for a limited period as the parties are committed to expediting the hearing of the appeal. 8. The Applicant now should have an appreciation that his conduct has been unsatisfactory in a number of respects and that if allowed to practise pending his appeal he will himself jeopardise that opportunity by reason of his non-compliance with the conditions on his entitlement to practise. 9. The question of where the balance of convenience lies in this case is in my view in the circumstances finely balanced. However, given the arguable point of law raised by reason of what appears to be the purported exercise of a power without an appreciation of the structure of Part 8 of the National Law, and the need for the formation of an opinion informed by that structure, requiring a sound foundation for the appropriateness of urgent action, together with the matters I have outlined above in respect of the balance of convenience, I have been prepared to order the stay subject to liberty to apply. 10. In the event that the liberty is exercised to cancel or vary the order I am prepared to make, and there is urgency, the Tribunal will, of course, take steps to list the matter as soon as can be reasonably achieved to address issues of concern. 11. Taking into account all the matters and balancing the competing rights of the parties and in the interest of justice, it is in my view appropriate to grant the stay subject to the condition that there be liberty to apply within 24 hours. Orders 1. Pending further order, there be a stay of the order of 18 March 2022 made by the Respondent suspending the registration of the Applicant to practise as a dentist with effect from 18 March 2022. 2. The parties have liberty to apply to vary or cancel order (1) on 24 hours' notice in the event that the Applicant fails hereafter to comply with the conditions imposed on his registration by the Respondent on 23 November 2021. 3. The costs of the stay application are reserved. ********** 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: 12 May 2022