Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FWX v Medical Council of NSW [2023] NSWCATOD 138 Hearing dates: 14 September 2023 Date of orders: 14 September 2023 Decision date: 14 September 2023 Jurisdiction: Occupational Division Before: Acting Judge Levy SC, Principal Member Decision: Stay of medical registration suspension order. See paragraph [104] for formal orders Catchwords: ADMINISTRATIVE LAW – Civil and Administrative Tribunal – application by medical practitioner for stay of order imposed by Medical Council of NSW suspending medical registration - pending appeal raising points of law – claim of denial of procedural fairness – claim of failure to take into account relevant expert evidence – claim of erroneous conclusion the applicant posed a risk to patients and the profession – claim the decision to suspend was legally unreasonable and not supported by the evidence - whether circumstances justified the exercise of emergency powers of suspension pursuant to s 150 of National Law (NSW) – balance of convenience warrants grant of stay pending determination of pending appeal – existing conditions for practice to continue pending determination of the appeal COSTS – Medical Council to pay the applicant's costs of seeking a stay WORDS AND PHRASES – element of confusion in initial reasons given for suspension – lack of clarity due to use of illegitimate conjunction "and/or" in initial reasons for suspension Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 64(1) Health Practitioner Regulation National Law (NSW), s 150, s 159B Cases Cited: Health Care Complaints Commission v FWX [2023] NSWCATOD 100 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206 Medical Council of NSW v Lee [2017] NSWCA 282 Pridgeon v Medical Council of NSW (2022) 108 NSWLR 263; [2022] NSWCA 60 Rebenta Pty Ltd v Wise [2009] NSWCA 212 Strinic v Singh [2009] NSWCA 15 Vaccaro v MLC Limited [2016] NSWDC 85 Texts Cited: J Med Toxicol. (2017) Mar: 13(1) Journal of Analytical Toxicology (2015): 39 Category: Procedural rulings Parties: Applicant: FWX (A pseudonym) Respondent: Medical Council of NSW Representation: Counsel: Ms Talia Epstein (Applicant) Mr Henry El Hage (Respondent) Solicitors: Makinson & D'Apice (Applicant) Medical Council (NSW) (Respondent) File Number(s): NCAT: 2023/00255987 Publication restriction: Publication restrictions apply to these proceedings REASONS FOR DECISION Introduction 1. This is an interlocutory application brought by a suspended medical practitioner seeking a stay of the suspension of his registration pending the outcome of an appeal from a suspension order made by the Medical Council of NSW ("Council") on 10 August 2023. 2. The appealed suspension order was made pursuant to the public interest health and safety emergency powers conferred by s 150 of the Health Practitioner Regulation National Law (NSW) ("National Law"). Overview of applicant's challenges 1. The following overview refers to relevant page numbers in the suspension reasons provided by the Council. 2. The Council's delegates referred to some historical opinions grounded in 2018 and 2019 to conflatedly conclude that, in 2023, the applicant has a current impairment, where the cited opinions did not of themselves support that conclusion: (p 8). That finding was later qualified as being a "possible impairment" affecting patient care: (p 9). 3. The basis of those findings necessarily required a rejection of the applicant's explanations for apparent recent breaches of his conditions of practice concerning the positive results of drug testing for cannabis and cocaine, where the applicant claimed those results were due to environmental exposures, and not the ingestion of such substances. 4. In that regard, the applicant points to a flawed process of consideration, whereby his explanations were rejected. He claims that in those events he was denied procedural fairness. He also claims the Council delegates failed to consider relevant pharmacological and toxicological expert evidence on the issue of his alleged drug use where that evidence supported his explanations. 5. Paradoxically, elsewhere in their deliberations, the Council delegates drew upon a Council appointed medical expert to conclude that the applicant's "positive cannabis results are not indicative of impairment": (p 10). 6. However, the delegates identified their "concern" that the applicant's past life stressors, including PTSD, ADHD, depression and anxiety, including past self-prescribing of medications, which had arisen at a difficult time in his life, posed a risk to patients: (p 10). 7. On the basis of that past history, the delegates concluded that there was "some risk to the public" and that, (contentiously, given the applicant's claim of environmental exposure to substances), "screening positive results show [the applicant] has taken illicit drugs and therefore there is a risk to the public", which was characterised as a material risk: (p 10). 8. The identified risks were stated to be the positive drug test results and continued non-compliance with practice conditions, where it was considered that further conditions would not mitigate such risks: (p 11). 9. As a result, the Council's delegates utilised the emergency power of suspension pursuant to s 150 of the National Law to suspend the applicant's registration with immediate effect. 10. That finding could only have been achieved by a rejection of the applicant's explanations, an outcome which the applicant claims was procured by a flawed procedural process, including incorrectly characterising the circumstances as warranting the urgent application of the emergency power of suspension pursuant to s150 of the National Law. Applicable legal principles 1. Indisputably, according to law, at every stage of proceeding, including administrative proceedings, persons at risk of adverse findings are entitled to a procedurally fair determination of the issues calling for decision. 2. This includes proceedings involving potential determinations that could have an adverse impact on medical registration and the right to practise that profession. 3. That principle applies to the applicant's circumstances in this case, irrespective of the past disciplinary history of engagement with the Council. 4. The applicant for a stay of a suspension order must show that the appealed decision involves an arguable error on a point of law: Medical Council of NSW v Lee [2017] NSWCA 282, at [113]. 5. An examination of the record of the appealed proceedings is required to determine whether the applicant has identified arguable errors of law. Publication restriction 1. There is no dispute that the circumstances of this stay application justify the making of a non-publication order. 2. Accordingly, at the commencement of the hearing, in recognition of a need to maintain the confidentiality of affected persons in proceedings that are yet to be concluded, an order was made pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), prohibiting the publication or the disclosure of the name of the applicant, and the evidence concerning the applicant other than in the terms contained in these reasons. 3. In conformity with that order, the applicant is assigned the litigation pseudonym "FWX". This is consistent with other proceedings involving him, numbered 2022/00025489, in the Occupational Division of this Tribunal. 4. In those other proceedings, on 13 July 2023, a finding of professional misconduct was made against the applicant. Those proceedings remain un-concluded at the level of Stage 1. Those proceedings are before a differently constituted Tribunal: Health Care Complaints Commission v FWX [2023] NSWCATOD 100. 5. Although some of the subject matter of those proceedings has featured in the evidence in these proceedings as part of the factual background, these interlocutory reasons should not be understood to trespass upon the matters and the issues that remain to be decided by that differently constituted Tribunal. Grounds of appeal 1. The applicant's grounds of appeal evolved in three tranches, in the following circumstances. 2. On 10 August 2023, following a relatively short hearing on the same day, the Council's suspension order was delivered orally. This was in very brief terms, with the indication that the Council's full reasons would be provided within 30 days. 3. The Council's full reasons were made available 27 days later, on 5 September 2023. 4. In the meantime, but promptly, on 11 July 2023, the applicant filed his grounds of appeal, in which he reserved his right to expand upon those grounds when the Council's full reasons became available. 5. In the meantime, the parties complied with the procedural timetabling orders made by the Deputy President of the Tribunal on 18 August 2023 in preparation for this hearing. 6. Initially, on 29 August 2023, before the Council's full reasons were available, the applicant identified four grounds of appeal. 7. Subsequently, on 8 September 2023, in response to the receipt of the Council's full reasons, a further three grounds of appeal emerged in the applicant's supplementary submissions. 8. At the commencement of the hearing this morning, the applicant's grounds of appeal were refined and narrowed to four grounds: Exhibit "C". 9. In the sequence in which they evolved, the seven grounds of appeal are identified in the following aggregate summary adapted from the submissions provided by Counsel for the applicant: Initial 4 grounds identified on 29 August 2023 1. The Council adopted the wrong legal test by determining the question of suspension on the basis that breaches of the applicant's conditions of practice had been established, rather than determining whether the public interest required immediate suspension by reason of the need to protect the public's health and safety; 2. The Council's suspension decision was legally unreasonable as the evidence was not capable of supporting a finding that the public interest required immediate suspension by reason of the need to protect the public's health and safety; 3. The Council erred in failing to take into account a relevant consideration, namely, that in light of the evidence, the breaches of conditions did not establish any conduct that interfered with the applicant's ability to safely practice medicine; 4. The Council erred in taking into account an irrelevant consideration, namely, evidence of breaches of conditions that did not relate to the applicant's ability to safely practice medicine "and/or" which were capable of giving rise to a need for immediate action to protect the public's health or safety; Further 3 grounds identified on 14 September 2023 1. The Council failed to take into account a relevant expert opinion proffered by the applicant in defence of his position of resistance to the prospect of suspension; 2. The Council denied the applicant procedural fairness when it found that an aspect of his explanatory evidence was unconvincing, having based that view on the content of journal articles that had not beforehand been exposed either to him or to his solicitor, thus precluding him from exercising the opportunity to make a relevant response; 3. The Council erred in concluding that the applicant was a risk to patients and the profession without evidence to support that finding. Final 4 grounds identified on the morning of the hearing 1. The Council failed to take into account the expert evidence of Dr Michael Robertson dated 10 August 2023; 2. The Council denied the applicant procedural fairness by failing to provide him with an opportunity to respond to two journal articles (citations omitted); which it employed when assessing his evidence, and which were appended to its reasons for decision; 3. The Council erred in concluding the applicant is a risk to patients and the profession as there was no evidence to support such a finding; 4. The suspension decision was legally unreasonable because: 1. the finding the applicant had taken or ingested cannabis was against the weight of the evidence; and 2. the evidence was not capable of supporting a finding that the public interest required immediate suspension by reason of the need to protect the public's health and safety. 1. The expression "and/or" cited in the now superseded Ground (4) above will be revisited when reviewing the initial reasons given by the Council for suspending the applicant's registration as those reasons also included confusing expression. 2. In determining this interlocutory application it is not necessary to undertake a full analysis of the merit of each of those grounds in the detail and to the extent that would otherwise apply to a final hearing of the yet to be heard appeal. 3. Instead, in the context of a stay application, the determination is based on whether the applicant has raised reasonably arguable grounds of appeal. 4. In discharging that task, in this instance, following the reasoning explained in Rebenta Pty Ltd v Wise [2009] NSWCA 212, at [11], which cited Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206, at [824] – [83], it is sufficient to apply the principle of parsimony that courts exercising appellate jurisdiction apply to discern whether any of the identified grounds of appeal are reasonably arguable as pivotal points of law. 5. In this case, if any of the claimed point of law are upheld, this would have a vitiating effect on the Council's decision to suspend the applicant. 6. Before undertaking the consideration to determine whether a relevant point of law has been identified, it is appropriate to review in brief terms, the evidence considered by the Council, and to refer to some relevant factual detail. Evidence and submissions 1. On 1 September 2023, the applicant filed a statement setting out some detail of the incremental adverse effects the suspension order has had on his life, on his family, on his patients, on his health and circumstances: Exhibit "A", paragraphs 1 – 23. 2. On 8 September 2023, in preparation for this hearing, the respondent Council produced a volume of relevant material filed behind 31 Tabs: Exhibit "B", Tabs 1 – 31, pp 1 – 487. 3. The applicant's primary written submissions were made on 29 August 2023 (paragraphs 1 – 60) and the applicant's supplementary submissions were made on 7 September 2023 (paragraphs 1-19). 4. On 11 September 2023, the respondent Council filed short submissions belatedly indicating that it neither consented nor opposed the grant of a stay, leaving that discretionary question to be determined by the Tribunal. 5. Those materials were read in advance of today's hearing. In these reasons, reference will be made to particular parts of that material where it becomes relevant to do so. 6. Although on 11 September 2023 the Council indicated it no longer actively opposed the grant of a stay, the objects of the legislation concerning the safety of the public necessarily requires the Tribunal to conduct a review of the evidence and the factual background to determine whether, on the balance of convenience, the exercise of the discretion to order a stay is justified. Review of factual background 1. The following review of the factual background concerns the applicant's qualifications and past disciplinary history, matters arising at the hearing before the Council's delegates on 10 August 2023, and a consideration of the Council's written reasons dated 5 September 2023. Applicant's qualifications and past disciplinary history 1. In 2006, the applicant obtained specialist fellowship qualifications as an otolaryngologist and head and neck surgeon. Since then he has practised in those areas of specialty. 2. Although the applicant came to the attention of the former Medical Board of NSW in 2007, and then to the Council in 2011, 2013, and 2014, on the evidence, those past events have no decisive bearing on the issues under current interlocutory consideration. 3. The historical commencement of the Council's concerns over the applicant's use or exposure to substances commenced in 2016. 4. Between 2016 and 10 August 2023, the starting point of the consideration being the advent of a difficult period in the applicant's personal life. Since then he has had a long history of interaction of an inquisitorial nature with the Council concerning a series of six s 150 inquiries which resulted from 16 complaints. 5. In summary, drawing upon the helpful submissions of Counsel for the applicant, for the purpose of the consideration of this stay application, prior to 10 August 2023, that background of the six s 150 inquiries may be conveniently and sufficiently summarised as follows: 1. The first, a hearing on 4 March 2019, related to events between 2016 and August 2018, and resulted in a determination that the applicant suffered from an impairment which required him to comply with conditions, including that he undergo thrice weekly urine drug testing and quarterly hair drug screening. A series of incidents then arose which indicated an apparent non-compliance, which the applicant apparently explained to the satisfaction of the Council at that time; 2. The second, which arose from events in April and May 2019, which were then subject of a series of assessments and cognitive assessments by a psychiatrist specialising in addiction. Those events resulted in a "not to practise medicine" condition that remained in place from 24 June 2019, until it was lifted in September 2019 after further reviews and testing, which apparently satisfied the assessors at that time. In those events, the applicant's existing conditions of practice remained unchanged; 3. The third, related to events identified at a review in March 2020. The third s 150 proceedings were convened on 27 March 2020 to consider instances of the applicant's non-compliance, which resulted in a suspension of the applicant's registration in view of concerns expressed to the effect he posed a risk to the health and safety of the public; 4. The fourth, on 20 May 2020, was convened pursuant to s 150A of the National Law because the applicant had applied for a review of his suspension. The result was that his suspension was lifted in June 2020, with pre-existing conditions and testing set to continue; 5. The fifth, arose from events on 18 September 2020, when the applicant returned a positive hair drug test for cocaine in the context that his thrice weekly urine tests revealed an absence of cocaine. The applicant's explanation of occupational exposure during surgical practice was apparently accepted. That proceeding was concluded on 11 December 2020 when the Council imposed an additional condition on the applicant's registration that he was "not to possess, handle, supply or administer cocaine". On 19 March 2021, the applicant attended upon the Council. At that time it was noted that his work and his health situation remained stable, and that his major depressive disorder was in remission. It was noted the applicant had avoided all use of cocaine in his surgical practice since December 2020, and had taken appropriate measures against cocaine exposure. In May 2021, it was noted that he had tested negative for all drugs tested. As a result, the applicant's condition for thrice weekly drug testing was eased to a regime of random testing. At a review in April 2022, the reviewers noted that the applicant had been fully compliant with his conditions, had adjusted well to random drug testing requirements, his urine and hair samples remained negative on testing for all substances other than prescribed medications; 6. The sixth, arose from a series of random test results between 1 August 2022 and 9 June 2023, but not including test results consistent with appropriately prescribed medical treatment. The applicant gave explanations for those results. Morphine traces were detected but explained by the consumption of poppy seed bagels, amphetamine detection was consistent with treatment for ADHD, and dilute cannabinoids, was not considered by the Council's supervising addiction specialist psychiatrist to indicate ingestion of cannabis for psychoactive purposes. Those events were reviewed in light of the applicant's responses to questions. A non-critical report by the Council's appointed addiction specialist psychiatrist was considered. No changes were made to the applicant's practice conditions following that review. The event which triggered the s 150 hearing fixed for 10 August 2023 was a decision of the Occupational Division of the New South Wales Civil and Administrative Tribunal on 13 July 2023: Health Care Complaints Commission v FWX [2023] NSWCATOD 100. Accordingly, in light of some recent positive drug test results,on 25 July 2023, the Council resolved to convene the sixth s 150 hearing which was fixed for 10 August 2023. It is not appropriate in these reasons to analyse those incomplete proceedings. 1. For the purpose of considering the present application for a stay, it is assumed that each of the s 150 inquiries outlined above were justifiably instituted. 2. Similarly, with the exception of the appealed decision of 10 August 2023, (which the applicant has appealed claiming the outcome was unjust), it is assumed that those other outcomes, including the imposition of conditions on his practice, were also justifiable in the interest of public safety and health, even though the applicant found compliance to be inconvenient, and at times difficult. Council's hearing on 10 August s 150 proceedings 1. Properly, in the public interest, after receiving a complaint about the applicant, the Council convened a hearing pursuant to s 150 of the National Law. The hearing date was set for 10 August 2023. Accordingly, the applicant was required to attend to answer some questions concerning his fitness to practise. 2. On that date the applicant attended with his solicitor. He gave evidence in which he answered questions posed by the Council delegates with medical qualifications. The proceedings were sound recorded. The proceedings were inquisitorial. Although the paramount agenda was the interest of public health and safety, also at stake was the applicant's right to continue to practise his profession under the conditions that had previously been imposed on him. 3. The delegates comprised a general practitioner, an Associate Professor of Medicine who specialised in addiction medicine, and a lay member with a non-medical PhD qualification. 4. The proceedings commenced at 10.30 am and continued until 11.54 am when a break was called. The proceedings resumed at 12.33 pm. The applicant's solicitor addressed the delegates between 12.35 pm and 12.42 pm: Exhibit "B", pp 74 – 76. 5. Shortly stated, the submissions made on behalf of the applicant by his solicitor at the s 150 hearing were to the effect that whilst the evidence before the Council, when taken at its highest, may have established that FWX breached his conditions of registration, the evidence did not establish the existence of an emergency or a need for urgent consideration of whether he should be permitted to retain his registration. 6. The hearing was then adjourned for the Council's delegates to deliberate. The delegates then deliberated over the lunch break and reconvened at 1.33 pm to announce their determination by which the applicant's registration was peremptorily suspended. 7. At that time, the brief oral reasons of the Council delegates were disclosed in the following terms: "… We're mindful that our actions shouldn't be driven by any punitive matter but purely in a protection of the health and safety of the public and our conclusion is based on the return of the positive results early this year and in the context of the repeated breaches over many years. And Our finding is that there is no alternative to suspending (the applicant) today and this is in effect immediately." (Exhibit "B", p 77) 1. The proceedings then concluded at 1.34 pm. 2. At that time, the applicant was then handed a letter advising him of his suspension, which was to commence from 2 pm that day. 3. In his appeal, the applicant challenges the legal reasonableness and the appropriateness of those findings. 4. At this point it is relevant to briefly say something about the questioning of the applicant during those proceedings before the Council. 5. The general practitioner delegate asked questions about the applicant's work patterns, and his health generally. The lay member asked no questions. 6. The addiction specialist focussed his questions on the applicant's past use of medications and breaches of conditions relating to more recent positive test results (Exhibit "B", p 54.29). His questions included something of a sceptical perspective where he "add[ed] up a whole series of improbable events", this being his characterisation of the applicant's explanations for the breaches in question (Exhibit "B", p 65.2). 7. The questioner went on to press the applicant for explanations on a critical, and as it transpired, misconceived issue, whereby a question was raised as to whether the applicant's persistent denials of propositions put to him in those questions should be accepted. 8. In that context, in the face of the applicant's repeated denials, the questioner ultimately found it necessary to accept that his questions had been incorrectly based because of his own misreading of the "very large file" (Exhibit "B", p 71.36), which led him to apologise to the applicant (Exhibit "B", p 72.6). 9. The background to the addiction specialist's identified misapprehensions seems to have been that, at the outset of his questioning of the applicant, the addiction specialist disclosed that he considered the Council's file to have been "very daunting": Exhibit "B", p 41.43. 10. It is not clear from the material reviewed as to whether the Council's file relating to the applicant had been made available to the delegates for a timely review prior to that s 150 hearing. Council delegates' written reasons 1. The Council's written reasons for the appealed suspension order were in two parts, the first being the short reasons set out in the letter dated 10 August 2023, and the second being the lengthier reasons which followed 27 days later, on 5 September 2023. Those reasons were amended on 8 September 2023. 2. The Council's letter handed to the applicant on 10 August 2023 gave him the following formulaic reasons and instructions: "This action has been taken under section 150 of the Health Practitioner Regulation National Law (NSW) as the Council is satisfied it is appropriate for the protection of the health or safety of any person or persons and / or because it is satisfied this action is appropriate in the public interest. While you are suspended, you must not practise medicine. We will send you written reasons for decision in 30 days, or if possible sooner." (Emphasis added) 1. The letter dated 10 August 2023 adopted what is commonly understood and described in legal interpretation as the illegitimate or bastard conjunction ("and/or"), which confounds, confuses, and renders obscure, the meaning of the sentence in which it appears. Some of the authorities which explain that view, albeit in a different jurisdictional context, are cited in Vaccaro v MLC Limited [2016] NSWDC 85, at [10]. 2. However, the inclusion of the illegitimate conjunction "and/or" in the cited sentence does nothing but confuse the two propositions cited in the letter by creating an unresolvable tension in the meaning of the sentence. 3. To illustrate the point, the first part of the cited sentence before the interposition of the conjunction identifies an unambiguous present need to protect the health and safety of the public. The second part of that sentence after the conjunction identifies a state of satisfaction that the proposed action is in the public interest. The inclusion of the illegitimate conjunction "and / or" unfortunately renders the meaning of the sentence obscure and unclear. 4. On 10 August 2023, at the time the applicant's registration was suspended, he was entitled to expect a clearer exposition of the reasons for his suspension, even in the context of the purported use of the emergency powers provided by s 150 of the National Law. 5. The Council's written reasons dated 5 September 2023 ultimately provided detailed and expanded reasons for the suspension order on the ground that it was considered necessary for the protection of the health and safety of the public and in the public interest: Exhibit "B", p 12. Those reasons are now the subject of challenge on appeal. 6. The level of clarity evident in the reasons exposed on 5 September 2013 should have been provided to the applicant on 10 August 2023 so that the basis of his suspension could be properly understood. It was unreasonable that this only emerged 27 days later. Consideration of reasons dated 5 September 2023 1. The central issues the Council identified as requiring consideration were properly stated to be, first, the appropriateness of taking action under s 150 of the National Law for the protection of the health and safety of the public or otherwise in the public interest, and secondly, the need for a risk assessment on that issue as the paramount consideration according to the guiding principle stated in s 3B of the National Law: Exhibit "B', p 5. 2. The process by which the Council delegates arrived at their adverse views concerning the applicant's explanations on matters relevant to a risk assessment was evidently credit based. That assessment was obviously made without relevant and available information in the form of expert evidence being considered by the Council's delegates. Credit finding by Council and denial of procedural fairness 1. The applicant's complaint concerning the credit findings made against him and the denial of procedural fairness are inter-related. 2. On the credit issue, plainly, the Council did not accept the applicant's explanations for the identified breaches of conditions of practice and found those explanations "unconvincing" and indicative of "an indifference to conditions placed on his registration to protect public health and safety" (Exhibit "B", p 9), also describing his attitude as being "truculently non-compliant with conditions": Exhibit "B", p 11. 3. Lamentably, the Council delegates' attitudes to and perceptions of the applicant's responses as identified in the preceding paragraphs had not been fairly put to him as challenges for him to responsively address in his evidence when answering questions. 4. The Council delegates' reasons for the views as cited above seem to have stemmed from an early consideration and rejection of the applicant's explanation for a test result which showed a positive result for cannabinoids – 21ng/ml. 5. The applicant claimed the test results which had attracted attention were due to environmental exposure. His explanation included cogent explanations to support that claim. His claim was supported expert toxicological evidence which was not challenged. 6. In their written reasons dated 5 September 2023, the Council delegates rejected the applicant's explanations. They did so in emphatically underlined terms (at Exhibit "B", pp 6 -7). That rejection was based on the content of two journal articles: J Med Toxicol. (2017) Mar: 13(1): 106-110; Journal of Analytical Toxicology (2015): 39: 1-2. 7. Those articles were appended to the Council's written reasons dated 5 September 2023, (as amended on 8 September 2023). 8. Troublingly, those articles did not feature in any of the questions the Council's delegates had put to the applicant during the course of his evidence in the s 150 proceedings. 9. The record as summarised in the preceding paragraphs, and only exposed to the applicant on 5 September 2023, some 27 days after his peremptory suspension, forms the basis for the applicant's complaint that in its deliberations as to the credibility of his explanations, the Council had denied him procedural fairness. 10. The applicant's complaint of a denial of procedural fairness, also known as natural or practical justice, is grounded on the fact that, nowhere in the transcript of the questioning of the applicant, is there any reference to those cited articles which the Council ultimately utilised to reach its adverse credit findings against the applicant. 11. Consequently, it is plainly apparent that the appellant and his solicitor were denied the procedurally fair opportunity of responding to credit challenges, based on those articles. 12. In this context, it must be recognised that the Council's s 150 proceedings were not the same as a court or a tribunal hearing, and the Council did not have recourse to the assistance of legal advice in the course of the proceedings on 10 August 2023. However, it must also be recognised that the hearing panel was constituted by two medical practitioners with assumed medical knowledge and acumen in a specialist jurisdiction, as discussed in Strinic v Singh [2009] NSWCA 15, at [1] – [2]. 13. That said, in the present case, where there was an emergent credit issue of concern to panel members, natural justice or procedural fairness required that before specialised medical and scientific knowledge was to be used as the foundation for an adverse credit finding of fundamental importance to the outcome of the proceedings, such concerns should have been clearly and unambiguously exposed to the applicant and his solicitor for comment and debate, especially given what was at stake in the proceedings before the Council at that time. Council's failure to consider relevant expert evidence 1. At the s 150 hearing the applicant relied upon an expert report dated 10 August 2023 from Dr Michael Robertson, a pharmacologist and forensic toxicologist: Exhibit "B" pp 446 – 460. It is common ground between the parties that this report was within the materials the Council's delegates were required to consider. It is inexplicable that they apparently failed to do so. 2. Dr Robertson's opinion supported significant aspects of the applicant's claim that environmental exposure to identified substances could represent a plausible explanation for the low amounts of cannabinoids and cocaine captured in the applicant's test results that were considered by the Council delegates to be of pivotal importance. 3. In finding that the applicant's explanations for his test result were unconvincing and incorrect, the Council's reasons to that effect made no reference to Dr Robertson's report, where such a reference would have been expected in the circumstances. There was no indication from within the Council's reasons for drawing an inference that the content of Dr Robertson's report had been considered. On the contrary, the compelling inference is that Dr Robertson's report had been overlooked if not disregarded. 4. The inescapable conclusion from those circumstances is that that the Council has failed to consider relevant evidence, thus calling into question the appropriateness and lawfulness of the appealed adverse findings against the applicant. Legal unreasonableness and non-emergency circumstances 1. The applicant has identified a compelling argument to the effect that his suspension was legally unreasonable because the finding to the effect that he had taken or ingested cannabis was against the weight of the evidence is well founded on the evidence that was available to the Council's delegates when they made their decision under present appeal. 2. Also of compelling force is the argument that the evidence before the Council delegates did not support a finding that the public interest required the applicant's immediate suspension as an urgent or emergency circumstance representing a need to protect the public's health and safety. 3. Given the positive conclusions reached to the effect that the applicant's claims of a failure to consider available expert evidence and the denials of procedural fairness are reasonably arguable points of law, economy of reasons indicate it is unnecessary to give further detailed consideration to the applicants complains over legal unreasonableness, where those complaints also identify relevant and reasonably arguable points of law. 4. There was no evidence of an urgency or an emergency that justified invoking the emergency power of suspension, as was explained in Pridgeon v Medical Council of NSW (2022) 108 NSWLR 263; [2022] NSWCA 60, at [70]. Determination 1. All of the applicant's claims as reviewed and considered above, plainly raise and represent reasonably arguable grounds for an appeal on relevant points of law: Grounds 8,9,10, and 11. Balance of convenience 1. In determining the merits of making an order for a stay, the balance of convenience must be considered. In applying that balance, whilst the evidence shows that there have been deleterious personal consequences experienced by the applicant, his family, and his patients, these are in ordinary circumstances outweighed by the public interest which generally carries greater or paramount weight. 2. However, in this case, the greater public interest, intertwined with the interests of justice, demands appropriately justified rigour in decision making on important public health and safety issues, where they also happen to have deleterious personal consequences for the applicant, as has been shown in this application. Those combined factors weigh heavily in the balance of convenience in favour for the order of a stay as sought by the applicant. 3. Accordingly, the applicant has succeeded in justifying the making of an order for the stay he seeks pending the hearing of his appeal. Costs 1. In this case costs should follow the event of the successful application for a stay. It should be observed that the applicant's costs would have been substantially lessened if the Council had given a much earlier indication of the ultimate passive stance it took on the question of a stay. Orders 1. The Tribunal makes the following orders: 1. The suspension from registration order made by the Medical Council of New South Wales on 10 August 2023, purportedly pursuant to s 150 of the National Law (NSW), is stayed pending the outcome of the appeal from that order; 2. The Medical Council of New South Wales is to pay the applicant's costs of his successful stay application as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). 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: 15 September 2023