Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Puri v Medical Council of New South Wales [2024] NSWCATOD 87 Hearing dates: 03 May 2024 (last submissions received 24 May 2024) Date of orders: 01 July 2024 Decision date: 01 July 2024 Jurisdiction: Occupational Division Before: Seiden SC DCJ, Deputy President Decision: (1) The decision of the Delegates dated 24 June 2023 suspending the applicant's registration is stayed on the conditions set out below, pending the determination of his appeal under s 159B of the National Law. (2) The following conditions are imposed on his registration: (a) To obtain Medical Council of NSW approval prior to changing the nature or place of practice. (b) To practise in a group practice approved by the Medical Council of NSW where there are at least two registered medical practitioners (excluding the subject practitioner) and; (i) Where the patients and patient records are shared between medical practitioners (ii) Where there is always one other registered medical practitioner on site (c) Not to prescribe, to consult, examine, treat or perform any procedures on any female person. (i) The practitioner may only provide emergency medical services to such persons in compliance with s 139C(c) of the Health Practitioner Regulation National Law. (ii) If any such event occurs, the practitioner must notify the Medical Council of NSW within 24 hours and provide details of the event and any other information as requested by the Council. (d) Not to prescribe to, consult, examine, treat or perform any procedures on any persons under the age of 18. (i) The practitioner may only provide emergency medical services to such persons in compliance with s 139C(c) of the Health Practitioner Regulation National Law. (ii) If any such event occurs, the practitioner must notify the Medical Council of NSW within 24 hours and provide details of the event and any other information as requested by the Council. (e) Not to undertake any telehealth consultations or home visits. (f) To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. (i) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: (A) Professionalism and professional ethics; (B) Maintaining appropriate professional boundaries with patients; (C) Compliance conditions, the Medical Board of Australia's "Good Medical Practice: A Code of Conduct for Doctors in Australia" and "Guidelines: Sexual Boundaries in the Doctor-Patient Relationship"; (D) Workload management; and (E) Clinical performance, including assessment and management of patients. (ii) To authorise the Medical Council of NSW to provide the approved supervisor(s) with a copy of the decision which imposed this condition and any other decision or report as determined by the Council. (iii) Not to practise until a supervisor has been approved by the Medical Council of NSW. (g) To submit to a random inspection of the practitioner's medical practice by a person or persons nominated by the Medical Council of NSW: (i) The inspection is to be held as required by the Council to assess his compliance with the conditions imposed on his registration. The auditor(s) may: (A) Inspect medical records; (B) Access, copy or retrieve appointment diaries, patient booking schedules and contact details. (ii) To authorise the inspector(s) to provide the Council with a report on their findings. (h) To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. (3) The application for a non-disclosure order and non-publication order of the applicant's name is refused. (4) The applicant is to advise the Tribunal within 28 days as to whether he intends to appeal from order 3. (5) Pending notification of an appeal, the applicant's name is to be replaced with initials. If the applicant does not advise the Tribunal within 28 days that he intends to appeal, the name of the applicant will be substituted for initials. (6) The parties are to exchange and file their submissions on costs within 14 days of the date of this decision, including on whether the costs decision may be dealt with on the papers. Catchwords: ADMINISTRATIVE LAW — Tribunal's source of power to make non-suppression and non-disclosure orders in health disciplinary proceedings — Whether a non-disclosure and non-publication order should be made — Concurrent criminal proceedings HEALTH — General medical practitioner — Suspension of registration under s 150 of the National Law — Appeal under s 159B of the National Law HEALTH — Application for a stay of the suspension decision — Whether there is an arguable appeal — Appeals "with respect to a point of law" under s 159B of the National Law — Whether the Delegates applied the correct statutory test — Whether the suspension of registration by the Delegates was a discretionary task — Whether the Delegates took into account irrelevant considerations or failed to consider a mandatory consideration Legislation Cited: Civil and Administrative Legislation (Repeal and Amendment) Act 2013 (NSW) Civil and Administrative Tribunal 2013 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW) Health Practitioner Regulation National Law (NSW) 2009 Cases Cited: Aldridge v Keaton [2009] FamCAFC 106 Ansari v Medical Council of New South Wales [2021] NSWCATOD 138 Arnold v Crawford [2024] NSWCATAP 62 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258 Chen v Health Care Complaints Commission [2017] NSWCA 186 Chief Commissioner of State Revenue v E Group Security Pty Ltd [2022] NSWCA 115 Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 Coal and Allied Operations Pty Ltd v AIRC (2000) CLR 194 at 205; [2000] HCA 47 Commissioner of Police, NSW Police Force v Hogan [2024] NSWCATAP 77 Da Ros v Qantas Airways Ltd [2010] NSWCA 89 Director of Public Prosecutions Reference No 1 of 2019, Re (2021) 274 CLR 177; [2021] HCA 26 DPD v Nursing and Midwifery Council of NSW [2019] NSWCATOD 102 Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 EFQ v Medical Council of NSW [2020] NSWCATOD 135 Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 Hampshire v Health Care Complaints Commission [2021] NSWCA 283 Hanna v Dental Council of New South Wales [2022] NSWCATOD 54 Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v FDE [2021] NSWCATOD 215 Health Care Complaints Commission v FSF [2024] NSWCATOD 32 Health Care Complaints Commission v GGZ [2024] NSWCATOD 53 Health Care Complaints Commission v Karalsingham [2007] NSWCA 267 Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Heath Care Complaints Commission v Reid (Publication Application) [2019] NSWCATOD 31 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kirby v Dental Council of New South Wales [2020] NSWCA 91 Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Kollias v Pharmacy Council of New South Wales [2024] NSWCATOD 49 Lee v Health Care Complaints Commission [2012] NSWCA 80 Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 Legal Service Commissioner v Baker [2005] QCA 482 Lindsay v Health Care Complaints Commission [2010] NSWCA 194 Mappa v Medical Council of New South Wales [2021] NSWCATOD 159 McCarthy v Health Care Complaints Commission (No 2) [2020] NSWCATOD 24 McCarthy v Health Care Complaints Commission [2019] NSWCATOD 142 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Medical Council of New South Wales v Lee [2017] NSWCA 282 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 352 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Nationwide News Pty Ltd v JS [2022] NSWSC 774 Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 PR v MDM [2020] NSWCATAP 151 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Pridgeon v Medical Council of New South Wales (2022) 108 NSWLR 263; [2022] NSWCA 60 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 Segal v Medical Council of New South Wales [2020] NSWCATOD 86 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 Turner v Pharmacy Council of New South Wales [2022] NSWCATOD 156 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 Watson v Qantas Airways Ltd [2009] NSWCA 322 Texts Cited: Nil Category: Procedural rulings Parties: Deepak Shadilal Puri (Applicant) Medical Council of New South Wales (Respondent) Representation: Counsel: R Mathur SC with W Bruffey (Applicant) O Jones (Respondent) Solicitors: Shore Lawyers (Applicant) Health Professional Councils Authority (Respondent) File Number(s): 2024/00055835 Publication restriction: See orders above REASONS FOR DECISION Stay application 1. On 24 June 2023, pursuant to s 150(1)(a) of the Health Practitioner Regulation National Law (NSW) 2009 (National Law), the Medical Council of NSW, the respondent, ordered that the applicant's registration as a General Medical Practitioner be suspended, effective from 19 April 2023 (the Suspension Decision). The applicant filed an appeal pursuant to s 159B of the National Law against the Suspension Decision and filed an application pursuant to s 165L(2) of the National Law, seeking a stay pending determination of the appeal. At the close of the hearing of the application to stay the Suspension Decision, the applicant made an application to not disclose and not publish his name. 2. In summary, the Tribunal has decided as follows: 1. There will be a stay of the Suspension Decision pending the appeal, subject to conditions. 2. The non-disclosure and non-publication order is refused. 3. To preserve any appeal in relation to the refusal to issue a non-disclosure and non-publication order, the applicant is to be given a 3-letter pseudonym in these reasons for decision, pending appeal. 1. These are the reasons for those decisions. Legislation 1. Section 150(1) of the National Law relevantly provides: 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. 1. Section 165L(2) of the National Law relevantly provides: 165L Interlocutory orders [NSW] (2) The Tribunal may, in respect of an appeal under section 159B, make an order staying the decision of the Council appealed against until the appeal has been disposed of. 1. Section 159B relevantly provides: 159B Appeals on point of law [NSW] (1) A registered health practitioner or student who is the subject of action taken by the Council for the health profession under section 150, 150A or 150C may appeal, with respect to a point of law, to the Tribunal. Note— An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) Subsection (1) does not limit a right of appeal under section 159. (3) The Council must not make a decision that is inconsistent with the Tribunal's decision with respect to a point of law under this section. (4) A registered health practitioner or student may not make an application to the Supreme Court for judicial review of action taken by a Council under section 150, 150A or 150C, being an application alleging any error of law, until an appeal under this section in respect of the point of law concerned has been made and disposed of. 1. Relevant to the exercise of power under a NSW provision of the National Law (and s 165L is such a provision) is s 3B of the National Law. It provides: 3B Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. Note— This section is an additional New South Wales provision. 1. The guiding principles for exercising any power under the National Law are found in s 3A of the National Law, which relevantly provides: 3A Guiding principles [NSW] (1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration. (2) The other guiding principles of the national registration and accreditation scheme are as follows— (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (a1) the scheme is to ensure the development of a culturally safe and respectful health workforce that— (i) is responsive to Aboriginal and Torres Strait Islander Peoples and their health; and (ii) contributes to the elimination of racism in the provision of health services; Example— Codes and guidelines developed and approved by National Boards under section 39 may provide guidance to health practitioners about the provision of culturally safe and respectful health care. (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 1. Clause 9 of Div 3 of Sch 5 of the Civil and Administrative Tribunal 2013 (NSW) (NCAT Act) provides as follows: 9 Certain objectives and principles under National Law to be applied (1) The Tribunal, when exercising its Division functions for the purposes of the National Law, is under a duty to observe the objectives and principles referred to in sections 3 and 3A of the National Law. (2) The provisions of this clause are in addition to, and do not limit, the provisions of section 36(5) of this Act. 1. Section 36(5) of the NCAT Act provides as follows: 36 Guiding principle to be applied to practice and procedure … (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions. Procedural history 1. The procedural history is not in dispute. The following is taken from the applicant's written submissions filed 11 March 2024: "[4] The Applicant is a General Medical Practitioner first registered in Australia in 2016. He is a fellow of the Royal Australian College of General Practitioners (RACGP). [5] On 17 October 2022, [Patient A] attended a medical appointment with the Applicant at a medical practice in Jerrabomberra, NSW. The Applicant provided a medical consultation that gave rise to a complaint by the complainant. [6] On 20 October 2022 the complainant lodged a complaint with the HCCC. [7] On 24 October 2022 the complainant reported her complaint to police. [8] On 17 November 2022 the Medical Council convened a hearing pursuant to s 150 of the National Law. [9] On 16 December 2022 the Medical Council determined to take no action arising from the complaint. [10] On 6 February 2023 the complainant provided a formal written statement to police. [11] On 30 March 2023 police arrested and subsequently charged the Applicant with four offences allegedly committed against the complainant during the October medical appointment: a. Sexual touching without consent (s 61KC(a) Crimes Act 1900 (NSW)); b. Aggravated sexual touching without consent (s 61KD(1)(a) Crimes Act 1900); and, c. Aggravated sexual assault (s61J(1) Crimes Act 1900); and, d. Sexual assault (s 61I Crimes Act 1900). [12] The latter two strictly-indictable charges were laid by police in late 2023. [13] On 19 April 2023 the Medical Council convened a second s 150 hearing. [14] On 24 June 2023 the Medical Council handed down its decision relating to the second sec 150 proceedings and ordered that the Applicant's registration be suspended effective from 19 April 2023. [15] On 13 February 2024 the Applicant filed his s 159B appeal against the Delegates' Decision and this stay application. [16] The Applicant's criminal matter is listed at Queanbeyan Local Court for charge certification on 2 April 2024. Pursuant to the Local Court practice note, the matter will then be adjourned 8 weeks for committal. No trial date has been set yet." 1. In addition to the foregoing, the respondent highlighted that there were two earlier complaints: one in 2019 and one in 2021. These and the complaint lodged on 20 October 2022 were the subject of a hearing under s 150 of the National Law, convened on 17 November 2022, with reasons delivered 16 December 2022 ("the first s 150 hearing"). 2. The second hearing under s 150 of the National Law, which led to the Suspension Decision (the Suspension Hearing) was held on 19 April 2023. It was convened after the applicant notified the respondent about the criminal charges and also that his employment had been terminated. Further, by that time, another complaint had been lodged. That complaint was based on the same events the subject of a complaint lodged in 2021 which had been the subject of the first s 150 hearing. 3. Subsequent to the Suspension Decision, on 4 December 2023, the applicant was charged with further criminal offences; based on the same conduct as the earlier charges. Stay application Applicable Principles 1. Whilst the applicant and the respondent each referred to different authorities, the principles were not in contest. Both parties cited Segal v Medical Council of New South Wales [2020] NSWCATOD 86 (Segal) at [43], which provides: "the Tribunal's only power under the National Law to grant a stay is pending the hearing of an appeal on a question of law under s 159B." The applicant also cited Medical Council of New South Wales v Lee [2017] NSWCA 282 (Medical Council v Lee) at [14]. 2. The respondent cited Cole J in Mappa v Medical Council of New South Wales [2021] NSWCATOD 159; and the applicant, Hanna v Dental Council of New South Wales [2022] NSWCATOD 54 (Hanna) at [6]–[9]: "[6] 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). [7] 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. [8] 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). [9] 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)." 1. Of paramount consideration is the health and safety of the public: ss 3A and 3B of the National Law, Segal at [43]–[47], Lee v Health Care Complaints Commission [2012] NSWCA 80 at [21] per Barrett JA (with Macfarlan JA and Tobias AJA agreeing), Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at p 637; Hampshire v Health Care Complaints Commission [2021] NSWCA 283 at [78] per Gleeson JA (with Meagher JA agreeing). 2. Included in this consideration is the public's confidence in the health system: Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] (Meagher JA), Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91] (Santow JA). 3. The public interest therefore includes the maintenance of public confidence in the medical profession and medical practitioners, which might also be referred to as the standing of the medical profession: Health Care Complaints Commission v FSF [2024] NSWCATOD 32 at [227]. 4. Further and highly relevant here is the principle that the Tribunal may only stay a decision such as this, in circumstances where there has been an appeal filed pursuant to s 159B of the National Law. Section 159B of the National Law provides for an appeal with respect to a "point of law". This means that each particular "point of law" must be identified and considered with some care. 5. The Tribunal, on a stay application, is not required to determine the appeal. However, there must be found to be an arguable appeal. An arguable appeal means that there must be a "realistic prospect of success": Segal at [97], citing Legal Service Commissioner v Baker [2005] QCA 482 at [30] per Chesterman J (with McMurdo P and Helman J agreeing); or "at least a prima facie basis" per Cowdroy ADCJ in Ansari v Medical Council of New South Wales [2021] NSWCATOD 138 at [73]. Reasonable prospects of success sets a higher bar than tenable; which is the counter to untenable. The expression "obviously untenable" has been equated to "manifestly hopeless" per Edelman J in Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 at [73]. 6. The respondent contended that another consequence of the circumstance that a stay may only be granted where there is an appeal with respect to a point of law, is that it is not the role of the Tribunal "to determine whether the Council's assessment of the risks to health and safety of the public, and the appropriate action to take in light of those risks, was correct" (at [27] of the respondent's submissions filed 26 March 2024 "RS"). That is not the purview of the appeal, so it was submitted. 7. The practical effect of this, so it was submitted (RS at [29]), is that the Tribunal should only grant a stay where satisfied that there is arguably an error of law and not mere error. That much may be accepted. However, there may in some cases be an arguable appeal with respect to a point of law, even though the appeal seeks to impeach certain factual findings. This might occur, for instance, where the contention is that there was "no evidence" for the particular finding: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at p 156B–F (Glass JA), Arnold v Crawford [2024] NSWCATAP 62 at [9]. Appeal with respect to a point of law 1. A further issue arises from recent authorities; albeit they are in a different context. In relation to the expression "question of law", this has been interpreted to mean a pure question of law: Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 (Orr v Cobar) at [44], [49]; Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [71]; and Commissioner of Police, NSW Police Force v Hogan [2024] NSWCATAP 77 at [18]. Whilst an appeal under s 159B of the National Law is an appeal "with respect to a point of law" and not (as was the case in the authorities just cited) an appeal "on a question of law", in due course, the Tribunal must answer the question of whether an appeal lies only in respect of a pure point of law. Lindsay v Health Care Complaints Commission [2010] NSWCA 194 at [88] and Health Care Complaints Commission v Karalsingham [2007] NSWCA 267 at [17] support the proposition that an appeal under s 159B is indeed an appeal on a pure point of law. Nevertheless, for the reasons identified below, the grounds of appeal as advanced at the hearing of the stay application, raise pure points of law (insofar as they raise points of law at all) and accordingly, whether an appeal lies only in respect of a pure point of law need not be answered now. Was the Suspension Decision a discretionary decision 1. One further issue arises. The respondent noted that the Delegates, in arriving at the satisfaction that suspension was required in the circumstances, were embarking, broadly, on a discretionary task and that this involved some subjectivity (RS [25]). The respondent cited Coal and Allied Operations Pty Ltd v AIRC (2000) CLR 194 at 205; [2000] HCA 47 (Coal and Allied Operations) at [20] (per Gleeson CJ, Gaudron and Hayne JJ), and Turner v Pharmacy Council of New South Wales [2022] NSWCATOD 156 (Turner) at [41]. 2. Coal and Allied Operations concerned a power, once satisfied of certain matters, to terminate a bargaining period in an industrial dispute. At [20] it was said by Gleeson CJ, Gaudron and Hayne JJ: "In the present case, the decision by Boulton J to terminate the bargaining period involved, in effect, two discretionary decisions. The first was as to his satisfaction or otherwise that the industrial action being pursued posed a threat for the purposes of s 170MW(3) of the Act. Although that question had to be determined by reference to the facts and circumstances attending the industrial action taken in support of claims with respect to a certified agreement, the threat as to which his Honour had to be satisfied was one that involved a degree of subjectivity. In a broad sense, therefore, that decision can be described as a discretionary decision. And if Boulton J was satisfied that there was a threat for the purposes of s 170MW(3), that necessitated the making of a further discretionary decision as to whether the bargaining period should be terminated." 1. This was echoed in Turner at [41]–[43], where it was said that the Pharmacy Council, in imposing conditions on the applicant's registration, undertook two discretionary decisions: "[41] The first was as to the delegates' satisfaction as to the appropriateness or otherwise to do so for the protection of the health or safety of any person or persons, or if satisfied otherwise it is in the public interest. The satisfaction involved a degree of subjectivity and thus, in a broad sense is a discretionary decision. [42] If the requisite satisfaction was reached, that necessitated the making of a further discretionary decision as to the appropriateness of any conditions which should be imposed (Coal and Allied at [20]). [43] Because the decision-maker charged with the making of the discretionary decisions has some latitude as to the decision to be made the correctness of the decision can only be challenged by showing error in the decision making process (Coal and Allied at [21])." 1. A discretionary task is one where there might be more than one legally correct outcome; there might be legitimate differences and legitimately different results, as between decision makers. In such a case, appellate review attracts the standard described in House v The King (1936) 55 CLR 499 at pp 504-5; [1936] HCA 40. In other cases, the correctness standard identified in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 applies. 2. In the case of a discretionary decision, there may be circumstances where the Tribunal would have arrived at a different conclusion to that of the Delegates, but there is nonetheless no error of law by the Delegates. This would not suffice to ground a stay. 3. In Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 in a section headed, "The two standards of appellate error", Gageler J (as the Chief Justice then was) identified (at [49]) that the difference as between whether the correctness standard applied or "judicial restraint" was required, lies in whether "the legal criterion …demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies." See too Edelman J at [150]–[153]. 4. The task of the respondent under s 150 of the National Law was described by Brereton JA (Payne JA and Emmett AJA agreeing) in Kirby v Dental Council of New South Wales [2020] NSWCA 91 (Kirby) at [15] as follows: "In the context of a provision headed 'Suspension or conditions of registration to protect public', and the objective and guiding principle stated in s 3A, the touchstone for the exercise of the Council's power under s 150(1) to make an order suspending the practitioner's registration or imposing conditions on it is that the Council be satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons, or that the action is otherwise in the public interest. If so satisfied — regardless of how the matter comes to its attention — it must act. The power is conferred purely for the protection of the public, and thus the Council's sole concern is what if any action is required for the protection of the health and safety of any relevant persons and/or the public interest. This is not a professional disciplinary power, but purely protective. Although disciplinary proceedings may flow from s 150 action (as a result of the referral to the HCCC under s 150D), they are dealt with separately, under other provisions of the National Law which provide for dealing with complaints. As NCAT in its decision rightly observed, the role of a Council in undertaking a s 150 inquiry is to protect the public, and in a case such as the present, where serious allegations have been made which, if true, could lead to suspension or cancellation of the practitioner's registration but the evidence is incomplete and further investigation is needed, the issue for the Council is not whether the allegations are proved, but whether the evidence establishes a risk to the public requiring suspension, or imposition of a condition, for protection of the public." (Emphasis added.) 1. As identified in Kirby and extracted immediately above, the touchstone for suspending a practitioner's registration, is if "the Council be satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons, or that the action is otherwise in the public interest." 2. Whether arriving at this satisfaction and determining what steps must be taken, is truly discretionary in the sense that there may a range of legally permissible outcomes, is a question that might be relevant on appeal, in relation to Ground 3. The answer to the question may affect whether "restraint" is required when determining the appeal. It does not need to be determined here, for reasons identified below. Threshold and conditions 1. As to the requisite threshold, it is the applicant for the stay that must demonstrate that there is a proper basis for the stay. The cases generally proceed on the basis that there is no need to demonstrate that there are "special" or "exceptional" circumstances: Segal at [43], Aldridge v Keaton [2009] FamCAFC 106 at [18]. I note, however, that Hennessy ADCJ in Health Care Complaints Commission v GGZ [2024] NSWCATOD 53 (GGZ) at [26] raised some doubt about this. Ultimately, this is not a matter that needs to be decided in this case. 2. Finally, both parties accept that the Tribunal has power to grant a stay on conditions, though the respondent emphasises that the Tribunal should be cautious not to trespass on the respondent's risk assessment function. 3. Whether the Tribunal has power to grant a stay subject to conditions was the subject of some disagreement amongst Tribunal members: for example, the comments of Boland ADCJ in Segal at [52]–[68] point against s 149A as a basis for such a course; on the other hand, Cole DCJ in Hanna at [40] accepted undertakings from the practitioner, rather than imposing conditions; and Hennessy ADCJ in Kollias v Pharmacy Council of New South Wales [2024] NSWCATOD 49 (Kollias) at [6]–[24] accepted that conditions could be imposed. 4. I am satisfied that the Tribunal indeed has power to grant a stay on conditions, and respectfully adopt the reasons expressed by Hennessy ADCJ in Kollias. The Tribunal's statutory task 1. The first question before me is whether the grounds raise errors on points of law and second whether they are arguable. Unless satisfied to this point, there is no warrant to grant the stay. The respondent contends that this would mean that there is no power in the Tribunal to grant a stay. I have taken this to mean no basis, as opposed to no jurisdiction to grant a stay. 2. For so long as there is an appeal on a point of law on foot, then there is authority for the Tribunal to decide whether to grant a stay pursuant to s 165L(2) of the National Law. However, there may be no basis to favour the granting of a stay. 3. Once the Tribunal is satisfied that the appeal on a point of law is arguable, the Tribunal must exercise its discretionary jurisdiction to stay or not stay the decision. In exercising the discretion, the paramount consideration is the health and safety of the public. The other guiding principles in s 3A of the National Law are also relevant. 4. The Tribunal does not step into the shoes of the Delegates to remake the decision. However, having determined that the appeal is arguable, the Tribunal proceeds on the basis that the Delegates may have erred in their risk assessment. The Tribunal proceeds on the basis that something in the decision-making process may have gone awry. 5. Factors that will be relevant to the exercise of the Tribunal's discretion to grant a stay include: whether the Tribunal has sufficient information to be satisfied that paramountcy is being given to the guiding principles, especially the main guiding principle; the strength of an applicant's appeal; the timeliness of the upcoming appeal; and whether the appeal would be rendered nugatory if a stay is not granted. There may well be other factors, but the Tribunal must keep the guiding principles firmly in mind. Materials relied upon 1. The Tribunal had a folder of documents from the applicant, marked "Applicant's Amended Stay Application Materials". This included two affidavits of the applicant and a series of documents in support, or references. In addition, there was an affidavit of the applicant's solicitor updating the progress of the criminal proceedings. 2. In addition, the Tribunal had a letter from Mrs Donna Hillier, the Practice Manager at Leeton Medical Centre. 3. Importantly, according to Mrs Hillier, if allowed to practise, the applicant would be employed at the clinic she manages, where patients are waiting two to three weeks to see a practitioner of their choice or four to six weeks depending on the practitioner. Further, this is described as a regional area and an area of need. 4. The respondent filed a bundle of materials which included materials, transcripts and reasons for decision in relation to the hearings under s 150 of the National Law. 5. Both parties provided folders of authorities and written submissions. 6. Whilst the respondent maintains the contention that the appropriate order is to refuse to grant a stay, the following conditions were proposed by the respondent, if the Tribunal is satisfied that a stay on conditions is warranted. The applicant consented to the following conditions posed by the respondent: "1. To obtain Medical Council of NSW approval prior to changing the nature or place of practice. 2. To practice in a group practice approved by the Medical Council of NSW where there are at least 2 registered medical practitioners (excluding the subject practitioner) and; a. Where the patients and patient records are shared between medical practitioners b. Where there is always one other registered medical practitioner on site 3. Not to prescribe, to consult, examine, treat or perform any procedures on any female person. a. The practitioner may only provide emergency medical services to such persons in compliance with section 139C(c) of the Health Practitioner Regulation National Law. b. If any such event occurs, the practitioner must notify the Medical Council of NSW within 24 hours and provide details of the event and any other information as requested by the Council. 4. Not to prescribe to, consult, examine, treat or perform any procedures on any persons under the age of 18. a. The practitioner may only provide emergency medical services to such persons in compliance with section 139C(c) of the Health Practitioner Regulation National Law. b. If any such event occurs, the practitioner must notify the Medical Council of NSW within 24 hours and provide details of the event and any other information as requested by the Council. 5. Not to undertake any telehealth consultations or home visits. 6. To practice under category B supervision in accordance with the Medical Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. a. At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: i. Professionalism and professional ethics ii. Maintaining appropriate professional boundaries with patients iii. Compliance conditions, the Medical Board of Australia's 'Good Medical Practice: A Code of Conduct for Doctors in Australia' and 'Guidelines: Sexual Boundaries in the Doctor-Patient Relationship' iv. Workload management v. Clinical performance, including assessment and management of patients b. To authorise the Medical Council of NSW to provide the approved supervisor(s) with a copy of the decision which imposed this condition and any other decision or report as determined by the Council. c. Not to practise until a supervisor has been approved by the Medical Council of NSW. 7. To submit to a random inspection of the practitioner's medical practice by a person or persons nominated by the Medical Council of NSW: a. The inspection is to be held as required by the Council to assess his compliance with the conditions imposed on his registration. The auditor(s) may: i. Inspect medical records; ii. Access, copy or retrieve appointment diaries, patient booking schedules and contact details. b. To authorise the inspector(s) to provide the Council with a report on their findings. 8. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions." 1. After the hearing, the respondent clarified that the reference to "telehealth" in the fifth condition is defined as follows: "Telehealth consultations refer to consultations that use technology as an alternative to in-person consultations between a patient and a medical practitioner (doctor). It can include video, internet or telephone consultations, transmitting digital images and/or data, and prescribing medications. Telehealth can be used to provide triage, diagnosis, treatment and preventive health services. While the term 'telehealth' is commonly used to refer to a range of health services, for the purposes of this definition, it does not include: • the use of technology during an in-person consultation • when an opinion is provided by one doctor to another • remote patient monitoring, or • tele-education." Grounds of appeal 1. At [17] of the Applicant's Submissions ("AS"), the grounds of appeal are outlined as follows: "Ground 1: The Delegates failed to correctly apply the test for determining whether it was appropriate to take action with respect to [applicant's] registration. Ground 2: The Delegates failed to consider whether conditions that might be imposed upon [applicant's] registration would mitigate any risks. Ground 3: The Delegates took into account irrelevant considerations when exercising their statutory function pursuant to s 150." 1. Ground 1, on its face, contends that the Delegates failed to correctly apply the relevant test. However, it was clear from the oral and written submissions that the point being raised was not that the Delegates misapplied settled principle or misapplied the correct test. The point being raised was that the Delegates applied the wrong test (or misconstrued the statute). 2. The former proposition may not raise a point of law: Watson v Qantas Airways Ltd [2009] NSWCA 322, the NSW Court of Appeal (per Allsop P, Beazley and McColl JJA and Handley AJA) at [113], Da Ros v Qantas Airways Ltd [2010] NSWCA 89 per Basten JA (Tobias and McColl JJA agreeing) at [26], Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 352 per Basten JA at [55] and Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258 per Basten JA (Simpson J agreeing) at [202]. 3. Meanwhile, the latter proposition indeed raises a pure point of law (if that is necessary): Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [72]–[75]. In effect, the point of law is whether the delegates asked themselves the wrong question. 4. Ground 2 contends that the Delegates failed to consider whether conditions upon his registration would mitigate any risks. The way this was put in submissions, was that the Delegates failed to exercise the jurisdiction in failing to consider whether conditions were appropriate. Akin to Ground 1, this also raises the issue of whether the Delegates misapprehended the statutory task or misconstrued the statute in failing to undertake an aspect of the task. This raises a point of law. To the extent that s 150 of the National Law apprehends a discretion, then this ground raises whether or not relevant considerations, in the sense described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend) at pp 39–40; [1986] HCA 40 at [15] were ignored, raising an error on a point of law. 5. Ground 3 contends that the Delegates took into account irrelevant considerations when exercising their statutory function. The applicant accepted that in order to raise a point of law, the so-called irrelevant considerations must be, on a proper reading of the legislation, prohibited factors in the sense articulated in Peko-Wallsend. 6. The respondent contends that in assessing these grounds it is critical to focus upon the way that the case was run before the Delegates. It is submitted that an error of law cannot arise from the failure by a decision-maker not to consider an argument that was not put: S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 at [1] per Gleeson CJ. Taken to its logical conclusion this may go too far. There would be circumstances where the construction of the statute was not advanced below, but a point of law nevertheless arises; even if not put below. 7. Here, the respondent is adverting to the applicant's stance before the Delegates that he was prepared to accept a "not to practice" condition. As noted below, this affects the way that the Tribunal approaches the question of whether the Delegates may have erred, but does not shut out any of the applicant's grounds. Consideration Submissions: Ground 1 1. The applicant contended that, especially having regard to the transcript of the second s 150 hearing, it is apparent that the Delegates had the wrong question in mind. For instance, the Tribunal was taken to various points in the transcript where the applicant was asked why the complainant might have lied. 2. The Delegates were concerned, so it was submitted, to determine whose version of the events should be preferred; rather than with assessing risk and whether there may be some conditions that might sufficiently ameliorate that risk. They approached the question as if they were determining guilt, which, particularly considering the presumption of innocence, was no part of their statutory task. The applicant sought to draw support from Pridgeon v Medical Council of New South Wales (2022) 108 NSWLR 263; [2022] NSWCA 60 (Pridgeon), where it was said at [69]: "Secondly, and in any event, it could not (yet) be said that Dr Pridgeon's alleged defiance of the court's orders undermines the rule of law. His actions may be found to have been justified under s 70NAE(4) of the Family Law Act or he may otherwise be acquitted by a jury, in the case of the Commonwealth offences, or by a judge or jury, in the case of the State offences. For any number of reasons about which it is unnecessary to speculate, Dr Pridgeon's guilt is not a foregone conclusion. Although the Tribunal paid lip service to the presumption of innocence and did not make findings of guilt, its conclusions were patently infected by assumptions of guilt." 1. Further, so it was submitted, it is apparent from the absence of identification of the nature of the risk, that the Delegates failed to undertake the statutory task and fell into error akin to that in Pridgeon. 2. Had the Delegates identified the nature of the risk, it would then have been possible to consider whether particular conditions might be appropriate. A step that was not taken. 3. On the other hand, the respondent contends that it is apparent that the Delegates were indeed assessing risk. The respondent contended that the Delegates had the correct test firmly in mind. A step along the way to determining risk was to consider questions like whose evidence to prefer and whether there might be a reason that the complainant might not tell the truth. It followed, having preferred the complainant's version of the events to that of the applicant, that the risk in allowing the applicant to continue to practise had been made out. 4. Further, the respondent highlighted that at the Suspension Hearing, the applicant accepted that he should not practise. The respondent contended that having turned their minds to and then rejecting the most onerous of conditions, the applicant's proffered condition not to practise, they must be taken to have turned their minds to whether any condition could sufficiently ameliorate the risk and avoid a suspension of the applicant's registration and decided that no condition was sufficient. 5. The respondent directed attention to the risk to the confidence of the public in the health system, in the sense that the standing of the health system may be brought into disrepute unless the applicant's registration was suspended. Consideration: Ground 1 1. It was necessary for the Delegates, under s 150 of the National Law, to reach a state of satisfaction about whether a suspension of registration was appropriate or whether the imposition of conditions was appropriate. So much is apparent from the text of s 150 of the National Law. Further, as noted in Kirby, the Delegates must act commensurately with their state of satisfaction and suspend or impose conditions on the practitioner's registration. 2. The Suspension Decision relevantly provides: "The task under s.150 of the National Law (NSW) involves a risk assessment having regard to the guiding principle stated in s.3A of the National Law (NSW) that the protection of the health and safety of the public must be the paramount consideration. To address this central issue, we must answer the following subsidiary questions: i. Are there any previous complaints in relation to the practitioner? ii. If there are previous complaints in relation to the practitioner, are they reasonably considered to be relevant to the current matter? iii. Does the practitioner's practice pose a risk to the health and or safety of the public? iv. Are the circumstances such that it is otherwise in the public interest that action be taken that affects the practitioner's practice? If we conclude that it is appropriate to take action under s.150 of the National Law in respect of [the applicant] for the protection of the health or safety of the public or otherwise in the public interest, then we will consider the following questions: i. Are there conditions that could be imposed on the practitioner's registration that would (a) sufficiently mitigate identified risks to the health or safety of the public or (b) would sufficiently mitigate concerns in relation to the public interest? ii. If it is not considered appropriate that conditions be imposed, is it appropriate that the practitioner's registration be suspended? … There has been no suggestion by any party to [Patient A] having any nefarious motivation for making a false complaint about [the applicant]. … Conclusion In considering all of the evidence the Delegates determined that it is appropriate and necessary, both for the protection of the health and safety of the public, and in the public interest, to take action under s150 of the National Law (NSW). Consideration of the public interest involves a number of factors including the need to maintain public trust and confidence in the regulated health professions and the administration of the National Law (NSW), and the operation and management of the health system as a whole. The public trusts medical practitioners to maintain the highest standards of clinical practice, knowledge, understanding, communication, diligence and care. The concerns raised about [the applicant's] behaviour have the potential to diminish the public's confidence and trust in [the applicant] himself, the medical profession, the health system and more broadly, the health practitioner regulatory framework. At this time [the applicant] has been charged with two serious crimes and is subject to two investigations by the HCCC. It is therefore appropriate to suspend [the applicant's] registration until such time as the outcome of the criminal case is known and the HCCC investigations have concluded." (Emphasis in original) 1. I pause to note that the nature of the power being exercised under s 150 of the National Law is relevant. It has been described as an emergency power: Pridgeon at [70], Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 at [9]. Section 150 empowers the Delegates to suspend a practitioner's registration or impose onerous conditions, prior to there being findings, for instance, of guilt in relation to criminal charges, or whether complaints are made out. It is a power to be exercised at a preliminary stage and on less than comprehensive evidence. This highlights that the task of the Delegates was indeed a risk assessment function, as submitted by the applicant. 2. I now turn to the question of whether the appeal is arguable. 3. Despite referring to the correct test, it is open to argument that the Delegates did not perform a risk assessment function; but were wrongly concerned with determining whose version of events was correct, despite the interim nature of the proceedings and the absence of comprehensive evidence or the testing of that evidence. Further, they did not identify the nature or gravity of the risk. This does not appear to accord with Pridgeon at [12]. 4. Whether determining whose version of events to prefer was indeed a step along the way to assessing risk, whether this was an approach in line with the statutory task and whether the Delegates asked themselves the correct question will be matters for the appeal. 5. Further, whilst there is force to the respondent's submission that it is implicit that the Delegates turned their minds to conditions, because they rejected the applicant's offer to accept a condition not to practise, the applicant's contention that they did not do so is open; especially as the Delegates did not identify the nature or gravity of the risk. 6. The Tribunal is satisfied that this ground of appeal is reasonably arguable. Ground 2 1. Ground 2 is to the effect that the Delegates failed to consider a mandatory consideration, namely, whether a condition (as opposed to suspension) was appropriate to protect a person or persons or was in the public interest. Another aspect of this ground is whether the Delegates misconstrued the statute or failed to exercise the jurisdiction in failing to consider the conditions. 2. It was necessary, as part of the risk assessment process and part of the statutory task under s 150 of the National Law, to consider whether it was appropriate to impose conditions, as opposed to suspending the registration. 3. As mentioned in relation to Ground 1, whether the Delegates failed to do so is reasonably open to be argued on appeal. Ground 3 1. The applicant accepted that for this ground to be open, it was at least necessary to show that the factors taken into account were prohibited factors. This would be the position if House v The King applied. However, the analysis might be more nuanced considering that the nature of the statutory task is to reach a state of satisfaction and then act accordingly (as discussed above regarding whether the Suspension Decision was discretionary). 2. The respondent submitted that the factors were not prohibited factors and that the applicant must demonstrate legal unreasonableness in the decision making. 3. The factors pointed to are: "a. The nature and type of the complainant's employment b. The number of witnesses in the pending criminal case c. That the Applicant had not suggested or adduced evidence to prove that the complainant had a 'nefarious motivation for making a false complaint' d. The vague allegations relating to the secondary complainant of [another]." 1. There does not appear to be anything in the statutory context that would make these prohibited factors. Nor, was a case made out, at this interlocutory stage, that the decision was unreasonable, in the requisite sense. 2. This is not to say that with comprehensive submissions and in the context of the hearing of the appeal, that this Ground is not open. However, as presently framed, it does not appear to raise a point of law or meet the necessary threshold. 3. Accordingly, I do not take it into account in determining whether a stay should be granted pending appeal. The stay 1. The applicant's case is, in essence as follows: 1. The appeal is arguable. 2. The conditions posed by the respondent, that the applicant is prepared to consent to, are sufficient to protect the public; both in the sense of protecting individual patients and the confidence of the public in the health system. The conditions themselves preserve the standing of the health system. 3. If allowed to practise, he would do so in an area of need and has a clinic ready and willing to employ him. Accordingly, to allow the applicant to practise under the stipulated conditions would benefit the public because it would put a doctor in an area of need. 4. The evidence filed and which is not the subject of any objection or cross examination, is to the effect that despite efforts to obtain work outside the health sector and the assistance of his family, the applicant is under straightened financial circumstances. 5. To impose conditions rather than a suspension, would be consonant with the guiding principles under the National Law. To do so protects the public and the public interest and facilitates the fair operation of the health system. 6. The balance of convenience favours the grant of the stay. 1. On the other hand, the respondent's case, in essence is: 1. There is no point of law raised, or the appeal is otherwise unarguable. 2. The applicant accepted before the Delegates that he should not practise. 3. The Delegates considered the most onerous of conditions, namely, the condition not to practise and yet were satisfied that to protect the public, the applicant's registration should be cancelled. 4. The Delegates' satisfaction should not be gainsaid (or, at least, not lightly disturbed), as it was their role and not the Tribunal's role to assess risk. 5. The conditions, posed by the respondent, even as onerous as they are, do not protect the safety of the public. 6. In particular, they do not protect the confidence of public in the health sector. 7. The financial consequences to the applicant are a product of the risk assessment and do not sway the balance of convenience. Determination on the stay 1. Having determined that the appeal is arguable, I proceed on the basis that the Delegates may, and I stress, may, have erred in their task. Nevertheless, in turning to the exercise of the discretion, as with all matters under the National Law, safety of the public is of paramount importance. 2. Accepting that the Tribunal is not determining risk afresh and is not determining the appeal, I must, nevertheless, consider on the material before me, the risk to the public in granting a stay of the Suspension Decision, noting that "restrictions on the practice" of the applicant are to be imposed "only if it is necessary to ensure health services are provided safely and are of an appropriate quality": the National Law, s 3A(1) and s 3A(2)(c). 3. The conditions posed by the respondent address the very particular aspects of the applicant's alleged conduct as regards female patients, that concerned the Delegates. Further, allowing the applicant to practise as is intended, subject to conditions, will foster the health and safety of the public by placing a qualified doctor in an area of need. Further still, the conditions themselves address the issues concerning the standing of the health system. 4. Having regard to the specific conditions that would be imposed upon his registration and that he would be filling a role in an area of need, I am satisfied that a stay of the Suspension Decision, pending appeal, is warranted and consonant with the guiding principles. If it be necessary to satisfy the higher threshold, then the combination of circumstances so satisfy that test. 5. On the material before me, the paramount guiding principle of safety, is addressed. I have not given any weight to the applicant's straightened financial circumstances. The confidentiality application 1. The applicant seeks a non-disclosure and non-publication order with respect to his name, in order to avoid prejudice to the administration of justice. The Tribunal's power 1. A preliminary question arises as to the Tribunal's source of power to make such an order. There are two possible provisions that may provide the Tribunal with power. 2. Clause 7 of Sch 5D of the National Law (Clause 7) provides as follows: 7 Release of information [NSW] (1) The person presiding in proceedings before a Committee or the Tribunal may, if the person presiding thinks it appropriate in the particular circumstances of the case (and whether or not on the request of a complainant, the registered health practitioner or student concerned or any other person)— (a) direct that the name of any witness is not to be disclosed in the proceedings; or (b) direct that all or any of the following matters are not to be published— (i) the name and address of any witness; (ii) the name and address of a complainant; (iii) the name and address of a registered health practitioner or student; (iv) any specified evidence; (v) the subject-matter of a complaint. … 1. Section 64 of the NCAT Act (Section 64) provides as follows: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders— (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report, including a sound recording or transcript, of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 1. In PR v MDM [2020] NSWCATAP 151 at [24], the Appeal Panel concluded that the Court Suppression and Non-publication Orders Act 2010 (NSW) (Court Suppression Act) does not apply to the Tribunal. This conclusion accords with the definition of "court" in s 3 of that Act, which does not include the Tribunal. This is because of the requirement in s 3(b). The Tribunal is not "prescribed by the regulations as a court for the purposes of this Act" (s 3(b)). The Court Suppression Act is therefore not relevant to the present issue. 2. Before determining which of these two competing provisions applies here, I note that s 35 of the NCAT Act applies. It provides: 35 Application of Part Each of the provisions of this part is subject to enabling legislation and the procedural rules. 1. Section 64 is in the relevant "part" of the NCAT Act. Further, there is no doubt that, here, the enabling legislation is the National Law. Accordingly, I start from the premise that Section 64 is subject to the National Law; which relevantly contains Clause 7. 2. In Medical Council v Lee, Justice Sackville said at [86]–[87]: "[86] The words 'subject to', like most common expressions found in legislation, has no fixed meaning but must be construed having regard to the context in which it appears. In some contexts, for example, the expression may mean that two pieces of legislation are to operate concurrently. In others it may mean that one statute applies to the exclusion of another. [87] When used to define the relationship between two statutes or provisions, 'subject' is a standard means of establishing which provisions are dominant and which are subservient. The subservient provisions therefore operate only to the extent that they are not inconsistent with or repugnant to the dominant provisions. In C & J Clark Ltd v Inland Revenue Commissioners, for example, the relevant subsection commenced with the words "subject to the provisions of this section". Megarry J said that: 'the phrase "subject to" is a simple provision which merely subjects the provisions of the subject subsections to the provisions of the master subsections. Where there is no clash, the phrase does nothing: if there is collision, the phrase shows what is to prevail. The phrase provides no warranty of universal collision.'" 1. The National Law is the paramount provision. However, as noted in Medical Council v Lee at [7] by Basten JA, before a paramountcy provision is engaged, there must first be inconsistency or repugnancy between the paramount and subordinate provisions. 2. In Heath Care Complaints Commission v Reid (Publication Application) [2019] NSWCATOD 31 (Reid) at [28(1)], Boland ADCJ determined that Clause 7 did not provide an exclusive code and s 64 was not inconsistent with it. Accordingly, s 64 was said to be an available source of power for the Tribunal to make confidentiality orders in proceedings under the National Law. Reid has been followed in several other cases in the Tribunal, including the following: McCarthy v Health Care Complaints Commission [2019] NSWCATOD 142, Health Care Complaints Commission v FDE [2021] NSWCATOD 215 and EFQ v Medical Council of NSW [2020] NSWCATOD 135. Many other cases in the Tribunal have relied on the power in Section 64 rather than Clause 7. 3. One note of concern arising from the cases following Reid is that Boland ADCJ referred to the Section 64 power as being dominant to the Clause 7 power, purportedly relying on the decision of Justice Sackville in Medical Council v Lee (as set out above). 4. However, that seems to be a misreading of what his Honour said. As extracted above, Section 64 would appear to be the subordinate and not the dominant provision. 5. Consistently with what was said in Medical Council v Lee, recently, Hennessy ADCJ in GGZ expressed a preliminary view that it was the legislature's intention that Clause 7 apply instead of Section 64. Her Honour noted that the two provisions were inconsistent: they each provided the Tribunal with a source of power to make confidentiality orders, but the legal tests for making those orders were different (at [17]). Further, it was noted that Clause 7 is silent on whether Section 64 could or could not apply in addition to Clause 7. Her Honour agreed with the Tribunal's conclusion in Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 at [15] that, at least when proceedings under the National Law were on foot, the Tribunal's power to make a confidentiality arose from Clause 7. 6. As the Tribunal has routinely made confidentiality orders in matters under the National Law under Section 64 (as was adverted to in Reid at [9]) it is important to consider whether that provision provides (and provided) the Tribunal with a source of power to make such an order. This is a significant issue. 7. To that end, the Tribunal sought submissions from the parties. Submissions as to the source of power 1. In essence, the applicant submitted: 1. That the decision of GGZ was correct and that where, as here, proceedings under the National Law are on foot, the power to make a confidentiality order arises under Clause 7. 2. The provisions apply different and irreconcilable tests. 3. Clause 7 is the specific provision and takes priority over Section 64. 1. In essence, the respondent submitted: 1. There is no reason why Clause 7 and Section 64 may not operate concurrently. 2. The Tribunal may, in effect, choose which provision to engage. Consideration as to the source of power 1. On the reasoning of Medical Council v Lee, it is necessary to determine whether the two provisions are incongruent; and if so, Clause 7 will prevail to the extent of the inconsistency or repugnancy. Section 64 is to be read "subject to" Clause 7. 2. As identified by Hennessy ADCJ in GGZ, the two provisions operate on the basis of different legal tests. Accordingly, there is an appearance of incongruity. 3. However, as to whether they are incongruent, the question arises as to whether they cover the same field and whether Clause 7 was intended to be an exhaustive code. Is there inconsistency or repugnancy 1. Despite being dominant, the National Law makes express room for some provisions of the NCAT Act: for instance, cl 5(3) of Sch 5D of the National Law, regarding evidence; and the note to cl 8 of Sch 5D, regarding authentication of documents. On the other hand, despite being the master law, some of the provisions in the NCAT Act are expressly identified (by the National Law) to be ousted: for instance, cl 13(4) of Sch 5D of the National Law shuts out s 60 of the NCAT Act, regarding costs; and s 165K regarding proceedings being held in public applies despite the correlative provision in the NCAT Act, s 49(2). 2. Unlike these provisions, Clause 7 does not have a specific priority rule. The priority provisions were brought in when the NCAT Act came into force: Civil and Administrative Legislation (Repeal and Amendment) Act 2013 (NSW). Nevertheless, nothing can be gleaned one way or the other from the fact that Clause 7 has no such priority rule. Put another way, because of the existence of some priority rules going one way and others going the other way (some ousting and some making room for NCAT Act provisions), one cannot merely assume that Clause 7 overtakes Section 64, simply because the National Law is the enabling and the dominant legislation. 3. Here, the question is whether the provisions can be read in a way that does not lead to any inconsistency or repugnancy. Clause 7 is limited in scope 1. First, Clause 7 can only apply before the conclusion of proceedings: cl 7(3) provides that "a direction may be given before or during proceedings". There may be instances where a non-disclosure order is sought after the hearing. For instance, in DPD v Nursing and Midwifery Council of NSW [2019] NSWCATOD 102 (DPD), a non-publication order was made after the original proceedings, in which a nurse successfully appealed against the Council's decision to impose conditions on registration (albeit the Council's request that the practitioner do a performance assessment led to subsequent proceedings). The need for a non-publication order arose as her name was published on social media because of that appeal. 2. Second, a non-disclosure and non-publication order under Clause 7 may not be made prior to the proceedings, unless notice is given. This may provide a practical barrier to making the order during directions ahead of the proceedings, such as during the Health Practitioners List. 3. Third, the provision does not appear to address itself to a directions hearing ahead of the substantive proceeding, such as occurs in the Health Practitioner List. The definition of "proceedings" does not assist the analysis: a reference to "proceeding before the Tribunal" is a reference to proceedings before the Tribunal under the National Law (cl 2 of Sch 5D of the National Law). 4. Fourth, the order under Clause 7 may only be made by the "person presiding". It stretches the concept of "person presiding" to suggest it apprehends the circumstance of the Tribunal when constituted by a single member, such as the person who is managing the Health Practitioner List and who is not presiding on the panel hearing the substantive proceedings. Similarly, in matters such as this interlocutory application, the Tribunal is constituted by a single member: National Law, s 165B(5A). 5. The view was taken by Boland ADCJ in Reid (at [28(1)]) that Clause 7 could only operate when the panel had been appointed. 6. The identity of the person who presides at a meeting of the Council, is determined in accordance with cl 20 of Sch 5C of the National Law. However, there is no similar provision, identifying who is the person presiding, with respect to the Tribunal. The presiding member, so far as the Tribunal is concerned, is determined by directions from the President (or delegate) pursuant to s 27(4) of the NCAT Act. In the case of proceedings under the National Law, where the Tribunal is constituted by more than one member, this will be the Judge or Australia Lawyer on the panel. There is no need for an equivalent direction with respect to a Tribunal constituted by a single member. 7. Fifth, there may be no scope to amend or revoke the order after the proceedings have completed, as this must be done by the person presiding: cl 7(2) of Sch 5D. Again, it stretches the concept of presider to suggest the order may be amended or revoked by the person who presided at the substantive hearing, after the panel hearing the substantive proceedings has delivered its decision and disbanded; or be amended or revoked by someone new. 8. As the foregoing points indicate, there are problems with applying Clause 7 at a directions hearing before a panel has been allocated, at interlocutory proceedings where the member hearing the matter is not the presider of the panel, and after the proceedings have concluded. 9. Clause 7 does not cover all the situations where a non-disclosure and non-publication order may be sought. However, the question still remains whether is was intended to exhaustively cover the circumstances where a confidentiality order may be made. Previous application 1. Where, as here, there are many cases applying Section 64, parliament is presumed to know this and since parliament has amended the legislation many times since Reid (albeit not on issues that touch this point) but left the provisions unaltered, it might be presumed to be content with the interpretation given by the cases: Chief Commissioner of State Revenue v E Group Security Pty Ltd [2022] NSWCA 115 (E Group Security) at [27]–[41]. It was noted unanimously at [29]: "The principle of construction invoked identifies the circumstances when legislative amendment to other provisions in a statute sustains the inference that a legislature is to be understood as endorsing the construction given to unamended provisions of the same statute. Much depends on the particular statute and the particular amendments." 1. The joint majority in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 said at [52]: "Since the decision in Brodyn, the Parliament of New South Wales has twice had occasion to revisit the Security of Payment Act to make substantial amendments to its provisions. No amendment was made to alter the effect of the decision in Brodyn. That circumstance is a powerful reason for rejecting any suggestion that the understanding of the legislation adopted in Brodyn, and given effect in the decision of the Court of Appeal in this case, was other than a faithful reflection of the intention of the legislature." (Footnote omitted) 1. However, limits of the re-enactment presumption were noted in Director of Public Prosecutions Reference No 1 of 2019, Re (2021) 274 CLR 177; [2021] HCA 26 at [14]: "Dixon CJ in R v Reynhoudt said that it was 'quite artificial' to take the mere repetition in legislation of a provision which has been judicially considered as legislative approval of that decision. If that is so, mere legislative inaction must surely be problematic. In such a circumstance the presumption would not seem to arise. In Flaherty v Girgis, Mason A-CJ, Wilson and Dawson JJ said that mere amendment of a statute not involving any re-enactment of the words in question could seldom be taken as approval. Even re-enactment of the words in circumstances not involving any reconsideration of their meaning will not do so." (Footnotes omitted) 1. This case was not referred to in E Group Security. 2. I give this factor little weight. Other factors 1. Clause 7 and Section 64 do not align in terms of whether a non-disclosure order as opposed to a non-publication order may be made. 2. Further, breach of Clause 7 is an offence. This may be contrast with Section 64. This is yet another difference between them that suggests there might be room for both to have operation over different spheres. 3. Also, there is no risk that Clause 7 would be otiose if Section 64 works harmoniously with it. For a start, it is the only provision that can apply to the Council to make such an order. Further, as discussed below, the Tribunal is able to apply it, over Section 64, during proceedings being heard by a panel. 4. Finally, and in my view most persuasively, the provisions of the National Law are to be interpreted in such a way as promotes the objectives: Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [14], cl 7(1) of Sch 7 of the NCAT Act. 5. It is notable that protecting the confidentiality of patients and witnesses has been said to foster the health and safety of the public. Cowdroy ADCJ said in McCarthy v Health Care Complaints Commission (No 2) [2020] NSWCATOD 24 at [42]: "Unless former patients are guaranteed that their confidentiality will be respected, there is potential prejudice to the function of the HCCC to carry out investigations because such witnesses, in the absence of such guarantee, may not be prepared to 'speak frankly' or might not give 'accurate information'". 1. Were Clause 7 to be the only provision to apply, there may be real hurdles to its application ahead of proceedings and, on its face, it is unavailable after the proceedings have concluded. This may cause a significant problem. The health system relies on the cooperation of patients and others, to fully and frankly come forward. This may be hampered if there was a question over whether confidentiality could be maintained over their personal information, throughout all parts of the process. 2. This last point suggests that Clause 7 was not intended to exhaustively deal with non-disclosure and non-publication orders made by the Tribunal. 3. However, insofar as it covers some of the field, then it would prevail over Section 64, it being the dominant provision. Clause 7 plainly covers the situation where a panel has been constituted and the proceedings are being heard. However it does not cover the early directions hearing that are managed in the Health Practitioner's List or interlocutory or ancillary matters not heard by a panel. Conclusion on source of power 1. On balance, applying an interpretation that best serves the objectives of the National Law, I am satisfied that Clause 7 should not be read as shutting out Section 64 of the NCAT Act in proceedings such as these, which are interlocutory and where the Tribunal is constituted by a single member. I am conscious that in taking this view, I depart from the preliminary, but nonetheless well-reasoned and considered views expressed by Hennessy ADCJ in GGZ. I note that her Honour did not have the benefit of submissions and with great respect I decline to follow her indication. I take support from the fact that the Tribunal has routinely applied Section 64 without adverse appellate treatment or parliament's intervention, for many years. 2. Whilst not relevant here, the foregoing analysis suggests that where the Tribunal is considering a non-disclosure and non-publication order in circumstances where the panel is constituted, the person presiding would exercise the power under Clause 7 and not Section 64 (which is ousted at that point). 3. The parties and Tribunal must be cognisant of what power is being exercised and whether the provision provides for a non-disclosure order, or a non-publication order; and the legal test. Whether a non-disclosure and non-publication order should be made in this case 1. As this is an interlocutory proceeding, I am satisfied that it is appropriate to consider whether a non-disclosure or non-publication order should be made, under Section 64. One starts from the premise of desirability of open justice. I must, therefore, be satisfied that it is desirable to make a non-disclosure or non-publication order by reason of the confidential nature of any evidence or matter or for any other reason. Here, the reason suggested is that to fail to do so, risks prejudice to the administration of justice. 2. The applicant accepts that the making of a non-disclosure or non-publication order intrudes into the concept of open justice, but submits that there is "something special, exceptional or out of the ordinary" here that justifies the departure from that important principle. Here, it is said that in circumstances where there are pending criminal proceedings concerning the same subject matter as these proceedings, there is a real risk to the administration of justice if the Tribunal's and the respondent's views in relation to the applicant's conduct are published in such a way as identifies the applicant. In particular, to publish views about the applicant's conduct would prejudice the criminal process. 3. The respondent, on the other hand, submits that there is no real risk of prejudice. Trial Judges routinely make directions to ensure the integrity of the trial process, even where there is publicity or publications concerning the subject matter of the trial. This is true, even where the information is distressing and serious: Nationwide News Pty Ltd v JS [2022] NSWSC 774 (Nationwide) at [55]. Further, it was submitted that juries approach their tasks conscientiously (Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 at [26]) and real risk of prejudice to the administration of justice does not presumptively arise by virtue of a person the subject of criminal charges being compulsory examined in proceedings outside the criminal process (Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 at [322]). 4. Here, the concerns of the applicant are not merely that there will be publicity, or that the applicant has been examined by the Delegates. The concern seems to be that the Delegates and the Tribunal have or will express views about the applicant's conduct. These views may be presumed to be given some weight, given their source. Nevertheless, as noted by Basten JA in Nationwide, publication of charges occurs routinely. Further, in the usual course, the conditions on the applicant's registration will be on the National Register: s 225 (k), s 226(2) of the National Law. 5. On balance, the circumstances do not warrant the making of a non-disclosure and non-publication order at this interlocutory stage. However, this question may be revisited at the hearing of the appeal. 6. To preserve the applicant's position, the applicant's name will be given a pseudonym for the appeal period. Costs 1. The applicant's submissions are silent on costs; however, the respondent proposed dismissal of the proceedings with costs. 2. The Tribunal will hear the parties further on costs. Orders 1. The Tribunal orders: 1. The decision of the Delegates dated 24 June 2023 suspending the applicant's registration is stayed on the conditions set out below, pending the determination of his appeal under s 159B of the National Law. 2. The following conditions are imposed on his registration: 1. To obtain Medical Council of NSW approval prior to changing the nature or place of practice. 2. To practise in a group practice approved by the Medical Council of NSW where there are at least two registered medical practitioners (excluding the subject practitioner) and; 1. Where the patients and patient records are shared between medical practitioners 2. Where there is always one other registered medical practitioner on site 1. Not to prescribe, to consult, examine, treat or perform any procedures on any female person. 1. The practitioner may only provide emergency medical services to such persons in compliance with s 139C(c) of the Health Practitioner Regulation National Law. 2. If any such event occurs, the practitioner must notify the Medical Council of NSW within 24 hours and provide details of the event and any other information as requested by the Council. 1. Not to prescribe to, consult, examine, treat or perform any procedures on any persons under the age of 18. 1. The practitioner may only provide emergency medical services to such persons in compliance with s 139C(c) of the Health Practitioner Regulation National Law. 2. If any such event occurs, the practitioner must notify the Medical Council of NSW within 24 hours and provide details of the event and any other information as requested by the Council. 1. Not to undertake any telehealth consultations or home visits. 2. To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. 1. At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: 1. Professionalism and professional ethics; 2. Maintaining appropriate professional boundaries with patients; 3. Compliance conditions, the Medical Board of Australia's "Good Medical Practice: A Code of Conduct for Doctors in Australia" and "Guidelines: Sexual Boundaries in the Doctor-Patient Relationship"; 4. Workload management; and 5. Clinical performance, including assessment and management of patients. 1. To authorise the Medical Council of NSW to provide the approved supervisor(s) with a copy of the decision which imposed this condition and any other decision or report as determined by the Council. 2. Not to practise until a supervisor has been approved by the Medical Council of NSW. 1. To submit to a random inspection of the practitioner's medical practice by a person or persons nominated by the Medical Council of NSW: 1. The inspection is to be held as required by the Council to assess his compliance with the conditions imposed on his registration. The auditor(s) may: 1. Inspect medical records; 2. Access, copy or retrieve appointment diaries, patient booking schedules and contact details. 1. To authorise the inspector(s) to provide the Council with a report on their findings. 1. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. 1. The application for a non-disclosure order and non-publication order of the applicant's name is refused. 2. The applicant is to advise the Tribunal within 28 days as to whether he intends to appeal from order 3. 3. Pending notification of an appeal, the applicant's name is to be replaced with initials. If the applicant does not advise the Tribunal within 28 days that he intends to appeal, the name of the applicant will be substituted for initials. 4. The parties are to exchange and file their submissions on costs within 14 days of the date of this decision, including on whether the costs decision may be dealt with on the papers. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 03 July 2024 - Paragraph [145] Appeal Panel amended to Tribunal 15 August 2024 - Pseudonym removed per order 5. 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 August 2024