Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hanna v Medical Council of NSW [2016] NSWCATOD 108 Hearing dates: 3 August 2016 Date of orders: 15 August 2016 Decision date: 15 August 2016 Jurisdiction: Occupational Division Before: Marks ADCJ, Principal Member Decision: (1) Application for stay of order of suspension of registration refused (2) Costs reserved Catchwords: Health practitioner suspended from practice - stay application pending appeal - relevant principles - appeal unlikely to succeed - on balance of convenience application refused Legislation Cited: Health Practitioner Regulation National Law (NSW), ss 41O, 130, 150, 159, 159B, 161B Civil and Administrative Tribunal Act, 2013 (NSW), s43 Crimes Act, 1900 (NSW), s61M Cases Cited: Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 Health Care Complaints Commission v Litchfield [1997] NSWSC 297 Category: Principal judgment Parties: Dr Nadi Hanna (Appellant) The Medical Council of NSW (Respondent) Representation: Counsel: C Jackson (Appellant) P Lowson (Respondent) Solicitors: Avant Law Pty Ltd (Appellant) Medical Council of NSW (Respondent) File Number(s): 1620189 Publication restriction: A suppression and non-publication order relating to name of employee of appellant the subject of the criminal charge of which the appellant was convicted REASONS FOR DECISION ON STAY APPLICATION Background 1. The appellant, Dr Nadi Hanna, was first registered as a medical practitioner in NSW in December 1987. Since about 1998, he has worked principally as a general practitioner treating skin cancers. Some years ago, he commenced working in a medical practice known as Penrith Skin Cancer. That practice appears to have been incorporated on 11 June 2013, by the name of Penrith Skin Cancer Foundation Pty Ltd. An ASIC extract shows the sole director, secretary and shareholder of that company as being Georgina Hanna who has described herself in a statement as the partner of the appellant. 2. On 15 July 2015, the appellant was charged by the police with a breach of section 61M(1) of the Crimes Act, 1900. That section is in the following terms: 61M Aggravated indecent assault (1) Any person who assaults another person in circumstances of aggravation, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 7 years. (2) Any person who assaults another person, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 10 years, if the other person is under the age of 16 years. (3) In this section, "circumstances of aggravation" means circumstances in which: (a) the alleged offender is in the company of another person or persons, or I the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (d) the alleged victim has a serious physical disability, or (e) the alleged victim has a cognitive impairment. 1. The aggravated indecent assault was alleged to have been committed on a 17-year-old female employee of the Penrith Skin Cancer Foundation. A suppression order has been issued by me suppressing the name of the employee concerned. Accordingly, in detailing the offence with which the appellant was charged and for which he was subsequently convicted as contained in the charge, I shall omit the name of the employee. The particulars of the charge are as follows: Between 4 PM and 4:30 PM on 14/07/2015 at Penrith That Nadi HANNA on the 14th day of July 2015 at Penrith in the State of NSW, did assault (the employee) and at the time of the assault committed an act of indecency on (the employee), to wit, did kiss face around mouth and nose whilst forcibly grasping buttocks with both hands before moving one hand and rubbing over groin region of (the employee), in circumstances of aggravation, to wit, at the time of the offence (the employee) was under the authority of Nadi HANNA being the employer of (the employee). 1. I am unsure of the precise date upon which the appellant was convicted in the Local Court. The proceedings were listed before the Penrith Local Court on 21 July 2015. Upon conviction, the appellant was sentenced to undertake 250 hours of community service. The appellant then instituted an appeal from his conviction which was heard before the Penrith District Court on 7 July 2016 and which was dismissed. The appellant has instituted an appeal to the NSW Court of Criminal Appeal from this dismissal which has not been determined. 2. Shortly after his unsuccessful appeal to the District Court, the appellant notified the respondent Medical Council of NSW which determined to institute proceedings under section 150 of the Health Practitioner Regulation National Law ("the National Law"). Those proceedings were convened before delegates nominated by the respondent who conducted a hearing on 25 July 2016 and, by a decision given the following day, determined to suspend the registration of the appellant as a medical practitioner. The appellant lodged an appeal from that decision to this Tribunal under sections 159 and 159B of the National Law on 26 July 2016. On 29 July 2016, the appellant lodged an application for a stay of the suspension order. I am concerned, for the purpose of these proceedings, with the stay application only, and my reasons which follow and the factual material to which I refer, are to be taken as confined to my consideration of the stay application. 3. Section 161B of the National Law provides that an appeal brought from a decision of the respondent to suspend the registration of the appellant "does not operate to stay the effect of the decision being appealed against unless the Tribunal otherwise orders". It is arguable, in my opinion, that the provisions of section 161B in their terms create a substantive right in this Tribunal to grant a stay in connection with an appeal brought against a decision to suspend registration. This approach was eschewed by counsel for the respondent during the course of argument, who submitted that the right to grant a stay of the suspension order was governed only by the provisions of section 43 of the Civil and Administrative Tribunal Act, 2013 which is in the following terms: 43 Effect of pending general app lications and appeals (1) This section applies to the making or lodgment of any of the following (a "pending general application or appeal" ): (a) a general ap plication for the review or other re-examination of a de cision made by an extern al decision-maker, (b) an external appeal, (c) an inter nal appeal. Note : See Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 for the effect of pending administrative review applications on administratively reviewable decisions and the making of orders staying or otherwise affecting such decisions. (2) A pending general application or appeal does not affect the operation of the decision to which the application or appeal relates, or prevent the taking of action to implement the decision, unless the Tribunal makes an order staying or otherwise affecting the operation of the decision. (3) The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal. 1. Because I take the view that both statutory provisions enable the making of a stay order subject to the appropriate and relevant exercise of discretion, it is not necessary that I make a determination about whether section 161B creates a substantive entitlement to make a stay order. However, I note, that the provisions of section 43(3), although creating a discretion, direct attention to a consideration of what is appropriate "to secure the effectiveness of the determination of the appeal." Such words are more apposite to circumstances generally encountered in commercial matters where considerations arise about the preservation of the benefit of an order the subject of an appeal pending the determination of the appeal. On one view, the upholding or rejection of the application for the stay of the order for suspension will have little bearing on the effectiveness of the determination of the appeal. If subsection (3) is to be read as limiting the exercise of discretion to the matters set out, then its provisions may arguably have no or limited application to matters of the kind currently under consideration. As will be seen, the appellant placed great weight on his inability to earn income whilst suspended, particularly as he is a bankrupt and, in theory, it might be possible to argue that his suspension pending the determination of the appeal might have the effect of frustrating his ability to practice medicine if his appeal were successful. Such an argument would depend upon the availability of supporting evidentiary material. As will be seen, there is a paucity of evidence about these matters. Because of the view which I have reached as to the ultimate determination of this stay application, it is not necessary that I reach any concluded view about these issues. I observe that if the provisions of subsection (3) of section 43 of the Civil and Administrative Tribunal Act are confining in the manner which I have suggested may apply, and if section 161B of the National Law does not create a substantive entitlement in this Tribunal to order a stay, that it might be appropriate for the legislation to be amended to remove any uncertainty about the ability of the Tribunal to stay a suspension or other order of the Council if appropriate pending the outcome of an appeal. General principles applying to stay applications 1. A succinct summary of the relevant principles is to be found in the judgment of Gleeson JA in the NSW Court of Appeal in Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [6]-[7]: 6 The principles to be applied when exercising the Court's power to grant a stay pending an appeal are well known: see Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-695, and Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (Kalifair) [2002] NSWCA 383; 55 NSWLR 737 at 741 [17]- [20]. 7 Prima facie the successful party is entitled to the benefit of a judgment, but a stay may be granted where an applicant demonstrates an appropriate case to warrant the exercise of discretion in its favour. The mere filing of the appeal is insufficient, of itself, to demonstrate such a case. Usually it is demonstrated by showing that there are arguable grounds of appeal and that there is a significant risk that if money is paid it will be unable to be recovered if the appeal succeeds or by demonstrating that unless a stay is granted the appeal will be rendered nugatory: TCN Channel 9 Pty Limited v Antoniadis (No 2) [1999] NSWCA 104; (1999) 48 NSWLR 381 at 385 [15]. It is for the applicant to demonstrate a proper basis for a stay that will be fair as between the respective interests of the parties: see Alexander v Cambridge Credit Corporation Ltd at 694; Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130 at [2]. 1. Reference should also be made to the judgment of Wright J, President of the Tribunal in Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37, in considering the provisions of section 43(3) of the Civil and Administrative Tribunal Act. His Honour said, at [9]: As a result of the use of "may" in s 43(3) of the Act, the Tribunal has a discretion whether or not to grant a stay. That discretion must be exercised judicially and general principles which apply in relation to the exercise of that discretion can be derived from the terms of s 43(3) itself. Additional guidance can be obtained from the considerations applied by the Courts in deciding whether or not to grant a stay pending an appeal. The applicable principles can be summarised as follows: (1) Generally a successful party is entitled to the benefit of the decision or orders that the party has obtained at first instance, but a stay may be granted where the appellant has demonstrated an appropriate case to warrant the exercise of discretion in its favour - s 43(2) and (3) of the Act, Kalafair Pty Limited v Digitec (Australia) Pty Limited [2002] NSWCA 383; (2002) 55 NSWLR 737 at [28], Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [7]. (2) In practical effect the onus is on an applicant for a stay to make out a case that it is appropriate for the court to make such an order - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694, Vaughan v Dawson [2008] NSWCA 169 at 16. (3) The mere lodgment of the notice of appeal is insufficient, of itself, to demonstrate that it is an appropriate case to warrant the granting of a stay - s 43(2) and (3) of the Act, Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694, Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [7]. (4) 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 - s 43(3) of the Act. This is similar to, if not the same as, the considerations applied by the Courts that where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted or where unless a stay is granted an appeal will be rendered nugatory, the discretion should generally be exercised in favour of granting a stay - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695. (5) The Tribunal may also take into account the strength or otherwise of the case of the party seeking the stay. This consideration may be particularly relevant when it is plain that an appeal, which does not require leave, has been lodged without any real prospects of success and simply in the hope of gaining a respite against immediate execution of the decision - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695. (6) The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies - ss 43(3) and 58 of the Act. (7) In exercising the discretion the Tribunal will also 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 - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694, Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [21] and [22]. (8) Finally, the overriding principle in an application for a stay is to ask what the interests of justice require - New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83] and Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [18]. 1. I shall return to a consideration of these principles after considering the evidentiary material which is available and the nature of the underlying proceedings, including the appeal. The composition of the Tribunal 1. It is uncontroversial that by reason of the provisions of section 165B of the National Law and the definition of an ancillary decision as contained in the Civil and Administrative Tribunal Act, that the determination of this stay application is to be made by me sitting alone, as a "senior judicial officer" for the purpose of the National Law. The statutory matrix applying to these proceedings 1. In dealing with the determination of these proceedings, I take into account a number of matters which differentiate them from proceedings normally encountered in this Tribunal. These are: 1. The nature of section 150 proceedings 2. The nature of the appeal, whether under section 159 or 159B of the National Law 3. The state of the "evidence" before the delegates of the Council 4. The state of the "evidence" before me. The nature of section 150 proceedings 1. Section 150 is in the following terms: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest- (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or (c) by order impose on a student's registration the conditions the Council considers appropriate. (2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens- (a) the complaint about the practitioner or student is disposed of; (b) the suspension is ended by the Council. (3) If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must- (a) suspend the practitioner's or student's registration until a complaint concerning the matter is dealt with by the Tribunal; and (b) refer the matter to the Tribunal as a complaint. (4) A Council for a health profession may take action under this section- (a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and (b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal. (5) Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition. (6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned. (7) If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who- (a) is not a registered health practitioner or student in the health profession for which the Council is established; and (b) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act. 1. The general nature of the provisions of section 150 and their application were considered in some detail by the Tribunal in Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115. The Tribunal summarised the manner in which the section operates in the following terms, which I adopt for the purpose of these proceedings at [56]: We make the following observations concerning the underlying principles which we perceive to apply in the circumstances of these proceedings: (1) The exercise of the power to suspend will have grave consequences for a medical practitioner, affecting not only the ability to earn a livelihood, but also the continuing ability to use his or her professional skills. Nevertheless, this is but a consequence of any appropriate exercise of discretion, and not a determining factor. The grave consequences are accommodated within the need to ensure that we are satisfied to the Briginshaw standard that we can safely make the conclusions necessary to make a determination that section 150 is enlivened including a consideration of the nature and status of the material upon which any such conclusions are made. (2) The existence of the power, and the fact that it may be exercised without any formal complaint having been made against the practitioner, and without any disciplinary proceedings having been commenced, is indicative that those exercising it need not embark upon a detailed enquiry, and may base their reasons on material which would not conventionally be considered as evidence in a strict sense as would be admissible in a court. (See the cases cited in R and Medical Board of Australia [2013] WASAT 28 at [24] and following). (3) Section 150(6) arguably requires that notice be given to the practitioner before any order of suspension, or any other order under that section has been made. The practitioner will always have an opportunity of addressing the decision-makers prior to any determination being made. (4) Nevertheless, the "draconian" nature of the power is such that great care needs to be taken to ensure that there is some proper and appropriate basis for making any order. This will involve an appropriate examination and consideration of the nature and extent of any misconduct alleged against the practitioner. The decision-maker "must feel an actual persuasion of the occurrence or existence of the relevant facts, under the Briginshaw principle or approach" (R and Medical Board at [28]). (5) It will also require the formation of a "reasonable belief... That because of the health practitioner's conduct (or) performance...., the practitioner poses a serious risk to persons, and that it is necessary to take immediate action to protect public health or safety" (R v Medical Board at [28]), or to do so otherwise in the public interest. This quotation needs to be qualified to the extent that "necessary" is not the test contained in the Act. (6) Any conclusions which are made in the course of determining that section 150 is enlivened are made for the purpose only of that determination, by reason of the ability to rely on information and material which may not otherwise be strictly admissible in administrative or judicial proceedings. (7) It is also necessary to consider the nature of the section 150 proceedings from which this appeal is brought. The provisions of section 150 have been set out above. We make the following observations about these provisions: (a) There are two requirements to be satisfied when determining whether the section is enlivened, namely the protection of the health or safety of any person or persons, and the public interest. (b) These requirements are expressed to be in the alternative. (c) The manner in which the introductory words of subsection (1) are expressed arguably creates some difficulty in interpretation, or perhaps some ambiguity. This is caused by the use of the word "otherwise" and the context in which it appears. On one view, it is possible to argue that the health or safety of a person or persons is "otherwise in the public interest", in the sense that health or safety are matters within the public interest. That is, public health and safety are within public interest, but in a different manner, or in other respects. The other view is that health or safety of persons is in the public interest in circumstances which are apart from or in a different or contrasting way from the public interest so that one does not include the other. The difference, in general terms, is between health and safety being subsumed generally within public interest, or health and safety being exclusive of public interest. If the former is correct, then arguably, it would not matter if either the delegates or this Tribunal determines the matter on either basis. If the latter is correct, then a decision based on public interest alone may not have been validly made if, in reality, the findings should more properly had been directed to the protection of the health or safety of any person or persons. It does not appear that this matter has arisen for consideration in any other reported proceedings. The respondent submitted that the provision operated so that "otherwise" would mean "in some other way". Therefore, the health and safety element is subsumed within the public interest. We do not understand the appellant to have made a contrary submission. As this approach to construction appears to us to reflect the overall intention of the section, we shall apply it for the purpose of these proceedings. (d) In any event, if either of the health or safety or public interest ground is made out, then it is mandatory that the Council either suspend or impose practice conditions, subject to the Council being satisfied that it is appropriate to do so for the stated reasons. (e) By subsection (4), action may be taken by the Council under section 150 whether or not a complaint has been made or referred to the Council about the medical practitioner. Accordingly, if information comes to the attention of the Council in whatever manner, the provisions of section 150 are enlivened. Of course, having regard to the nature and extent of the powers under section 150 it is a trite observation that the Council must observe the strictures imposed by section 150 (1), and must do so in a responsible and appropriate manner. It would be a rare situation if the Council determined to take action to suspend or otherwise impose practice conditions without having first notified the practitioner and given him or her some opportunity to explain his or her circumstances. Of course, one might envisage urgent situations arising where there might be no time or opportunity to notify the practitioner. The urgency and apparent gravity of the situation may dictate the nature and extent of the information relied upon in dealing with a matter. (f) A consideration of the public interest will always include the need for patients to have confidence in the competence of medical practitioners and that medical practitioners will exhibit traits consistent with the honourable practice of an honourable profession. Integrity, trustworthiness and high moral and ethical values are an integral part of the practice of medicine, as is compliance with regulatory requirements and codes of practice established by those responsible for the administration of the medical profession. The public must have confidence that medical practitioners who treat them exhibit these traits. (g) Section 150 empowers the Council to either suspend or impose conditions on the registration of the medical practitioner if circumstances warrant either of these steps. These powers are also available in circumstances where complaints have been initiated against a medical practitioner under the Act. The exercise of those powers by the Medical Tribunal is conditional upon findings of unsatisfactory professional conduct or professional misconduct. The process which we are undertaking is removed from any consideration of whether the medical practitioner might, at some stage, be found guilty of either unsatisfactory professional conduct or professional misconduct on the basis of some complaint which to date has not been initiated. We agree with the observations of Beech-Jones J in Berger previously set out, and we adopt the following from his Honour's judgement at [17] – [18]: .... to attempt at this point to predict what the Tribunal might decide at some indefinite point in the future risks distracting the Court from ascertaining what presently is necessary in the public interest. No doubt there are cases where professional misconduct is demonstrated against a solicitor but the Tribunal determines not to remove them from the roll or completely prevent them from practising because aspects of their conduct since the complaint may demonstrate that that step is not warranted. There is very little scope to consider such possibilities in this type of application.... In my view the appropriate approach is one that requires that the Law Society at first instance, and this Court on appeal, to be satisfied that the available material concerning a complaint against a practitioner demonstrates that the continued holding of a practising certificate by them pending its determination presents such an unacceptable risk to clients, the public generally or the administration of justice that it is necessary that their certificate be suspended. (h) There is very little consideration within the provisions of the Act as to the manner in which the Council or its delegates are to conduct themselves in determining whether the necessary preconditions to the use of the available powers under section 150 are satisfied. For present purposes, it is sufficient that we observe that the principles of natural justice, including procedural fairness, should apply to the extent reasonably necessary. The nature of the appeal 1. The form of appeal in these proceedings was lodged on the same day that the decision of the delegates was announced. At that time, no reasons for decision had been published. Accordingly, as counsel for the appellant properly submitted, the form and grounds for appeal will require further consideration and will require amendment. Obviously, the appellant should not be inappropriately prejudiced by the lack of specificity contained within the form of appeal when considering the outcome of these proceedings. As previously mentioned, the appeal is ostensibly brought under two provisions of the National Law being sections 159 and 159B. These are in the following form: 159 Right of appeal [NSW] (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession— (a) against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension; (b) against conditions imposed by the Council for the health profession on the person's registration under Division 3 or 4 or the alteration of the conditions by the Council; (c) against a refusal by the Council for the health profession to alter or remove conditions imposed by the Council under Division 3 in accordance with a request made by the person under section 150I; (d) against a decision by the Council for the health profession to give a direction or make an order in relation to the person under section 148E; (e) against a refusal by the Council for the health profession to alter or remove conditions imposed on the person's registration, or to end a suspension, imposed under Division 4 in accordance with a request made by the person under section 152K. 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) An appeal may not be made in respect of a request by a person that is rejected by a Council because it was made during a period in which the request was not permitted under section 150I or 152K. (3) The appeal is to be dealt with by reconsideration of the matter by the Tribunal and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council when it considered the matter, may be given. 1. For present purposes, I note that in connection with an appeal brought under section 159, the appeal proceedings will involve a hearing de novo including the ability to receive fresh evidentiary material and that the determination is to be made on the basis of the state of the evidentiary material as at that the date of determination. The only qualification is that in the case of suspension, the Tribunal on appeal is confined to either confirming the suspension or removing it, and has no power to impose conditions in lieu of suspension, even if this were thought to be an appropriate resolution of the controversy between the Council and the practitioner. 2. In my opinion, this will have important consequences for the determination of this stay application when considering the prospects of success of the appeal. Because the appeal itself will arguably be conducted by reference to evidentiary material available to the Tribunal at the time of the hearing of the appeal, it is appropriate to have regard to such material as is currently available before me when determining this aspect. Whilst initially counsel for the appellant was of the view that I should be confined in my consideration to the evidentiary material which was before the delegates at the time that they made their determination, I understand that counsel moderated this view during the course of his submissions. In any event, I propose to have regard to such material as I consider is appropriately before me when evaluating the prospects of success of the appeal for the purpose of the stay proceedings. 3. I next consider the alternative basis for the appeal as formulated by the appellant, namely section 159B, which is as follows: 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. At the present time, no potential or actual error of law has been identified by the appellant. In the circumstances, this will create some difficulty in evaluating the appellant's prospects of success on the appeal. I shall return to this aspect later in these reasons for decision. The "evidence" before the delegates of the Council 1. The delegates had before them a number of documents which I shall shortly summarise, and had the benefit of oral evidence given by the appellant who was represented at the proceedings before them by Mr W. Hunt of counsel (as he then was) and a solicitor. The documentation included a facts charge sheet provided by NSW Police. Included within this document is a summary of statements provided to investigating police officers by the employee concerned and a fellow employee who worked at the medical centre as a receptionist. The employee, aged 17, was interviewed by the appellant and the manager of the clinic for a position as a junior casual receptionist. She attended the clinic for a trial day, and was later informed that she would be employed at the clinic. She commenced work as an employee at about 1 PM on 14 July 2015. Part of her duties involved escorting patients into the appellant's surgery. The employee said that the appellant told her that she had a beautiful smile and made similar comments. He asked questions relating to her home life and invited her to dinner that night saying that other employees at the clinic would also be attending. He also asked her for her mobile phone number which she provided. She said that she was later told by the appellant not to tell the other employees about the dinner. When she received this information she sent the appellant a text message stating that she could no longer go to dinner. Later that day, the employee was told to attend the appellant's surgery. No one else was present. The appellant commenced talking to her about her home life and said words to the effect "I hope I'm not scaring you off." The employee said that she attempted to leave the office but the appellant closed the door and locked it, preventing her from leaving. 2. The facts charge sheet contains the following material, and the reference to "the accused" is obviously a reference to the appellant and the reference to "the victim" is obviously a reference to the employee concerned: The accused started kissing the victim to her face. At this time the victim had both fists clenched and close to her chest in an attempt to block the advances of the accused. The victim made attempt to push the accused away, however was unsuccessful. The accused slid both his hands, using open palms, down the victim's body to her bottom where he grasped the buttocks of the victim firmly. After a short time the accused moved his hands towards the front of the victim and over her pelvic area. The accused made attempts to grope the victim to the vagina area through her clothes before the victim pushed the accused towards his chest using open palms. The accused moved back from the victim, unlocked the door and allowed the victim to leave the office. The victim spoke with one of the receptionists, Lydia KIRK. The victim informed the receptionist of what had happened and that she no longer wants to be around the accused. The victim remained in the back office of the reception area for a period of time. During this period, the victim was crying uncontrollably and shaking. The accused walked to the reception area where he enquired as to where the victim was. The accused was informed of where the victim was by KIRK and that she didn't want to see him. The accused walked into the back room closing the sliding door behind him. KIRK made attempts to open the door but the accused jammed it from opening. The victim was alone in the room with the accused. Whilst inside the accused stated to the victim that she is to return to work the following day like nothing had happened and not to say a word to the other staff members. At one point in the presence of KIRK, the accused said, "I apologise. It won't happen again." The document also contains the following material: After the victim has left, KIRK went to the accused and said, "what did you do to her? She's petrified." The accused said, "what did she say?". KIRK said, "you kissed her, you grabbed her, you locked the door." The accused said, "I did not kiss her. I asked her if she wanted to go out for dinner tonight." 1. The facts charge sheet stated that the employee left the clinic and later attended Penrith police station. 2. There is also included within the documentation provided to the delegates, a recorded transcript of an interview conducted by police officers with the employee concerned. That statement is corroborative of the material contained in the police facts charge sheet. 3. There is no transcript available to me of what transpired at the proceedings conducted by the delegates of the Council. However, there is a narration in the published reasons of the delegates which refers to certain information provided by the appellant to them. No complaint was made to me during the course of the hearing of these proceedings that this material was inaccurate or otherwise incorrect. I reproduce the following extract from the reasons of the delegates: When asked about the conviction Dr Hanna said he had been poorly represented. He felt his conviction occurred because his barrister had omitted evidence. He said his barrister had refused to put into evidence certain statements from his staff. He also believes his barrister did not thoroughly cross-examine (the employee) as he did not wish to offend her. On appeal he was not permitted to introduce new information, which is why, in his view, the appeal failed. Dr Hanna intends to appeal the decision of the District Court. Dr Hanna described the assault as a "lapse of judgement". He asserted that he had done nothing criminal or against the law. He said that (the employee) had initiated contact and his lapse in judgement was in continuing with that contact. He said nothing that occurred involved force and (the employee) did not say 'no'. He believes she has embellished the circumstances for her own purposes, specifically to obtain victims compensation. When asked to describe his conduct in relation to (the employee), Dr Hanna said that he was aware she had personal difficulties; she had been thrown out of home by her father and had financial problems. He said he offered to take her to dinner, with a friend, because she had no money for food. After making this invitation, as she was leaving his office, he said to her "I hope I haven't scared you off". She then gave him a kiss. He said he continued with and participated in the kiss and this was his transgression. He denied that any other contact occurred. Following the kiss he said he sat at reception with (the employee) and another staff member, between patients, for about 30 minutes. He said they were talking and laughing together. During this time he showed (the employee) an amusing photograph he had taken of her wearing special laser glasses. After returning to his office he called (the employee) into the office. He offered her money for her telephone, knowing that she had insufficient funds to purchase credit for the phone. She started crying and shortly after that her friend collected her and he believes she then attended the Police Station. Dr Hanna said his error lay in becoming personally involved in (the employee's) difficulties. He felt he should not have paid her so much attention. He acknowledged his behaviour, in kissing her, was inappropriate. When asked about the reason for his 'lapse of judgement", he spoke of having too much empathy. He described himself as a person who cares about his staff and behaves more like a friend than a boss. He wants his clinic to be 'a fun place'. He also said he pitied (the employee). He said she was crying and was very fragile on that day and he tried to be a friend and to assist her. He said his intentions were good, but he had transgressed and was disgusted with himself. 1. Also included within the material made available to the delegates were a number of character references principally from employees at the clinic, including Ms Kirk, attesting to the appellant's good character and that he was a respected employer. There is also a statement by the appellant's "partner" of 19 years, Georgina Hanna dated 21 July 2016. She said that the appellant had been bankrupt for the last four years, had another four years before being discharged from bankruptcy and that his suspension would deprive the family of any income. 2. Further documentation indicates that by reason of his conviction, the appellant has been ordered to register on the Child Protection Register for a period of 8 years and, as such, is no longer permitted to treat any person under the age of 18. Once his registration expires in 2024, it appears that he will remain a Registrable Person for the remainder of his life. Additional "evidence" made available for the stay application 1. The respondent made available to me for the purpose of the hearing of the stay application, a copy of the brief of evidence provided by NSW Police which contained information and material, some of which was not available to the delegates. I have determined to receive it despite the objection of counsel for the appellant. This is because, firstly, the delegates and the Tribunal are entitled to receive such information and evidentiary material as is appropriate to allow them to be comfortably satisfied whether a suspension order is appropriate, and secondly, the appellant would surely have had access to this material for the purpose, at the least, of the District Court appeal and was therefore in a position to deal with it during the course of the proceedings before me. 2. It is from this material that I have extracted the full details of the charge made against the appellant. There is included within this material a number of statements made by investigating police officers which principally set out their involvement in the investigation of the complaint made by the employee. 3. Significantly, the material includes a statement made to an investigating police officer by Lydia Kirk concerning her observations of what occurred at the clinic on 14 July 2015. She recollected that at some time in the afternoon the employee came out of the appellant's surgery and sat behind her. The appellant then came to the reception area and had a discussion with her. She noticed that the appellant "had a strange coloured mark on the left to of his nose. Doctor HANNA has dark olive skin colour and I would say that the mark was a pale colour…." After the appellant left the reception area the employee had a conversation with Ms Kirk in which she told her that the appellant had grabbed her and kissed her and would not let her go. She noted that the employee "was starting to shake pretty badly and was crying uncontrollably and couldn't pull it together." Ms Kirk noted that the employee "was wearing a lot of make up and I could see that the foundation was lighter around her nose." 4. Ms Kirk said that at that stage the employee was in an office. The appellant later came out and went into the office and shut the sliding door. She said she tried to enter the office but something was stopping the door from sliding open. The appellant left the office a short time later and she asked the employee what he had said to her. She replied, "He said, it never happened. And not to tell her anything." 5. Ms Kirk said that a little while later the appellant asked her to put the employee in a room because he wanted to talk to her. She refused his request. The employee said that she did not want to talk to the appellant, and wanted to go home. The appellant came out and apologised to the employee, saying that "it won't happen again. Are you going to come in tomorrow." 6. After the employee left the clinic, the appellant called Ms Kirk into his surgery. She then had a conversation with him in which he denied that he had kissed the employee and said that he had only asked her if she wanted to come out with him that night. He said that he did not know that she was 17 years old. 7. Ms Kirk concluded her statement with the following: Since I have been working at the office, I do not know of any other similar incidents to this one. Towards me, Doctor HANNA is sometimes flirtatious and over interested, more so than the other doctors that work in the office. For example, he is always asking me about my personal life, like asking, "Did you get with anyone on the weekend." Other factual material provided by the appellant to the delegates 1. In their reasons for decision, the delegates noted the responses which the appellant had made to a number of questions which they had put to him, and the appellant's assertions concerning the nature and extent of his misconduct as reflected in his conviction for the offence. The delegates noted the following matters (and I have no reason to question anything contained in the published reasons): 1. The appellant did not seek any professional assistance in order to gain some insight into his conduct until about two weeks prior to the hearing before the delegates which took place on 25 July 2016. This was because he was "99% sure" his appeal would be successful". He consulted his GP who referred him to a psychiatrist, with whom he had made an appointment but not yet then seen. No later information is available to me concerning any psychiatric appointment. 2. The appellant said that he was aware of a counselling facility through his professional indemnity insurer, Avant, but was not sure what the service provided. He told the delegates that he hoped to ensure that his own health was "OK" through counselling because he felt "very anxious about the next appeal and is concerned about its effect on his mental health." The appellant had also spoken to his wife who was supportive. 3. The appellant has ceased treating any patients under the age of 18 and dismissed a junior member of staff who was under 18 years of age. I note that this presumably occurred because of the Protective Order which had issued. 4. The appellant told the delegates that the assault was "a personal matter, which does not reflect on his professional abilities." He denied that the conviction had any implications for him as a medical practitioner and that it had "nothing to do with the way I treat patients…. It has no relevance to the way I deal with patients." He asserted that he was aware of appropriate patient boundaries and that had never had a complaint concerning this issue during the last 28 years. 5. When referred to the fact that a criminal history to the extent that it was relevant to the practice of medicine might indicate unsuitability to be registered by reason of section 55 of the National Law, Dr Hanna said if a practitioner had been convicted of a physical assault '10 times' or if he had committed a serious crime, such as murder, which might reflect on his general behaviour, this might indicate he is not a fit and proper person. However, he had "a temporary lapse of judgement" which had never happened before and which would not happen again. 6. The appellant was questioned concerning the power imbalance concerning his relationship with the 17-year-old employee. The reasons contain the following: The delegates put to Dr Hanna that there was a power imbalance in his relationship with a 17 year old girl who was his employee and this was analogous to the power imbalance which exists in a doctor-patient relationship. He agreed there was a comparable power imbalance, but said he was not aware that (the employee) was 17 years of age. He said it was not his intention to take advantage of a minor. He had employed "hundreds of girls" and never had any complaints. He said, "I don't need to chase young women." 1. The reasons of the delegates also contain the following pertinent references to what was said to them by the appellant: Dr Hanna also said there was a difference between patients and staff. He said patients are in a 'different zone' and because of his medical training he knows the ethical boundaries with patients. Dr Hanna explained that he had developed his understanding of medical ethics through the Medical Board's Good Practice Guide, risk assessments undertaken by Avant and general information he picked up at conferences. Dr Hanna also noted that the majority of his patients are elderly women. He feels he is not a risk to the public. He said, "I treat skin cancer. I do not counsel young people. Dr Hanna asserted that his conviction did not reflect on his clinical practice. When again asked whether his 'lapse of judgement' reflected on his management of himself as a medical practitioner, Dr Hanna said he was 'not perfect' and had been weak, but he had addressed these matters with his wife and GP. When asked how he could assure the delegates such an assault would not occur again, Dr Hanna said, "never before, never again"; I'm disgusted with myself; "I respect women"'. He said he was very upset that his mother is aware of his conviction and feels a strong sense of shame about this. Other matters – prior conduct issues 1. Section 41O of the National Law is in the following terms: 41O Other matters to be taken into account [NSW] In the exercise of any of its functions under Subdivision 2 or 7 of Division 3 of Part 8 with respect to a complaint about a registered health practitioner or a student, a Council must have regard to any of the following matters, to the extent the Council reasonably considers the matter to be relevant to the complaint- (a) another complaint or notification about the practitioner or student made to the Council or the National Agency, or made to a former Board under a repealed Act, including a complaint- (i) in respect of which the Council, the Commission or a National Board has decided no further action should be taken; and (ii) that is not required to be referred, or that the Council or the Commission decides not to refer, under Division 3 of Part 8; (b) a previous finding or decision of a Council inquiry in relation to the practitioner or student; (c) a previous finding or decision of a board inquiry, professional standards committee or a tribunal established under a repealed Act in respect of the practitioner or student; (d) a written report made by an assessor following an assessment of the practitioner's professional performance; (e) a recommendation made, or written statement of decision on a performance review provided, by a Performance Review Panel in relation to the practitioner. 1. It will be observed that section 41O only applies where the Council is considering a complaint made against a health practitioner. It is unclear on the material made available to me that any form of complaint had been made to the Council or otherwise existed at the time that the delegates conducted the proceedings. It is clear that as a result of the decision of the delegates that a complaint was initiated and referred to the HCCC, but in the absence of any other indication of the existence of a complaint at the relevant time, I am not prepared to consider a number of other prior conduct matters involving the appellant which preceded the initiation of the proceedings before the delegates. In addition, this was not a matter which was raised during the course of the proceedings before me and it would be unfair in the circumstances for me to take into account any matter which might arguably be adverse to the interests of the appellant without it having been raised with and considered by those advising him. Other matters – failure to notify of conviction 1. Section 130 of the National Law requires a medical practitioner to notify relevant authorities of certain matters. It is in the following terms: 130 Registered health practitioner or student to give National Board notice of certain events (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board that registered the practitioner or student written notice of the event. (2) A contravention of subsection (1) by a registered health practitioner or student does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. (3) In this section- "relevant event" means- (a) in relation to a registered health practitioner- (i) the practitioner is charged, whether in a participating jurisdiction or elsewhere, with an offence punishable by 12 months imprisonment or more; or (ii) the practitioner is convicted of or the subject of a finding of guilt for an offence, whether in a participating jurisdiction or elsewhere, punishable by imprisonment; or (iii) appropriate professional indemnity insurance arrangements are no longer in place in relation to the practitioner's practice of the profession; or (iv) the practitioner's right to practise at a hospital or another facility at which health services are provided is withdrawn or restricted because of the practitioner's conduct, professional performance or health; or (v) the practitioner's billing privileges are withdrawn or restricted under the Medicare Australia Act 1973 of the Commonwealth because of the practitioner's conduct, professional performance or health; or (vi) the practitioner's authority under a law of a State or Territory to administer, obtain, possess, prescribe, sell, supply or use a scheduled medicine or class of scheduled medicines is cancelled or restricted; or (vii) a complaint is made about the practitioner to an entity referred to in section 219(1)(a) to (e); or (viii) the practitioner's registration under the law of another country that provides for the registration of health practitioners is suspended or cancelled or made subject to a condition or another restriction; or (b) (omitted) 1. The reasons for decision of the delegates note the failure of the appellant to inform the relevant authority of the fact that he had been charged with the offence as required by section 130. His explanation was that he thought that he was only required to make such a notification upon conviction. In the same way, the appellant said that he had failed to notify the relevant authority of the conviction for aggravated indecent assault in the Local Court because he had lodged an appeal. 2. In due course, it will be necessary to consider this matter in the context of a determination as to the prospects of a successful appeal. A lack of evidence 1. I note that the version of events relied upon by the appellant when informing the delegates during the course of the proceedings before them is at considerable variance with the allegations made by the employee concerned. Although the appellant provided evidence (whether of a formal or informal kind I am unaware) to the delegates he did not give evidence in the proceedings conducted before me. The respondent's counsel informed me that her client did not have possession of the transcript of the proceedings before the Local Court or the District Court nor did the respondent have possession of the reasons for judgement delivered by either court. The appellant through his counsel made no mention of the existence of such documentation, nor whether any attempt had been made by the appellant or those acting on his behalf to obtain it. In circumstances where there is a marked variance between the versions of what occurred given by the employee concerned and the appellant, it might be thought that the results of any forensic enquiry and examination before a court, albeit dealing with a criminal matter, might have been of assistance to the delegates, and might have been of assistance for the purpose of my evaluation of the prospects of success of the appeal. I shall return to this matter later in these reasons for decision. The appellant's submissions 1. Counsel for the appellant relied substantially on submissions which had been put on behalf of his client by his former counsel before the delegates and which were summarised in the published reasons of the delegates as follows: Submissions Mr Hunt made submissions on behalf of Dr Hanna. It was submitted that the Medical Council's concern about a practitioner's fitness to practise may be triggered if the practitioner is convicted of a serious misdemeanour or one involving multiple victims. However in Dr Hanna's case the circumstances can be understood to involve a spontaneous, opportunistic action, which was fleeting and non-violent. It was acknowledged that the assault was connected with Dr Hanna's medical practice in that it occurred on the premises of his clinic and in relation to an employee of that clinic. However, it was not a patient who was assaulted. It was also Dr Hanna's first offence. Although aggravated indecent assault is a serious matter, it was submitted that there are a number of protective factors, which mitigate against the health and safety of the public being at risk. They are as follows: Dr Hanna now has no staff under eighteen years of age; He has ceased to see patients under eighteen years of age; He has discussed the assault with his wife, his general practitioner, other doctors and staff at the medical centre; He plans to see a psychiatrist and undertake counselling; He does not have an unblemished record with the Council, but his previous problems related to his clinical competence and professional performance; Dr Hanna's insight and resolve support his assertion that such behaviour will not recur; Dr Hanna believes that no action is required, but will accept a chaperone condition on his registration. Dr Hanna may have failed to notify the proper authorities when he was charged and then later convicted, but he misunderstood his obligations at the time. Overall, it was submitted that the health and safety of the public can be protected through the imposition of conditions on Dr Hanna's registration. The respondent's submissions 1. I shall refer to the submissions made on behalf of the respondent during the course of my consideration of the resolution of these proceedings because I am substantially in agreement with them. Consideration 1. I have previously referred to the principles which govern the exercise of discretion in determining whether to grant a stay. In applying those principles to these proceedings, it is necessary to direct attention principally to two matters, namely the appellant's prospects of success on appeal and the balance of convenience. The prospects of a successful appeal 1. I should emphasise that in assessing the prospects of success of the appeal, it is necessary to consider the relevant principles which apply to a consideration of the circumstances which would properly justify the making of an order for suspension under section 150 of the National Law. I have set those principles out earlier as contained within the extract of the Decision in Crickitt (No 2). 2. There can be no doubt that the appellant has been convicted of a serious offence, and that conviction has been upheld on appeal to the District Court. It follows that the 17-year-old employee has firstly, been assaulted and, secondly, that the appellant has committed an act of indecency on or in her presence. The fact that the offence carries a maximum penalty of imprisonment for 7 years is of itself indicative of its gravity. There can be no doubt on the basis of the information and material reasonably and appropriately available that the Tribunal can be comfortably satisfied that the elements of the offence have been proven to the criminal standard. 3. I should emphasise also that even if the appellant were successful in his further appeal to the Court of Criminal Appeal, this would not necessarily impact upon the ultimate maintenance of any complaint against the appellant under the National Law, should the HCCC determine to prosecute such a complaint, because the Briginshaw standard will apply to the determination of whether the complaint is upheld as opposed to the criminal standard of proof. 4. I have previously noted that the respondent was unable to assist the Tribunal for the purpose of these proceedings with any documentation or other information concerning the nature and extent of the evidence produced in the criminal proceedings before the Local Court and on appeal to the District Court, including any reasons for decision published by either court. The appellant did not proffer any such material, and no mention was made on behalf of the appellant about whether the appellant had such material available to him. 5. The respondent urged upon me that I should approach the matter on the basis that the version of events as contained in the statement given by the employee to the police should be accepted. I had some initial reservations about whether I should do so because I am unsure whether the act of indecency of which the appellant has been found guilty would extend to the fact that he had, on his own admission, kissed the employee in response to what he said was a kiss initiated by her, or whether the act of indecency extended to him grabbing her buttocks and placing a hand over her vaginal area. In considering this matter, I note that the appellant has given two different versions about what occurred. He told Ms Kirk immediately after the incident that he had not kissed the employee and that he had merely asked her out to dinner. He told the delegates during the course of the hearing before them that he had kissed the employee, but only in response to a kiss initiated by her. Prima facie, this is indicative of untruthfulness on the part of the appellant which must give rise to some concern about acceptance of his overall denial of what occurred. I note also his assertion to the delegates that the employee had concocted the story in order to make a claim for victim's compensation. That assertion was firmly rejected by the delegates. There is corroborative material that, at the least, the appellant kissed the employee. Ms Kirk noted that part of the employee's make up was missing from her nose, and that what appeared to be make up was present on the appellant's face. Furthermore, the story propounded by the appellant to Ms Kirk that he had invited the employee concerned out to dinner contains an air of unreality, or at the least, abnormal behaviour. I would regard an invitation to dinner extended by the appellant to a 17-year-old girl on her first day of work given the age of the appellant (51) with teenage children and a partner of 19 years as representing abnormal behaviour by reference to general community standards, as I understand them. Furthermore, there is a marked inconsistency between the version of what occurred following the incident as narrated by the appellant to the delegates when compared with the statements made by the employee and Ms Kirk. The appellant said that he had sat at the reception with the employee and another staff member between patients for about 30 minutes after "the kiss" and that they were talking and laughing together. He said that he had shown the employee "an amusing photograph he had taken of her wearing special laser glasses." Again, this is inconsistent with the version of events given by the employee and Ms Kirk. 6. In all the circumstances, for the purpose of determining the merits of the appeal initiated by the appellant against the suspension order of the delegates, and having regard to the applicable principles to which I have earlier referred, I am comfortably satisfied that the material which is available would allow the Tribunal to conclude that the incident occurred as narrated by the employee in the statement which she gave the same day to the police, and that on the state of the evidentiary material made known to me that the Tribunal would not find to the contrary. Even if this conclusion was erroneous, the elements of the offence of which the appellant stands convicted both at first instance and on appeal to the District Court are of themselves, of a most serious kind. 7. In considering the merits of the appeal for the purpose of this stay application, I take into account that the accepted misconduct of the appellant is, prima facie, inconsistent with conduct expected by the public of a medical practitioner. The employee concerned was aged 17 and, on the appellant's admission was a vulnerable person. No explanation has been proffered for the appellant's conduct, other than his own subjective assessment. It is obvious that there were sexual overtones and connotations associated with the appellant's conduct. It is notorious that conduct of this kind is incompatible with the standards expected by the public of medical practitioners, who may from time to time be called upon to treat vulnerable female patients. It is not necessary to cite authority for such an obvious proposition, and I refer generally to the well-known and often repeated comments of the New South Wales Court of Appeal in Health Care Complaints Commission v Litchfield [1997] NSWSC 297. (I would refer also to the well-known comment by the Court in that decision that if the only means by which a medical practitioner could safely conduct a practice with female patients would involve the presence of a female chaperone, this would prima facie be inconsistent with fitness to practice medicine. I shall refer to this matter again later in these reasons for decision.) 8. There is no satisfactory explanation available to the Tribunal from any person with any expertise in the realm of human behaviour to provide some understanding as to why the appellant engaged in this conduct, to provide some assessment as to whether, and to what extent, the appellant might again engage in such conduct whether with a patient or any other person, and whether the appellant needs to undertake some form of treatment, including therapy, which would create some confidence that such conduct is not likely to reoccur. 9. I reject the submissions made on behalf of the appellant that what occurred was nothing more than an isolated event and should be regarded as such. The conduct of the appellant was of such a serious kind demonstrating, as I have said, behaviour inconsistent with that which would be expected of a medical practitioner, that it cannot be dismissed in such a facile fashion. Furthermore, the narration given by the appellant to the delegates in the course of the hearing before them indicates a lack of insight into his behaviour; he is more concerned about the impact of the conviction on him personally than the impact of the incident on the employee. 10. The appellant emphasised that his conduct was directed to an employee and that there was a vast difference between conduct of this kind and similar conduct engaged in with a patient. He sought to distance his conduct with the employee from his practice of medicine. In the absence of any objective explanation given by a person with expertise in assessing the reason for the conduct of the appellant, there can be no certainty that whatever motivated the appellant to behave in this unfortunate manner with a young vulnerable female would not motivate him to seek to behave in the same way with a female patient, of whatever age, and whether vulnerable in some manner or not. 11. In all the circumstances, there were and remain compelling reasons why the appellant's registration should be suspended for the protection of his female patients, whether past, existing, or future. 12. During the course of their reasons, the delegates made the following comment: Whether or not Dr Hanna is a fit and proper person to retain his registration will be decided in another forum. The delegates at these section 150 proceedings have to determine whether Dr Hanna is at present a risk to the health and safety of the public or whether it is in the public interest that some action be taken in relation to him. The delegates accept that female patients may be safeguarded by Dr Hanna having a female chaperone presents during consultations and procedures with female patients and so to that extent, the health and safety of the public may be protected by the imposition of chaperone conditions on Dr Hanna's registration. 1. The appellant fastened on these paragraphs to support an argument that the delegates had concluded that he could practice medicine safely, albeit with appropriate chaperone provisions. There are three answers to this argument. Firstly, the observations by the delegates are inconsistent with observations in the New South Wales Court of Appeal in Litchfield, referred to above to the effect that the necessity for imposing conditions of this kind on registration ipso facto demonstrates unfitness to practice medicine. Secondly, the provisions of section 159 of the National Law only allow the Tribunal on appeal to either uphold the suspension or to lift it. There is no power to lift the suspension on the basis that the imposition of practice conditions would provide appropriate protection for the public. This defect in the provision means that if on the appeal the Tribunal was of the opinion that it was appropriate to lift the suspension provided only that relevant practice conditions were imposed, it would not be permitted to do so. Accordingly, on appeal if the Tribunal were to conclude that the appellant could safely practice medicine provided a chaperone condition was imposed on his registration, as a matter of logic it would be forced to conclude that he could not safely practice medicine and it would be compelled to maintain the suspension. The third answer to this argument is that in circumstances where the delegates clearly held that it was otherwise in the public interest that the appellant's registration be suspended, success in pursuing this argument would not of itself result in success on the appeal. 2. It follows that conduct of the kind engaged in by the appellant and which has manifested itself in the criminal conviction of aggravated indecent assault is demonstrative of conduct against which the public is entitled to be protected at the hands of a medical practitioner. Furthermore, it follows that such conduct, being indicative of unfitness to practice medicine, it is in the public interest that is a consequence the registration of the appellant should be suspended. 3. In summary, the evidentiary material which is available for the purpose of considering this stay application, and the evidentiary material which was available to the delegates overwhelmingly justifies a conclusion that the conduct of the appellant was such that the suspension of the registration of the appellant by the delegates of the Council was entirely justified. Such a conclusion remains overwhelmingly justified on the basis of the state of the evidentiary material adduced before me in these proceedings. It follows that the appellant is unlikely to succeed in his appeal to the Tribunal under section 159 of the National Law. 4. There remains for consideration the prospects of success on an appeal under section 159B. No error of law has been identified by the appellant upon which the appeal based on this provision could be maintained. It would be inappropriate to consider the stay application on the basis that some arguable error of law might emerge. I propose to proceed accordingly. At the present time, there can be no basis to conclude that the appellant has any arguable case under section 159B. If a relevant error of law is identified at a later stage, the appellant could then pursue a stay application. The balance of convenience 1. The appellant relied substantially on the adverse consequences of his suspension on his financial position, the impact that his suspension would have on the well-being and welfare of his family, and the impact of the suspension for his patients and for his medical practice generally. Whilst these are matters which are arguably relevant to a consideration of the balance of convenience in determining whether a stay should be granted, they must be taken into account within the context against which this stay application is being considered. The suspension the subject of the appeal was put in place for the protection of the public and in the public interest. The consequential matters relied upon by the appellant assume much less significance where a determination has been made under section 150 that mandates the suspension of the appellant's registration. The greater the justification for the making of an order of suspension, the less consideration should be given to the significance of the impact upon the appellant, his family, his patients and his practice. 2. Furthermore, as the respondent submitted, there is simply no information available to me which has been adduced by the appellant concerning the structure of his practice, the financial arrangements which apply to the practice, and whether and to what extent alternative arrangements can be made for some other practitioner to be engaged to service the practice and the patients whilst his suspension is in effect. Accordingly, if I were to accept the submission of the appellant concerning the consequences of his suspension, it would have to be assessed on an inappropriate hypothetical basis. This provides a further reason for rejecting this argument in determining the balance of convenience. In the same way the fact of the appellant's bankruptcy does not per se create any factor that would favour the grant of a stay. 3. For completeness, I note the failure of the appellant to comply with his obligations under section 130 of the National Law. His explanation that he was unaware of the necessity to notify concerning the laying of the charge might be acceptable, but his failure to notify his conviction in the Local Court because he had lodged an appeal cannot be so regarded. It is arguable that this latter failure has resulted in considerable delay in the institution of any complaint against him and the consideration of his suspension under section 150. He has thus benefited from his failure to comply with this important provision. In circumstances where I have already concluded that there is no balance of convenience consideration in favour of the grant of a stay, I would characterise this as an aggravating factor which justifies the conclusion to which I have come. 4. Accordingly, there is no matter which should be taken into account in considering the balance of convenience which would persuade me to exercise any discretion to stay the order for suspension as sought by the appellant, especially in circumstances where I have concluded that it is unlikely that the appeal will succeed. Conclusion 1. In circumstances where I have concluded that the appellant's appeal is unlikely to succeed, and that there are no relevant factors which would indicate that a contrary order should be made on the balance of convenience, it follows that the application for a stay should be refused. Costs 1. The parties requested that costs be reserved, and I shall do so. Orders 1. Consequent upon the reasons set out above I make the following orders: 1. The application for a stay of the order of suspension is refused 2. Costs are reserved with liberty to apply. 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 August 2016