EFQ (a pseudonym) v Medical Council of New South Wales

Court of Appeal (NSW)|2021-05-24|Before: Bell P, Macfarlan JA, Brereton JA

P E King (Applicant) A Stafford (Respondent)

Health Professional Councils Authority (Respondent) File Number(s): 2020/363923 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure and/or publication of the name of the medical practitioner who has been allocated the pseudonym "EFQ" and/or the name of any patient referred to in the evidence, is prohibited. Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Occupational Division Citation: [2020] NSWCATOD 135 Date of Decision: 26 November 2020 Before: Le Poer Trench ADCJ, Principal Member File Number(s): 2019/344001

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The Applicant, EFQ, sought leave to appeal from an interlocutory decision of the Occupational Division of the Civil and Administrative Tribunal of New South Wales (the Tribunal), in which the Tribunal refused to grant EFQ an extension of time in which to appeal from a decision of the Medical Council of NSW (the Council) of 24 October 2018. The Council had imposed a temporary condition on EFQ's registration as a registered health practitioner, pursuant to s 150 of the Health Practitioner Regulation National Law (NSW) (the National Law), being that EFQ "not practise medicine". The Council delivered its reasons for imposing this condition on 20 December 2018. On 9 January 2020, just over a year after the Council delivered its reasons, EFQ filed an External Appeal Form in the Tribunal's Occupational Division identifying seven grounds of appeal from the Council's decision. The appeal came on for hearing before the Tribunal on 20 February 2020, with EFQ confining her appeal to one made under s 159B of the National Law. In the course of the hearing before the Tribunal, EFQ submitted that her appeal was of right and that no extension of time was required. However, the Tribunal held that an extension of time was required, and refused EFQ an extension of time within which to appeal. The principal issues on the hearing of the application for leave to appeal were: 1. whether the Tribunal was correct to conclude that an extension of time was required; 2. whether the Tribunal's discretion miscarried in refusing EFQ an extension of time on the basis that there had been an error in point in law when it concluded that the Council did have the power to impose a temporary condition that a health practitioner not practise medicine; 3. whether the Tribunal's discretion miscarried in refusing EFQ an extension of time on the basis that it had taken an erroneous view in respect of EFQ's contention that she had been denied procedural fairness by the Council. The Court held (Bell P, Macfarlan and Brereton JJA agreeing), granting leave to appeal but dismissing the appeal with costs: 1. The Tribunal was correct to conclude that an extension of time was required: [11]-[16] (Bell P); [78] (Macfarlan JA); [79] (Brereton JA). 2. EFQ's argument that there was no time limit for filing an appeal on a point of law, which rested entirely on reading s 161 of the National Law in isolation, was incorrect. As a matter of statutory interpretation, this provision had to be read contextually with cognate legislation which included relevant provisions in the Civil and Administrative Tribunal Act 2013 (NSW) and the Civil and Administrative Tribunal Rules 2014 (NSW): [15] (Bell P); [78] (Macfarlan JA); [79] (Brereton JA). Sweeney v Fitzhardinge (1906) 4 CLR 716; [1906] HCA 73; Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719; and Will v Brighton (2020) 104 NSWLR 170; [2020] NSWCA 355, considered. 1. The Council had power, pursuant to s 150(1)(b) of the National Law, to impose a condition on an interim basis that a doctor not practise medicine, and the Tribunal's discretionary decision not to grant an extension of time was not vitiated by any error of law in this respect: [28]-[39] (Bell P); [78] (Macfarlan JA); [79] (Brereton JA). Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122, considered and applied. 1. The Council's refusal to grant EFQ's adjournment request in relation to the hearing before it, in circumstances where she had been given sufficient notice of the hearing, where an interim protective jurisdiction was being exercised and where the application for an adjournment was raised only the day before the hearing was scheduled, was not legally unreasonable, and the Tribunal's discretionary decision not to grant an extension of time was not vitiated by any error of law in this respect: [40]-[75] (Bell P); [78] (Macfarlan JA); [79] (Brereton JA). Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11; Cuttler v Browne (2010) 201 IR 141; [2010] QCA 346; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18; Lewis v Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory (2013) 280 FLR 118; [2013] ACTSC 198, considered. 1. A party which is given ample notice of a hearing cannot complain that there has been a denial of procedural fairness where he or she declines to participate in the hearing and the hearing proceeds in accordance with the adequate notification. Procedural fairness requires an adequate opportunity to participate to have been given, and a denial of procedural fairness cannot be generated by a deliberate or conscious decision not to participate in a hearing of which sufficient notice has been given: [67] (Bell P); [78] (Macfarlan JA); [79] (Brereton JA). 2. The Tribunal did not err in its decision to refuse an extension of time in which to appeal: [76] (Bell P); [78] (Macfarlan JA); [79] (Brereton JA).

Judgment

BELL P: This is an application for leave to appeal from an interlocutory decision of the Occupational Division of the Civil and Administrative Tribunal of New South Wales (the Tribunal) delivered on 26 November 2020: see EFQ v Medical Council of NSW [2020] NSWCATOD 135. An appeal on a question of law from such a decision lies, subject to a grant of leave, pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). The application comes before the Court of Appeal as the Tribunal was constituted by Le Poer Trench ADCJ: see Supreme Court Act 1970 (NSW) s 48.
Although expressed in terms of a refusal of leave to appeal, the Tribunal's decision was to refuse to grant the applicant, who will be referred to by the pseudonym EFQ (as she was referred to in the Tribunal), an extension of time in which to appeal from a decision of the Medical Council of NSW (the Council) of 24 October 2018. On that occasion, the Council had, pursuant to s 150 of the Health Practitioner Regulation National Law (NSW) (the National Law), relevantly imposed a condition on EFQ's registration as a registered health practitioner. The condition was that EFQ not practise medicine. Reasons for the imposition of this condition were provided by the Council on 20 December 2018. It was also on this date that EFQ was notified of the Council's decision. The Council also referred EFQ to an Impaired Registrants Panel, subject to the consultation conditions of s 150F of the National Law.
By s 150H(2) of the National Law, the condition imposed, namely that EFQ not practise medicine, was a necessarily temporary one, having effect only until the first of the disposal of the complaint about EFQ that had been made to the Health Care Complaints Commission (HCCC) on 9 February 2018 (the Complaint), or the removal of the condition by the Council. The referral to an Impaired Registrants Panel was also of an interim character: see s 150I(2) of the National Law. The Council first contacted EFQ for her comment in relation to the Complaint against her in August 2018, and she responded to the allegations in issue on 24 September 2018.
On 1 November 2019, EFQ filed an Administrative Review Application Form in the Tribunal's Occupational Division in relation to the Council's decision of 24 October 2018 to impose conditions on her registration. Under the sub-heading "Grounds for Application", it was stated that the grounds upon which the Council relied were "fabricated and vexatious". There then followed a detailed and emotive complaint about alleged harassment that EFQ had felt in her professional life, which included the circumstances of her termination from a position at the Redbank House clinic in January 2018 following the receipt of two complaints by mothers of child patients in relation to EFQ. It was noted in the Form that EFQ had received correspondence from the Council advising that it had planned a s 150 hearing under the National Law, but that "[t]hey refused to adjourn it until I could appear with legal representation" and that "the decision was made without seeing me or interviewing me and determined by email". The grounds also stated that the "conditions are such that a change to life circumstances is necessary into [sic: in] order to appeal."
On 9 January 2020, EFQ filed an External Appeal Form in the Tribunal's Occupational Division which identified some seven grounds of appeal from the Council's decision of 24 October 2018. These grounds of appeal were as follows: "(1) The Applicant seeks to the [sic] Appeal the decisions of the Medical Council of NSW of section 159 and 159B of the Health Practitioner Regulation National Law (NSW). (2) The complaints the Medical Council of NSW have relied from the Western Sydney Local Health District are vexatious and make false representations of the Applicant as well as the creation of false events that never occurred as a form of psychiatric reprisal and gaslighting. These complaints were created by the staff (not patients and families) of the Western Sydney Local Health District at Westmead Hospital as a form of bullying and harassment of the Applicant after she left the Western Sydney Local Health District and of which she was never advised. (3) Her services were terminated by [the complainant], when the Applicant stated to him, in passing, that there had been unlawful access to her online accounts, that her internet traffic has been flagged and that she has been the victim of identity fraud. (4) The decision published by the Medical Council of NSW on 24 October 2018 con[ta]ined insufficient detail to give the Applicant a factual basis upon which to appeal. She only received by email on 21 December 2018 reasons for the Medical Council's decision which also state on page 6 that 'It was not the purpose of this (their hearing) to consider conflicting accounts of [EFQ]'s employment and subsequent termination at Redbank House' indicating there was no intention to offer the Applicant procedural fairness and that is why the Applicant needed to commence proceedings in the Supreme Court. The Medical Council admits that they would not consider any other version of events supplied by the Applicant as relevant such that that is unlawful and suggests a conspiracy in the protection of WSLHD over the Applicant and to deny the Applicant access to the medical records relating to the complaint. (5) The Applicant reports bullying and harassment by the Medical Council of NSW on behalf of and in the interests of the Western Sydney Local Health District. (6) MCNSW has not complied with Sc150 of the National Health Practitioner Regulation Law (NSW) Subdivision 7 Powers of a Council for the protection of the public (NSW) where there are errors of multiple points of law. (7) The Medical Council of NSW denied the Applicant a hearing in person with legal repres[e]ntation where no reasons for an urgent hearing could be justified."
The External Appeal Form also contained, under the heading "Late Appeals", a detailed set of reasons why "the Applicant has needed to file the Appeal out of time".
The appeal came on for hearing before the Tribunal on 20 February 2020. EFQ confined her appeal to one made under s 159B of the National Law, which provides that a registered health practitioner who is the subject of action taken by the Council for the health profession under s 150 of the National Law may appeal, with respect to a point of law, to the Tribunal.
Although, as has been noted, in completing the External Appeal Form, EFQ evidently considered that her appeal was out of time, in the course of the hearing before the Tribunal, EFQ who, by that point in time, was represented by Mr King, submitted that her appeal was of right and that no extension of time was required. This submission was rejected, but has been repeated on appeal.
If the submission is correct, the Tribunal was wrong to refuse an extension of time because such an extension was, ex hypothesi, unnecessary. If the submission is incorrect and EFQ did require an extension of time, EFQ's challenge to the Tribunal's decision is a challenge to an interlocutory decision involving an exercise of discretion adverse to EFQ, and leave is thereby required pursuant to cl 29(6)(a) of Sch 5 of the NCAT Act. As such, to succeed on any application for leave to appeal to this Court and in any ultimate appeal, EFQ must satisfy not only the criteria for a grant of leave to appeal, but must also overcome the strictures limiting interference with a discretionary decision in accordance with the well-known principles in House v The King (1936) 55 CLR 499; [1936] HCA 40.
It is desirable first to consider whether or not EFQ required an extension of time within which to appeal from the Council's decision. For reasons explained below, the Tribunal was correct to conclude that an extension of time was required. After explaining my reasons for reaching that conclusion, it will be necessary next to examine whether the Tribunal's discretion miscarried in refusing EFQ an extension of time within which to appeal.

Was an extension of time required to appeal from the Council's decision?

EFQ's argument that no extension of time was required was built on a submission that, whilst s 161 of the National Law provided that: "An appeal under this Division or Division 14A, other than an appeal on a point of law, must be made- (a) within 28 days after the day the person making the appeal was given notice of the decision being appealed against; or (b) within the longer period allowed by the Tribunal", the National Law specified no time period in which an appeal on a point of law such as was contemplated by s 159B had to be brought. Accordingly, it was submitted that there was no fixed time period and, as such, an extension of time was not required.
This argument overlooked the fact that s 31(1) of the NCAT Act confers on the Tribunal "external appeal jurisdiction" over a decision (or class of decisions) made by an external decision-maker if legislation provides that an appeal may be made to the Tribunal against any such decision (or class of decisions). An "external decision-maker" is simply defined in s 4 of the NCAT Act as a "decision-maker who is external to the Tribunal". It was accepted that the Council met that description and, as has been seen, s 159B of the National Law was legislation which provided for such an appeal.
Rule 25(4) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules) provides that: "Unless the Tribunal grants an extension under section 41 of the Act, an external or internal appeal must be lodged- (a) in the case where the enabling legislation specifies the period within which the appeal is to be made-within the period specified, or (b) in the case of an internal appeal against a decision made in residential proceedings-within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later), or (c) in any other case-within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later)."
The simple tracking through of the relevant legislation and statutory rules supported the view, to which the Tribunal came, that EFQ did require an extension of time within which to bring her appeal. In that context, s 41 of the NCAT Act provided that: "(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired."
The Tribunal was correct in its conclusion, and EFQ's argument that there was no time limit for filing an appeal on a point of law was wrong. As an argument, it rested entirely on reading s 161 of the National Law in isolation. That is the wrong approach. It is a cardinal principle of statutory interpretation that legislation must be read as a whole and in its context. As Sir Anthony Mason said in K & S Lake City Freighters Proprietary Limited v Gordon & Gotch Limited (1985) 157 CLR 309 at 315; [1985] HCA 48, "[t]he modern approach to interpretation insists that the context be considered in the first instance". In some cases, the statutory context will extend beyond the immediate statute in which a given provision sits, to cognate legislation or Acts "in pari materia" which apply or relate to the same subject matter as the section in question: see P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) at 8.280; Sweeney v Fitzhardinge (1906) 4 CLR 716 at 726; [1906] HCA 73; Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 722-724; and Will v Brighton (2020) 104 NSWLR 170; [2020] NSWCA 355 at [46]-[48]. Here, s 161 of the National Law must be read contextually with the provisions of the NCAT Act and the Rules relating to appeals.
It follows that, as the Tribunal concluded, EFQ required an extension of time in which to bring her appeal to the Tribunal. That conclusion leads to the question whether the Tribunal's discretion miscarried in a way that manifested an error that would warrant a grant of leave to appeal in or to this Court and that would justify appellate intervention.

Did the Tribunal's discretion not to grant an extension of time miscarry?

In approaching the question whether or not to grant an extension of time, the Tribunal identified the relevant principles to be applied in a way that was not controversial, referring in this context to Gallo v Dawson (1990) 64 ALJR 458; [1990] HCA 30; Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson); Khan v Medical Council of NSW [2016] NSWCATOD 88; Roberts v Nursing and Midwifery Board of Australia [2017] NSWCATOD 109; and Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55] (Tomko).
From the summary supplied in Jackson at [22], the following four factors of relevance to the exercise of the extension discretion were identified: (1) the length of the delay; (2) the reason for the delay; (3) whether the applicant has a fairly arguable case; and (4) the extent of any prejudice suffered by the respondent to the application.
Also noted in Jackson was the observation of Hodgson JA in Tomko at [14], namely that: "…there may be circumstances where it is appropriate to go further into the merits of the case of a person seeking an indulgence such as this, than to ask whether or not the case is fairly arguable. If such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice, then a fairly arguable case is sufficient. However, if the explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, then it may be relevant that the person seeking the indulgence shows that his or her case has more substantial merit than merely being fairly arguable."
The delay in question in the present case between the decision of the Council and the filing of appellate process in the Tribunal was lengthy, being slightly over a year, with EFQ's appeal being filed on 9 January 2020 and the Council's reasons for imposing the condition on her registration being supplied to her on 20 December 2018.
As to the reason(s) for the delay, the Tribunal was supplied with no direct evidence explaining the delay, either in Affidavit form or in submissions: at [193]-[196]. At [197]-[198], the Tribunal said: "When considering other peripheral evidence, it seems the Appellant has been involved in other litigation, some of which has been expressly referred to by the Appellant in her submissions. That litigation, in the Supreme Court of NSW, is connected with the appeal she seeks to have determined, because both actions have had their routes in the manner in which she performed as a medical practitioner when employed at Redbank House. Even if I find that part of the Appellant's reason for delay in filing of her appeal has been because she was engaged in other litigation, there is no explanation of how that was so encompassing of her time and efforts that she could not have filed her appeal at an earlier time. There is also no explanation as to why the solicitor, Mr McKell, who represented her from time to time, in about October 2018, could not have assisted her with the filing of the relevant document."
EFQ did refer to the Council's delay in investigating the complaint that had originally been made to the HCCC on 9 February 2018, and the Council's delay in publishing its reasons, but these "delays" (even if it is fair to so characterise them) are not relevant to the pertinent question which was EFQ's delay in lodging her appeal and the reason and/or explanation for it.
Jumping to the topic of prejudice to the Council, the only prejudice pointed to by the Tribunal was the prejudice of having to retain counsel and incur costs to deal with any appeal to the Tribunal: see at [210]. On the other hand, the Tribunal observed, correctly, that it was and remained open to EFQ to "have the decision to impose the condition reviewed should she use the provisions of s 150A of the National Law", and/or to "present herself to the Council Appointed Practitioner, as was requested twice by the Medical Council, so that the Medical Council could consider if she was, at that time, an impaired practitioner": at [211].
For the purposes of the extension of time application, the Tribunal also had regard to the strength of EFQ's proposed grounds of appeal from the Council's decision to impose a condition on her registration pursuant to s 150(1)(b), namely that she "not practise medicine".
One point of law related to the Council's power to impose a condition that a practitioner not practise medicine. Another related to the question of whether or not there had been a breach of procedural fairness by the Council in conducting the hearing in EFQ's absence, as well as in its denial of an adjournment of that hearing.
Mr King also sought to attack the Council's decision by reference to the decision of the Tribunal in Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 at [123] (Karimi), referred to with approval by Brereton JA in Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 at [9] (Ghosh), on the basis that the Council failed to take into account the need for the immediate imposition of the condition that EFQ not practise medicine, and matters of protection and unacceptable risk, even though these grounds had not been raised in the argument for an extension of time before the Tribunal. He submitted that these were mandatory considerations for the Council under s 150(1) of the National Law. Whether or not that is so (which is doubtful in the extreme cf. Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40), it is generally not open to a party to seek to impugn the exercise of a discretion for failure to consider a matter that was not put to the court or tribunal exercising the relevant discretion.
EFQ should not be permitted to raise a fresh ground which was not put to the Tribunal. As Mr Stafford who appeared for the Council submitted orally, "[t]oday was the first time that the proposition was put that an error of law below was that there had been no attention to 'immediate action', 'protection' or 'unacceptable risk'". The sole ground of appeal put to the Tribunal was as follows: "The Medical Council of NSW acted without power when it purported to order on 24 October 2018 that pursuant to s. 150 of the National Law a condition be imposed on the Registration of the Appellant that she 'not practice medicine' AND a condition that she 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. Such conditions be declared a nullity and void ab initio." It is true that other arguments were sought to be advanced before the Tribunal over the objection of the Council, but the argument based upon Karimi was not one of them.

Power to impose a condition that practitioner not practise medicine

Both before the Tribunal and in argument in this Court, EFQ contended that the condition imposed by the Council that she not practise medicine was not a condition "relating to the practitioner's practising" medicine within the meaning of s 150(1)(b) of the National Law. It was submitted that it was the very opposite insofar as it prevented her from practising medicine.
Section 150(1) of the National Law relevantly provides that: "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."
As Brereton JA observed in Kirby v Dental Council of NSW [2020] NSWCA 91 at [12] (Kirby): "Exercise of the power under s 150(1) to suspend or impose conditions necessarily requires that the Council undertake an evaluation of circumstances concerning a practitioner that come to its notice. Although a complaint may be the means by which relevant circumstances that require consideration of action under s 150 may come to a Council's notice, s 150(4) makes clear that a complaint is not necessary to enable the Council to act; in other words, it may act of its own motion." (footnote omitted). As also explained by his Honour at [14], the s 150 action is essentially interlocutory in nature, pending the outcome of an HCCC investigation under s 150D and any ensuing disciplinary proceedings.
EFQ's argument as to the Council's power to impose a condition that she not practise medicine drew heavily on the reasoning of Simpson AJA on this precise question in Ghosh, where an identical condition had been imposed. The Tribunal rejected this contention, however, as it considered that Brereton JA in the same case had taken the contrary view, namely that such a condition could be imposed pursuant to s 150(1)(b) of the National Law, and that Emmett AJA had agreed in Ghosh with his Honour's judgment, so that there was a majority which rejected Simpson AJA's reasoning and supported the ability to impose a condition such as that imposed on EFQ.
In my opinion, whilst there was no doubt as to Brereton JA's views on the relevant question in Ghosh, the Tribunal was probably wrong to conclude that that was a majority view, and certainly wrong to conclude (at [76]) that "no other reasonable conclusion is available" and that the Tribunal was "therefore bound by the determination of the majority of the NSW Court of Appeal on the point of law relevant to this determination." What Emmett AJA had relevantly said in Ghosh at [135] was that: "I have had the advantage of reading in draft form the proposed reasons of Brereton JA. I agree with his Honour, for the reasons proposed, that the Tribunal failed to undertake the essential task of identifying the nature and extent of any risk posed by Dr Ghosh to patients or the public, so as to determine the critical issue, namely whether there was such unacceptable risk as to require immediate suspension. Accordingly, the appeal should be allowed, and the orders of the Tribunal should be quashed. I also agree with his Honour that, in circumstances where the s 150 hearing, the s 150A hearing, and the Tribunal have each considered that Dr Ghosh should not be permitted to practise, it would be imprudent for this Court to reinstate her, in the absence of a full review of the evidence, even on an interim basis. The appeal from the s 150 decision must therefore be remitted to the Tribunal, differently constituted, to be heard again. I agree with the orders proposed by Brereton JA, including the order as to costs. I also agree with his Honour's observations consequent upon the subsequent disqualification of Dr Ghosh by the Tribunal."
It is not wholly or sufficiently clear from Emmett AJA's judgment as to whether or not his Honour concurred with Brereton JA's reasoning as to the Council's power to impose a condition that Dr Ghosh not practise so as to result in a majority position of the Court, binding on the Tribunal.
Although the Tribunal's reasoning based upon a reading of Emmett AJA's short judgment is at the very least open to doubt, that does not ultimately avail EFQ because I share the view of Brereton JA in Ghosh that the Council's power pursuant to s 150(1)(b) of the National Law extends to a power to impose a condition, on an interim basis, that a doctor not practise medicine. It follows from this, given that Brereton JA has not departed from this view in the present proceedings, that the Tribunal did not ultimately err in its conclusion that the decision of the Council to impose the condition that it did was open to it and did not involve jurisdictional error. To that extent, it could not be said that the Tribunal's exercise of its discretion in relation to the extension of time miscarried because of any error in point of law on its part.
It is appropriate, in light of my support for the view of Brereton JA in Ghosh and the endorsement of his Honour's reasoning in preference to that of Simpson AJA, that I briefly indicate my reasons for that position.
Section 150(1) of the National Law permits the Council either to suspend or to impose conditions on the registration of a registered health practitioner. Suspension of registration is conceptually distinct from a restriction on the ability to practise, even a complete restriction. It may, for example, mean that a person could not hold themselves out as a health practitioner during the period of his or her suspension.
If, as Mr King accepted in argument, the suspension of a doctor's registration (which is expressly permitted and contemplated by s 150(1)(a) of the National Law) is a more "draconian" remedy than the imposition of a condition that a heath practitioner not practise medicine until the resolution of a complaint against him or her, it would be very strange indeed for Parliament to have authorised the suspension of registration, but not to have authorised imposing a temporary condition that a doctor was not to practise medicine pending the resolution of a complaint against him or her.
There is no obvious reason why the legislature would hamstring the Council in terms of the range of interim protective measures it could impose pending resolution of a complaint against a health practitioner. That is especially so given the evident protective nature of the Council's function and the wide language of the provision, which requires the Council either to suspend or impose conditions "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". As Brereton JA observed in Kirby at [15]: "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." (footnote omitted).
Moreover, if the argument were correct (which I do not consider to be the case), it would presumably also have the consequence that a condition could not be put on a practitioner's ability to practise for a certain period of time whilst he or she undertook some further training or education. Such a limitation, too, is unlikely to have been intended by the legislature.

Breach of procedural fairness by the Council?

The Tribunal also rejected "as viable grounds of appeal which might give rise to a fairly arguable case" EFQ's contention that she had been denied procedural fairness by the Council. Her proposed challenge on this ground was not considered to be sufficiently strong to warrant an extension of time, notwithstanding the lack of any cogent explanation for her delay in seeking to appeal the Council's decision to impose an interim condition on her ability to practise medicine.
For the reasons that follow, the Tribunal's decision not to grant an extension of time was not vitiated by an erroneous view it took of the strength of EFQ's argument based upon an alleged denial of procedural fairness by the Council. The salient facts and relevant chronology in relation to the alleged denial of procedural fairness by the Council are as follows.
The HCCC received the Complaint in relation to EFQ on 9 February 2018.
On 17 July 2018, EFQ provided her response to the HCCC in relation to the complaint.
On 22 August 2018, the Council wrote to EFQ as follows in relation to the Complaint: "I refer to the enclosed complaint made by Dr [XXX]. The Health Care Complaints Commission and the Council discussed this matter and decided that it should be referred to the Council. Before any further consideration, we are inviting you to make additional comments on the issues raised. The Council is concerned about your manner and poor attitude towards colleagues and patients whilst employed as a Visiting Medical Officer at Redbank Acute Adolescent Unit. We have received a copy of your response to the Commission dated 17 July 2018. If you wish to provide further comments, please ensure this is received by 11 September 2018." (emphasis in original). It is evident from this letter that EFQ was already aware of the Complaint and had responded to the HCCC prior to being contacted by the Council, and that the Council had a copy of this response.
EFQ responded by email the same day acknowledging "the contents including attachments I have received and reviewed."
On 10 September 2018, the Council sent a short email to EFQ reminding her that her response to the Council was due by 5pm the following day.
By an email of 10 September 2018, EFQ requested a 90 day extension to respond to the complaint received and informed the Council that she had submitted "lengthy complaints to the Health Care Complaints Commission and the Independent Commission Against Corruption in relation to this matter". She also advised that her solicitor was Mr Peter McKell (Mr McKell). Her email was as follows: "I am requesting [a] 90 day extension to respond, on the basis that there is a lack of urgency given the complaints appear to have been generated in early February, some seven months ago now, where I had submitted lengthy complaints to the Health Care Complaints Commission and the Independent Commission Against Corruption in relation to this matter several months ago; that the complaints are the subject of legal proceedings due to a history of severe workplace abuse which has necessitated legal action; that I have no history of such conduct and that these complaints are conspicuously questionable and inappropriately provocative and appear to serve an ulterior motive to current defendants in the Supreme Court of NSW; that I have informed my medical indemnity providers of this activity which predates these complaints such that I will not put myself in a situation clinically where I can be undermined any longer in such a way; that my solicitor (courtesy copied Mr Peter McKell) and Barrister are very aware of the situation at hand and have been assisting me for a considerable period of time in relation to such abuses of processes which predate these complaints and that this matter is ideally managed in a court of law."
On 11 September 2018, the Council responded as follows: "Thank you for your emails dated 10 September 2018 and 22 August 2018, apologies for the delayed response. Unfortunately the Council cannot offer you an extension of 90 days as this will delay the matter going before our Conduct Committee. However, if you do wish to provide a further response we can give you until Monday 24 September 2018. As your response to the Health Care Complaints Commission (HCCC) was extensive you do not need to provide a further response to the Medical Council. The Council will at our next Conduct Committee put forward your response to the HCCC and two e-mails dated 22 August and 10 September 2018. You will [be] contacted a few weeks after the Conduct Committee meeting on 9 October 2018 with the outcome. Please advise me if you prefer that all correspondence be sent to your solicitor? And if so please provide their contact details."
On 24 September 2018, EFQ submitted a further detailed response to the Council, the terms of which it is not necessary to reproduce. It was, however, this response that Mr Stafford described in oral submissions as the "catalyst for the convening of the s 150 proceedings".
On 11 October 2018, EFQ was contacted by Ms Jenny Ratcliff (Ms Ratcliff) of the Council, and was informed that the Council had reviewed the Complaint against her and the response she had provided to the Council.
On 12 October 2018, the Council wrote to EFQ as follows: "The Council's conduct committee resolved that urgent proceedings should be held in line with section 150 of the Health Practitioner Regulation National Law (NSW). In ensuring the Council complies with its obligations to protect the public, it aims to hold proceedings as soon as possible. This matter has just been set down on Wednesday, 24 October 2018 at 10am. The hearing will take place in the Medical Council Hearing Rooms, Gladesville Hospital. Full details, including a map will be provided to you next week including the brief of documents." The email explained that the purpose of the hearing was to determine whether it was appropriate to take immediate action and, if so, "to urgently take such action". The email pointed out that: "The Council must take action if it considers it is appropriate to protect the health and safety of any person/s or if it is in the public interest. The action the Council can take under s150 of the National Law includes suspending a medical practitioners registration or imposing conditions."
On 19 October 2018 at 8.37am, Ms Ratcliff contacted EFQ, seeking a copy of her CV and confirmation that she had received the brief of documents that had been sent electronically on 17 October 2018, and offering to send a hard copy of these documents. The email also recommended that EFQ contact her medical indemnity insurer about the s 150 proceedings "as they may be able to provide advice and support at the hearing".
On 19 October 2018, EFQ sent the following email to the Council: "It is unclear to me if you have received correspondence from my solicitor (courtesy copied) for which I maintain concerns in relation to your ongoing correspondence. I will not be attending on Thursday. As already relayed, the matter for which you are holding my conduct in question is the subject of current legal proceedings in the Supreme Court for which we are now dealing with the additional offence of perjury in addition to medical misconduct. It is not appropriate that my situation continue to be prejudiced, particularly in the context of complaints already made, including to the HCCC several months ago. The complaint you received was in early February, it is now mid October. I have not worked in a clinical role since March due to the severity of workplace abuse and the extent that my reputation is being sabotaged and undermined, also the subject of proceedings in the Federal Court. As such there is no such urgency as you describe. Should you wish to correspond further I suggest you email my solicitor Mr McKell." (emphasis added).
On 22 October 2018, the Council wrote to Mr McKell advising him of the hearing to be held on 24 October 2018 and said: "The Medical Council will be holding proceedings under s150 of the National Law on Wednesday, 24 October 2018 and these proceedings can occur in (the Appellants) absence."
On 23 October 2018 at 8.52am, Ms Ratcliff emailed Mr McKell in the following terms: "Following on from my email yesterday, the s150 proceedings held by the Council are a risk assessment process, based on the evidence presented to the Council delegates at the hearing. It is recommended that [EFQ] attend the proceedings, to allow her to present evidence to the delegates, however, if as [EFQ] states in her email of 19 October, she will not be attending, this can also be done through written submissions to the Council. As the s150 proceedings will occur tomorrow at 10am, these written submissions will need to be received by 9:30am on 24 October 2018. They can be sent via email directly to me and I will distribute them to the delegates. Please note, this email chain will be provide[d] to the delegates to be added to the brief of documents. Also the attached documents regarding [EFQ's] Federal Court Proceedings will be included in the brief of documents and provided to the delegates."
On 23 October 2018, Mr McKell responded to the email from the Council as follows: "I do not act for (the Appellant) in this matter but she does seek advice time to time generally. Regarding the hearing on 24 October 2018 my advice to her is that she should attend at the time and place convenient to both parties and 24 October 2018 is not convenient due to her self representation in several court matters where she has pressing timetables she cannot ignore and must give priority. She accordingly advises she will attend a hearing on a convenient date once these commitments are completed which takes up most of her time at present, and I have also recommended she appears with legal representation whose availability will also need to be considered. Accordingly she requested a postponement or maintains she will be denied natural justice."
On 23 October 2018, the Council sent a letter to EFQ, which provided her with "Practice Conditions" to which she could consent. The letter stated: "The Medical Council of NSW has scheduled a s150 Proceedings to be held on 24 October 2018 as the Council has decided to consider whether it is appropriate that it take immediate action to protect the health and safety of the public or otherwise in the public interest. If the council considers that action is appropriate it can either suspend your registration or impose conditions on your registration. You are entitled to be heard in relation to this matter and the Council intends to convene a hearing for this purpose. The Council received an email from Mr McKell, dated 23 October 2018, stating that you are requesting the matter be postponed due to your ongoing court commitments. Due to the nature of s150 Proceedings being urgent interim action, the Council must be assured of the ongoing protection of the health and safety of the public if it is to postpone proceedings as requested. As such you may consent to the following conditions being imposed on your registration via the process set out in section 41P of the Law (enclosed): Practice Conditions: 1. Not to practice medicine. 2. 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." The letter enclosed a consent form which could be signed if EFQ consented to the suggested conditions and continued: "If the Council do not receive the signed consent by 10 am on 24 October 2018, the Council will (be) proceeding with the hearing as scheduled. At this time the delegates may phone you to allow you to present information via phone."
EFQ responded to this letter by email to the Council at 9.37am on 24 October 2018, as follows: "[T]hank you for your email. I have received and read your email and attachment. I do not feel I can sign any letter without consultation with my legal representatives, including my barrister who has been actively involved in this matter to date for some time. I received your email at 1650 yesterday and it is impossible for me to respond to this matter without further time to allow such consultation. We sent an extensive complaint to the HCCC in March of this year, can you please advise if the board has read this or if you would like us to forward this document? I sincerely thank you for understanding the set of circumstances before me including current proceedings in the Supreme Court of NSW exploring the very complaint upon which you are responding."
On 24 October 2018 at 10.31am, Mr McKell wrote to the Council advising that he now acted for EFQ and had been provided with a copy of the letter from the Council dated 23 October 2018. He objected to the proposed course of action set out in the letter. He asserted that no particulars of the charge against EFQ were provided in the letter. (This observation was misconceived as there was no charge and the Council's power under s 150 of the National Law to suspend or impose conditions on a registration is not dependent upon a complaint having been made.) Mr McKell asserted that it was contrary to the interests of natural justice to proceed to hear and determine EFQ's suspension or removal from the profession in the manner set out by the Council, and advised that he had been informed by EFQ that the adjournment sought had been refused and that she had told him the Council proposed to proceed in her absence. He informed the Medical Council that "[i]t is clear in the circumstances that the proposed hearing cannot proceed."
At precisely the same time, 10.31am on 24 October 2018, the Council sent an email to EFQ responding to her email of 9.37am (see [58] above). The Council advised: "The delegates are currently reviewing the information you provided. They would appreciate being able to talk to you about this matter in order to allow them to make a decision about an appropriate course of action. They are proposing to call you at 11 am on your mobile phone. I have left a message on your mobile as well with this information. The delegates also requested again that you provide a copy of your CV which will assist them as well."
The Council's subsequently published reasons noted that EFQ did not return phone calls made to her during the hearing.
In its reasons, the Council (which included two delegates who were psychiatrists), noted that it was not the purpose or remit of the hearing before it to consider conflicting accounts of the circumstances of EFQ's employment and subsequent termination at Redbank House. The Council did, however, identify two areas of probable risk in the matter including by reference to EFQ's written response of 24 September 2018, namely that she was suffering from an impairment which had the capacity to affect her clinical performance and so put the health and safety of the public at risk and that, as a result of the events in the workplace that led to her termination from Redbank House in January 2018, and/or as a result of her impairment, EFQ was preoccupied with legal matters "to such a degree that she was unwilling or unable to attend the s150 Hearing and by her report is currently unable to work."
Earlier in its reasons, the Council had noted that EFQ's response to the Complaint contained a number of references to identity theft and fraud which predated her employment at Redbank House and observed that "[i]t would appear that [EFQ] has drawn a conclusion that the identity theft and fraud matters and [the complainant's] complaint are connected and that the current complaint is designed to cover up these connections." The Council also noted that, since the termination of her locum employment in January 2018, it would appear that EFQ "has been involved in legal matters, where she is the applicant, arising from her employment and at her report, this involvement has meant she has not been able to work as a psychiatrist."
Mr King submitted that the denial of procedural fairness manifested itself in a number of ways.
He initially submitted that there was a lack of reasonable notice of the Council's resolution to convene s 150 proceedings on 24 October 2018. Despite the Council's reference at page 4 of its reasons to the fact that EFQ "was notified of [the s 150 hearing] on 17 October 2018", this was a typographical error, with EFQ relevantly notified of the proceedings on 12 October 2018: see [51] above. EFQ was thus given 12 days' notice of the relevant proceedings.
This was ample notice and, in oral submissions, Mr King effectively acknowledged this, noting that his real complaint was in relation to the failure to grant EFQ an adjournment of the hearing on 24 October 2018: see appeal transcript at 28.10-14.
A party which is given ample notice of a hearing cannot complain that there has been a denial of procedural fairness where he or she declines to participate in the hearing and the hearing proceeds in accordance with the adequate notification. Procedural fairness requires an adequate opportunity to participate to have been given, and a denial of procedural fairness cannot be generated by a deliberate or conscious decision not to participate in a hearing of which sufficient notice has been given.
In Cuttler v Browne (2010) 201 IR 141; [2010] QCA 346 at [24], the Court addressed the question of notice as a component of procedural fairness in circumstances where the "evidence makes it abundantly plain that the applicant was avoiding service". In such circumstances, it was held by Muir JA (with whom Holmes and Fraser JJA agreed) that "the applicant was not denied a right to appear and be heard. He merely failed to exercise such a right. There was no denial of procedural fairness": at [25]. In Lewis v Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory (2013) 280 FLR 118; [2013] ACTSC 198 at [165], Refshauge ACJ said that "[i]t is clear on the authorities that a party who is given an opportunity to put his or her case but, through their own default, fails to take the opportunity, has no basis for complaint if they are not heard", citing Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [27].
Turning, then, to the focus on the question of an adjournment, it is clear that a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness: see, for example, Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 611; [2002] HCA 11 at [40]; and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [19] (Li). Review of the reasonableness or otherwise of the exercise of a discretion to grant an adjournment is informed by the considerations referred to by the High Court in Li. There is a stringency to the test for reviewing such a discretionary decision, particularly where the discretion is not exercised by a judicial body (see Li at [113]) even though the test of "legal unreasonableness" is not necessarily to be confined to the famous formulation associated with Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223: see Li at [66]-[72]. The stringency of the test is reflected, for example, in the language of Hayne, Kiefel and Bell JJ in Li at [76], namely that "[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification"; see also the language of Gageler J in Li at [124]: "[n]o reasonable tribunal, seeking to act in a way that is fair and just, and according to substantial justice and the merits of the case, would have refused the adjournment".
In Sali v SPC Ltd (1993) 67 ALJR 841 at 845; [1993] HCA 47 (Sali), the majority of Brennan, Deane and McHugh JJ, albeit not in the context of judicial review proceedings, stated that "it is only in extraordinary circumstances that the interests of justice will be served by a refusal of an adjournment in a case… where the practical effect of the refusal is to terminate the proceedings". In that case, their Honours found that one such "extraordinary circumstance" was made out where the application for an adjournment could be characterised accurately as a "mere delaying tactic": at 845. See also Frugtniet v State Bank of New South Wales [1999] NSWCA 458 at [31]-[32] and [84]-[89]; and Menzies v CRCI Pty Limited [2007] NSWCA 118 at [30]-[33].
In oral address, Mr King sought to characterise the Council's refusal to adjourn as one that no Council acting reasonably could have reached. In terms of the language of the plurality in Li at [76], the question may be put in terms of whether or not the Council's decision to refuse an adjournment lacked "an evident and intelligible justification."
In my view, the decision did not lack an evident and intelligible justification.
Neither the Tribunal nor this Court was in a position to question the expert assessment by the Council, through its delegates, two of whom were practising psychiatrists, that there was a proper basis for imposing the condition it did on EFQ's ability to practise medicine pending the determination of the complaint. It was the Council's concern, as a result of its consideration of EFQ's submission of 24 September 2018 as well as other evidence before it, which had led it to convene the s 150 hearing on 24 October 2018. That concern was reflected in the reasons it published on 20 December 2018, which have been referred to at [61]-[63] above. The Council's conclusion, namely that the condition imposed was necessary in view of its consideration of the material before it, necessarily informs the assessment of the reasonableness of its decision not to grant the adjournment sought, in light of the Council's protective jurisdiction under s 150(1) of the National Law and the obligations implicit in the conferral of that jurisdiction on the Council.
In addition to that important matter, other considerations relevant to the decision to proceed with the hearing on 24 October 2018 included:

the lateness of the application for an adjournment, namely on the day prior to the hearing, especially in light of the amount of notice given;
the uncertainty as to when EFQ would be available (no clear indication was given in her correspondence). To the extent an adjournment was sought, it was to some indefinite time when EFQ considered herself to be in a position to be able to deal with the hearing: "She accordingly advises she will attend a hearing on a convenient date once these commitments are completed which takes up most of her time at present": see [56] above;
the fact that EFQ had declined to consent to a truly interim measure, namely the imposition of a condition pending any adjourned hearing: see [57] above;
the shifting status of Mr McKell as EFQ's legal representative i.e. not acting for EFQ on 23 October 2018 and then acting for her on 24 October 2018: see [56] and [59] above;
the Council's preparedness to involve EFQ in the hearing by telephone: see [60]-[61] above;
the fact that the condition imposed was only interim; and
EFQ's ability to seek to have the condition altered or removed pursuant to s 150C of the National Law.

Taking all of these considerations into account, coupled with the protective nature of the Council's s 150 jurisdiction, the Tribunal was correct, in my opinion, to conclude that the refusal to grant the adjournment was not legally unreasonable and did not involve an error on a point of law.

Conclusion

For all of the above reasons, the Tribunal's decision to refuse an extension of time in which to challenge the Council's decision to impose an interim condition on EFQ was open to it and not infected by appellable error.
I would grant leave to appeal but dismiss the appeal with costs.
MACFARLAN JA: I agree with Bell P.
BRERETON JA: I agree with Bell P.

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: 06 August 2021

Civil and Administrative Tribunal Act 2013(NSW)ss 4, 31(1), 41, 83, Sch

Supreme Court Act 1970(NSW)s 48, s 48.

(2020) 102 NSWLR 303

(2020) 104 NSWLR 170

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