HBW v Medical Council of New South Wales [2025] NSWCATOD 130;

1. The applicant's practice has been the subject of three separate inquiries convened by the Medical Council pursuant to s 150 of the National Law, namely, on 27 November 2023, 24 January 2024, and 31 March 2025.
2. The applicant's stay application relates to the third of those proceedings. In that suspension decision under the pending appeal the delegates of the Medical Council noted each of those earlier proceedings in their reasons for decision. A question arises as to whether those decisions were relevantly considered. The salient features of the history of prior complaints about the applicant are as follows.

1. In March 2002, June 2009, and June 2015, three complaints were made about the applicant alleging unprofessional behaviour. Those particular complaints did not involve any suggestion of sexual boundary transgression. They were resolved and have only background relevance to the present application.

1. In February 2016 and October 2019, two complaints were made about the applicant alleging inadequate and inappropriate patient treatment. Those complaints were discontinued. The subject matter of those complaints has no bearing or relevance to the present application.

First s 150 inquiry on 27 November 2023 - sexual boundary transgression

1. In November 2015, a complaint was made against the applicant regarding his conduct towards a female advanced trainee registrar under his supervision. The conduct complained of occurred in 2013. The gravamen of that complaint, which was made by the husband of that registrar, was that the applicant had been sexually harassing her by sending inappropriate text messages and sexting images.
2. The delegates noted that the complaint had been "retracted", but that later, in June 2015, the trainee indicated that the harassment had continued over a period of 18 months, which was influential in her decision to led to leave her employment at the hospital where they had both been working.
3. The delegates of the Medical Council noted that in response to those events, the applicant was required to attend a counselling interview it convened on 6 September 2016. In that regard, the delegates observed that:

"In response to the complaint, the Council ordered [the applicant] to attend a Counselling Interview on 6 September 2016. The Interviewers recommended no further action be taken. [The applicant] had admitted, amongst other things, to have become "inappropriately close" to the trainee registrar. He told the interviewers that he could become overfamiliar with people and that he would work on becoming more aware of this and on recognising "red flags". ". After warning [the applicant] of the dangers of exploiting the power imbalance between a senior specialist and a Registrar, the interviewers noted that:

[The applicant] was candid with us and deeply regretted the events associated with this complaint. As a result of this complaint, the investigation at the [hospital] and our counselling, he has developed a much greater understanding of the risks around relationships in which there is a power imbalance, and the professional expectations in such settings. [The applicant] has taken appropriate steps to reduce his workload and is engaging expert assistance to help him develop greater personal insight and a more skilful response to challenging personal encounters. We are satisfied that he will conduct himself with care and awareness in his future relationships with junior colleagues.

When we discussed this complaint with [the applicant] he said that his relationship with the trainee registrar was a consensual affair that he concealed. He said that this affair had been initiated by the trainee registrar. When we asked him about whether he was concerned about the power imbalance between the two of them he said he said that he wasn't aware of it at the time. Given our review of the evidence below and our concerns about [the applicant's] truthfulness we are not convinced by [the applicant's] claims."

1. Notwithstanding those findings and in full knowledge of those findings, the Medical Council took no disciplinary or protective actions against the applicant following that first s 150 inquiry.

Second s 150 inquiry on 24 January 2024 - sexual boundary transgression

1. On 18 October 2023, the hospital where the applicant was working made a complaint that he had engaged in an inappropriate sexual relationship with the daughter of a patient, involving amongst other things, alleged trysts on hospital premises. A complaint based on those alleged circumstances was made to the hospital by the patient's daughter. Elements of that complaint are adamantly disputed by the applicant, and to date the factual details of that complaint have never been tested.
2. That complaint had a chequered history, including a withdrawal of the allegation by the patient's daughter, followed by a process of obfuscation and concealment of information, and a series of denials maintained by the applicant concerning the alleged details of that relationship. A further complication arose when the patient's daughter later "updated" her complaint claiming that she had colluded with the applicant to provide false information to the hospital concerned, and to the HCCC, which raised credit issues concerning all participants. In that mix, untested questions have arisen concerning the honesty of both the applicant and the patient's daughter. The hospital ultimately suspended the applicant's accreditation on 1 December 2023.
3. In the ensuing second s 150 inquiry, the Medical Council delegates concluded that the applicant's evidence on the issues raised was "evasive at best and insightless at worse [sic]". Significantly in relation to Dr Newnham's subsequent impressions, and contrary to her impressions, those delegates at that time concluded that the applicant "did not appear to be predatory, but rather, was opportunistic."
4. In those circumstances, the delegates concluded that the applicant represented a sufficient risk to the public to warrant the imposition of conditions on his practice, rather than order a suspension.
5. In making those findings the delegates considered the factor of a relative power imbalance between the applicant and the daughter of his patient (who was the patient's decision maker). The delegates also had regard to the nature, the range, and the extent of the exchanged messages which were described as suggesting a "pattern of behaviour".
6. Notwithstanding those findings, and in full knowledge of them, the delegates determined that no changes should be made to the applicant's conditions of practice. In that regard, they said:

"The delegates made no changes to [the applicant's] conditions as they felt that the issues raised were largely the same as at the November hearing. However, the delegates expressed their concerns about [the applicant's] integrity and character. They felt that he had been untruthful and had actively colluded with [the patient's daughter] to conceal the nature and extent of their relationship. He gave misleading information to [the hospital], the HCCC and to the Medical Council".

1. Accordingly, the applicant continued to practice subject to the conditions that had been imposed on him following the first s 150 inquiry and which had remained operative until the suspension decision which followed the third s 150 inquiry.

Third s 150 inquiry on 31 March 2025 - following assessment by Dr Newnham

1. On 31 March 2025 the Medical Council convened the third s 150 inquiry relating to the applicant which resulted in his suspension. The course and the findings of that third s 150 inquiry will be examined at a later point in these reasons. At this point it is relevant to observe that the convening of this third s 150 inquiry has, with considerable persuasive force, been criticised by the applicant as being part of a rolling inquiry which, properly understood, amounts to something akin to forum shopping by the Medical Council until it's desired result was obtained.

(3) Conditions of practice in force prior to suspension on 31 March 2025

1. At the time of the applicant's suspension, his practice was subject to a series of practice and health conditions, as follows;

(1) To advise the Medical Council of NSW in writing at least seven days prior to changing the nature or place of practice.

(2) To consult or treat no more than 25 patients per day.

(a) This is inclusive of patient consultations and all administrative processes involved in the practitioner's practice of medicine.

(b) The practitioner is to provide the Medical Council of NSW with copies of records confirming the number of patients/clients treated/consulted, their consultation times confirming the number of patients/clients treated/consulted, their consultation times and hours worked (including administrative work) on any dates as specified by the Council.

(4) To practise under category C supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time as subsequently determined by the appropriate review body.

(a) The terms of the Council's Compliance Policy are varied to require the practitioner to:

(i) Have review meetings with the Council-approved supervisor each fortnight. The review meeting to revert back to monthly after 6 months.

(ii) Authorise the Council-approved supervisor to provide reports to the Council in a Council-approved format on a quarterly basis.

(b) At each supervision meeting the practitioner is to review and discuss their practice with their approved supervisor with particular focus on:

• Communication with patients

• Patient follow-up

• Workload management

(c) The practitioner must have a supervisor approved by the Medical Council of NSW within 21 days of 5 December 2023. The practitioner must not practise after this date until a supervisor has been approved by the Council.

(5) 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.

(6) To attend for treatment by a general practitioner of their choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner:

(a) is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following:

(ii) termination of treatment; or a significant change in health status (including a significant temporary change).

(b) must provide the Council with the professional details of the treating practitioner/s.

(7) To attend for treatment by a psychologist of their choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner:

(a) is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following:

(ii) termination of treatment; or a significant change in the health status including change in health status including a significant temporary change)

(b) must provide the Council with the professional details of the treating practitioner/s.

(8) To take any medications as prescribed by his treating practitioners.

(9) To attend for review by a Council Directed Health Assessor psychiatrist on a 3 monthly basis or as otherwise directed by the Medical Council of NSW;

(10) To attend a Medical Council of NSW's Review Interview on a 3 monthly basis, or as otherwise directed by the Council. To authorise the Medical Council of NSW to forward copies of the s 150 decision and any subsequent reports and any other information relevant to their health and treatment to the Council Directed Health Assessors.

1. As a prelude to reviewing the events of the third s 150 inquiry, for context, it is relevant to review the five successive psychiatric assessments of the applicant that were undertaken at the request of the Medical Council by Dr Newnham as those assessments underpinned that inquiry. Those assessments respectively took place on 25 March 2024, 24 July 2024, 14 October 2024, and 24 February 2025.
2. The first four of those assessments were carried out for the Medical Council at pre-determined intervals of approximately 3 months as the applicant was enrolled in the Medical Council's impairment and health programme. The fifth assessment was carried out at the request of the Medical Council in light of "new information" that came to hand as provided by the Health Care Complaints Commission (HCCC). It was the latter assessment which triggered the third s 150 inquiry: T27.11.

1. On 25 February 2024, at the request of the Medical Council, the applicant was first assessed by Dr Newnham by means of telehealth video conference. Her report of that assessment was expressed in a summary form using what appeared to be a Medical Council template or format.
2. Dr Newnham's first report was in a form that did not comply with any of the iterations of NCAT Procedural Direction 3 concerning the requirements for expert evidence. Instead, It seemed to have been focussed on matters of impression and demeanour, and it was expressed in terms of a series of impressions and suggested conclusions rather than argued or reasoned opinions, as follows:

(1) She thought that the withdrawal of the complaint by the daughter of the applicant's patient was "suggestive of coercion";

(2) She considered the complaint made against the applicant 10 years earlier alleging sexual harassment of his registrar, when viewed together with the more recent complaint relating to the applicant's relationship with the daughter of a patient, suggested, on her impression, that the applicant had a "pattern" of seeking relationships with women in positions of relative vulnerability;

(3) She was unable to obtain an accurate history from the applicant "due to his obtuse and circumstantial conversational style" which was apparent to her at that time, and an apparent unwillingness on his part to discuss details of his treatment. That view was not explained by reasoned examples;

(4) She postulated that the applicant's method of answering questions was either due to a cognitive psychotic process, or "mere" evasion, in circumstances where she was unable to discern which of those alternatives applied. As a result, no firm diagnosis was proffered;

(5) She noted that a neuropsychologist, Dr Pauline Langeldeluke, had found the applicant was suffering from an executive function impairment and she considered this was congruent with her own mental state examination of him However, she felt that she had only limited information and limited time for her assessment, and therefore could not make a definitive diagnosis at that examination. She identified a series of non-definitive differential diagnoses which included a possible organic process, a primary psychotic disorder, or a personality or bipolar affective disorder. In those circumstances she made no diagnosis;

(6) She considered that the applicant may well also have some personality vulnerabilities that predispose him to boundary violations, but in fairness, she significantly qualified that view by stating that on her mental state examination of the applicant, her findings suggested that was too narrow an interpretation;

(7) She noted there was a series of practical limitations in the circumstances of her assessment of the applicant, namely the limited history she obtained, time limitations, and the telehealth mode of assessment, which meant that in her view, any diagnosis made at that time remained speculative;

(8) Notwithstanding those qualified comments, in somewhat formulaic and unexplained terms, she stated that "on the balance of probabilities" on the available information, the applicant was suffering an impairment impacting adversely on his judgment, his insight, with what she described as the great potential to impact on his care of his patients and their relatives.

1. Dr Newnham's first assessment provided a baseline for her subsequent assessments.
2. It is clear from the way in which Dr Newnham had expressed herself in her first assessment report that her comments as cited above were tentative, speculative, and not definitive in diagnostic terms. Furthermore, it is clear that her probability-based assessment commentary did not by exposed reasons differentially disclose the process by which she had identified, analysed, and balanced the competing "probabilities" that she had considered.
3. Significantly, after considering Dr Newnham's first assessment, the Medical Council decided it was not considered necessary to make any changes to the applicant's conditions of practice in accordance with the paramount regulatory consideration and the guiding principle concerning the safety and protection of the public and the public interest: s 3A and s 3B of the National Law.

1. On 24 July 2024, Dr Newnham conducted her second assessment of the applicant at the request of the Medical Council. It was not clear from her report whether the assessment was also conducted by means of a telehealth conference call. At that time the Medical Council regarded the applicant to be an impaired practitioner whose continued practice remained subject to imposed conditions. Against that background, Dr Newnham's second assessment of the applicant led her to make the following impression-based findings which were not in the form of reasoned opinions:

(1) She had not gained any further clarity about the applicant's possible impairment;

(2) She noted a positive change in the applicant's mental state examination in terms of his warmth, his affect, and in his speech, which she considered remained appropriate throughout the interview, which was unlike his presentation at the first interview;

(3) She noted that the applicant did not show evidence of irritability or grandiose thought processes;

(4) She noted the applicant displayed significantly greater insight into boundary issues regarding his relationship with the daughter of his patient;

(5) She noted that the applicant was more reflective on his medical practice, the administrative side of his practice, and concerning matters of work life balance;

(6) She noted that her mental state findings did not raise strong concerns about the applicant's executive function impairment in that there was no evidence of marked impairment of judgment and disinhibited statements.

(7) Based on those findings and the information she had before her, she recommended that the applicant's practice and health conditions should remain unchanged.

1. It appears that the Medical Council accepted those recommendations because at that time, no changes were made to the applicant's conditions of practice. Accordingly, it may be reasonably assumed the Medical Council considered that the conditions in place on the applicant's practice were sufficient to protect the safety of the public.
2. Significantly, the antecedent issue of whether the applicant should undergo neuroimaging to investigate possible cognitive impairment seems to have receded by that time. It was never made a mandatory requirement.

1. On 14 October 2024, Dr Newnham conducted a follow-up interview with the applicant. This was her third such interview at the request of the Medical Council. At that time no new information had been provided to her. It was not clear from her report as to whether that assessment was also conducted by means of a telehealth conference call. Dr Newnham's third assessment of the applicant led her to make another series of impression-based findings, which again, were not in a form that could be considered to be acceptably reasoned expert evidence in a litigious context. Her findings identified a series of positive elements, as follows:

(1) She noted the applicant appeared to be doing well;

(2) She thought the applicant had engaged with appropriate psychological support and had completed a course on appropriate medical boundaries;

(3) She held no concerns about the applicant's cognition;

(4) She said that due to the nature of the allegations of the applicant's sexual boundary violation with the daughter of a patient, she did not recommend that any changes be made to the applicant's status as an impaired practitioner;

(5) She noted the applicant had been paying close attention to his physical health, that he was at that stage in sole practice, that he was seeing a psychologist to work though his emotional and childhood trauma issues, his professional boundary issues, and his relationship issues;

(6) She noted that the applicant continued to reflect on the issues which have led to his involvement with the Medical Council;

(7) She noted that the applicant was warmly engaged, with a normal range of affect and thought process, which was appropriate at all times;

(8) She noted that the applicant did not display irritability or grandiosity;

(9) She noted the applicant displayed increasing insight into personal and professional boundary issues and that he was reflective on his medical practice and his work life balance.

(10) She noted that following her mental state examination of the applicant, no further concerns were raised about his executive function or other cognitive deficits;

(11) She concluded that given the described improvements and the recency of the applicant's evolving insights, in the short term, no changes were recommended to be made to his practice and health conditions.

1. Those three medical assessments by Dr Newnham fulfilled the Medical Council's ordinary supervisory requirements for regular reviews of the applicant and raised no further concerns over the applicant's continued practice subject to monitoring and supervision, and the conditions that had been placed on his practice that remained in place.

1. On 3 February 2025, Dr Newnam conducted her fourth assessment of the applicant by means of a telehealth interview. No new documents were provided to her for that review. In her report of that assessment, which was on the same date as the assessment:

(1) She reported that the applicant made what she described as good eye contact, was pleasant and engageable, and was reactive in his affect;

(2) She held no concerns about the applicant's cognition;

(3) She considered that the applicant had maintained insight as to the harmful nature of professional boundary violations and his responsibilities as a medical practitioner;

(4) She noted that the applicant had complied with the Medical Council's health and professional directions in terms of seeking appropriate care and imposed work conditions;

(5) She noted the applicant was engaged with appropriate psychological care and had a psychiatrist review pending;

(6) She did not recommend a change in the applicant's status as an impaired practitioner, and she recommended that the monitoring of his health should continue;

(7) Her recommendation was for the Medical Council to continue monitoring the applicant in its health programme.

1. Seventeen days after Dr Newnham's fourth assessment of the applicant, the Medical Council changed its position with regard to the monitoring of the applicant in that it required him to attend a further psychiatric assessment to be undertaken by Dr Newnham. The trigger for that further assessment was "new information" that was not disclosed to the applicant before the further assessment took place, despite repeated requests made on his behalf for that to occur. It is little wonder the applicant went to that assessment with a sense of apprehension.
2. Leading up to those background events, an unexplained curiosity emerges. On 23 January 2025, the Medical Council received "new information", yet it did not provide that further material to Dr Newnham for her assessment which was due to take place 11 days later on 3 February 2025.

Direction for the applicant to attend upon Dr Newnham for a fifth time

1. On 20 February 2025, the applicant's solicitor was informed by email that the applicant was directed to attend a further telehealth interview with Dr Newnham on 24 February 2025 because of "new information" that had become available. Properly, and promptly, in response, given the inherent urgency and the short notice for that appointment, the applicant's solicitor sought details of that new information. Regrettably, those details were not provided before the applicant attended the appointment.
2. It subsequently transpired that the person responsible for attending to the Medical Council's correspondence on the matter had gone on leave apparently without making arrangements for the Medical Council's correspondence file to be monitored in light of the short notice procedural steps that had been set in train in relation to the further assessment of the applicant. As a result, the request on behalf of the applicant for particulars of the new material to be provided went unanswered. Given the urgency of the request for him to attend the further appointment with Dr Newnham at such short notice, in the circumstances, more was expected of the Medical Council as a model litigant in the regulatory setting.
3. The unfortunate effect of those changed circumstances was that the applicant was deprived of the opportunity to consider the implications of that new information in advance of the assessment by Dr Newnham, and as a result, he was not adequately prepared for that further interview. Paragraphs 10 and 11 of the applicant's evidentiary statement in these proceedings described the resulting circumstances, from his perspective, without challenge, as follows:

"12. On 24 February 2025, I attended the appointment with Dr Newnham. The appointment lasted approximately 30 minutes, and Dr Newnham discussed the nature of my childhood trauma with several questions, including what memories I had. We did not talk about who, or how it has been dealt with, and for how long. We also discussed my wife's trauma. I remember feeling very surprised by what Dr Newnham raised with me, as I did not know she was going to ask me about the topics she raised.

11. My relationship with Dr Newnham is not (and has not been) therapeutic. Previous monitoring assessments did not deal with my mental health diagnoses in any detail at all. I am the sufferer of trauma. I cannot present my story as if I were one clinician talking to another clinician. I do not think that 30 minutes was adequate time to discuss this kind of highly personal issue with someone who was not talking to me with a therapeutic purpose; especially without an opportunity to order my thoughts."

1. It is apparent from that unchallenged evidence, that the applicant, whom the Medical Council had hitherto considered to be impaired, and who considered himself vulnerable due to psychological issues, was not adequately prepared or heard on matters relevant to Dr Newnham's assessment, especially on the questions of whether he was impaired, whether he had engaged in fabrication of his history, whether he was likely to repeat assumed "predatory behaviours", and whether his current work arrangements provided adequate oversight of his interactions with patients and their families.
2. That position is made clear on an examination of the transcript of the proceedings before the delegates of the Medical Council on 31 March 2025, where, as will be explained at a later point in the consideration section of these reasons, on the procedural fairness point, the applicant was prevented by interruptions by delegates from completing his evidence in response to Dr Newnham's predation theory which was critical of him, and on which he had been invited to comment.

1. On 24 February, at the request of the Medical Council, Dr Newnham carried out a fifth review of the applicant in the capacity of a Council Directed Health Assessor. She was asked to carry out an independent health assessment of the applicant pursuant to s 145E of the National Law. That step was taken because the Health Care Complaints Commission had received "additional information" relating to the applicant, which was the trigger for the third s 150 inquiry, and ultimately, in these proceedings.
2. According to the written instructions the Medical Council provided to Dr Newnham, that new material comprised some 470 pages which were provided to her (along with other materials totalling 704 pages) for the purpose of her assessment. Those new materials were in addition to those provided to her for her four earlier assessments of the applicant.
3. Dr Newnham provided her report on her fifth assessment on the same day she saw the applicant. That report referred to a series of matters as follows:

(a) As appears from pages 1 and 2 of that report, she stated that she had previously conducted an "initial assessment", which I take to be a misnomer as she had already undertaken three previous assessments that took place on 26 July 2024; 14 October 2024; and 3 February 2025;

(b) As appears from pages 2 - 3 of that report dated 24 February 2025, she identified the "additional documents" provided to her to be in 19 categories, numbering 704 pages in total. The reconciliation of the page differences was not entirely apparent on the face of her report;

(c) As appears from pages 3 - 4 of that report, she proceeded to outline an examination of the nature of the personal relationship that had developed relationship between the applicant and the daughter of his patient which she considered to suggest a process of manipulation on his part, without actually using that expression;

(d) As appears from page 4 of that report, she interpreted the history of past complaints against the applicant as "incidents [which] suggest a pattern of behaviour, including that of seeking relationships with women in positions of relative vulnerability for financial and sexual gain", a view that calls for a critical evaluation;

(e) As appears from page 6 of that report, she noted that in her second and third assessments of the applicant, she had noticed a marked positive change in his mental state, pointing to him being polite, respectful, voicing insight into the potential harm to vulnerable persons that could follow boundary violations. She also noted that he appeared to take responsibility for his actions. and there were no further concerns about cognitive impairment;

(f) As appears from page 6 of that report, she had conducted her interview with the applicant on that day by means of a telehealth consultation. In her review of that consultation, which she summarised, the only comment that was critical of the applicant was her statement that: "At no point during the interview did [the applicant] mention the financial support [the patient's daughter] had offered to him nor of any financial discussions between the two". There is no evidence that she had in fact questioned him on that topic, so it is difficult to evaluate the basis of her implied criticism of the applicant in that regard concerning his disclosures or non-disclosures at that time;

(g) As appears from pages 6 - 7 of that report, she noted that during the telehealth interview although the applicant's affect was reactive and initially involved "good eye contact", she commented that "eye contact became less consistent when asked about his relationship" with the daughter of his patient, noting that at some point "eye contact was lost". She did not state whether she had questioned him about her observation loss of eye contact in that regard. That is a matter of some significance given the well understood difficulties of a demeanour-based credibility assessment where factors of nervousness, apprehension and the like are considered, and possible balancing factors have to be weighed in assessing the strength of evidence where competing legal rights are in the balance: Hasler v Singtel Optus Pty Ltd & Ors [2014] NSWCA 266, at [157], following the decision in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) & Ors [1999] HCA 3.(1999) ALJR 306, at p 321; [64];

(h) As appears from page 7 of that report, she appears to have walked back her earlier comments on the applicant's previously reported insight into boundary violations by saying it, meaning insight, "did not appear to have been sustained" when he referred to the patient's daughter as having been the instigator of the relationship.

(i) As appears from pages 7 - 8 of that report, she postulated that:

(i) The applicant had manipulated the vulnerability of the patient's daughter for his own financial gain, which was a surprising conclusion given that there was no reference in her report to indicate that she had questioned him about that subject;

(ii) There were marked but unstated or unexplained inconsistencies in the mental state examinations she had undertaken in relation to the applicant over the course of the serial examinations she conducted at the request of the Medical Council;

(iii) There was a suggestion of "a pattern of predatory behaviour on his part" apparently based on hearsay evidence of him having allegedly spoken inappropriately to female patients on several occasions, where she later expanded that comment to state that: "The available information suggests rather that [the applicant] has a pattern of predatory behaviour towards women in positions of relative vulnerability". The suggested pattern related to events separated in time by 10 yers;

(iv) The applicant's "stated history contains elements that are likely factitious". She did not give supporting reasons or examples to explain or justify that view;

(v) There were diagnostic doubts about the applicant's account of his psychological condition including her view that information he had provided to the Medical Council and the HCCC and to various private practitioners involved "misleading statements and crucial [unidentified] omissions", where his self-reported diagnosis of dissociative identity disorder was "inconsistent with his personal and professional history and clinical performance". Those diagnostic doubts were not identified by supporting reasons;

1. Not only did Dr Newnham not provide reasons which detailed the basis for those views, some of which involved unsupported sweeping statements.
2. Dr Newnham concluded her 24 February 2025 report by excluding the proposition that the applicant had the diagnoses of dissociative identify disorder, complex post-traumatic stress disorder and psychosis in all diagnostic categories.
3. Curiously, the Diagnostic and Statistical Manual of Mental Disorders commonly used for the diagnosis of such disorders (DSM) did not rate a single mention in any part of her report concerning the process by which she made such diagnostic exclusions. It is difficult to discern a diagnostic basis for her exclusionary view based on matters that were summarised in her report;
4. Dr Newnham concluded her 24 February 2025 report stating, without explanatory reasons, that the applicant: "represents a high risk of repeating his behaviour and as such, represents a high risk to the general public in the course of his practice of medicine". That sweeping statement made no specific reference to patients of the female gender, and she did not explain the basis for her assessment of "high risk";
5. Given that there was no challenge to the applicant's evidence that Dr Newnham's assessment had taken approximately 30 minutes, and given the applicant's unchallenged evidence cited at paragraph [61] above, to the effect that he could not adequately present his history at that time when he was taken by surprise, it is impressive that Dr Newnham was able to prepare such a detailed report on the same day as the assessment where she must also have considered the 704 pages of material provided to her, with some 470 of those pages being new material which presumably based her questioning of the applicant.
6. In my view, the described circumstances of Dr Newnham's fifth assessment of the applicant, namely, time limitations and the telehealth setting certainly raises the question of whether the applicant was afforded procedural fairness at that fifth assessment where the reasonable inference is that he would have been questioned on the content of the "new information", the details of which he had no prior notice.
7. Further question arises as to whether the circumstances truly warranted Dr Newnham's demeanour-based credibility assessments which were critical of the applicant, for example, on the matter of eye contact via the interface of a computer screen, a matter which seemed to have based an adverse assessment based on apparent demeanour. Paradoxically, in an earlier report, she regarded a telehealth mode of assessment as a practical limitation to assessment as identified at sub-paragraph (7) of paragraph [47] above.

Applicant's email to Dr Newnham following the fifth assessment

1. The applicant stated that he was taken by surprise at the 24 February assessment by Dr Newnham. Consistent with that view, on 10 March 2025, he felt compelled to send an email to her in the following terms:

"Dear Dr Newnham,

I trust you are well!.

The topic of the appointment 2 weeks ago today caught me by surprise. I was told there was new information that the HCCC possessed and that you were requested to discuss that with me. Naturally my apprehension was substantially increased because of that message. Also, I had been suffering a virus since Friday night before the meeting. Although the virus infection was not very intense, the post viral fatigue increased over the week after our last talk. I had indicated I would send an email about the meeting, however I think I would have not communicated effectively and safely. I feel like I flunked the test. I have thought over the topic and I did not do justice to your questions. Some of my history would fit within controversial areas. I have discussed things since with Anna Charley and the American fellow and also my family, especially my other half. Clearly there is more I could have though to communicate. I discussed these 'potential controversial issues' with Anna. She seemed to have a very balanced approach.

I would like to stress that I am not unhappy with you. I have developed a good degree of trust towards you. In the matter of assessing me however 2 weeks ago, it was triggering as you were irrationally aligned with past perpetrators. This induced various responses within me including freezing. Again, my internal response of course was an irrational one. I have worked to deal with that response. This response has been a major problem for me since early September 2023, triggered by dealing with panels of doctors for two all day sessions and being forced to see psychiatrists and a psychologist (I do not mean Anna Charley). Nonetheless this issue added substantially to the difficulty of sending the email I had wanted to.

I have an appointment with a psychiatrist on May 3rd, however I have decided to seek an additional psychiatric assessment with someone who has expertise in dissociative problems and complex trauma. Possibly I have found one. Please understand that I am not lodging a complaint. I have complaints about some of the false information written about me that is enclosed in the Medical Board documentation. Aside from false information, information that is not in the documentation bothers me as much as what is inaccurate therein. The degree of serious uncertainty that I have had to face every day over a protracted time (more than 18 months) is the primary driver of anxiety, poor sleep and negative effects on wellbeing. Despite this, I have taken this opportunity to grow. This matter has brought some issues into my focus that may have continued to neglect. The fact is, this matter has forced a lot of things to happen in me and my life. Some of these things are very important and I am very pleased about the positive results. It is a huge effort to walk through this stuff at the moment. all the same, I do feel that I am up to the task.

I make no negative comments on the time it takes for the various process to be undertaken. I understand that.

I think that someone at some point should study the effects the process has on practitioners. The AMA wrote something about this I have been told.

Kind regards,

..."

[Emphases added]

1. Dr Newnham forwarded the applicant's above cited email on to the Medical Council. There is no evidence to suggest the Medical Council sought Dr Newnham's views on the content of that correspondence. I am informed by the parties that it is common ground between them that the above cited email from the applicant to Dr Newnham was made available to the s 150 delegates of the Medical Council for their consideration. That said, their reasons did not refer to that material and they did not ask him any questions about the content of that email, especially on the matter of his ineffective communication and of not having done justice to the questions that had been asked of him in that 30-minute interview.

(5) Evaluation of Dr Newnham's reasons for her fifth assessment

1. The content of Dr Newnham's fifth assessment report dated 24 February 2025 was obviously largely influential in the reasons for decision of the delegates in the third s 150 inquiry, it is therefore instructive to examine and evaluate the rational basis of her assessment.
2. The Medical Council's briefing letter to Dr Newnham dated 20 February 2025 indicates that the HCCC had requested that 470 pages of "new information" it had obtained in the course of its own investigation of the applicant be considered as part of the Medical Council's assessment process to assist in determining whether the applicant was impaired, and if so, whether that impairment was or was likely to have an adverse impact on the applicant's capacity to practice a medical practitioner.
3. Impairment is relevantly defined as a physical or mental impairment, disability, condition or disorder that detrimentally affects or is likely to detrimentally affect a practitioner's capacity to practise the profession: s5 of the National Law.
4. The Medical Council simply requested that Dr Newnham provide a report of her assessment. Other than the question of impairment, Dr Newnham was not asked to address any other questions. The request for a report was framed as being in addition to the 3 monthly assessment reports she had been preparing, the last such report being that of 3 February 2025.
5. It is clear from Dr Newnham's commentary that her report went beyond the terms of the question of impairment that she was asked to address, and she ventured into questions of the applicant's probity and the argued risk he posed to others as a medical practitioner.
6. In that regard, Dr Newnham's commentary seems remarkable in the context of a 30-minute interview which necessarily covered the content of matters arising from the 700 or so pages of material that had been provided to her just a few days earlier, also having regard to the detail of her previous interviews of the applicant.
7. In those events, Dr Newnham concluded her report with the generalised statement that the applicant "represents a high risk of repeating this behaviour and as such, represents a risk to the general public in the course of his practice of medicine".
8. A close reading of Dr Newnham's report does not readily identify precisely what she meant by her use of the expression "this behaviour" in relation to the applicant.
9. It may be inferred from a fair reading of her report that use of the expression "this behaviour" in her summary referred to the untested allegations made by the daughter of the applicants patient who had described some narrative details of the relationship between herself and the applicant, where topics such as messages, gifts, an offer of a relationship, discussion of financial issues, sexual encounters, oscillating offers of affection, acceptance of financial contributions from her, and a continuation of contact between them even after the second s 150 inquiry, were treated as established facts.
10. It appears from the form and content of Dr Newnham's fifth report, that the above summary of factual matters was obtained from the "new information" provided to her by the Medical Council, and as such, it did not represent a history obtained from the applicant when she assessed him on 24 February 2025.
11. The structure of Dr Newnham's report proceeded according to the following sections:

(1) At page 6, she noted a precis of her series of earlier assessments where she recorded the applicant's polite and respectfully voiced insights into potential harm that boundary violations have on patients and vulnerable relatives, and that he appeared to take responsibility for his actions, where ultimately, no concerns of a cognitive impairment was raised;

(2) At page 6, she summarised her telehealth consultation with the applicant, where:

(a) She had sought clarification of the applicant's history of childhood trauma;

(b) She recorded his belief as to the applicant's mental health diagnoses;

(c) She referred to the applicant's own "stuff", meaning his depression, which he said was suppressed by him because of his wife's depression;

(d) She referred to the applicant's belief that his two historical instances of boundary violation were a function of his own trauma background and his view of his own diagnoses;

(e) She referred to the applicant having provided her with over-inclusive detail in discussing his boundary violation with the daughter of his patient, and she referred to his feelings of guilt over that relationship and of his desire to have ended it;

(f) She referred to the applicant's non-disclosure of the offer of financial support from the daughter of his ex-patient, where it was not clear as to whether he had in fact raised that topic with the applicant as a question to be answered;

(3) At pages 5-7, she set out a brief outline of her mental examination of the applicant where she observed what she considered to have been was less consistent eye contact followed by a loss of eye contact when asked about his relationship with the daughter of his patient, and his own history of psychiatric symptoms. In the context of an interface on a screen interview, given the different nature and context of that medium, compared to a face-to-face conversation, there is an emergent question of the reasonableness of Dr Newnham's credibility assessment based on "eye contact" on screen, where the applicant's eyes and her eyes would not have had "contact", or there may have been a reason why the applicant looked away from the screen at given points;

(4) She then went on to record the tentative or qualified view that the applicant's insights into the nature of boundary violations did not appear to be sustained, citing applicant's view that the daughter of his patient had been the instigator of the relationship and he had tried to get away from her advances. Accepting that the applicant was the ethical transgressor in that relationship, Dr Newnham's comment as to a short fall in the applicant's sustained insight seemed odd and lack analytical balance, where the underlying assumption seems to have been that the daughter of the patient played no conscious part in the commencement and the evolution of that ill-advised relationship;

(5) At pages 7 and 8 of her report, Dr Newnham made a series of non-definitive or qualified statements, as follows:

(a) After referring to unidentified inconsistencies in the histories recorded by various assessors in the material she had reviewed, in circumstances where the applicant did not have that material, she stated that:

(i) the applicant appears to have initiated the relationship with the daughter of his patient, and it appears that he manipulated her emotional vulnerability;

(ii) It appears likely the applicant knowingly altered his presentation at different mental state examinations to suit his purposes. She did not cite examples of that behaviour;

(iii) It appears the applicant has been deliberately evasive on topics he did not wish to answer. It was not clear whether that comment applied to her clinical examination of the applicant or whether it was a conclusion she drew from documents, and the topics where not specifically identified;

(iv) It is highly improbable that the severe systemic ritualised abuse the applicant claims to have been subjected to between the ages of 4 and 8 would have taken place. Her reasons did not provide much in the way of detailed reasons to support that view;

(v) The applicant's history of family and professional and life and the absence of a history of him taking time off work did not in her view support a claim of him having dissociative identity disorder;

(vi) The fact that there was a past complaint of sexual harassment of a female registrar and the claim that the applicant had been overheard speaking inappropriately to female patients on several occasions, "suggests a pattern of predatory behaviour";

(vii) The applicant does not appear to be suffering from a diagnosable mental condition impacting on his capacity to practice medicine;

(viii) The applicant's "stated history contains significant elements that are likely factitious";

(ix) The "available information suggests" the applicant "has a pattern of predatory behaviour towards women in positions of relative vulnerability":

(x) The applicant appears to lack true awareness of the impact of his behaviour towards the daughter of his patient;

(xi) The applicant has made repeated attempts to mislead regulatory authorities;

(xii) Crucial omissions and misleading statements appear in the histories the applicant has provided to various assessors, practitioners, the Medical Council, and the HCCC;

1. After briefly considering and excluding the diagnoses of dissociative identify disorder, complex post-traumatic stress disorder, and psychoses, without reference to DSM criteria, Dr Newnham concluded her report by stating her finding that the applicant "represents a high risk of repeating his behaviour and as such, represents a risk to the general public in the course of his practice of medicine".
2. The extent and the content of Dr Newnham's cited comments, and the speculative and unreasoned bases for them, calls for a critical evaluation especially since her analysis and report seem to have strayed far from the simple question of impairment that she was asked to address, and many of her cite remarks were gratuitous to that question.
3. Whilst Dr Newnham answered the question of impairment in the negative, without identifiable reference to DSM criteria, the additional commentary which strayed from that question, is arguably problematic, as outlined above.
4. Summing up the analysis of the critical commentary in Dr Newnham's fifth report in terms of cogency and reliability, several comments necessarily arise:

(1) First, it does not meet the expected standard of reasoning expected of reliable expert evidence as it contains sweeping and unreasoned ipse dixit statements that attract criticisms in terms of reliability: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [59], [87];

(2) Secondly, the report is built upon the foundations of procedural unfairness in circumstances created by the Medical Council, where the applicant was not provided with copies of the extensive "new information" before Dr Newman's fifth assessment of him, and that material formed the basis of her assessment;

(3) As will become apparent in the analysis of proceedings before the delegates of the Medical Council at the s 150 hearing on 31 March 2025, the problematic nature of Dr Newman's report on her assessment of the applicant infected that process, where the procedural unfairness to the applicant was then compounded at that hearing.

(6) The s 150 hearing on 31 March 2025 before the Medical Council

1. At the commencement of the s 150 hearing on 31 March 2025, consistent with the applicant being monitored in the Medical Council's impairment health programme, but for the content of Dr Newnham's report dated 24 February 2025, it was reasonable to assume he was an impaired practitioner at that time.
2. A review of the 31 March 2025 transcript of the s 150 hearing is instructive. It appears from that transcript that the applicant was disadvantaged in that he did not have the fair opportunity of reading the entire brief of evidence on which he was being questioned by the delegates: T39.43; T39.9.
3. This raises an obvious question of procedural fairness.
4. That question could not be clarified as the introductory portion of the record of the s 150 proceedings on 31 March 2025 makes no particular reference to what materials were before the delegates in the form of the "brief" for their consideration and there was no clarification as to the detail of what the applicant had been given prior to the hearing. Those questions cannot be resolved by unsupported speculation.
5. It also appears from the transcript of the s 150 proceedings that when the applicant was being closely questioned by multiple delegates some confusion arose on his part as to whose questions he was being required to answer, for example when he was being questioned about the factual accuracy of the material produced by the daughter of his patient where he was seeking to make the point that the material under discussion was not entirely correct. At that time he said he needed help to sort out that confusion: T31.8 - T32.32.
6. The transcript shows that the Medical Council delegates at the third s 150 inquiry questioned the applicant in two broad categories, as follows.
7. The first broad category of questions sequentially concerned the applicant's understanding of the conditions on his practice and his compliance with those conditions. He was asked questions about his working hours, his workload, his places of work, matters of supervision, his attendance on medical and allied health practitioners, his medications his health and physical fitness, his hearing acuity, his view of his cognitive and organisational abilities as they have an impact on his work, and whether he thought he had in the past neglected his own health. He acknowledged that he had been slow and had delayed taking some remedial measures in that regard. He said he had taken those matters on board with attention to exercise and to matters of work / life balance: T8 to T23. The delegates did not refer to that positive aspect of his evidence in reaching their conclusions.
8. With specific reference to the matter of the applicant's breaches of his conditions of practice, where it appears these arose because of a misunderstanding on his part as to whether a home visit or a nursing home visit required disclosure to the Medical Council as a relevant change in a place of practice (T8.36 - T10.9), for which he apologised, and whether obtaining a repeat prescription in circumstances where his doctor was not available as he was on holidays (T15.20 - T15.44), for which he also apologised, was a breach of his conditions of practice.
9. In their written reasons on 1 May 2025, the delegates ultimately characterised this as an inability to abide by conditions, which seems somewhat incongruent with their earlier stated view on 21 March 2025, in which they accepted that those breaches were at a low level not requiring suspension: T47.17.
10. The delegates determined that suspension was called for because of matters arising from the report of Dr Newnham: T47.31.
11. That observation by the delegates leads to a consideration of the second category of their questioning of the applicant, which related to some selected content extracted from Dr Newnham's fifth assessment report dated 24 February 2025. Those elements, some of which were troubling from the perspective of procedural fairness, were essentially as follows:

(1) The applicant was questioned over whether he held the view that he had the psychological conditions comprising dissociative identity disorder and complex post-traumatic stress disorder in the context where the delegates were pointing out those diagnoses were "not mentioned" by a number of psychiatrists who had examined him, and where Dr Newnham had said those diagnoses had been excluded by her. The applicant was interrupted in answering that important question when a delegate chose to reframe the question and his answer to the preceding question was left incomplete (T25.44), and the remainder of the answer to the preceding question was therefore lost by reason of the demands of the next pressed question: T 26.2. That sequence of elements raised concerns over procedural fairness of that process where the applicant had a right to be heard in his own defence on such matters of challenge;

(2) The applicant took the position that he disagreed with Dr Newnham's conclusions which excluded the diagnoses of dissociative identify disorder and complex post-traumatic stress disorder. In that regard, reasonably, as a medical practitioner himself, he questioned whether those diagnosable conditions could reasonably be excluded after some 30 minutes of questioning in conversation with Dr Newnham, where the nature of the assessment process was neither therapeutic nor diagnostic: T26.7;

(3) The applicant was questioned on a series of extracts from the summary section of the report of Dr Newnham dated 24 February 2025, as follows:

(a) It was put to him, without specificity, that there were inconsistencies in his interviews and correspondence about a particular relationship. In the process, prefaced by the statement that the delegates wanted "to be fair" to him, troublingly, the applicant was told: "... I want you to bear in mind that we've read the entire brief. we know a lot about what you've said in the past, we don't want to hear the same thing again ... We don't need to her the full reasoning, because we've been through the whole brief and we know all about your history." The inherent opacity of that black box style of questioning whereby he had no indication of what was on the minds of the delegates when that comment was made, raises concerns over procedural fairness. Unsurprisingly, given the unparticularised assertion of inconsistency, the applicant indicated he did not know how to answer the question: T27.9 - T27.38. When the delegates tried to follow up the question of inconsistencies, again, without particulars, saying: "It's not a judgment" (T27.47), it was also unsurprising that the applicant was at a loss to answer the question as he was not told precisely or squarely what it was that he was being specifically asked to comment upon: T28.5. That troubling process arguably operated to deny him the procedurally fair opportunity to give a considered answer to the specifics of the topic that was of concern to the delegates, but which had not been adequately exposed to him for comment;

(b) Dr Newnham's conclusion to the effect that it appeared to her he had manipulated emotional vulnerability of the daughter of his patient was put to him for comment: T29.42. In a long and complex answer, in hindsight he acknowledged that to some extent he had done so, but in his answer, he raised issues concerning the truthfulness of aspects the account on which the questioning was based.: T29.43 - T31.43. The difficulty in arriving at reliable adverse credibility findings on conflicting factual accounts in circumstances, where the evidence is yet to be tested, is obvious;

(c) The applicant was questioned about whether his relationship with the daughter of his patient was sexual. He denied successive questions along those lines in absolute terms: T32.38 - T 32.40. Again, the difficulty in arriving at reliable credibility findings on conflicting factual accounts in this context, where the evidence is yet to be tested is obvious;

(d) The delegates drew the applicant's attention to Dr Newnham's impression that he had presented with marked inconsistencies in his mental state examinations over the course of time and he was questioned about this: T35.8 - T36.17. In his response the applicant made a fair point, saying that he disagreed with Dr Newnham's conclusions, saying they were incorrect, and they were not based on reasonable diagnostic assessments in circumstances where he was not able to convey the nature of his condition to her in the relatively short time available to him: T36.6. It appears from the face of the record that the delegates did not take that factor into account in reaching those conclusions;

(e) Whilst the applicant was in the process of giving an explanation for what was perceived by the delegates to be inconsistencies in the results of mental state examinations of him at different interviews, whilst he was developing the point that in contrast, inconsistencies may be consistent with an underlying diagnosis, the flow of his explanation appeared to have been interrupted: T36.14 - T36.22. The questioning then resumed, by a different delegate, and raised the different subject of the applicant's claim of severe ritualised abuse as a child. The delegate identified the change in topic (at T36.27) by quoting from Dr Newnham's report dated 24 February 2025, and then proceeded to ask a plainly disrespectful question of the applicant (who has consistently claimed he has a mental illness) using the words "blah blah blah" as a preface to quoting Dr Newnham's opinion stating: "It's highly improbable that abuses of this [sic for kind] would have taken place in the setting described." A fair reading of the record shows that the applicant was plainly taken aback by that question, where ordinarily in such a setting, allowance must be made for the potentially discombobulating effect of that sequence of questions. The record shows that the applicant then asked: "Am I responding to that paragraph?" When he was invited to do so, he gave the dignified answer: "Well, (referring to Dr Newnham) she's welcome to her opinion about it being improbable. I'm not agreeing with her opinion." In that setting, given the applicant's reported history of mental illness, and given the context where his right to practice was at risk of cancellation, that style and tone of questioning was somewhat troubling. Given that at that time the applicant was regarded by the Medical Council as an impaired practitioner who was subject to conditions on his practice, where he claimed to be affected by psychological issues, in the circumstances, a more considerate trauma informed approach to the issues was expected;

(f) the applicant was then asked to comment on a question of dual content that seemed to be making a connection between events that occurred 10 years apart (at T37.6 to T37.17), namely, first, his relationship with his registrar and secondly, upon Dr Newnham's recitation of the unparticularised allegation that he had been overheard to "speak inappropriately to female patients on several occasions" and Dr Newnham's conclusion that: "This suggests a pattern of predatory behaviour." The applicant responded to that question (at T37.119 - T38.23), by saying, in hindsight, whilst he considered that relationship with his registrar 10 years earlier was one of mutual consent, he has since come to see that there was a power imbalance in the relationship which he deeply regretted, although at the time he was unaware, and did not think that was the case. His response to the second part of the question was that he questioned how the daughter of his patient with whom he had a relationship could have heard him speak to female patients in the manner cited in the question he was asked to address. The unparticularised speculative basis of that questioning was problematic.

(7) Medical Council's reasons for suspension order on 31 March 2025

1. On 31 March 2025, the applicant's practice and health conditions were re-considered by the Medical Council delegates, and it was determined that his suspension the appropriate public protection measure. It was plain from the reasons of the delegates that their conclusions were arguably infected by the reasoning of Dr Newnham, which they largely adopted.
2. Accordingly, following the s 150 hearing, the applicant was handed a Medical Council letter advising him that from 5pm that day, his medical registration would be suspended, and it would remain so until removed by an appropriate adjudication body, namely the New South Wales Administrative Tribunal on appeal, or by a Professional Standards Committee, or by the Medical Council itself. At that time, the applicant was advised that written reasons for the decision to suspend the applicant would be provided to him within 30 days.
3. On 1 May 2025, the written reasons of the Medical Council's delegates were made available. In those reasons the delegates of the Medical Council referred to the applicant's earlier disciplinary history, the earlier complaints against him, including the applicant's responses, and noted that following the second of the two earlier s 150 hearings, the differently constituted s 150 panel of delegates had stated:

"The delegates made no changes to [the applicant's] conditions as they felt that the issues raised were largely the same as at the November hearing. However, the delegates expressed their concerns about [the applicant's] integrity and character. They felt that he had been untruthful and had actively colluded with [the daughter of a patient] to conceal the nature and extent of their relationship. He gave misleading information to the [hospital], HCCC and to the Medical Council."

1. Notwithstanding the notation of that cited historical conclusion, the delegates in the third s 150 inquiry decided to suspend the applicant rather following an alternative pathway of imposing either the same or differently curated conditions that would allow the applicant to continue practising. The process was critically characterised in the submissions made on behalf of the applicant as an unjustified rolling inquiry by the Medical Council to seek a desired result from a differently constituted panel of delegates.
2. The pivotal event which seems to have persuaded the delegates to take that course of imposing a suspension and referral to the applicant to the HCCC pursuant to s 150D of the National Law for the matter to be dealt with as a complaint for investigation was the content of the contentious report from Dr Newnham as outlined above.
3. On the basis of Dr Newnham's non-diagnostic assessment, the delegates considered that the applicant was not suffering an impairment, and this was notwithstanding that they had before them a report dated 1 November 2023 from Professor Anthony Samuels, a consultant psychiatrist who had examined and taken a history from the applicant where he recorded the applicant noting was depressed and stressed, and said, in nuanced terms, that he "could find no clear evidence" the applicant was suffering from an impairment within the meaning or definition of the National Law, although he had concerns about the applicant's underlying personality vulnerabilities where he had difficulty setting work load limits and had in the past managed his issues by a pattern of harmful drinking (which was later addressed by the imposition of conditions on his practice). That was a more cautious evaluation than Dr Newnham's exclusionary conclusions.
4. In their analysis, the delegates took the view that the applicant demonstrated very poor judgment and poor self-regulation. In particular they came to the following conclusions:

(1) His behaviour demonstrates "very concerning behaviours of dishonesty" towards the woman with whom he had a relationship (the daughter of a patient), towards the hospital where he was formerly employed, and to the regulators. This was a factor which had already been considered at the previous s 150 hearings.

(2) He has an ability to fabricate stories to evade regulation. This was not particularised;

(3) His evidence about his intentions and motives should be weighed extremely cautiously. This was a remarkable statement given he had been prevented from completing relevant aspects of his evidence at the s 150 herring;

(4) there was a problem with compliance with Condition 6 of his health conditions, namely that he had self-prescribed on at least 2 occasions and with regard to notification to the regulator of changes to his employment. This was paradoxical because of the earlier intimation that these were considered to be comprise low level breaches that of themselves did not call for suspension;

(5) He had not been assiduous in relation to his own health. That conclusion made no reference to the applicant's earlier efforts in which he described having made changes in relation to his health and his life style as previously recorded by Dr Newnham;

(6) Significantly, the delegates considered, based on Dr Newnham's opinion, that the applicant's prior complaint's history provides evidence of "a pattern of predatory behaviour against women in vulnerable positions". This conclusion by Dr Newnham was a matter in contention where it is questionable that two instances 10 years apart could reliably base the conclusion that there was a pattern as postulated by Dr Newnham.

1. The delegates considered that those factors weighed heavily in favour of suspension in the interests of the protection of the health and safety of the public, citing the issue of an assumed urgency of the case and the decision in Pridgeon v Medical Council of New South Wales (2022) 108 NSWLR 263 [2022]; NSWCA 60, at [70], thus characterising the applicant's situation as purportedly being one requiring urgent consideration and regulatory intervention.
2. The delegates then went on to conclude that it was necessary to suspend the applicant rather than to impose conditions on his practice. They expressed those conclusions in the following conflated terms, where their view that there was "evidence of predation" was given primary emphasis:

"We believe that the only sufficient regulatory action is suspension. While [the applicant's] case is being investigated we think that the risk to the health and safety of the public, given the evidence of predation, factitiousness and dishonesty explored above, is too high to allow [the applicant] to practice. We also think that suspension is justified on (sic) the public interest".

[Emphasis added]

1. On that basis, where the "risk" was not defined, the delegates exercised the power conferred by s 150(1)(a) of the National Law to order that the applicant's medical registration be suspended. In doing so, the assumed inappropriateness of a continuation or a variation of conditions was not elaborated upon in detail.
2. It is clear from the passage cited at paragraph [110] above that the suggested notion of predation featured prominently in the thinking of the delegates.
3. On the foregoing analysis it is reasonably arguable that the conclusions of the s 150 delegates became materially infected by the content of the problematic report of Dr Newnham dated 24 February 2025.

(8) Grounds of appeal filed and basis of stay application

1. On 2 April 2025, the applicant filed his appeal pursuant to s 159 and s 159B of the National Law together with his application for a stay pursuant to s 159B of that law, sequentially claiming that the suspension decision of the Medical Council was unreasonable; that the Medical Council delegates took into account an irrelevant consideration; and failed to take into account a relevant consideration. On those grounds, the applicant claimed that the suspension decision was afflicted by an error of law. The filed grounds of appeal foreshadowed that other grounds of appeal may emerge. The grounds were more precisely defined in the submissions of the parties.
2. The more focussed ground that emerged in the course of submissions was the question of procedural fairness involving the process by which Dr Newnham's contentious opinions came into being where she raised the speculative suggestion that the applicant's past behaviours demonstrated a pattern or predatory behaviour.

1. The parties each made extensive written and oral submissions on the stay application, as follows:

(1) Applicant's submissions dated 7 May 2025 arguing for a stay: MFI "1', pp 1 - 20, paragraphs 1 - 80;

(2) Respondent's submissions dated 21 May 2025 opposing a stay: MFI "2", pp 1 - 19, paragraphs 1 - 89;

(3) Applicant's submission in reply: MFI "3", pp1 - 13, paragraphs 1 - 65.

(4) Extensive oral submissions proceeded over the course of two days on 30 May and 2 June 2025. A volume of authorities was also delivered in the course of the respective arguments.

1. In essence, the applicant argued that in the interests of justice between the parties, a stay of the Medical Council's suspension order should be granted. In support of that argument the applicant claimed that 5 points of law clearly arose, each involving reasonably arguable elements of legal unreasonableness that form the bases for his appeal. The applicant claims each of those points infect and afflict the decision of the Medical Council, as follows:

(1) First, the applicant claimed that the Medical Council did not have the power to order a stay, as there were no urgent circumstances enlivening the emergency power with s 150 of the National Law;

(2) Secondly, the applicant claimed that the Medical Council had denied him procedural fairness, or had adopted a legally unreasonable process by acting upon the basis of Dr Newnham's psychiatric report which followed an assessment prepared using undisclosed documents where he had not been given prior notice of the content of those materials despite repeated requests on his behalf in that regard;

(3) Thirdly, the applicant claimed that the Medical Council failed to consider its own prior decisions in relation to the practitioner as required by s 41O of the National Law, and therefore it failed to consider a mandatory consideration of material of relevance;

(4) Fourthly, the applicant claimed that the Medical Council did not consider whether the perceived risk posed by the practitioner could be addressed by the imposition of practice conditions protective of the public pursuant to s 150(1)(b) of the National Law, and by not doing so, it therefore failed to consider a mandatory consideration of relevance;

(5) Fifthly, the applicant claimed that the Medical Council, in finding that there was a "pattern" of predatory behaviour on the basis of two instances of the practitioner's romantic relationships occurring some 10 years apart and involving different facts and persons, made an irrational finding of fact that was critical to the decision that it had made.

1. Overarching those arguments is the fundamental question of whether a denial of procedural fairness had infected the process before the delegates of the Medical Council so as to vitiate its decision to suspend the applicant.
2. At the hearing of the application for a stay, it was not disputed that if one of the argued grounds concerning the points of law raised by the applicant is upheld that could be a sufficient basis to infect the suspension to render it invalid and inoperative, which would in turn justify an order for the suspension decision to be stayed pending the determination of an appeal: T19.37 - T20.17
3. The applicant's overall submission was that the balance of convenience justified a stay order.

1. The respondent's submissions traversed the five points of argument raised by the applicant, and in essence argued to the contrary, as follows:

(1) As to the applicant's first claim, namely the argued absence of a relevant urgency, the Medical Council argued it had acted as quickly as possible in view of the sense of urgency that arose for Dr Newnham's expressed opinions, including, by reference to the applicant's alleged predatory behaviour, her view that the applicant did not have a mental health condition, and in light of his non-compliance with certain conditions that had been placed on his practice;

(2) As to the applicant's second claim, namely that of an argued denial of procedural fairness, the respondent submitted that no such denial arose, arguing that having regard to the time line of events, the applicant had ample opportunity following Dr Newnham's assessment to address any disadvantage that may have resulted from the circumstances of her assessment;

(3) As to the applicant's third claim, namely that of an argued failure of the delegates to refer to and have regard to previous s 150 hearings, decisions and outcomes, the respondent pointed to several pages of text within the s 150 reasons dated 1 May 2025 to argue to the contrary, arguing that this point should be "swiftly dismissed" as the delegates had considered those matters;

(4) As to the applicant's fourth claim, namely that of a claimed failure to consider whether curated conditions were appropriate rather than suspension, the respondent argued that point had been adequately considered by the delegates, and the fact that a different outcome was being suggested did not necessarily mean that there was a relevant legal error;

(5) As to the applicant's fifth claim, namely the alleged pattern of predatory behaviour being an irrational basis for the conclusion arrived at, the respondent argued that it was open to the delegates to make the suspension decision on the basis of the evidence of Dr Newnham.

1. The respondent developed those arguments claiming that each of the points raised by the applicant lacked reasonable prospects of success. Consequently, the respondent submitted that the application for a stay should be refused, with the result that there was no emergent need to consider the issue of conditions. The respondent submissions then went on to raise four reasons as to why the application for a stay should be refused, as follows:

(1) The "errors of law" alleged by the applicant do not concern any of the bases upon which the delegates made their suspension decision;

(2) Some of the alleged errors argued by the applicant were not "pure points of law", arguing that they needed to be pure points of law to justify a stay;

(3) All of the alleged errors of law argued by the applicant fell short of the required standard of reasonable prospects of success, which was the essential pre-requisite for a grant of an order for a stay;

(4) As a matter of discretion, a stay should be refused.

1. Those submissions were developed by reference to the outcomes of the successive s 150 hearings which have been summarised at paragraphs [27] to [41] above.
2. The respondent's submissions placed heavy reliance on the content of Dr Newnham's reports especially her fifth report, which required critical analysis, as outlined in paragraphs [44] to [90] above.

1. In essence, the applicant's submissions in reply took issue with respondent's reliance on the meaning of the term "a point of law" citing authorities to support those criticisms. In essence, the applicant's submissions in reply adhered to the previously enumerated arguments, as follows:

(1) The question of urgency was an essential gateway which operated as a pre-requisite to the Medical Council exercising its power to suspend the applicant. The effect of the submission in reply was that a proper analysis does not reveal the requisite urgency;

(2) On the question of procedural fairness, the applicant argued there was an inherent false premise in the respondent's submissions. The applicant argued that the circumstances leading to and including Dr Newnham's assessment based the claim of a denial of procedural fairness. The applicant argued that the respondent's answer to that point, namely a claim that the applicant had an opportunity to remedy or cure the disadvantage, was no answer to the procedural unfairness that had already infected the process, irremediably so;

(3) On the question of whether the argued ground that the delegates had failed to consider previous decisions concerning the applicant's history of involvement with the Medical Council should be "swiftly rejected", the applicant argued that it was insufficient for the delegates to simply note or refer to those earlier decisions without grappling with them when deciding there should be a change in the outcome compared to those previous decisions which were decided on known facts. The applicant argued that it cannot be a permissible use of the power conferred by s 150 for the Medical Council to conduct rolling proceedings in relation to the same facts with different delegates until a particular outcome is achieved;

(4) On the question of whether, as a matter of discretion, conditions should have been imposed rather than a suspension, the respondent's reliance on the finding of an absence of an impairment (thus rendering conditions inutile), is dependent upon the reliability of Dr Newnham's commentary, especially the suggestion of predation, which is open to serious question on the claimed ground of a denial of procedural fairness.

(5) On the question of an asserted pattern of predatory behaviour, the applicant pointed to the absence of supportive reasoning by the Medical Council delegates to sustain that argument and argued the description was therefore inapt and unsustainable on the evidence.

1. The applicant's submissions in reply concluded with the following remarks seeking a rejection of the respondent's characterisation of events:

"[The applicant's] submissions do not 'contain an implicit submission that the risk should not concern the Tribunal because the conduct is either not viewed sufficiently serious or because it only concerns two women' ... That has never been [the applicant's] case and the submission ought to be withdrawn. Indeed, the fact that it is described as an 'implicit' submission is telling, being a concession that it is not an 'explicit' submission. To be absolutely clear, [the applicant] is not saying that the risk identified by the Council should not concern the Tribunal - he is saying that the risk can be properly managed with conditions."

1. The respondent did not withdraw the impugned submission cited in that passage.

1. Given the range of arguments raised in this case it is pertinent to make some preliminary observations concerning the applicable legal principles.

1. First, indisputably, according to law, at every stage of proceedings, including administrative proceedings of the kind that were before the Medical Council at the third s 150 inquiry, persons in the position of the applicant at risk of adverse findings being made against them were at every stage of the process entitled to a procedurally fair opportunity to respond to allegations raised against them in the interests of a fair determination of the issues. That is especially so where the circumstances include the potential for a determination that could have an adverse impact on medical registration, irrespective of any prior history of engagement with the Medical Council.
2. Procedural fairness or practical justice is not an abstract concept. The concern of the law is to avoid practical injustice: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003) 214 CLR 1, at [37].

Reasoned exercise of discretion according to the justice of the case

1. Secondly, in cases where discretionary decisions are made that affect the rights of individuals, the exercise of a discretion must proceed according to recognised principles of fairness to the persons affected, including by the provision of appropriate and adequate reasons for such decisions according to the justice of the case House v The King [1936] HCA 40; (1936) 55 CLR 499, at pp 503; 505; Gray v Richards (No 2) [2014] HCA 37, at [2]; Northern Territory v Sangare [2019] HCA 25, at [25].

1. Thirdly, in cases where an appellate jurisdiction is invoked, including in stay applications where considerations arise as to appropriate use of resources as described in Lindholdt v Hyer [2008] NSWCA 264 at [185], following the reasoning explained in Rebenta Pty Ltd v Wise [2009] NSWCA 212, at [11], citing Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206, at [824] - [833], it is sufficient to apply the principle of parsimony in discerning whether any of the identified grounds of appeal are reasonably arguable as pivotal points of law.

1. Fourthly, with regard to the construction of what constitutes a relevant question or matter with respect to a point of law within the meaning if s 159B (1) of the National Law, if the intention of a statute and its terms are sufficiently and unambiguously clear without an evident defect in the drafting, the legal meaning of the words used ought to be taken to corresponded to the ordinary grammatical syntactical meaning. In those circumstances, it is unnecessary and undesirable to invoke and imply extended meanings that depart from the simplicity of words used in the statute: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [78].

Factors for assessing reasonably arguability of grounds of appeal

1. Fifthly, the essential precursor for the grant of a stay requires satisfaction that the appeal has reasonably arguable prospects of success rather than merely raising tenable arguments, that is, showing that something in the underlying decision making process may have gone awry: Segal v Medical Council of New South Wales [2020] NSWCATOD 86, at [97]; Puri v Medical Council of New South Wales [2024] NSWCATOD 87, at [21].
2. That inquiry is multi-factorial, including a consideration of the strength of the applicant's case for an appeal (without trespassing into a determination of the merits of the appeal), along with a consideration of the balance of convenience and weighing the competing rights of the parties in the context of the paramount statutory consideration of the protection of the health and safety of the public: s 3A of the National Law: Liu v Medical Council of New South Wales [2020] NSWCATOD 86, at [92]; Hanna V Dental Council of New South Wales [2022] NSWCATOD 54, at [6]-[9].

1. Sixthly, and overarching those considerations, is the fundamental procedural requirement that in achieving a balance between the interests of the health and safety of the public and individual rights, procedural fairness must be afforded to a person whose individual rights and privileges are at risk of being adversely affected by an administrative decision, in this context, this being a possible cancellation of the privileged right to practise a profession.

1. In the course of their submissions the parties referred to many uncontroversial authorities which will be referred to in context where that becomes relevant in the reasons for decision that now follow.

1. The consideration and determination of the positions adopted by the respective parties proceeds according to the following structure:

(a) Jurisdictional power to order a stay and the onus of proof;

(b) Construction of s 159B (1) of the National Law - "a point of law";

(c) Claim of misapplication of the s 150 emergency power;

(d) Claims of failure of procedural fairness;

(e) Claim of failure to consider earlier s 150 decisions;

(f) Claim of failure to consider relevant matters ;

(g) Claim that Dr Newnham's pattern of predation theory is inapt;

(h) Claim of failure to consider variation of conditions;

(i) Other factors for consideration.

1. The consideration of those matters now follows.

(a) Jurisdictional power to order a stay and onus of proof

1. The jurisdictional power to order a stay pending the determination of an appeal is found in s 165L (2) of the National Law. The applicant bears the onus to make out a case justifying a stay. The overriding consideration to be addressed with regard to whether a stay should be granted is that of the interests of justice. The applicant for a stay of a suspension order must show that the appealed decision involves an arguable error on a point of law: Medical Council of New South Wales v Lee [2017] NSWCA 282, at [113]. This leads to the question of what constitutes a relevant point of law in this case.

(b) Construction of s 159B (1) of the National Law - "a point of law"

1. The construction of expressions such as a matter of law, a question of law, and a point of law which appear in a variety of statutes dealing with different rights and circumstances, where imperfect analogies are invoked to assist in discerning meaning sometimes offer little guidance to the task at hand due to the differing legislative contexts. For example,

(1) In Orr v Cobar Management Pty Ltd [2020] NSWCCA 230, in a stated case yet to be finally determined at trial, the Court of Criminal Appeal was concerned with the meaning of a question of law as used in s 5AE of the Criminal Appeal Act 1912 (NSW). In that case, at [109], it was observed that questions of law are sometimes described as pure questions of law which should not draw an appellate court into questions of fact.

(2) In Haritos & Anor v Federal Commissioner of Taxation [2015] FCAFC 92, the Federal Court was concerned with the right of a litigant to appeal to that Court on a question of law pursuant to ss 44 of the Administrative Appeals Tribunal Act 1975 (Cth). In that case, at [62], it was determined that the reference to a question of law in s 44 of the cited Act should not be read as if the word "pure" qualified the words "question of law". In that case it was also determined that that not all questions of mixed fact and law stand outside an appeal on a question of law.

(3) In Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390, at [24]-[25], a question with respect to a matter of law as provided by s 67(1) of the Consumer Trader and Tenancy Tribunal Act 2001 (NSW) was described as including decisions on questions of law but not decisions on questions of fact. However, in that case, at [91], the plurality held that when a Tribunal decides a question of fact for which there is no evidence, that is an error of law;

(4) In Donohoe v Albulario [2025] NSWSC 9, consideration was given to the meaning of a question of law as referred to in s 83 of the Civil and Administrative Tribunal Act 2013 (NSW). In that case, at [33], in identifying the facts / law dichotomy, attention was drawn to the danger of imposing additional constraints on statutory language, where in the context of an appeal, facts will always be relevant, especially in cases where there is a claim that the appealed decision was procedurally unfair.

1. In the present case, I consider that the terms and the context of s 159B (2) of the National Law are clear and unambiguous. The regulatory objective of the statute when read as a whole is to protect the health and safety of the public. The requirement in that provision for there to be an identified point of law as a basis for a stay does not refer to any sub-species or sub-categories of points of law such as a pure point of law or mixed points of fact and law as was argued by the respondent as a threshold for an entitlement or a barrier against the relief sought.
2. Accordingly, in construing s 159B (2) of the National Law, there is no need to construe the term "a point of law" in s 159B (2) to give it the restricted meaning of a pure point of law as was submitted by the Medical Council. In the circumstances, that would be an unwarranted interpretation of that provision.
3. Drawing upon and following the cited remarks in Orr v Cobar Management Pty Ltd, supra, at [109]; Haritos & Anor v Federal Commissioner of Taxation, supra, at [62], and Donohoe v Albulario, supra, at [33], I consider that the meaning term "a point of law" appearing in s 159B (2) of the National Law should not be confined to matters concerning pure points of law but should also extend to include matters involving points of mixed fact and law.
4. Accordingly, the remaining arguments of the parties will be determined on that basis.

(c) Claim of misapplication of the s 150 emergency power

1. In Pridgeon v Medical Council of New South Wales, supra, at [56] the proper context for the use of the emergency power of suspension of a medical practitioner was considered. There, it was determined that the power of the Medical Council to suspend a practitioner should be reserved for urgent cases where there an emergent necessity to take urgent action for the protection of the public.
2. Just prior to the applicant's suspension, he was being regularly supervised and monitored as a participant in the Medical Council's impaired practitioner health programme. As such he had been the subject of periodic reviews and supervisory scrutiny in the context of a range of stringent conditions that had been placed on his practice, as outlined at paragraph [42] above.
3. On that basis, up until the time of the suspension order on 31 March 2025, the Medical Council, obviously by its actions, considered those imposed conditions served to satisfy the paramount consideration of the need to protect the health and safety of the public, especially where in those circumstances there had been no further complaints about the applicant's practice.: s 3A and s 3B of the National Law.
4. The change in the Medical Council's position which led to the present proceedings was based on Dr Newnham's views on the untested "new information" received from the HCCC which had not been disclosed to the applicant in a timely manner that would have otherwise enabled him to reasonably consider and meet the content of that material at the time he was reassessed by Dr Newnham. Instead, at that assessment he felt apprehensive, frozen, and as I read his evidence, somewhat discombobulated. In the circumstances, he felt that he had not done justice to the questions that Dr Newnham had asked him at that assessment. That evidence was not challenged.
5. In those circumstances, the applicant's challenge on appeal with respect to a point of law is that that the Medical Council had misapplied the emergency powers conferred by s 150 of the National Law when it convened the third s 150 hearing. That challenge is based the absence of any cogent evidence of an urgency or an emergency situation which would have otherwise justified invoking that emergency power.
6. That challenge assumes, with considerable persuasive force, that Dr Newnham's report dated 24 February 2025 arguably falls short of the expected standard of reliability of reasoning for cogent expert evidence.
7. In developing the non-emergency argument the applicant pointed to the standard procedure which should have otherwise been adopted, namely, to proceed by way of particularised complaint, as explained in Pridgeon v Medical Council of New South Wales, supra, at [70].
8. Furthermore, the persuasive force of that argument is reinforced when due regard is had to the second limb of s 150, as explained in Medical Council of New South Wales v Smithson [2021] NSWCA 53, at [20], namely, that the public interest consideration, does not enable the Medical Council to undertake an inquiry at large, or a series of rolling inquiries on largely unchanged factual bases, as was submitted by the applicant.
9. The context is necessarily limited and confined because it is protective in character, as also explained in Pridgeon v Medical Council of New South W_a_les, supra, at [57] and [68]. This raises for reasonable consideration the question of the appropriateness or otherwise of conditions and their enforcement as an appropriate public protection measure.
10. In developing that argument, the applicant tellingly pointed to the fact that if the circumstances in question had truly amounted to an emergency concern for public health and safety, the Medical Council would not have taken 5 weeks from the time of Dr Newnham's assessment on 24 February 2025 until 31 March 2025, to convene the third s 150 hearing.
11. The Medical Council's counter argument to that proposition was that it had acted "as quickly as possible" in the circumstances. However, an examination of the time line of events persuasively suggests otherwise, according to the following chronology of events:

(1) On 23 January 2025, the Medical Council received a letter from the HCCC with "new information" concerning the applicant. It did not brief Dr Newnham with that material until 28 days later, on 20 February 2025. Notably, for whatever reason, it held back from briefing Dr Newnham with those materials for the scheduled review assessment that was due to take place 11 days later, on 3 February 2025;

(2) On 3 February 2025, following a routinely scheduled assessment, Dr Newnham maintained the earlier expressed view that the serious nature of the historical circumstances required that the applicant practice under identified conditions for the protection and safety of the public, and she recommended that there be no change made to those conditions;

(3) On 20 February 2025, based on "new information" received from the HCCC on 23 January 2025, pursuant to s 145E of the National Law, the Medical Council directed the applicant to re-attend Dr Newnham for a further assessment without notifying him of the content of that new information;

(4) On 20 February 2025, Dr Newnham received a brief of some 702 pages of material in 19 categories for the purpose of her forthcoming assessment of the applicant. Of those materials 400 pages in 19 categories comprised new material she had not previously seen;

(5) On 20, 21 and 24 February 2025, the applicant's solicitor sought particulars of the new information from the Medical Council, but regrettably, those requests went unanswered;

(6) On 24 February 2025, the applicant attended the scheduled appointment with Dr Newnham, unaware of any specifics of any concerns that might be discussed in that review. There is no dispute that Dr Newnham's assessment on that occasion took about 30 minutes;

(7) On 24 February 2025, the same day as her assessment of the applicant, Dr Newnham prepared and completed her 8 page report of that assessment, as is evident from the face of her report;

(8) On 10 March 2025, after a period of reflection which followed that most recent assessment by Dr Newnham, and without knowledge of the content of her report on that assessment, the applicant sent her an email informing her (a) that the topics on which he had been questioned at the interview on 24 February 2025 had taken him by surprise, (b) he was triggered by the process because of his past history of trauma, and (c), this induced a "freezing" in him, indicating that he felt he had not done justice to the questions Dr Newnham had put to him. There is no available record of her questions;

(9) On 10 March 2025, Dr Newnham, sent a copy of the applicant's email to her of the same date to the Medical Council officer who had arranged the earlier assessment. She did so without comment on the content. There is no evidence that the Medical Council considered or took any remedial steps to either examine or to meet the applicant's concerns or comments, either by asking Dr Newnham to comment on the content of his email or to arrange for a follow-up assessment in light of the applicant's emailed remarks;

(10) On 19 March 2025, the applicant was provided with a copy of Dr Newnham's report, which was difficult reading for him because of the content that was critical of him. At that time he still remained unaware of the details in the content of the underlying 402 pages of material which had based her report;

(11) On 25 March 2025, 1 week after the applicant was provided with Dr Newnham's report, and 4 weeks after first requesting access to then "new information", he was provided with an undigested copy of the 19 categories of material that had been provided to Dr Newnham for the purpose of her reassessment of him. It was difficult reading for him, and he did not agree with all of the content. Clearly, a factual contest was and remains likely on some of the contents.

(12) On 31 March 2025, 1 week after the applicant was provided with the undigested "new information", the third s 150 hearing took place.

1. On that time line, the Medical Council's submission that it had acted as quickly as possible, to adopt a phrase from its own submission on another topic, must be swiftly rejected.
2. In my view, a similar rejection should apply to the Medical Council's submission to the effect that the applicant had an ample opportunity to remedy any perceived disadvantage concerning the 24 February 2025 assessment by Dr Newnham. The applicant's claim of mental health issues, his "freezing" reaction to that interview, and the events of the above time line compel a contrary conclusion, especially where the Medical Council had evidence that the applicant had some organisational issues and he was on the impairment programme.
3. In my view, a reasonable argument with respect to a point of law arises concerning the procedural fairness of those events, namely, whether by design or accident, the above time line served to unfairly disadvantage the applicant in the lead up to and at the ensuing s 150 hearing.
4. By the time of that hearing, the applicant had not managed to read all of "the brief" that was given to the panel of delegates (T39.43; T39.9), but he was questioned on the contents. Irrespective of the merits of the applicant's circumstances under review by the Medical Council in terms of procedural fairness, the events on that time line are troubling, to say the least.
5. In considering the report of Dr Newnham, which is arguably not diagnostic, alongside the applicant's evidence it is plain that there is a dispute over whether the applicant has mental health issues and has a relevant impairment. In that regard, as a medical practitioner who has been seeking and was receiving treatment on that account, it seems reasonable to assume that he has some insights into his own conditions of health, although Dr Newnham expressed doubts about those views.
6. The applicant argued that in the circumstances, the Medical Council's power to order a suspension had not been properly enlivened and the suspension order should not have been made. The applicant argued, reasonably, that this necessarily raised a matter with respect to a point of law. I accept that submission.
7. For the above reasons, I find that the applicant has identified a reasonably arguable matter with respect to a point of law, namely that there was no relevant emergency to justify the Medical Council invoking its emergency powers to convene the s 150 hearing on 31 March 2025. In my view that argument has reasonable prospects of success.

1. The applicant's claim of procedural unfairness in the events that unfolded in the lead up to his deregistration may be conveniently characterise as follows:

(1) There was procedural unfairness in the process that surrounded Dr Newnham's assessment of the applicant on 24 February 2025;

(2) There was procedural unfairness embedded in the process of Dr Newnham's assessment of the applicant on 24 February 2025;

(3) There was procedural unfairness that occurred in the questioning of the applicant at the s 150 hearing on 31 March 2025.

1. As to the first of those factors, inherent in the time line outlined at paragraph [130] above, in the case of a practitioner who at the time was considered by the Medical Council to be impaired, it seems reasonably arguable that the applicant, who had a background history of trauma and vulnerability, was unfairly ambushed by the circumstances of Dr Newnham's assessment, to his procedural disadvantage.
2. In these modern times, a "cards on the table approach" to disputes is the expected standard, not ambush, especially where the litigant emanations of the Crown are involved: Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116, at [31]; White v Overland (2001) 67 ALR 731; [2001] FCA 1333, at [5].
3. The same principles arguably ought to apply to regulatory inquires concerned with public health and safety where the continued medical registration of a practitioner is under the jeopardy by regulatory scrutiny.
4. That view is exemplified by the applicant's unchallenged description of the events as cited at paragraphs [61] and [74] above. It hardly needs stating that in those circumstances it is reasonably arguable that the described circumstances were the harbinger of injustice. As such, it is reasonably arguable that those circumstances identify a relevant matter with respect to a point of law.
5. As to the second of those factors, given the issues at stake for the applicant and the obvious public interest in the orderly processes of the regulatory scheme, it seems reasonably arguable that the circumstances of Dr Newnham's re-assessment of the applicant on 24 February 2025, were troubling from the perspective of procedural fairness.
6. This is because first, the applicant had not been provided with the 470 pages of materials which formed the focus for Dr Newnham's assessment. He therefore had no reasonable opportunity to prepare for that interview, and secondly, it is difficult to envisage how, in the space of an interview of about 30 minutes with the applicant, a person with a claimed background of having been affected by trauma, could fairly cope with answering questions on contentious topics of surprise, including triggering topics, that would have enabled a reliable psychiatric assessment to take place. Confirmation of this point is emphasised by the unchallenged content of the applicant's email to Dr Newnham on 10 March 2025.
7. As to the third of those factors, the matters identified at sub-paragraphs (3)(a) and (e) of paragraph [101] of these reasons concerning the style and the manner in which the applicant was questioned at the s 150 hearing are troubling, if not disturbing, in terms of procedural fairness.
8. In my view, the process by which the applicant was interrupted at the third s 150 hearing whilst giving his explanations, when he was confronted with questions that had been formulated in a dismissively off-hand and disrespectful if not disparaging way he was asked the "blah blah blah" question identified in the preceding paragraph, bespeaks an inherent denial of procedural fairness that was inappropriate to the seriousness of the occasion, when he was not permitted to complete his answers without unwarranted interruption and distraction on matters of important relevance to the deliberations of the s 150 delegates, and to his livelihood as a medical practitioner.
9. The applicant was asked to comment upon Dr Newnham's suggestion that there was predatory behaviour on his part: T37.18 - T37.34. He began his response by seeking to draw a distinction between his relationship with his registrar 10 years earlier, which he said he regretted "tremendously", denying that it was a manipulative circumstance, although in hindsight he acknowledged that there had been a power imbalance.
10. The applicant did not get the opportunity to comment on the second component of the issue raised by that question because at that point, the record of the s 150 proceedings shows that he was then distracted by a delegate's interruption when a different question was asked, which stopped him completing his answer (T38.16) and the discussion then went off on a tangent that was directed according to an apparent questioning agenda of one of the delegates.
11. The applicant was then interrupted again several times (at T39.11; T39.26 and T 39.40) without being able to completely address the critical and contentious issue of the suggested pattern of predatory behaviour before the delegates then adjourned for a short period: T40.5. The impression gained from reading that part of the transcript is that the hearing was arguably cut short, without the applicant being afforded the procedurally fair opportunity of completing his response to a question of fundamental importance to the outcome of the inquiry.
12. After the ensuing adjournment, the delegates returned and proceeded to deliver their preliminary remarks which indicated they were considering suspending the applicant (T40.8 - T41.26) before inviting the applicant's counsel to address them.
13. Whilst the applicant's counsel was able to make submissions to the s 150 delegates aimed at seeking to rebut Dr Newnham's suggestion of predation, the salient point to emerge from those circumstances is that the applicant was precluded from completing his evidence on the very point of concern to the delegates, which necessarily leads to an arguably compelling conclusion that the delegates' consideration of the matter lacked fair balance because he had been denied the procedurally fair opportunity to completely respond to the matters alleged against him: T44.13,
14. In those circumstances I find it is reasonably arguable that the applicant was denied procedural fairness during the questioning he encountered before the delegates at the s 150 hearing. I also find that those circumstances raise an arguable matter with respect to a point of law.
15. It is indisputable that a denial of procedural fairness constitutes a relevant matter with respect to a point of law that justifies an order for a stay: See for example, Donohoe v Albulario, supra, at [33].

(e) Claim of failure to consider earlier decisions

1. On 31 March 2025, the s 150 delegates of the Medical Council were required to consider the previous Medical Council decisions: s 41O; Part 8 of the National Law.
2. In this case, the two previous Medical Council decisions on 27 November 2023 and 24 January 2024, resulted in the applicant being permitted to continue to practice under conditions were unquestionably relevant because on 31 March 2025, the s 150 delegates were considering the suspension of that conditional practice.
3. The record of the 31 March 2025 s 150 hearing shows that in the context of a potential suspension order, the delegates simply referred to or noted the terms of the previous s 150 decisions. In those circumstances it is reasonably arguable that process fell well short of "an active intellectual process" that gave "proper, genuine and realistic consideration" to a matter the delegates were bound to consider: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 852; [2022] HCA 17, at [26]; DV016 v Minister for Immigration and Border Protection (2021) 273 CLR 177; [2021] HCA 12, at [12]; [77].
4. The necessary consideration required more than just a formulaic reference by simply adverting the previous decisions of the Medical Council: Azriel v New South Wales Land and Housing Corporation [2006] NSWCA 372, at [49], following Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181, at [13], [32], [80].
5. In my view it is reasonably arguable that the process of simply referring to and noting the previous decisions, the s 150 delegates did not engage in the required intellectual exercise in that they appeared not to have had proper regard to those earlier decisions because to do so, they would not only have had to identify the terms of those earlier decisions, but they were also required to then provide cogent reasons as to why those previous outcomes, namely the imposition of conditions, were no longer applicable in the applicant's circumstances.
6. Instead, the 150 delegates accepted Dr Newnham's softly if not unreasoned impressions that were expressed in the form of sweeping statements, and which were in turn based on evidence that had not yet been tested and which assumed the applicant was guilty of the assumed conduct. In that sense, the delegates appear to have made the same error that attracted criticism in Pridgeon v Medical Council of New South Wales, supra, at [69], but in this instance, not even paying lip service to the presumption of innocence, having instead uncritically accepted at face value the sparsely reasoned impressions of Dr Newnham, characterising those matters as risks that were not manageable by conditions.
7. The applicant submitted that the above point is made plain when the first and second s 150 decisions are examined as it would have been apparent that there was little material change in the relevant facts between the second and the third s 150 proceedings. The applicant submitted that a conclusion to that effect was not only open, but compelling, where the proper finding ought to have been for conditions of practice to be imposed, with or without variations, because a suspension was not warranted in those circumstances.
8. The applicant made the alternative submission that the s 150 delegates made a legally unreasonable decision in failing to place adequate weight on the previous s 150 decisions in light of the limited changes to the material facts relating to those conditions (being the low-level breach of conditions that would not otherwise call for suspension) where their ultimate decision lacked an "evident and intelligible justification" evidenced by reasons for the change of view from the existing s 150 findings that there was no need for action or a need for suspension: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, at [25]; [76].
9. In find that the applicant's arguments that the s 150 delegates failed to afford the applicant procedural fairness in the manner described above raises matters with respect to points of law, where those arguments have reasonable prospects of success.

(f) Claim of failure to consider relevant matters

1. The record of the s 150 hearing on 31 March 2025 shows that the earlier s 150 decisions were identified and reviewed as follows:

(1) Between pp 5-10 of their reasons, the delegates reviewed first s 150 decision and the details of the underlying complaint, including the criticisms made of the applicant's impugned behaviour before and after the complaint was lodged, and they noted the result of that inquiry was the imposition of conditions;

(2) Between pp 10-12 of their reasons, the delegates undertook a similar exercise in relation to the second s 150 hearing and the critical details of unprofessional conduct involving an adult daughter of a patient, his dishonest account of that relationship, and the issue of his claim of impairment. Those delegates there decided that the issues were "largely the same" as those before the first s 150 inquiry, and therefore no changes were made to the applicant' conditions of practice;

(3) Between pp 12-14 of their reasons, the delegates quoted tracts from the 24 February report of Dr Newnham's assessment and then referred to the applicant's evidence (at p14), noting that the applicant had been asked to respond to Dr Newnham's report. In recording that summary the delegates seemed to have not grasped that the applicant had been prevented from completing his explanations as summarised at paragraph [63] above;

(4) Between pp 14-15 of their reasons, the delegates then went on to record their view that Dr Newnham's report "is clearly against a finding of impairment" and they criticised the applicant for not having undergone neuro-imaging as had been recommended by a neuropsychologist, without recognising that in the first series of Dr Newnham's reports the need for that investigation seems to have receded;

(5) After recording the view that on the evidence the applicant did not have an impairment, they wrote: "we do not think the [the applicant] has an impairment under the National Law";

(6) At page 15, of their reasons the delegates defined their task as being not to make findings, but to assess the risk to the health and safety of the public. That said, yet they then went on to record findings that there "is very strong evidence that [the applicant] has demonstrated poor judgment and poor self-regulation" and referred to his earlier attempts at continuing the relationship with the daughter of his patient describing them as "very concerning behaviours";

(7) The delegates also referred to the applicant's attention to his own health by saying that he had not been assiduous in that regard, without reference to his evidence to the contrary as disclosed in Dr Newnham's successive reports and in his statement tendered in these proceedings;

(8) The delegates then went on to record the applicant's admitted "problems" of compliance with some conditions, stating that they believed those factors weigh heavily in favour of suspension notwithstanding their earlier intimation to the contrary.

1. That last statement identified an inconsistency in their reasoning comparing their remarks at the hearing on 31 March 2025 and their written reasons dated 1 May 2025, where the hearing on 31 March 2025 the delegates made it clear that they considered those low-level breaches did not warrant suspension, yet in their written reasons that view was contradicted by suspension.
2. On my reading of the s 150 reasons, where the delegates simply referred and noted the earlier findings as to conditions of practice, indicates that the delegates failed to engage in a consideration of relevant changes in the applicant's circumstances as described in the evidence before them. In my view, this raises a reasonably arguable matter with respect to a point of law. I consider that argument has reasonable prospects of success.

(g) Claim that Dr Newnham's pattern of predation theory is inapt

1. Dr Newnham's commentaries have been examined and evaluated at paragraphs [76] to [90] above. Her conclusions as the applicant having a pattern of predatory behaviour led to the delegates uncritically adopting that view in their reasons.
2. In XRZG v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2024] FACAFC 131, at [64], it was stated that on the question of legal unreasonableness, a finding of fact in the absence of a probative basis in the evidence so as to enable the conclusion to be reached logically and rationally on the available evidence would amount to legal unreasonableness or jurisdictional error if the finding involved irrationality that was critical to the ultimate decision, following Djokovic v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2020] FCA 21, at [35] (where it was said that such decisions should be characterised as unjust, arbitrary, or capricious) and Masi-Haini v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2022] FCA 277, at [54] where it was held that illogical reasoning that was critical to the resulting conclusion amounted to jurisdictional error.
3. In my view it is reasonably arguable that Dr Newnham's theory of a pattern of predation had no rational basis in sound evidence. Such legal irrationality amounts to a matter with respect to a point of law. I consider that argument has reasonable prospects of success

(h) Claim of failure to consider variation in conditions

1. The applicant submitted that the s 150 delegates failed to properly consider the role of conditions of practice as a mitigation against risks to public health and safety, if found: Prakash v Health Care Complaints Commission [2006] NSWCA 153, at [101].
2. That submission was developed pointing out that the purpose of s 150 is protective, and the power to suspend is only exercisable if the delegates were satisfied that the protective purpose could not be achieved by the imposition of conditions.
3. It is both perplexing and paradoxical that notwithstanding that the s 150 delegates had intimated that they considered the applicant's low-level breaches of conditions, based on misunderstandings for which he apologised, they went on to determine that suspension was required to protect the public.
4. The applicant submitted that the decision to suspend him was based on a failure to consider a mandatory relevant consideration, namely the appropriateness of conditions.
5. The applicant submitted in the alternative, that the decision to suspend him was legally unreasonable in that it lacked an intelligible justification in the circumstances, where the two previous section 150 decisions considered that conditions were appropriate, and little in the way of material change in circumstances had occurred in the interim.
6. The respondent drew attention to the portion of the decision of the section 150 delegates (at p 16), which was titled "Consideration of Conditions or Suspension" at page 16 of their reasons, where they referred to Dr Newnham's impression that there was evidence of predation, factitiousness, and dishonesty, this being too high a risk to allow the applicant to practice, thereby deciding on suspension being justified in the public interest, as distinct from the interest of public health and safety.
7. Those conclusions based on Dr Newnham's views are arguably problematic as explained at paragraphs [76] to [90] above.
8. On that analysis, in my view, the applicant's submissions raise a reasonably arguable matter with respect to a point of law, in this instance a mixed question of fact and law, this being the reasonableness or otherwise of Dr Newnham's viewed which influenced the conclusions of the delegates where they considered the applicant posed a risk to the health and safety of the public such that his suspension was required. I consider that argument has reasonable prospects of success.

1. Given that a series of arguable matters with respect to points of law with reasonable prospects of success have been identified in the above consideration, the justice of the applicant's case has been satisfactorily established such that, applying the principle of parsimony of reasons identified at paragraph [132] above, the remaining arguments become superfluous and need not be determined.

1. In support of the application for a stay, the applicant's submissions cited my remarks on the balance of convenience in FWX v Medical Council of NSW [2023] NSWCATOD 138, at [101]-[102],in the context of the personal hardship imposed on the applicant due to the suspension order, namely:

[101] In determining the merits of making an order for a stay, the balance of convenience must be considered. In applying that balance, whilst the evidence shows that there have been deleterious personal consequences experienced by the applicant, his family, and his patients, these are in ordinary circumstances outweighed by the public interest which generally carries greater or paramount weight.

[102] However, in this case, the greater public interest, intertwined with the interests of justice, demands appropriately justified rigour in decision making on important public health and safety issues, where they also happen to have deleterious personal consequences for the applicant, as has been shown in this application. Those combined factors weigh heavily in the balance of convenience in favour for the order of a stay as sought by the applicant."

1. In this case, the applicant's evidentiary statement dated 7 May 2025, at paragraphs 29 to 39 has poignantly catalogued the deleterious consequences the suspension order has had on his patients, his family, his practice staff and also on himself. As in the decision in FWX v Medical Council of NSW, supra, those matters weigh heavily in favour of the balance of convenience for an order for a stay.

1. The applicant has succeeded in justifying the making of an order for the stay he seeks pending the hearing of his appeal. In this case costs should follow the event of the successful application for a stay.
2. I make the following orders:

(1) Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication or disclosure of the name and personal details of the applicant and the persons named in the evidence is prohibited other than as referred to and disclosed in these reasons, where the applicant will be referred to by the assigned litigation pseudonym "HBW".

(2) Pursuant to s 162L(2) of the Health Practitioner Regulation National Law (NSW), the suspension order made by the delegates of the Medical Council of New South Wales on 31 May 2025 pursuant to s 150 of that Act is stayed pending the outcome of the appeal from that order;

(3) The conditions of practice in place prior to suspension are to continue pending the outcome of the appeal;

(4) The Medical Council of New South Wales is to pay the applicant's costs of this stay application as agreed or as assessed pursuant to the Legal Profession Uniform Law Application Act 2014 (NSW).

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

23 September 2025 - Typographical errors corrected within document.