HBW v Medical Council of New South Wales [2025] NSWCATOD 164;

1. As will become apparent, the main grounds to emerge were on points of law arising from an assertion of lack of procedural fairness in the process which led to the suspension.
2. The parties have agreed that the appeal should be allowed and the suspension order set aside; that the conditions of practise in place on the Practitioner's registration prior to the suspension order of 31 March 2025 operate from the date of these orders and that for the purposes of s 163 of the National Law, the Respondent is the appropriate review body for the preceding order. There was also an agreement for an order that the Respondent pay the Practitioner's costs of the stay application but that order has already been made when an order staying the suspension order was made on 18 September 2025.
3. The parties agreed that, although the gravamen of the appeal had become a point of law under s 159B of the National Law, there remained outstanding a more general appeal under s 159 of the National Law. This is necessitated that the Tribunal be constituted in accordance with s165B(2) of the National Law.
4. We are required to consider whether the orders sought by the parties should be made.
5. On 18 September 2025, Levy ADCJ, stayed the suspension order made 31 March 2025 pending the outcome of the appeal and provided extensive reasons for doing so (62 pages; 207 paragraphs). His Honour was satisfied that several reasonably arguably points of law had been sufficiently identified by the Practitioner to justify a stay order being made pending the ultimate hearing of this appeal. In summary, the overarching threshold point of law that emerged in the case concerned whether a want of procedural fairness became embedded within the process initiated by the Medical Council in arranging for an update assessment by Dr Kim Newnham, a consultant psychiatrist specialising in psychoanalysis and the treatment of complex post-traumatic stress disorder and dissociative identity and whether her assessment of the Practitioner involved procedurally unfair elements which then materially infected and vitiated the decision of the Medical Council's delegates when they acted on her assessment in deciding to order the suspension of the Practitioner's registration. There were other threshold issues as to whether the Medical Council misused its emergency powers to suspend the Practitioner from continuing to practise.
6. Levy ADCJ heard the stay application over 2 days and reviewed voluminous material. In a careful and extensive analysis of the circumstances and the reasoning surrounding Dr Newnham's assessment, Levy ADCJ set out:
   • The Practitioner's personal and professional background
   • The Practitioner's disciplinary and complaints history
   • The Practitioner's conditions of practice that were in force at the date of suspension
   • Five successive assessments by the Medical Council's appointed psychiatrist, Dr Kim Newnham
   • Evaluation of reasons provided by Dr Newnham in her fifth assessment of the Practitioner which led to his suspension
   • Discussion of the s 150 hearing before the delegates of the Medical Council
   • Analysis of the Medical Council's reasons for the suspension order on 31 March 2025
   • A discussion of the grounds of appeal
   • At [138]-[203], Levy ADCJ considers the grounds of appeal in the context of all of the prior discussion and consideration. His Honour found that it was reasonably arguably by the Practitioner who had a background history of trauma and vulnerability, that he was the subject of procedural unfairness in the process that surrounded Dr Newnham's assessment on 24 February 2025 and that there was procedural unfairness that occurred in the questioning of the Appellant at the s 150 hearing on 31 March 2025.
7. It seems apparent that the Medical Council had the advantage of reading the lengthy analysis in the detailed and considered reasons of Levy ADCJ and after that time, concluded that it is no longer appropriate for it to oppose the appeal against the suspension.
8. Both parties in these proceedings are legally represented. There is no need for this Tribunal to have a hearing about any detailed matters in circumstances where we have the advantage of having the lengthy analysis conducted by Levy ADCJ available to us with which we all agree. When two parties consent to a course of action when legally represented, unless some obvious issues arise in relation to the protection of the health and safety of the public which must remain our paramount consideration, then little more is required than the consent of the legally represented parties (see Harris v Caladine [1991] HCA 9). Dawson J at [25]:

Provided that a court, or a registrar, is adequately informed, where the parties are at arm length and are properly represented little more than consent may be needed to establish that the requirements of the section have been met (see Jenkins v Livesey [1984] UKHL 3; (1985) AC 424, at pp.437, 444)

1. We are comfortably satisfied that the orders sought by consent are appropriate and we shall make those orders.
2. The consent orders seek an order as to costs in identical terms to that already made by Levy ADCJ on 18 September 2025 and we shall not repeat the order but simply note that that order has already been made.

1. The appeal is allowed and the suspension order made by the delegates of the Medical Council of New South Wales on 31 March 2025 is set aside.
2. The conditions of practice in place on the Practitioner's registration prior to the suspension order of 31 March 2025 operate from the date of these orders.
3. For the purposes of s 163 Health Practitioners Regulation National Law (NSW), the Respondent is the appropriate review body of order 2 above.
4. It be noted that an order was made on 18 September 2025 that the Respondent pay the Appellant's costs of the stay application as agreed or assessed.
5. There otherwise be no order as to the costs.

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

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.