Henkelman v Psychology Council of NSW

Background

1. The written reasons for the Council's Decision are dated 30 November 2016. In summary, the Council: 1. Noted a pattern of complaints that raised concerns that Mr Henkelman either did not understand, or was in wilful disregard of his professional responsibilities in relation to professional boundaries; 2. Found that those complaints also raised concerns in regard to Mr Henkelman's ability to communicate professionally and effectively;
2. Was concerned that information in relation to one person, a Mr ABC, may represent an unusual mixture of elements of psychological assessment and suicidal risk assessment, while lacking "any duty of care", as Mr Henkelman did not see Mr ABC as a client, but rather, as a friend; 1. Stated that it was "very concerned" that Mr Henkelman's communication style, particularly in email correspondence, was disordered, unprofessional and inarticulate, and was not reflective of an acceptable professional standard.
3. In summary, the Council was of the view that Mr Henkelman's conduct and performance appeared not to be within acceptable standards including, but not limited to, what it described as his:

• Poor appreciation and application of professional boundaries;

1. Significant blurring of his role as psychologist and "friend" in his dealings with Mr ABC and his legal matters;
2. Poor and unprofessional communication with professionals involved with Mr ABC and his legal matters;

• Poor written communication displayed in his written responses to the Commission and Council raising concerns about his ability to communicate professionally;
• Possibly limited CPD appropriate to his scope of practice;
• Possibly limited effective engagement with peer supervision, and
• Limited ability to reflect on issues raised in his previous complaints and previous council counselling session

1. On 30 November 2016, Mr Henkelman's registration as a psychologist with the Psychology Board of Australia (the Board) lapsed for non-renewal. At that point, and Mr Henkelman ceased to be a registered health practitioner.
2. Between 1 December and 2016 and 30 March 2017 Mr Henkelman was not registered as a psychologist. Accordingly, there were no conditions on his registration.
3. On 30 March 2017, the Board granted Mr Henkelman non-practising registration under Division 5 of Part 7 of the National Law. Non-practising registration is registration that requires the registered person to not practise their profession: see s 75(1) of the National Law. The evidence before me establishes that Mr Henkelman's current (non-practising) registration is not subject to any conditions.

Conduct of these proceedings

1. As noted, on 4 January 2017, Mr Henkelman filed an external appeal from the decision of the Council to this Tribunal.
2. Subsequent to the filing of the external appeal, directions hearings were held on 7 April, 19 May, 31 May, 16 June 2017 and 19 July 2017. On 7 April, the appeal was set down for a hearing to be heard on 19 July, but this hearing was vacated on the appellant's application. He had had difficulties in obtaining legal advice and representation.
3. On 25 August 2017, the Tribunal received an application from the Council that Mr Henkelman's external appeal be dismissed pursuant to the provisions of s 55(1)(b) of the Act. A further directions hearing was subsequently held on 8 September. On that occasion, the Tribunal directed Mr Henkleman to file and serve any submissions in opposition to the Council's application by 18 September. The Tribunal listed the dismissal application for hearing on 26 September.
4. On that day, the matter was listed before me. Mr Henkleman had not filed any materials pursuant to the previous direction. He sought an adjournment of the hearing of the dismissal application on the grounds of ill health, namely a respiratory condition. I agreed to that request, and directed that the hearing of Council's dismissal application be adjourned to 25 October 2017, and that Mr Henkelman file any submissions in response to the respondent's application on or before 16 October 2017. I reserved costs.
5. On 20 October 2017, Mr Henkelman filed submissions, together with a General Application Form, by email to the Tribunal. Mr Henkelman sought to vacate the hearing of 1 and 2 November, and proposed a timetable for the ongoing management of his appeal. Filing by email is not permitted: this is actually stated on the General Application Form filed by Mr Henkelman. Subsequently, those documents were physically filed with the Registry on 23 October 2017.
6. In his application to vacate the hearing date, Mr Henkelman states that he is currently in poor physical health; that he retained counsel on 9 October 2017, but that counsel will not be in a position to attend the substantive hearing, although counsel could attend the dismissal hearing. Mr Henkelman states that: the material filed in the matter and difficulties in securing Mr Henkelman's attendance for conferences (due to health) makes it difficult to adequately prepare.
7. Mr Henkelman goes on to state: It is also submitted that an objective representative would be of great assistance to the Tribunal. Whilst this application is made late in the piece, it is submitted that an objective representative would also provide greater prospects of the matter resolving. At the least, such discussions would be invited and explored. The Applicant is understandably emotionally invested in this matter and would benefit greatly from representation.
8. Mr Henkelman concludes by saying that Counsel will also seek to amend his initiating process "so that it clearly discloses a cause of action and specifies remedies sought".
9. Finally, Mr Henkelman included a draft proposed time table which provided for the filing of an amended external appeal, and for the filing and service of materials by both parties, and a further hearing date. He proposed that each party bear the costs of his application.

Medical information

1. Attached to Mr Henkelman's submissions is a referral from Mr Henkelman's general practitioner Dr Ahmed Abbass dated 25 September 2017 to Dr Benjamin Ng, and two medical reports prepared by Dr Abbass, respectively dated 4 October and 19 October 2017.
2. The referral seeks Dr Ng's opinion for Mr Henkelman's worsening asthma. The 4 October report refers to the "protracted nature" of Mr Henkelman's rehabilitation and states that it is possible that Mr Henkelman may not return to work until "at least July 2018", as his response to treatment has been poor. The report notes that Mr Henkelman is seeing a neurosurgeon, an orthopaedic (shoulder) surgeon and a rheumatologist. In addition to health issues relating to his shoulder, and severe asthma resulting in a "hacking cough", Mr Henkelman was assaulted in September 2016.
3. The 19 October report is in fact a letter of Dr Abbass supporting Mr Henkelman's application to vacate the hearing in November, in order to allow him more time to instruct his barrister.

Council's submissions

1. The Council submits that Mr Henkelman's external appeal is misconceived. This is because Mr Henkleman is appealing against a decision of the Council to place conditions on his registration, in circumstances where those conditions are no longer in existence.
2. The Council notes that the powers of the Tribunal in this appeal are set out in s 159C(1) of the National Law which provides: On an appeal, the Tribunal may by order terminate, vary or confirm a period of suspension or revoke, vary or confirm the conditions, as it thinks proper.
3. The Council submits that, given that there are no conditions for the Tribunal to revoke, vary or confirm, the appeal has no utility and should therefore be dismissed as misconceived or lacking in any substance.
4. The Council relies on a decision of her Honour the Hon Acting Judge Boland in Ng v Chinese Medicine Board of Australia [2017] NSWCATOD 36. In that decision, her Honour considered the utility of progressing with an appeal in circumstances where any order the Tribunal could make would be otiose, and in which there was no longer a live controversy to be determined. Her Honour dismissed the appeal pursuant to s 55(1)(b) of the Act. In doing so, her Honour also took into account the objects of the Act (namely, to facilitate the just, quick and cheap resolution of the real issues in the proceedings) and noted in par [76] the cost and time that would be expended by the parties proceeding with an appeal the outcome of which would have no practical utility. Her Honour also took into account the principles discussed in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27.
5. The Council submits that in the circumstances outlined above, that is where there is no live issue between the parties and any order the Tribunal could make would be otiose, it is not in the public interest for public resources, being the resources of the Tribunal and the Council, to be expended in proceeding with this matter, and that the appeal should be dismissed.
6. The Council notes that, in the event that Mr Henkelman seeks to change his category of registration from non-practising registration to general registration, his application will be determined by the National Board under Division 6 of Part 7 of the National Law. The Council submits that if the National Board determines to approve any such application and grant general registration it may impose conditions under s 83 of the National Law. Mr Henkelman would then have a right to appeal that decision to the Tribunal under s 175(1)(e) of the National Law with the National Board being the respondent to such an appeal.
7. In a letter accompanying the Council's written submission, Mr Iain Martin, Assistant Director - Legal, for the Council, states that, as at 25 August 2017, Mr Henkelman and served the Council with over 1,900 pages of material together with a 40 minute YouTube video. Mr Martin states that this material does not disclose the basis of Mr Henkelman's appeal, and that the Council was unable to respond in any meaningful sense to the material. I note that in Mr Henkelman's application to vacate the hearing, Mr Henkelman proposed that he be given leave to file an amended external appeal and further materials in support of that appeal.
8. Mr Martin states that Council maintains its previously expressed position that given Mr Henkelman's current registration status, that is registered with non-practising registration and no conditions, there are no orders that the Tribunal can make to resolve the appeal. In the circumstances, the Council submits that further expenditure of public resources, being both the resources of the Council and those of the Tribunal cannot be justified.
9. At the dismissal hearing, the Council was represented by Mr Martin. He amplified the above submissions. He submitted that the purpose of s 150 proceedings was for the Council to conduct (what he described as a risk assessment), and not to make ultimate findings of fact. Mr Martin also emphasized that it was now almost a year since the Council made its decision.
10. Finally, Mr Martin also indicated that his instructions were that, regardless of the outcome of the dismissal application, Council proposed to file a submitting appearance, save as to costs, and to take no further part in the proceedings. He further indicated that Council did not propose to seek any costs, but wished to be heard should the Tribunal propose to make any costs order against it.

Mr Henkleman's submissions

1. As noted, Mr Henkelman filed written submissions on 23 October 2017. These are signed by Mr Aristotle of counsel. In summary, Mr Henkelman submits that: 1. The power to dismiss proceedings summarily is one to be used sparingly and with great care: Ng at [60]; 2. Authorities which may be relied on by Council (such as Ng and Fox v NSW Police Force [2016] NSWCATAD 77) should be distinguished; 3. Despite the fact an administrator has terminated the operation of a decision by the time the matter comes on for hearing, the person may continue to have a continuing interest in the question of whether or not the original decision was the correct and preferable one; thus a person may simply wish to vindicate their reputation by showing that the original suspension was unjustified, and seek to have it struck from the official records: AVS Group Australia Pty Ltd v Commissioner of NSW Police Force [2012] NSWADTAP 24 at [17]; 4. Mr Henkelman should be allowed to test the adequacy of the reasons of the Council and the conditions imposed.
2. At the dismissal hearing, Mr Henkelman represented himself. He indicated that Mr Aristotle no longer acted for him. He further indicated that he no longer wished to vacate the hearing dates (despite what appears in pars [16] and [35] of further submissions he provided to the Tribunal during the hearing, to file an amended appeal or any further evidence), and that he was ready to proceed at the hearing, should the appeal not be summarily dismissed.
3. At the hearing, Mr Henkelman provided a further 33 pages of written submissions. However, I note that pages 19 to 33 of those submissions are in fact a partial transcript of the s 150 proceedings before the Council.
4. The first 15 paragraphs of these submissions deal with Mr Aristotle's conduct. Those paragraphs deal with what Mr Henkelman describes as a breakdown in the relationship between the two gentlemen. Those matters are irrelevant to my considerations. Suffice to it to say, Mr Henkelman told me that Mr Aristotle no longer acted for him, and that he was ready to proceed at the dismissal hearing.
5. The next 20 paragraphs, save for another reference to Mr Aristotle's conduct at par [24], deal with the substance of the Council's reasoning in its s 150 decision.
6. At par [58] of his submissions, Mr Henkelman states that he understands that there are no conditions listed on his registration, and that he has non-practicing registration status. However, he submits that the conditions on "must still be laid and in effect" per force of s 150H(2) of the National Law. That section states: 150H DURATION OF CONDITIONS--COMPLAINT MATTERS [NSW] (1) This section applies if - (a) a Council for a health profession imposes conditions on the registration of a registered health practitioner or student under section 150; and (b) the matter is dealt with as a complaint against the practitioner or student. (2) The conditions imposed by the Council have effect until the first of the following happens - (a) the complaint about the registered health practitioner or student is disposed of; (b) the conditions are removed by the Council. (3) This section - (a) does not prevent conditions being imposed under another provision of this Law; and (b) is subject to anything done by the Tribunal on an appeal.
7. Mr Henkelman submits that as he has asked the Council to review its decision pursuant to s 150A of the National Law, the conditions still apply. He also submits that "he does not meet the requirements for section 150B and therefore it is interpreted that conditions are still in force".
8. During the course of the hearing, I asked Mr Henkelman what orders he would be asking the Tribunal to make at the conclusion of his external appeal. I pointed out the content of s 159C of the National Law, extracted above, namely that on an appeal, the Tribunal may revoke, vary or confirm the conditions, as it thinks proper, but that it appeared that the Tribunal did not have the power to make any other orders. Mr Henkelman said that he wanted the Tribunal to rescind the Council Decision.
9. I also raised with him the fact that, according to the evidence before me, there were presently no conditions on his registration, and that there had been no conditions since 1 December 2016, including at the time he filed his external appeal. Mr Henkelman's response was to rely on s 150H of the National Law. That section relevantly provides 150H Duration of Conditions - Complaint Matters [NSW] (1) This section applies if - (a) a Council for a health profession imposes conditions on the registration of a registered health practitioner or student under section 150; and (b) the matter is dealt with as a complaint against the practitioner or student. (2) The conditions imposed by the Council have effect until the first of the following happens - (a) the complaint about the registered health practitioner or student is disposed of; (b) the conditions are removed by the Council.
10. In short, Mr Henkelman submitted that the conditions remain in force.

The National Law

1. This is an external appeal to the Tribunal in respect of the Council Decision of 21 November 2016. The Decision was made following the holding of an inquiry pursuant to s 150 of the National Law. It is appropriate therefore to set out those sections of the National Law relevant to the present application.
2. The starting point is s 150. Section 150 relevantly provides: 150 Suspension or Conditions of Registration to Protect Public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest-- (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or …
3. A party has a right of appeal to this Tribunal (an external appeal for the purposes of the Act) pursuant to s 159 of the National Law. That section relevantly provides: 159 Right of Appeal [NSW] (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession-- … (b) against conditions imposed by the Council for the health profession on the person's registration under Division 3 or 4 or the alteration of the conditions by the Council; … (3) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given.
4. As was noted in Bova v Pharmacy Council of NSW [2014] NSWCATOD 40 at [30] and [33]: 30. It may be that an appeal under s 159 is not an appeal de novo in the strict sense of the definition of such an appeal (I note Osborn Concise Legal Dictionary defines "de novo" as "Anew") but a statutory hybrid or variant as described by the High Court in Dwyer. But two things are clear: the statute mandates the Tribunal engage in a "reconsideration of the matter", and in that deliberative process, it may receive fresh evidence, or evidence in addition to or substitution for the evidence which was before the Council when it considered the matter. … 33. The language in s 159 (3) makes it plain that a Tribunal may reconsider the matter on entirely different material to that which was before the Council. In those circumstances a "reconsideration" of the deliberations of the Council on the material that was before it would be otiose. But more relevantly in my view what the statute requires is a reconsideration of the matter, that is, is the Tribunal satisfied at the date it hears the appeal that it is appropriate to suspend the practitioner's registration or place conditions on his registration for the protection of the health and safety of the public.
5. This was a point stressed by Mr Martin in oral submissions. He submitted that, as Mr Henkelman was now a non-practising psychologist, the Council took the view that he was no risk to the public. He also noted that the Decision was made almost 12 months ago.
6. The Tribunal's powers on appeal are set out in s 159C, which relevantly provides: 159C Tribunal's Powers on Appeal [NSW] (1) On an appeal, the Tribunal may by order terminate, vary or confirm a period of suspension or revoke, vary or confirm the conditions, as it thinks proper. (emphasis added)
7. The Tribunal's powers on this appeal should be contrasted with other types of administrative review the Tribunal undertakes. For many reviews, the Tribunal is empowered under the Administrative Decisions Review Act 1997 to make the correct and preferable decision in place of the original administrator's decision. Thus, s 63 of that Act provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
8. Section 150A of the National Law allows the Council to review its own decisions. Section 150A(1) provides for a registered health practitioner to apply to the Council for a review of a decision made under s 150 to impose conditions on the practitioner's registration (s 150A(1)(b). If the Council decides to conduct a review (as to which see s 150A(2)), then following reconsideration of its decision, the Council may affirm or vary its decision (s 150(3)(a)) or set aside the decision and take any action which the Council has the power to take under s 150 (s 150(3)(b).
9. In other words, Parliament has provided for different powers on review of a Council decision, depending on whether a review is made by the Council (s 150A) or on appeal to the Tribunal (s 159). The Council may affirm, vary or set aside the decision, if satisfied that there has been a change in the health practitioner's circumstances: s 150AH, whereas the Tribunal's powers are limited to an order to revoke, vary or confirm the conditions: s 159C(1).

Consideration

1. Section 55(1)(b) of the Act relevantly provides that: (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: … (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance.
2. I have found two decisions to be of considerable assistance: the decisions in Fox and Ng. In each decision, (Fox at [26] to [33]; Ng at [44] to [58]) a thorough review of the relevant authorities was undertaken. Relevant principles set out in those authorities include the following: 1. The technical legal meaning of the expression 'proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance' is simply that the application lacks a legal foundation, or "are not legally properly based": 601 Management Company Pty Ltd v Commissioner of State Revenue [2011] VCAT 2129; Re Filsell and Comcare [2009] AATA 90; 2. If no purpose will be achieved by continuing the application, even though the applicant is genuine in his or her belief in the matter raised, the application should be struck out: Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 38 ALD 366; 3. The costs implications for both the Tribunal and a party continuing a misconceived application are relevant. If proceedings have no reasonable prospects at all of success, they should be dismissed, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing: Filsell; Re Irving and Repatriation Commission (1997) 46 ALD 20; 4. The desire to restore honour and secure vindication has to be balanced against other factors, including the cost to the respondent: Re Irving at 26]; 5. Where the applicant is seeking only restoration of honour (that is. clearing his name) and has no chance of success in the proceeding, the matter should be dismissed: Re Irving at [26].

Do the conditions still exist?

1. As noted above, Mr Henkelman submits on a number of bases that the conditions the subject of the Decision are still in existence. In support of this submission he points to each of ss 150A, 150B and 150H.
2. In summary, s 150A provides that a registered health practitioner or student may apply to a Council for the review of a decision of the Council under s 150 (s 150A(1)), gives the Council a discretion as to whether or not it will conduct a review (s 150A(2), and then sets out the Council's powers if it does conduct a review (s 150A(3)).
3. Mr Henkelman has not asked Council to review its Decision. Accordingly, s150A is of no relevance to the present application. I reject any submission that s 150A somehow supports an argument that the conditions the subject of Council's Decision are still in existence.
4. Section 150B deals with Council's obligation to create an audio recording of its proceedings (s 150B(1)), and further provides that any such recording is not admissible in civil or criminal proceedings (other than proceedings under the National Law) or at an inquest or inquiry under the Coroners Act 2009.
5. Section 150B is of no relevance to the present application. I reject any submission that s 150B somehow supports an argument that the conditions the subject of Council's Decision are still in existence.
6. Section 150H provides, in terms: 150H DURATION OF CONDITIONS--COMPLAINT MATTERS [NSW] (1) This section applies if - (a) a Council for a health profession imposes conditions on the registration of a registered health practitioner or student under section 150; and (b) the matter is dealt with as a complaint against the practitioner or student. (2) The conditions imposed by the Council have effect until the first of the following happens - (a) the complaint about the registered health practitioner or student is disposed of; (b) the conditions are removed by the Council. (3) This section - (a) does not prevent conditions being imposed under another provision of this Law; and (b) is subject to anything done by the Tribunal on an appeal.
7. As noted, Mr Henkelman relies on this section, in particular s 150H(2) to support his contention that the conditions "must still be valid and in effect".
8. I disagree. In my view, the fact of the conditions has been overcome by the passage of time, by Mr Henkelman not renewing his registration (and I note he made strong submissions that while he attempted to renew his registration, and that his registration lapsed by dilatory action taken by the Council), and then later seeking registration as a non-practising psychologist. The fact is that, and I find, in the period that 1 December 2016 to 30 March 2017 Mr Henkelman was not registered, and after 30 March 2017 he has been registered as a non-practising psychologist, with no conditions on his registration. As noted above, a registered health practitioner who holds non-practising registration must not practise their profession: s 75(1) of the National Law.
9. In summary, I see no substance in any of Mr Henkelman's submissions that the conditions the subject of the Council Decision are still in effect.

Other matters raised by Mr Henkelman

1. There are three further matters raised by Mr Henkelman that require consideration.
2. The first is that he ought to be allowed the opportunity to test the Council's reasoning, and be allowed to "restore his honour". In written submissions prepared by Mr Aristotle, it is submitted that a person may continue to have a continuing interest in the question of whether or not the original decision was the correct and preferable one; and that therefore a person may simply wish to vindicate their reputation by showing that the original suspension was unjustified, and seek to have it struck from the official records: AVS Group Australia Pty Ltd v Commissioner of NSW Police Force [2012] NSWADTAP 24 at [17].
3. The difficulty I have in accepting that submission is that that decision was an application for administrative review pursuant to the provisions of the Administrative Decisions Review Act 1997, and the Tribunal was there obliged to decide what the correct and preferable decision having regard to the material then before it, and was empowered to affirm, vary or set aside the administratively reviewable decision. Accordingly, the AVS Group decision may be distinguished, as the Tribunal is not empowered to make the correct and preferable decision, and may only revoke, vary or confirm the conditions (which I have found no longer exist).
4. But even if I am incorrect with this conclusion, and if I was satisfied that the Decision was incorrect, what order would the Tribunal make? I asked Mr Henkelman what orders he was seeking. He indicated that he wanted the Decision rescinded. In my view, as I explained that the Tribunal's powers were limited to those contained in s 159C(1), I could not rescind the Decision. As I have noted above, the Council has different powers on review, and it may be possible for Mr Henkelman to seek some form of prerogative relief from the Supreme Court of NSW (a matter on which I express no view), but, in my view, he cannot seek the relief that he is ultimately seeking (namely the setting aside of the Decision and a vindication of his name and reputation) from the Tribunal in the course of an external appeal pursuant to s 159 of the National Law.
5. The second matter is Mr Henkelman's submission that "[i]t would be trite" that, if he were to make an application for registration in the future, the conditions would be reinstated (or conditions of a similar nature).
6. I disagree. Before deciding any application for registration, the National Board may: 1. Investigate an applicant (s 80(1)(a) of the National Law); 2. Require an applicant to give it information (s 80(1)(b)); 3. Require the applicant to attend before the Board to answer questions (s 80(1)(c)); 4. Require the applicant to undergo an assessment to assess their ability to practise their health profession (s 80(1)(d)); and 5. Require the applicant to undergo a health assessment (s 80(1)(e)).
7. If, after considering an application for registration the National Board proposes to refuse registration or to register the applicant subject to a condition, the board must give the applicant notice of that proposal, state the reasons for the proposal and invite the applicant to make written or verbal submissions about the proposal: (s 81).
8. It follows that, I am not persuaded that it is "trite" or automatic that the National Board would impose the same conditions on the applicant.
9. The third and other principal basis on which Mr Henkelman based his opposition to summary dismissal is that the fact of the conditions will form "the backdrop" of any future applications for registration. That may be true, but I do not accept that the subject will be avoided even if the appeal were allowed (putting aside the issue that there is no power to rectify the Register or grant the relief Mr Henkelman seeks). I see no reason why the Council would not consider the fact of a s 150 inquiry having been, and the fact that there was conduct the subject of that inquiry, and the evidence that was before the Council on that occasion. In other words, the "backdrop", as Mr Henkelman describes it, would inevitably form part of the Board's consideration, regardless of any decision the Tribunal may make.

Conclusion

1. Even though I accept that Mr Henkelman is genuine in his belief that he has been wronged and desires to vindicate his reputation, as there are no orders that the Tribunal could make, I see no purpose that can be achieved by the external appeal proceeding to hearing. While I understand, and accept, Mr Henkelman's desire and need to restore his honour and secure vindication, I am not persuaded that he can do so in this forum. As I have noted above, it was open to him to ask the Council to review its Decision. The Council did have the power to come to a different Decision. In addition, it may be possible, or may have been possible, for Mr Henkelman to seek prerogative relief from the Supreme Court. In short, as Mr Henkelman is seeking only restoration of his honour, and has no chance of success in the proceeding (as the relief he seeks cannot be granted), and where the only relief that could be granted relates to conditions that no longer exist, in my view the external appeal should be dismissed pursuant to s 55 (1)(b) of the Act.
2. As no party has sought any order as to costs, I make no order.
3. Given this conclusion above, it is unnecessary to consider Mr Henkelman's application for a stay of the Decision, or any future conditions placed on his registration by the Council.

Orders

1. The orders of the Tribunal are: 1. The external appeal is dismissed. 2. No order as to costs.

Other

1. The hearing of this application was held on 25 October 2017, and I reserved my decision. Neither party sought leave to file further submissions.
2. After these reasons had been prepared but before they were published, the Tribunal received from Mr Henkelman: 1. On 31 October 2017, a further bundle of materials, numbering over approximately 200 pages. These were said to be submissions prepared for the dismissal hearing, but had not been filed by Mr Aristotle, despite Mr Henkelman's instructions to him; 2. On 1 November 2017, submissions dated 31 October 2017, signed by Ms Hawkins of counsel; 3. On 3 November 2017, submissions dated 2 November 2017 were filed for the applicant, again signed by Ms Hawkins, together with a Universal Serial Bus (or USB).
3. No leave was given to Mr Henkelman to file any of these submissions or the USB. If leave had been sought, I would have refused it. None of these submissions were before me at that hearing, and they had not been filed in accordance with previous directions. No leave was given for their filing after the hearing. In the circumstances, I have paid no regard to those submissions, or the USB which I have not "opened" or otherwise examined, in preparing these reasons for decision.
4. The impression that parties may file supplementary materials after the conclusion of oral argument, without leave having been given beforehand, is misconceived. As McHugh J, with whom Gummow J agreed, stated in Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28 at [30]: 30. This is not the first time that this Court has had to emphasise that the hearing is the time and place to present arguments. In Carr v Finance Corporation of Australia Ltd [No 1] [[1981] HCA 20; (1981) 147 CLR 246 at 258] Mason J said: The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions. 31. Once the hearing has concluded, the workload of the Court makes it impossible for the Court to give leave to file further submissions - with all the attendant delay in the Court's business by a fresh round of submissions. Efficiency requires that the despatch of the Court's business not be delayed by further submissions reflecting the afterthoughts of a party or - as perhaps is the case in this appeal - some dissatisfaction with the arguments of the party's counsel.
5. While his Honour was referring to the work of the High Court of Australia, given that s 36 of the Act provides that the guiding principle for the Tribunal is the facilitation of the just, quick and cheap resolution of the real issues in the proceedings, I see no reason why the matters referred to by McHugh J are not applicable to the work of the Tribunal.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 November 2017