The applicant raised a number of grounds for appeal which he said enabled it to be characterised as an appeal on a point of law. These included;
1. an assertion that the chair of the committee, Dr Lobo was or may have been biased because of the involvement of her husband in advising the applicant's professional indemnity insurer.
2. An assertion of apprehended bias in that the delegates expanded the nature and extent of the matters under complaint by conducting their own extensive enquiry into all of the aspects of the courses conducted by the applicant's business
3. many of the conclusions made by the delegates had no appropriate factual basis and were matters of conjecture
4. the applicant was denied procedural fairness in that the delegates produced a number of documents during the hearing without warning to the applicant, and he was unable to answer questions "as to the provenance of the documents."
5. the applicant was denied procedural fairness in that he was required to produce a large number of documents to the delegates and was not given an adequate opportunity of considering them
6. the applicant was denied procedural fairness in that the delegates relied on documents in their reasons about which the applicant was not questioned or asked to consider
7. the delegates were in error in relying on prior notifications and complaints about the applicant because any complaints concerning the applicant's treatment of patients did not occur after 2014, and all complaints against him had been dismissed or withdrawn
8. the delegates were in error in relying on a complaint referable to a matter in the Northern Territory because there was no evidence that any charges had been laid against the applicant, and the proceedings were in abeyance
9. the delegates were in error in relying on allegations made about the applicant which had not been proven and which had not been tested in any way
10. the delegates were in error in that they failed to identify how and in what manner the concerns raised by them could create a risk to the health and safety of anyone so as to justify suspension of registration, and in what manner the public interest would be attracted to justify the same conclusion (this last matter was specifically raised in submissions in reply).
The applicant asserts that on a number of occasions during the course of the proceedings conducted by the delegates he asked them whether documents which were in their possession or documents which he had provided to them would form the basis of their determination. Dr Lobo on behalf of the delegates replied on each occasion "All documents in this bundle will be considered when making the decision." The applicant then proceeded to ask, as a matter of procedural fairness, that such allegations as the delegates wish to make about any conduct based on the contents of those documents should be put to him. Again, Dr Lobo repeated that all the documents in the bundle would form part of the documents that the delegates would consider. I note that these assertions are based on extracts from the transcript of the proceedings which have been made available to the Tribunal.
The applicant also asserts that Dr Lobo was or may have been biased because she had written a paper concerning cosmetic procedures and how they fit within the practice of dentistry.
In her submissions, counsel for the respondent rejected the applicant's submissions in a holistic sense by asserting that the applicant was told during the proceedings before the delegates that they would be relying upon all the material which they had, including past complaints, the applicant had copies of all of the documents upon which the delegates relied and he could make whatever submissions he wished about the documents. This raises in a stark fashion whether the appropriate procedural fairness which it may be taken should apply to the proceedings before the delegates requires that the delegates inform the applicant in a global sense of the matters before them, or whether it is necessary that they direct the applicant's attention to any particular matters which they ultimately determine are relevant. This is a matter which will no doubt be ventilated during the course of the appeal proceedings. I note also that the resolution of this particular matter will require a detailed consideration of the nature of section 150 proceedings.
In submissions in reply the applicant complained vehemently about the manner in which the delegates set about informing themselves of the prior complaints concerning him, that they failed to particularise their concerns about some of the matters raised in the complaints and to inform the applicant accordingly, the delegates thus deprived the applicant of the opportunity to deal with certain aspects of these complaints, and the nature and extent of the documentation which they required to be produced by the applicant at short notice including "thousands of pages" of the applicant's intellectual property and that of AAFDA indicated a degree of bias.
It is not necessary that I consider in any detail whether and to what extent the matters referred to above have any merit. I observe for the purpose of determining this stay application that clearly the above matters raise points of law which will need to be considered on the hearing of the appeal. I observe further that in the case of some of the grounds set out above there is an arguable case available to the applicant. In so concluding, I should not be taken to have made any determination of any kind on the merits of the grounds raised by the applicant and on the likely outcome of the appeal proceedings. It is sufficient for current purposes that I confine my conclusion by observing that the applicant has an arguable case available to him, as expressed above.
[2]
Can the suspension decision be stayed on conditions or terms?
The applicant asserted that if I were minded to refuse to stay the decision of the delegates in its entirety, I should "impose only those conditions deemed necessary in achieving the object and guiding principles of the National Law (NSW)". It was said that the test for suspension under section 150 of the National Law as it applies in New South Wales is significantly different from that which applies in other parts of Australia. Section 150 permits suspension if the respondent were satisfied it was 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 that action is otherwise in the public interest.
The corresponding legislation in other states provides that the National Board may impose suspension on a health practitioner's registration if it reasonably believes that:
1. because of the registered health practitioner's conduct performance or health, the practitioner poses a serious risk to persons; and
2. it is necessary to take immediate action to protect public health or safety
For completeness I set out below the provisions of Division 7 of the Health Practitioner Regulation National Law (Queensland), on which the legislation in other States and Territories is modelled, which Division is entitled "Immediate action."
155 Definition
In this Division -
immediate action, in relation to a registered health practitioner or student, means -
(a) the suspension, or imposition of a condition on, the health practitioner's or student's registration; or
(b) accepting an undertaking from the health practitioner or student; or
(c) accepting the surrender of the health practitioner's or student's registration.
(d) if immediate action has previously been taken suspending a health practitioner's or student's registration - the revocation of the suspension and the imposition of a condition on the registration; or
(e) if immediate action has previously been taken imposing a condition on a health practitioner's or student's registration - the suspension of the registration instead of the condition.
156 Power to take immediate action
(1) A National Board may take immediate action in relation to a registered health practitioner or student registered in a health profession for which the Board is established if -
(a) the National Board reasonably believes that -
(i) because of the registered health practitioner's conduct, performance or health, the practitioner poses a serious risk to persons; and
(ii) it is necessary to take immediate action to protect public health or safety; or
(b) the National Board reasonably believes that -
(i) the student poses a serious risk to persons because the student -
(A) has been charged with an offence, or has been convicted or found guilty of an offence, that is punishable by 12 months imprisonment or more; or
(B) has, or may have, an impairment; or
(C) has, or may have, contravened a condition of the student's registration or an undertaking given by the student to a National Board; and
(ii) it is necessary to take immediate action to protect public health or safety; or
(c) the registered health practitioner's registration was improperly obtained because the practitioner or someone else gave the National Board information or a document that was false or misleading in a material particular; or
(d) the registered health practitioner's or student's registration has been cancelled or suspended under the law of a jurisdiction, whether in Australia or elsewhere, that is not a participating jurisdiction.
(e) the National Board reasonably believes the action is otherwise in the public interest.
Example of when action may be taken in the public interest -
A registered health practitioner is charged with a serious criminal offence, unrelated to the practitioner's practice, for which immediate action is required to be taken to maintain public confidence in the provision of services by health practitioners.
(2) However, the National Board may take immediate action that consists of suspending, or imposing a condition on, the health practitioner's or student's registration only if the Board has complied with section 157.
157 Show cause process
(1) If a National Board is proposing to take immediate action that consists of suspending, or imposing a condition on, a registered health practitioner's or student's registration under section 156, the Board must -
(a) give the practitioner or student notice of the proposed immediate action; and
(b) invite the practitioner or student to make a submission to the Board, within the time stated in the notice about the proposed immediate action.
(2) A notice given to a registered health practitioner or student under subsection (1), and any submissions made by the practitioner or student in accordance with the notice, may be written or verbal.
(3) The National Board must have regard to any submissions made by the registered health practitioner or student in accordance with this section in deciding whether to take immediate action in relation to the practitioner or student.
158 Notice to be given to registered health practitioner or student about immediate action
(1) Immediately after deciding to take immediate action in relation to a registered health practitioner or student, the National Board must -
(a) give written notice of the Board's decision to the health practitioner or student; and
(b) take the further action under this Part the Board considers appropriate, including, for example, investigating the practitioner or student or requiring the practitioner or student to undergo a health or performance assessment.
(2) The notice must state -
(a) the immediate action the National Board has decided to take; and
(b) the reasons for the decision to take the immediate action; and
(c) the further action the National Board proposes to take under this Part in relation to the health practitioner or student; and
(d) that the registered health practitioner or student may appeal against the decision to take the immediate action if the action is to suspend, or impose a condition on, the practitioner's or student's registration; and
(e) how an application for appeal may be made and the period within which the application must be made.
159 Period of immediate action
(1) The decision by the National Board to take immediate action in relation to the registered health practitioner or student takes effect on -
(a) the day the notice is given to the practitioner or student; or
(b) the later day stated in the notice.
(2) The decision continues to have effect until the earlier of the following occurs -
(a) the decision is set aside on appeal;
(b) for the suspension of, or imposition of conditions on, the registered health practitioner's or student's registration, the suspension is revoked, or the conditions are removed, by the National Board; or
(c) for an undertaking, the National Board and the registered health practitioner or student agree to end the undertaking.
159A Board may give information to complainant about immediate action
(1) This section applies if a complaint about a registered health practitioner or student results in immediate action by a National Board under this division in relation to the practitioner or student.
(2) After deciding to take the immediate action, the National Board may inform the complainant who made the complaint of the decision and the reasons for the decision.
The provisions in the Queensland legislation are, I am informed by senior counsel for the applicant, relevantly the same provisions contained in similar legislation in other States and Territories of Australia, pursuant to the cooperative regulatory framework which applies throughout Australia.
Accordingly, in all other States the comparable regime which applies in circumstances covered by section 150 of the NSW legislation requires that there is
1. a reasonable belief
2. that the practitioner poses a serious risk to persons
3. because of conduct, performance or health
4. and in addition it is necessary thereby to take immediate action to protect public health or safety
The applicant submitted that the threshold for suspending registration was significantly higher in all other states than applied in New South Wales where the test is one of satisfaction that it is appropriate to suspend the protection of the health or safety of any person.
I agree that a test of necessity to take immediate action in connection with a serious risk to persons creates a higher bar than one of satisfaction that it is appropriate to take action without any necessary relevance to whether the action should be taken immediately.
The respondent submitted that this was an irrelevant consideration because the legislative scheme taken as a whole provided for recognition of registration on a national basis. Accordingly, even though one state might have a different provision to the others, as is the case in these proceedings, this was but a consequence of a national scheme. Once the relevant authority in New South Wales determined to suspend the registration of a practitioner in that state, then that suspension would automatically apply throughout the remainder of Australia. Presumably, the converse situation would apply in circumstances where a practitioner was not suspended in another State because of the higher applicable threshold even though the practitioner might otherwise have been suspended in New South Wales in the same circumstances.
The parties did not address any detailed submissions about this point. The thrust of the National Law as it applies in New South Wales is that it is intended to deal with the circumstances of a practitioner who practices his or her profession in this State or carries on his or her profession in this State. The delegates who determined the matter did so on behalf of the respondent which is essentially responsible for the regulation of dentists in New South Wales. On this basis it might be thought that a determination to suspend registration in New South Wales by reference to circumstances which might not justify suspension in other States would create relevant unfairness for a practitioner whose activities transcended across state borders where suspension in New South Wales was ipso facto effective to suspend registration in those other States.
I note also that the Queensland provisions require the determining body to give immediate notice to a practitioner immediately after a decision has been announced, including within that notice reasons for decision. This is to be contrasted with the delay in furnishing written reasons in the circumstances of these proceedings which were not provided until 2 March 2020.
These are matters which I intend taking into account in dealing with the interests of justice which is a consideration in determining whether to grant a stay.
However, before doing so it is necessary to determine whether I am empowered to grant a stay subject to conditions. The respondent argued that the matter was governed by the provisions of section 165L(2) of the National Law;
165L Interlocutory orders [NSW]
(1) The Tribunal may, during any proceedings under this Law, exercise any power or combination of powers conferred on the Tribunal by section 149A, except the power to caution or reprimand.
(2) The Tribunal may, in respect of an appeal under section 159B, make an order staying the decision of the Council appealed against until the appeal has been disposed of.
(3) The Tribunal may, during any proceedings under this Law, suspend a registered health practitioner's or student's registration if -
(a) it has found the subject-matter of the complaint against the practitioner or student to have been proved; and
(b) the complaint has not yet been finally disposed of; and
(c) it is satisfied that 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 the action is otherwise in the public interest.
Counsel for the respondent submitted that the only power created by section 165L(2) was to grant a stay. In the absence of any reference to permitting a stay to be granted conditionally or on terms, it was said that I could only grant a stay extending to the totality of the decision to suspend registration or determine to refuse the application.
I first note that by reason of the decision of the NSW Court of Appeal in Lee, previously cited the only power to grant a stay is that contained in section 165L of the National Law and the provisions of section 43 of the CAT Act referred to previously are excluded. Whilst there is reference in section 43 to a stay order "whether with or without conditions" there is no such reference in section 165L.
Accordingly, whether there is power to grant a stay on conditions will depend upon whether this Tribunal has an implied power to do so, in order to permit it to exercise its jurisdiction and powers in an appropriate and effective manner. The applicant submitted that there was ipso facto discretion to grant a stay on conditions or subject to terms. This was based on the existence of an implied power. In advocating a blanket rejection of any such implied power, the respondent has relied substantially on the provisions of the section itself, and certain authorities which it was said militated against the existence of any such implied power.
This Tribunal considered whether it had an implied power to order a permanent stay of proceedings in Council of the Law Society of NSW v Clarke [2017] NSWCATOD 142. Because the reasoning in those proceedings is integral to the conclusion which I intend adopting in these proceedings, I shall set out a lengthy extract, rather than attempt to summarise it. At [69] and following the Tribunal said;
Implied power
The respondent also asserted that this Tribunal has an implied power to order a permanent stay of proceedings. In support of the existence of this power he relied upon the judgement of Mason P in Strong v the Law Society of NSW [2001] NSWCA 311 (with whom Davies and Ipp AJA agreed). In referring to the jurisdiction of the former Administrative Decisions Tribunal, his Honour said that that Tribunal had power to entertain an application for a permanent stay, citing Director of Public Prosecutions v Shirvanian (1998) 45 NSWLR 129.
In Shirvanian, the NSW Court of Appeal held that a Local Court conducting a summary trial was empowered to permanently stay criminal proceedings on the basis that they constituted an abuse of process. The principal judgment is that of Mason P with whom Beazley JA (as her Honour then was) agreed. Powell JA dissented.
In discussing, in general terms, the jurisdiction/power dichotomy possessed by a court, including an inferior court created by statute Mason P said:
The jurisdiction of a court is not to be confused with its powers. Unfortunately, the expression "inherent jurisdiction" tends to promote such confusion. In Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 136, Toohey J said:
"The distinction between jurisdiction and power is often blurred, particularly in the context of 'inherent jurisdiction'. But the distinction may at times be important. Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and 'such powers as are incidental and necessary to the exercise of the jurisdiction or the power so conferred': Parsons v Martin [1984] FCA 408; (1984) 5 FCR 235 at 241...."
The High Court has warned against using the words "inherent jurisdiction" (1998) 44 NSWLR 129 at 133 in relation to a statutory court, even a superior court such as the Federal Court: see Jackson v Sterling [1987] HCA 23; (1987) 162 CLR 612 at 623-634, per Deane J, with whom Mason CJ, Wilson J and Dawson J agreed (at 630-631), per Toohey J. Instead, the majority in that case endorsed (at 623-624) the remarks of Bowen CJ in the Full Court of the Federal Court in Jackson (at 97):
"In relation to a statutory court such as the Federal Court it is wise to avoid the use of the words 'inherent jurisdiction'. Nevertheless a statutory court which is expressly given certain jurisdiction and powers must exercise that jurisdiction and those powers. In doing so it must be taken to be given by implication whatever jurisdiction or powers may be necessary for the exercise of those expressly conferred. The implied power for example to prevent abuse of its process, is similar to, if not identical with, inherent power."
See also per Toohey J (at 630-631): see also Re Z (1996) 134 FLR 40 at 63. In Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 at 16-17, Dawson J spoke to similar effect when he said that:
"... every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest). Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, ...fundamental."
In aid of its statutory jurisdiction a court will have express and implied powers...... (at 132-3)
In discussing the nature and extent of the power to grant a stay, Mason P said:
Stays to prevent or nullify abuse of process may be conditional or permanent. A permanent stay may be based upon the conclusion that the proceedings will necessarily fail (Ridgeway (at 41, 43)), or involve irremediable prejudice to the accused person that interferes with the conduct of a fair trial (Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23), or are being conducted for a purpose whichin the eye of the law they are not intended to serve: Jago (at 47-48); Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509; Ridgeway (at 46, 60, 75). Abuse of process is not confined to the obstruction of fairness in procedure: Jago (at 58); R v Brown (1989) 17 NSWLR 472 at 478-479; Ridgeway (at 75).
There are statements of the highest authority to the effect that every court has either inherent or implied power to prevent its own processes being used to bring about injustice: see Maxwell v The Queen (1996) 184 CLR 501 at 512, 525, 535; CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 391 and cases cited. The chief, but not only, weapon in the courts' armoury is the stay. The power to stay for abuse "arises from the need for the court to be able to exercise effectively the jurisdiction which the court has to dispose of the proceedings": Williams v Spautz (at 518n), per Mason CJ, Dawson J, Toohey J, McHugh J.
It is true that some of the discussion about the power to prevent abuse of process uses the language of "inherent jurisdiction" or refers to the powers of "superior courts": see, eg, Ridgeway (at 74), per Gaudron J. However, the passages from Jackson quoted above show that the implied power to prevent abuse of process "is similar to, if not identical with, inherent power". And recognition of a particular court as a superior court does not, in my view, offer a relevant point of distinction. No court in Australia has unlimited jurisdiction, and all courts in Australia are concerned with issues of fairness, avoidance of oppression, and the maintenance of general confidence in legal process. The last-mentioned goal itself imposes severe limits upon the power to stay proceedings, because a court that itself abuses the power to grant a permanent stay transgresses the separation of powers by trenching upon the proper function of the executive arm and declining its own constitutional function of determining disputes. For that reason the power to order a permanent stay is reserved for the extreme case: Jago (at 34), per Mason CJ; see also the English cases cited by Powell JA as to the power being "very strictly confined".
In my view Jago v District Court (NSW) resolves in Australian law the question whether a court has the power in an appropriate case to stay criminal proceedings permanently for oppression amounting to abuse of process. The narrowness of the criteria upon which the power might properly be exercised was expressed in different ways by the various justices. However each (with the exception of Brennan J) asserted the ultimate proposition: see (at 33-34), per Mason CJ; (at 58), per Deane J; (at 71), per Toohey J; (at 75), per Gaudron J.
Jago involved an inferior statutory court, the District Court of New South Wales. Unless something can be found in the relevant legislation to deprive a magistrate of the Local Court of similar power then there is no basis in point of principle for distinguishing between the District Court and the Local Court. This was the view taken by the Queensland Court of Criminal Appeal in Williamson v Trainor [1992] 2 Qd R 572 in relation to a Magistrates Court in that State. Since the passing of the Local Courts Act 1982 and the enactment in 1992 of Pt 9 of the Constitution Act 1902 (later doubly entrenched), magistrates of the Local Court have become constitutionally tenured judicial officers. They have power to impose substantial fines and terms of imprisonment. They are, like all judicial officers, charged with the duty to administer justice according to law.
Since the principle which gives rise to the power in a proper case to grant a stay is that "the public interest in holding a trial does not warrant the holding of an unfair trial" (Jago (at 31), per Mason CJ), it follows that such power resides in a magistrate of the Local Court hearing a (summary) trial unless excluded by clear words. The duty to observe fairness, at least in its procedural sense, is a universal attribute of the judicial function. Those aspects of a fair trial known as the principles of natural justice apply by force of the common law and the presumed intent of parliament unless clearly excluded in a particular context. In my view, the same can be said about the power to prevent abuse of process as an incident of the duty to ensure a fair trial. And I can see no principled ground for excluding a power to grant a stay to prevent or nullify other categories of abuse of process.
In Smiles v Commissioner of Taxation (Cth) [1992] FCA 441; (1992) 37 FCR 538 at 552, a Full Court of the Federal Court of Australia comprising Morling J, Beaumont J and Gummow J said:
"It is clear that, in an appropriate case, the Local Court has the power to stay civil or criminal proceedings before it which are an abuse of process (see Jago (at 25-26), per Mason CJ; Spautz (at 518-521); Newby v Moodie (1988) 83 ALR 523 at 526). ... The power of a court to stay a proceeding as an abuse of its process is an essential attribute of the exercise of the jurisdiction with which it is invested: see Spautz (at 520-521)."
See also Coleman v Gray (1994) 55 FCR 412 at 437. It will be plain from the foregoing that I respectfully agree.
The Tribunal then continued;
We have quoted from the judgement of Mason P at length because it provides ample justification for the fundamental principle that a court, albeit an inferior statutory court, is empowered to exercise such authority as will ensure that its processes are not the subject of abuse. We see no reason why the same approach should not apply to the powers of this Tribunal. Although this Tribunal is clearly not a court of law, it nevertheless exercises functions and powers within its extensive jurisdiction which are akin to those traditionally exercised by courts. Its jurisdiction extends over a vast range of matters involving disputation between disparate litigants and extends beyond inter parties claims to the enforcement of statutory rights and, as is involved in the present proceedings, disciplinary matters covering a wide range of professions.
The legislation by which this Tribunal is established gives it a wide range of powers and functions. The provisions of sections 36 and 38 are relevant;
36 GUIDING PRINCIPLE TO BE APPLIED TO PRACTICE AND PROCEDURE
(1) The
"guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The Tribunal must seek to give effect to the guiding principle when it:
(a) exercises any power given to it by this Act or the procedural rules, or
(b) interprets any provision of this Act or the procedural rules.
(3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal:
(a) a party to proceedings in the Tribunal,
(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.
(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.
(5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.
38 PROCEDURE OF TRIBUNAL GENERALLY
(1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
(3) Despite subsection (2):
(a) the Tribunal must observe the rules of evidence in:
(i) proceedings in exercise of its enforcement jurisdiction, and
(ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and
(b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings.
Note : Section 67 also prevents the compulsory disclosure of certain documents in proceedings in the Tribunal that would, in proceedings before a court, be protected from disclosure by reason of a claim of privilege.
We note also that even though this Tribunal is not generally bound by the rules of evidence, some of the enabling legislation which bestows jurisdiction does make provision for the application of the rules of evidence and requires that the Tribunal be constituted by members holding judicial qualifications. A ready example is the provisions of the Act and the legislation which has succeeded it. The Health Practitioner Regulation National Law (NSW) provides that when dealing with misconduct complaints against medical practitioners this Tribunal must be constituted by a presiding Senior Judicial Officer as defined in that Act.
The combined provisions of sections 36 and 38 which we have set out above require this Tribunal to engage in a "just "resolution of "the real issues" in matters coming before it, with an overall obligation to observe the rules of natural justice.
It seems to us that it would be anomalous that a tribunal having the functions and powers bestowed upon this Tribunal should not have the implied power to ensure that its own processes were not the subject of abuse and that its procedures were not capable of being stayed by it to avoid such abuse. There seems no reason why, as a matter of logic, these basic powers which repose in all courts including inferior courts created by statute should not also extend by the application of the same principles to the work of this Tribunal. We regard such a power to preclude the abuse of its processes by the grant of a stay of proceedings, whether permanent or conditional or otherwise as representing an inherent power in the sense that that expression is used in the authorities to which we have referred, and excluding, as we emphasise, the kind of inherent power possessed by a court of common law such as the Supreme Court of NSW.
For these reasons, we conclude that this Tribunal has an implied power to grant a permanent stay of proceedings as sought by the respondent provided that it is appropriate to make such an order.
In its submissions the respondent asserted that the reasoning in Clarke had been "overturned" by the decision of the NSW Court of Appeal in Attorney General for NSW v Gatsby [2018] NSWCA 254. In those proceedings which involved disputes brought before this Tribunal under the Residential Tenancies Act involving some parties who resided outside NSW, the Court of Appeal determined that whilst in some respects the Tribunal was exercising judicial power it was not a "court of a State" within the meaning of s 39(2) of the Judiciary Act 1903 (Cth) and s 77(iii) of the Constitution, and was thereby precluded from dealing with these matters.
In the course of delivering separate reasons, Leeming JA made reference to the manner in which the Tribunal had dealt with the relevant proceedings, and in the course of doing so made some reference to implied powers of this Tribunal. Bathurst CJ and Beazley P agreed with his Honour's reasoning. At [281-[284] his Honour said;
In the course of performing its duty of determining the internal appeals, NCAT was obliged to consider the extent of its own jurisdiction. In order to do so, NCAT identified two questions in two pending internal appeals for separate hearing: whether there had been the exercise of judicial power, and whether it was a "court of a State" within the meaning of s 77(iii). But if the answer to the second question was that NCAT was not a "court of a State", then that question was not one which could be determined by NCAT, because it involved the determination of a matter in federal jurisdiction arising under the Constitution. Only a superior court can pronounce authoritatively on the limits of its own jurisdiction. At best, all that NCAT could do was to form and express an opinion, in accordance with what Brennan J had said, sitting as President of the Administrative Appeals Tribunal, in Re Adams and the Tax Agents' Board (1976) 12 ALR 239 at 242:
"An administrative body with limited authority is bound, of course, to observe those limits. Although it cannot judicially pronounce upon the limits, its duty not to exceed the authority conferred by law upon it implies a competence to consider the legal limits of that authority, in order that it may appropriately mould its conduct. In discharging its duty, the administrative body will, as part of its function, form an opinion as to the limits of its own authority. The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal effect."
The fact that a legally binding answer to one of the questions could only be given by NCAT if it were answered in one way, and not the other, suggests that a procedurally flawed course was taken. At the practical level, it was also on the cards that in the event that NCAT determined, contrary to the Attorney General's submission, that it was a court, the matter would go further (as had occurred when the Administrative Decisions Tribunal had, wrongly, determined that it was a court in Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) 66 NSWLR 77; [2006] NSWCA 185). That said, I am also conscious that, in accordance with what was held in Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14, NCAT was unable to avail itself of the course of referring a question of law to the Supreme Court pursuant to s 54 of the NCAT Act, and that the course taken by NCAT gave this Court the benefit of its considered reasons on the question. But the most straightforward approach would have been, as the contradictor submitted in this Court, for an application for a declaration and an order in the nature of prohibition to have been made in this Court's supervisory jurisdiction pursuant to s 69 of the Supreme Court Act 1970 (NSW).
The procedure adopted by NCAT matters because an issue now arises as to this Court's jurisdiction. The answers to the questions posed by it were formally embodied in what were styled as two "orders". The contradictor submitted that no appeal lay from the orders made by the Appeal Panel embodying its answers:
"While the Appeal Panel in the present cases embodied its answers in a section of its reasons described as 'orders', it was not exercising any express power to determine separate questions. It was therefore doing no more than signalling, for the benefit of the parties, the basis on which it intended to proceed in determining each matter. That was not a 'decision' in the relevant sense."
I do not accept the submission. First, it matters not whether NCAT was exercising any "express" power. It has long been established that a court is able in its inherent jurisdiction to hear and determine a case in separate phases, aside from the separate question procedure authorised by modern rules of court: see Landsal Pty Ltd (in liq) v REI Building Society [1993] FCA 121; (1993) 41 FCR 421 at 427 and O'Connor v State of New South Wales [2017] NSWCA 335 at [17], both referring to the fact that the English Supreme Court Practice has long contained the following note: "Apart from these rules, the trial judge has inherent jurisdiction to try any separate issue or question before the others". I see no reason why the Appeal Panel of NCAT could not take the same course, irrespective of its status as court or tribunal. The power conferred upon the Tribunal by s 38(1) of the Act to determine its own procedure for which no provision is otherwise made, to be exercised in accordance with the obligation to give effect to the guiding principle of facilitating the just, quick, and cheap resolution of the real issues in the proceedings (see s 36(1) of the Act) sufficed to empower the Appeal Panel to act as it did. In my view whether that is "express" or otherwise is beside the point.
I read the observations of Leeming JA as supportive of the possession of implied powers by this Tribunal to facilitate the exercise of its jurisdiction.
In addition to the provisions of section 38 of the CAT Act referred to by his Honour, I also refer to the power of this Tribunal to make interlocutory and ancillary orders contained within section 29;
29 General jurisdiction
(1) The Tribunal has general jurisdiction over a matter if -
(a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and
(b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal.
Note. The general jurisdiction of the Tribunal includes (but is not limited to) functions conferred on the Tribunal by enabling legislation to review or otherwise re-examine decisions of persons or bodies other than in connection with the exercise of the Tribunal's administrative review jurisdiction.
(2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction -
(a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,
(b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings.
(3) A general decision of the Tribunal is a decision of the Tribunal determining a matter over which it has general jurisdiction.
(4) A general application is an application made to the Tribunal for a general decision.
(5) Nothing in this section permits general jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.
I am unable to identify any observations of any of the members of the Court in Gatsby which would lend support for any argument that the Court denied the existence of implied powers of the kind which are the subject of these proceedings.
The extract from Clarke which I have set out above clearly demonstrates that the Tribunal in those proceedings was acutely aware that the Tribunal was not a court. Nevertheless, the approach adopted by it was that the Tribunal would by analogy possess those implied powers inherently possessed by statutory inferior courts as recognised in the many authorities referred to. The principles espoused in Clarke do not depend for their validity upon whether or not this Tribunal can be characterised as a court.
The respondent also sought to base its submissions on observations made by Hunt AJA and Hodgson JA in the New South Wales Court of Appeal in Lindsay v Health Care Complaints Commission [2005] NSWCA 356. In those proceedings the Court referred to the power of the former Medical Tribunal created by the Medical Practice Act 1992 (NSW) to stay proceedings before it on the basis that they constituted an abuse of process. Their Honours were of the view that that Tribunal did not possess such implied powers by reference firstly to the legislative scheme which established that Tribunal, namely within the provisions of the Medical Practice Act, and secondly because the power to grant a stay reposed in the Supreme Court. I note that Mason P expressly refrained from making any observations about the existence of implied powers pertaining to that Tribunal.
I observe that the discrete legislative provisions contained within that legislation by which the Medical Tribunal was established are far more limited than the expansive legislative provisions applying to the jurisdiction and powers of this Tribunal as contained within the CAT Act. Certainly, the observations contained within Lindsay are relevantly inconsistent with those of Leeming JA in Gatsby.
On the basis of the reasoning adopted in Clarke I would conclude that this Tribunal is empowered in determining whether to grant a stay under section 165L of the National Law to do so subject to conditions or on terms, if these are appropriate measures to be taken in the circumstances of these proceedings.
[3]
The basis for the conclusions of the delegates
I set out again the conclusions reached by the delegates upon which they based their ultimate decision to suspend the applicant's registration;
We are of the view that Dr Holt's provision of training to other dentists in the Fat Module and potentially other Courses at AADFA, poses risks to public safety for the following reasons:
• It is unclear if all the techniques being taught are within the definition of dentistry;
• It is unclear if the Courses are being provided in a setting that appropriately uses TGA approved equipment, meets infection control standards and has adequate emergency equipment available;
• It is unclear if the applicable legislation for schedule 4 medications, particularly in regard to the compounded solution for injection lipolysis and multi-use of botulinum toxins, has been adhered to during provision of the Courses;
• The supply and enabling of the injection of schedule 4 medications in circumstances where appropriate assessment of medical history and informed consent may not have been adequately undertaken by the participants of the Courses;
• Concerns that Course participants may not be provided adequate guidance and information regarding their competence, or not, to provide the treatments and any legal and professional issues that may arise from this, including but not limited to patient safety concerns following attendance at the Courses;
• Concerns that there may not be appropriate mechanisms to protect the public and participant dentists from professional indemnity requirements in the event of complications, misadventure or negligence.
For present purposes it is only necessary that I make observations concerning these conclusions and the reasoning of the delegates for the purpose of determining the stay application. I note the following;
1. the cause for concern is expressed as the provision of training to other dentists in the "Fat Module"
2. in addition to the above course the delegates noted as a "potential" cause other courses which were provided
3. there then follows a number of reasons why these posed a risk to public safety
4. the first three items are prefaced by the words "it is unclear." It is not entirely clear what the delegates intended by the use of these words, but it seems more likely than not that the delegates were saying that they did not know about the matters to which they have referred. In other words, these matters were possible, but the delegates were unable to say definitively that they existed
5. the remaining three items are expressed in terms that they "may not" be applicable. In addition, the delegates said that they were "concerned" about the last two items.
I also refer to the public interest ground upon which the delegates also based their decision to suspend the applicant's registration. Apart from the risks to public health and safety previously identified, the delegates relied on the complaints which had been made;
We are also mindful of, and concerned about, the previous history of complaints relating to Dr Holt and in particular the matters which remain to be resolved by the NT DPP and the NTCAT. The allegations against Dr Holt are serious. In the event that adverse findings are made as a result of those proceedings serious questions will be raised about Dr Holt's trustworthiness.
I have already noted that this conclusion of the delegates will be a highly contentious matter in the appeal proceedings.
I have previously discussed the necessary quantification of risk for the purpose of the application of section 150 in the context of observations made in Reid at [10] above. Whether and to what extent the risks and the causes identified by the delegates are sufficient to fall within section 150 will be a matter to be determined at the hearing of the appeal. For present purposes I observe that whilst this will be a contentious matter at the hearing of the appeal, it is arguable that the conclusions of the delegates as expressed by them would not be sufficient to satisfy the higher test for suspension required by section 156 of the Queensland legislation which I have discussed above. If this is the case, then the effect of the decision of the delegates is to have suspended the right of the respondent to practice in jurisdictions other than New South Wales on grounds which might not have justified suspension in those other jurisdictions.
The mechanism by which the decision would be brought to the attention of the National Board is provided for in section 176 of the National Law.
176 Notice from adjudication body [NSW]
(1) If an adjudication body, other than a court, makes a decision in relation to a health practitioner or student registered in a health profession, it must give written notice of the decision to the National Board for the profession.
(2) For the purposes of subsection (1), in this jurisdiction a decision by an adjudication body is any of the following -
(a) a decision by the adjudication body to impose or agree to conditions on a registered health practitioner's or student's registration;
(b) a decision by the adjudication body to suspend a registered health practitioner's or student's registration;
(c) a decision by the adjudication body to cancel a registered health practitioner's or student's registration.
Note. This subsection is an additional New South Wales provision.
(3) The notice must state -
(a) the decision made by the adjudication body; and
(b) the reasons for the decision; and
(c) the date the decision takes effect; and
(d) any action the National Board must take to give effect to the decision.
The respondent was required by section 176 to give notice to the National Dental Board. At the very end of their reasons for decision the delegates said that a "Notice" of the decision, would be provided to the National Board under section 176. The respondent advised that such notice was given. I shall assume that the National Board acted on the basis of the notice by suspending the registration of the applicant effective Australia wide.
It does not appear that there was any discussion during the course of the proceedings before the delegates about the consequences of suspension of the applicant's registration beyond New South Wales. It is possible that the delegates considered themselves at large to deal with the nature and extent of the courses being offered by the applicant which was the subject of the complaint as originally formulated, together with the many other matters that the delegates chose to investigate while conducting the proceedings. However, it is clear that no consideration has been given to the differential legislative provisions applying in New South Wales by reason of section 150 and the provisions applying elsewhere throughout Australia by reference to section 156 of the Queensland legislation.
[4]
The applicant's livelihood
In an affidavit sworn for the purpose of this stay application the applicant said that by reason of scheduled training courses between the date of suspension of registration and 31 March 2020 there would have been an estimated loss exceeding $500,000. I am not sure whether this amount is intended to reflect gross revenue loss or net income after expenses. Presumably it relates to the business activities of AAFDA. In any event, the evidence is that the conducting of these courses on behalf of AAFDA is the only source of income derived by the applicant. Some of the losses incurred to date arose from the cancellation of courses in Hobart and Auckland, New Zealand, and others from courses which were to be conducted in Sydney. The applicant asserted that this was a matter to be taken into account in determining the stay application. I note that the estimate of $500,000 loss was later reduced by the applicant.
Both parties cited prior decisions of this Tribunal in which it had been said on the one hand that loss of income following suspension was a necessary incident of suspension in the interests of the health and safety of the public, and on the other hand that loss of income is a matter which may be taken into account in assessing the balance of convenience and in determining the interests of justice when considering a stay application. The facts in these cases are significantly different from the circumstances which apply to these proceedings. I intend taking the loss of income into account, but I should make it clear that where circumstances justify suspension because of well-founded concerns for the health and safety of the public or because it is otherwise in the public interest to do so, in general terms a consequent loss of income should be seen as a necessary incident of a suspension order. Again, much will depend upon the cause or causes which create the necessary risk or other circumstances, and whether they extend to all or some discrete part only of the practice of a health practitioner.
[5]
Application of the principles governing stays to these proceedings
I come now to consider the several principles which I have previously identified. I deal with each one which is relevant to my determination of this application seriatim.
I commence by making the trite observation that the onus is on the applicant to demonstrate that a stay should be granted. I do not perceive that the effectiveness of the appeal will be compromised if a stay is not granted, other than depriving the applicant of a right to continue to earn income through the training courses which he conducts.
It is necessary to consider whether or not the appeal is misconceived or hopeless. I have already concluded that the appeal raises points of law. The points themselves are so obviously points of law that is not necessary that I descend into any further detail. Of course, I should not be seen to be commenting in any way on the ultimate determination of those points when the appeal is dealt with. However, as I have previously commented, I do not regard the appeal as being hopeless and having no prospect of success. The applicant has available to him arguable grounds of appeal.
I perceive that the overriding principle to be applied in the circumstances of these proceedings is to weigh the balance of convenience and the competing rights of the parties against a context requiring that the interests of justice be applied.
I have not been given any detailed considered submissions by either party concerning the territorial limitations of the National Law (NSW). I do not say that by way of criticism, and perhaps the consequences of suspension under section 150 within the different regime applying in New South Wales in the context of the impact on suspension throughout Australia has not previously been determined by any entity having the right to adjudicate in this area.
Those submissions which had been made by each of the parties indicate that there is a vast gulf between them. The respondent characterises the totality of the cooperative regularity scheme as, in effect, creating registration throughout Australia. The applicant asserts that each of the several pieces of legislation in each of the jurisdictions "may be similar in effect, (but) they are not of the same lineage." The applicant submits that NSW law only applies in NSW, and the lower threshold applicable under section 150 must be taken into account as a relevant consideration when considering the Australia wide effect of the suspension made by the delegates.
This particular issue may or may not eventually become an issue in the appeal proceedings. For present purposes I consider that the conclusions of the delegates are expressed in such a tentative manner that there is an argument available to the applicant that those conclusions might not found suspension in any other jurisdiction, assuming, as I have been informed by those appearing for the applicant, that all other jurisdictions have legislation which is relevantly identical to that in the Queensland Act.
In considering the balance of convenience between the parties against the underlying need to have regard to the health and safety of the public and the overall need to have regard to the interests of justice I take into account the following;
1. The differential provisions applying to the power to suspend in New South Wales and their possible impact on the likelihood of suspension in other States
2. The tentative expressions of the concerns of the delegates
3. The impact of the Australia wide suspension on the livelihood of the applicant.
Overall, the balance of convenience and the interests of justice favour restricting the effect of the delegates' orders to apply within New South Wales pending the determination of the appeal proceedings. This conclusion is not displaced when adding in the consideration of the health and safety of the public. The risk to the public is expressed by the delegates in tentative and uncertain terms. No doubt the adequacy of the grounds and reasoning of the delegates and the basis for their conclusions will be subject to close examination during the hearing of the appeal. I do not apprehend that considerations of the public health and safety or the public interest militate towards a different conclusion.
On this basis, there is reason to vary the stay order so that the consequences of the suspension apply in New South Wales only, pending the determination of the appeal.
I come now to consider that part of the decision of the delegates which applies within New South Wales. Prima facie the delegates have identified those matters which need to be considered under section 150. Of course, there will be a substantial debate during the course of the appeal hearing about whether the findings and conclusions of the delegates were either justified or appropriate. Overall, for the purpose of determining this stay application I do not characterise the conduct of the delegates in the hearing, their consideration of the factual material and their findings and conclusions as being so untenable or erroneous as to justify staying their decision as it applies to the applicant in the course of his practice in New South Wales. Furthermore, the deprivation of the applicant's livelihood in these circumstances would not outweigh concerns for the health and safety of the public. Overall I am not satisfied that the effect of the concerns of the delegates should be stayed.
This conclusion leads to a consideration of the conduct of the applicant which should be addressed in order to remove the risks which the delegates identified. Predominantly the concerns of the delegates as they applied directly to the personal activities and conduct of the applicant were confined to his participation in the presentation of the courses and his administration of the Carboxytherapy treatment. It follows that if the respondent were precluded from undertaking these activities in New South Wales the concerns of the delegates in terms of their task under section 150 would be accommodated. This was a fall-back position proposed by the applicant, and one which I consider appropriate. I intend to proceed accordingly.
For reasons which I have previously stated I proceed on the basis that I am empowered to stay the decision of the delegates on terms that will accommodate their concerns about the applicant's conduct and will also avoid the general suspension of the applicant's registration throughout Australia for reasons which have not been considered in the context of the relevant legislative schemes applying outside New South Wales.
[6]
Costs
The question of costs of these stay proceedings has not been argued before me. I shall grant liberty to apply.
[7]
Orders
I make the following orders;
1. The order made by the respondent on 10 February 2020 suspending the registration of the applicant Dr Myles Edward Holt as a dental practitioner from that date is stayed pending the determination of appeal proceedings brought by him against that order or until further order of this Tribunal
2. This stay order is conditional upon the applicant not personally conducting Carboxytherapy courses to participants who are present in New South Wales or providing Carboxytherapy treatment in New South Wales whilst the stay order remains in force
3. The respondent is to forthwith take all appropriate steps to ensure that the AHPRA Register of Practitioners website and any such website conducted by the National Dental Board and its own website are updated with immediate effect to reflect that the applicant's registration is no longer suspended and to reflect the conditions set out in (2) above.
4. Costs are reserved with liberty to apply.
[8]
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: 02 April 2020
Parties
Applicant/Plaintiff:
Holt
Respondent/Defendant:
Dental Council of New South Wales
Legislation Cited (5)
Health Practitioner Regulation National Law (Queensland) Medical Practice Act 1992(NSW)
It is convenient to set out some of the provisions of the National Law which are relevant to the determination of these proceedings.
In determining these proceedings, the Tribunal is informed inter alia by the provisions of section 3A of the National Law which are in the following terms;
3A Objective and guiding principle [NSW]
In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
The power to suspend the registration of the applicant was exercised pursuant to section 150 of the National Law which is in the following terms;
150 Suspension or conditions of registration to protect public [NSW]
(1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest -
(a) by order suspend a registered health practitioner's or student's registration; or
(b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or
(c) by order impose on a student's registration the conditions the Council considers appropriate.
(2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens -
(a) the complaint about the practitioner or student is disposed of;
(b) the suspension is ended by the Council.
(3) If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must -
(a) suspend the practitioner's or student's registration until a complaint concerning the matter is dealt with by the Tribunal; and
(b) refer the matter to the Tribunal as a complaint.
(4) A Council for a health profession may take action under this section -
(a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and
(b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal.
(5) Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition.
(6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned.
(7) If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who -
(a) is not a registered health practitioner or student in the health profession for which the Council is established; and
(b) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act.
Matters relevant to the right of appeal on a point of law and to the jurisdiction and powers of this Tribunal are contained within sections 159B and 159C of the National Law;
159B Appeals on point of law [NSW]
(1) A registered health practitioner or student who is the subject of action taken by the Council for the health profession under section 150, 150A or 150C may appeal, with respect to a point of law, to the Tribunal.
Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013.
(2) Subsection (1) does not limit a right of appeal under section 159.
(3) The Council must not make a decision that is inconsistent with the Tribunal's decision with respect to a point of law under this section.
(4) A registered health practitioner or student may not make an application to the Supreme Court for judicial review of action taken by a Council under section 150, 150A or 150C, being an application alleging any error of law, until an appeal under this section in respect of the point of law concerned has been made and disposed of.
159C Tribunal's powers on appeal [NSW]
(1) On an appeal against a decision of a Council, the Tribunal may by order -
(a) confirm the decision; or
(b) set aside the decision; or
(c) set aside the decision and make a new decision (being a decision that the Council could have made).
(2) The Tribunal's order must not cause a suspension or conditions imposed by a Council to have effect beyond the day on which a related complaint about the person is disposed of.
It is uncontroversial that the power to deal with the stay application brought by the applicant is to be exercised by the Tribunal as currently constituted. It is also uncontroversial that the power to order a stay is limited to an appeal instituted under section 159B (See the decision of the NSW Court of Appeal in Medical Council of New South Wales v Lee [2017] NSWCA 282).
The nature and extent of the power to suspend under section 150 of the National Law
Before examining the Decision which is the subject of the appeal brought by the applicant, and concerning which the stay application is brought, it is first necessary to have regard to some of the principles established by relevant authorities dealing with the provisions of section 150.
In Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 the Tribunal said at [56];
We make the following observations concerning the underlying principles which we perceive to apply in the circumstances of these proceedings:
(1) The exercise of the power to suspend will have grave consequences for a medical practitioner, affecting not only the ability to earn a livelihood, but also the continuing ability to use his or her professional skills. Nevertheless, this is but a consequence of any appropriate exercise of discretion, and not a determining factor. The grave consequences are accommodated within the need to ensure that we are satisfied to the Briginshaw standard that we can safely make the conclusions necessary to make a determination that section 150 is enlivened including a consideration of the nature and status of the material upon which any such conclusions are made.
(2) The existence of the power, and the fact that it may be exercised without any formal complaint having been made against the practitioner, and without any disciplinary proceedings having been commenced, is indicative that those exercising it need not embark upon a detailed enquiry, and may base their reasons on material which would not conventionally be considered as evidence in a strict sense as would be admissible in a court. (See the cases cited in R and Medical Board of Australia [2013] WASAT 28 at [24] and following).
(3) Section 150(6) arguably requires that notice be given to the practitioner before any order of suspension, or any other order under that section has been made. The practitioner will always have an opportunity of addressing the decision-makers prior to any determination being made.
(4) Nevertheless, the "draconian" nature of the power is such that great care needs to be taken to ensure that there is some proper and appropriate basis for making any order. This will involve an appropriate examination and consideration of the nature and extent of any misconduct alleged against the practitioner. The decision-maker "must feel an actual persuasion of the occurrence or existence of the relevant facts, under the Briginshaw principle or approach" (R and Medical Board at [28]).
(5) It will also require the formation of a "reasonable belief... That because of the health practitioner's conduct (or) performance...., the practitioner poses a serious risk to persons, and that it is necessary to take immediate action to protect public health or safety" (R v Medical Board at [28]), or to do so otherwise in the public interest. This quotation needs to be qualified to the extent that "necessary" is not the test contained in the Act.
(6) Any conclusions which are made in the course of determining that section 150 is enlivened are made for the purpose only of that determination, by reason of the ability to rely on information and material which may not otherwise be strictly admissible in administrative or judicial proceedings.
(7) It is also necessary to consider the nature of the section 150 proceedings from which this appeal is brought. The provisions of section 150 have been set out above. We make the following observations about these provisions:
(a) There are two requirements to be satisfied when determining whether the section is enlivened, namely the protection of the health or safety of any person or persons, and the public interest.
(b) These requirements are expressed to be in the alternative.
(c) The manner in which the introductory words of subsection (1) are expressed arguably creates some difficulty in interpretation, or perhaps some ambiguity. This is caused by the use of the word "otherwise" and the context in which it appears. On one view, it is possible to argue that the health or safety of a person or persons is "otherwise in the public interest", in the sense that health or safety are matters within the public interest. That is, public health and safety are within public interest, but in a different manner, or in other respects. The other view is that health or safety of persons is in the public interest in circumstances which are apart from or in a different or contrasting way from the public interest so that one does not include the other. The difference, in general terms, is between health and safety being subsumed generally within public interest, or health and safety being exclusive of public interest. If the former is correct, then arguably, it would not matter if either the delegates or this Tribunal determines the matter on either basis. If the latter is correct, then a decision based on public interest alone may not have been validly made if, in reality, the findings should more properly had been directed to the protection of the health or safety of any person or persons. It does not appear that this matter has arisen for consideration in any other reported proceedings. The respondent submitted that the provision operated so that "otherwise" would mean "in some other way". Therefore, the health and safety element is subsumed within the public interest. We do not understand the appellant to have made a contrary submission. As this approach to construction appears to us to reflect the overall intention of the section, we shall apply it for the purpose of these proceedings.
(d) In any event, if either of the health or safety or public interest ground is made out, then it is mandatory that the Council either suspend or impose practice conditions, subject to the Council being satisfied that it is appropriate to do so for the stated reasons.
(e) By subsection (4), action may be taken by the Council under section 150 whether or not a complaint has been made or referred to the Council about the medical practitioner. Accordingly, if information comes to the attention of the Council in whatever manner, the provisions of section 150 are enlivened. Of course, having regard to the nature and extent of the powers under section 150 it is a trite observation that the Council must observe the strictures imposed by section 150 (1), and must do so in a responsible and appropriate manner. It would be a rare situation if the Council determined to take action to suspend or otherwise impose practice conditions without having first notified the practitioner and given him or her some opportunity to explain his or her circumstances. Of course, one might envisage urgent situations arising where there might be no time or opportunity to notify the practitioner. The urgency and apparent gravity of the situation may dictate the nature and extent of the information relied upon in dealing with a matter.
(f) A consideration of the public interest will always include the need for patients to have confidence in the competence of medical practitioners and that medical practitioners will exhibit traits consistent with the honourable practice of an honourable profession. Integrity, trustworthiness and high moral and ethical values are an integral part of the practice of medicine, as is compliance with regulatory requirements and codes of practice established by those responsible for the administration of the medical profession. The public must have confidence that medical practitioners who treat them exhibit these traits.
(g) Section 150 empowers the Council to either suspend or impose conditions on the registration of the medical practitioner if circumstances warrant either of these steps. These powers are also available in circumstances where complaints have been initiated against a medical practitioner under the Act. The exercise of those powers by the Medical Tribunal is conditional upon findings of unsatisfactory professional conduct or professional misconduct. The process which we are undertaking is removed from any consideration of whether the medical practitioner might, at some stage, be found guilty of either unsatisfactory professional conduct or professional misconduct on the basis of some complaint which to date has not been initiated. We agree with the observations of Beech-Jones J in Berger previously set out, and we adopt the following from his Honour's judgement at [17] - [18]:
.... to attempt at this point to predict what the Tribunal might decide at some indefinite point in the future risks distracting the Court from ascertaining what presently is necessary in the public interest. No doubt there are cases where professional misconduct is demonstrated against a solicitor but the Tribunal determines not to remove them from the roll or completely prevent them from practising because aspects of their conduct since the complaint may demonstrate that that step is not warranted. There is very little scope to consider such possibilities in this type of application....
In my view the appropriate approach is one that requires that the Law Society at first instance, and this Court on appeal, to be satisfied that the available material concerning a complaint against a practitioner demonstrates that the continued holding of a practising certificate by them pending its determination presents such an unacceptable risk to clients, the public generally or the administration of justice that it is necessary that their certificate be suspended.
(h) There is very little consideration within the provisions of the Act as to the manner in which the Council or its delegates are to conduct themselves in determining whether the necessary preconditions to the use of the available powers under section 150 are satisfied. For present purposes, it is sufficient that we observe that the principles of natural justice, including procedural fairness, should apply to the extent reasonably necessary.
Principles applying to the stay application
The relevant principles have been succinctly summarised in Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37. Wright J, President of this Tribunal said at [9];
As a result of the use of "may" in s 43(3) of the Act, the Tribunal has a discretion whether or not to grant a stay. That discretion must be exercised judicially and general principles which apply in relation to the exercise of that discretion can be derived from the terms of s 43(3) itself. Additional guidance can be obtained from the considerations applied by the Courts in deciding whether or not to grant a stay pending an appeal. The applicable principles can be summarised as follows:
(1) Generally a successful party is entitled to the benefit of the decision or orders that the party has obtained at first instance, but a stay may be granted where the appellant has demonstrated an appropriate case to warrant the exercise of discretion in its favour - s 43(2) and (3) of the Act, Kalafair Pty Limited v Digitec (Australia) Pty Limited (2002) 55 NSWLR 737 at [28], Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [7].
(2) In practical effect the onus is on an applicant for a stay to make out a case that it is appropriate for the court to make such an order - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694, Vaughan v Dawson [2008] NSWCA 169 at 16.
(3) The mere lodgment of the notice of appeal is insufficient, of itself, to demonstrate that it is an appropriate case to warrant the granting of a stay - s 43(2) and (3) of the Act, Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694, Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [7].
(4) An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal - s 43(3) of the Act. This is similar to, if not the same as, the considerations applied by the Courts that where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted or where unless a stay is granted an appeal will be rendered nugatory, the discretion should generally be exercised in favour of granting a stay - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695.
(5) The Tribunal may also take into account the strength or otherwise of the case of the party seeking the stay. This consideration may be particularly relevant when it is plain that an appeal, which does not require leave, has been lodged without any real prospects of success and simply in the hope of gaining a respite against immediate execution of the decision - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695.
(6) The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies - ss 43(3) and 58 of the Act.
(7) In exercising the discretion the Tribunal will also weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694, Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [21] and [22].
(8) Finally, the overriding principle in an application for a stay is to ask what the interests of justice require - New South Wales Bar Association v Stevens[2003] NSWCA 95 at [83] and Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [18].
In Dr Reid v Medical Council of NSW [2014] NSWCATOD 152 the Tribunal said at [99] and following;
We have previously set out the provisions of section 150 (1). The overriding concern here is the necessity to protect the health and safety of persons, although there is power to suspend if it is otherwise in the public interest to do so. These are the matters that will inform us in determining these appeal proceedings.
In applying these provisions and in considering this appeal from a decision made under Sec 150, as is obvious, it is necessary to consider the protection of the health and safety of any person and the public generally. Counsel for the Council submitted that one could determine whether there was any affect or impact upon the protection of the health and safety of any person or the public generally by considering whether or not there was created any risk to health and safety arising out of the practice of the appellant.
A difficulty with this approach is that there are varying degrees of uncertainty which constitute risk, because risk deals with things that are not certain, whether measurable or unmeasurable. Philosophically a risk of some adverse event which is measurable may lack the degree of uncertainty for it to constitute a risk.
We are uncertain as to whether or not this is the appropriate approach. It seems to us, from the plain words of the legislation, that the ability to suspend under section 150 responds to any situation where suspension is necessary to protect the health and safety of any person or persons, or the public generally. Where the conduct of a medical practitioner whether by act or omission adversely affects health and safety of those protected by the legislation, then the ability to suspend under the legislation is enlivened. This requires an identification of the adverse impact on health and safety and the establishment of a causal relationship between that adverse impact and the conduct of the medical practitioner. It is not necessary, in our opinion for there to be actual harm suffered by any person. Because the concept is one of protection, it is sufficient if it can be demonstrated that there is a potential for harm. This approach is fortified by the alternative test of a consideration of the public interest. It would be in the public interest to prevent harm being suffered by a person or persons if it could be predicated that this may occur.
However, this raises the further question about the qualitative aspect of potential for harm. This further question leads, by this circuitous route, to a consideration of risk and the quantification of the risk. As an extreme, if a medical practitioner utilised a particular technique where the preponderance of patients suffered harm, then it could be said that there was a real risk of harm rather than something that was remote or fanciful. At the other extreme, almost every operative procedure has some risk of adverse consequences attached to it. Even a simple operation such as an appendectomy, or the removal and insertion of a new lens in cataract surgery involves some element of risk, which is statistically measurable. However, any attempt by the Council to prevent operations of this kind because they are accompanied by a risk of adverse consequences would arguably represent an abuse of the process. For example, the work of neourosurgeons in dealing with cases of trauma creating bleeding in the brain will almost always involve a risk of adverse consequences for a patient. We would hope that a competent neurosurgeon undertaking this work in circumstances where there can be no guarantee of a successful outcome would not ordinarily come to the attention of the Council. On this basis, the fact that a surgeon may in these circumstances create a risk of harm is not per se sufficient to attract the provisions of sec 150.
This conclusion may be fortified by considering the approach taken by statute and the common law to the type of risk which will found a cause of action. The Civil Liability legislation is a ready example. This legislation, and the common law speak of liability for harm caused in failing to take precautions against the risk of harm unless it was foreseeable, a not insignificant risk, and the precautions that would have been taken in all the circumstances by a reasonable person. In considering what a reasonable person would have done to take precautions against the risk of harm a court considers the probability that the harm would occur if care were not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm, and, in some cases, "the social utility of the activity that creates the risk of harm." (See the Western Australian Civil Liability Act). This also involves consideration of the magnitude of the risk and the degree of the probability of its occurrence. Some cases consider whether there is a risk which is not fanciful or remote. We take the approach that there is always an attendant risk of an adverse consequence when undergoing surgery, albeit at the hands of the surgeon, the anaesthetist or assisting medical professional personnel, or by reason of some failure in any of the equipment used or in the facility generally. Accordingly, applying by some form of analogical reasoning the approach to the characterisation of risk which is contained within the legislation or common law which we have referred to would involve a detailed qualitative analysis of the particular risk in a manner which we would not find helpful in endeavouring to apply the provisions of section 150.
Thus there needs to be some additional element to enable a risk of harm to be characterised as justifying suspension under Sec 150. The protection of the health or safety of any person must extend beyond the risk of harm created by an appropriately trained and competent surgeon undertaking surgery in a manner, and using techniques which are capable of being defended as appropriate in all the circumstances and which is carried out within an appropriate facility. Accordingly, surgical treatment which trespasses outside these parameters may arguably attract the application of Sec 150. And of course, any such assessment can only be made by reference to appropriate evidence or information which is before this Tribunal.
This is the approach which we intend to take in dealing with these proceedings. In our discussion we have focused predominantly on the surgery itself, because this has provided a convenient focus on which to undertake the reasoning process. However, we acknowledge that other matters which were relied upon by the delegates are also capable of creating an attendant risk of harm to a person, including a failure to properly warn a patient about all of the risks associated with the proposed surgery, the availability of alternative forms of treatment (if available), the taking of informed consent, and the keeping of appropriate clinical and other records. We will have regard to these matters also in determining these proceedings.
I will return to a discussion of the principles set out above later in these reasons for decision. Before doing so it is appropriate to consider the factual background concerning the proceedings before the delegates, and then consider the course of the proceedings before them.
I respectfully adopt the above summary as providing guidance in the determination of this stay application, subject to a qualification regarding the application of the provisions of sections 43(3) and 58 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the CAT Act"). I note also that in considering the interests of justice, it is necessary to take into account both general law principles and also the statutory context against which the proceedings are being taken. The National Law determines that the primary matter for consideration is the protection of the health and safety of the public.