Jayswal v Medical Council of New South Wales

NCAT Occupational|2022-04-01

Medical Board of Australia v Leow [2019] VSC 532 Medical Council of New South Wales v Lee [2017] NSWCA 282 Medical Council of New South Wales v Smithson [2021] NSWCA 53 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149 New South Wales Bar Association v Stevens [2003] NSWCA 95 New South Wales land and Housing Corporation v Orr [2019] NSWCA 231 Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Segal v Medical Council of New South Wales [2020] NSWCATOD 86 Sharp Corporation of Australia Pty Ltd v Collector of Customs [1995] FCA 1521 Category: Principal judgment Parties: Vishal Jayswal (Appellant) Medical Council of NSW (Respondent) Representation: Counsel: Ms R Withana (Applicant) Ms A Petrie (Respondent)

Solicitors: Moray & Agnew (Applicant) Medical Council of New South Wales (Respondent) File Number(s): 2021/00364745 Publication restriction: Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting publication of the name of the Applicant's former partner and children.

Introduction

On 29 October 2021 the Medical Council of New South Wales (Respondent) imposed conditions on the practice of medicine by Dr Vishal Jayswal (Applicant) pursuant to s 150 of the Health Practitioner Regulation National Law (NSW) (National Law). Section 150(1) of the National Law relevantly provides that a Medical Council "must", by order, suspend a practitioner's registration (s 150(1)(a)) or impose on the practitioner's registration such conditions as it considers "appropriate" if it is "satisfied that it is appropriate to do so for the protection of the health or safety of any person(s) or is otherwise in the public interest" (s 150(1)(b)). The Applicant did not appeal against that decision.
On 29 November 2021, pursuant to s 150C of the National Law, and following a hearing, for the reasons subsequently published, the Respondent suspended the Applicant from the practice of medicine (suspension decision). Section 150C(2) of the National Law relevantly provides a Medical Council may, at any time after taking action under s 150, "take any other action which it could have taken under that section at the time of taking the original action". The Applicant filed a Notice of Appeal against the suspension decision.
On 10 March 2022 the Applicant filed "Further Amended Grounds for Appeal".
The Applicant filed an application to stay the suspension decision on 23 December 2021. On 2 February 2022 the Applicant filed an amended application to stay the suspension decision (stay application).
The Applicant's stay application was heard on 1 April 2022. The Tribunal's decision was then reserved. These are the reasons for the decision and orders of the Tribunal with respect to the Applicant's stay application.
The material before the Tribunal on 1 April 2022 comprised the Further Amended Notice of Appeal of the Applicant filed on 10 March 2022, the amended application for stay filed on 2 February 2022, and Affidavits of the Applicant filed on 18 March 2022 and 30 March 2022, and an Affidavit of Karine Marianne, the Applicant's solicitor, filed on 18 March 2022. The Tribunal also had before it the Reasons for Decision of the Respondent of 29 October 2021 and 29 November 2021, together with all the documentation which it was agreed had been before the Respondent during the s 150 and s 150C hearings, together with the transcripts of each of those hearings. Learned Counsel for each party spoke to their comprehensive and helpful written submissions, those of the Applicant having been filed on 21 March 2022, those of the Respondent on 31 March 2022.
The Tribunal had intended to deliver its decision in this application immediately after 17 April 2022 (Easter), but, having regard to passages in the judgment of the Court of Appeal in Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 (Pridgeon), which was delivered on 14 April 2022, and came to the Tribunal's attention after Easter, on 19 April 2022, the parties were invited, if they wished, to make submissions with respect the asserted impact of the decision on the balance of convenience in this application. Each party filed helpful submissions in accordance with the directions of the Tribunal.

Background

The background to the proceedings is not in contest, but, having regard to the circumstances in which the present application falls to be determined, requires recounting in some detail.
The Applicant is 49 years of age, and holds a Bachelor of Medicine Degree from Nagpur University, India. The Applicant completed his General Practitioner (GP) training in England and Australia, and is a member of the Royal College of General Practitioners (UK). The Applicant completed a fellowship with the Royal College of General Practitioners in Australia in 2016, and was first registered to practice as a GP in Australia on 24 May 2016. From October 2016 to the date of his suspension, the Applicant worked as a GP at Wollongong Medical Practice.
On 2 March 2021, the Applicant was charged with the offence of stalking and intimidation with intent to cause fear of physical or mental harm to his former domestic partner pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPV Act) (criminal charge). The Applicant is currently subject to a Provisional Apprehended Domestic Violence Order (PADVO), with which he has complied at all material times. The PADVO was formerly varied by NSW Police on 7 October 2021 to permit the Applicant to have scheduled weekly telephone conversations with his son.
The Applicant has pleaded not guilty to the criminal charge, which was originally listed to be heard on 25 October 2021 in the Local Court at Wollongong. The hearing was adjourned to 6 June 2022 as a result of complications referable to the Covid pandemic.
On 13 April 2021, the Applicant was notified by the New South Wales Office of the Children's Guardian that his Working With Children Check (WWCC) had been suspended.
The Applicant did not notify the Australian Health Practitioner Regulation Agency (AHPRA) of the criminal charge until 27 September 2021. On 16 October 2021 the Respondent resolved to refer the Applicant to a hearing by delegates of the Medical Council pursuant to s 150 of the National Law.
On 29 October 2021 the Respondent conducted a s 150 hearing. At that time the prosecution brief with respect to the criminal charge was not in the possession of the Respondent. The Respondent was then in possession of the Applicant's notification pursuant to s 130 of the National Law identifying the criminal charge, the NSW Police "FACTS" sheet relating to the criminal charge, which set out the facts and circumstances which the prosecution intended to seek to prove.
The Respondent issued the Applicant with a Notice to Produce documents referable to the criminal charge pursuant to s 150J of the National Law. The Applicant's solicitor advised the s 150 hearing that, as the criminal charge had not been finalised, the Applicant was unable to comply with the Notice to Produce.
Following the s 150 hearing on 29 October 2021, the Respondent imposed a number of conditions upon the Applicant's registration as a medical practitioner, the most relevant of which for present purposes was a condition that the Applicant not "consult, examine treat or perform any procedures on any person under the age of 18" other than in the limited circumstances arising out of the provision of emergency medical services to patients under 18 for which the orders provided.
The Applicant did not appeal against the decision of the Respondent of 29 October 2021.
On or about 18 November 2021, the Respondent having received the NSW Police Brief for the criminal charges, the Applicant was advised that a hearing under s 150C of the National Law had been convened for 29 November 2021. Following that hearing, the Respondent made the suspension decision.
The Applicant has appealed against the suspension decision, by way of "new hearing" pursuant to s 159 of the National Law and on points of law pursuant to s 159B of the National Law.
The Respondent provided its reasons for the suspension decision on 20 December 2021.
On 17 December 2021, the Applicant was advised by the New South Wales Office of the Children's Guardian that the interim bar on his WWCC had been removed, and his WWCC reinstated.

The reasons for the Decisions of the Respondent

Given the circumstances in which the suspension decision was made, and the substance of some of the Applicant's current grounds of appeal, it is necessary to refer to the reasons for the decision of the Respondent in both the s 150 and s 150C proceedings.

The reasons for the s 150 Decision of 29 October 2021

The Respondent identified previous notifications with respect to the Applicant between July 2018 and September 2021, to which it could have regard pursuant to s 41O of the National Law. There were no additional notifications to which regard could be had under s 41O of the National Law at the time of the s 150C hearing.
Extensively recording the Applicant's professional and domestic circumstances, historical and present, the Respondent directed its attention to "the current complaint" and recorded a number of matters which the Applicant admitted or informed it of with respect to the criminal charge.
The Respondent recorded that it "attempted to garner further information from Dr Jayswal, noting that it is the role of the Delegates to undertake a risk assessment, which is difficult in circumstances where Dr Jayswal is providing little information". The Respondent considered that it was "appropriate for the Delegates to explore Dr Jayswal's approach to identifying and assisting a patient who is a victim of domestic violence" in view of the fact that domestic violence victims attend medical practices and come from "different backgrounds".
The Respondent recorded in detail the Applicant's response to questions relating to his awareness of, and method of dealing with, patients who had, or may have experienced domestic violence. Consistent with the Applicant's plea of not guilty to the criminal charge, the presumption of innocence, and privilege against potential self-incrimination, on legal advice, the Applicant declined to answer a number of questions with respect to domestic violence.
The Respondent referred to the Applicant's explanation for failing to disclose the criminal charges to AHPRA until 23 September 2021, the day before his Performance Assessment was conducted, as being unawareness of the obligation to notify AHPRA within 7 days of being charged with a criminal offence, and mistakenly believing that self-notification was only required upon the outcome of the hearing.
The Respondent referred to the Performance Assessment of the Applicant on 24 September 2021 during which the Assessors raised 5 concerns: 1. working beyond scope; 2. a need for training and education in the area of ENT conditions; 3. concerns regarding a lack of insight into aspects of his own practice; 4. poor record keeping practices; 5. a borderline performance with clinical scenarios.
The Assessors recommended that the Applicant be offered conditions in lieu of attending a Performance Review Panel and noted a further medical record audit would take place in 6 months.
Under the heading "Opinion" the Respondent recorded that the: "Delegates expressed concerns regarding the allegations of violence and threats of violence that have been made against Dr Jayswal. This behaviour is unacceptable, illegal and does not align with the expectations of the public when considering behaviour expected of a medical practitioner."
The Respondent also recorded that the Delegates: "held concerns that victims of domestic and family violence are encouraged to attend their GP for assistance. In these circumstances it is probable that Dr Jayswal, a person who is currently under charge of a domestic violence offence, may consult with a patient who is experiencing domestic violence."
The Delegates were also: "concerned that such circumstances were inappropriate and could lead to a risk to the health and safety of the public - firstly, due to the possibility that Dr Jayswal would either be unable, incapable or fail to recognise (either deliberately or unconsciously) these issues in order to appropriately assist such a patient; and secondly, due to the highly unacceptable circumstances whereby a victim of domestic violence is seeking assistance from an alleged perpetrator - this is of concern to the Delegates, regardless of whether the patient is aware of Dr Jayswal's charge".
The Respondent was further concerned that "Dr Jayswal involved his son (Person A) in the alleged in the events", presumably intended to read "conduct alleged in the events", which the Delegates considered to be "significant and indicated a level of seriousness to the current situation".
The Respondent concluded, in the light of such concerns, that "a risk to the health and public existed, and that it was appropriate to take action under s 150 of the National Law".
The Respondent then asked "Are the circumstances such that it is otherwise in the public interest that action be taken that affects the practitioner's practice?" The Respondent recorded the duty to make the care of patients the first concern of a medical practitioner, and to practise medicine safely and effectively, which meant that the medical practitioner "must be ethical and trustworthy". The Respondent then referred, by reference to the Code of Conduct for doctors in Australia, to the qualities which a medical practitioner should display and added that it was: "mindful of the contemporary community view of the abhorrent and insidious nature of domestic violence in all forms, and believed the community will rightly be concerned about a medical practitioner being charged with a domestic violence offence. Protecting the safety and health of the public and the public interest encompassed setting and maintaining standards and where necessary, imposing conditions or suspending the registration of those who do not meet those standards, thereby ensuring public confidence in the system regulating medical practitioners."
The Respondent reiterated its concern that the Applicant was "likely to see patients who are domestic violence victims, in circumstances where he is currently an alleged perpetrator". The Respondent thus determined that it was in the public interest "that action be taken under s 150 of the National Law.
For the reasons which the Respondent recorded, it "did not form a view as to whether Dr Jayswal has an impairment under the National Law". That finding has been seen as the absence of a finding of impairment.
The Respondent's reasons then engaged with whether conditions could be imposed which would sufficiently mitigate the concerns which it had recorded, both with respect to the health or safety of the public and the public interest. After referring in detail to the submissions made on behalf of the Applicant, under the heading "Decision", the Respondent reiterated the findings earlier recorded to which reference has briefly been made in these reasons, and recorded that: "It is not the role of the Delegates, nor is it possible, to make any findings of fact. It is the role of the Delegates to consider the available information and, on balance, make a decision regarding the most appropriate action to take in the circumstances."
The Respondent, albeit, it would appear, by a majority of its members, found that rather than suspension of the Applicant's registration, it was appropriate to place conditions on his registration, including "a condition to mirror the restriction applied by the Office of the Children's Guardian".

The reasons for the suspension decision

On 20 December 2021 the Respondent published its reasons for suspending the Applicant's registration pursuant to s 150C of the National Law.
The Respondent identified four issues which it considered needed to be addressed. There is no suggestion that the identification of those issues was inaccurate. The Respondent first asked whether there was "new information now available". The Respondent identified "new documents" which had become available after the s 150 hearing on 29 October 2021, they being: 1. witness statement of the Applicant's former domestic partner; 2. two police statements; 3. copy of email messages between the Applicant and his former domestic partner; 4. chest photos of the Applicant; 5. notes by a child of the Applicant (Person R) and the CDHA report from Dr Samuels.
The Respondent recorded, accurately, what was contained in the "new information", describing it as alleging "long term and protracted violence perpetrated by Dr Jayswal upon his former domestic partner, with allegations of physical violence against a female child of that relationship (Person B) and the family pets", dating from as early as 2002. These allegations emerged from the statement of the Applicant's former domestic partner.
The Respondent referred to the report of Dr Samuels of 2 November 2021 and part of the conclusion to that report which read: "On examination he was pleasant and cooperative but tended to minimise and rationalise his behaviours and does not seem to entirely appreciate the impact of these actions on his former (domestic partner). He suggested a cultural component to his behaviour stating that the body in India can be used to express feelings. It is concerning that as a medical practitioner who presumably deals with domestic violence and patients engaging in self-harming behaviour that he does not seem to fully comprehend the inappropriateness of his actions. He certainly seems to have some underlying personality vulnerabilities but does not provide a history of developmental trauma. However I can find no clear evidence that he is currently depressed, anxious, suffering from major mental disorder nor substance misuse issues. At this point I would not regard him as being impaired within the meaning of the National Law."
The Respondent then considered "How does Dr Jayswal respond to this new information?" The Respondent recorded the agreement of the Applicant with Dr Samuels' report, and that it had "offered Dr Jayswal the opportunity to speak to each new document in the brief" of evidence provided by the NSW Police. Counsel advising the Applicant informed the Respondent that the circumstances had not changed since the hearing in October 2021, in that the criminal proceedings had yet to be determined. Counsel reiterated the Applicant's desire to assist the Respondent but being unable to "place his situation in jeopardy, as was acknowledged at the previous s 150 proceedings".
The Respondent referred to each document comprising the new evidence, and to the Applicant's response, where a response was made, to such documents. Consistent with the position indicated by his Counsel, the Applicant provided limited responses or comments with respect to each of the documents which were presented to him.
The Respondent "queried the current status of the AVO and contact arrangements between Dr Jayswal and his son" and recorded that the Applicant "advised the arrangements had not changed since the previous s 150 hearing however he is looking into requesting an increase in access. He is compliant with the order". The Respondent then asked "What action could the Council have taken when it took its original action?" and reiterated the concerns which found expression in the decision of the Council of 29 October 2021.
The Respondent then asked "Given the new information, what action should the Council now take, if any?". The Respondent referred in detail to the submissions made on behalf of the Applicant and, under the heading "Opinion", recorded that "While these proceedings do not relate to any additional charges being laid against Dr Jayswal, the Delegates have been provided with additional information alleging serious, protracted and highly concerning criminal behaviour by Dr Jayswal against his (former domestic partner) and children", it was "of particular concern to the Delegates that this new information includes allegations of sexual assault, physical violence and threats towards his (former domestic partner) over many years, a physical assault perpetrated by Dr Jayswal against his daughter, and violence towards the family pets, including the throwing of a puppy that resulted in its death. The strict conditions of the AVO limiting Dr Jayswal access to his son was also said to be of concern.
The Respondent recorded that: "Dr Jayswal is charged with a criminal offence, and the allegations against him are of a very serious nature in the realm of domestic violence. The Delegates determined the health and safety of the public would be undermined should Dr Jayswal continue to work as a general practitioner, tasked with being vigilant to domestic violence contributing to a patient's presentation and assisting domestic violence victims, in these circumstances." The Delegates noted the health assessment report from the psychiatrist which outlines concerns "that as a medical practitioner who presumably deals with domestic violence and patients engaging in self-harming behaviour that he does not seem to fully comprehend the inappropriateness of his actions". The Delegates formed the view that the public would expect the regulator to take action in such circumstances."
The Respondent further recorded that whilst Counsel for the Applicant had: "made a valid argument regarding maintaining the presumption of innocence being in the public interest, the Delegates note it is also in the public interest that victims who report domestic violence and other crimes are taken seriously and that the public's trust and confidence in the regulators is upheld, by taking the appropriate action, namely to preclude from practicing, practitioners who have current criminal charges of a serious nature against them. Whilst it is not the role of the Delegates to determine the truth of these matters, the Delegates formed the view that on balance, action in the public interest would be appropriate. What remains is a number of very serious allegations of physical, sexual and other forms of abuse, threats and control against Dr Jayswal, resulting in criminal charges and conditional bail with an Amended Apprehended Violence Order. The serious and ongoing nature of these allegations, with the criminal charge, requires the Council to take action. The Delegates could not identify conditions that would mitigate the identified issues and the remaining option was the suspension of Dr Jayswal's registration."

The principles governing the present application

The present application is made pursuant to the provisions of s 165L(2) of the National Law, which provides that the Tribunal may "in respect of an appeal under s 159B, make an order staying the decision of the Council appealed against until the appeal has been disposed of".
The Applicant's appeal against the orders of the Respondent of 29 November 2021 is pursuant to s 159 of the National Law, which, pursuant to s 159(3) of the National Law, proceeds by way of "new hearing", and s 159B, which provides for an appeal "with respect to a point of law".
As is not in dispute, the power to stay the suspension decision pursuant to s 165L(2) of the National Law only applies to appeals under s 159B of the National Law. No provision of the National Law empowers the Tribunal to grant a stay of a s 150C suspension in respect of an appeal under s 159 of the National Law.
In Medical Council of New South Wales v Lee [2017] NSWCA 282 at 85-113, Sackville AJA (with whom Beazley P and Basten JA agreed) held that the Tribunal has no power to stay an order made under s 150C of the National Law in relation to an appeal under s 159 of the National Law, and recorded at [112] that: "This reflects a legislative judgement that the Council is best placed to assess whether the interim measure of suspending the registration of the medical practitioner should remain in place, having regard to the paramount consideration of protecting the health and safety of the public."
It was, sensibly and correctly in the Tribunal's view, accepted by Counsel for the Applicant that a stay was only available in relation to the Applicant's appeal under s 159B, and that it was not sufficient for the Applicant to simply contend that the Respondent's decision under s 150C is arguably not the correct and preferable decision, but must demonstrate that the Respondent's decision is arguably infected by error on a point of law.
In Hyland v Medical Council of New South Wales [2021] NSWCATOD 167 at 5, and by reference to the Judgment of Brereton JA in Kirby v Dental Council of New South Wales [2020] NSWCA 91, Hennessy ADCJ recorded, at [15] that the issue for the Medical Council in s 150 proceedings, and, it is suggested, s 150C proceedings, was not "whether the allegations are proved, but whether the evidence establishes a risk to the public requiring suspension, or imposition of a condition, for the protection of the public", and that the power is "conferred purely for protection of the public, and thus the Council's sole concern is what if any action is required for the protection of health and safety of any relevant persons and/or in the public interest".
Under the heading "Principles relevant to the Tribunal's power to stay the suspension decision" her Honour recorded at [18] to [22] the legal principles relevant to a stay application arising in an appeal against an order pursuant to s 150 of the National Law. The principles with respect to an application to stay a suspension order pursuant to s 150 of the National Law, it is agreed, apply in precisely the same way to an application to stay a suspension order pursuant to s 150C of the National Law.
Hennessy ADCJ recorded ([21]), by reference to the decision in Segal v Medical Council of New South Wales [2020] NSWCATOD 86 at 43-86 that the "salient principles" governing stay applications were: "(i) the power to grant or refuse a stay is discretionary; (ii) the onus of establishing a proper basis for the stay is on the applicant for the stay; (iii) the Tribunal should assess the strength of the proposed appeal - in particular whether the appellant has an arguable case; (iv) a stay may be granted on terms that are fair to all parties - this may involve weighing the balance of convenience and competing rights of the parties. Relevant factors include: whether the appeal will be rendered nugatory if a stay is not granted, the prejudice to the parties, and whether the hearing can be expedited."
Her Honour also referred (at [22]) to the statement of Wright J in Bentran Pty Limited v Sabbarton [214] NSWCATAP 37 at 9 in relation to an application for a stay pursuant to s 43 of the Civil and Administrative Tribunal Act (the CAT Act) that: "(i) 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 a discretion in its favour; (ii) 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; (iii) merely lodgement of the Notice of Appeal is insufficient, of itself, to demonstrate that it is an appropriate case to warrant the granting of a stay; (iv) 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. This is similar to, if not the same as, the considerations applied by the Courts 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; (v) 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; (vi) the Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies; (vii) 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; (viii) finally the overriding principle in an application for a stay is to ask what the interests of justice require."
Although the jurisdiction of the Tribunal to grant a stay on conditions is less than entirely clear, that causes no difficulty for present purposes, as Counsel for the parties agree that a stay of the suspension order should either be granted without conditions, or refused.
In CSR Ltd v Amaca Pty Limited [2009] NSWCA 338 at 89, Basten JA considered the "scope of phrases such as "questions of law", "point of law" and "error of law"". His Honour said that: "Guidance may be obtained from the established grounds of judicial review, but these are often stated in terms of categories (of which error of law is one) which are notoriously imprecise and which overlap. Nor does the analogy with judicial review allow for the constraint in legislation which requires identification of a decision of the Tribunal below on a question, or point, of law. It may also be erroneous to assume that such an error is to be equated with the kind of error which would permit interference with a discretionary decision, in accordance with the principles established in House v The King (1936) HCA 40; 55 CLR 499 at 505."
In Attorney General for the State of New South Wales v X [2000] NSWCA 199; [2000] 49 NSWLR 653 at 124, Spigelman CJ (Priestley JA agreeing) observed that "The expression "question" or "point" of law is wider than "error of law"".
The difficulties to which Basten JA referred do not materialise in this case. It is not in dispute that the Applicant's Further Amended Grounds of Appeal with respect to his s 159B appeal, if established, raise "points" of law.
The Applicant's grounds of appeal pursuant to s 159B of the National Law provided: "(vi) the Respondent erred in law by drawing the wrong conclusion and finding that the health and safety of the pubic would be undermined should the Appellant continue to work as a general practitioner, tasked with being vigilant to domestic violence contributing to a patient's presentation and assisting domestic violence victims, which was not available on the evidence, and is otherwise legally unreasonable; (vii) in the premises of ground (vi), the Respondent erred in law by drawing the wrong conclusion that no conditions could be identified to allow the Applicant [sic] to practice such that the only option was to suspend him; and (viii) the Respondent erred in law by denying the Applicant [sic] procedural fairness by failing to put to him that the health and safety of the public would be undermined should he continue to work as a general practitioner tasked with being vigilant to domestic violence contributing to a patient's presentation and assisting domestic violence victims, thereby denying him an opportunity to make submissions and present evidence to the contrary."
Counsel for the Applicant clarified that, notwithstanding the expression "otherwise legally unreasonable" in ground (vi), the ground was not intended to assert legal unreasonableness but was a "no evidence" ground. Ground (vi), and, as explained by Counsel for the Applicant, ground (vii), the "no evidence" challenges, potentially raise a question of law.
In HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 at [123] Basten JA said that "There is something highly artificial in suggesting that the Tribunal would ask itself whether there was evidence 'capable of' supporting a particular factual conclusion, as opposed to whether the assertion should be accepted". The "artificiality" of the suggestion is potentially even greater in proceedings pursuant to s 150 or s 150C of the National Law in view of the constraints under which the decision-maker must frequently, and did in this case, discharge its statutory functions.
In Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; 241 CLR 390 (Kostas) at [90] Hayne, Heydon, Crennan and Kiefel JJ accepted that the "ground usually described as a 'no evidence ground' raises a question of law". Their Honours, at [91] agreed with the statement by Dixon CJ in Gurnett v The Macquarie Stevedoring Co Pty Ltd [No 2] [1956] HCA 29; 95 CLR 106 at [126] that "What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law".
In Haritos v Commissioner of Taxation [2015] FCAFC 92 at [195], the Full Court of the Federal Court of Australia accepted, as was said by Hill J in Sharp Corporation of Australia Pty Ltd v Collector of Customs [1995] FCA 1521 at [8] that "where the facts found are capable of falling within or without the description used in the statute, the decision which side of the line they fall on will be a decision of fact and not of law. Such a decision will generally involve weight being given to one or other element of the facts and so involve matters of degree". Although the Respondent could not, and was not required to attempt to make findings of fact, the present issue is whether there was evidence before the Respondent which was capable of informing its decision, as the Respondent asserts, or, as the Applicant asserts, there was no such evidence.
Ground (viii), which asserts a denial of procedural fairness, potentially raises a point of law. In Haritos at [202] the Full Court accepted that an appeal based upon an asserted denial of procedural fairness would involve a question of law, and thus, a point of law.
In Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at [585], Mason J (as Mason CJ then was) said that procedural fairness "conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case". In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam at [2003] HCA 6; (2003) 214 CLR 1 at [37], Gleeson CJ observed that the "concern of the law is to avoid practical injustice". Procedural fairness has been held to relate to the fairness of the procedure by which a decision is made, rather than the fairness of the decision, and requires a decision-maker to afford a person an opportunity to be heard before making a decision affecting his/her interests.
It is not in dispute that the Applicant must establish an "arguable case" with respect to a point of law in order to enliven the power to stay his suspension. In Lemoto v Able Technical Pty Limited & 2 Ors [2005] NSWCA 153, McColl JA, with whom Hodgson and Ipp JJA agreed, recorded at [131] the observations of Barrett J in Degorgio v Dunn (No 2) [2005] NSWSC 3 with respect to the meaning of "reasonable prospects of success" in the context of a claim in negligence against a legal practitioner, in the course of which his Honour reviewed authorities in which it was variously held that an "arguable case" of legal error required "a reasonable prospect of success" to be demonstrated, which "connotes something less than the likelihood of success", and that, however expressed, "the test is not a particularly stringent one", requiring that the claim is "not hopeless or entirely without merit", and has a "real chance" of success, and is not "merely fanciful". McColl JA also said at [132] that, in the legislative context of the claim in that case, the test was ultimately whether the "claim was fairly arguable", a matter "about which reasonable minds might differ".
The various iterations of the arguable case test referred to above inform the Tribunal's determination of this issue. As the meaning of "arguable case" was not closely traversed in this application, and did not need to be, it is unnecessary to say more about it, particularly having regard to the findings recorded later in these reasons.

The strength of the proposed appeal

Ground (vi) of the Applicant's Further Amended Grounds of Appeal, as clarified by his Counsel, asserted that: "The Respondent erred in law by drawing the wrong conclusion and finding that the health and safety of the public would be undermined should the Appellant continue to work as a general practitioner, tasked with being vigilant to domestic violence contributing to a patient's presentation and assisting domestic violence victims, which was not available on the evidence."
The crux of this ground was that the Respondent assertedly "erred in drawing the wrong conclusion by finding that the health and safety of the public would be undermined should the Applicant continue to work as a GP, tasked with being vigilant to domestic violence victims, which was not available on the evidence" (46).
Counsel for the Applicant developed the ground by referring, appropriately, to the s 150 reasons. The s 150 hearing resulted from the Applicant's notification to APHRA of his criminal charge. The Tribunal was submitted to have addressed the "central issue" for determination by reference to "5 subsidiary questions". After briefly reviewing (49-50) the matters referred to in the Respondent's reasons, the Applicant submitted (51) that the "limitation on the Applicant's ability to practice as a GP evidenced by the Conditions were in essence tailored to barring the Applicant from seeing patients under 18 years of age", and that it "may be inferred from the Conditions imposed, and the Applicant's response to the Medical Council's questions about his clinical management of a patient who was a victim of domestic violence that the Medical Council was satisfied about his ability to be vigilant to domestic violence contributing to a patient's presentation and assisting domestic violence victims".
The Applicant submitted (57) that the "gravamen" of the Respondent's reasons for the suspension pursuant to s 150C of the National Law was that: "Dr Jayswal is charged with a criminal offence, and the allegations against him are of a very serious nature in the realm of domestic violence. The Delegates determined the health and safety of the public would be undermined should Dr Jayswal continue to work as a general practitioner, tasked with being vigilant to domestic violence contributing to a patient's presentation and assisting domestic violence victims, in these circumstances. The Delegates noted the health assessment report from the psychiatrist which outlines concerns "that as a medical practitioner who presumably deals with domestic violence and patients engaging in self-harming behaviour that he does not seem to fully comprehend the inappropriateness of his actions". The Delegates formed the view that the public would expect the regulator to take action in such circumstances."
The Applicant submitted (59) that in the s 150 hearing, during which the Respondent heard the Applicant's evidence as to "how he approached identifying and assisting a patient who is a victim of domestic violence", that evidence "would appear to have been sufficient" to satisfy the Respondent that the Applicant was capable of being vigilant to domestic violence contributing to a patient's presentation and assisting domestic violence victims, such that he was allowed to continue to practice with conditions.
The Applicant submitted (60) that there was no new evidence before the Respondent as to how the Applicant undertook the identification and assistance of a patient who is a victim of domestic violence, that his complaint history did not indicate any "inadequacy" on the Applicant's part in caring for patients who were actual or potential victims of domestic violence, that there was no evidence before the Respondent in either hearing that any patient of the Applicant had been made aware of the PADVO, or had asked not to see the Applicant because of the order, or because of any "attitude he had displayed towards a patient who was a victim of domestic violence". It was thus submitted (61) that, in those circumstances the only basis for the Respondent's concern was a "prospective concern that the Applicant's continued practice may bring (him) into contact with patients who are victims of domestic violence and that he may not be attentive to them in the light of the further evidence relating to the criminal charges".
It was acknowledged that the Respondent had "weighed the theoretical risk" which the Applicant posed to patients in the light of the criminal charge which arose from his "personal not professional life", as against the actual evidence it had from the Applicant as to how he has and would continue to approach patients with a domestic violence presentation.
The Applicant also relied on the asserted absence of further investigation in the s 150C proceedings with respect to issues which the Respondent was submitted to have appeared to accept in the s 150 proceedings.
The crux of this ground (62) appears to be that, although proof that actual harm is likely to be suffered by any person is not required, and the potential for harm is sufficient to enliven the power under s 150C, the Respondent was required to base a suspension decision on evidence. The Applicant asserted that there was no evidence on which the Respondent "could conclude that the Applicant posed a risk to patients who might be a victim of domestic violence" and that the "new material" relied upon for the suspension decision shed no light on the Applicant's actual or potential clinical practice with patients. The Applicant thus asserted that, in the absence of new information with respect to how the Applicant would or did treat patients who might be victims of domestic violence, based on the Applicant's responses during the s 150 hearing, and the Respondent's implicit acceptance of those responses, the contrary decision in the s 150C proceedings must have been made in the absence of evidence capable of supporting such a decision.
The Applicant referred to the Respondent's reliance in the s 150C proceedings on Dr Samuels' opinion that the Applicant failed to "fully comprehend the inappropriateness of his actions" and submitted that reliance upon that opinion, as a basis for the suspension decision and the risk to public health and safety involved in the Applicant dealing with patients experiencing domestic violence was "misplaced" (63).
Why that was asserted to be so is not entirely clear, although, given that the Applicant has pleaded not guilty to the charges, is presumed to be innocent, and the charges have not been heard and determined, it could be asserted that Dr Samuels' opinion assumed that the "actions" alleged against the Applicant had been proved when they have not.
The Applicant pointed to a number of asserted shortcomings (64) in Dr Samuels' opinion. With respect to Counsel for the Applicant, each of the matters referred to appears more likely to refer to evidence which was "capable" of informing the Respondent's decision-making in the sense referred to in Sharp Corporation and approved in Haritos than the absence of evidence having that capacity.
The Respondent submitted (101) that this ground seeks to "cloak a merits review argument as a point of law". The submissions of the Respondent with respect to legal unreasonableness do not require consideration in view of Counsel for the Applicant's indication that no legal unreasonableness challenge was maintained.
The Respondent asserted (102-104) that the new evidence before the Respondent, produced by NSW Police subsequent to the s 150 Decision, revealed a wide range of very serious allegations against members of the Applicant's former and current family. It was further submitted (105) that the Applicant's denial of family violence in the s 150 and s 150C proceedings was contrary to a number of disclosures made to Dr Samuels and reflected in Dr Samuels' report. Counsel for the Respondent relied upon the following paragraphs of Dr Samuels' report: "34 Dr Jayswal agreed that he had carved a name on his chest but he said in fact, this photo was taken in April 2019 … He said, "I felt foolish for having done it, it was a cry or expression to make her understand. The first time I did it at home with a knife, it was a superficial abrasion, she watched me and I walked out". He said that they did not talk about it again although she did check on his abrasion the next day. 35 Dr Jayswal said the second time happened on 17 October 2019. He said that up until then they had been meeting for coffees, having Facetime chats and everything seemed okay. It was just before her birthday. He normally planned big celebrations for her birthday and he wanted to meet with her on that day but she did not want to. He said he actually had access to her calendar at work so he checked her timetable and sent her a message noting that she was free to meet and he asked her to do that, and she accused him of stalking her. Dr Jayswal said, "I felt lonely and bad. I was planning to go to India, my dad was not well". 36 He said it was in this context that he wrote her name again and sent her a photo. His ex-wife was in Sydney at the time. Her response was that he had "spoiled her day". He said he had no intention to hurt her. 43 I asked him what he thought about these issues now and he said "It was a foolish act but at the time I thought it was the only thing that would make her believe I cared for her but in retrospect it was foolish, my decision was not meant to hurt her and it was not self-harm. It was just an expression and it was taken wrong by [Person B].""
The Respondent referred to a number of matters with which the Applicant was asserted to have failed to engage, including the "insight" of the Applicant (102) and the "facts" in support of the criminal charge which the Applicant is facing which allege "a lengthy history of family violence perpetrated by the Appellant towards his former wife and son" which was "not limited to an isolated incident" (103).
Reliance was placed upon the documents supplied by NSW Police subsequent to the s 150 hearing, including a number of emails between the Applicant and his former wife and a photograph of the Applicant's "naked chest with his former wife's name cut into his chest with a knife that he emailed to her" and a handwritten statement from the Applicant's son "alleging significant family violence over a prolonged period of time" (104).
The Respondent further relied upon the Applicant's acknowledgement during the s 150 hearing that he treated domestic violence patients (106).
The Respondent submitted with respect to the crux of this ground that the suspension decision was reliant upon matters in addition to those to which the Applicant referred, including (107): "1 The delegates noted the following: The additional information available for these proceedings, which was unavailable at the time of the original s 150 hearing: In summary, the behaviour alleged in the additional documents from various sources, which describe aggressive, explosive and criminal acts over an extended period of time, involving children. The Delegates at the previous hearing were concerned despite the limited information that was available at the time. Further information has now come to light which heightens the previously held concerns. The Delegates held concerns for both the health and safety of the public, and in the public interest. 2 It is of particular concern to the Delegates that this new information includes allegations of sexual assault, physical violence and threats towards his ex-wife over many years, a physical assault perpetrated by Dr Jayswal against his daughter, and violence towards the family pets, including the throwing of a puppy that resulted in its death. The strict conditions of the AVO limiting Dr Jayswal's access to his son is also of concern. The Delegates do not consider it of relevance that the allegations of March 2021 are the first such formal allegations/reports that have been made by (Person A). 3 The Delegates considered that the parties made against Dr Jayswal are of a high and serious nature, rather than "relatively low" as assessed by Justice Fagan in the Cho matter. 4 The additional information available for these proceedings suggest a long term cycle of abuse, including physical and sexual abuse, deprivation of liberty, threats of violence, use of recording devices, violence towards pets and planning of a murder suicide. These allegations are not of a minor nature. The allegations in the written statement by Person A indicate a recent escalation in the nature of the threats made by Dr Jayswal, contradicting the argument that the allegations are of a [sic] historical nature."
The Respondent disputed (108) the Applicant's contention that, in the light of the new information before it, the Respondent's decision was not, and did not need to be reliant upon further evidence with respect to how the Applicant approached domestic violence patients during the s 150C hearing. The issue was submitted to have been adequately addressed in the s 150 hearing, and by the same Delegates as conducted the s 150C hearing.
The Respondent submitted that the suspension decision was "focused rather on the increased risk posed" by the Applicant as a result of the further evidence available at the s 150C hearing in relation to the criminal charge and family violence allegations, and the opinion of Dr Samuels that the Applicant "tended to minimise and rationalise his behaviours and does not seem to entirely appreciate the impact of these actions on his former wife" (108).
The Respondent further submitted (110) that the risk posed by the Applicant to domestic violence patients "was found by the Council to be that much greater as a result of the further evidence available", and that the identified risk posed by the Applicant "went beyond Dr Samuels' report and included proper, genuine and realistic consideration of the further documents available at the s 150C hearing". No ground of appeal asserts that the Respondent failed to discharge its obligation to "give proper, genuine and realistic consideration to the merits of the case" (Kahn v Minister for Immigration and Ethnic Affairs [1987] FCA 457).
The Respondent submitted (110) that Dr Samuels had "appropriate regard" to what the Applicant had told him during the interview and the material provided to him in coming to his conclusion that the Applicant "tended to minimalize and rationalise his behaviours and does not seem to entirely appreciate the impact of these actions on his former wife". Reliance was placed upon the Judgment of Heydon JA in Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305 at 85; 52 NSWLR 705 in which Heydon JA said (at 85) that in order for evidence tendered as expert opinion evidence to be admissible: "it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specific training, study or experience, the witness has become an expert' the opinion proffered must be "wholly or substantially based on the witness' expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached; that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded."
The Tribunal is not aware of any specific challenge to the report of Dr Samuels on any of the grounds identified by Heydon JA. It is less than entirely clear from Dr Samuels' report whether he appreciated, and if so took into account, the fact that the material contained in the "NSW FACTS sheet" was what had been alleged against the Applicant, the bulk of which he disputed. To the extent that, as was clearly the case, Dr Samuels' opinion relied substantially on statements made to him by the Applicant, there is no suggestion that Dr Samuels did other than accurately record those matters.
The crux of this ground is that, as was open to the Respondent, accepting Dr Samuels' opinion provided no evidence which was capable of supporting the Respondent's decision. It is at least arguable that Dr Samuels' statement that it was "concerning that as a medical practitioner who presumably deals with domestic violence and patients engaging in self-harming behaviour that he does not seem to fully comprehend the inappropriateness of his actions", (paragraph 47, p 6), was based upon the matters which the Applicant admitted, which Dr Samuels recorded in the previous paragraph of his report. In support of this ground, the Applicant also relied upon the fact that, although revealed after the s 150 hearing, those admitted and disputed events took place, at the latest, in October 2019.
The Respondent recorded the Applicant as having advised it that he "agrees with the expert review, and had no concerns to raise", a stance which has, properly, continued to be taken during this application.
To evaluate the prospects of success of this ground, it is necessary to consider the reasons of the Respondent for the suspension decision. It is to be remembered that this ground does not raise a legal unreasonableness challenge, nor does it challenge the adequacy of the Respondent's reasons for the suspension decision, or suggest a failure to give proper, genuine and realistic consideration to the merits of the case, or constructively fail to exercise jurisdiction (Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33, at [9].
Under the heading "Opinion", the Respondent exposed the process of reasoning which led to its decision, in the course of which it identified the particular concerns to which reference has previously been made, and to the "charges" made against the Applicant being "of a high and serious nature". The Respondent, correctly, recorded that its concern was "about the appropriateness of taking action to protect the health and safety of the public and in the public interest", that each case turns on its "individual merits, in the particular circumstances of the matter" and that it could "only consider the matter at hand, with the available evidence".
The Respondent was not bound by the rules of evidence. The ambit of the "new information" upon which it could rely as "evidence" was thus considerable. As the authorities confirm, was in no position to make, or purport to make, findings of fact, and did not need to in any event, although, as the authorities also recognise, given what has been described as the "draconian" nature of a suspension order (Coutinho Dental Council of NSW [2018] NSWCATOD 98 at [49]) it must be satisfied that such a step is required.
The Respondent recorded that it had "considered all the submissions" made by or on behalf of the Applicant, a statement which does not "shield from scrutiny" its decision (Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149). The Respondent discussed numerous particular submissions which were made on behalf of the Applicant, including the asserted relative antiquity of the allegations against the Applicant, which the Respondent had earlier accurately recorded in its reasons for the suspension decision.
Significantly, the Respondent recognised that the matters raised against the Applicant upon which it relied were "allegations", although the Applicant conceded that a number of them had substance, as Dr Samuels recorded, which the Respondent identified in its reasons.
The Applicant determined, for the reasons which it had earlier, and subsequently recorded, that the "health and safety of the public would be undermined should Dr Jayswal continue to work as a general practitioner, tasked with being vigilant to domestic violence contributing to a patient's presentation and assisting domestic violence victims, in these circumstances".
Also significantly for present purposes, the Respondent accepted the "valid argument regarding maintaining the presumption of innocence being in the public interest" advanced on behalf of the Applicant. In that context, the Respondent considered that it was "also in the public interest that victims who report domestic violence and other crimes are taken seriously and that the public's trust and confidence in the regulators is upheld, by taking the appropriate action, namely to preclude from practicing, practitioners who have current criminal charges of a serious nature against them".
The ground was pleaded and advanced as a "no evidence" challenge. The statement by Hill J in Sharp Corporation cited earlier in these reasons is instructive when assessing the prospects of success of this ground. Although the Respondent did not make, or purport to make "findings", its decision needed to have an evidentiary foundation. The Respondent had evidence at the s 150C hearing, being the "new information" which was not before it at the s 150 hearing upon which it relied in making the suspension decision. Not being bound by the rules of evidence, and not having the benefit of submissions with respect to the likely admissibility of much of the "new information", demonstrating that the Respondent's decision was made without "evidence", is likely to be problematic. Having regard to the reasons for the suspension decision, it is difficult to accept that no facts, circumstances or inferences relied upon by the Respondent were incapable of "falling within or without the description used in the statute", which concerned the health and safety of the public, or the public interest. thereby raising questions of fact rather than points of law.
As the authorities make clear, a "no evidence" challenge does not involve any assessment of the merits of the decision under review. Once it is accepted that there was evidence of the kind described by Hill J, put bluntly, that is fatal to a "no evidence" challenge. It matters not in those circumstances whether other decision makers would have made the same decision: the decision under challenge is immune to a "no evidence" challenge.
With all due respect to the submissions of learned Counsel for the Applicant, and acknowledging that an assessment of the prospects of success is necessarily undertaken by reference to the grounds of appeal, and that others may take a more sanguine view, there are substantial obstacles to the success of this ground. Although arguable, it is difficult to accept that this ground is reasonably arguable, even accepting that the test for present purposes is "not a particularly stringent one".
Ground (vii) of the Notice of Appeal asserted: "in the premises of ground (vi), the Respondent erred in law by drawing the wrong conclusion that no conditions could be identified to allow the Applicant to practice such that the only option was to suspend him"
Although not so pleaded, it would appear that the success of this ground is necessarily predicated on the success of ground (vi). If ground (vi) failed, the challenge would appear to effectively be to the evaluative determination made by the Respondent, which would not raise a point of law.
In written submissions (66) the Applicant submitted that if the Respondent: "erred in arriving at the wrong conclusion that the health and safety of the public would be undermined should the Applicant continue to work as a general practitioner, tasked with being vigilant to domestic violence contributing to a patient's presentation and assisting domestic violence victims with no evidence, then it drew the wrong conclusion that no conditions (could) be identified to allow the Applicant to practice and that he should be suspended."
As is also plain, if ground (vi) were successful, the success of ground (vii) would be merely academic.
Unsurprisingly in the circumstances, the submissions on behalf of the Applicant by his learned Counsel in support of this ground were constrained. It was submitted (67) that in its s 150C decision the Respondent "reasoned that no conditions would mitigate the identified issues relevantly that the health and safety of the public would be undermined should the Applicant continue to work as a general practitioner, tasked with being vigilant to domestic violence contributing to a patient's presentation and assisting domestic violence victims and as such the only option was to suspend him". It was then submitted (68) that: "If in truth such a conclusion was not available, then it follows that the risk identified by the Medical Council does not exist and that the status quo ante - being able to practice with the conditions as imposed following the s 150 hearing - should prevail. The correct conclusion to be made by the Medical Council was that in the circumstances the Applicant did not pose a risk to the health and safety of the public (at least in the manner identified by the s 150 reasons). In balancing the equities between the practitioner and the public interest in the light of the correct conclusion, the imposition of the conditions was sufficient to safeguard the public."
The Respondent disputed that this ground raised a point of law (113), and referred to the statement by the Respondent in the s 150C Decision that (114) "The Delegates could not identify conditions that would mitigate the identified issues". It was submitted (115) that the conditions sought by the Applicant (in accordance with the s 150 decision) "do not address in any meaningful way the risks identified in relation to the Respondent's conduct the subject of the s 150C Decision and the identified risk that he poses to family violence patients".
With respect to learned Counsel for the Applicant, the point of law assertedly raised by this ground has not been clearly identified. As is not in doubt, the s 150 conditions reflected the Applicant's inability to see patients under 18 years of age as a result of the April 2021 revocation of his right to work with children, rather than an independent determination by the Respondent that such restriction was necessary. No part of the s 150 decision, or the suspension decision turned materially on that circumstance.
The Respondent did not refer to the imposition of conditions on the Applicant's registration as an alternative to suspension in its reasons for the s 150 Decision. Nor did the Respondent refer, in its extensive review of the submissions made on behalf of the Applicant, to any submission in support of the imposition of conditions on the Applicant's registration as an alternative to suspension. The Tribunal has not been referred to any submissions during the s 150C hearing in which the "status quo ante" was sought in lieu of suspension.
For the reasons which Counsel then appearing for the Applicant had earlier advanced (transcript pages 17-18) Counsel submitted (transcript page 18, line 43 - 19, line 2): "Our submission, ultimately, is that the public is adequately protected from this practitioner because there is no suggestion that he has behaved other than appropriately in his practice and there is an AVO in place that protects his ex-wife, and whether or not the doctor is suspended, will not impact on the potential protection, or otherwise, of his ex-wife."
Later in submissions, Counsel then appearing for the Applicant submitted that (transcript page 116, line 23-25) "The Public is adequately and well protected in the meantime, because there is just no suggestion that there are any allegations by anyone else that affect his work, and, as I have said already, there is an AVO".
Counsel concluded submissions on behalf of the Applicant by saying "It must be clear to you that our primary concern is to make a submission that suspension in any circumstances is not necessary or appropriate".
Nothing to which the Tribunal has been referred suggests that anything with respect to the imposition of conditions on the Applicant's registration as an alternative to suspension raises a point of law. Section 150C, by its terms, did not require the Respondent to consider anything other than suspension of the Applicant's registration, given that s 150C(2) provides a discretion to impose any order that could be imposed under s 150. Clearly, had the question of conditions been raised, the Respondent would have been obliged to give proper, genuine and realistic consideration to such a claim, and adequately expose the process of its reasoning with respect to it (New South Wales land and Housing Corporation v Orr [2019] NSWCA 231). In the absence of the Applicant seeking the imposition of conditions of the kind now asserted in lieu of suspension, there was no occasion for the Respondent to consider such an outcome.
In circumstances where the case presented by the Applicant involved only two options, being suspension or no suspension, although the decision to suspend the Applicant may have been "wrong" as an evaluative determination, that would raise an issue of fact, and it is difficult to see how this ground raises any "point of law". Although this ground is arguable, the Applicant has not established that it is reasonably arguable.
Ground (viii) asserted that: "the Respondent erred in law by denying the Applicant procedural fairness by failing to put to him that the health and safety of the public would be undermined should he continue to work as a general practitioner tasked with being vigilant to domestic violence contributing to a patient's presentation and assisting domestic violence victims, thereby denying him an opportunity to make submissions and present evidence to the contrary."
The Applicant submitted (70) that, whereas during the s 150 hearing the Respondent explored the Applicant's approach to identifying and assisting a patient who was a victim of domestic violence, the Applicant was denied that opportunity on the s 150C hearing. It was further submitted that: "No opportunity was given to update the Medical Council on this matter in the light of the new information before the Medical Council, nor was any opportunity given to the Applicant to address Dr Samuels' concerns about the Applicant's potential inability to care for patients in a domestic violence context given the adverse inference drawn by Dr Samuel [sic] arising from his conclusion about the Applicant's insight into his conduct the subject of a criminal charge. Although the Medical Council did give the Applicant an opportunity to respond to the new information."
It was submitted (71) that the "central issue" of Dr Samuels' report was "the question of the Applicant's impairment" and that it was in respect of that issue that the Applicant responded to questioning in the s 150C hearing when given an opportunity to respond to Dr Samuels' report.
The "sole interaction" by or on behalf of the Respondent was submitted to have occurred at transcript pages 69-70 and to have been limited to asking the Applicant his "thoughts or comments" on the "health assessment" made by Dr Samuels, to which the Applicant stated "It's an expert review from him, so I agree with what he has said. I have mentioned, myself, as well, that I am not anxious or depressed, and my mental health is more stable compared to what it was in 2018 and 19".
It was thus submitted (72) that, given the: "draconian nature of suspension the requirement for procedural fairness required in the circumstances of this case that the Medical Council afford the Applicant an opportunity to respond to the specific concern it had about the Applicant's risk to the public by specifying the particular basis on which it had a concern - that the health and safety of the public would be undermined should the Applicant continue to work as a general practitioner …"
It was further submitted that: "Before arriving at the conclusion the Medical Council did, it should have allowed the Applicant to specifically address that concern by way of submissions and evidence as to the Applicant's clinical practice by raising these matters specifically in the hearing with the Applicant (as it did during the s 150 hearing)."
Reliance was placed upon the decision in Lindsay v NSW Medical Board [2008] NSWSC 40 at 100 in which it was said by Hall J at [100] that: "During the hearing on 14 December 2007, the transcript reveals that specific areas of questioning were directed to the Plaintiff for his attention and response. Details are referred to later in this Judgment. In this way, he was given the opportunity of addressing issues related to his methodology, his clinical practice, particular issues associated with patient history-taking, his apparent ability or otherwise to make relevant self-assessments in light of complaints made, the nature and pattern and number of complaints, his responses to the complaints, including, in particular, his statements concerned alleged collusion between patients, statements conveying his sense of victimisation and his interpersonal communication with patients."
His Honour also recorded, at [101] that there was "no claim made that the Plaintiff (medical practitioner) was taken by surprise on any particular or specific issue raised either in the documentary material or at the hearing or of any inability in the Plaintiff to deal with issues raised with him".
His Honour reiterated, at [104] that there was "No evidence from the Plaintiff to any other matter raised during the course of the hearing or in the report that was said to have taken him by surprise or placed him in a position of disadvantage", that the "issues relevant to the Inquiry were apparent from the information supplied". As His Honour's comments at [106] make clear, assessment of the prospects of success of this ground requires careful scrutiny of the transcript of the proceedings and the "documentary material" by reference to which the decision was made.
As the submissions of the Applicant record, the denial of procedural fairness asserted by him was that the: "central conclusion that the health and safety of the public would be undermined should the Applicant continue to work as a general practitioner, tasked with being vigilant to domestic violence contributing to a patient's presentation and assisting domestic violence claims, without giving the Applicant an opportunity to make submissions and submit evidence to the contrary constituted a denial of procedural fairness."
In reply, the Respondent submitted (117) that the Appellant was aware from the s 150 decision that his treatment of domestic violence patients was an issue for the Respondent's consideration in both the s 150 and subsequent s 150C decisions. The Respondent relied (118-119) upon the statement by the Respondent in its s 150 decision that it was "of additional concern that Dr Jayswal is a practicing GP, likely to see patients who are domestic violence victims, in circumstances where he is currently an alleged perpetrator", the effect of so doing being to put the Applicant "on notice that this was a live issue before the Council in the subsequent s 150C hearing" and that it was "open to the Applicant to adduce further evidence to address that issue during the s 150C hearing but "he chose not to".
The reasons for the s 150C suspension record the "new documents" which, it is not in contest, became available to the Respondent after the s 150 hearing. There is no suggestion that the Respondent inaccurately identified those documents, had regard to documents which were not identified by it under the heading "What is the new information now available to the Council?" or failed to have regard to any relevant document which was before it, whether or not that document was "new information".
For the reasons which it recorded under the heading "How does Dr Jayswal respond to this information?" the Respondent recorded its invitation to the Applicant to "make any comment regarding the particular document" to which it referred him. For the reasons given, related to the presumption of innocence and privilege against possible self-incrimination, the Applicant was "unable to respond" to the witness statement from Person A, the two police statements, email messages between the Applicant and his ex-wife, and the notes made by a child of the Applicant. The Applicant did comment on the "chest photos". It is relevant that the Applicant was assisted by experienced and competent Counsel throughout the s 150C proceedings.
Under the heading "Given the new information, what action should the Council now take, if any?" the Respondent recorded, in considerable detail, the submissions made to it by the Applicant's then Counsel. The Tribunal is satisfied, having regard the transcript of the s 150C proceedings, that the reasons for the suspension decision accurately record the substance of every submission made by the Applicant's then Counsel. Relevantly for present purposes, the Respondent recorded the submission on behalf of the Applicant that "The public is protected because there is no suggestion that Dr Jayswal has behaved other than appropriately in the practice of medicine, and an AVO is in place that protects Dr Jayswal's ex-wife". The Respondent also recorded the submission on behalf of the Applicant that "There is no suggestion that there are any allegations that could affect Dr Jayswal's work as a medical practitioner".
The Tribunal recorded the reference to the reasons for the s 150 decision by Counsel for the Applicant stating "Patients trust their doctors because they believe that, in addition to being competent, their doctor will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion".
The Respondent recorded that Counsel for the Applicant "argued that whilst the public might be concerned, it is not a fact that Dr Jayswal has been found not to meet the standards. It is one thing to be concerned about a charge but another to prejudge the findings that would be made and suspend Dr Jayswal's registration" and that "It does not necessarily follow that a concern equates with the need to order a suspension".
The Respondent referred to the submission on behalf of the Applicant that it was "wholly unfair and lacking in evidence" to find that, the allegations against him being untested, it could be in the interests of the health and safety of the public, and in the public interest to suspend the Applicant's registration.
The Respondent referred extensively to submissions on behalf of the Applicant in reliance upon the decision in Hejazin v Medical Council of NSW [2021] NSWCATOD 185, and particularly the submissions relating to risk to the health and safety of the public and "theoretical possibility that his patients will somehow be affected" if the Applicant were not suspended.
Early in the s 150C hearing the Applicant was referred to the reasons for the s 150 decision and invited to comment on those reasons, which the Applicant did (transcript page 4, line 24, to page 6, line 41). The Respondent extended to the Applicant the opportunity, albeit on the limited basis indicated by his learned Counsel, to respond to or comment on each of the documents which had come into its possession subsequent to the s 150 hearing (transcript page 8, line 5, to page 11, line 22).
Prior to adjourning to consider the material before it, the Tribunal asked Counsel for the Applicant whether there was "any comment, at this stage, before we take an adjournment?" (transcript page 12, line 18-19) to which Counsel replied "Thank you for that opportunity. I don't think I need to make any particular submissions now, it would probably be more efficient if we were to hear your current thoughts about the matter and then, if I can, have that opportunity, that would be very useful." (transcript page 12, lines 21-24). Counsel drew the decision in Hejazin to the Respondent's attention and offered to provide a copy which, from the reasons for the suspension decision, the Respondent clearly received and considered.
On the resumption of the hearing, after some further discussion about certain of the documents comprising the "new information", which does not assume significance for present purposes, the Applicant conveyed some details of his current personal and financial circumstances. The Chair of the Respondent then stated (transcript page 17, line 11): "Our concerns, and I highlight, they are concerns, at the moment, is that this sort of conduct, coupled with the criminal charges, and what we have to assess is the risk to the health and safety of the public and the risk to the public's interest, we feel, all that put together, cause a risk to the public health and safety and the public interest. And, for this reason, we are considering suspending your registration. However, I'd like to give you the opportunity, with your Counsel, to think about it, prepare a submission, and put it back to us."
Having taken instructions Counsel informed the Respondent "We can proceed now, if it's convenient" (transcript page 17, lines 30-31).
In the course of comprehensive and closely reasoned submissions, Counsel for the Applicant traversed a number of matters which suggest that Counsel was conscious of, and directed submissions to, the matters which the submissions in support of this ground suggest that the Applicant was denied the opportunity to address.
As the transcript records (page 16, line 22, to page 17, line 24), the Chairperson of the Respondent outlined the "concerns" which the Respondent had in view of the evidence before it. The submissions on behalf of the Applicant (transcript page 17, line 35, to page 22, line 17), and further submissions (transcript page 22, line 39, to page 25, line 39) addressed matters which, without demonstrated or suggested exception, encompassed all matters of relevance to the Respondent's determination of the s 150C proceedings.
With respect to Counsel for the Applicant in these proceedings, the Tribunal is not aware of any matter in respect of which a denial of procedural fairness is asserted in the appeal which was not addressed by Counsel representing the Applicant at the s 150C proceedings. Unsurprisingly in those circumstances, there was no application to adjourn the proceedings in order to test Dr Samuels' evidence, or to adduce other evidence during the s 150C hearing. Nor was there any suggestion, again unsurprisingly, on behalf of the Applicant that he had been denied, or otherwise lacked the opportunity to adduce any evidence before the Respondent, or that there was any uncertainty as to the concerns of the Respondent or the issues to which the Respondent was required to have regard when determining the s 150C proceedings.
The prospects of success of this ground, though the ground may be arguable, are considered to be remote. The comprehensive, cogent and relevant submissions of Counsel then appearing for the Applicant render successfully advancing a procedural unfairness ground of appeal improbable.
Mindful of the authorities with respect to the apparent prospects of success of the appeal, and conclusion of the Tribunal that two of the grounds of appeal are arguable, it is appropriate to consider the balance of convenience.

The balance of convenience

The Applicant asserted that the balance of convenience favoured granting a stay of the suspension order for four reasons. The first reason (76) was the undoubted serious financial impact on the Applicant of the suspension being continued. The Applicant submitted that there was a "disproportionate financial impact between the impact of the Applicant of a suspension as against the possible likely outcome of an appeal if successful". The Applicant accepted, properly, that these "deleterious consequences" of the "draconian" nature of suspension was "not determinate of whether a stay should be granted (and does not outweigh the public interest)".
It is accepted, and not challenged in any event, that the suspension decision has had very serious adverse financial consequences for the Applicant, and will continue to do so for so long as he is unable to practice his profession.
The second matter to which the Applicant referred (77) was the public interest, both with respect to the protection of public health and safety and reputation of the regulator in responding to concerns regarding a practitioner's professional conduct. It was submitted, correctly, that "the mere fact that an offence is alleged to have been committed in a domestic context does not, in and of itself, automatically mean that it is in the public interest" that the Applicant be suspended from the practice of his profession.
The Applicant referred to the statements of the Respondent in its s 150C reasons with respect to the "contemporary community view of the abhorrent and insidious nature of domestic violence" and the upholding of trust and confidence in the regulators as a result of their taking appropriate action in the context of a domestic violence allegation, by suspending the practitioner.
It was submitted to be "notable that the National Law does not make allegations relating to domestic violence, or other violence offence [sic] a mandatory consideration for the exercise of the power to suspend". As is not in doubt, s 150(1), and s 150C(1) of the National Law do not articulate any mandatory or discretionary considerations with respect to the power conferred on the Medical Council by those sections. That is not to say that the evaluative determination required by each of those sections is unfettered, or that it may be exercised in an unprincipled way, or that the circumstances of a particular case cannot constitute mandatory relevant considerations (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24). As is not in doubt the objectives and guiding principles of the National Law as articulated in s 3 and the objective and guiding principle (NSW) as articulated in s 3A inform the exercise of jurisdiction under s 150 or s 150C by Medical Councils.
Section 3A of the National Law provides that "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 third submission on behalf of the Applicant acknowledged, correctly, the "mandatory" requirement arising from s 3A of the National Law that: "If a stay is granted it will not result in the health or safety of the public being put at risk by allowing the Applicant to practice as he had done prior to the suspension (i.e. with the Conditions as described at [15] above continuing), in circumstances where there was no evidence before the Applicant at the time of the s 150C decision that he posed a risk to the health or safety of patients."
It was common ground in the present application that the Tribunal would either decline to stay the suspension order, or stay the order unconditionally. Counsel for both parties confirmed that the Tribunal was not being asked to consider granting a stay on any condition(s).
With respect to Counsel for the Applicant, the third matter directed to the balance of convenience assumes, which it cannot be, that the "no evidence" challenges raised by the Applicant, or either of them, will succeed.
The fourth matter relied upon by the Applicant was his undertaking to pursue his appeal expeditiously. Properly, both Counsel agreed that, whatever the outcome of his application, expedition of the appeal was appropriate. Steps can, and will, be taken to facilitate all such expedition as the Tribunal can afford the appeal. It is conceivable that the appeal could be heard within three months of the date of the determination of this application.
With respect to the balance of convenience, the Respondent referred to a number of authorities where, in the context of consideration of the principles governing a stay, a number of matters relevant to the balance of convenience were discussed (84-88).
The Respondent fairly acknowledged (89) that, although the financial circumstances of the Applicant can be considered "dire", for him and his children, an "inevitable consequence of protective orders is that they may be punitive in nature". The Respondent submitted that the balance of convenience favoured refusal of a stay of the suspension order "given the need for protection of the public and the public interest against the adverse impact including financially" on the Applicant (90).
In support of those contentions the Respondent relied upon the Judgment of Barrett JA at [20]-[21] in Lee v HCCC [2012] NSWCA 80 in which His Honour discussed, by reference to the Judgment of Basten JA in Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; 74 NSWLR 523 at 83, that the "specific purpose" for which orders (like the suspension order) are made, being "protective in the public interest" and "not punitive with respect to the individual" was not to deny that such orders "may be punitive in effect" and that the task of the Tribunal centres "not on punishment as such but on the protection of the public and the maintenance of proper professional standards".
The Respondent also relied (92) upon the decision in Liu v Chinese Medicine Council of NSW [2019] NSWCATOD 13 in which the Tribunal at [37] reiterated those observations and further observed that s 150 decisions, and, logically it is suggested, s 150C decisions, are: "temporary orders to protect the public until evidence can be collected and allegations determined. Damage to the reputation of a health professional is a possible collateral effect of such orders, particularly when such orders are listed on the public register. Loss of income is an almost inevitable consequence of immediate action involving suspension, particularly for those in private practice. Whilst the applicant does not need to demonstrate exceptional circumstances to justify a stay of the order, such adverse impacts are arguably the norm and not the exception for health practitioners subject to s 150 orders under the National Law. They do not tip the balance to the applicant in a consideration of the balance of convenience and rights of the parties."
Accepting that they do not "tip the balance" in his favour, the financial consequences for the Applicant, and others who are dependent upon him if a stay is refused are considered to be relevant to, and supportive of finding that the balance of convenience favours granting a stay.
There is no suggestion that the appeal will be rendered nugatory if a stay is not granted. That is particularly so as the hearing of the appeal can be expedited.
As Counsel for both parties acknowledged in their submissions, the balance of convenience in protective proceedings differs somewhat in the context of a stay application to the considerations which apply in proceedings involving purely private interests.
In New South Wales Bar Association v Stevens [2003] NSWCA 95, Spigelman CJ said at [91] that the "relevant authorities indicate that the protection of the public is a matter entitled to significant weight on an application for a stay once it appears that a professional person has acted improperly to a substantial degree".
In Bryant v Commonwealth Bank of Australia [1996] HCA 3; (1996) 134 ALR 460; (1996) 70 ALJR 306, Kirby J said at [309] that: "In the exercise of the jurisdiction to provide a stay, it has often been emphasised that cases involving a stay of the operation of the criminal law or of laws designed to protect the public (e.g. the deregistration of a professional lawyer or medical practitioner) are in a class different from cases involving no more than the suspension of the operation of orders affecting two private litigants only."
Although it is unlikely to have practical significance given the likely timeframe within which the appeals are to be heard, s 150C(1)(a) of the National Law would enable the Applicant to "end" his suspension in the event of his acquittal of the criminal charge which he faces, or, if he was advised, on other grounds, to seek to have his suspension terminated. If a stay is granted, and the Applicant is found guilty of the criminal charge which he is facing, or in reliance upon findings of fact made in those proceedings, the Respondent would also be able to revisit the issue pursuant to s 150C(2) of the National Law.
In Hogan v Hinch [2011] HCA 4, French CJ said, at [31] that when "used in a statute, the term [public interest] derives its content from the subject matter and scope and purpose of the enactment in which it appears".
In McKinnon v Secretary, Department of Treasury [2005] FCAFC 142, Tamberlin J said, at [9-12] that the expression "public interest" is "of the widest import and is generally not defined or described in the legislative instrument, nor, generally speaking, can it be defined", which "directs attention to that conclusion or determination which best serves the advancement of the interest or welfare of the public, society or the nation and its content will depend on each particular set of circumstances". As in the present case, the public interest needs to be "balanced" against private interests, or "in contradistinction to the notion of individual interest".
In Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115, the Tribunal said, at [57] that "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 those traits".
The Tribunal is conscious of the fact that the Applicant had practised medicine in this country for approximately five and a half years prior to the laying of the criminal charge which gives to the proceedings against him under the National Law, without any complaint by any patient with respect to his practice of medicine. The Tribunal is also conscious of the fact that many of the allegations which emerge from the "new information" which was before the Respondent at the s 150C hearing occurred during that period. No specific submissions were made to the Respondent, or the Tribunal, with respect to the likely admissibility of the parts of the "new information" which relate to alleged events of some antiquity in the pending criminal proceedings. In those circumstances, the Tribunal refrains from speculating about those matters.
The further submissions of the Applicant of 28 April 2022 asserted (2) that the decision in Pridgeon was "not relevant to the issue of the balance of probabilities in respect of the stay application in these proceedings". However, the Applicant also submitted (3) that the "findings" made in Pridgeon "may also be relevant to the stay application as it relates to the "public interest" limb in s 150 of the National Law insofar as the Respondent may rely upon" that "part of the limb" of s 150 in its s 150C reasons to assert an absence of legal error in the Appellant's appeal grounds.
After making a number of submissions with respect to the "Standard of proof generally" (4 to 11), the Applicant asserted (12) that the balance of probabilities involved determining "whether it would be more likely than not that: 1. The Applicant would likely suffer prejudice without the grant of a stay; and 2. The public interest insofar as the public health and safety is at risk".
The further submissions of the Respondent of 28 April 2022 asserted (3) that "the present matter should be distinguished on the facts" from Pridgeon, for the reasons which were advanced later in its submission. The Respondent submitted (11), in reliance upon the authorities cited by it (9-10) that the Applicant bore the onus of establishing on the balance of probabilities that a stay should be granted, rather than on the "Briginshaw standard", a contention with which the Applicant agrees.
In Pridgeon, in the passage to which the Respondent's further submissions referred (13), the Court of Appeal recorded, at [68] that, in the context of Subdivision 7 of the National Law the reference to "public interest" should be "understood as a reference to the public interest in the protection of the public's health and safety. The content to be given to that protection must take its meaning from the conduct of the practice of medicine in respect of which a medical practitioner's registration is granted. In the present case, the relevant public interest must be in the conduct by Dr Pridgeon of his profession as a medical practitioner. There may, arguably, be some wider, unspecified public interest in limiting the potential for the rule of law to be undermined by the conduct of a medical practitioner that is said to be in defiance of an order of the court, but which is unrelated to the practice of medicine which the National Law regulates. However, the honourable reputation of the medical profession that is said possibly to be affected by conduct of that description is not a concern that relevantly informs the particular public interest in the protection of the public with which s 150 is concerned".
It is counter-intuitive to think that, having regard to the protection of the health and safety of the public being the "paramount consideration" when exercising a "function" under the National Law mandated by s 3A, and this being a stay application with respect to a s 150C suspension decision, the Court of Appeal's statements with respect to the public interest would not require consideration in the context of the balance of convenience on the facts of this case.
As was the case in Pridgeon [50], the Respondent has not been convicted of any criminal offence. Nor has he been charged with being guilty of unprofessional conduct or professional misconduct, or that he lacks competence or was impaired, or otherwise is not a suitable person to hold registration as a medical practitioner. The Applicant has, as counsel for the Respondent submitted (16) been the subject of "previous complaints", which were not, individually or cumulatively, considered to require the Applicant's suspension in the interests of the health and safety of the public, or the public interest.
The evidence does not establish that the Respondent's guilt (in the criminal proceedings) is a "foregone conclusion", and the presumption that he is not guilty of the criminal charge must not be "paid lip service", or infected with "assumptions of guilt" [69]. Unlike the facts in Medical Council of New South Wales v Smithson [2021] NSWCA 53, as Counsel for the Respondent submitted (14), the evidence in this application does not establish that the Applicant has a "good arguable defence". Each of these factors appears material to evaluating the balance of convenience in the present case.
The Respondent submitted (17) that there was "contemporaneous evidence" in support of the criminal charge against the Applicant, and that the "merits of the Appellant's defence of the criminal charge is not as compelling as in Pridgeon". No submissions having been made with respect to the apparent strength of the prosecution case against the Applicant, or the admissibility of the "new information", the Tribunal is not prepared to go beyond the presumption in favour of the Applicant's innocence. Similar observations apply to the Respondent's submissions (21(ii)) with respect to the extent to which the Respondent's defence in the criminal proceedings is "arguable".
Dr Samuels concern with respect to the Respondent's insightfulness, and the conduct of the Applicant of which family members complain, upon which the Respondent relied, have not been established as being "in the conduct by (Dr Jayswal) of his profession as a medical practitioner". It is difficult to accept, when the Police have charged the Applicant, that fair-minded members of the public would suggest that the Respondent did not take domestic violence complaints seriously if it did not suspend his registration.
In Hejazin v Medical Council of New South Wales [2021] NSWCATOD 185, a case involving an application to stay a suspension order made pursuant to s 150 of the National Law with respect to a medical practitioner who was subject to a Domestic violence Order which he was alleged to have breached, Le Poer Trench ADCJ, at [68] referred to the absence of evidence at the s 150 hearing that "any patient of the Applicant had been made aware of that order or had asked not to see the Applicant because of some attitude he had displayed towards a patient who was a victim of domestic violence". That is so in this case. Although charged with a serious offence, the present Applicant has not been charged with breaching the PADVO to which he has been subject since 2 March 2021.
In Medical Board of Australia v Leow [2019] VSC 532 (Leow), which involved an appeal against a decision of the Victorian Civil and Administrative Tribunal to overturn the suspension of a medical practitioner who was accused of rape and sexual assault, Niall JA observed, at [98]: "Where no issues of patient or public safety are involved, and in circumstances where it is necessary to impute to the public an understanding that the allegations are untested and unproven, the Tribunal may, in a given case, consider that here is no significant impact on public confidence. No general rule can be applied".
Further, at [112] his Honour said: "The reference by the majority to the public understanding that, where it is appropriate, an accused person should be able to continue with his or her life until the charges are determined, did not entail consideration of an irrelevant consideration. It is a reflection of the fact that the charges are untested and that the accused person should not be treated as if he is guilty".
As was the case in Pridgeon, Leow did not involve the consideration of the principles governing applications to stay a suspension decision. Having regard to the objective and guiding principle articulated in s 3A of the National Law, and in the absence of authority precluding doing so, the passages of the judgments in Pridgeon and Leow are considered to be relevant to evaluating the balance of convenience on the facts of this case.
With respect to the submissions of the Respondent (21(vii)), it is to be remembered that the Applicant has treated family violence patients" without complaint during the period in which some of the alleged conduct which emerges from the "new information" is said to have occurred. In those circumstances, it is difficult to accept that the alleged conduct constitutes an unacceptable risk to the health and safety of the public, or to the public interest if the stay application is granted for what is likely to be a short period.
The Court of Appeal held in Pridgeon, at [56], to which the Respondent's further submissions referred (15), that the power to suspend a medical practitioner's registration conferred by s 150 should be "reserved for urgent cases" and, at [70] "should only be invoked as an emergency power where the circumstances are urgent". The Tribunal does not perceive that the Respondent accepted that there was "urgency" with respect to the suspension of the Respondent's registration. This too is considered to be relevant to evaluating the balance of convenience in this case.
The Respondent's submissions (27) with respect to the Applicant's ability to renew his stay application if advised that he had grounds for doing so applies equally to the Respondent, and does not assume significance for present purposes.

Disposition

For the reasons recorded earlier, the prospects of success of the Applicant's grounds of appeal are considered to be limited with respect to one ground, less so with respect to the second ground, and remote with respect to the third ground. The issue with which the Tribunal has wrestled is, put bluntly, whether, in circumstances where the prospects of success on appeal appear quite limited, and the balance of convenience does not overwhelmingly favour the granting of a stay, the Tribunal can be satisfied that the Applicant has discharged the onus which he bears, and that granting a stay would be fair to all relevant interests, and not involve an unacceptable risk to the health and safety of the public, or to the public interest.
For the reasons recorded above, whilst others might conclude differently, the Tribunal is persuaded on balance, that, although the Applicant's prospects of success on appeal appear quite limited, the balance of convenience significantly favours the Applicant, and that it is thus appropriate to stay the suspension order. The Applicant's appeal can be expedited. The duration of the stay is likely to thus be limited. The Tribunal is satisfied that granting a stay of the suspension order does not pose an unacceptable risk to the health and safety of the public, or to the public interest.

Orders 1. The order made by the Medical Council of New South Wales on 29 November 2021 suspending the registration of Dr Vishal Jayswal is stayed pending the determination of the Appeal filed by the Applicant or the further order of the Tribunal. 2. Any party seeking an order for the costs of this Application file and serve written submissions not exceeding 5 pages in length in support of such application within 7 days. 3. Any party opposing an application for the costs of this Application file and serve written submissions not exceeding 5 pages in length in opposition to such application within 14 days. 4. Any party filing submissions pursuant to order (2) or (3) of these orders include in such submissions reasons why the Tribunal should not order that costs be determined "on the papers" and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013. 5. The hearing of the Applicant's Appeal be expedited.

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

Amendments 14 May 2022 - Pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (NSW), "Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24" was changed to "Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24" in the coversheet. 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: 14 May 2022

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (14 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (40)

Cited By (2)