Medical Council of New South Wales v Lee

Court of Appeal (NSW)|2017-10-16|Before: Beazley P, Basten JA, Mr P, Ms P

Background

The respondent completed specialist qualifications as a radiologist in about 2011. She worked as a radiologist in a corporate radiology practice until March 2017, when her employment was terminated apparently as a result of the allegations that led to the Suspension Decision.
The Council acted on complaints made to it by a person with whom the respondent had previously had a personal relationship and by members of that person's family. On 28 February 2017, the New South Wales Police provided the Council with a copy of a Court Attendance Notice which detailed nine criminal charges against the respondent. Two of the charges related to the respondent's alleged contraventions of an apprehended violence order; one charge alleged that the respondent had engaged in stalking and intimidation; and the remaining six charges alleged that the respondent used a carriage service to menace, harass or offend. The NSW Police advised the Council that the respondent had been granted conditional bail in relation to the charges against her.
The Council convened an urgent hearing on 20 March 2017. At the conclusion of the hearing the Council made the Suspension Decision, effective from 1.00 pm that day. The Council published written reasons on 5 May 2017 for the Suspension Decision (Council's Reasons).
The respondent lodged an appeal to the Tribunal against the Suspension Decision on 7 July 2017, pursuant to s 159(1) of the National Law [NSW]. [6] The appeal was lodged out of time, but on 22 August 2017 the Tribunal granted the respondent an extension of time in which to file the appeal.
The sole substantive ground of the respondent's appeal to the Tribunal is that: "The complaints do not arise from or relate to the [respondent's] professional practice and are not related to her professional conduct".
On the same day as she lodged her appeal, the respondent applied to the Tribunal for a stay of the Suspension Decision. The grounds for a stay included a contention that the Suspension Decision was "unduly oppressive because the [respondent] needs to work to be able to afford legal representation". The Tribunal heard the application on 22 August 2017 and made the Stay Decision on 4 September 2017.

Council's Reasons

The Council recounted evidence given by the complainants that the respondent had sent threatening emails to each of them. The complainants alleged that some of the threats had been made in contravention of interim intervention orders in force against the respondent. The Council set out the contents of the Police Facts Sheet which summarised the allegations that had led to the respondent being arrested and charged.
The Council noted that although the respondent denied some allegations, she declined to answer numerous questions that had been put to her. The Council considered it significant that the police clearly believed that they could prove that the respondent was the author of certain of the threatening emails. Based on this material, the Council was of the view that there was a "significant possibility" that the respondent was the author of the emails and that "she ha[d] committed the conduct that is the basis of the nine charges brought against her".
The Council considered that while there was a public interest in allowing the respondent to practise as a radiologist there were "more weighty and contrary public interest concerns". These included the reputation and standing of the profession and the need to maintain public trust and confidence in the profession and in the administration of the National Law [NSW].
The material before the Council indicated that the respondent: "may have abused the trust and respect of the public in a way that is contrary to the public interest … The public would not expect that a practising doctor would be subject to such charges." Accordingly the Council considered that: "the allegations made against [the respondent] indicate that there is a significant risk that she has acted in ways that damage the standing of the medical profession. While these matters will be dealt with by the courts, there is a need to maintain public confidence in the profession and in the operation and management of the health system."
The Council concluded as follows: "Section 150 has two parts and we have dealt with this case as raising matters that are potentially 'otherwise in the public interest'. The other part of Section 150 requires action to protect the health and safety of the public. If, in fact [the respondent] authorised these malevolent emails, stalked [a complainant] and breached AVO orders, then it follows that although her conduct did not occur in the course of her practice of medicine, it has caused significant harm to those targeted by her conduct, who are, of course, members of the public. … We are also concerned that there could be a significant risk to the health and safety of the public if such conduct were directed to patients.

The Stay Decision

As has been noted, both parties asked the Tribunal to deal with the application on the basis that it had power to grant a stay pursuant to s 43(3) of the NCAT Act. The Tribunal pointed out that the authorities relating to stay applications to which the Council had referred, all considered charges that were either proven or involved an allegation of a "capital offence" such as murder. [7] The Tribunal stated its reasons for granting a stay as follows: [8] "27 Arising out of the finding of the Council, the risk which was perceived by the Council was a risk to the public. No risk to any patient was identified. The Council referred to the emails which had been sent to the recipients. It was stated that there was a 'significant risk that she has acted in ways that damage the standing of the medical profession'. However the [respondent] has not admitted any conduct. Further, the persons who received emails now have in place Apprehended Violence Orders against the [respondent] and she has had such an order taken out against one of those persons. It is not suggested that there is any other member of the public who might be at risk from the conduct of the [respondent], nor is there any risk that any patient is at risk. Rather, the apprehension appears to be that the standing of the profession, and its reputation and confidence in the National Law warrants immediate suspension. 28 … The [respondent] has made a powerful case that to fund the litigation with which she is currently involved, heavy expenses will be incurred … It would be a serious matter if the [respondent] could not be employed at the only work for which she is qualified and was prevented from raising funds to conduct any defence or litigation. Further, the Tribunal notes that the Council specifically found that the alleged conduct did not arise 'in the course of [the respondent's] practice'. Nor was there any finding of any serious risk being posed to any person. Accordingly the competence of the [respondent] is not an issue and her former employer described the [respondent] as 'a fantastic radiologist'. 29 The Tribunal acknowledges that there is a distinction between the disciplinary protective measures which might be imposed irrespective of any conduct which may or may not be found to be criminal. However at the present stage the allegations against the applicant rise no higher than allegations: there has been no conviction for any offence. In these circumstances the Tribunal is satisfied that the [respondent], in the absence of any real risk to any patient or to the public, should be permitted to practise as a radiologist until the determination of these proceedings. The Tribunal is mindful that the appeal will be heard promptly before this Tribunal. Such stay will be ordered subject to conditions."

NCAT Act and the National Law [NSW]

The Health Practitioner Regulation Act 2009 (NSW) (since renamed as the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) (Adoption Act)) provided that Health Practitioner Regulation National Law (National Law) set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld), as in force from time to time, applies as a law of New South Wales. [9]
The Adoption Act in its original form was expressed to commence on 1 July 2010 unless a later commencement date was proclaimed. [10] Before the Adoption Act (and the National Law) came into force in New South Wales, the Health Practitioner Regulation Amendment Act 2010 (NSW) (Amending Act 2010) made extensive amendments to the National Law. This was done by inserting Sch 1 to the Adoption Act and incorporating the amendments to the National Law in Sch 1. It is the National Law as amended by the Amendment Act 2010 and by subsequent legislation that is referred to in this judgment as National Law [NSW].
The National Law [NSW] in its original form did in fact come into force on 1 July 2010. But since the amendments effected by the Amendment Act 2010 were so extensive, the National Law [NSW] from the very beginning was significantly different from the National Law. Further amendments to the National Law [NSW] specific to New South Wales were made by the Health Legislation Amendment Act 2012 (NSW) (Amending Act 2012).
The NCAT Act came into force on 1 January 2014. [11] Thus for the first three and a half years the National Law [NSW] was in force, the Tribunal did not exist. During this period, the relevant body for determining appeals from decisions to suspend medical practitioners was the Medical Tribunal of New South Wales. [12]
The enactment of the NCAT Act and the creation of the Tribunal required yet further amendments to the National Law [NSW]. These were introduced by the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 (Amendment Act 2013). As with earlier modifications to the National Law [NSW], these were introduced by amending Sch 1 to the Adoption Act.

NCAT Act

Section 43 of the NCAT Act is within Part 4 ("Practice and Procedure"). Section 43(1) states that the section applies, among other things, to the making or lodgement of an "external appeal". In such a case, s 43(3) provides that: "(3) The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal."
An "external appeal" is an appeal to the Tribunal against an "appealable external decision" (s 31(4)). Section 31(1) provides that the Tribunal has external appeal jurisdiction over a decision made by an "external decision-maker" if legislation provides that an appeal may be made to the Tribunal against any such decision. An "external decision-maker" is a decision-maker who is external to the Tribunal (s 4(1)).
Section 35(1), which is also in Part 4 of the NCAT Act, states that each of the provisions of Part 4 "is subject to enabling legislation". Section 4(1) defines "enabling legislation" as follows: "legislation (other than this Act …) that: (a) provides for applications or appeals to be made to the Tribunal with respect to a specified matter or class of matters …". "Enabling legislation" therefore includes the National Law [NSW], which provides for appeals to the Tribunal. [13]
Section 36(1) of the NCAT Act provides that the "guiding principle" for the Act in its application to proceedings in the Tribunal is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. However, s 36(5) states that nothing in s 36: "requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions."
Schedule 5 to the NCAT Act provides for the composition and functions of the Occupational Division of the Tribunal. Schedule 5 allocates to the Occupational Division, among other functions, the functions of the Tribunal in relation to the National Law (cl 4(1)).
Schedule 5, Part 4, Div 3 makes special provision for "health practitioners", a term that has the same meaning as in the National Law [NSW] (cl 8). Clause 9 (within Div 3) provides as follows: "(1) The Tribunal, when exercising its Division functions for the purposes of the National Law, is under a duty to observe the objectives and principles referred to in sections 3 and 3A of the National Law. (2) The provisions of this clause are in addition to, and do not limit, the provisions of section 36 (5) of this Act." The expression "Division function" is defined to mean "a function of the Tribunal allocated to the [Occupational] Division by Schedule [5]".
Division 3 provides for the establishment of a Health Practitioner List for the Occupational Division (cl 10(1)). All proceedings involving the exercise of a Division function in relation to the National Law [NSW] subject to an irrelevant exception, are to be entered and managed in the Health Practitioner List (cl 10(2)). The Tribunal, when exercising a function in proceedings entered in the Health Practitioner List, is to be constituted in accordance with the requirements of the National Law [NSW] (cl 13(1)).

National Law [NSW]

Section 3A of the National Law [NSW] was inserted by the Amending Act 2012. It provides as follows: "In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration". A "NSW provision" is defined in the National Law [NSW] to mean: [14] "a provision that forms part of this Law because of a modification made by the [Adoption Act]".
The National Law [NSW] defines health practitioner to mean an "individual who practises a health profession". [15] A "health profession" includes "medical" and any "recognised specialty" of that field. A "registered health practitioner" means, relevantly, an individual who is registered under the National Law [NSW] to practise a health profession.
Part 8 of the National Law [NSW] is headed "Health, performance and conduct". Section 138(1) defines terms for the purposes of Part 8. "Council" is defined to mean a Council established under s 41B of the National Law [NSW] (s 138(1)). Section 41B(1) establishes a Council for each of the health professions listed. The Council for the medical health profession is the Medical Council of New South Wales. "Tribunal" is defined for the purposes of Part 8 to mean the Civil and Administrative Tribunal.
The membership of each of the Councils established by s 41B of the National Law [NSW] is as prescribed in regulations made pursuant to s 247A of the National Law [NSW] (s 41E). The current membership of the Council is prescribed by the Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW). The Council consists of 19 members appointed by the Governor of whom 12 are medical practitioners nominated by various bodies.
Part 8, Div 3 of the National Law [NSW] is headed "Complaints [NSW]". Division 3, subdiv 7 (ss 150-150J) is headed "Powers of a Council for protection of public [NSW]". [16]
Section 150 of the National Law [NSW] imposes a duty on the Council to suspend a registered health practitioner in certain circumstances. It provides as follows: "150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest - (a) by order suspend a registered health practitioner's … registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate … (2) A suspension of a registered health practitioner's … registration under subsection (1) has effect until the first of the following happens - (a) the complaint about the practitioner … is disposed of; (b) the suspension is ended by the Council. … (4) A Council for a health profession may take action under this section - (a) whether or not a complaint has been made or referred to the Council about the practitioner … ; …"
Section 150A of the National Law [NSW] permits a registered health practitioner to apply to the Council for the review of a decision under s 150 to suspend the practitioner's registration (s 150A(1)). The Council is required, unless the application is considered frivolous, to reconsider its decision (s 150A(2)). The Council also has power at any time both to end a period of suspension imposed under subdiv 7 and to alter or remove conditions imposed by the Council on the registration of a health practitioner (s 150C(1)).
The Council is obliged within seven days of taking action under s 150 to refer the matter to the Health Care Complaints Commission (Commission) [17] for investigation (s 150D(1)). The Commission must deal with the matter as a complaint made to the Commission against the registered health practitioner (s 150D(3)).
When a suspension imposed under subdiv 7 ends, the person's rights and privileges as a registered health practitioner are revived, subject to any other action taken by the Council or any order of the Tribunal on a complaint referred to it (s 150G).
Part 8, Div 6 of the National Law [NSW] deals with "Appeals to Tribunal [NSW]". Division 6, subdiv 2 provides for appeals against decisions by the Council. Subdivision 2 includes the following provisions: "159 Right of appeal [NSW] (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession - (a) against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension; (b) against conditions imposed by the Council for the health profession on the person's registration under Division 3 … or the alteration of the conditions by the Council; … (3) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given. … 159B Appeals on point of law [NSW] (1) A registered health practitioner or student who is the subject of action taken by the Council for the health profession under section 150 … may appeal, with respect to a point of law, to the Tribunal. (2) Subsection (1) does not limit a right of appeal under section 159. (3) The Council must not make a decision that is inconsistent with the Tribunal's decision with respect to a point of law under this section. (4) A registered health practitioner or student may not make an application to the Supreme Court for judicial review of action taken by a Council under section 150 … being an application alleging any error of law, until an appeal under this section in respect of the point of law concerned has been made and disposed of. 159C Tribunal's powers on appeal [NSW] (1) On an appeal, the Tribunal may by order terminate, vary or confirm a period of suspension or revoke, vary or confirm the conditions, as it thinks proper. (2) The Tribunal's order must not cause a suspension or conditions imposed by a Council to have effect beyond the day on which a related complaint about the person is disposed of."
The National Law [NSW], Part 8, Div 6, subdiv 4 includes the following provision: "161B Appeal does not stay decision [NSW] An appeal under this Division does not operate to stay the effect of the decision being appealed against unless the Tribunal otherwise orders."
Part 8, Div 10 of the National Law [NSW] contains provisions concerning the "Constitution and proceedings of the Tribunal". The provisions of Div 10 are intended to apply despite anything to the contrary in the NCAT Act (s 165A).
Subject to specified exceptions, the Tribunal when hearing an appeal under the National Law [NSW] by a medical practitioner is to be constituted by: (a) one Division member who is a "senior judicial officer" (a Judge of the Supreme Court or District Court); (b) two health practitioners registered in the same health profession; and (c) one lay person (s 165B(2)).
When the Tribunal is constituted to hear an appeal by a medical practitioner that is restricted to points of law, the Tribunal must be constituted by a senior judicial officer (s 165B(4)(a)).
Division 10, subdiv 4 contains provisions relating to "Inquiries and appeals before Tribunal [NSW]". Subdivision 4 includes the following provision: "165L Interlocutory orders [NSW] (1) The Tribunal may, during any proceedings under this Law, exercise any power or combination of powers conferred on the Tribunal by section 149A, except the power to caution or reprimand. (2) The Tribunal may, in respect of an appeal under section 159B, make an order staying the decision of the Council appealed against until the appeal has been disposed of. (3) The Tribunal may, during any proceedings under this Law, suspend a registered health practitioner's … registration if - (a) it has found the subject-matter of the complaint against the practitioner … to have been proved; and (b) the complaint has not yet been finally disposed of; and (c) it is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or the action is otherwise in the public interest." Section 149A of the National Law [NSW] (referred to in s 165L(1)) specifies powers that the Tribunal may exercise, such as imposing conditions on the practitioner's registration or ordering the practitioner to report on his or her practice in a manner required by the Tribunal.

Council's submissions

The Council submitted that the Tribunal had neither jurisdiction nor power pursuant to s 43(3) of the NCAT Act to stay the Suspension Decision. Accordingly, the Stay Decision had to be set aside. The consequence of setting aside the Stay Decision was said to be that the Suspension Decision would again come into effect.
Mr Strickland relied on s 35 of the NCAT Act, the effect of which is that Part 4 of the NCAT Act (including s 43) is subject to the National Law [NSW]. It follows, so he contended, that the general provisions of the NCAT Act must give way to the specific procedures and principles laid down in the National Law [NSW]. Since the National Law [NSW] deals with the circumstances in which a decision to suspend the registration of a medical practitioner can be stayed, the National Law [NSW] is the only available source of power for the Tribunal to stay such a decision. Section 43(3) of the NCAT Act does not apply to an application to stay the operation of a decision to suspend the registration of a medical practitioner.
Mr Strickland submitted that the only power conferred by the National Law [NSW] to stay a decision to suspend a medical practitioner's registration is contained in s 165L(2). This provision applies only in the case of an appeal by the practitioner under s 159B of the National Law [NSW] with respect to a point of law. There is no equivalent provision that applies in the case of an appeal by a medical practitioner under s 150 of the National Law [NSW], which is an appeal by way of rehearing. Since the respondent's appeal against the Suspension Decision is under s 150 of the National Law [NSW], the Tribunal has no power to stay the Suspension Decision pending determination of the appeal.
Mr Strickland submitted that the construction of the National Law [NSW] and the NCAT Act is consistent with the legislative history. Moreover, so he contended, there are sound reasons why a stay should be available only on an appeal with respect to a point of law. A decision under s 150 of the National Law [NSW] involves a risk assessment having regard to the guiding principle stated in s 3A (the protection of the health and safety of the public must be the paramount consideration). The legislation contemplates that a risk assessment of this kind should be the exclusive province of the Council subject to the medical practitioner's right of appeal to the Tribunal.
Mr Strickland recognised that the Council's submissions face an obstacle even if its primary submission is accepted. Section 161B of the National Law [NSW] provides that an appeal under Div 6 (which includes ss 159 and 159B) does not operate to stay the effect of the decision being appealed against unless the Tribunal otherwise orders. This language might be thought apt to empower the Tribunal to order otherwise, by granting a stay pending determination of the appeal to the Tribunal under s 150 of the National Law [NSW].
Mr Strickland's answer was that s 161B of the National Law [NSW] should not be read as conferring a power to stay "the effect of a decision". Rather it should be read as a cross-reference to s 165L(2) of the National Law [NSW] which (so he submitted) is the only power conferred on the Tribunal to stay a suspension decision. On this basis, s 161B is consistent with the Council's contention that the only power of the Tribunal to stay an order suspending a heath practitioner's registration is that conferred by s 165L(2) of the National Law [NSW].

Respondent's submission

The respondent submitted that the Council should not be permitted to advance an argument in this Court that it did not put to the primary Judge. If, however, the Court permitted the Council to put the argument, it should be rejected as "wholly misconceived". Mr Robinson SC, who appeared with Mr Higgins for the respondent, submitted that there is nothing in the National Law [NSW] that limits the Tribunal's power to order a stay where a health practitioner appeals against a suspension decision pursuant to s 159 of the National Law [NSW].
Mr Robinson pointed out that an appeal under s 159 of the National Law [NSW] is concerned with the merits of the decision to suspend a medical practitioner, while s 159B provides for an appeal with respect to a point of law. He submitted that the express grant of power to stay a suspension decision where the appeal is on a point of law simply says nothing about the scope of the general power to stay the operation of a decision conferred by s 43(3) of the NCAT Act.
Mr Robinson submitted in the alternative that even if s 43(3) of the NCAT Act does not apply to an appeal under s 159 of the National Law [NSW], the Stay Decision was authorised by s 161B of the National Law [NSW]. The language of 161B, so he contended, is entirely apt to confer a power to stay a suspension decision and there is no justification for reading it down in the manner proposed by the Council. Accordingly, even if the Tribunal erred in law by relying on s 43(3) of the NCAT Act its error was immaterial and had precisely the same power pursuant to s 161B of the National Law [NSW].

Ground 1

The issue of construction identified in Ground 1 of the draft notice of appeal raises a significant issue of principle. It is clearly important that the power (or lack of power) of the Tribunal to grant a stay of a decision to suspend the registration of a health practitioner be clear one way or the other, not least because the legislation is intended to protect the health and safety of the public. [18]
The failure of the Council to put to the Tribunal the argument it now wishes to raise militates against the grant of leave. However, the argument involves a pure question of law and there has been no suggestion that the respondent might have adduced evidence to meet the argument in the Tribunal. [19] The prejudice to the respondent in allowing the argument to be put for the first time on appeal has been met by the Council's concession that it should pay the respondent's costs of the proceedings in this Court in any event. In these circumstances it is in the interests of justice to permit the Council to rely on the argument in support of Ground 1 of the draft notice of appeal.

Ground 2

Ground 2 of the draft notice of appeal is as follows: "The Tribunal failed to exercise its protective jurisdiction in that it failed to consider section 3A of the National Law, and did not consider whether the stay of the respondent's suspension was otherwise in the public interest." This ground only arises if the Council fails on Ground 1.
In any event, the Council should not be given leave to rely on Ground 2 in its appeal, for two reasons. The first is that it does not raise any issue of principle, but turns essentially on an analysis of the Tribunal's reasons. Secondly, a fair reading of the Tribunal's reasons indicates that the Tribunal considered the Council's argument that a stay would impair the standing of the medical profession and its reputation for integrity and reliability. In his Honour's view, this aspect of the public interest was outweighed by the other considerations he identified, including his view that the health and safety of the public could adequately be protected by imposing a condition on the stay. The Council's contention that the Tribunal failed to take into account s 3A of the National Law [NSW] or the public interest is insufficiently strong to warrant a grant of leave to appeal on Ground 2 of the draft notice of appeal.

Legislative history

Mr Strickland, in support of the Council's argument, placed some emphasis on the legislative history of key provisions of the National Law [NSW] to support the Council's argument. While I do not necessarily attribute the same significance as Mr Strickland to the legislative history, it assists in explaining the current form of the legislation.
A number of the provisions in the National Law [NSW] derive from the Medical Practice Amendment Act 2008 (NSW) (Amendment Act 2008), which amended the then governing legislation, the Medical Practice Act 1992 (NSW) (Medical Practice Act). As the second reading speech for the Medical Practice Amendment Bill 2008 indicates, [20] the amendments were prompted by concerns about poorly performing or dangerous medical practitioners who were permitted to continue to practise for lengthy periods before any proceedings relating to their conduct came to the Medical Tribunal for determination.
The Amendment Act 2008 introduced a number of provisions that, with some variations, have been incorporated in the National Law [NSW]. These include:

the guiding principle (now s 3A); [21]
the obligation imposed on the Council to suspend a registered medical practitioner in certain circumstances (now s 150); [22]
the power of the Council to review a suspension decision (now s 150A); [23]
a right of appeal on a point of law from a suspension decision to the Chairperson of the Tribunal, on the basis that an appeal does not operate as a stay "unless the Chairperson otherwise orders" (now s 159B(1)); [24] and
the conferral of power on the Medical Tribunal, in respect of an appeal or a point of law, to make an order staying the suspension decision until the appeal is disposed of (now s 165L(2)). [25]

Several additional points should be made about the Medical Practice Act as amended in 2008:

s 95A, which created a right of appeal on a point of law, was expressed not to affect the pre-existing right of appeal under s 95(1);
s 95(1) of the Medical Practice Act entitled a person to appeal to the Medical Tribunal against a suspension by the Medical Board (and thus was a precursor to s 159 of the National Law [NSW]);
s 97(1) of the Medical Practice Act empowered the Medical Tribunal on an appeal to terminate, vary or confirm the period of suspension (and thus was a precursor to s 159C of the National Law [NSW]); and
s 98 of the Medical Practice Act provided that an appeal under Part 6, Div 4 (including ss 95 and 95A) did not "affect any suspension … until the [Medical] Tribunal makes an order on the appeal" (s 161B of the National Law [NSW] uses different language).

As originally enacted the National Law [NSW], s 159B(1) provided that an appeal with respect to a point of law could be made to the Chairperson of the Medical Tribunal. Section 161B provided that an appeal did not operate to stay the effect of the decision unless the Chairperson otherwise ordered. In each case, the Amendment Act 2013 replaced the Chairperson with the Tribunal. [26]

Does s 43(3) of the NCAT Act apply?

A number of considerations suggest that the effect of a decision made under the National Law [NSW] to suspend the registration of a health practitioner, including whether the suspension decision can or should be stayed, is to be determined in accordance with the provisions of the National Law [NSW]. These considerations tend to suggest that s 43(3) of the NCAT Act is not a source of power for the Tribunal to stay a suspension decision.
First, each provision in Part 4 of the NCAT Act, including s 43(3), is expressly made "subject to enabling legislation". This expression includes the National Law [NSW]. The words "subject to", like most common expressions found in legislation, has no fixed meaning but must be construed having regard to the context in which it appears. In some contexts, for example, the expression may mean that two pieces of legislation are to operate concurrently. [27] In others it may mean that one statute applies to the exclusion of another. [28]
When used to defined the relationship between two statutes or provisions, "subject to" is a standard means of establishing which provisions are dominant and which are subservient. [29] The subservient provisions therefore operate only to the extent that they are not inconsistent with or repugnant to the dominant provisions. [30] In C & J Clark Ltd v Inland Revenue Commissioners, [31] for example, the relevant subsection commenced with the words "subject to the provisions of this section". Megarry J said that: [32] "the phrase 'subject to' is a simple provision which merely subjects the provisions of the subject subsections to the provisions of the master subsections. Where there is no clash, the phrase does nothing: if there is collision, the phrase shows what is to prevail. The phrase provides no warranty of universal collision."
In my view, this is the meaning that should be given to s 35 of the NCAT Act. Thus to the extent that there is an inconsistency or repugnancy between a provision of Part 4 of the NCAT Act and the National Law [NSW] (or any other "enabling legislation), the National Law [NSW] governs. Whether there is an inconsistency or repugnancy depends on the proper interpretation of the relevant provisions of the National Law [NSW]. For present purposes it is necessary to consider whether there is any inconsistency or repugnancy between s 43(3) of the NCAT Act and the relevant provisions of the National Law [NSW]. The inconsistency might take the form of a direct conflict between two provisions (for example, where both cannot be obeyed simultaneously). There will also be an inconsistency in the relevant sense if, as a matter of construction, the National Law [NSW] is intended to operate in relation to a particular matter to the exclusion of s 43(3) of the NCAT Act. [33]
Secondly, the National Law [NSW] contains a detailed regime governing the circumstances in which a registered health practitioner is to be suspended and the duration of any such suspension. The Council is obliged to suspend a health practitioner if satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons or that the action is otherwise in the public interest (s 150(1)). The suspension has effect until either the complaint is disposed of or the suspension is ended by the Council (s 150(2)).
On its face, s 150(2) of the National Law [NSW] suggests that the only two ways in which a suspension can be ended is by disposing of the complaint or by a determination of the Council. Section 150(2) cannot be read literally as the National Law [NSW] contemplates that a suspension may be lifted in other circumstances. For example, the Tribunal is expressly empowered on an appeal on a point of law to stay the decision (s 165L(2)). Nonetheless s 150(2) is important since it recognises that the Council plays a significant role in deciding whether to terminate or vary the suspension of a medical practitioner.
The Council has power to set aside a suspension decision or take any action available to the Council under s 150 where the medical practitioner seeks review of the decision pursuant to s 150A of the National Law [NSW] (s 150A(3)). The Council may exercise this power to vary or set aside a suspension decision only if there has been a change in the medical practitioner's circumstances (s 150A(4)). However, the National Law [NSW] confers a further power on the Council to end a period of suspension and to alter or remove any conditions imposed on the medical practitioner (s 150C). This power may be exercised at any time and is not conditional on the medical practitioner lodging an appeal or demonstrating a change in his or her circumstances. Presumably it is open to the Council to act on its own motion whenever it considers it appropriate to terminate a suspension.
Of course the power is not at large. The Council would no doubt have to be satisfied that ending a period of suspension is in the public interest having regard to the "paramount consideration" identified in s 3A of the National Law [NSW]. Nonetheless, the language of s 150C is broad enough to permit the Council to end a suspension where an appeal by the medical practitioner under s 159 is pending. Section 150C does not appear to contemplate in terms that the Council can stay its own suspension decision. But it could exercise its power to end the suspension decision and, if circumstances warrant reimposing the suspension, it could do so by re-exercising its power under s 150 to suspend the medical practitioner.
Thirdly, the National Law [NSW] specifically provides that the Tribunal, in respect of an appeal on a point of law, may make an order staying the decision of the Council appealed against until the appeal has been disposed of (s 165L(2)). The general power to stay decisions conferred by s 43(3) of the NCAT Act uses language not found in s 165L(2) of the National Law [NSW] ("to secure the effectiveness of … the appeal"). Nonetheless it is difficult to see what s 165L(2) of the National Law [NSW] adds to the general power in s 43(3) of the NCAT Act if the latter provision applies to suspension decisions made by the Council under the National Law [NSW]. It might be said that s 165L(2) confers a more specific power than s 43(3), but the two provisions seem to be co-extensive where a stay is sought pending an appeal to the Tribunal under 159B on a point of law.
Fourthly, the National Law [NSW] contains elaborate provisions relating to health practitioners, including medical practitioners. The legislation contains apparently comprehensive provisions dealing with accreditation and registration of health practitioners, complaint and disciplinary procedures and powers, performance assessment, investigation of impairment concerns and many other issues. It is true that the National Law [NSW] substantially modifies the national model legislation. But if anything the "NSW provisions" (as they are described in the legislation) support the proposition that the National Law [NSW] is intended to deal comprehensively with the matters it addresses.
This point is reinforced by the provision in the NCAT Act requiring the Tribunal, when exercising a function allocated to the Occupational Division by the NCAT Act, to observe the principles stated in ss 3 and 3A of the National Law [NSW] [34] (the latter of which is a "NSW provision"). Similarly, the Tribunal when exercising a "Division function" must be constituted in accordance with the requirements specified by or under the National Law [NSW]. [35] The National Law [NSW] stipulates, among other things, that the Tribunal, when conducting an inquiry or hearing an appeal in the case of a medical practitioner must be constituted by a "senior judicial officer", two medical practitioners selected for appointment by the Council and a lay person. [36] Thus the Tribunal conducting a rehearing on an appeal by a medical practitioner, must be constituted to include two representatives nominated by the Council and must exercise its functions to give effect to the protection of the health and safety of the public as the paramount consideration.
For this reason, the National Law [NSW] should be construed as intended to deal exhaustively with the circumstances in which a decision by the Council to suspend a medical practitioner can be stayed or terminated. This conclusion would be inevitable if s 161B of the National Law [NSW] confers a general power on the Tribunal to stay a suspension decision pending an appeal (as the respondent contends). But even if s 161B does not confer such a power, but merely cross-refers to the power conferred by s 165L(2) in an appeal on a question of law, I consider that the National Law [NSW] is intended to deal exhaustively with the circumstances in which a suspension decision can be stayed, terminated or waived.
It follows that in the present case the Tribunal was not empowered by s 43(3) of the NCAT Act to stay the Suspension Decision. It remains to consider whether the Tribunal had power under s 161B of the National Law [NSW] to stay the Suspension Decision.

Was the Stay Decision authorised by s 161B of the National Law [NSW]?

It is very common for legislation or rules of court to provide that something is to happen "unless the Court otherwise orders". [37] In the ordinary case, those words or words to like effect are read as conferring power on the Court to make an order departing from the usual course.
An example is Campbell's Cash and Carry Pty Ltd v Fostif Pty Ltd (Fostif). [38] The Supreme Court Rules (NSW), Part 8, r 13 provided that in certain circumstances representative proceedings could be commenced "and, unless the Court otherwise orders, continued". The trial Judge made orders that the proceedings not continue as representative proceedings. [39] The Court of Appeal set aside these orders but the High Court restored them. [40] The High Court clearly accepted that the language of Part 8, r 13 was apt to empower the Court to order that the proceedings not continue as representative proceedings.
Section 161B of the National Law [NSW] provides that an appeal under Div 6 does not operate to stay the effect of a decision being appealed against "unless the Tribunal otherwise orders". Considered in isolation, the text of s 161B supports the respondent's contention that the provision is a source of power to the Tribunal to stay a suspension decision made by the Council, where the medical practitioner concerned has appealed to the Tribunal against the suspension decision pursuant to either s 159 or s 159B of the National Law [NSW].
It is, however, necessary to consider s 161B in context. There are three reasons why s 161B should not be construed as a source of power for the Tribunal to stay the effect of a suspension decision. The first is based on the legislative history. The second is based on the interaction between ss 161B and 165L(2) of the National Law [NSW]. The third relates to the role of the Council in ending or varying the suspension of a medical practitioner.
When the National Law [NSW] came into force in New South Wales it provided for appeals against (among other things) suspension decisions made by the Council. A person could appeal to the relevant Tribunal for a health profession against the suspension decision (s 159). An appeal with respect to a point of law was available but had to be made to the Chairperson or Deputy Chairperson of the Tribunal for the health profession (s 159B).
Section 161B in its original form provided that an appeal under Div 6 (including ss 159 and 159B): "does not operate to stay the effect of the decision being appealed against unless the Chairperson or Deputy Chairperson of the Tribunal otherwise orders".
Section 167E(3), the forerunner to s 165L(2), provided that: "A Tribunal may, in respect of an appeal under s 159B [that is, with respect to a point of law] make an order staying the decision … until the appeal has been disposed of".
If s 161B, as originally enacted, empowered the Chairperson (or Deputy Chairperson) of the Tribunal to stay the effect of a suspension decision appealed against (whether the appeal was under s 159 or s 159B) the result would have been very curious. The Chairperson would have had the power on an appeal to stay a suspension decision, including in a case where the health practitioner had appealed under s 159B with respect to a point of law. Yet s 167E(3) expressly conferred power on the Tribunal in an appeal under s 159B to stay the suspension decision until the appeal was disposed of. The result would have been even more curious having regard to the fact that s 159B permitted an appeal with respect to a point of law to be made only to the Chairperson of the Tribunal. Why would s 167E(3) allow the Tribunal to stay a suspension decision in an appeal on a point of law when the appeal could only be heard by the Chairperson? Why would s 161B only permit the Chairperson to stay the suspension decision when an appeal under s 159 was to be heard by the Tribunal?
The difficulty is overcome if s 161B, in its original form, is understood to have been primarily directed to ensuring that no appeal would operate to stay the effect of a suspension (or other) decision. The qualification ("unless the Chairperson … otherwise directs") is then read not as a grant of power to stay a decision, but as recognising that only the Chairperson could determine an appeal under s 159B or grant a stay in the course of such an appeal. On this construction the second part of s 161B can be seen to be drafted on the assumption that the only person authorised to grant a stay of a suspension (or other) decision under the National Law [NSW] was the Chairperson of the relevant Tribunal. In short, the second part of s 161B is essentially a cross-reference to the only relevant source of power in the Tribunal to stay a suspension decision.
To interpret s 161B in its original form in this way gives a harmonious operation to ss 159, 159B, 161B and 167E(2). It also reflects the structure of the National Law [NSW] which, as has been explained, gives broad power to the Council to review, terminate and vary suspension decisions.
The second reason for not construing s 161B as a source of power to grant a stay is that otherwise it is difficult to see what work there would be for what is now 165L(2) (formerly s 167E(2)) to perform. If s 161B is a source of power to stay the effect of a decision, its language is broad enough to empower the Tribunal to stay the effect of a suspension decision pending the determination of an appeal under either s 159 or s 159B. The more limited power in s 165L(2) to stay a decision until the appeal is disposed of would seem to add nothing to the general power conferred by s 161B.
It is possible to read s 161B and s 165L(2) together so that they do not overlap. This can be done by reading down the general language of s 161B so that it does not apply to the stay of a suspension decision in an appeal under s 159B with respect to a point of law. The stay of a decision subject to an appeal under s 159B would be dealt with under s 165L(2), the more specific provisions empowering the Tribunal to grant a stay.
But reading s 161B and s 165L(2) of the National Law [NSW] together in this way does not explain why the legislation should be drafted so as to confer two separate powers to grant a stay with the only difference being that one power has a more limited sphere of operation than the other. This is not a case where the more limited power is qualified by constraints that do not apply to the more general power. [41] It is therefore difficult to see any reason why both provisions should be incorporated in the legislation unless only one is construed to confer a power to stay a suspension decision.
The third reason has already been mentioned. The National Law [NSW] confers exclusive powers on the Council to terminate or vary suspension decisions. Although the Council cannot stay a suspension decision, it can exercise its powers to terminate (or reinstate) the suspension of a medical practitioner while an appeal is on foot.
The absence of power in the Tribunal to stay a suspension decision made under s 150, except where the appeal is with respect to a point of law, does not mean that the suspension must remain in force pending determination of an appeal made by a medical practitioner. The issue is left to the Council to decide, either on an application for review (s 150A) or in the exercise of the Council's power to end the suspension (s 150C). This reflects a legislative judgment 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.
On this construction of s 161B, the only case in which the Tribunal has power to stay a suspension decision is where the medical practitioner has appealed against the suspension decision with respect to a point of law. Such an appeal must be determined by the Tribunal constituted by a Supreme or District Court Judge. Parliament has taken the view that where the appeal turns on a point of law, the Tribunal should be empowered to grant a stay pending determination of the appeal even if the Council has not exercised its power to terminate or vary the suspension.

Orders

The Court was informed that the suspension of the respondent was removed from the National Register of Medical Practitioners [42] in consequence of the Stay Decision. The Court was also informed that if the Stay Decision is set aside the Council will immediately inform the Australian Health Practitioner Agency [43] of the Court's order. The consequence will be that the fact of the respondent's suspension would again be recorded on the National Register. [44]
Accordingly, the following orders should be made:
Grant leave to appeal from the decision of the Civil and Administrative Tribunal given on 4 September 2017 (Stay Decision).
Allow the appeal.
Set aside Orders 1 and 2 made by the Stay Decision.
Order that the appellant pay the respondent's costs of the appeal, including the application for leave to appeal.

Endnotes

M Leeming, Resolving Conflicts of Laws (The Federation Press, 2011), pp 88ff; D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) at 12.4.
Lee v Medical Council of NSW [2017] NSWCATOD 132.
Section 150 of the National Law [NSW] is reproduced at [57] below.
NCAT Act Sch 5, cl 29(5), see at [25] below.
See at [78] below.
Section 159(1) is reproduced at [61] below.
Stay Decision at [2].
Stay Decision at [27]-[29].
Adoption Act, s 4.
Adoption Act, s 2.
NCAT Act, s 7(1), 2(a).
Established by s 165 of the National Law [NSW] in its original form (that is, incorporating the amendments made by the Amending Act 2010).
See National Law [NSW], ss 159(1), 159B reproduced at [61] below.
National Law [NSW], s 5.
The definitions referred to in this paragraph are in National Law [NSW], s 5.
The reference to "[NSW]" indicates that provisions of the model National Law [NSW] have been modified in their application to New South Wales. In some cases the modifications are significant; in others they are minimum.
Constituted under the Health Care Complaints Act 1993 (NSW).
As to the criteria for a grant of leave to appeal see Young v Hones (No 2) [2014] NSWCA 338 at [14] per curiam and the cases cited there.
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 at 7-8 (Gibbs CJ, Wilson, Brennan and Dawson JJ).
NSW Parl Deb Leg Council, 4 June 2008 at 8108.
Medical Practice Act, s 2A(3).
Medical Practice Act, s 66, which conferred the power on the Medical Board. The power of suspension was limited to a period of eight weeks: s 66(1)(a).
Medical Practice Act, s 66AB, which conferred the power on the Medical Board.
Medical Practice Act, s 95A (1), (2). Section 95A(1) provided for the appeal on a point of law to be made to the Chairperson (or Deputy Chairperson) of the Medical Tribunal. The appeal now goes to the Tribunal.
Medical Practice Act, s 164(3).
Amendment Act 2013, Sch 6.4 [36], [43].
Akistan Apena of Iporo v Thomas [1950] AC 227 at 234.
Davis v Grocon [1992] 2 VR 661 at 667-668 (Hayne J).
Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513; [1997] HCA 38 at 580 (McHugh J) citing Harding v Coburn [1976] 2 NZLR 577 at 582 (Cooke J); Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd (2010) 41 WAR 134; [2010] WASCA 132 at [52] (McLure P, Owen and Buss JJA agreeing); Adrenaline Pty Ltd v Bathurst Regional Council [2015] NSWCA 123; 322 ALR 180 at [56] (Leeming JA, Macfarlan and Ward JJA agreeing).
McGinty v Western Australia (1996) 186 CLR 140; [1996] HCA 48 at 210 (Toohey J) (considering s 106 of the Constitution).
[1973] 1 WLR 905.
C & J Clark Ltd v Inland Revenue Commissioners at 911; see also O'Connell v Nixon (2007) 16 VR 440; [2007] VSCA 31 at [28] (Nettle JA, Chernov and Redlich JJA agreeing).
R v Lacey; Ex parte Attorney-General (Qld) [2009] QCA 274 at [36] (de Jersey CJ; Keane, Muir and Chesterman JJA agreeing).
NCAT Act, Sch 5, cl 9(1).
NCAT Act, Sch 5, cl 13(1).
National Law [NSW], s 165B(2). This is subject to the qualification that in the case of an appeal by a medical practitioner on a point of law the Tribunal must be constituted by a senior judicial officer: s 165B(4). Section 165B is a "NSW provision".
See, for example, Civil Procedure Act 2005 (NSW), s 101(1) ("Unless the Court orders otherwise, interest is payable …"); Corporations Act 2001 (Cth), s 450F ("a contravention … does not affect the validity of anything done or omitted under this Part, except so far as the Court otherwise orders").
(2006) 229 CLR 386.
See Fostif at [36] (Gummow, Hayne and Crennan JJ).
Fostif at [97].
Compare Anthony Hordern and Sons Pty Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9.
Established by the National Law [NSW], s 222(2).
Established by the National Law [NSW], s 23(1).
In accordance with National Law [NSW], 225(l). 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: 06 November 2017

Civil and Administrative Legislation (Repeal and Amendment) Act 2013(NSW)

Health Legislation Amendment Act 2012(NSW)

Health Practitioner Regulation Act 2009(NSW)

Health Practitioner Regulation Amendment Act 2010(NSW)

Medical Practice Act 1992(NSW)

Medical Practice Amendment Act 2008(NSW)

Health Practitioner Regulation (New South Wales) Regulation 2016(NSW)

New South Wales, the Health Practitioner Regulation Amendment Act 2010(NSW)

("Unless the Court orders otherwise, interest is payable …"); Corporations Act 2001(Cth)

13; [1997] HCA 38 O'Connell v Nixon (2007) 16 VR 440; [2007] VSCA 131 R v Lacey; Ex parte Attorney-General (Qld) [2009] QCA 274 Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd (2010) 41 WAR 134; [2010] WASCA 132 Young v Hones (No 2) [2014] NSWCA 338 Texts Cited: M Leeming, Resolving Conflicts of Laws (The Federation Press, 2011)

Solicitors: Health Professional Councils Authority (Applicant) Lenz Legal (Respondent) File Number(s): 2017/291736 Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Occupational Division Citation: [2017] NSWCATOD 132 Date of Decision: 4 September 2017 Before: Cowdroy ADCJ File Number(s): 2017/206286

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