Medical Council of New South Wales v Mooney

Court of Appeal (NSW)|2024-06-28|Before: Leeming JA, Kirk JA

Solicitors: Health Professional Councils Authority (Appellant) Unsworth Legal (Respondent) File Number(s): 2024/000123098 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Occupational Division Citation: [2024] NSWCATOD 24 Date of Decision: 11 March 2024 Before: Hennessy ADCJ, Deputy President Dr H North, Senior Member Dr A Eyers, Senior Member D Telford, General Member File Number(s): 2023/00130761

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT

LEEMING JA: The ultimate issue in this appeal is whether the appellant Council has established error in the Tribunal's decision earlier this year to make a reinstatement order in favour of a respondent, who had practised as a surgeon until his registration was cancelled for professional misconduct in 2022. That substantially turns on whether error has been shown in the evaluation of the evidence bearing on the respondent's far-from-unblemished fitness, although it is complicated by the procedural history. For the reasons that follow, I propose that the appeal be dismissed.

Procedural background of this appeal

The Medical Council of New South Wales purports to appeal as of right from the decision of the Occupational Division of New South Wales Civil and Administrative Tribunal ("NCAT"): Mooney v Medical Council of NSW [2024] NSWCATOD 24. NCAT was constituted by an acting judge, two medical practitioners and a lay member. After a hearing occupying two days, it made a "reinstatement order" in March 2024 in favour of the respondent, Mr William Mooney, who had formerly practised as an ear, nose and throat surgeon but whose registration had been cancelled in April 2022 by the Occupational Division of NCAT, differently constituted. The 2024 decision indicated some of the conditions which were contemplated, and to which Mr Mooney agreed (including as to supervision, maximum hours worked, continuing to see his treating psychiatrist and psychologist, and not to self-medicate), but made directions for further submissions on the conditions of his registration. This bifurcated approach was not what NCAT had intended. It arose notwithstanding NCAT's directions at the conclusion of the hearing, and despite Mr Mooney supplying submissions as to conditions in accordance with those directions. The process contemplated by NCAT's directions was left incomplete because the Medical Council, rather than complying with the directions and supplying the conditions it proposed if a reinstatement order were made, merely opposed the making of such an order and sought a further opportunity to supply submissions in the event that an order was made. NCAT acceded to that request. Then, rather than supplying the conditions, the Medical Council brought this appeal, purporting to do so as of right. The process of identifying the conditions on Mr Mooney's registration has been stayed, by consent, pending this appeal.
Clause 29 of Schedule 5 of the Civil and Administrative Tribunal Act 2013 (NSW) confers a right of appeal to a party to the Supreme Court. The appeal is allocated to the Court of Appeal by reason of Supreme Court Act 1970 (NSW), s 48(1)(a)(vii) and (2)(f). The appeal may be made as of right on any question of law, or with the leave of the court on any other grounds: cl 29(4)(b).
The Medical Council maintained that it enjoyed an appeal to this Court from the reinstatement order as of right, despite the bifurcation of the hearing in NCAT which has led to the conditions upon Mr Mooney's registration not having been determined. Leave is required to appeal from interlocutory decisions (cl 29(6)), but the Medical Council pointed to what it said was the exhaustive definition of "interlocutory decision" in s 4 of the Civil and Administrative Tribunal Act and said that the reinstatement order was not in that list. That is true so far as the enumerated items in the list go, which include granting of stays, publication restrictions, issuing summons, extending time, evidential matters, disqualification, joinder and summary dismissal. However, that is not an end to the analysis, because the definition of "interlocutory decision" extends to "any other interlocutory issue before the Tribunal".
True it is that this Court expressed the view in Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [18], [24] and [83]-[85] that an appeal lay as of right from finding or failure to find professional misconduct or unsatisfactory professional conduct following a "Stage One" hearing. Similar reasoning would support the conclusion that the making of a reinstatement order is not an "interlocutory decision" and thus an appeal lies as of right on any question of law. However, this is far from being clear beyond argument. Health Care Complaints Commission v Robinson does not dictate the position in relation to an application for a reinstatement order which, inevitably, will be subject to conditions, where it was never intended by NCAT that it make a free-standing reinstatement order, and where the fact that it has been made without conditions is a consequence of the stance taken by the Medical Council to NCAT's directions. It is far from desirable that either the applicant or the professional regulator be entitled to appeal as of right at every stage in a multi-stage process, thereby leading to multiple hearings and additional expense and delay; thus in a related context, this Court has referred to the merit in "keeping a tight rein" on decisions of NCAT which permit an appeal as of right: Trinh v Medical Council of New South Wales [2024] NSWCA 58 at [53]. It strikes me as decidedly odd that the Medical Council's decision to bifurcate the process would entitle it to an appeal as of right from the reinstatement order, and if that appeal fails, a separate appeal (whether by right or with leave it is unnecessary to consider) when conditions were imposed.
It is unnecessary to dwell further on this point, because it is palpably clear that none of the Medical Tribunal's proposed grounds of appeal, save for the last (which was that NCAT's decision was Wednesbury unreasonable), is on a question of law for the purposes of cl 29. As much had been suggested in Mr Mooney's written submissions supplied in advance of the hearing of the appeal. (The same submissions recounted the unhappy history of the Medical Council's non-compliance with NCAT's directions, to which in its written submissions in reply the Medical Council made no response.) Notwithstanding Mr Mooney's submission, it was only during the hearing and following a strong indication by members of this Court that the Medical Council applied for leave in the event that its appeal was not as of right, and that in turn led to the need to supplement the appeal books and for Mr Mooney to be given an opportunity to respond to the expanded case now sought to be made.
Were I to have concluded that the Medical Council's appeal was to succeed, I would have made a special costs order by reason of the matters identified above. A series of wrong decisions by the Medical Council (namely, not complying with NCAT's directions, purporting to appeal as of right, not applying for leave until the hearing despite the need for leave being flagged in the respondent's submissions) required Mr Mooney to take steps and incur expense after the hearing. That should not have happened.
The course adopted by the Medical Council of bringing this appeal and fragmenting the proceedings before NCAT is not without substantive consequences. As will be seen in what follows, the Medical Council's submissions are essentially factual. One ground (ground 5) challenges the conditions indicated but not made by NCAT. I shall address that ground in detail in due course, but enough has been already said to expose the difficulty in the Medical Council being granted leave to be heard on indicative conditions which have not in fact been made, in circumstances where that has come about because the Medical Council did not comply with NCAT's directions. Further, the Medical Council wishes to contend that the fact finding process miscarried, and that NCAT should not have been satisfied that it was appropriate to make a reinstatement order. The Medical Council's appeal falls to be determined in the absence of conditions on Mr Mooney's registration, and accordingly, the burden falls to the Medical Council to persuade this Court that NCAT should have found that no conditions could be placed on Mr Mooney's registration to attend to any risks he might present if his registration were restored. For all of those reasons, the Medical Council's decision to depart from the regime stated by NCAT, which would have finalised proceedings in that tribunal, carries with it consequences for its appeal in this Court.

Factual Background

Mr Mooney was first registered as a medical practitioner in 1990, and principally practised as an ear nose and throat surgeon. In 2006, he established a private practice where he offered facial and laser treatments and cosmetic injectables.
Since 2013, Mr Mooney has been the subject of various complaints which have resulted in hearings before the Medical Council and NCAT. These culminated in a finding of professional misconduct by NCAT following a "Stage One" hearing in late 2021: Health Care Complaints Commission v Mooney [2021] NSWCATOD 206. Mr Mooney's proven misconduct fell into three categories: 1. deficiencies in the care and treatment he provided to "Patient A" and "Patient B", resulting in their deaths; 2. forming an inappropriate personal relationship with "Patient C" from 2013 to early 2016 and unjustifiable prescribing, and 3. misleading authorities and breaching conditions.
NCAT found that Mr Mooney's conduct in respect of each of these categories departed from the "proper" or "reasonably expected" standard of a practitioner of the equivalent level of experience: see (without being exhaustive) [424], [430], [435] and [444].
A brief summary of each category of conduct follows. It will be seen in due course that the third category is of greatest relevance for the purposes of this appeal.

Patient A

Mr Mooney performed an operation on Patient A, a young man aged 24, in February 2018 to fix his snoring. During the operation Mr Mooney noticed a small amount of bleeding, but thought that his repair of the artery had been successful. Two days later Patient A underwent emergency surgery for a recurrent haemorrhage, where he suffered a heart attack during the operation and later passed away.
NCAT found that, although he conducted post-operative phone reviews, Mr Mooney's conduct fell below the reasonably expected standard because he failed to review Patient A personally during the two days he stayed in hospital after the operation, despite knowing that he had bled during the operation. NCAT further found that Mr Mooney performed the operation in an inappropriately short amount of time.

Patient B

Mr Mooney performed a "Simple limited redo FESS" surgery on Patient B, a 41 year old man, in November 2017. During the operation, Mr Mooney penetrated the bone below the brain and disrupted an artery causing bleeding into the right frontal lobe. Patient B later died as a result of this procedure.
NCAT found that Mr Mooney had become disorientated while he was operating, and that he did not have Patient B's CT scans in front of him during the operation, which he should have been consulting continually during the operation to check the position of the instrument being passed through the nasal passages. It was also found that the operation was performed "with reckless haste", and that it was an inherently difficult procedure fraught with potential serious risks which could not have been performed with the requisite level of care in 25 minutes.

Patient C

Patient C was referred to Mr Mooney by a general practitioner in 2009, when she was then aged 22. The referral noted that she suffered from anorexia-bulimia on and off since the age of 11 and had a rhinoplasty in 2004. Mr Mooney saw Patient C during the ensuing years in relation to a number of different procedures, including surgery for chronic tonsilitis, nasal surgery, as well as a number of cosmetic injections.
In October 2013, when he was 47 years old and she was around 26, Mr Mooney commenced a personal relationship with Patient C, which lasted for more than two years. The relationship included a dinner in 2014 where they consumed alcohol and ended up together in a hotel room. Records from Telstra indicated that between 4 October 2013 and 19 January 2016 there were 3,425 text messages and 807 phone calls between them.
A further aspect to this complaint was that Mr Mooney prescribed Duromine, a weight loss medication, to Patient C, who had a long standing eating disorder, between 2014 and 2015. The prescribing was found not to be clinically justified, in circumstances where Mr Mooney had not taken an adequate history, had not advised her about the possible side effects, and he had not taken steps to ensure that it was safe for her to take the medication.

Misleading authorities and breaching conditions

There were a number of different incidents which comprised Mr Mooney's misconduct in misleading authorities and breaching conditions.
One strand related to withholding information concerning his relationship with Patient C. At the Stage One hearing, NCAT found that "Dr Mooney knew his relationship with patient C breached professional standards and deliberately withheld details of that relationship from the regulatory authorities which are charged with protecting the public and maintaining professional standards": at [442]. For example, Mr Mooney misled the Medical Council by saying that his social interactions with Patient C were "limited" between 4 October 2013 and 19 January 2016, in circumstances where they had in fact exchanged hundreds of phone calls and thousands of text messages during that period.
Another incident concerned Mr Mooney breaching conditions on his registration to attend scheduled hair drug screening, and subsequently lying about the reason for the breach. In February 2017, the Medical Council imposed conditions on Mr Mooney's registration, namely, that he not prescribe for self-medication, that he not self-administer drugs of addiction, and that he was to undergo thrice weekly urine drug testing. In June 2018, the Medical Council placed additional conditions on his registration including that he participate in quarterly hair drug screening. NCAT found that he had breached those conditions, including by failing to attend scheduled hair drug testing and by working as a doctor on five days that he had been certified as unfit to attend hair drug testing. NCAT further found that Mr Mooney had lied to the Medical Council to try to hide the fact that he had breached the hair testing condition.
It is unnecessary to summarise all other instances that contributed to this finding of misconduct, save to say that Mr Mooney did not initially admit that he misled authorities, rather he only admitted that he had done so after NCAT had made that finding.

NCAT's findings - Stage Two hearing

After making findings of misconduct at the Stage One hearing, NCAT moved to consider the protective orders which should be made at the "Stage Two" hearing: Health Care Complaints Commission v Mooney [2022] NSWCATOD 44.
NCAT noted that Mr Mooney's misconduct was not the case of a single departure from ethical standards, but rather Mr Mooney had "committed acts which are egregious departures from proper standards across a broad range of duties which a doctor owes to his patients and the public", which conduct "occurred over a lengthy period": at [59] and [64].
NCAT noted that his conduct in relation to Patients A and B was a result of "failing to take care during operations" and to operate "safely and effectively": at [61]. His relationship with Patient C was "an abuse of the doctor-patient relationship" because it "undermines the trust and confidence of patients in their doctors and of the community in the medical profession": at [62]. In relation to his conduct in breaching conditions and misleading authorities, NCAT noted that those breaches were "completely inconsistent with his duty as a medical practitioner to be honest, ethical and trustworthy": at [63].
NCAT acknowledged that Mr Mooney had general insight and remorse in respect of his misconduct, and that he had taken positive steps to reform his behaviour. However, weighing against this was the fact that many of the lies were deliberate, and that he had failed to accept that his misleading was deliberate in relation to his breaches of conditions until after a finding was made: at [91].
NCAT concluded at [99]: Dr Mooney has shown a commitment to addressing the issues raised by the Complaints. However, taking into account the seriousness of the conduct, the need for general deterrence, the maintenance of confidence in the medical profession and the necessity to give Dr Mooney an opportunity to complete the journey into gaining full insight we have decided to cancel, not suspend, his registration. We disqualify him from being registered in the medical profession for a period of one year from the date of these Orders.
Accordingly, NCAT made the following orders on 21 April 2022: (1) Pursuant to s 149C(1)(b) of the National Law, Dr Mooney's registration as a medical practitioner is cancelled. (2) Pursuant to s 149C(7) of the National Law, Dr Mooney may not apply for a review of Order 1 for a period of 12 months from the date of this decision. (3) Dr Mooney to pay the costs of the HCCC of the proceedings.

Statutory regime relating to reinstatement

The orders refer to the "National Law", which is a reference to the Health Practitioner Regulation National Law (NSW). I shall use the same terminology, noting that the references are to the provisions in the schedule to a Queensland statute subject to numerous modifications, made applicable by the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW). Despite the name "National Law", most of the salient provisions for present purposes are modifications whose operation is confined to New South Wales. The regime is explained in Callan v Medical Board of Australia [2024] NSWSC 336 at [16]-[20] and Reimers v Medical Board of Australia [2024] NSWCA 164 at [30]-[32].
The effect of the orders made on 21 April 2022 was prescribed by s 149E of the National Law: 149E Effect of cancellation and disqualification decisions of Tribunal [NSW] (1) Despite any other provision of this Law, each of the following persons cannot make an application for registration as a health practitioner unless the Tribunal has made a reinstatement order under section 163B with respect to the person - (a) a person whose registration as such a health practitioner has been cancelled by the Tribunal under this Law; (b) a person who has been disqualified from being registered as such a health practitioner by the Tribunal under this Law. (2) Subsection (1) and Division 8 continue to apply in respect of a disqualified person and the disqualification order even if the period of disqualification has expired or specified conditions for the cessation of the disqualification have been complied with.
Mr Mooney was thus prohibited from making an application for registration as a health practitioner unless and until a "reinstatement order" was made under s 163B. That was the only route available to him if he wished to obtain re-registration as a medical practitioner.
Mr Mooney sought a review of NCAT's Stage Two orders on 24 April 2023 under Div 8 of Pt 8 of the National Law, promptly after the expiry of the 12 month period.
Section 163A makes provision for a person's rights of review. Under subs (1)(b), "[a] person may apply to the appropriate review body for a review of … a relevant order made in relation to the person". By force of s 163(1)(c) NCAT was the "appropriate review body" to hear Mr Mooney's application for review. A "relevant order" is defined by s 163A(4) to include, namely, "an order that the person's registration be cancelled … from being registered in a particular health profession". The effect of ss 163 and 163A is that NCAT was the appropriate body to hear Mr Mooney's application for review of order 1 made on 21 April 2022.
Section 163B sets out NCAT's powers on review. Mr Mooney sought a "reinstatement order" under s 163B(1)(c), whereas the Medical Council sought for the application for review to be dismissed under s 163B(1)(a). A "reinstatement order" is defined in subs (3) to mean: … an order that the person may be registered in accordance with Part 7 if - (a) the person makes an application to the National Board; and (b) the relevant National Board decides to register the person.
The effect of a reinstatement order was, correctly, described by senior counsel for the Medical Council in this Court as "in effect a lifting of the bar so that Mr Mooney could make an application to the National Board, that block that would otherwise be there is removed, and then it's a matter for the National Board whether he's ultimately registered".
Subsection (4) of s 163B also confers a power on NCAT to impose conditions on a person's registration: (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order.
Subsection (4) extends to the power to impose conditions attaching to a reinstatement order. As explained in Jan v Health Care Complaints Commission [2021] NSWSC 350 at [64]: True it is that when the power is exercised, the practitioner will not be registered. That will only occur when the relevant National Board makes its decision. However, the words "alter the conditions to which the person's registration is to be subject under the reinstatement order" can bear no meaning at all unless they refer to conditions to be imposed in the future following the relevant National Board effecting the registration which has been ordered by NCAT, and there is no reason to construe the powers conferred upon the specialist "appropriate review body" narrowly.
Finally, s 163C sets out the standard of review that must be applied in determining an application for review. It provides, by subs (1), that NCAT is "to determine the appropriateness, at the time of the review, of the order concerned". Subsection (2) further clarifies that NCAT "is not to review the decision to make the order, or any findings made in connection with the making of that decision".
Thus, in determining the application for review, NCAT's role was not to consider the correctness of the 21 April 2022 decision to cancel Mr Mooney's registration, but to determine the "appropriateness" of making a reinstatement order at the time of the hearing for such an order. As Brereton JA explained in Qasim v Medical Council of New South Wales [2021] NSWCA 173 at [16], "[s]uch an application is an inquiry into present fitness, and not a review of the original decision in which the practitioner was deregistered".
Although s 163C(3) identifies a number of mandatory Peko-Wallsend considerations (concerning the complaints that were made), it otherwise provides little assistance for determining the matters to which NCAT must have regard in order to determine "appropriateness". In Qasim, Brereton JA (with whom Bell P and Emmett AJA agreed) outlined the following applicable principles at [17]-[19]: In conformity with s 163C(1), the task of the review tribunal on a reinstatement application is therefore to determine the appropriateness of an order reinstating the applicant, as at the date of hearing the application. In performing that task, the Tribunal must have regard to the objectives and guiding principles of the National Law, which relevantly include the protection of the public by ensuring that only those practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered, the paramount consideration being the protection of the health and safety of the public. The position of an applicant for reinstatement is disadvantaged by reason that presumptions of fitness, which might otherwise arise from an absence of contrary suggestion, do not operate for the benefit of an applicant who has been deregistered on the basis of unfitness. An applicant for reinstatement bears the onus of demonstrating that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner and presents no risk to the safety of the public and their confidence in the profession. Thus the essential task of an applicant for reinstatement is to show that he or she is no longer unfit. In this case, given that the sole basis of the appellant's deregistration was lack of competence by reason of an impairment, what the appellant had to demonstrate was that she was no longer unfit by reason of an impairment of such a nature and degree as impaired her mental capacity to practise. On that issue, she bore the onus of proof. (Footnotes omitted.)
The foregoing boils down to this. The cancellation of Mr Mooney's registration was the result of three categories of misconduct: (1) forming an inappropriate personal relationship with Patient C from 2013 to early 2016 and unjustified prescribing; (2) deficiencies in the care and treatment provided to Patient A and Patient B, and (3) misleading authorities and breaching conditions. Together, those matters resulted in Mr Mooney's being unfit for registration. In order for a reinstatement order to be the appropriate order, Mr Mooney had to demonstrate, as at the time of the hearing for a reinstatement order, that he was no longer unfit to practise by reason of those matters. That is not to deny that other matters, especially matters post-dating his deregistration in 2022, might bear upon the application for a reinstatement order. However, in respect of the matters which had led to his deregistration, he bore the onus of proof.

NCAT's decision on the reinstatement application

The Medical Council opposed Mr Mooney's application for a reinstatement order. His application was heard by NCAT on 16 and 17 October 2023, with a decision being handed down on 11 March 2024: Mooney v Medical Council of NSW [2024] NSWCATOD 24. As noted at the outset of these reasons, it is from the decision to make a reinstatement order subject to conditions, which have not to date been finalised, that the Medical Council brings the present appeal.
In the period between his cancellation on 21 April 2022 and the hearing for his reinstatement, a number of significant events occurred which bore upon the "appropriateness" of NCAT making a reinstatement order. It is necessary to set out these events in some detail, alongside NCAT's findings in relation to them.

Mr Mooney's positive post-cancellation period conduct

In his written statements provided to NCAT, Mr Mooney set out in detail what positive steps he had taken since the deregistration decision.
Mr Mooney said that he had thoroughly reviewed NCAT's decisions and fully accepted all aspects of the decisions. He then made a detailed plan with Professor Eisenberg (his previous supervisor) as to ways in which he could rehabilitate himself. One aspect of this was keeping a personal journal, which was in evidence before NCAT. NCAT noted that the journal "demonstrates that Mr Mooney has thought very carefully over a long period of time about what led him to behave in the way he did. It also demonstrates his determination not to make the same mistakes again": at [93].
Mr Mooney continued to see psychotherapist Dr Hogan and his treating psychiatrist Dr Farago, each on a monthly basis. His sessions with Dr Farago focused on gaining full insight into his dishonesty to the Medical Council. Mr Mooney also developed a stress response plan with his psychologist.
Finally, Mr Mooney took steps to continue his professional development. He attended CPD meetings and maintained his CPD status, he enrolled in an undergraduate degree in Philosophy at Macquarie University, and he attended a week-long ethics course with Monash University.

Mr Mooney's possession of cocaine in October 2022

The most significant event which occurred during the post-cancellation period occurred on the evening of Saturday 22 October 2022.
At around 10pm that evening, police observed Mr Mooney standing in the middle of a road in Bondi. A car pulled up and he got in, before exiting the car shortly thereafter. It was accepted before NCAT that Mr Mooney paid the driver $300 for 0.5g of cocaine. Suspecting that a drug transaction had occurred, Constable Constantinou, who was not in uniform, got out of an unmarked police car and ran for about 20-25m towards Mr Mooney. It was not disputed that shortly before the Constable reached him, Mr Mooney stopped on the gutter, reached behind his back and threw the cocaine away. There was a conversation between the officer and Mr Mooney to which I shall return. The officer located the bag containing cocaine, and Mr Mooney was issued with a court attendance notice for possessing a prohibited drug.
Mr Mooney attended the Waverley Local Court on 14 December 2022, where he pleaded guilty. A NSW Police "facts sheet" was provided to the Local Court, which was prepared by Constable Constantinou four days after the incident. A great deal of attention was given to this document during the hearings in NCAT and in this Court, and it is necessary to reproduce it in full. In what follows, the underlined words were included in the original document, but redacted from the version which was provided to the Local Court when Mr Mooney was sentenced: FULL FACTS The accused in the matter is William MOONEY. On Saturday 22 October 2022, investigators attached to Region Enforcement Squad, CMR-South, were conduc[t]ing patrols of Bondi Beach and its surrounds as part of Operation MERCADOR targeting the supply of prohibited drugs, namely Cocaine by way of the commonly known "dial a dealer" methodology. About 10:00pm Investigators observed the accused who was standing in the middle of the road, constantly texting. The accused was situated on Beach Road, Bondi Beach. After five minutes of observations, investigators observed a grey Toyota Corolla bearing South Australian registration S265CPU, park next to the accused. The accused entered the vehicle and spent appropriately [sic] one minute in the vehicle before getting out and heading towards the unit complex. Suspecting that a drug transaction had occurred, investigators exited their vehicle to stop the accused. Whilst walking over to the accused, investigators displayed their identification badge whilst exclaiming "police". The accused stopped on the gutter just before the footpath and was observed to reach behind his back and move his arms in a throwing motion. Investigators immediately thought he had just thrown something on the floor. The accused was directed to keep his hands in front of him and step away from the gutter and onto the footpath. Investigators introduced themselves by way of name, warrant card, badge and place of work. Police questioned the accused as to what his interaction was in the vehicle he had just gotten in for a brief moment to which he answered with words of the effect of, "I thought it was my Uber, I was going to the bottle shop, but it wasn't my Uber". Police asked the accused for identification to which he could not produce as he left his wallet in his unit. The accused was also inappropriately dressed to go to the bottle shop as he was dressed in boxing drawers. At this stage investigators found his versions hard to believe due to their observations and suspected he may be in the possession of a prohibited drug. The accused was submitted to a search with nil find. Police directed the accused not to move and went to the gutter where he was initially stopped, located right where the accused was standing was a small sealed plastic bag containing cocaine. Subsequently, the accused was arrested and cautioned in relation to the cocaine. The accused repeatedly stated that police could not prove it was his as it wasn't found on him. Moments later, a female acquaintance of the accused, Gemma WRIGHT, appeared from the direction of the accused's unit. When she was aware of police presence she constantly stated that the accused was getting an Uber. Whilst, questioning the accused, WRIGHT pleaded with investigators not to go ahead with the charge. WRIGHT constantly stated words to the effect of, "Please don't do this guys, this is going to ruin him, charged me instead. What can I do to fix this, Please guys lets me fix this, what can I do, I'll do anything". WRIGHT immediately backtracked and stated that it was not his fault and she was the one who made the order for the cocaine. The accused tried to silence WRIGHT at this point but she continued pleading with investigators, she went as far as showing investigators photos of the messages organising the transaction of cocaine to be delivered to the accused's home address. The transaction was further confirmed with the messages stating the vehicle is a dark grey corolla which the accused was observed entering. Whilst speaking with the accused, investigators who stopped the dark grey corolla confirmed that the driver of the vehicle, was found to have bags of cocaine identical to what the accused was found with. In addition the driver of the vehicle stated that she had just made a drug deal to the accused. Based on investigators observations and evidence provided, the accused was issued with an Official Court Attendance Notice #1395987 for Posses Prohibited Drug under the Drug Misuse Trafficking Act 1985. The cocaine was also seized and later weighed at Waverley Police station, which amounted to 0.5 grams before being placed in official drug bag XD700202173 and processed on the police system. The matter is now before the court. Facts Created by: CON GEORGE CONSTANTINOU Date: 26/10/2022
Mr Mooney gave evidence that his lawyers had asked for the redactions to be made because they did not reflect his recollection of what had happened. The police officer, Constable Constantinou, gave evidence before NCAT that he was prepared to delete those matters because they were not necessary to prove Mr Mooney's guilt.
Although Mr Mooney described the redacted facts sheet as his "best recollection" of the events, it was not his own account, nor was it intended as a complete record of the events. He did not himself give evidence before the Local Court.
In a statement filed in NCAT, Mr Mooney expanded on his recollection of events that night: The event occurred at night, in the dark, without my glasses, when a plain clothes person was suddenly running and yelling at me. I was confused and scared. I didn't understand what he was saying or who he was. I do not recall seeing ID. I immediately thought I was being mugged. I threw the drugs away. I have no recollection of saying I thought the car was an uber. I deny I was wearing "boxing drawers". I was wearing regular shorts with pockets, a shirt and sneakers. I have never owned a pair of boxing drawers. Having discarded the drugs, I did not have any drugs on me. I said that I did not have drugs on me when initially asked. Once the immediate confusion subsided, I was completely frank, honest and co-operative with the police. I remain contrite, embarrassed and ashamed of that event.
In a separate statement he wrote to Dr Fisher (to which I shall return), Mr Mooney added that he said "I think I said I got into the wrong car" to the police officer, and accepted that he said he did not have any drugs on him, but that he did not think this was an evasive statement.
NCAT noted that Mr Mooney's account of events gave rise to three matters that were in tension with the version of events given by Constable Constantinou in the Police facts sheet, which were described as "the mugging issue", "the wrong car issue" and "the possession issue": 1. In his supplementary statement supplied to the Tribunal Mr Mooney wrote, "I immediately thought I was being mugged". NCAT did not accept Mr Mooney's version of events. Rather, it found that Mr Mooney threw the drugs away when he heard the person say "police": at [79]. 2. Although Mr Mooney admits that he told Constable Constantinou that he got into the wrong car, he maintained that this statement was not misleading, and denied that he said he thought he was getting into an Uber. NCAT found that "[w]hether Mr Mooney said he got in the wrong car, or it wasn't his Uber, is not material. Either way he was making an excuse as to why he had got into and out of a car so quickly": at [83]. 3. According to Constable Constantinou, Mr Mooney "repeatedly stated that police could not prove it [the bag of cocaine] was his as it wasn't found on him". Mr Mooney denied saying words to that effect, but said that he told Constable Constantinou that he did not have any drugs on him. NCAT reasoned as follows at [85]: Mr Mooney admits that he told Constable Constantinou that he did not have any drugs on him. Whether Mr Mooney said, "I don't have any drugs on me" or "you can't prove the drugs are mine", the intended effect is similar. Mr Mooney agreed that that was an evasive answer because he had thrown the drugs away, but denied that he was being misleading or not frank. In our view, telling a police officer that you do not have any drugs on you, when you have thrown them away, is not only evasive, it is also misleading.
Mr Mooney said that once the bag of cocaine was retrieved, he was "completely frank, honest and co-operative with police". However, for the reasons given on each of these three issues, NCAT found that "some of Mr Mooney's responses were evasive and he did not tell the whole truth": at [80]; and concluded at [86]: Mr Mooney says that when the drugs were found he admitted that they were his. There is nothing in the COPS Event or either version of the Fact Sheet to support that assertion. Mr Mooney did not claim to have made that admission in his statement to the Tribunal and Constable Constantinou rejected it in cross-examination. While Mr Mooney did plead guilty, we are not persuaded that he admitted that the drugs were his on the night of his arrest. In these respects, Mr Mooney's characterisation of his interactions with police as "completely frank, honest and co-operative" is not accurate.

Other conduct after deregistration

The Medical Council pointed to other conduct by Mr Mooney which it submitted could be characterised as "misleading". All save one of these matters may be outlined briefly; they were, rightly, given much less attention in the submissions in this appeal. The exception is the statements made by Mr Mooney to the health professionals who were to give evidence to NCAT, which was central to the appeal and is addressed at length below after the minor matters are noted.
First, after NCAT's deregistration decision in April 2022, Mr Mooney amended the homepage of his website, in a way which implied that it was his choice to step away from clinical practice for a short while. NCAT found that while this explanation was "not the whole truth", Mr Mooney "was not obliged to tell the public on his website that his registration had been cancelled". Thus, it concluded that he had "not behaved dishonestly or unethically in these respects": at [54].
Secondly, Mr Mooney made representations to both the Local Court and NCAT that all his prior drug tests had produced negative results. Although urine tests had returned consistently negative tests, he had returned positive drug test results for his hair testing. He maintained that this arose as a result of occupational exposure as opposed to recreational use. According to Mr Mooney, his lawyer's advice was that he did not need to disclose the positive hair drug test results because of the small "trace positive" amounts involved.
NCAT found that these representations were "misleading in the sense that Mr Mooney was not telling the whole truth about those test results": at [63]. However, because the Medical Council had not taken any action in relation to those positive trace results, NCAT found that the representations "do not reflect adversely on Mr Mooney's honesty and integrity" and did not lead them to a conclusion that "Mr Mooney cannot be trusted to practise in a way that conforms to the professional standards expected of a health practitioner or that he presents a risk to the safety of the public and their confidence in the profession": at [63].
Thirdly, the Medical Council referred to representations made to the Local Court about his "attendance" at Narcotics Anonymous meetings. In a letter written by Mr Mooney and provided to the Local Court, he said "I have attended NA meetings and seen the damage and destruction that drugs cause peoples' lives. It was shocking and saddening." However, before NCAT he said that he "did not attend as [a] participant" but rather "viewed two meetings online for education purposes at the recommendation of my counsel".
NCAT did not accept the Medical Council's submission that this was misleading (at [66]): Mr Mooney was guided by his lawyers in respect to the information provided to the Local Court. To say he had "attended" Narcotics Anonymous meetings, when he had attended two meetings online, was accurate but it did not paint the full picture. However, this is a minor and insignificant instance of a less than fully frank statement. We do not regard it as an instance of dishonesty or behaving unethically.
Fourthly, Mr Mooney was said to have given misleading accounts to his treating doctors and expert witnesses in relation to the cocaine incident. This was central to the appeal before this Court, and is outlined in some detail below.

Mr Mooney's communications with medical practitioners and experts

Mr Mooney saw four medical practitioners in the post-cancellation period: Dr Hogan (his psychotherapist since 2015), Dr Farago (his treating psychiatrist since 2019), Dr Ventura (a psychiatrist engaged by the Medical Council) and Dr Fisher (a consultant psychiatrist engaged at the request of Mr Mooney's lawyers). Reports from each professional were in evidence before NCAT.
Turning first to Dr Hogan, his report dated 23 April 2023 recorded the following in relation to Mr Mooney's possession of cocaine on 22 October 2022: William made an error of judgment in October when in an attempt to protect his partner he was apprehended for a minor drug possession. This was surprising given William's long history of clean drug testing. William was completely up front and honest with me in all discussions about this. We discussed this mistake too over some sessions. He showed insight as to all the implications of this poor decision.
Dr Hogan was not available for cross-examination before NCAT, nor was anything produced in response to a summons for the clinical notes of his sessions. In light of this, NCAT admitted his report into evidence, but only to the extent it recorded that Mr Mooney had consulted with him and discussed the topics described in the report. It said that it would be "prejudicial to admit Dr Hogan's opinions as to Mr Mooney's character and level of insight when the summonsed material has not been produced, Dr Hogan did not provide an explanation for his inability to attend and the opinions he provided cannot be tested": at [116]. Thus NCAT gave no weight to Dr Hogan's opinions of Mr Mooney's character or insight.
Dr Farago provided a report dated 20 July 2023, and noted the following in respect of Mr Mooney's run-in with police: The events in October 2022 were explored at length with Mr Mooney. He had gone to pick up cocaine for his girlfriend who was having a birthday party. He offered to do this as he was worried she may be harmed and he acted in a chivalrous manner in doing so. However this was a serious lapse of judgement and he recognises this as such. This includes his recognition of the importance of being a role model and discouraging the use of illicit drugs by others. In regards to the comments he made to the Police on the night it must be noted that when he saw the undercover Police officer approaching him he thought this person was a mugger who was going to assault him. As such the fight or flight response set in. The flight response includes a highly raised anxiety level and this briefly clouded his judgement. However as his anxiety settled, within a few minutes his judgement returned to normal and he responded to the police with honesty. It is of note that he pleaded guilty to possession at the hearing. Further it is of note that drug tests for cocaine were negative. I am of the opinion that Mr Mooney's description of the events was honest and also that he has been honest in stating that he does not use cocaine. I am of the opinion that the events in October 2022 represented a lapse in Mr Mooney's judgement, one that did not indicate a failure of his rehabilitation. His insight in to the incorrectness of his behaviour and his determination not to repeat this again is indicative of a person of good character.
NCAT concluded that Dr Farago's views on this incident were to be given "little weight" because his opinion was based on accepting Mr Mooney's account of what occurred, which NCAT had found not to be fully accurate and to be misleading in some respects: at [118].
Dr Ventura provided a report, dated 25 August 2023, at the request of the Medical Council. She recorded the following in respect of Mr Mooney's account of possessing cocaine on 22 October 2022: Mr Mooney told me that Gemma had ordered cocaine for a party with her friends. She ordered it by telephone and it was going to be delivered by a driver. She intended picking up the drugs herself. Mr Mooney told me that he was really worried about Gemma's safety and decided to go and get the drugs himself from the driver. When he was outside after receiving the drugs, Mr Mooney told me that he saw a man running at him. He threw the drugs away because he thought he was going to be burgled. It was only later that he realised that it was a plainclothes police officer. Mr Mooney informed me that he said, "yes the drugs are mine". He emphatically denied that he ever said, "You can't prove it." Mr Mooney told me that his girlfriend, Gemma came out of the apartment and told the police that the drugs were hers. Mr Mooney told me that he later appeared in Waverley Court and received a good behaviour bond. I mentioned to Mr Mooney that his account of the facts was different from the one provided in the police statement. Mr Mooney told me that the police amended the statement and I should have been provided with the amended statement not the original one. He told me that the Magistrate "accepted the narrative we provided."
Dr Ventura then gave the following opinion in relation to the incident: Mr Mooney's interaction with the NSW police on Saturday, 22 October 2022 highlight two important issues: The first one is lying to the police and the second one is the act of obtaining an illegal substance for his partner. In relation to lying to the NSW police, this appeared to have been an impulsive reaction of someone who got caught breaking the law. It is not in itself indicative of a personality pathology or lack of insight. Mr Mooney however does not accept the content of the police statement, which was provided to me, specifically where it stated that the police have to prove that the drugs belonged to him. He told me that the Magistrate accepted his "narrative".
NCAT appeared to accept Dr Ventura's evidence in full, despite it being infected by the same misleading account which Mr Mooney had told Dr Farago.
Finally, there was Dr Fisher's report. Dr Fisher provided a report dated 20 September 2023 at the request of Mr Mooney's lawyers. However, it was revealed that Dr Fisher had provided two earlier draft versions of this report to Mr Mooney's lawyers, who had passed them on to Mr Mooney, and to which Mr Mooney had responded in writing.
In an earlier version of the report, Dr Fisher wrote the following in relation to the cocaine incident: Mr Mooney says that when he got out of the drug dealer's car in the dark he was approached by a person in plain clothes who was shouting at him. He says he initially thought this person might have been a mugger and that this was a set up. He says he threw the plastic bag of cocaine into the gutter. Then one of the two people approaching "explained" that he was a plain clothed police officer and when he was asked whether he had any drugs in his possession he had said no as he had discarded the drugs. One of the two Regional Enforcement Squad officers recovered the cocaine and Mr Mooney was charged with possession. Strictly speaking, according to him, when he was asked about his possession of the drug he no longer had it on his person and so he might have been deemed not to have lied in response to that direct question. Nonetheless, he had paid for and taken possession of the cocaine and it is equally possible that he threw the bag of cocaine away suspecting the person who approached him might have been a policeman. The worst-case interpretation of Mr Mooney's response to the police is that he was attempting to avoid being arrested and told a lie. (Emphasis added.)
After seeing this draft report, Mr Mooney wrote to Dr Fisher and provided further explanation of what happened that evening. He also added the following: You said "The worst-case interpretation of Mr Mooney's response to the police is that he was attempting to avoid being arrested and told a lie." This is a possible interpretation but I honestly believe it is not the case. Of course I respect your need for impartiality in your report but wonder if surmising on the worst-case interpretation is my fairest interest.
In Dr Fisher's final report dated 20 September 2023, the "worst-case interpretation" sentence was omitted and replaced with the words, "I suspect that such action might be taken by many people caught in this sort of situation."
It should be noted that in this Court Mr Mooney appeared by solicitor and counsel. However, in NCAT, although Mr Mooney appeared by counsel, it appears that no solicitor was involved. Instead, Mr Mooney's then counsel (who did not appear in this Court) appears to have taken instructions directly from Mr Mooney, and appears to have retained the various experts himself. Thus it was the barrister who wrote to Dr Fisher on 6 September 2023 to commission a report, and to whom Dr Fisher's reports were addressed.
NCAT found that Dr Fisher's acceding to the revision of his report represented a "relatively minor" departure from his professional obligations. NCAT concluded that Dr Fisher "has modified one opinion in a way that is somewhat favourable to Mr Mooney and has not disclosed that change or provided a supplementary report": at [128]. Consequently, NCAT did not give that particular opinion (namely, "I suspect that such action might be taken by many people caught in this sort of situation") any weight, and did not rely on the balance of his report.

NCAT's conclusions on reinstatement

NCAT put to one side the relatively minor matters raised by the Medical Council, concerning the statements on Mr Mooney's website, the failure to disclose drug tests and what had been said on his behalf concerning his attendance at Narcotics Anonymous. None of the Medical Council's grounds of appeal related to those aspects of the decision.
Further, NCAT identified, correctly, the paramount consideration to be whether there was a risk to the health and safety of the public if Mr Mooney returned to practice: National Law, s 3B. NCAT addressed this at [44], referring to his conduct concerning Patients A and B: We are satisfied on the basis of the Tribunal's findings in the stage two decision and the evidence in these proceedings, that there would be no risk to the health and safety of the public if Mr Mooney were to perform the kind of surgeries he has performed in the past. We see his commitment to operate in a less rushed manner as genuine and also accept that he will reduce his hours if he returns to practice. There is no question as to his skill and competence as a surgeon however we note that the conditions on Mr Mooney's registration prevented him from performing the type of surgery he performed in relation to patient B ("Simple limited redo FESS"). Our preliminary view is that when determining appropriate conditions to be placed on Mr Mooney's registration, some form of supervision of these kinds of surgeries will be appropriate. Parties have been invited to make further submissions on that issue.
Once again, the Medical Council made no challenge in relation to that aspect of NCAT's reasons.
The Medical Council also made no challenge to NCAT's finding in relation to Mr Mooney's relationship with Patient C, which was addressed at [31]: We agree with Dr Farago's and Dr Ventura's assessments. While there is not a high risk that Mr Mooney will engage in inappropriate relationships if re-registered, we note Dr Ventura's opinion that "more work is needed". In those circumstances, our preliminary view is that it would be appropriate to place a condition on Mr Mooney's registration that he engage further psychotherapy on this issue. Parties have been directed to provide further submissions as to the need for such a condition and its precise scope.
In the dispositive concluding section of its reasons, NCAT focussed upon "the two categories of dishonesty we have identified as relevant". These related to what Mr Mooney told the police and the various medical practitioners. This was the focus of the Medical Council's appeal. It is appropriate to set out the entirety of NCAT's conclusions at [133]-[137]: Mr Mooney now fully appreciates why he lied to and misled authorities before his registration was cancelled. He did so because he did not want to be de-registered and lose his income. Mr Mooney has not merely articulated an understanding of his obligations; he has put a considerable amount of time and effort into addressing his past unethical behaviour. While those efforts do not guarantee that he will not lie to authorities and the Tribunal in future, they demonstrate that he is genuinely committed to not repeating that behaviour. Mr Mooney does not have any kind of mental illness or personality disorder that would predispose him to behave dishonestly or unethically in the future. One indication as to how a practitioner will behave in future is evidence of how he or she has actually behaved. The two categories of dishonesty we have identified as relevant are misleading police and then misleading medical practitioners and the Tribunal about the circumstances of his arrest for the possession of cocaine. In our view, there is a significant difference in the nature and seriousness of these representations compared with the deliberate and planned lies Mr Mooney told medical authorities and the Tribunal. The term "defect in character" is not routinely used by psychologists or psychiatrists. However, even if the lies he told to the medical authorities and the Tribunal can be characterised in that way, the two categories of conduct that Mr Mooney engaged in after his registration was cancelled are not serious enough to meet that description. We agree with Dr Ventura that it is highly unlikely that Mr Mooney will repeat any of the mistakes of the past. In our view, Mr Mooney has proven that he can be trusted to practise in an honest and ethical manner and presents no risk to the safety of the public and their confidence in the profession.
Accordingly, the following orders were made on 11 March 2024: (1) The Tribunal makes a "reinstatement order" under s 163B(1)(c) of the Health Practitioner Regulation National Law in respect of Mr William Mooney. (2) Within 21 days of the date of this decision, the Medical Council of NSW is to lodge with the Tribunal and serve on Mr Mooney written submissions on the conditions that should be imposed on Mr Mooney's registration and as to costs. (3) Within 21 days of being served with those submissions, Mr Mooney is to lodge and serve written submissions in reply and as to costs.
As noted at the beginning of these reasons, order 2 was not complied with and the Medical Council instead sought a stay of those orders and the extant proceedings before NCAT, pending this appeal.

Grounds of appeal

The body of the Medical Council's "further amended notice of appeal" stretches across some seven pages. It first outlines "background matters" for some two and a half pages, before identifying six grounds of appeal, all save one of which have numerous sub-grounds. It is reproduced as an annexure to these reasons.
The notice of appeal is far from being a model of its kind.
Rule 51.18(1)(e) of the Uniform Civil Procedure Rules 2005 (NSW) requires a notice of appeal to state "briefly, but specifically, the grounds relied on in support of the appeal". As Gleeson JA said in Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45; 380 ALR 145 at [52]: The importance of brevity and precision in formulating the grounds of appeal cannot be overstated. Prolixity is inconsistent with the just, quick and cheap resolution of the real issues in proceedings: Civil Procedure Act 2005 (NSW), s 56(1). It also obscures apparent merit: Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 at [70] (McHugh J).
The notice does not comply with that rule.
Moreover, the Medical Council's appeal purported to be as of right. But it only enjoyed an appeal as of right on a question of law. Ground 1 complained of a failure to consider whether to give less or no weight to some of the evidence (paragraphs (a) and (b)), the giving of weight to other evidence (paragraph (c)), and the failing to consider one aspect of the oral evidence (paragraph (d)). Those matters could amount to errors of law if there were some mandatory relevant consideration to which NCAT was bound to have regard, or some aspect of the evidence which NCAT was bound to ignore, as explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd (1986) 162 CLR 24; [1986] HCA 40. Of course, NCAT was not under any such constraint, nor did the Medical Council contend that it was.
Similarly, ground 2, which concerned the use made by NCAT of Dr Ventura's opinions, maintained that NCAT "erred in one or more of the following ways" and then identified "failing to consider whether it should afford less weight", "failing to give either less or no weight" and "giving weight" to various aspects of Dr Ventura's opinions. If this were an appeal by way of rehearing, those grounds would confront large difficulties in light of the fact that NCAT heard and saw Dr Ventura's cross-examination. But as a notice of appeal which purported to be as of right because it was on a question of law, it is obvious that ground 2 discloses no such error.
Ground 3 complains that NCAT failed to consider various aspects of the Medical Council's submissions, or some of the evidence, of the cumulative effect of all of the evidence. Once again, conspicuous by its absence is the identification of any question of law.
Ground 5 complained that either five or, more accurately, nine, factual matters were "relevant considerations" to which NCAT had failed to have regard. It is quite clear that none of the matters is a Peko-Wallsend mandatory consideration failure to have regard to which vitiates the decision (the Medical Council did not contend to the contrary), and that carries with it the result that the ground does not raise any question of law.
Ground 6 was that by reason of grounds 1-5 the decision was legally unreasonable. That is a question of law, but it is quite plain, for reasons that will be apparent from what follows if indeed it is not already clear, that the ground cannot succeed.
Ground 4 is somewhat different. It maintained that NCAT had erred in "failing to apply the correct test" and "effectively reversing the onus of proof", as well as failing to consider various matters, thereby leading to the wrong decision. That ground is capable of giving rise to a question of law. However, it is desirable for a notice of appeal in an appeal which is limited to questions of law to identify with precision what the question of law is. As was said in a similar context, "The questions of law are not to be distilled from the grounds of appeal": Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 at [21]. It is after all the claimed existence of the question of law which founds an appellant's entitlement to appeal as of right. Put another way, the first thing the appellate court must do is determine whether it has jurisdiction, and it will have no jurisdiction to determine the purported appeal on the merits unless it discloses a question of law.
This is far from the first time the restrictions upon rights of appeal have been ignored. In Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [71] I referred to: the importance of those contemplating bringing an appeal which is confined to a question of law attending to the statute and identifying the question of law. That obligation is not satisfied by rolled up allegations asserting error of law, still less by grounds which merely allege "error". It should be possible for the reader of a notice of appeal to apprehend what the question or questions of law are.
These points have been made, repeatedly, by this Court in relation to various regimes where appeals are confined to questions of law: see Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22] ("necessary for the notice of appeal to identify precisely the particular question or questions of law"); Kudrynski v Orange City Council [2024] NSWCA 33 at [48] ("it is critical that an appellant clearly identify the question of law which is the subject of the appeal"); Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13] ("the respondent did not identify the questions of law that were the subject matter of the appeal, but rather asserted the magistrate erred in law in various ways. This was wrong"). Many other examples could readily be collected. A more general, but equally salient, point was made in Fisher v Nonconformist Pty Ltd [2024] NSWCA 32 at [30]: "The first matter for legal practitioners advising potential appellants to this Court is to consider whether there is a right of appeal - including considering whether or not leave to appeal is required - and, if so, what sort of right that is". As noted at the outset of these reasons, where sophisticated litigants, such as the Medical Council, ignore the strictures upon the nature of the appeal they seek to invoke, they and the lawyers retained by them should expect criticism. They also run this risk, in an appropriate case, of adverse orders.
The Medical Council's notice of appeal is especially egregious, because it is obviously the product of a great deal of effort - its eight pages of reasoning must have cost thousands of dollars of professional time to prepare - and yet it signally fails to identify questions of law, at least in relation to the majority of its grounds. It falls short of the standards expected by this Court.
This led to the following exchange early in the hearing (transcript, 28 June 2024, pp 4-5): LEEMING JA: At some stage, I think the Court would like to hear from you on what you say about whether all of these grounds truly are within the scope of an appeal as of right. KIRK JA: Or indeed any of them except ground 6, because currently we can't see how any of them raise questions of law except ground 6, on which you have made very brief submissions at best. RICHARDSON: I will [make] submissions about that. LEEMING JA: To cut to the chase, is it the case - and it may well be - that you're here consciously not seeking leave, and if you fail on these things being within the scope of an appeal as of right, then that's it? RICHARDSON: That's correct. I'm advancing questions of law within the as of right appeal. LEEMING JA: You don't have a fallback application for leave. That's what I just wanted to be absolutely clear about. RICHARDSON: Could I take that on [notice]? LEEMING JA: That's why I'm raising it. RICHARDSON: I note that the notice of contention seeks to raise factual matters. LEEMING JA: We won't get to the notice of contention if you lose on an appeal as of right and you don't apply for leave. RICHARDSON: Yes, your Honour. I just make the broad point that the respondent is seeking to put in issue merits of fact finding. LEEMING JA: As are you, really, looking at it broadly. RICHARDSON: Well, that's not our contention, your Honour. KIRK JA: Your notice of appeal is full of arguments about the weight that should be given to evidence, first. Secondly, you make no real attempt to articulate any question of law. It currently seems to me, subject to what you say, that grounds 1 to 5 don't come within cooee of raising a question of law. RICHARDSON: Certainly, I'll be making submissions that they do raise questions of law. For example, and I'll come to it in turn, ground 4 is an allegation that the tribunal has applied the wrong test; that it has misunderstood its statutory task; and that it has positively applied an erroneous test, so ground 4 is a very clear example of misunderstanding of the nature of the task that the tribunal was required to undertake under the statute. It's a very clear question of law, in my submission. LEEMING JA: I would agree with you that ground 4 is a less improbable case than grounds 1, 2 or 3. RICHARDSON: Could I address each of them in turn? KIRK JA: All of this might fall away, of course, were your client to seek leave.
Immediately thereafter, the Medical Council sought leave to expand its appeal beyond questions of law. The Court acceded that application subject to making directions to accommodate the prejudice sustained by Mr Mooney. The balance of the hearing proceeded on the basis that this Court would hear the Medical Council's application for leave concurrently with its submissions on the appeal if leave were granted.
In light of the expansion of the appeal, and the full submissions that were heard from both sides on the broader appeal, no useful purpose is served analysing any further whether and if so the extent to which an appeal as of right may be extracted from ground 4. Instead, I turn to the substantive submissions advanced by the Medical Council and deal with them on their merits.

Consideration

There were essentially three strands to the submissions made on appeal by the Medical Council. All concerned the aftermath of Mr Mooney's purchase of cocaine on 22 October 2022. None was based on the crime he committed per se, although plainly it was a matter open to be considered by it. One matter relevant to an application for registration in the medical profession is the applicant's criminal history. Section 55(1)(b) of the National Law entitles a National Board to determine that an individual is not a suitable person to hold general registration within a health profession if "having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession" the Board is of the opinion that the individual is not an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession. However, there is no occasion in this appeal, in light of the stance adopted by the Medical Council, to consider whether, and if so in what way, the conduct of buying illicit drugs for the purpose of supplying them to his partner falls within s 55(1)(b) in its application to the medical profession.
Instead, the Medical Council relied on Mr Mooney's immediate and longer term responses after his criminality was uncovered. The Medical Council relied on (a) the immediate responses made to the arresting police officer, (b) the account permitted to be given on his behalf in the Local Court in December 2022 (including the matters which were redacted in the facts sheet), (c) the accounts he gave to various medical practitioners whose opinions were to be provided to NCAT, and (d) his cross-examination in NCAT on those matters. The general line was that Mr Mooney's conduct manifested the same character vice - misleading authorities - as had led to his removal from the register.
As has been seen from the extracts of its reasons summarised above, NCAT concluded, with respect correctly, that Mr Mooney had not behaved transparently with the police. Instead, he had attempted to mislead the police, saying he had got into the wrong car and saying that he had no drugs in his possession (after he had, moments before, thrown the cocaine away). In his accounts to various medical professionals, Mr Mooney maintained that he had thought he was being mugged when Constable Constantinou (who was not in uniform) approached him, an account which NCAT did not accept.
NCAT found that Mr Mooney had been evasive, misleading and not "completely frank, honest and co-operative with police".
The Medical Council submitted that Mr Mooney had misled the various experts, and that that led to two distinct vices. The first was that it devalued the opinions each expert provided (grounds 1 and 2). The second is that it was further evidence that Mr Mooney had not discharged the onus upon him to establish that he was no longer unfit to be registered (grounds 3 and 4). I shall address each in turn. Nothing turns on the evidence of Drs Hogan and Fisher, because NCAT did not rely on their opinions. The reliance of NCAT upon the evidence of Drs Farago and Ventura underlay grounds 1 and 2 respectively.

Ground 1

NCAT found that Mr Mooney misled Dr Farago. It explicitly addressed the effect of his misleading him, stating the following at [117]-[118]: Dr Farago, Mr Mooney's treating psychiatrist since March 2019, has explored issues around honesty, ethics and trust in detail with Mr Mooney. In Dr Farago's view, Mr Mooney has accepted that he made serious errors of judgment by providing misleading information and there was no excuse for doing so. He has expressed true remorse and full insight. Dr Farago does not consider the deliberate lies Mr Mooney told to be a defect in his character. Rather, he behaved in that way because he feared that he would lose his medical career. As to Mr Mooney's interactions with police when being arrested for possession of cocaine, Dr Farago expressed the view that those events were a "lapse in Mr Mooney's judgment" and "did not indicate a failure of his rehabilitation". That opinion is based, in part, on accepting Mr Mooney's account which we have found to be misleading in some respects. Because Dr Farago's opinions were not based on a fully accurate account of Mr Mooney's behaviour on that night, we give his views on that issue little weight.
The Medical Council complains that NCAT should have given "less or no weight" to the entirety of Dr Farago's views, in light of his being misled. At no stage in the dispositive section of NCAT's reasons are Dr Farago's name or opinions mentioned. That is consistent with what NCAT said it was doing, giving little weight to the critical aspect of his evidence, concerning Mr Mooney's rehabilitation and judgment in 2022 and 2023. As it happens, that approach accorded with the submissions made by the Medical Council in NCAT, where it submitted "that the Tribunal would afford Dr Farago's opinions little or no weight".
It is necessary to bear in mind that NCAT is comprised of two medical practitioners and one lay member, as well as a judicial member, all of whom were well placed to evaluate the entirety of the evidence. Addressing this ground on its merits, unconstrained by the requirement to expose any question of law, I am unpersuaded that the Medical Council has established that there is any error. It was open to NCAT to discount Dr Farago's view but nonetheless attribute some slight weight to it.

Ground 2

Ground 2 concerns Dr Ventura's evidence. Once again, NCAT found, in accordance with the Medical Council's submission, that Mr Mooney misled her. Unlike Dr Farago, Dr Ventura's evidence made an important contribution to NCAT's overall assessment. Indeed, Dr Ventura was the only expert mentioned by name in the dispositive section of NCAT's reasons.
It is appropriate to reproduce the entirety of NCAT's summary of Dr Ventura's evidence, which was [129]-[132]: Dr Ventura's evidence Dr Ventura, a psychiatrist, provided a report at the request of the Medical Council. In her view, Dr Mooney does not have any kind of mental illness or personality disorder that would predispose him to behave incompetently or unethically. She does not have any specific objection from a psychiatric perspective to Mr Mooney's registration being reinstated. Dr Ventura expressed the opinion that Mr Mooney was very candid as to why he had misled medical authorities before his registration was cancelled. He did so because he did not want to be de-registered and lose his income. In her view, he had good insight into that behaviour. However, she added that while insight is a popular concept in medico legal settings, gaining insight does not necessarily cause behaviour to change a great deal. In her report, Dr Ventura wrote that it would be highly unlikely for Mr Mooney to repeat any of his past mistakes. In oral evidence, when asked whether Mr Mooney would lie to authorities to get out of a troublesome situation in the future, Dr Ventura said that it was possible, but that opinion is not based on her expertise as a psychiatrist. Lying to police is not indicative of a personality disorder. The research suggests that if a person copes with stress in a certain way, for example by lying, they are more likely to behave in that way in the future. Dr Ventura expressed the view that Mr Mooney's "psychological vulnerabilities may predispose him to become impaired in times of crisis." Those vulnerabilities include a need to please and a sense of shame. She considered that if a person such as Mr Mooney develops maladaptive behaviours to deal with stress, they can still be taught not to behave in that way by accessing appropriate psychotherapy. Dr Ventura recommends that if Mr Mooney is reinstated to practice, he participate in regular psychotherapy from an appropriately trained and qualified professional. That is also our preliminary view, subject to further submissions as to appropriate conditions.
The notion of a patient misleading a psychologist or a psychiatrist is familiar and fundamental. Practitioners are trained to evaluate histories given by patients critically. They also well understand the phenomenon (which is equally familiar to a judge) that a witness' memory is distorted by repeated retelling of an account. Memory is fallible, and "the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said": Watson v Foxman (1995) 49 NSWLR 315 at 319.
Dr Ventura's evidence makes it quite plain that she accepted that it was possible that Mr Mooney would lie to authorities to get out of a troublesome situation. It was to that end that she suggested regular psychotherapy. NCAT agreed, and proposed to impose a condition to that effect.
In the dispositive passage of its reasons, NCAT relied upon Dr Ventura's opinion that it was "highly unlikely that Mr Mooney will repeat any of the mistakes of the past". The Medical Council says that that reliance was inapt. However, it is important to note that NCAT had immediately beforehand differentiated the lies told by Mr Mooney in relation to his purchase of cocaine from the lies which led to his being deregistered. The Medical Council complains about this too, and I shall return to it. But it is tolerably clear that the lies told more recently are qualitatively different from his concealing his relationship with Patient C or failing to submit to drug testing.
In short, Dr Ventura regarded Mr Mooney as presenting a risk that he would lie to protect himself, including to professional authorities, but nonetheless that his predisposition could be addressed by conditions, and that it was most unlikely that he would repeat the much more serious mistakes of the past.
Dr Ventura may or may not have suspected or believed that Mr Mooney was embellishing his account of the evening of 22 October 2022 - or to put the matter more bluntly, lying about his account - when the two spoke about the events. She was after all the chosen expert of the Medical Council, and there is no basis whatsoever to think that her approach was unduly credulous or unsuspecting. She referred to the risk that Mr Mooney might be dishonest in the future, and formed the view that that risk could be addressed by conditions.
Given the limited way in which NCAT deployed her opinions, I am unpersuaded that, to the extent if any they were affected by Mr Mooney misleading her, it made any difference to the outcome.

Grounds 3 and 4

These grounds challenge the dispositive reasoning at [133]-[137], which is reproduced above. The focus of ground 3 is the misleading conduct of Mr Mooney. Grounds 3(a1), (a2) and (a3) complain that NCAT failed to consider submissions it had made. Grounds 3(a), (b) and (c) complain that NCAT failed to take into account aspects of Mr Mooney's misleading conduct. Ground 4 complains that the approach taken by NCAT, in contrasting the more recent conduct with the earlier conduct, involved legal error (including a shifting of onus and applying the wrong legal test), and led to the result that it failed to attend to whether in light of the most recent conduct Mr Mooney should be registered.
I do not accept an important premise of ground 3. Mr Mooney was cross-examined at length as to whether he had "misled" the police, the Local Court, and the various medical practitioners who examined him. A theme of this cross-examination was that Mr Mooney denied he had misled anyone, but accepted that he had been evasive and not told the whole truth. The Medical Council said that this failure to acknowledge that he had misled anyone demonstrated a lack of insight into one of the very matters which had led to his deregistration in the first place.
By way of examples, the Court was taken to the following exchanges during Mr Mooney's cross-examination: Q. Do you agree with me that in circumstances where you told this person that, "I think I got in the wrong car", and now he said to you: I think you've been involved in a drug transaction. And now he's going to search you, for you to say, "I don't have any drugs on me" is misleading? A. It was evasive, yes. I did not have any drugs on me but I can see it was evasive. Q. Well, it was misleading wasn't it? A. Well, I didn't have any drugs on me and it was evasive and, yes, I concur. Q. Do you agree it's misleading? A. Evasive. Q. Well, I'm asking you a question -- A. It's not misleading because it's the truth. I did not have any drugs on me. I think misleading is when you tell a non-truth.
Shortly thereafter, was the following exchange: Q. You say to him: I do not have any drugs on me. A. Yes, correct. Q. I want to suggest to you that is not evasive conduct, it's misleading conduct. Do you agree with that? A. No, 'cause it's the truth. That's exactly - at that time, I had no drugs on me. Q. So it's technically true but it's misleading, isn't it? A. No. How can you have the same thing. They're mutually exclusive. Q. Oh? A. How can be something technically be true and misleading simultaneously?
Lawyers are familiar with the proposition that a representation which is true can nonetheless be misleading and deceptive, contrary to s 18 of the Australian Consumer Law, and that no mental element is involved; cf Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 228; [1978] HCA 11.
That is far from self-evident to a lay person, who may naturally consider that a person's statements are misleading if and only if he or she intends to mislead. It is quite plain that, right or wrong, Mr Mooney distinguished between statements which were evasive and statements which were misleading. It was open to NCAT who saw his cross-examination which occupied 97 pages of transcript to discount it on the basis that the cross-examiner and witness were at cross-purposes. Indeed, unless NCAT were of the view that Mr Mooney was dissembling when answering those questions, discounting it was the proper course to take. The Medical Council's submission that the answers revealed a lack of insight in sub-grounds 3(a1) and (a2) falls away accordingly.
The remainder of ground 3 complains of a failure to have regard to all of the occasions when Mr Mooney misled various people, and the cumulative effect of those occasions, and the Medical Council's submission that that conduct was an instance of his propensity to engage in misleading conduct to advance his interests.
I do not accept these sub-grounds. In relation to the failure to have regard to evidence, there is nothing to suggest that NCAT did not have regard to all of the evidence before it. It referred in terms to his misleading police and misleading medical practitioners. It did not underplay that conduct, but treated it as "dishonesty": at [135].
By a notice of contention, Mr Mooney challenges the findings of NCAT that he was dishonest. It is not necessary to deal with this at any length, because Mr Mooney accepted that the was dishonest in his dealings with police. His written submissions stated: Mr Mooney does not challenge the finding [that] the excuse he provided to the police was dishonest however, as outlined in his primary submissions, it occurred in the agony of the moment of an arrest and is of a different nature and character to his prior dishonest conduct. (Original emphasis.)
In relation to the failure to consider one of the Medical Council's submissions, NCAT did have regard to the possibility that he might continue to lie to authorities to "get out of a troublesome situation". It recorded Dr Ventura's opinion to that effect at [131]. It also noted her opinion that his predisposition to that behaviour warranted regular psychotherapy, and contemplated conditions to that end. It was not necessary for NCAT in those circumstances separately to address Mr Mooney's capacity to mislead authorities, after it had explicitly addressed his lying to authorities. The greater includes the lesser.
Ground 4 challenged the basic approach adopted by NCAT, which was to characterise the more recent dishonest and misleading behaviour as significantly different from, and less blameworthy than, the earlier conduct which led to his deregistration.
That approach was well open to NCAT.
Mr Mooney's responses to the officer who arrested him were the opposite of candid and honest. He told lies. He likely did so in the hope that he might avoid arrest. On the other hand, he did so in the seconds after being apprehended buying illicit drugs. There is no element of premeditation. And there was a high level of co-operation with authorities thereafter. Mr Mooney was dishonest, but his dishonesty was nothing like the sustained lies he told about his relationship with Patient C while regulators were investigating that relationship.
Mr Mooney's efforts to provide medical practitioners with a history which would paint him in a less unpleasant light are also reprehensible, and disclose a lack of insight. But many patients do exactly the same thing, and the practitioners will regularly assess a history critically bearing in mind the limitations of human memory and the predisposition to see one's past conduct in a favourable light. It is especially reprehensible that Mr Mooney did so knowing that the practitioners were to provide opinions to NCAT, and it is not greatly to the point that that may have occurred, and Dr Fisher may have acceded to his client's request, because there was no solicitor to emphasise the importance of the expert code of conduct. But once again, it was not only open for NCAT to regard that conduct as significantly less reprehensible than his earlier conduct which led to his deregistration, but in my view it was also correct to do so.
I am unpersuaded that the reasons at [133]-[137] disclose an erroneous evaluation of the evidence, or an erroneous conclusion that, subject to conditions, Mr Mooney's registration might be reinstated. Another way of putting this is to conclude that the Medical Council has not persuaded me that there are no conditions which could be imposed on Mr Mooney's registration which would render him an appropriate person to practise the medical profession.

Ground 5

This ground complains that NCAT failed to take into account "relevant considerations" when determining whether to make a reinstatement order subject to conditions, and then identifies nine relevant considerations. None is a relevant consideration in a Peko-Wallsend sense except, perhaps, the last, which is that "the Tribunal failed to consider whether the granting of a reinstatement order subject to conditions was consistent with the 'paramount consideration' in s 3B of the National Law, particularly in light of the circumstances sub-paragraphs (a)-(d) above". This ground is without foundation, because s 3B makes the protection of the health and safety of the public the paramount consideration, and NCAT addressed that in terms in [137], concluding that he presented "no risk to the safety of the public and their confidence in the profession".
The fact that the other sub-grounds are not mandatory relevant considerations does not mean that they may not give rise to appellable error which is not an error of law. But I am unpersuaded by any of them.
The most important consideration is that NCAT has not imposed any conditions at all so far. That is because of the unilateral conduct of the Medical Council in choosing not to abide by NCAT's directions. By reason of that conduct, none of the submissions now sought to be advanced by the Medical Council were made to NCAT. It is, with respect, quite wrong for the Medical Council to decline to make submissions on conditions in accordance with NCAT's directions, and then to complain before any conditions are made about NCAT's in principle consideration of conditions. I agree with Mooney's submission, supplied on 4 July 2024 in accordance with this Court's directions, that "the alleged error that is the subject of appeal ground 5 concerns matters that were not put to the Tribunal at first instance, despite the Medical Council being directed to make submissions as to the imposition of conditions".
For that reason alone, I would not grant leave to advance sub-grounds 5(a)-(d). It is necessary in any event for there to be a further decision of NCAT on conditions. The Medical Council may advance those submissions to NCAT (as indeed it should have done last year). It will be a matter for NCAT to regulate its own procedure, but I should make it quite clear that nothing in these reasons is intended to convey that there is a need for an oral hearing, as opposed to the exchange of written submissions on appropriate conditions.

Ground 6

Ground 6 was that NCAT's decision was unreasonable in light of the matters in grounds 1-5. For the reasons already stated, this ground is not made out.

Conclusion and orders

For those reasons, I would refuse leave to appeal on ground 5 save to the extent that it, in ground 5(e), advances a question of law. I would grant leave to appeal, to the extent necessary, in relation to grounds 1-4 and 6. None of the grounds is made out. No error has been shown in the conclusion reached by NCAT that Mr Mooney is, subject to the imposition of appropriate conditions, able to be reinstated to practice in the medical profession. It is not necessary to deal fully with the notice of contention, a course which was flagged during the hearing of the appeal, and in respect of which Mr Mooney made no submission to the contrary.
Mr Mooney is not a perfect individual, far from it. He continues to suffer from the flaws identified in the hearing before NCAT, and in particular, there is a chance he may continue to mislead professional authorities. But there was ample evidence to conclude, as NCAT did, that he can be trusted to practise in an honest and ethical manner, that he presents no risk to safety, and that his predilection to mislead may be addressed by appropriate treatment. As already noted, the absence of a risk to safety was found by NCAT and was not the subject of any challenge in this Court, while the conditions proposed (Category C supervision for Specialist Otolaryngological practice, mentor supervision for all other non-operating theatre practice, and, especially, to work no more than 35 hours a week while under supervision) appear to go far to address the remaining risks.
I propose the following orders:
To the extent necessary, grant leave to appeal in respect of grounds 1, 2, 3, 4 and 6 of the further amended notice of appeal, and refuse leave in respect of ground 5 except insofar as it raises a question of law.
Appeal dismissed, with costs.
Note that the effect of orders 1 and 2 is to discharge the stay extended by this Court on 28 June 2024, such that the remaining matters in the application before NCAT can now be determined.
KIRK JA: I agree with Leeming JA.
PRICE AJA: I agree with Leeming JA.

Annexure Further amended notice of appeal (5803265, pdf) 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: 30 July 2024

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