Mehieddine v Physiotherapy Council of New South Wales

Relevant Statutory provisions

1. The provisions relevant to this application are found in the National Law and the Civil and Administrative Tribunal Act 2013 (the NCAT Act).
2. The practitioner's registration was suspended following a hearing conducted under s 150 of the National Law. That provision empowers a council to place conditions on a practitioner's registration, or to suspend a practitioner's registration if it determines it is appropriate to do so because there is an unacceptable risk to the health and safety of the public, or a section of the public or it is in the public interest to do so (see Ghosh v Medical Council of New South Wales [2020] NSWCA 122; Pridgeon v Medical Council of New South Wales [2022] NSWCA 60).
3. Suspension of a practitioner's registration is not for a fixed period, but remains in place until the complaint is disposed of, or the suspension is ended by the Council (see s 150C of the National Law in respect of termination of suspension by Council and s 150D referral of the matter to the Health Care Complaints Commission for investigation).
4. A practitioner may seek to review the Council's decision to impose conditions or to suspend her or his registration (see s 150A).
5. A practitioner may lodge an appeal against the Council's decision under s 159 of the National Law or an appeal on a point of law under s 159B of that law. An appeal under s 159 of the National Law is an "external appeal" for the purposes of the NCAT Act.
6. Section 159A deals with an appeal by a student. Such an appeal is also classed as an "external appeal" for the purposes of the NCAT Act. Section 159A (3) provides: (3) The appeal must be made within 28 days, or the longer period as the Tribunal may allow in a particular case, after notice of the Council's decision is given to the student.
7. No equivalent provision to s 159A (3) is found in s 159. However, s 161 of the National Law, which is found in Division 6, (appeals to the Tribunal) (as is an appeal under s 159) provides: 161 When appeal must be made [NSW] An appeal under this Division or Division 14A, other than an appeal on a point of law, must be made - (a) within 28 days after the day the person making the appeal was given notice of the decision being appealed against; or (b) within the longer period allowed by the Tribunal.
8. It is also important to note that an appeal under s 159B on a point of law, being an external appeal to the Tribunal, is governed by the provisions of the NCAT Act (see s 31 of the NCAT Act, Rule 25(4) of the Civil and Administrative Tribunal Rules 2014 and EFQ v Medical Council of New South Wales [2021] NSWCA 167).
9. Clause 11 of Schedule 5D of the National Law deals with the hearing of inquiries and appeals under the National Law. Clause 11 provides as follows: 11 Expedition of inquiries and appeals [NSW] (1) It is the duty of a Committee or the Tribunal to hear inquiries and appeals under this Law and to determine those inquiries and appeals expeditiously. (2) Without limiting subclause (1) - (a) an inquiry or appeal related to action taken by the Council under section 150 must be listed for hearing by a Committee or the Tribunal as soon as practicable; and (b) a Committee or the Tribunal may postpone or adjourn proceedings before it as it thinks fit.
10. As with all matters dealt with under the National Law, the Tribunal is informed and guided by the objects and principles set out in s 3 and s 3A. Section 3A, a New South Wales objective and guiding principle 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.
11. Although the National Law does not prescribe any criteria to be taken into account by the Tribunal when exercising its discretion to determine whether time should be extended, the authorities are clear that the discretion must be exercised judicially.

Case law

1. The authorities referred to in an application for extension of time by the Tribunal are referred to by Bell P (as his Honour then was) in EFQ v Medical Council at [17] with approval. His Honour at [19] sets out observations of Hodgson JA in Tomko (Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55]. Those authorities, and his Honour's reference to Tomko are as follows: In approaching the question whether or not to grant an extension of time, the Tribunal identified the relevant principles to be applied in a way that was not controversial, referring in this context to Gallo v Dawson (1990) 64 ALJR 458; [1990] HCA 30; Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson); Khan v Medical Council of NSW [2016] NSWCATOD 88; Roberts v Nursing and Midwifery Board of Australia [2017] NSWCATOD 109; and Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55] (Tomko). From the summary supplied in Jackson at [22], the following four factors of relevance to the exercise of the extension discretion were identified: (1) the length of the delay; (2) the reason for the delay; (3) whether the applicant has a fairly arguable case; and (4) the extent of any prejudice suffered by the respondent to the application. Also noted in Jackson was the observation of Hodgson JA in Tomko at [14], namely that: "...there may be circumstances where it is appropriate to go further into the merits of the case of a person seeking an indulgence such as this, than to ask whether or not the case is fairly arguable. If such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice, then a fairly arguable case is sufficient. However, if the explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, then it may be relevant that the person seeking the indulgence shows that his or her case has more substantial merit than merely being fairly arguable."
2. Also relevant to the principles to be applied is the discussion of the Court of Appeal Nguyen v Nguyen [2021] NSWCA 161. The Court referred firstly to the well-known discussion of McHugh J in Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479; (1990) 64 ALJR 458 that the discretion to extend time is given for the purpose of enabling the Court to do justice between the parties and ensuring that the time limits imposed in legislation do not become an instrument of injustice.
3. In Nguyen the Court referred to the discussion of Brennan CJ and McHugh J in Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516; 153 ALR 276; 72 ALJR 819 of the general principles to be applied by reference to the decision in Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946; [1985] 2 All ER 517 at 520. Their Honours then explained: 56 Speaking more generally, Kirby J noted that there might be other factors relevant to the grant of an extension of time in particular cases. As his Honour stated, after reference to the factors identified in Palata Investments (at 543 [66] (7)): '...But they are by no means exhaustive. Several others have from time to time been thought relevant. These include whether the delay was intentional or contumelious; or merely the result of a bona fide mistake or blunder; and whether the delay is that of the litigant or of its lawyers, with which the litigant should not be saddled. It may also be relevant, where the default is that of a party's legal representatives, to take into account any considerations personal to the party which might have affected its ability to safeguard its own interests, for example, by applying pressure to its lawyers. Similarly, the extent to which any such prejudice may be remedied by an appropriate costs order is another consideration that has sometimes been treated as relevant'."

The first appeal

1. On 26 March 2020 the practitioner's then solicitor Mr Ahmed Dib of Dib Legal filed an external appeal form in the Tribunal. The form did not state whether the appeal was brought under s 159 and or 159B of the National Law. Para 3 of the "Grounds of Appeal" refers to the conditions placed on the practitioner's registration and note that the practitioner's employment was terminated on 19 December 2019 and because of this fact he did not provide a copy of conditions imposed on his registration to his employer. Para 7 states: The appellant had abided by the conditions by putting his employer on notice within the stipulated time period but no copies were provided as his last day of practice was on 19 December 2019
2. Para 8 of the Grounds of Appeal is drafted as follows: The appellant seeks to appeal the suspension of his registration on this basis.
3. The matter was listed before Judge Cole, Deputy President, on 24 April 2020. Her Honour adjourned the matter for a Case Conference on 8 May 2020.
4. The matter was again listed before her Honour on 8 May 2020. On that occasion directions were made for the practitioner's to file and serve on the Council further and better particulars of his grounds of appeal on or before 15 May 2020 including the provisions of the National Law under which the appeal is brought. Directions were made for the filing of documents by both parties and the matter was listed for directions on 31 July 2020.
5. On 15 May 2020 the practitioner's solicitors forwarded an email to the Tribunal and to the Council setting out the grounds of appeal to be relied on as follows: Grounds of appeal 1. As per section 159(1)(a) of the National Law (NSW), the Applicant has the right to seek a review by NCAT of the decision to suspend the practitioners registration under Division 3; 2. As such, in accordance with 159(3) of the National Law (NSW), there is fresh evidence which we intend to rely on that was not before the Council. 3. Further to this section 159C allows the Tribunal to set aside the decision and make a new decision based on the fresh evidence. Drug use 4. The Applicant has ceased all drug use after his admission into the intensive care unit on 29 January 2020. The last time he consumed cocaine was on 28 January 2020 and he has instructed us that he will never do so again. 5. The Applicant has enrolled into the SMART recovery drug rehabilitation program and will receive a completion certificate once finalized. 6. The Applicant will continue to receive treatment from his psychologist, Sam Albassit. There will be a psychologist report detailing treatment. 7. The Applicant has made an appointment with Dr Richa Rastogi who is a psychiatrist and he will maintain regular appointments. There will be a psychiatrist report to that effect. 8. The Applicant will undergo regular drug test analysis to indicate cessation of drug use. 9. Affidavit of Ali Mehieddine (Applicant's Father) to indicate substantial change in the Applicant's conduct in his place of residence. Breaching conditions 10. On 5 December 2019, the Council gave the Applicant given 14 days to nominate a supervisor for Council approval and forward evidence to the Council that he had provided a copy of the full conditions. 11. The Applicant instructs us that he ceased employment on 19 December 2019. 12. As such, the Applicant ceased employment within the 14 days and as such was not of the belief that he needed to disclose the conditions as requested. Non-response to requests for information 13. In the period leading up to admission into the intensive care unit, the Applicant was going through a difficult time in his life which lead to his drug use. The Applicant was not thinking clearly and did not appreciate the significance of the requests made by the Council. 14. In the time that has lapsed, the Applicant has taken active steps to address the drug use that lead him to make such poor decisions as evidenced by the document above. 15. The Applicant will produce any requested documents by the Council that they deem relevant if it is within his means.
6. On 28 May 2020 the practitioner's solicitors wrote to the Registrar and advised as follows: Due to the current COVID 19 crisis there have been delays with receiving the reports that we intend to rely on for this appeal. I can confirm that we require an extension to submit the relevant documents. I have taken instructions from Mr Mehieddine and he has indicated that we require an additional 4 weeks until 2 July 2020 to submit relevant documents. Can you please advise your position in relation to this extension at your earliest convenience.
7. On 4 June 2020, with the consent of the parties, Judge Cole revoked the earlier orders, made orders for the parties to file relevant material and listed the matter for directions on 28 August 2020.
8. On 21 August 2020 the Council wrote to the Registrar seeking that the earlier directions be varied by consent. The email explained: The reason for the application for amendment is that the Appellant is awaiting receipt of materials from treating practitioners and results from drug testing and that Mr Mehieddine has recently been released from custody.
9. On 24 August 2020 Judge Cole made orders varying the earlier time-table and listed the matter for a directions hearing on 6 November 2020.
10. On 29 September 2020 the Council's solicitor wrote to the Registrar requesting the matter be relisted. The email noted that the Council had consented on a number of times to extensions of time to accommodate the appellant but as at the date of the email had not been served material which was due on 4 September 2020.
11. On 9 October 2020 the matter was listed before me. I provided a further time-table for the parties to file documents and listed the matter for directions on 18 December 2020. On that day the following notations were added to the directions made: 6. It is noted that there was no appearance by or on behalf of Majd Meheiddine, the appellant, and the Tribunal tried unsuccessfully to contact the solicitor on the record, Mr Dib, by telephone. 7. It is further noted if there is non-compliance with this amended and further extended time-table, the Physiotherapy Council of New South Wales may make application to the Tribunal for summary dismissal of the proceedings.
12. On 1 December 2020 the Council filed an Application for Miscellaneous matters and sought orders that the appeal be dismissed pursuant to s 55 (1) (d) of the Civil and Administrative Tribunal Act 2013 on the basis that there had been a want of prosecution of the proceedings. The application also sought an order for costs.
13. On 18 December 2020 the practitioner's solicitors sent an email to the Registrar noting the matter was in the list that day, and confirming they acted for the practitioner. The email attached "supportive material" being a report by Dr Dayalan, Dr Dayalan's curriculum vitae, a medical certificate for the practitioner, and correspondence from the Physiotherapy Council (being notification for the practitioner to attend a health assessment).
14. On 18 December 2020 I made directions that the practitioner's solicitors were to notify the Council on or before 11 January 2021 whether or not the practitioner consented to the application for summary dismissal being heard on the papers, and noting that if the practitioner did not consent to that course the application would be listed for hearing on a date and time to be notified by the Registrar.
15. The matter was again listed before me on 29 January 2021. On that occasion the practitioner appeared in person by telephone. There was no appearance by or on behalf of the practitioner and no notice was received by the solicitors advising they no longer acted in the matter.
16. On 29 January 2021 the practitioner advised that he no longer wished to pursue his appeal which was withdrawn. I made an order that an application for costs, if any, was to be filed within 21 days. No such application was filed.

The present appeal

1. In his present appeal the practitioner sets out as grounds for his appeal the following: My practitioner's (Physiotherapy) license was temporarily suspended after I was hospitalised on Australia day long weekend 2020 and was found to have illicit substances in my system. My ex-legal team took over the matter promptly after and lodged an appeal to NCAT last year for this matter and hence the internal process of review of the decision with the HPCA was ceased. Unfortunately, my ex legal team and practitioners were very unorganised and unfamiliar with the whole process but refused to let me know that was the case. This led to many adjournments with NCAT and finally my legal representative did not appear on the AVL when he was supposed to last year, even though I paid him. I was forced to withdraw my appeal at the end of 2020. I emailed the HPCA about renewing my practitioner's license and they replied to me via email that I had to lodge an appeal with NCAT once more. With regards to the original temporary decision of suspending my license, in my defence, It is true that illicit substances were found in my system after attending an Australia Day event on the long weekend in Jan 2021 however ¡t was something I have not repeated again and have undergone several rehabilitation programs as well as undertaking a treatment plan imposed by a psychiatrist to address the issue of illicit substance use during that time period and it is well behind me now. I would like to get back on with my life and serve my community once more
2. In support of his application to extend time the practitioner states: Previous legal team was very unorganised and did not know how to handle NCAT matters which led to many adjournments and didn't appear when supposed to in Dec 2020. I have been stuck overseas due to COVID lockdowns from FEB-NOV 2021…
3. The practitioner has annexed to the Grounds of Appeal a letter from the Council dated 4 February 2020 advising that his suspension of his registration would be effective from 4 March 2020. He also annexed the Council's reasons for its decision.
4. In an unsigned document headed "Letter to accompany attached documents" the practitioner notes it is "almost 2 years" since his registration was suspended following a report from a doctor at St George Hospital on his admission on the Australia Day long weekend 2020. The practitioner states that he lived in Lebanon from 27 February to 1 November 2021. He further states that on arriving back in Sydney he emailed the Council and says he was informed he had to "complete this process through NCAT".
5. The present appeal was listed for directions on 21 January 2022 and was stood over to 4 February 2022. On that occasion the practitioner appeared in person.
6. On 4 February 2022 directions were made for the practitioner to give to the Council any material on which he relied in support of his application to extend time on or before 25 February 2022, for the Council to provide its material on or before 11 March 2022 and by consent for this application to be heard "on the papers". On that occasion I noted that the practitioner may bring an application to review the Council's decision under s 150A of the National Law.
7. On 11 March 2022 the Council's solicitor wrote to the Registrar noting that the practitioner had not filed any material in support of his application for an extension of time on the Council. A request was made to relist the matter on 18 March 2022.
8. On 18 March 2022, after a request by the practitioner, the Registrar was requested to provide the practitioner as soon as possible with a copy of all the orders and directions made in the first appeal. The practitioner was directed to file all material on which he relied on support of his extension of time to appeal on or before 28 March 2022, provision was made for material to be filed by the Council on or before 1 April 2022 and the matter was listed for directions on 8 April 2022.
9. On 8 April 2022 an order was made providing that the application would be determined on the papers.

Material relied by the practitioner in support of his application

Statement of the practitioner

1. In his statement the practitioner explains that in his first appeal he was represented by Dib & Associates Legal. He states: Throughout this time, I was exploited as a client and was faced by a very negligent legal team, whom adjourned my matter with the Tribunal well over several times without ever explaining to me why, or sometimes not even informing me at all. However, I was charged for each adjournment.
2. The practitioner says that, on 18 December 2020, he was connected to the AVL link for the directions hearing and was "constantly chasing up my legal team to join who simply replied 'Notify us when the panel arrives, and we will connect'". The practitioner says he started "receiving no response" and when "the panel did arrive" and that he was "forced to withdraw my appeal it was clear there were no more adjournments to be granted".
3. The practitioner explains that he travelled overseas in February 2021 but was unable to return until the government officially allowed flights to resume on 1 November 2021 "whereby I was on the first flight home".
4. The practitioner then explains on his return that "within weeks" he contacted the Council "enquiring on how to go about re-obtaining my license [sic]" and that in reply he received the Facts sheet for appeals. He notes that since then he has been informed he can request an internal review by the Board [in fact the Council] and did so accordingly. I pause to note that the Council's material discloses the practitioner received Facts Sheets about the appeal process and as well information about a review under s 150A of the National Law.
5. The practitioner concludes by noting that the directions in the first appeal, a copy of which he received from the Registrar were never supplied to him by his solicitors.

The medical evidence

1. In support of his application to extend time the practitioner relies on the following reports: 1. Report of Dr Sathish Dayalan, Forensic Psychiatrist dated 9 December 2020. 2. Discharge summary John P Gebrane MD, Director of Psychiatry Service, Clemenceau Medical Services, PO Box 11-2558 Beirut, Lebanon dated 12 August 2021 3. Report of Sam Albassit, Psychologist dated 11 February 2022.

Dr Sathish Dayalan

1. This report, dated 9 December 2020, which is addressed to the practitioner's former lawyers, is expressed to have been prepared at the request of the lawyers for the purpose of "determining his [the practitioner's] eligibility for a treatment order under Section 32 of the Mental Health Forensic Provisions Act 1990". Dr Dayalan notes he is providing the report in his capacity as the practitioner's treating psychiatrist "on 4 November 2020 and 27 November 2020".
2. It is apparent from the documents provided to Dr Dayalan and his report that it was intended to be relied on by the practitioner in criminal proceedings.
3. The history of the practitioner, as recorded by Dr Dayalan, includes a reference to the practitioner having been raised in a "strict and conservative" family, conflict with his father when he commenced using alcohol and stress as a result of a volatile and demanding relationship with his girlfriend. The history reports a confrontation with his employer when the practitioner sought to take leave leading to a charge of "damage/destroy property from a laptop being broken at work place in August 2019".
4. Dr Dayalan also records the practitioner reporting that he had used cocaine in the latter part of 2019 as a form of escape. The doctor also records the practitioner's suspension in March 2020 causing him further stress resulting in loss of employment and loss of structure to his day.
5. The practitioner's relationship with his partner is recorded as ceasing in around June 2020 and that in October 2020 he was assaulted by individuals with whom he had used cocaine. The practitioner reported he had ceased using cocaine after that incident. Three consultations with a psychiatrist are noted as well as four consultations with a psychologist.
6. Dr Dayalan refers to the practitioner's mental state "at the time of the alleged offences". The doctor explains: Mr Mehieddine had started drinking alcohol on a more regular basis after he started working in November 2018. He denied daily use of alcohol and he drank alcohol only in the company of his friends or partner. He had used cocaine from the middle of 2019 and his use of substance increased in the context of stressful life events. He reported to have snorted up to "ten lines" of cocaine, one to three times per week.
7. The expert also refers to the practitioner reporting that he had felt anxious on most days associated with his relationships and career. In dealing with the practitioner's mental state at the date of his report Dr Dayalan explained that the practitioner reported he had stopped using cocaine in October 2020, that he had commenced participation in an online SMART program and had enrolled in a rehabilitation program offered by Odyssey House.
8. Dr Dayalan opined that the practitioner suffered from general anxiety disorder and had a history suggestive of stimulant abuse disorder.

Dr John Gebrane

1. This doctor's report is noted to be from Beirut and is dated 12 August 2021.
2. Dr Gebrane records that he first saw the practitioner on 29 March 2021 when he records that the practitioner said he needed help to get his life back on track.
3. The report notes a diagnosis of Generalised anxiety disorder and Substance use disorder, currently in total remission. The report then provides details of five further consultations between April 2021 and July 2021. Dr Gebrane records at the conclusion of his report: Majd is has had no substance abuse issues for the past months. He is responding well to the mood stabilizer given the above diagnosis therapeutic work and the response to lamotrigine. It would be safe to conclude that the substance abuse that occurred in the past was a result of trying to self-medicate the mood lability. Majd needs to continue seeing psychiatry and supportive therapy and needs to be compliant with treatment. He also needs to return to a normal daily routine including work and hobbies for optimum recovery.

Sam Albassit

1. Mr Albassit is a psychologist. He provided a report dated 11 February 2022. He notes that he first saw the practitioner on 28 November 2019. Mr Albassit records that the practitioner consulted him on his return from Lebanon on 8 December 2021 and that he has since consulted him on three occasions and that "his treatment is in a maintenance stage". He opines that the practitioner has taken "significant steps in his psychiatric and psychological rehabilitation". He records that the practitioner has been abstinent from illicit substances for approximately 12 months.
2. Mr Albassit opines that the practitioner is now of fit and proper character to return to his career as a Physiotherapist.

The Council's submissions and evidence

1. The Council provided written submissions received on 1 April 2022 and annexed to the submissions relevant correspondence.
2. The Council opposes an extension of time being granted to the practitioner, but states if the Tribunal is minded to extend time, that the Council will require a strict timetable with provision for the Council to seek dismissal of the appeal under s 55 of the NCAT Act should the practitioner failed to comply with the time-table.
3. The Council's submissions summarise the procedural orders made in respect of the first appeal.
4. At para 16, the Council notes that a hearing date was not fixed for the first appeal because the appellant had sought a review under s 150A which was appointed on 2 June 2020, but was postponed at the request of the practitioner's solicitors.
5. The Council's correspondence with the practitioner dated 15 December 2020 advising him of a Health Assessment by a psychiatrist is referred to and the Council states that the practitioner indicated he would attend but failed to do so.
6. The submissions refer at, para 18, to a further s 150A hearing being scheduled for 6 April 2021. The submissions annex correspondence from the practitioner who objected to the material to be relied on by the Council for that review. In his email response to the Council the practitioner stated: I refuse to attend the review being held by board members who have created a fictional recount of events with no factual evidence at all throughout the whole bundle and reports provided. It displays the view of the panel to attempt to defame and shame a practitioner with no factual backgrounds/evidence that the practitioner is of danger to public interest, whilst professional and legal reports provided to the board suggest otherwise. The whole bundle provided is thoroughly subjective and hence inadmissible legally and is not acceptable for dependence on terms of the s150, nor the grounds to complete a professional review of the suspension placed by the board on myself.
7. I note that the practitioner does not advise the Council in this email that he is at that time living in Lebanon.
8. The Council's submissions record steps taken in the current appeal proceedings and at para 29 it is submitted: The Respondent submits that in the current proceedings, the Applicant has demonstrated similar, albeit limited at this early stage, delays in compliance with orders imposed by the Tribunal.
9. The submissions then record that, on 11 February 2022, the practitioner requested a review of his suspension under s 150A. It is noted that the practitioner has been requested to attend a health assessment on 19 April 2022 and that a review will occur once the assessment is received.

The length of the delay

1. The period of time is not inconsiderable being a period of approximately 21 months from the date of the Council's decision to suspend the practitioner until the filing of his present appeal.

The reasons for the delay

1. The practitioner's explanation for the delay is essentially twofold. First, he lays the blame for delays in prosecuting his first appeal at the feet of his solicitors. He does not however, provide copies of any correspondence between himself and his solicitors or at a minimum provide copies of invoices for directions hearings for which he asserts he was charged. There is no evidence that the practitioner has made any complaint about his solicitors to a regulatory body.
2. I also note that the practitioner fails to disclose that extensions of time were sought by his lawyers on the basis that the practitioner was to attend a s 150A review and/or that they were awaiting up-dating expert reports.
3. I accept there is some limited support for the practitioner's complaints about his solicitors from the correspondence directed to them from the Council's solicitors, and there is no doubt that they did not appear for the practitioner on 18 December 2020 and did not respond to a telephone call from the Tribunal itself on that day. Accordingly, I do give some weight to the practitioner's allegations that his appeal was not prosecuted diligently by his solicitors.
4. The second substantial reason on which the practitioner relies is his absence from Australia between February 2021 and November 2021 and his inability to return to Australia because of government restrictions prior to that date. The sole evidence which corroborates the practitioner's position that he was in Lebanon is that contained in the medical report of Dr Gebrane whose last appointment with the practitioner was in July 2021.
5. I do not accept that the practitioner's residence in Lebanon prevented him from pursuing an appeal. He was able to correspond with the Council by email to explain why he would not participate in the second proposed s 150A proceedings. He was aware that due to COVID restrictions that proceedings before the Council and this Tribunal were being conducted remotely by audio visual link. He successfully appeared by AVL before this Tribunal on at least two occasions. He could have filed and or prosecuted his appeal in 2021 from Lebanon.

The merits of the appeal

1. There is no doubt that a hearing under s 159 of the National Law is by way of a rehearing and that fresh evidence or evidence in addition to or in substitution for the evidence before the Council may be given.
2. The evidence now sought to be relied on by the practitioner is, for the most part, outdated. Dr Dayalan's report is substantially outdated and was clearly prepared in contemplation of other proceedings, not the appeal. The report of the practitioner's treating psychologist does give some weight to the practitioner's proposed grounds of appeal.
3. On balance, it could not be said that the appeal has no chance of success. But, as pointed out by the Council, even in this further appeal there has been non-compliance by the practitioner with directions and the past history, including correspondence with the Council requiring extensions to time-tables, does not augur well for this matter being prosecuted in a diligent and timely manner.

The extent of prejudice

1. I accept that prima facie refusal of time to appeal appears to be prejudicial to the practitioner. However, any prejudice must be considered in the light of the overall provisions of the National Law.
2. First, the practitioner's suspension cannot be indefinite. The Council's material notes that the complaint made by the doctor at St George Hospital in January 2020 was referred to the Health Care Complaints Commission under s 150D (1). The Health Care Complaints Commission must investigate the complaint under s 150 (4) and, if it considers it appropriate to do so, refer the complaint to the Tribunal for determination. Secondly, the practitioner has the right, which he is currently exercising, to have the decision to review his suspension reconsidered under s 150A.
3. Thus, it is clear that any prejudice to the practitioner in refusing an extension of time to appeal is significantly ameliorated by the fact he can and is currently seeking a review before the Council. At that review, he may obtain and or rely on his own expert evidence to support his assertion that he is now fit to practice either with or without conditions on his registration.
4. It is also likely, given the considerable period of time which has elapsed since the s 150 hearing in March 2020, that the Health Care Complaints Commission will have completed its investigation and will either commence proceedings in the Tribunal or dismiss the complaint. Thus any action by the HCCC will bring the question of the practitioner's registration to a resolution.
5. In considering prejudice to the Council, I have given some weight to the time and costs expended by the Council in its participation in the first appeal and this appeal. I note that the Council did not make any application for costs in respect of the first appeal. I am otherwise unaware of any prejudice to the Council if time is extended to appeal.

Section 150A remedy

1. I have already discussed the remedy available to the practitioner through the review process under s 150A of the National Law. As an appointment has been made for the practitioner to attend a health assessment, and steps are in train for the hearing of this review. I am satisfied that this process provides a timely and cost effective manner for the practitioner's suspension to be reconsidered. This reflects the objectives of the Civil and Administrative Tribunal Act and the provisions of the National Law.

Conclusion

1. While the practitioner's application for an extension of time was not totally lacking in merit, this is not a case where refusal of leave will result in an injustice to the practitioner. He has a practical, cost effective and timely avenue to challenge the continuation of his suspension, and to seek to return to the profession of physiotherapy.

Costs

1. Neither party addressed the issue of costs of this application. Any application for costs should be made in writing within 21 days of this decision.

ORDERS 1. The application to extend time to appeal under s 159 of the Health Practitioner Regulation National Law is refused. 2. Any application for costs is to be made within 21 days of the date of this decision.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 May 2022