Pridgeon v Medical Council of New South Wales

NCAT Occupational|2021-03-02|Before: Dr J

Background

Listed for hearing before this Tribunal is an appeal by Dr William Russell Massingham Pridgeon (the Appellant) against determinations of the Medical Council of New South Wales (the Medical Council) made, firstly, pursuant to the powers set out in s 150 of the Health Practitioner Regulation National Law (NSW) ("the National Law") and in a later determination made following a review sought by the Appellant, pursuant to s 150A of the National Law. The first determination, made by the Medical Council on 29 October 2018, ordered the Appellant's registration, as a medical practitioner, be suspended. The second determination (pursuant to s 150A), published 2 December 2020, affirmed the order for suspension of the Appellant's registration as a medical practitioner.
The circumstances which led to the decision of the Medical Council on 29 October 2018 are, in our view, extraordinary. The Appellant was, until 29 October 2018, a GP practicing in Grafton, a large country town in northern NSW. The action taken by the Medical Council against the Appellant had no foundation in a complaint made by a patient or another medical practitioner about any function of the Appellant in the treatment of his patients. The Medical Council based its decision upon "public interest" grounds. The preempting event for that action was the arrest of the Appellant by the Australian Federal Police (AFP) in a highly publicized manner.

The appeals

The Appellant filed two appeals. The documents which were filed were marked as exhibits in this hearing. Exhibit A1 is an External Appeal against the decision of the Medical Council dated 22 October 2018. The document was filed on 11 February 2021. The Appellant is out of time to file the appeal and therefore requires leave to be able to proceed with that appeal. (See s 161 of the National Law which sets a time limit of 28 days after the person appealing the decision made under s 150 was given notice of the decision.)
The second appeal was filed against the decision of the Medical Council made pursuant to s 150A of the National Law on 19 October 2020 but published on 2 December 2020. There is no complaint by the Medical Council that the filing of the appeal was late. In fact the Medical Council's case is that the appeal was filed on the last day of the allowable time under the National Law.
When the Appellant sought to tender his evidence in the folder marked as exhibit A3 counsel for the Medical Council objected to most of the documents. The objection was based mainly on the ground of relevance. There were other grounds, however during the hearing the Medical Council withdrew its objection to the tender of the documents in exhibit A3 and said it would address the Tribunal on the weight to be applied to same during submissions at the conclusion of the hearing.
During the hearing the Appellant was self-represented. As a consequence, some of the documents he sought to be tendered were marked for identification because the documents contained only submissions and not evidence. Those documents were read by the Tribunal and addressed by the Appellant in oral submissions. The Tribunal received and marked the following documents.
The Medical Council tendered the following documents:

Exhibit R1 - folder of documents catalogued and marked as evidence sought to be relied upon by the Medical Council;
Exhibit R2 - email from the Health Care Complaints Commission (HCCC) to Jonathan Giles dated 15 February 2021 advising of information received from the AFP regarding the charges against the Appellant to go to trial following the committal hearing;
Exhibit R3 - copy of the Appellant's current bail conditions (as at 2 March 2021). The Undertaking as to Bail following Committal for Trial for Sentence states that the Appellant is committed to face trial on two charges of "Conspire to Defeat Justice" (Crimes Act, s 42) and three charges of "Child Stealing" (Queensland Criminal Code, s 363(1)(b)).

The Appellant tendered the following documents which were marked:

Exhibit A1 - External Appeal against the s 150 decision of 29 October 2018 filed on 11 February 2021;
Exhibit A2 - General Application filed by the Appellant seeking the decision of the Medical Council made on 29 October 2018 be "lifted, terminated and/or declared void". He also sought a costs order;
Exhibit A3 - folder containing supporting evidence relied upon by the Appellant;
Exhibit A4 - copy of an article by Grant Wyeth titled "How the Family Court's Purpose to Protect Children Became Inverted";
A number of written submissions marked as MFI's (see next paragraph) so as to identify the documents. These documents are not evidence, rather they contain submissions.

The following documents were marked for identification:

MFI1 - Submissions by the Medical Council dated 29 January 2021; Supplementary Submissions of the Medical Council dated 18 February 2021; Further Supplementary Submissions of the Medical Council dated 26 February 2021; List of Authorities provided by the Medical Council on 26 February 2021.
MFI2 - copies of the Orders and Directions made by the Tribunal in this matter on 18 December 2020, 12 February 2021, 19 February 2021 and 22 February 2021.
MFI3 - Outline of Submission provided by the Appellant and to be addressed orally by him.
MFI4 - Submission by the Appellant provided 2 March 2021.
MFI5 - Appellant's Response to Submissions of the Medical Council, cross-examination and a declaration sought by the Appellant.
MFI6 - Appellant's Response/Submissions to the Medical Council's application for suspension.

The Appellant's documentary evidence

The Appellant provided his documentary evidence principally within exhibit A3. In that exhibit the "Table of Contents" was brief and set out the following:

"Public Interest" - pp 1 to 443
"Evidence of Character Assassination" - pp 1 to 70
"Children's rights vs the Reality of Pedophilia" - pp 1 to 47
"Obeying the Law to protect children _Criminal Case led by Dirty Hands" - pp 1 to 43
Medical Council "Correspondence & Decision_150 & 150A" - pp 1 to 220

The "Public Interest" section consists of letters of support written by patients and members of the public to the Appellant following his arrest; copies of newspaper clippings about the Appellant and the action he took in relation to the subject twin children; a petition of support for the Appellant by his patients; a social medial petition to Attorney-General Porter to dismiss the charges against the Appellant, claiming 12,856 signatures and/or supporting posts; and a social media survey conducted in January 2021 which showed 396 answers YES to the question: "Would you support Dr Russell Pridgeon as a safe medical practitioner who should be back practising medicine, especially as he has provided his services in Grafton since 2001? I'm sure many miss him as their trusted family doctor. Please share and let us know our support." The survey was conducted under the banner "Grafton/Clarence Valley Community Group".
The evidence set out under the heading of "Character Assassination" consists of newspaper clippings and webpage publicity for the AFP. Most of the information set out in this section of exhibit A3 is critical of the Appellant and focusses on the arrest of the Appellant and subsequent court appearances.
The third section of the documents in exhibit A3 addresses the title "Children's rights v the Reality of Pedophilia". It includes a copy of the UN Convention on the Rights of the Child. There are also copies of publications addressing the rise of and presentation of pedophilia in Australia.
The fourth section of exhibit A3 is titled "Obeying the Law to protect children. Criminal Case led by Dirty Hands". It includes copies of extracted sections of the Commonwealth Family Law Act and Queensland Criminal Code, a copy of the Bar Association of Queensland's Barristers' Conduct Rules; and copies of email correspondence with the Commonwealth DPP and others in relation to the criminal proceedings against the Appellant.
The fifth and last section of exhibit A3 consists of copies of correspondence between the Appellant and the NSW Ministry of Health; part of the material provided by the Medical Council for the 19 October 2020 s 150A hearing; a copy of the submissions made by the Appellant dated 15 January 2020 in support of his s 150A review application; a copy of the Appellant's Bail Undertakings dated 9 October 2019; a letter from the Medical Council advising that on 13 February 2020 the delegates resolved to affirm the original s 150 decision to suspend the Appellant's registration on 29 October 2018; a Statement of Fact created by the AFP and consisting of 103 pages; a copy of the decision of the Medical Council dated 23 November 2018 in relation to s 150 of the National Law; a copy of the documents and submissions provided by the Appellant for the proceeding under s 150A of the National Law, conducted on 19 October 2020; a copy of an email which advises the Appellant that the Commonwealth charges he is to face are now limited to two charges of conspiracy to defeat justice contrary to s 42(1) of the Crimes Act; a copy of submissions the Appellant has made in relation to the criminal proceeding against him; a copy of the Appellant's CV; and a copy of a Medical Council form requesting information from the Appellant which he has partially completed.

The Medical Council's documentary evidence

The Medical Council provided its evidence in a folder marked by us as exhibit R1. That exhibit includes a copy of the reasons provided for the s 150A decision made on 19 October 2020 (published 2 December 2020). It includes all the material which was before the Medical Council panel for the s 150A hearing and the written reasons for the s 150 decision made on 29 October 2018.

The Appellant's oral evidence

In the oral evidence, which we record hereafter, we have deliberately not used persons names where those names may identify children who were and still are the subject of Family Court orders and are directly the subject of criminal proceedings faced by the Appellant and others, arising from their alleged illegal removal from the care of their father by their mother and others.
The Appellant gave oral evidence. Before doing so we explained to him that he did not have to answer any questions the answer to which might tend to incriminate him. We explained that when he was being cross-examined, if he was asked a question which required an answer which he considered may tend to incriminate him, he could ask the Tribunal to issue a certificate pursuant to s 128 of the Evidence Act 1995 (NSW). We explained to him what the function of that certificate would be.
We explained to the Appellant that he could not be provided with a certificate under s 128 of the Evidence Act in relation to his evidence in chief. Ultimately, when giving oral evidence and whilst being cross-examined, the appellant did ask for a certificate under s 128, which was granted.
We should make clear, before setting out those parts of the Appellant's evidence which we considered relevant and capable of weight in the determination we have to make, that our impression of the Appellant was that he was entirely unrepentant for the role he played in what he saw as protecting the subject children from further harm in the form of horrific sexual abuse. He was also supremely confident that the planned prosecutions of him would fail as he was doing nothing more than upholding the law and the expectations of common decent citizens of this country. Ultimately, his assertions of lawful action will be tested in the criminal court in Queensland where he has been ordered to stand trial, although he has not been given any indication of when that may occur.
The Appellant proposed to address both appeals with the evidence he had provided in document form and which he proposed to address in his oral evidence. He submitted that the two appeals were intrinsically linked because the Medical Council in the s 150A determination stated that it affirmed the decision made in the earlier hearing in 2018. He submitted that no prejudice flowed to the Medical Council by his proceeding in that manner.
The Appellant said that since his arrest and initial charge, the charges against him have changed. He said the stalking charges were dropped after a year. He also had a charge of "proceeds of crime" dropped. He said he faced a new charge of three counts of receiving or harbouring a stolen child (Queensland Criminal Code, s 363(1)(b)). He had been informed that no person involved in the care of his former step-child had been charged with stealing the child.
The Appellant was cross-examined by counsel for the Medical Council. The following evidence we considered relevant and important to the determination we are required to make.
Whilst practicing in Grafton the Appellant had a special interest in pain management and in recent days he has retrained in trauma therapy.
The Appellant has had no paid employment/work since he was suspended in 2018. He has supported himself from his savings, which are now depleted, and also the support received from others. He now receives the aged pension. He sold his yacht to pay legal fees. He is representing himself in the criminal proceedings he faces.
The Appellant has bail conditions to adhere to which include that he reside in Grafton and not enter Queensland except for court appearances. He is required to report to Police four days per week. He had previously been fitted with a tracking device, which has since been removed following a bail condition variation.
The Appellant denied he had posted any information online. He was asked specifically about items which he included in his exhibit A3 and he denied he had been responsible for creating those documents online.
The Appellant said he had never been charged with breaching his bail. He produced the most recent copy of his bail conditions.
In relation to the twin girls, whom he acknowledged he had helped shelter, the Appellant agreed he had told the Medical Council he had sheltered them during his hearing before the delegates (s 150A hearing). He said, further, that he had admitted that action well before the hearing. He said "I am an honest man and I protected those children from rape."
It was conceded by the Appellant that at the time he first helped the mother and her children he knew of a court order for the children to live with their father. He was aware that the mother took the children from their father in 2014. He said: "I knew the mother had rescued the children. I drove to Queensland and collected the children and the mother and drove them to a place where she met others. I picked them up in Charters Towers and I delivered them near the border with the Northern Territory but not in the Northern Territory. I picked them up at 2pm and drove for six hours and then a full day and some more." He said he had collected the mother and children at a time which was "about 14 days after she fled with the children." The Appellant said he had used a hire car he hired in Grafton to transport the mother and her children.
After delivering the children to a place near the Northern Territory border the Appellant did not see them again for about four to six weeks. He next saw them near Grafton. He had arranged the transport for the mother and children and he paid for petrol for the trip. He thereafter assisted them financially. He said: "The whole of the time they were with me I provided all their needs. They were with me for one year and then she was gone. She was in a safe house near Grafton. I would visit once or twice a week."
The Appellant said that during the twelve-month period he was visiting the mother and children he provided medicine for the mother, if she needed it. He was usually able to provide samples he had been given in his medical practice. He said he gave her two scripts during the twelve-month period. The mother had someone else fill the script for her.
The Appellant said he did not prescribe medicine for the children. He said: "The children had bleeding from the bottom. I did not examine the twins. I gave samples to the mother for the children. They had genital herpes. I gave medicine for them from the sample cupboard and over-the-counter chemist supplies."
The Appellant was asked how he first heard about the mother and her circumstances. The Appellant said: "After Professor Freda Briggs assisted me to understand abuse of my wife's child by his father and freely explained aspects of abuse, she asked me if I could, as a doctor, offer moral support to other persons in our position. She gave me the name of the mother of the twins." The Appellant said that occurred in 2013.
The Appellant said that the mother contacted him by email (he thought). He said he no longer has access to his emails from that time. He believed he had a copy of the email. He said he thought he had offered her financial support to help pay legal fees. He was aware at that time that there were family law proceedings on foot. The Appellant said: "Freda Briggs asked me to offer support - psychological support. When one finds out that child abuse is being… The police do not help you. Freda provided us with knowledge and information about the dysfunction of the Family Court".
At that point in the cross-examination the Appellant asked the Tribunal to grant him a certificate under s 128 of the Evidence Act as he refused to answer the question posed by the Medical Council in the following terms: "Did [the mother] ask you to help take the children away from their father?"
A s 128 certificate was granted to the Appellant in relation to any evidence he may give touching upon his role/actions in relation to the removal and alleged abduction of the twin girls by their mother in about 2014 and any role he thereafter played in the hiding, harbouring or support of either of those children, their mother and/or any other accomplice involved in those alleged actions, together with any evidence he may give which touches upon any criminal act he may have undertaken in relation to another male child born in about 2010 either alone or in the company of another person (see below for details).
The Appellant was asked about his involvement with another lady (the grandmother of a young boy) who it is alleged, by others, was involved in and did seek to either hide that child or keep him from a person charged with his care. The Appellant said he knew the lady, who had been introduced to him by his landlady in Grafton. The Appellant said he had been informed about the grandmother and the child by a friend of his from Zimbabwe who had "been through the war" with the Appellant. That friend, known as Patrick, told the Appellant the boy was being abused. Patrick had asked the Appellant to transport the grandmother and the child to Taree, NSW which he did. The grandmother and the boy spent one night in Grafton with the Appellant. (They apparently stayed in the same residence as that in which the Appellant was a lodger).
The Appellant said he had provided support for the grandmother and the child, in the form of food, on one occasion. He professed there was no illegal act which could have been alleged on that occasion, as the grandmother had at that time lawful custody of the child. He understood she had travelled from Townsville.
The Appellant said that Patrick had told him the child was being abused by his father. Patrick had borrowed the Appellant's car to drive to Townsville. The Appellant said he had asked Patrick to take the dog which belonged to the mother of the twins back to Townsville. The Appellant could not remember if Patrick had told him he had brought the grandmother and the boy back from Townsville with him on that trip.
The Appellant agreed he had driven the grandmother to Taree.
The Appellant was asked if he was aware at the time that Police were looking for the grandmother and the child. He said they were not at the time. He was not aware that any recovery order had been made for the boy.
The Appellant said that when the twin girls were at Grafton they were seven years of age and they stayed there for about a year. In that time the Appellant provided sample medication for the twins who, he said, had sustained anal tears. He said: "they had anal tears from anal rapes. They bled from their [anuses] for 2 to 4 weeks". He provided soothing ointments. He did not examine the girls because they were terrified of him. "An intimate examination of a child should be done under anaesthetic." The Appellant said it had taken the children six months of seeing him weekly before they ceased regarding him as a horrible person. He said he regarded the history of painful genital sores suggested almost certainly they had genital herpes.
After the twins and their mother left Grafton the only support he had provided to them was in the form of presents for the twins. That was in late 2017. The mother had phoned the Appellant and asked to see him. He saw the mother and the twins in Taree.
The Appellant was asked about his former wife. He said they were married in about 2005 and separated about five years ago. His wife had a child by a former relationship at the time they commenced their relationship. They met when she brought her son to the surgery for treatment. His wife had never been a patient of his.
The Appellant agreed he had filed his appeal in relation to the s 150A decision exactly 28 days after the decision was made. He said he became aware it had to be done within 28 days of the decision however he could not recall when he became aware of that requirement.
In relation to the appeal he was pursuing against the s 150 decision, he said he was unable to lodge an appeal in time because he applied to MIPS, his insurer, to support his s 150 appeal, however it had declined on the basis that it was not a medical matter. He said the defamation proceeding brought against him had drained him of the funds to pay for legal representation. He was also in need of funds to engage lawyers to appear for him in the criminal case.
The Appellant said that he was now able to file his own appeal having undertaken the study of law. He said he had been attending Law School.
When it was put to him that he thought the father of the twin girls had been given custody of them by the Family Court, and that that was the wrong decision to make, the Appellant agreed. He also agreed he did not trust the Family Court.
It was put to the Appellant that he does not trust Police to investigate child abuse, to which he said: "I do trust the majority of police officers, however, there are exceptions".
It was put that if he was informed of child abuse he would not report it. The Appellant said: "I must report it and I would".
The Appellant agreed he did not make a mandatory report in relation to the twin girls when he was made aware of an allegation that they had been anally raped, however, he said he did make a report at a later time.
It was put that the Appellant does not trust child protection agencies. He said he didn't in the past. He said there were volumes of material which had been sent to him when he established the Australian Antipaedophile Party to run for a seat in Federal Parliament. He said he would contact child protection agencies were it necessary to make a report of child abuse. He said: "The twins were an exceptional case. The police told the Family Court the children had not been abused." The Appellant said he was certain he could illustrate where the children had clearly said in a recorded interview with police officers that they had been assaulted sexually by their father.
It was put that the Appellant believes there is a conspiracy to protect child abusers. The Appellant said: "I have never said that. I saw the Family Court and the Federal Circuit Court and police officers act to protect 'the perpetrator'. The mother lost all rights to the children."
It was put that the Appellant was aware he was breaking the law when he helped the mother of the twins. The Appellant said: "Section 286 makes clear I did not break the law. She did not break the law. She breached the orders with just cause. I did not know of the actual order. I knew of the mother from Freda Briggs who said that the mother had lost her children in the Federal Circuit Court".
The Appellant was asked: "If you became aware of other children with similar circumstances, would you help them?" The Appellant responded: "I am not in a position to do that so the answer is no. I assisted two children. I did not run a child stealing syndicate. I was the founder of the anti-pedophile party. It is absolute nonsense that I assisted outside the law with the grandmother and the boy. At the time I helped her she had lawful custody of the child."
The Tribunal members asked the Appellant: "How could we be confident you would not help others like the mother of the twin girls?" The Appellant said: "I have only ever helped one family. I tried to get help for her by other means. I tried with police. I tried to have the father's computer hacked to see what he had recorded on his computer. Freda also wrote to the Attorney-General seeking help. No one has sought me out to help them since that time." The Tribunal members asked: "Would you help again?" The appellant said: "No, I would not do that. I would not want to help them because I would put them in danger."
The Tribunal members asked if the Appellant was caring for his own health, whether he was he seeing his own GP and possibly seeking the services of a psychologist. The Appellant said he was suffering from trauma which "had not finished yet". He said "I have not seen a psychologist or psychiatrist or a GP about trauma therapy. I have been subjected to attacks by the local newspaper. People think I am a child stealer. The implication is that I am some type of pedophile. I have become a recluse. I do have a GP and I have regular health checks."
The Tribunal asked if the Appellant thought he was medically fit to practice. The Appellant said: "I have been under pressure for fifteen years. I am a competent doctor. I comprehensively keep records for patients. I attend at 6:30am and study results. I write out referrals. I ring patients".
Again, asked about his risk of mental ill health, the Appellant said: "No I don't think so. I have studied areas of medicine I was not exposed to in Zimbabwe. I will continue to fight for those children in the Courts. I will continue to seek to expose this abuse. It is my duty and my destiny to deal with this matter."
The Tribunal members asked whether the appellant still has contact with anyone in the Australian Antipaedophile Party. The Appellant said that the party was defunct following the double dissolution election. "I was not permitted to contact many people."
The Appellant called for documents in the possession of the Medical Council which are communications between the Medical Council and the AFP. In relation to that call the Medical Council firstly submitted that such communications, if they existed, were protected by legislation. However, in order to assist the Appellant and ease the concerns he clearly held, counsel for the Medical Council advised the Tribunal and the Appellant that there were no documents which could be produced under the call even if the communication was not protected.
The Appellant also sought from the Tribunal a declaration that "It is never wrong to protect children". He also sought a declaration that the Tribunal was satisfied that the Appellant had seen ample evidence to believe the twin children he was protecting had been abused by their father. We will address these requests later in these reasons.

The nature of the appeal

The Appellant is a self-represented litigant. Although he said he has been studying law, the provisions of the legislation which prescribe the role of the Tribunal, its powers and its broader jurisdiction are complex. As such the Tribunal should, in our view, extend leniency to the Appellant in his attempt to comply with the requirements of the National Law and the Civil and Administrative Tribunal Act 2013 (NSW), so that he can have his appeal against the orders made by the Medical Council in both the s 150 determination made 29 October 2018 and the s 150A determination made 2 December 2020 heard and determined.
The Appellant filed his appeal against the s 150A determination within time. That determination consisted of determining whether there had been a change in the circumstances of the Appellant which would warrant the Medical Council revisiting the determination made in 2018 suspending his registration.
Section 150A(2) provides that on receiving an application for review, a Council may refuse to reconsider its decision if of the opinion that the application is frivolous or vexatious (subsection 2(a)) but must otherwise reconsider its decision, and in so doing consider any new evidence or material submitted by the practitioner that the Council reasonably considers is relevant (subsection 2(b)).
Subsections (3) and (4) of s 150A are as follows: 150A Review of certain decisions [NSW] … (3) Following its reconsideration of a decision, a Council may - (a) affirm or vary the decision; or (b) set it aside and take any action the Council has the power to take under section 150. (4) A Council may vary or set aside a decision only if the Council is satisfied there has been a change in the registered health practitioner's or student's circumstances that justifies the variation or setting aside of the decision.
The Appellant has sought to appeal the decision of the Medical Council made 2 December 2020 pursuant to s 159(1)(a) of the National Law. That section provides that a person may appeal to the Tribunal against the decision of a Council for a health profession to impose or refuse to set aside a suspension.
Section 159(3) provides: 159 Right of appeal [NSW] ... (3) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given.
Although the appeal against the s 150 decision of the Medical Council made on 29 October 2018 was filed a long way out of time, it is conceded by the Medical Council, in this hearing, that the appeal against the s 150A decision necessarily involves a consideration of the original decision.
In the decision of 2 December 2020, the Medical Council reviewed the decision of the Council made 29 October 2018 and said: "The October Panel noted that Dr Pridgeon was entitled to defend the charges and is innocent until proven guilty. Nevertheless, the Panel's duty was to assess the charges made against Dr Pridgeon in light of the public safety and public interests tests as set out in the National Law. The Panel determined that given the seriousness of the charges, it was in the public interest to suspend Dr Pridgeon's registration. Additionally, the Panel decided that it was also necessary to suspend Dr Pridgeon's registration to protect the public's health and safety, given that Dr Pridgeon may consider acting in similar ways to the alleged behavior which gave rise to the charges against him."
The Medical Council, in its reasons published on 2 December 2020, referred to the requirement of s 150(1) which is as follows: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest - (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or …
The Medical Council noted that "action taken under s 150 is intended to be interim and may be reviewed under section 150A."
The Appellant clearly seeks to set aside the suspension order of the Medical Council and to have that decision reviewed as either a merits ground appeal or an appeal on a point of law, whichever allows him to put his argument and which allows the Tribunal to consider that argument to the end of granting his appeal, if that be the proper outcome.
In its submissions dated 29 January 2021, the Medical Council says as follows: "7. The Respondent does not oppose leave being granted to permit Dr Pridgeon to amend his application so that the orders he seeks reflect the powers of the Tribunal on appeal in s 159C of the National Law. Nor does it oppose leave being granted to permit him to amend the application so that it is bought [sic] under s 159B. 8. However, it does oppose leave being granted for Dr Pridgeon to bring the appeal under both s 159B and s 159(1)(a), as none of his grounds of appeal relate to a merits review of the s 150A Decision. The Respondent also opposes any application for leave to amend the application so that he can also appeal the s 150 Decision out of time. 9. Regardless of any amendments that may be permitted, the Respondent submits that the Tribunal should dismiss Dr Pridgeon's appeal and affirm the s 150A Decision."
On 22 February 2021 the Tribunal made a Notation in the following terms: "It is noted that the Tribunal is to hear and determine the appeals under both s.150 and 150A of the Health Practitioner Regulation National Law on 1 and 2 March 2021."
By its further submissions dated 26 February 2021, the Medical Council said as follows: "8. The Council confirms that it objects to Dr Pridgeon's application for leave to appeal the s 150 Decision out-of-time for reasons articulated below. The Council further submits that the Tribunal does not have jurisdiction to hear the appeal against the s 150 Decision for the reasons set out in its submissions dated 18 February 2021. Therefore, this appeal must be dismissed. 9. The Council also maintains that there are some jurisdictional issues with Dr Pridgeon's appeal against the s 150A Decision i.e. it is not clear if he is seeking a merits review of the decision under s 159 of the National Law, or if he is appealing on a point of law under s 159B. 10. However, so that the Tribunal can focus on the real issues in the proceedings, the Council confirms that it does not oppose leave being granted to permit Dr Pridgeon to amend his application so that the appeal against the s 150A Decision can be brought under both s159(1)(a) and s 159B. Nor does it oppose leave being granted to permit Dr Pridgeon to amend his application so that the outcome he is seeking reflects the powers of the Tribunal set out in s 159C."
The approach set out by the Medical Council in the above quoted portions of its submissions is, in our view, proper and appropriate.
To the extent that it be necessary to do so we do grant leave to the Appellant to proceed with his appeal against the s 150A decision which affects him, under both ss 159(1)(a) and 159B of the National Law, and to seek the Tribunal exercise the power identified by him, pursuant to s 159C, so as to set aside the decision made under s 150A.
Given the provisions of s 150A, which we will address later in these reasons, we will as part of the hearing hear any challenge to the original s 150 decision made by the Medical Council which affects the Appellant.
When we gather together all of the evidence and submissions made by the Appellant in this hearing, we conclude the argument put by him as to why the suspension of his registration, imposed by the Medical Council, should be set aside is as follows: 1. He has not broken any laws in the action he is said to have taken in assisting the twin girls and their mother, in relation to which he is now facing charges both under the Queensland Criminal Code and the Commonwealth Crimes Act. The trial to determine those charges has not yet been given a date for hearing. On the contrary, he was complying with his obligations under the law to protect children from abuse. 2. At the very least he was fulfilling a moral obligation to protect children from harm. His case is that every citizen has this same obligation as members of a civilized and advanced community. He had supporting evidence to verify the children's and the mother's assertions that the children had been sexually abused. He was not simply relying upon the mothers' word. 3. The weight of public opinion is behind the action he took to protect the children. 4. Albeit that he denies assisting the grandmother and her grandson to breach any court orders or laws, if he has, as a matter of law, assisted them, it was not at a time when the grandmother was in breach of any court orders and the child was lawfully in her care at the time. 5. If he is regarded as innocent until proven guilty then he ought to be able to continue to work as a medical practitioner until his trial is concluded at the very least. 6. His bail conditions do not prevent him from working in any capacity. 7. He is not a danger to the public. 8. He has no intention of again assisting any people seeking to breach Family Court orders or any laws. 9. If he were to again seek to assist a person in a manner which was illegal, he would be in breach of his bail conditions. 10. His bail conditions are very onerous in respect of his obligations to report to Police and restrictions upon where he can travel and who he can associate with.
In his evidence the Appellant has relied upon the provisions of s 286 of the Queensland Criminal Code. That section provides as follows: 286 Duty of person who has care of child (1) It is the duty of every person who has care of a child under 16 years to - (a) provide the necessaries of life for the child; and (b) take the precautions that are reasonable in all the circumstances to avoid danger to the child's life, health or safety; and (c) take the action that is reasonable in all the circumstances to remove the child from any such danger; and he or she is held to have caused any consequences that result to the life and health of the child because of any omission to perform that duty, whether the child is helpless or not. (2) In this section - "person who has care of a child" includes a parent, foster parent, step parent, guardian or other adult in charge of the child, whether or not the person has lawful custody of the child.
Perhaps unusually we have decided to consider the submissions of the Medical Council before the submissions of the Appellant. We do so for a variety of reasons, which include that if this matter is to be heard afresh the applicant for the orders would be the Medical Council. Further, it is helpful for us to consider those submissions, as there is set out therein, references to legislation and case law which have been provided to assist the Tribunal and support the arguments of the Medical Council.

The Medical Council's submissions

The Medical Council provided its submissions in three parts. The first dated 29 January 2021, the next dated 18 February 2021 and the third dated 26 February 2021. It also responded to the oral submissions of the Appellant.
In the submissions dated 29 January 2021, the Medical Council provided background to the action taken by the Medical Council on 29 October 2018. That background is uncontroversial in terms of the following facts:

The Appellant was arrested on 18 October 2018.
On 19 October 2018, the Appellant was granted bail.
The Appellant was charged, at the time of his arrest, with two counts of conspiracy to defeat justice (s 42(1) Crimes Act); deal with the proceeds of crime (s 400.4(1)(a) of the Criminal Code Act 1995 (Cth)) (the Commonwealth Criminal Code) (since withdrawn); two counts of child stealing (s 363(1) of the Queensland Criminal Code (one more count now added); and unlawful stalking (s 359E(1) of the Queensland Criminal Code (since withdrawn).

The Medical Council lawyers were faced with a difficult and moving task in providing their submissions. That task changed as the hearing date approached and so it was necessary to provide supplementary submissions.
In the first set of submissions dated 29 January 2021 the Medical Council addressed the appeal against the s 150A decision made/published by the Medical Council on 2 December 2020. The Medical Council addressed the grounds of appeal which had been set out in the appeal against that decision. Those grounds were primarily grounds which challenged the decision on a point of law.
The Medical Council addressed the grounds of appeal based upon alleged errors of law and then turned to consider the matter as a merits appeal.
The Medical Council submitted that if the Tribunal was to treat the matter as a merits appeal the Tribunal would reach the same determination as the Medical Council in the s 150A hearing, and that the evidence established that insufficient change in circumstances had occurred to warrant the Medical Council setting aside or further reviewing the suspension order which had been made in 2018. (See the decision in Ghosh v Medical Council of New South Wales [2020] NSWCA 122 on the necessary process to be undertaken in an appeal/application made to the Medical Council under s 150A of the National Law.)
The Medical Council submits that it is common ground that the Appellant is still facing two charges of conspiracy to defeat justice, contrary to s 42(1) of the Crimes Act, which are serious criminal offences attracting a maximum penalty of 10 years imprisonment.
The Medical Council set out the facts which had been provided by the Crown in relation to the two charges set out above. With the exception that the Appellant states the facts do not or cannot amount to a conviction, he has not denied those facts.
The Medical Council in the reasons for the s 150 decision stated that the Appellant "has admitted to the sheltering, transporting and protection of children in contravention of court orders; depriving persons of the lawful custody of their children; and 'breaking the law'". These words were the Medical Council's summation of the words provided by the Appellant in his correspondence with it. The words cannot be taken to be findings of law. In any event we note in the hearing before us the Appellant has claimed he is innocent of the charges which he now faces. He is confident he has not broken any law and intends to defend the charges.
What is clear from the decision of the Medical Council made on 29 October 2018 is that the circumstance of the Appellant having been arrested and charged with serious criminal offences was a very recent event at that time and the Medical Council had to address the facts which were known then.
The Medical Council sets out in its submissions the provisions of s 150A. 150A Review of certain decisions [NSW] (1) A registered health practitioner or student may apply to a Council for the review of a decision of the Council under section 150 to - (a) suspend the practitioner's or student's registration; or (b) impose conditions on the practitioner's or student's registration or alter conditions imposed on the practitioner's or student's registration. (2) On receiving an application for review, a Council - (a) may refuse to reconsider its decision if, in the Council's opinion, the application is frivolous or vexatious; or (b) must otherwise reconsider its decision, and in so doing must consider any new evidence or material submitted by the practitioner or student that the Council reasonably considers is relevant. (3) Following its reconsideration of a decision, a Council may - (a) affirm or vary the decision; or (b) set it aside and take any action the Council has the power to take under section 150. (4) A Council may vary or set aside a decision only if the Council is satisfied there has been a change in the registered health practitioner's or student's circumstances that justifies the variation or setting aside of the decision.
The Medical Council concedes that the "frivolous or vexatious" basis for refusing to reconsider its decision (s 150A(2)(a)) is not relevant to this appeal. The Medical Council said: "Therefore, it was compelled to reconsider the s.150 Decision pursuant to s. 150A(2)(b). This required it to consider any new evidence or material which Dr Pridgeon submitted that the Council reasonably considered relevant."
The Medical Council identified in its decision on the s 150A application by the Appellant what it said was required to fulfill its obligations pursuant to s 150A. A question for us, which arises from that decision, is whether the Medical Council did "reconsider its decision"? In one sense, that falls away because what we will consider now is all of the evidence which is currently available which might reasonably inform our decision. Ultimately, we will arrive at our own determination applying s 150, so as to make an order which is the same as that made by the Medical Council or otherwise. As a consequence, the appeals of the Appellant will either be upheld or dismissed. The orders of the Medical Council published on 2 December 2020 will be either affirmed or set aside.

Consideration of principles

In Ghosh v Medical Council of New South Wales [2020] NSWCA 122 (Ghosh) the Court of Appeal considered what was required in s 150 and s 150A hearings. In his judgment Brereton JA set out the statutory pathway through both a s 150 hearing and an application under s 150A for review of an earlier s 150 determination. At [5] of his judgment Brereton JA said: "The purely protective character of the s 150(1) function, and the interim nature of action taken under it, has been explained in Kirby v Dental Council of New South Wales [2020] NSWCA 99, where it was held that the touchstone for exercise of the Council's power under s 150(1) to make an order suspending the practitioner's registration or imposing conditions on it is that the Council be satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons or that the action is otherwise in the public interest."
Brereton JA then, at [6], considered the s 150A review. We include a quote from Brereton JA's reasons (including the references which were footnoted in his decision). He said: "Section 150A review [6] Under s 150A, a practitioner may apply for a review of a decision under s 150 [s 150A(1)], and unless the Council considers that the application for review is frivolous or vexatious, it must reconsider its decision and, in doing so, consider any new material or evidence submitted by the practitioner that the Council reasonably considers to be relevant [s. 150A(2)]. Following any reconsideration, the Council may affirm or vary its original decision, or set it aside and take any action that the Council has power to take under s 150 [s 150A(3)], but only if satisfied there has been a change in the practitioner's circumstances that justifies the variation or setting aside of the decision [s 150A(4)]."
Brereton JA then looked to s 159 of the National Law, which establishes a right of appeal on the merits to NCAT by way of a hearing de novo. He set out the powers of NCAT on an appeal as defined by s 159C of the National Law. He then said at [9]: "On such an appeal NCAT is required to exercise afresh the administrative discretion in s 150, as if it were the Council, upon the evidence (including any additional evidence that was not before the Council) before it, and having regard to the considerations relevant to the exercise of the discretion conferred by s 150 [Hanna v Medical Council of NSW [2017] NSWCATOD 27 at [17]-[18]; Crickitt v Medical Council of New South Wales (No 2) [2015] NSWCATOD 115; Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 at [123]]. As was explained by NCAT (constituted by a tribunal in which Wright J presided) in Karimi v Medical Council of New South Wales[[2017] NSWCATOD 180 at [123]], the approach required of NCAT on an appeal of this kind is as follows: [123] ... The applicable principles derived from the relevant provisions of the National Law, as discussed in Crickitt and Hanna, may be summarised as follows: (1) Nature of the appeal The Tribunal is to conduct the appeal by way of a new hearing and may consider evidence that was not before the Council as the original decision-maker. The Tribunal's task is not to review the decision of the Council and determine whether its decision was reasonably open in the circumstances. The Tribunal is called on to exercise afresh the administrative discretion in s 150(1) having regard to the material before it. (s 159(3) of the National Law and Hanna at [17]-[18]). (2) Protective jurisdiction The jurisdiction being exercised is directed to the immediate action that may need to be taken in order to protect the health or safety of any person or persons or the public interest. (ss 3A and 150 of the National Law, Hanna at [17] and Crickitt at [47]) (3) Consequences of suspension The exercise of the power to suspend can be described as "draconian" and will have grave consequences for a practitioner, affecting not only the ability to earn a livelihood, but also the continuing ability to use his or her professional skills. Nevertheless, this is but a consequence of any appropriate exercise of discretion, and not a determining factor. (Crickitt at [56]; see also X v NSW Medical Board (1993) 32 ALD 330 and Lindsay v NSW Medical Board [2008] NSWSC 40 at [80], which considered s 66 of Medical Practice Act 1992 (NSW), being the predecessor to s 150 of the National Law) (4) No need for a detailed enquiry The existence of the power, and the fact that it may be exercised without any formal complaint having been made against the practitioner, and without any disciplinary proceedings having been commenced, is indicative that the Tribunal need not embark upon a detailed enquiry, and may base its reasons on material which would not conventionally be considered as evidence in a strict sense as would be admissible in a court. (Crickitt at [56]; see also Lindsay at [76]) (5) Not required to make any conclusive findings Because the circumstances in which the power under s 150 is to be exercised include that there may be a continuing dispute as to precisely what occurred and why and that investigations into complaints concerning the practitioner by bodies such as the HCCC may not have been completed or even commenced, the Tribunal is not required to make conclusive findings of fact based on the material before it. (s 150 of the National Law and Hanna at [19]) (6) Pre-conditions on power to suspend The Tribunal must assess whether 'it is appropriate for the protection of the health and safety of any person or persons' or 'is otherwise in the public interest' to make such orders as are permitted by s 159C. The Tribunal's task is in essence to consider whether, on the material before it, allowing the practitioner to practice, or to practice with certain conditions, involves an unacceptable risk to the health and safety of the public (or particular members of the public) or otherwise involves a risk not in the public interest. (ss 150, 159 and 159C of the National Law and Hanna at [20]) (a) Scope of 'protection of the health and safety of person or persons' The 'protection of the health and safety of any person or persons' does not require there be actual harm suffered by any person. Because s 150 is concerned with protection, it is sufficient if it can be demonstrated that there is a potential for harm. This approach is fortified by the alternative test of a consideration of the public interest. It would be in the public interest to prevent harm being suffered by a person or persons if it could be predicated that this may occur. (Section 150 of the National Law and Crickitt at [48]) (b) Scope of 'public interest' The 'public interest' consideration will always also include the need for patients and others to have confidence in the competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession (ss 150 of the National Law, Hanna at [18] and Crickitt at [56]) (7) No need to determine whether conduct is 'professional misconduct' or 'unsatisfactory professional conduct' Apart from what is involved in assessing the risk referred to in the preceding subparagraphs, it is not otherwise necessary for the Tribunal to determine whether the conduct under notice constitutes 'professional misconduct' or 'unsatisfactory professional conduct' or to make findings as to the fitness of the practitioner to retain registration as a medical practitioner. Those are matters that may fall to be addressed at a later stage, if and when disciplinary proceedings are taken against the appellant. (s 150 of the National Law and Hanna at [22]) (8) Nature of suspension power under s 150 An order made under s 150, including a suspension order, is in the nature of an interlocutory order and often must be made on the basis of limited information. (s 150 of the National Law and Crickitt at [51] and the authorities cited there; Lindsay at [79]) (9) Council's separate power to reconsider suspension A practitioner may also apply directly to the Council for a review of a s 150 decision to suspend a practitioner's registration. If satisfied there has been a sufficient change in the practitioner's circumstances, the Council can affirm or vary the decision or set it aside and take any action it has power to take under s 150. (s 150A(2)(b) and (3) of the National Law).
Brereton JA then considered the provisions of s 159B which provides a right of appeal on a point of law. He set out that section of the National Law and then said at [11]: "Where, as in this case, an appeal to NCAT is brought by a practitioner from both the original s 150 decision and a later s 150A decision, and under both s 159 (merits review) and 159B (appeal on points of law), the real issue for NCAT is, first, whether action under s 150 is to be taken, and if so, secondly, what action - suspension, or imposition of appropriate conditions - is appropriate for the protection of the health or safety of any person or persons or in the public interest. Given the de novo nature of the s 159 appeal, errors of law affecting the Council's s 150 decision, or its s 150A decision, will usually, though not necessarily invariably, be moot".

Issues to be determined

We are required to conduct the appeal brought under s 159 of the National Law by way of a new hearing considering relevant evidence which was before the Medical Council when it made its decision, together with any further evidence now available, as if we were the original decision-maker. We are to exercise afresh the administrative discretion contained in s 150(1), having regard to the evidence before us. (See Ghosh at [9], reproduced above at [113]). Adopting the words of Brereton JA in Ghosh, "the real issue for NCAT is, first, whether action under s 150 is to be taken, and if so, secondly, what action - suspension, or imposition of appropriate conditions - is appropriate for the protection of the health or safety of any person or persons or in the public interest."

Is action under s 150 to be taken?

We need to identify what relevant evidence was before the Medical Council for the original s 150 hearing on 29 October 2018, what further relevant evidence was before the Medical Council at the s 150A hearing, and also what evidence was before us at the hearing conducted on 1 and 2 March 2021.
The evidence which was before the Medical Council on 29 October 2018 is set out in exhibit R1. It consisted of the following identified material in exhibit R1 (using the tab numbers in exhibit R1):

Tab 3: AFP Statement of Facts;
Tab 4: Appellant's Undertaking as to Bail dated 19 October 2018;
Tabs 21: Email from the Medical Council to Owens and Associates (the Appellant's legal representative in the criminal proceedings) dated 23 October 2018;
Tabs 22 to 24: File notes of Rebecca Moynihan from the Medical Council dated 23 and 24 October 2018;
Tabs 25 and 26: Emails from the Appellant to the Medical Council dated 27 and 28 October 2018;
Tab 27: Email from the Medical Council to the Appellant dated 29 October 2018.

We now set out the portions of the above identified evidence which we consider relevant to the determination we have to make pursuant to s 150 of the National Law.
Regarding the evidence from the AFP Statement of Facts, a 103-page document:

The Appellant had been charged with two counts of conspiracy to defeat justice, contrary to s 42(1) of the Crimes Act; one count of deal in proceeds of crime to the value of $100,000 or more, contrary to s 400.4(1)(a) of the Commonwealth Criminal Code; and two counts of child stealing, contrary to s 363(1) of the Queensland Criminal Code.
The facts supporting the charges were set out. Relevantly, the facts stated that the twin girls were, by order of the Family Court, placed in the sole parental responsibility of their father with a provision that they spend time with their mother.
On 4 April 2014, the father of the twins reported to Queensland Police Service (QPS) that his twin daughters were missing.
On 17 April 2014, the Appellant hired a rental motor vehicle at Grafton. He returned the vehicle at Grafton on 25 April 2014. It is alleged he aided the mother of the children to "fraudulently detain" the children, with the intent to deprive the father of the care of the children.
On 22 December 2017, the Appellant drove from Grafton to Fremantle, WA and there resided on his yacht.
On 24 January 2018, in an intercepted telephone conversation, the Appellant spoke of the money he had expended on refurbishing his yacht and said: "Yes, the little Land Rovers are in England, at least they will be shortly and um I should get some money from that if I have any luck at all."
As a consequence of the above the Appellant is charged with dealing with money or property that the Appellant intended would become an instrument of crime.
Charges were set out which related to the Appellant's conduct regarding the persons identified as the grandmother and her grandson earlier in these reasons. Orders were made for the boy to live with his father and spend time with his mother for 16 days commencing 29 March 2018.
On 22 February 2018, the Appellant travelled by air from Fremantle to Grafton.
On 2 April 2018, an identified person drove the Appellant's motor vehicle from Grafton towards Brisbane.
The Appellant is charged with having aided the grandmother to fraudulently detain her grandson, a child under 16, with intent to deprive the child's father, the parent who had the lawful care of the boy.
The Police documents set out records of conversations between the Appellant and others which show the level of involvement the Appellant had in organizing and facilitating isolated accommodation for the grandmother of the boy who was allegedly removed from his father's care.
The Appellant is charged with conspiring between 29 March and 22 May 2018 to obstruct, prevent, pervert or defeat the course of justice in relation to a judicial power. This charge related to the young grandson and his grandmother who it is alleged the Appellant assisted to avoid detection and keep the child from his father.
On 17 May 2018, the mother of the twin girls appeared before the Supreme Court of Queensland and as part of the evidence before that court an extract from a signed letter from the Appellant was tendered. That extract included: "On or about late April 2014, I was asked to attend a woman and her two daughters, who were, as I was advised, in hiding from a serious domestic violence situation…"
On 30 May 2018, the Appellant sent an email to a number of persons including the Federal Attorney-General and the Queensland Minister of Child Safety, stating in relation to the mother of the twin girls: "I am one of many people who sheltered and protected them, in the four years that they were free of ongoing abuse. At various times I drove vast distances to transport them between places of safety, and when I was able to find safe accommodation for them I sheltered them in a safe house in my locality from about Easter 2014 for more than a year…"
On 1 June 2018, the Appellant had a conversation with a journalist recorded. In relation to the twin children the Appellant said: "I treated them. I looked after them, in hiding, I sheltered them, I fed them, I clothed them, I provided them with the necessities of life and I also treated them for what I was able to do at the time…" The Appellant said he believed the children were suffering from genital herpes. The Appellant said he was aware the children were in hiding at the time.
In the conversation, which the Appellant knew was being recorded, the Appellant said: "I have lived in Apartheid South Africa where the brutality of Apartheid was law. So I learned to disregard law that is obviously inhumane and completely and utterly wrong, so that other people may not feel that way but my upbringing, my life experience says I must do the correct thing no matter what the law says, because what has happened here is a travesty of law, a travesty."
The Appellant has no prior recorded convictions in Australia.

Included at Tab 4 of exhibit R1 is a copy of the "Undertaking as to Bail" in relation to the Appellant. This document is dated 19 October 2018. It details seven charges made against the Appellant. It sets out very restrictive conditions, including the requirement to report daily to the Grafton Police Station. It restrained his contact with a large number of people.
The Medical Council received two emails from the Appellant prior to making the s 150 order. The first email attached a copy of a letter dated 26 October 2018 from the Appellant to the Medical Council. In that letter the Appellant disclosed the following:

He had sent the Medical Council a copy of correspondence he had sent to the Minister of Child Safety and the Minister of Police in Queensland. The letters related to the twin girls the Appellant had assisted. He set out a quote from those letters which included: "I am one of many people who sheltered and protected them, in the four years that they were free of ongoing abuse. At various times I drove vast distances to transport them between places of safety, and when I was able find safe accommodation for them I sheltered them in a safe house in my locality from about Easter 2014 for more than a year. This was one of the greatest privileges of my life to be able to help these children escape the horrific abuse inflicted upon them by fiends, and enabled by Rogue Judges, lawyers and Policemen who actively hid the truth, ignored evidence, and facilitated child rape, effectively trafficking these children to paedophiles."
He has spent many years of his life and most of his earnings trying to protect his wife's son from abuse.
He had been asked to help the mother of the twin girls by Professor Briggs. The girls' mother had phoned him for help after she had "snatched the children". "There was nothing else to do: I had to help her, I couldn't let her children be returned for abuse."
He said: "I was acutely aware that I was breaking the law, yet I knew that the law had failed these children utterly, it was a terrible position to be in. … It is true that we did deprive [the father] of his lawful custody of the twins… I have no doubt that I contravened court orders to do so… There is no 'child abduction ring', this is an absolute nonsense… I was not paid to assist the women".
(We note the Appellant now states that he is not guilty of the charges he faces.)
The Appellant attached a copy of a report by Professor Briggs on the twin girls.
He denied the charge of dealing with the proceeds of crime. He only used his own money.
The Appellant said: "My endeavours to protect abused children have resulted in the near complete destruction of my life, these were not my children, yet I could not as a moral man, or as a doctor turn my back on them, and leave them to be abused. … I also knew that it is impossible to evade the law indefinitely and that these children would eventually be found, and when that happened I would be jailed, as I have been."

The Appellant attached copies of correspondence he had sent to politicians and others in positions of authority, as well as a journal article titled "Who is the judge? A critical analysis of the discourse of disbelief".
By email dated 27 October 2018, the Appellant provided a further statement to the Medical Council dated the same day. In this document the Appellant questions the material relied upon by the Medical Council as outlined in correspondence to him. He said:

"The allegations will be substantially contested once they are better articulated."
He effectively submits that he is being dealt with by the Medical Council as if he has been found guilty of all the charges leveled against him.
He seeks there be no suspension of his registration.
He asserts that he has only acted to protect children who disclosed sexual abuse. He asserts that must be in the public interest. He referred to the Prime Minister saying, as part of his apology to children abused in institutions, that there was an obligation to protect those who suffered abuse.
He claimed he had overwhelming support from his local community for the action he took to protect the abused children.
He submitted: "We are told to act to protect children. The right and honourable thing to do was to protect, care provide for and remove children from danger who had nowhere to turn when they came to me. Had I done anything less, it may have [amounted] to (potentially criminal) omission in my duty of care."
The feedback received by the Appellant from the general public evidences that: "Rather than bring shame upon this honourable profession, the feedback from patients and the community in general is that my actions raised their esteem of this profession."

The Appellant included an email from his son which attaches hundreds of online comments in support of the action taken by the Appellant.
The Medical Council also had before it a copy of the second reading speech for the Health Practitioner Regulation Amendment Bill 2010 (NSW) as presented by the Hon Carmel Tebbett.

The evidence before the Medical Council at the s150A hearing

Though somewhat confusing, it seems clear there were two s 150A hearings. The first was held in early 2020 and determined as set out in a letter to the Appellant dated 13 February 2020. That determination stated that the Medical Council had confirmed the original decision to suspend his registration under s 150.
The Appellant applied for another review under s 150A asserting changed circumstances, which application was heard on 29 October 2020 and a decision published on 2 December 2020. It is against that determination that the Appellant appeals.
In relation to the hearing conducted on 29 October 2020, the Medical Council had before it all of the evidence which had previously been provided for the hearing conducted in October 2018. In addition, the following evidence was relied upon: 1. A chronology prepared by the Medical Council; 2. Written reasons for the s 150 decision made 29 October 2018; 3. Emails dated 15 and 16 January 2020 from the Appellant requesting the s 150A review; 4. Undertaking as to Bail dated 9 October 2019; 5. Letter to the Appellant dated 13 February 2020 advising the outcome of the s 150A hearing conducted at that time; 6. Extract from the Register of Practitioners dated 12 October 2020; 7. A copy of "Good Medical Practice: A Code of Conduct for Doctors in Australia", published by the Medical Board of Australia (the Code of Conduct); 8. A request for a s 150A review from the Appellant dated 21 September 2020; 9. Correspondence between the Appellant and the Office of the Commonwealth Director of Public Prosecutions (CDPP) dated 21 September 2020, 22 September 2020, 29 May 2020 and 4 June 2020; 10. Emails between the Appellant and the Medical Council dated 13 October 2020; 11. The Appellant's completed s 164G form dated 13 October 2020; 12. The Appellant's CV; 13. Email submissions from the Appellant with attachments dated 17 October 2020; 14. Email of support for the Appellant dated 19 October 2020; 15. Drawings by the Appellant's step-son.
Reviewing that evidence, we note the following in particular.
The chronology is in the nature of an aide memoire and not evidence in a hearing.
The request for the s 150A hearing was made by the Appellant by email dated 15 January 2020. The request identified the "changes in circumstances" to be relied upon by the Appellant. This document contains a heading and then explanation for each asserted change of circumstances. The first change is: "The charge of stalking has been dropped". The Appellant states that he had been charged with stalking the father of the twin girls. The Appellant denied this charge and asserted he was 300 kilometers away from the alleged site of the stalking on the days it allegedly occurred. He sets out his theory as to the reason for the wrongful charge against him and the maintaining of the charge for more than a year.
The Appellant stated another change as being the dropping of child stealing charges against the mother of the twin girls and the grandmother of the boy referred to earlier in these reasons. The Appellant stated that the subject children were at all times in the care and control of those persons and never under his control. He stated the charge of child stealing cannot be sustained by the prosecutors given there is no longer any charge against those who did have care and control of the children at all relevant times.
The Appellant then provided submissions to support his assertion that rather than breaking the law, as has been alleged, he was upholding the law by fulfilling the fundamental requirement to protect children from abuse.
The Appellant submitted "the response of the Medical Council in indefinitely suspending my registration, as an urgent action, based solely on the charges, noting of course that those charges will be contested and are also largely unspecified, unevidenced, and untested, is procedurally unfair and contrary to natural justice."
The Appellant stated he has not worked for 15 months and is living on the charity of his family.
The "Undertaking as to Bail" shows a reduction in the number of charges the Appellant was to face. There are six charges: three of "Child Stealing", one of "Dealing with the proceeds of crime" and two charges under the Crimes Act of "Conspire to Defeat Justice".
The whole of the Code of Conduct has been included in the evidence relied upon by the Medical Council, however, in oral submissions before us only a specific portion was relied upon. We will refer to that later in these reasons.
The Appellant's request for a review of the suspension of his registration is contained in a document dated 16 September 2020. The document contains a critique of the decision of the Medical Council to impose the suspension order and the review it conducted at the beginning of 2019. It appears to be framed as an appeal based upon legal error rather than addressing changed circumstances of the Appellant.
In the letter from the CDPP dated 21 September 2020 the Appellant is advised that the charge against him under s 400.4(1) of the Commonwealth Criminal Code (deal with money valued at more than $100,000 intended to become an instrument of crime) is to be withdrawn on 28 September 2020 when the matter was next before the Supreme Court of Queensland. The same document advised that the CDPP would proceed with two counts of "conspiracy to defeat justice" under the Commonwealth legislation and three counts of "child-stealing" under the Queensland legislation.
The Appellant relies upon emails he wrote to the CDPP. In these emails he sets out his challenges to the charges.
The Appellant relies on an email he wrote to the Medical Council's legal representative in which he sets out a number of submissions he intended to rely upon at the section 150A hearing.
On 13 October 2020, the Appellant partially completed a "Request for Information" form which the Medical Council had sent him.
The Appellant provided his CV, which was extensively addressed by expanded explanations for each particular item.
By email dated 17 October 2020, the Appellant provided a lengthy submission to support his s 150A review request. The document contained the 37-page statement made by Professor Briggs in relation to the twin girls. This is a scathing review of Police involvement in the investigation of complaints that the children had been sexually abused by their father. It also addresses other system failings in the children's case. The Appellant described the evidence of Professor Briggs as being "essentially evidence of my defence."
The Appellant also attached to his email documents generated by QPS entitled "Court Brief". The documents relate largely to the grandmother of the boy the subject of some of the charges against the Appellant. There is also a letter dated 1 March 2016 addressed to Professor Briggs from the QPS addressing the complaint she had lodged with the Crime and Misconduct Commission in relation to the mother of the twin girls.
The Appellant relied upon an email from a witness which was in the nature of a reference. The witness argued that the public interest required the Appellant be able to return to practice in the community where he had been practising before the suspension was ordered.

Evidence provided as fresh evidence by the Appellant in the hearing before this Tribunal

The Appellant gave oral evidence before the Tribunal. We have identified the evidence we considered important from his oral evidence earlier in these reasons. He also relied on written evidence which we have identified, described and considered.

Has the Medical Council established that the public interest warranted suspension of the Appellant's registration pursuant to s 150?

In Steel v Medical Council of New South Wales [2020] NSWCATOD 77 the Tribunal set out extracts of decisions which address matters of public interest, as that term is used in s 150 of the National Law. The Tribunal stated: [26] Three recent decisions of the Court of Appeal (Kirby v Dental Council of New South Wales [2020] NSWCA 91, Health Care Complaints Commission v Windsor [2020] NSWCA 110 and Ghosh v Medical Council of New South Wales [2020] NSWCA 122) have considered the provisions of Division 3 Sub-division 7 and Division 6 Sub-division 2 of Part 8 of the National Law. In Kirby v Dental Council of New South Wales Brereton JA in his reasons explained the role of s 150 at [12] and [15] as follows: "Exercise of the power under s 150(1) to suspend or impose conditions necessarily requires that the Council undertake an evaluation of circumstances concerning a practitioner that come to its notice. Although a complaint may be the means by which relevant circumstances that require consideration of action under s 150 may come to a Council's notice, s 150(4) makes clear that a complaint is not necessary to enable the Council to act; in other words, it may act of its own motion. ... In the context of a provision headed "Suspension or conditions of registration to protect public", and the objective and guiding principle stated in s 3A, the touchstone for the exercise of the Council's power under s 150(1) to make an order suspending the practitioner's registration or imposing conditions on it is that the Council be satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons, or that the action is otherwise in the public interest. If so satisfied - regardless of how the matter comes to its attention - it must act. The power is conferred purely for the protection of the public, and thus the Council's sole concern is what if any action is required for the protection of the health and safety of any relevant persons and/or the public interest. This is not a professional disciplinary power, but purely protective. Although disciplinary proceedings may flow from s 150 action (as a result of the referral to the HCCC under s 150D), they are dealt with separately, under other provisions of the National Law which provide for dealing with complaints. As NCAT in its decision rightly observed, the role of a Council in undertaking a s 150 inquiry is to protect the public, and in a case such as the present, where serious allegations have been made which, if true, could lead to suspension or cancellation of the practitioner's registration but the evidence is incomplete and further investigation is needed, the issue for the Council is not whether the allegations are proved, but whether the evidence establishes a risk to the public requiring suspension, or imposition of a condition, for protection of the public." (Footnotes omitted.) [27] Also relevant is the decision of Barrett AJ in Kirby v Dental Council of New South Wales [2018] NSWSC 1869 and that of Harrison AsJ in Pharmacy Council of New South Wales v Ihrahim [sic] [2020] NSWSC 708. [28] Barrett AJ, when discussing s 150 explains at [6]: "Section 150(1) assumes, clearly enough, that a Council will perform an evaluative task in relation to circumstances concerning a practitioner that come to its notice. The evaluation must focus entirely on what is required to protect the health and safety of relevant persons and on the requirements of the public interest. Considerations of punishment are foreign to the assessment." [29] In an appeal to the Court of Appeal from Barrett AJ's decision, Payne JA described an action under s 150 at [2] as follows: "As to Dr Kirby's principal complaint, as Brereton JA explains, the statutory context in the present case was that the Dental Council of New South Wales ("the Council") was bound to act if a particular state of affairs appeared to it. Section 150 of the Health Practitioner Regulation National Law (NSW) ("the National Law") imposes a positive duty on the Council to act, in one of several specified ways, if the Council is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons or otherwise in the public interest. The Council's duty to act does not depend on the existence of an initiating complaint. Here, the Council was satisfied that Dr Kirby 's conduct made it appropriate to act to protect the public health and safety of citizens of New South Wales." (Original emphasis.) [30] In Pharmacy Council v Ibriham [sic] Harrison AsJ was determining an appeal against an external appeal to the Tribunal by a pharmacist whose registration was suspended by the relevant Council under s 150. Her Honour referred to the decision of Hall J in Lindsay v NSW Medical Board [2008] NSWSC 40 under the forerunner of s 150 namely s 66 of the Medical Practice Act 1992 (NSW) (repealed). Hall J in Lindsay explained that proceedings under s 150 are interlocutory in nature and do not involve making findings of fact or the determination of the merits of any complaint. Her Honour discusses the "second limb" of s 150 ("otherwise in the public interest"). At [32] her Honour referred to the second limb as follows: "As such, and in the context of ss 3 and 3A of the National Law, the "public interest" referred to in s 150 includes considerations of maintaining public confidence in the scheme for regulating health practitioners, and the 'competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession': see Hanna at [18]." (Footnotes omitted.) [31] In Ghosh v Medical Council of New South Wales Brereton JA at [5] emphasised, by reference to the decision in Kirby v Dental Council of New South Wales, the "purely protective character of the s 150 (1) function" and that "the touchstone for the exercise of the Council's power... to make an order suspending the practitioner's registration or imposing conditions on it is that the Council be satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons or that the action is otherwise in the public interest". [32] At [103] his Honour explains on a hearing under s 159 (when the Tribunal is considering afresh whether it is appropriate for action to be taken under s 150 (1)) it is necessary for a Tribunal "to take the essential step of identifying what the risk was, and whether it was unacceptable". [33] Earlier, in para [98] and in footnote 54, Brereton J clarifies, by reference to the decision in Karimi v Medical Council of New South Wales [2017] NSWCATOD 180, that the Tribunal or Council must consider whether a practitioner's conduct involves an unacceptable risk either to the health and safety of the public and a similar, not lesser test in the case of public interest, noting that "an acceptable risk could not justify s 150 action". [34] In determining this appeal, I am conscious that generally an appeal on a point of law is heard and determined at the same time as an appeal under s 159. As the latter hearing is a hearing do novo [sic] any error of law "falls away" or is overcome by the exercise on a rehearing. [35] I also take into account in construing s 150 that its predecessor (s 66 of the Medical Practice Act 1992 (NSW)) used different language. The present section differs from its predecessor in that s 66 required the Board exercising power under the section to suspend or impose conditions on a medical practitioner if it was satisfied such action was necessary for the protection of the health and safety of the public or if satisfied the action was otherwise in the public interest. Section 150 now imposes a less stringent test of "appropriate" to take action.
Section 144(a) and (e) of the National Law provide as follows: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner - (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. … (e) Suitable person A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession.
Section 149C(1)(c) and (d) of the National Law provide: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - … (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. …
Section 55(1)(b) and (h) of the National Law state: 55 Unsuitability to hold general registration (1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if - … (b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or … (h) in the Board's opinion, the individual is for any other reason - (i) not a fit and proper person for general registration in the profession; or (ii) unable to practise the profession competently and safely. …
What flows from the above sections of the National Law, relevant to this determination and the exercise of power under s 150 of the National Law, is that if the Appellant is convicted at the trial that he has been directed to stand at, then a ground exists upon which a complaint could be made by the HCCC pursuant to s 144 of the National Law. In the determination of that complaint the Tribunal may suspend or cancel the Appellant's registration as a medical practitioner pursuant to s 149C(1)(c) or (d) of the National Law. Additionally, even if the Appellant was acquitted of the charges he now faces, he could still be the subject of a complaint and could have his registration suspended or cancelled pursuant to s 55(1)(b) and/or (h)(i).
It has been established that the Appellant has been charged with "serious" criminal charges, described as such because, if convicted, each charge carries the possibility of a lengthy period of incarceration.
We are therefore satisfied that the Appellant faces the possibility of being convicted and then being the subject of a complaint made against him pursuant to the sections of the National Law as set out above.
The Appellant states that he is not guilty of the charges he faces. He has not yet been given a date for his trial. If he is ultimately acquitted of the charges it may be that reasonable minds would consider the imposition of a suspension order under s 150 a harsh outcome for the Appellant. On the other hand, an acquittal would not necessarily mean a complaint could or would not be brought against him by the HCCC, seeking suspension or cancellation of the Appellant's registration as a medical practitioner. His action in assisting a parent and grandparent to defeat or frustrate the lawful orders of an Australian court, no matter how morally sound his actions might have been to him, could be seen by the Tribunal as being the actions of a person "unsuitable to hold general registration as a medical practitioner in NSW".
As has been emphasised by the Appellant, he is not a convicted criminal. He is an ordinary citizen facing a trial for offences which carry penalties including incarceration. Until he is found guilty, if that is to occur, he is regarded under the law as innocent.

The Appellant's submissions

The Appellant provided a number of written submissions and also an oral submission at the conclusion of the hearing before us.
The first of the written submissions provided by the Appellant, marked as MFI3, addressed the application for leave to proceed out of time and the decision of the Medical Council on 29 October 2018. The Appellant answered three questions which we had posed for him. The questions were: 1. Why haven't you filed the appeal within the time allowed? 2. Does the appeal have merit? 3. Are there any other important considerations?
The Appellant addressed the last of the topics first. He submitted that the appeal he lodged within time against the s 150A decision of the Medical Council will draw in, for re-consideration, the earlier s 150 decision. As such, the appeals will effectively be considered together. The Appellant submitted that because of the requirement of s 150A, the Medical Council suffered no prejudice by allowing the Appellant to pursue his appeal against the s 150 decision at the same time as he prosecuted his appeal against the s 150A decision.
In relation to the second question, the Appellant submitted the appeal does have merit and in any event s 150A will require consideration of the evidence and the s 150 decision.
In relation to the first question the Appellant submitted that he was prevented or thwarted in his endeavours to file an appeal against the 29 October 2018 decision by being refused legal assistance from his medical indemnity insurer and, otherwise, his impecuniosity. We note in his evidence the Appellant also spoke of the circumstances he faced following his arrest and the setting of stringent bail conditions.
The next set of submissions provided by the Appellant was marked as MFI4. This was a document of some 40 pages segmented into five parts. Those parts are: (i) Procedural Matters, (ii) Executive Summary, (iii) Factual Issues, (iv) The Law and its Application, and (v) Summary.
Under the first heading, "Procedural Matters", the Appellant argued that the orders/directions made by Judge Boland on 22 February 2021 effectively ruled upon the "leave to proceed out of time" question. The words of par 2 of the document titled "Order" (see MFI2) dated 22 February 2021 are as follows: "It is noted that the Tribunal is to hear and determine the appeals under both s. 150 and s 150A of the Health Practitioner Regulation National Law on 1 and 2 March 2021." We do not accept that submission and find that the wording of the paragraph set out above was not an order, rather a notation which had administrative significance and resolved for the parties that both appeals would be before the Tribunal for hearing on the appointed days. That hearing would clearly include determination of the leave to appeal out of time question.
The Appellant made clear that what he was seeking as an outcome from the hearing of his appeals was to have the orders of the Medical Council set aside.
Under the second heading, "Executive Summary", the Appellant attacked the facts which gave rise to the s 150 decision. He referred to the complaint made by a Mr (name) the father of the male child of the Appellant's former wife. It was that boy which the Appellant and his former wife complained had been abused by Mr (name). The Appellant said the complaint had been made just before a defamation case brought by Mr (name( against the Appellant was due to be heard. Three days before that trial was to commence the Appellant was arrested by police and charged. Some of those charges are the charges which the Appellant will now face at trial.
The submissions address the Medical Council relying upon evidence provided by Police.
The Appellant asks the Tribunal to have regard to the delay he has experienced in having the criminal charges heard. He was arrested and charged in October 2018. Although being committed for trial he has not been told when that trial will be listed for hearing. The Appellant said the Medical Council had failed to provide any evidence of the "public interest" ground it relied upon to ground the "suspension of registration order". The Appellant referred to the decision of O'Sullivan v Farrer (1989) 168 CLR 210 at 216; [1989] HCA 61 where the following is said: "… the expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters." We note the full extract at 216-217 is as follows: "The public interest considerations which may ground an objection under s. 45(1)(c) are, in terms, confined to considerations "other than the grounds specified in paragraphs (a) and (b) and subsections (2) and (3)". But, these limits aside, the Act provides no positive indication of the considerations by reference to which a decision is to be made as to whether the grant of an application would or would not be in the public interest. Indeed, the expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be (pronounced) definitely extraneous to any objects the legislature could have had in view": Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR at p 505, per Dixon J. See the discussion of the expression "in the public interest" in the context of liquor licensing legislation by Neasey J. in In re Thompson [1964] Tas. SR 129, at pp 143-144. And the subject-matter to be decided, involving, as it does, the distribution and location of facilities for the supply of liquor, is one which has traditionally been seen as permitting the exercise of a broad discretion in the decision-making process. See Sandown Park Hotel Pty Ltd v The Queen (1963) 109 CLR 521, at pp 524-525."
The Appellant stated in his summary: "According to the principles for judicial review of administrative decision[s] the Council has breached many of these like their abiding breaches to natural justice, failing to observe the procedures the law requires, that the Medical Council's indefinite suspension is not authorized by the enactment they claim, improper exercise of power including acting at the behest of another or in bad faith and other errors of law."
Under the heading "Factual Issues" the Appellant addressed his case in relation to the criminal charges. He argues that s 286 of the Queensland Criminal Code mandates the requirement of every citizen to "take action that is reasonable in all the circumstances to remove the child from any such danger." The section relates to "every person who has care of a child under 16 years". The section provides that a "person who has care of a child" includes any "adult in charge of the child, whether or not the person has lawful custody of the child." The Appellant submits that he only acted to assist to remove the twin girls from danger.
The Appellant then addresses submissions to the prevalence and abhorrence of child sexual abuse.
In relation to the "public interest" aspect of s 150 of the National Law, the Appellant points to the evidence he has provided to show the support he has received for his action in assisting the twin girls and their mother. He submits that demonstrates that public interest supports him rather than decrying his actions.
The Appellant addressed his submissions to "The Law and its Application". Under that heading the Appellant said he would address matters of law and fact which are erroneous in the decisions of the Medical Council published on 29 October 2018 and 2 December 2020. He said that the indefinite suspension was disproportionate and impermissible. He submits that under s 149C(1) the Tribunal may only suspend the registration of a health practitioner for a "specified period". We note there is no such restraint upon the Medical Council under s 150. However, the section does provide for the suspension to have effect only until "the complaint" is disposed of or the suspension is ended by the Medical Council. Further, s 150D provides that the Medical Council "must, as soon as practicable but no later than 7 days after taking action under section 150, refer the matter to the Commission for investigation." The wording presupposes that the HCCC will make a complaint to the Tribunal in relation to the medical practitioner the subject of the s 150 order, or advise the Medical Council that no action is to be taken following the investigation.
The submission of the Appellant is essentially that it is extraordinarily harsh to impose or continue a suspension order in circumstances where the complaint which gave rise to the suspension may be disposed of by another tribunal/court (i.e. the Appellant is acquitted) and the time at which such determination is to be made is unknown or has been delayed beyond what would be regarded as a reasonable period in all of the circumstances. The Appellant says it has now been two and a half years since he was charged and at the date of the hearing before us he has still not been told when his trial will be heard.
The Appellant submitted he was not afforded procedural fairness at the time the original s 150 order was made. He submitted the order was made with unnecessary haste such that it prevented him from having a fair hearing. He further submits that part of the material upon which the Medical Council relied was hidden from him (i.e. not disclosed) at the time the order was made. In particular, the Appellant says he has never been provided with the original AFP complaint. (We note the Medical Council has relied upon the statement provided by the AFP addressing the charges laid against the Appellant and others.) The Appellant submits that the AFP sensationalised the arrest by claiming he was part of a "child abduction ring." He submits there is no evidence that he was involved in such an organisation.
The Appellant raised the possibility of correspondence between the Medical Council and the AFP. He was concerned that the Medical Council had become an agent for the AFP in the gathering of evidence or some other unauthorised pursuit. During the hearing the Appellant called for documents of that nature, which were not produced. We have referred to that call in our reasons.
The Appellant submitted he was not given sufficient time to make a proper presentation of his case before the Medical Council made its decision on 29 October 2018. He was thereby denied natural justice. He supported his submission with references to case law.
The Appellant referred to decisions of the Medical Council and/or the Tribunal (references were not provided) where he said periods of suspension for convicted criminals had been far less than the two and a half years he has already been suspended for without any conviction being recorded.
In relation to the concept of "public interest" as referred to in s 150 the Appellant submitted his actions, complained of by the Medical Council, are entirely consistent with the "public interest".
The Appellant finally argues that the suspension order "is an improper exercise of discretionary power." He submits the Medical Council's action is based upon unsubstantiated charges, which he is defending. He submits the law regards him as an innocent person until he is convicted of a crime for which he has been charged. He argues that as an innocent person he must in our society be permitted to continue to function in the community subject only to the bail conditions which have been imposed upon him. He has not been denied the ability to continue to work as a medical practitioner by the court which has set his bail.
The Appellant submits that the extraordinary circumstances in which he has found himself have not been properly considered by the Medical Council. He submits those circumstances are unique and unlikely to set a precedent for the Medical Council if he was not to be suspended pending the outcome of the charges laid against him.
By submissions marked as MFI5, the Appellant addressed the Medical Council's request to suppress the children's names "for their protection"; a response to the Medical Council's objection to the evidence sought to be relied upon by the Appellant (this objection was subsequently withdrawn by the Medical Council); declarations sought by the Appellant; and cross-examination objections.
The Appellant argued that the suppression of the names of the twin girls the subject of some of the charges against him should not be suppressed. He submitted the suppression of their names will continue to hide the crimes perpetrated against them from public scrutiny. He argued that the names of the children are already in the public forum, placed there by their father "when it suited him". This seems to be a reference to publicity which is sometimes permitted by the Family Court as part of a recovery order.
By submissions identified as MFI6, the Appellant provided submissions in reply to the oral submissions of the Medical Council presented at the hearing before us. This submission addressed the "suppression of names of children" referred to in these reasons and in the evidence before the Tribunal. The Appellant reiterated his objection to such an order and submitted that the children's interests were better served by publication of their names rather than suppression.
The Appellant provided oral submissions at the hearing. Those submissions largely followed the written submissions he had previously provided. He did however disclose details of a highly personal nature relating to his background. He spoke about his study of sexual abuse of children and how that arose. He spoke of his interaction with Professor Briggs and the help and insight she provided to him as he was entwined in a proceeding in which he endeavoured to protect his step-son from alleged abuse by his father. It is clear from his submissions that the Appellant was convinced his step-son had been sexually abused by the boy's father. He spoke of the defamation action he was forced to defend when his step-son's father commenced action against him, which was withdrawn at the last moment.
The Appellant referred the Tribunal to the decision of the Victorian Supreme Court in the matter of Medical Board of Australia v Liang Joo Leow [2019] VSC 532 (12 August 2019) ("Leow"). In that case a medical practitioner had his registration suspended by the Medical Board of Australia (Medical Board) following his being charged by Victorian Police with one count of rape and, in the alternative, one count of sexual assault. The practitioner appealed the decision to the Victorian Civil and Administrative Tribunal (VCAT). That Tribunal, by majority, overturned/set aside the Medical Board's decision to suspend the practitioners' registration. The Medical Board sought leave in the Victorian Supreme Court to appeal that decision. Leave was granted by the Supreme Court and the appeal was dismissed. The facts of this decision and the reasons provided by the VCAT majority and Niall JA are, we consider, important to consider in the case under determination by us and so we set out hereunder a portion of the judgment, more extensive than might ordinarily be necessary. Niall JA set out the relevant history, showing how the majority of VCAT had reached its determination, as follows (omitting footnotes): [34] Having thus framed its analysis by reference to a spectrum of alleged offending, the Tribunal then turned, under the heading, 'Deciding this case', to the facts before it. Again, this part of the reasons represents the reasons of the three members of the Tribunal. [35] The Tribunal accepted that the allegations, if proven, were grave and inconsistent with the ethical discharge of a medical practitioner's obligations. Those obligations, the Tribunal held, include the expectation that registered medical practitioners must always display integrity, truthfulness, dependability and compassion, always acting in an ethical and trustworthy manner, and at all times endeavouring to maintain the highest standards to ensure the protection and promotion of health of individuals and the community. [36] In light of these obligations, the Tribunal described the allegations, if proven, as fundamentally violating the principles which lie behind registration; involving dishonest conduct; and intentionally and seriously negatively impacting the health and safety of another person. [37] The Tribunal described the offending conduct, if it occurred, as egregious and said that the alleged conduct 'raises questions as to [the respondent's] very suitability to practice medicine'. [38] The Tribunal then referred to a number of matters that were said to be 'public interest factors' that supported the respondent returning to medical practice. [39] Those matters were as follows. First, the respondent is presumed innocent and the immediate action would be in place for a very significant period of time. Secondly, in the 16 months between the alleged offending and the respondent being charged, he continued to practise with no complaints warranting investigation. Thirdly, the respondent continuing to practise serves the public interest in members of the health profession, in whom training and expenditure have been made, being able to practise. Finally, his referees spoke of him delivering exemplary medical services in a respectful, caring, compassionate and polite manner, and providing expert advice in the service of the community. [40] The Tribunal considered that the fact that the respondent may return to practice without complaint from his patients, had very limited relevance to maintaining the public's confidence in the medical profession. In support of this conclusion, the Tribunal stated that the public assumes all doctors will deliver high quality services to their patients and will be ethical and trustworthy. [41] At this point in the reasons, the reasons of the majority and the minority diverge and are dealt with under separate headings: 'Majority decision - immediate action not required' and Minority decision - immediate action required in the public interest'. As already noted, it is apparent from the text and structure of the reasons that, to that point, the reasons reflect the joint reasons of the three members of the Tribunal. The majority's decision [42] The majority commenced their separate part of the reasons by referring to the earlier analysis, repeating that the allegations were grave, but had not yet been tested, and that the respondent is presumed innocent. They then repeated part of the passage from Lal, cited earlier in their reasons and set out at [91] below, which they regarded as applicable in judging whether allegations of serious offending are likely to have any material or lasting negative effect on the medical profession's reputation. [43] They noted that Lal established that an evaluation of the public's likely perception is relevant to s 156(1)(e), and rejected the respondent's submission to the contrary. [44] The majority said that it was foreseeable that the public would have high concern if they came to know of the allegations against the respondent and then set out the following paragraphs, on which the Board focussed. [117] However, it is also foreseeable that the public would understand these allegations are against one medical practitioner, that such allegations being made are rare and that the profession should not be judged on these allegations. [118] The public understand that allegations and charges may either be proven in court or the accused may be acquitted. They understand the importance of the presumption of innocence, while demanding just punishment for those found guilty. They understand that where it is appropriate, until a jury or court makes a decision an accused person should be able to continue with his or her life. [119] In that context, the majority does not accept that permitting [the respondent] to practice medicine while the charges are pending will result in a loss of public confidence in provision of services by the medical profession and/or members of the public not seeking medical treatment. [45] The majority then turned to a different aspect of the public interest, being whether suspension would be in the public interest by preventing patients, who are unaware of the charges and unable to make up their own mind, from seeing the doctor. On that question the Tribunal said: [121] In the majority's view, in the context of the countervailing public interests discussed above, this factor does not here justify immediate action in the public interest. If Parliament wished to prohibit this occurring, as is done in various other legislation, Parliament could have defined various offences as serious offences, prohibiting medical practice while a medical practitioner was facing charges. [46] It followed that, whilst the majority agreed with the principles on which the Board relied, their application of those principles brought them to a different conclusion and they substituted the Board's decision with a decision not to take immediate action.
In determining the appeal Niall JA at [48] posed the following questions of law (omitting footnotes): [48] … 2. In deciding whether to exercise the power under section 156(1)(e) of the National Law on the basis that the medical practitioner has been charged with a serious criminal offence, is the Appellant (or the [Tribunal] standing in its shoes) permitted to have regard to the following matters: (a) it is foreseeable that the public would understand that the allegations were made against one practitioner only; (b) it is foreseeable that the public would understand that it is rare for such allegations to be made against a registered medical practitioner; (c) it is foreseeable that the public would understand the medical profession as a whole should not be judged on the allegations made against one practitioner; and (d) that the public understand that, where it is appropriate, an accused person should be able to continue with his or her life until a jury or court makes a decision? 3. Was the [Tribunal's] decision legally irrational or unreasonable? 4. Did the [Tribunal] fail to give adequate reasons for its decision?
Another ground of appeal raised was "insufficient reasons". In dismissing that ground Niall JA said at [62]-[63] (omitting footnotes): [62] In my view, when read as a whole, the reasons of the majority reveal that they considered the particular allegations, and how they would be perceived by members of the public, and came to the conclusion that immediate action was not required. In that regard, the majority considered the impact on the reputation of the profession and whether patients would be dissuaded from seeking medical treatment. In the context of the facts as a whole, the majority considered that public confidence would be informed by the presumption of innocence; that no findings of wrongdoing had been made out; and that the allegations related to a single practitioner. [63] The Tribunal's conclusions on these matters were necessarily impressionistic. The concept of "public confidence" has been described, in a different context, as hard to define, let alone to apply, by reference to any useful methodology. In Forge v Australian Securities and Investments Commission, in the context of confidence in the courts, Kirby J said that the criterion of "public confidence" is "conclusory, sometimes inappropriate and usually unhelpful"."
The above mentioned s 156(1)(e) of the Victorian version of the National Law differs slightly from the comparable s 150 of the National Law as it applies to NSW. The Victorian section provides that a National Board may take immediate action in relation to a registered health practitioner if (e) the National Board reasonably believes the action is otherwise in the public interest. Other sections, including s 157 of the Victorian National Law, provide that immediate action consists of suspending, or imposing a condition on, a practitioner's registration.
The decision in Leow then addresses the "immediate action" provision of the section under consideration. At [75]-[76] Niall JA addresses the nature of "public interest". His Honour said (omitting footnotes): [75] The nature of "public interest" determinations in the exercise of statutory powers was described as follows in O'Sullivan v Farrer: "the expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view'. [76] It has been said that the phrase 'public interest' lacks a fixed and precise content, and no singular construction can be afforded. In Lal, the Court of Appeal described the public interest as a 'protean concept', the meaning of which depended on context and not on any predetermined generic criteria.
Again, at [78]-[82], Niall JA addresses the nature of the power conferred by s 156 of the Victorian National Law. His Honour said: [78] … The power to take immediate action is, as the Board correctly submitted, designed to operate for an interim period, until an investigation or disciplinary proceeding with respect to the medical practitioner is able to be concluded. The purpose of immediate action is to put measures in place to protect against, or ameliorate, harm pending the determination. It is not an end in and of itself. [79] In this regard, it is relevant to identify how criminal conduct, unrelated to a practitioner's practice, may become relevant to disciplinary proceedings under the National Law. [80] Criminal conduct outside of a practitioner's practice may reflect on the question of whether the practitioner is a fit and proper person to hold registration and, if established, may lead to suspension or cancellation of the practitioner's registration under the National Law. Of course, such a finding would require the Board, or on review the Tribunal, to make findings as to whether the conduct occurred and its relationship to fitness to practice. [81] In circumstances where the allegations, if substantiated, may reflect on the practitioner's fitness to hold registration and may ultimately justify suspension or cancellation, it may be necessary, in the public interest, to take immediate action rather than await the outcome of the charges. In some cases, immediate action will be required because of a risk to patient safety or well-being. It may be possible for the Board to conclude that there is a serious risk to persons based on the material it has, even though criminal charges remain outstanding. In other cases, it may be necessary to take action to reassure the public that the regulatory system is safe and adequate to protect the public and the reputation of the profession as a whole. [82] As a consequence, the Board may conclude, in those circumstances, that it is in the public interest to take immediate action in order to address the question of public confidence. The relevant public confidence to which the example is directed is confidence in the provision of services by health practitioners.
In determining that the majority of VCAT had not erred in their determination then under appeal, Niall JA found as follows: [91] In Lal, the Court of Appeal held that public confidence was not a mandatory relevant consideration in considering the public interest in the Health Professions Registration Act 2005. In a passage cited twice by the majority of the Tribunal, the Court of Appeal said: "Public confidence is won - or lost - gradually, as the cumulative effect of the experiences of thousands of individuals in their dealings with medical practitioners over many years. The decision to register a particular person to practise medicine is unlikely, in our view, to have any material or lasting effect on the established reputation of the medical profession as a whole. It is not irrelevant that the standing of the medical profession in this community is very high." [92] At paragraph [114] of the reasons, the majority stated that the above passage was applicable "in judging whether allegations of serious offending are likely to have any material or lasting negative effect on the medical profession's reputation". [93] The Tribunal identified that public confidence was liable to being affected in two material ways. It held that not taking immediate action might, first, affect the reputation of the medical profession and, secondly, impact on the willingness of people to seek medical assistance from registered medical practitioners. They are two obvious consequences that may flow from a diminution in public confidence in the provision of services by health practitioners. [94] In my view, there was no error in regarding public confidence as being reflected in the reputation of the profession and the willingness of members of the public to access medical treatment. The concept of public confidence has no fixed meaning or content. It is a difficult concept to measure. In assessing how the public might view the facts, it is important that visceral responses, as prevalent or legitimate as they might be, do not dominate at the expense of a considered response, having regard to all of the competing factors. The Board did not submit to the contrary. [95] On the question of reputation, the majority concluded that not taking immediate action was unlikely to have any lasting or material negative effect on the reputation of the profession as a whole. This was a finding open to the majority. The Board's objection to this conclusion on the basis that this will often be the case, did not preclude the Tribunal from approaching the assessment of public confidence in this way. Rather, the Board's conclusion reflects that the relevant issue is public confidence in the provision of services by health practitioners. It requires an assessment of the impact of allowing one practitioner to continue to practise, in circumstances where he or she has been charged with a serious criminal offence, on the reputation of the profession as a whole. [96] For the reasons given by the Court of Appeal in Lal, decisions in an individual case may not have a deleterious impact on reputation. The passage in Lal cited above, and referred to by the Tribunal, involved an explication of the concept of public confidence. It did not state a proposition of law and I do not take the majority as having used it in that way. Rather, the majority were reflecting on the impact that not taking action [would] have on reputation. [97] In relation to the second way in which public confidence was liable to being affected, the majority concluded that public confidence was not likely to be impacted in a way that would discourage members of the community from seeking medical treatment. Again, this was a matter that the Tribunal could take into account in assessing the impact on public confidence and the conclusion was open to the Tribunal. [98] Where no issues of patient or public safety are involved, and in circumstances where it is necessary to impute to the public an understanding that the allegations are untested and unproven, the Tribunal may, in a given case, consider that there is no significant impact on public confidence. No general rule can be applied. [99] I am not persuaded that the majority regarded the issue of public confidence as being binary, in the sense of being either present or absent. Rather, as the introductory words of the passage from Lal emphasise, public confidence is impacted gradually. As a matter of substance, the Tribunal's conclusion that public confidence will not be lost is a finding that there will be no significant impact on public confidence if no immediate action is taken in the circumstances of this case. That reasoning did not involve any legal error and was open to the Tribunal. [100] In substance, the majority considered whether immediate action was required to maintain public confidence. Their reference to public confidence being lost was another way to say the same thing, and could equally have been expressed using the words favoured by the Board, such as tarnished or undermined. …

Determination

This case is most unusual for many reasons, not the least of which is that no complaint has been made about the Appellant's practice as a medical practitioner. No patient has complained about his work as a doctor. On the contrary, it seems many patients of the Appellant have extolled his action in "saving children from abuse". The Appellant has been very open with disclosing his actions in what he saw as rescuing two girls from the worst of abuse by their father. His case, as it has been presented to us, is that the children have been failed by police and child protection agencies in Queensland and the Family Court, the latter body making orders that the twin girls were to live with their father and spend restricted time with their mother.
The action sought by the Medical Council under s 150 is not based on an allegation that the Appellant's registration needs to be suspended to protect the health and safety of the public, its case is that the public interest demands such a suspension.
Although it seems on the Appellant's evidence that he trusted the twins' mother when she initially informed him the twins had been sexually abused by their father, the Appellant saw for himself evidence which supported a conclusion that such an allegation was at least probable. We have no doubt that the Appellant genuinely believed the children would be harmed by their father if they were returned to his care.
The Appellant's case raised a real dilemma, which he effectively posed to the Tribunal members, namely "what would society expect of a decent caring human being placed in the same situation as the Appellant?"
That question has to be considered in the light of the "rule of law". Medical practitioners, just like all other members of the society in which we live, are required to act lawfully. To disregard the law and take steps to frustrate or defeat its purpose, moves a society into anarchy. Such is the case even if a citizen regards the ruling of a court of law as wrong.
In Rogers v The Queen (1994) 181 CLR 251 at 273; [1994] HCA 42 per Deane and Gaudron JJ the High Court stated: "… the need for decisions of courts, unless set aside or quashed, to be accepted as incontrovertibly correct. … That principle is not only fundamental, it is essential for the maintenance of public respect and confidence in the administration of justice." In Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [53] in a passage subsequently cited, Gummow J referred to the principle identified in Rogers as "the need for orders and other solemn acts of the courts to be accepted (unless set aside or quashed) as incontrovertibly correct, thereby limiting the scope for conflicting decisions." See also The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55 (Gleeson CJ and Hayne J at [35] and Gaudron and Gummow JJ at [86]) and Ramsey Food Processing Pty Ltd v Tomlinson [2014] NSWCA 237 at [71].
The Appellant had assisted the mother of the twins by initially providing her with funds to meet legal costs. That was a manner of helping her which was clearly within the law. There is no suggestion before us that the mother had exhausted her rights of appeal against the orders which placed the twins in the predominant care of their father. Again, that was a means of challenging the orders made, within a legal framework.
Whether the Appellant has broken a law, as alleged by the relevant Crown bodies that now prosecute him, is yet to be determined. Even if he is acquitted or ultimately not prosecuted, because the Crown withdraws the charges, it would still need to be determined whether the Appellant is a fit and proper person to hold registration as a medical practitioner.
There are clearly circumstances where a medical practitioner charged with a criminal offence would not have his/her registration suspended pending the determination of any such charges. This might occur where a neighborhood dispute led to allegations and charges of breaching an Apprehended Violence Order. Such charges could carry a sentence of incarceration if proved. In circumstances where the facts alleged are seriously denied and the denials can be seen to have merit, the Medical Council may not suspend the registration of the practitioner pending the outcome of the criminal case. It may impose conditions or take no action at all.
The action to be taken under s 150 clearly has to be measured by the potential seriousness of the situation presented to the Medical Council or Tribunal. In this case, the charges arise out of a circumstance which would be expected to disturb the ordinary citizens of Australia. The allegations against the Appellant are that he, with others, orchestrated the hiding of two children in order to evade the effect of orders of an Australian court. It sends a message that it is permissible to evade the orders of an Australian court, where that order is perceived to have been wrongly determined. It has the potential to empower others in society to do the same and to undermine the confidence which parents of young children are entitled to have that their children will not be removed from their lawful custody and kept from them for years. It also has the potential to undermine the rule of law and have flow on consequences for areas of law outside of family law. It is that potential which defines the risk to the public (i.e. public interest) identified in s 150 of the National Law.
The further risk to the "public interest" is the erosion of the public perception that only medical practitioners "who exhibit traits consistent with the honourable practice of an honourable profession" will be permitted to be registered by the regulatory authority. The term "honourable practice" must, in our view, include "to act lawfully at all times".
We return to the words of s 150 of the National Law. (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest - (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or …
The determination required by s 150 in this case focuses upon the time when the matter came before the Tribunal for hearing. It must do so as it requires that in a merits appeal all relevant facts to the date of the hearing in the Tribunal are considered. The nature of the hearing is a "hearing afresh".
We consider that it is in the public interest to take action under s 150 of the National Law in this case. We accept the mandatory requirement that we must take action where we are satisfied it is appropriate to do so because it is in the public interest.
We also reflect upon the words "high standard" as referred to above in the quoted portions of earlier decisions.
The public interest, which we find requires us to take action, is to uphold the confidence of the public in members of the medical profession. That is, that the public requires that members of the medical profession act within the law at all times and act in a manner which upholds the rule of law in this land. Confidence in the medical profession, we consider, is generally likely to be eroded where the public learn a medical practitioner has been charged with committing a criminal act carrying the possibility of incarceration for a significant time.
We also find that the seriousness of the circumstances presented to the Medical Council in the earlier determinations and to this Tribunal, is informed by the possible conviction of the Appellant for any of the charges he has now been committed to stand trial on. In this respect, we bear in mind the provisions of ss 55, 144 and 149C of the National Law.
It follows that the seriousness of the situation currently faced by the Appellant requires a significant step to be taken by the Tribunal.
Section 150 provides that the action available to the Tribunal is either to suspend the registration of the practitioner, impose conditions on the registration of the practitioner, or take no such action.
We have considered the reasons in the decision of Leow and note with that decision in mind that the charges faced by the Appellant do not arise out of the practice of medicine by him. We further note the extensive apparent evidence of public and patient support for the Appellant in the circumstances in which he finds himself and the actions he engaged in which created those circumstances. It seems that if the Appellant was to return to practice, pending the determination of the criminal charges against him, he would have patients who are prepared to avail themselves of his services whilst well acquainted with the fact that he is facing criminal charges.
We are confronted by the extraordinary circumstances of this case. We have considered at length the possibility of imposing conditions on the registration of the Appellant which would allow him to practice at least until his charges are heard and determined. Those conditions, in broad terms, would require that he comply with his bail conditions, report any action taken against him for alleged breach of those conditions, otherwise be of good behaviour and obey the law, notify the Medical Council when he has been advised of the dates set for his trial and finally advise the Medical Council of the outcome of the trial.
In order to make a final decision in this matter we have weighed the following considerations: 1. The criminal charges do not arise out of the Appellant's practice of medicine; 2. The nature of the charges is very serious and they carry a potentially lengthy sentence of imprisonment; 3. It has now been in excess of two and a half years since the Appellant was charged and released on bail; 4. The bail conditions imposed on the Appellant are very restrictive both in the geographical area in which he is permitted to be at any particular time and the contact he is restrained from having with a significant number of people; 5. The Appellant has not been engaged in any other employment since 29 October 2018 when his registration was suspended by the Medical Council; 6. The law requires that the Appellant be regarded as innocent of the charges he faces until the trial has been heard and sentence otherwise given; 7. There is evidence that a cohort of prior and possibly prospective patients would willingly engage the Appellant as their medical practitioner knowing of the charges laid against him and the circumstances out of which the charges arose; 8. The Appellant proposes to defend the charges and has stated he has a number of grounds upon which he will proceed; 9. The charges against the Appellant have changed since he was originally charged in October 2018; 10. The action of the Appellant had the potential to challenge the rule of law. The Appellant knew at the time he assisted the twin girls and their mother to travel out of Queensland (or at least away from the person who had the benefit of a residence order for them) that they were seeking to evade the ruling of a superior court of record in Australia; 11. The Appellant's involvement in assisting to hide the twin girls and their mother from authorities legitimately searching for them is well known to the public at large because of the publicity which attended his arrest and subsequent court appearances.
We note we have considered in the determination of the appeal lodged by the Appellant against the s 150A determination the consideration of whether it is appropriate to make an order under s 150 of the National Law, having considered all of the facts presented by both parties as if presented afresh to us. To the extent that it may be necessary to determine if the Appellant should be granted leave to appeal the original s 150 decision of the Medical Council out of time, we determine that such leave should be granted. We accept the evidence of the Appellant as to the financial circumstances in which he found himself at the time the appeal should have been lodged. We also accept that at the time the Appellant should have lodged his appeal he was weighed down by the burden of dealing with criminal charges which had been laid against him whilst under very restrictive bail conditions. We also conclude that there was merit in his appeal.
The Appellant, as we set out earlier, sought from the Tribunal a declaration that "It is never wrong to protect children". He also sought a declaration that the Tribunal was satisfied that the Appellant had seen ample evidence to believe the twin children he was protecting had been abused by their father.
The essence of the declaration sought was focused on the concept of "legally wrong". The declaration he really wanted from the Tribunal was that it was "never illegal to protect a child from harm". In submissions, the Appellant drew the Tribunal's attention to legislation of the Queensland Parliament which he said imposed a positive obligation upon all persons to assist children in harm's way and made it an offence to fail to do so.
We conclude it is not a requirement, in this determination, for this Tribunal to make the declaration sought by the Appellant. The declaration, if it were to be considered, would require a great deal of resort to decided cases and other legislation.
We have already considered the motivation for the Appellant to have taken the action he did in relation to assisting the mother of the twin girls and the girls themselves. We are satisfied he was confronted with statements from the mother, the behaviour of the twin girls as observed by him, and other physical evidence, which confirmed for him the veracity of the allegations the mother had made about the father of the twins. We consider it was reasonable for the Appellant to believe the twin girls had been the subject of sexual abuse and that the abuse probably came from their father. None of that however, in our view, for the reasons set out above, can be accepted as justification for the Appellant engaging in the action he did, as he has disclosed and as set out in these reasons. That conclusion is so reached regardless of whether the Appellant is correct in his assertion that he has not committed the crimes he has been charged with. The action taken by the Appellant, in our view, has the potential to undermine the fabric of our society which is dependent upon the rule of law being effective and complied with by the citizens of this country. Challenges to decisions of our courts must be taken through the processes which are available. To take action which is motivated to defeat the ruling of a court is such a challenge to our orderly existence that this Tribunal must treat the action as extremely serious.
Having concluded as we have above, we now determine the provisions of the National Law, which we have set out herein, must operate to send a message to the practitioners of Australia that such action, as taken by the Appellant, is to be regarded as very serious. We conclude such action does have the potential to bring the medical profession into disrepute, if it is not clear to the public at large that the bodies that control the profession do not sanction that action. We conclude that suspension of the Appellant's registration as a medical practitioner is necessary in the public interest and should be imposed pursuant to s 150 of the National Law. Such suspension should continue until the Appellant has concluded his trial and then makes another application pursuant to s 150A of the National Law, which he may make as of right and as provided for in the National Law. It will then be for the Medical Council to determine if any further action is necessary.
As a result we determine that the appeals of the Appellant filed against the determinations and orders of the Medical Council made 29 October 2018 and 2 December 2020 should be dismissed and the order of 2 December 2020 of the Medical Council be affirmed.

Costs

The respondent Medical Council seeks an order that the Appellant pay its costs. The Appellant also seeks an order for costs in his favour.
Clause 13 of Schedule 5D to the National Law is as follows: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.

Principles to be applied in determining a costs application

In Health Care Complaints Commission Complaints Commission v Haasbroek (No 2) [2018] NSWCATOD 198, the Tribunal said as follows. [6] The relevant principles are subject of well-established authority. In Health Care Complaints Commission v Phillipiah [2013] NSWCA 342 Meagher JA explained at [42]-[44]: "As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. W here discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]). It has not been suggested by the Doctor that any of those factors applied. As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95). It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made." [7] Those principles are also referred to in Health Care Complaints Commission v Do [2014] NSWCA 307.
The Medical Council relies upon those principles to support its application for costs. The Medical Council has been wholly successful. The Appellant has been wholly unsuccessful. There is nothing about the conduct of the Medical Council, in the way in which it has engaged in this litigation, which would suggest a reduction in the proportion of costs which would ordinarily flow from an order for costs, following successful prosecution of its case.
We accept from the Appellant that he is probably not in a financial position to meet the costs order which should properly be made, however we also accept we have had little to no specific evidence as to the Appellant's financial circumstances. He has told us he is effectively living on charity. He has told us he has had to fund expensive litigation, both civil and criminal. We do not otherwise know of his financial circumstances.
The Appellant did not specifically address the costs application he made. We have assumed that it was based upon a conclusion he had anticipated we would make in his favour. In any event, we have determined to dismiss his application, he having been unsuccessful in his appeals and there being no conduct on the part of the Medical Council which would convince us his application for costs should not be dismissed.
In the circumstances, we conclude that the Medical Council should have an order in its favour that the Appellant pay its costs of both appeals filed by the Appellant, as agreed or failing agreement as assessed.

Orders 1. The appeals filed by the Appellant against the decisions of the Medical Council of New South Wales published 29 October 2018 and 2 December 2019 are dismissed. 2. The registration of the Appellant is suspended pursuant to s 150 of the Health Practitioner Regulation National Law (NSW). 3. The Appellant is to pay the costs of the Medical Council of New South Wales for each of the appeals, such costs to be as agreed or failing agreement as assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 27 September 2021 - Deidentification 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: 27 September 2021

Medical Practice Act 1992(NSW)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (20 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (27)

Cited By (4)