Trinh v Medical Council of New South Wales

NCAT Occupational|2022-08-15

Solicitors: Applicant (Self-Represented) Medical Council of New South Wales (Respondent) File Number(s): 2021/00334658 Publication restriction: Publication of the name of any medical practitioner, other than the Applicant, named in this decision is prohibited

Introduction

By "External appeal form" filed 24 November 2021 Dr My Le Trinh (Applicant) appealed against the decision of the Medical Council of New South Wales (Respondent) of 27 October 2021 suspending her right to practice medicine pursuant to the provisions of s 150 of the Health Practitioner Regulation National Law (NSW) (National Law) on 27 October 2021 ("suspension decision").
On 7 June 2022 the Applicant filed an application in her appeal seeking orders that the "Tribunal's jurisdiction has been formally challenged on 3rd June 2022" and "seeking to demand (sic) Tribunal to dismiss my matter due to lack of jurisdiction". The grounds for the application were articulated in the following terms: "- I submitted an Affidavit to the Tribunal on 3rd June 2022 which will be used as evidence at this hearing - My Affidavit states that the Medical Council of NSW have committed a jurisdictional error when it suspended me from practice as a medical practitioner under the [sic] pursuant to s150 of the Health Practitioner Regulation by reason of s145D of the said law below: Serious complaints MUST be referred to Tribunal [NSW] S145D Serious complaint must be referred to Tribunal [NSW] Both a Council of health profession and the Commission are under a duty to refer a complaint within time, (if) either forms the opinion that it may, if substantiated, provide grounds for the suspension or cancellation of a health practitioner's or student's registration. - The case of Pridgeon v Medical Council of NSW 2022 NSWCA 60 has decided the legality of the Medical Council has no authority to suspend any practitioner's registration, the court stated this at paragraph 52 and 56 - I have enclosed my affidavit 2nd June 2022."
The Respondent opposed the Applicant's application.
The application was heard on 15 August 2022. The Tribunal is not persuaded that the Applicant's application should be granted, for the reasons set out below.

The material before the Tribunal

The material before the Tribunal comprised: 1. External appeal form filed by Applicant on 24 November 2021. 2. Letter to Tribunal attaching draft Summons (judicial review) dated 14 May 2022. 3. Email from Tribunal to Applicant. 4. Email from Applicant to Tribunal dated 30 May 2022. 5. Email from Tribunal to Applicant dated 31 May 2022. 6. Affidavit of Applicant sworn 2 June 2022 and "Notice of demand to dismiss matter for lack of jurisdiction" dated 2 June 2022. 7. Appellant's application in an appeal seeking the relief identified above. 8. Outline of Respondent's submissions on interim application dated 1 August 2022. 9. Affidavit of Applicant dated 10 August 2022. 10. Bundle of documents received by Tribunal 11 August 2022 attaching two emails from Respondent to Appellant dated 6 October 2021, email from Respondent to Appellant dated 24 May 2022, email from Tribunal to Appellant dated 19 July 2022 and copy Decision in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; (2002) 187 ALR 117; (2002) 76 ALJR 598.
The Respondent submitted that the reasons for the Applicant's suspension on 27 October 2021 should form part of the material before the Tribunal in the present application. The Applicant resisted that suggestion. Having heard submissions from each of the parties, and for the limited purpose which the Respondent asserted that the reasons for the suspension should be before it, the Tribunal has received and read the reasons for the Applicant's suspension from medical practice pursuant to s 150 of the National Law. Those reasons were dated 8 November 2021. As suggested to the Applicant during the course of debate, in the absence of the reasons for her suspension, the present application would be without context, or falling to be determined in a vacuum.
As the Applicant was repeatedly reassured, no part of the present application involves the determination of any merits, and particularly the merits of her appeal pursuant to either s 159 or s 159B of the National Law. The controversy for determination is the Applicant's challenge to the jurisdiction of the Respondent to make the suspension decision. If that application is successful, there would be no suspension decision, and thus nothing to appeal against.
Nothing which occurred subsequent to the ruling to receive the reasons for the s 150 suspension caused the Tribunal concern that receiving those reasons prejudiced the Applicant's jurisdictional challenge, which turns on questions of statutory interpretation.

Background

The background recorded below finds expression in the reasons for the Applicant's suspension of 8 November 2021. Nothing asserted by the Applicant in this application suggests that any of the matters recorded below is inaccurate.
Prior to her suspension, the Applicant was a registered Medical Practitioner without conditions. The Applicant graduated in medicine in 1992 and completed her internship and residency years at Blacktown and Mt Druitt Hospitals. In 1999 the Applicant moved to her current general practice, which she part-owned and worked in full-time until it was sold in 2010. Since that time the Applicant has worked part-time in the practice, which is a group practice in which between 6 and 10 doctors are working at any given time.
On 27 October 2021, after receiving two notifications, one from the Westmead Hospital Toxicology Department, the other from a member of the public, the Respondent convened a hearing pursuant to s 150 of the National Law. The Applicant had legal assistance during the s 150 hearing.
At the conclusion of the s 150 hearing, the Medical Council determined to suspend the Applicant's registration with effect from 4.00 p.m. that day and referred the matter to the Health Care Complaints Commission (HCCC) pursuant to s 150D of the National Law, to be dealt with as a complaint for investigation. It is not in contest that the referral was within the time required by s 150D(1) of the National Law.
The Medical Council did not then, or subsequently, refer either of the complaints against the Applicant to the Tribunal pursuant to s 145D(1) of the National Law.
On 23 March 2022 the Respondent convened a hearing pursuant to s 150A of the National Law as a result of an application from the Applicant's legal representatives to review the s 150 suspension decision of 27 October 2021 pursuant to the provisions of s 150A(1)(a) of the National Law.
At the conclusion of that hearing the Respondent confirmed the s 150 decision. The Applicant has not appealed against that decision.
Although some of her documentation implied the contrary, the Applicant confirmed that, in the event that the present application is unsuccessful, she would wish to pursue her appeals pursuant to s 159 and/or s 159B of the National Law. The appeals are pending in the Tribunal and it is understood that they are listed for directions in late September. Particularly in view of the dismissal of this application, the Tribunal has been concerned to publish its decision in ample time for the Applicant to be able to seek hearing dates for her appeal when it is next before the Tribunal for directions.

Relevant legislative provisions

Both parties assumed that the Tribunal had jurisdiction to determine the Applicant's application in her appeal. For the reasons which follow, the Tribunal is satisfied that it has jurisdiction to determine the Applicant's challenge to the jurisdiction to determine the Applicant's appeal.
In Council of the Law Society of New South Wales v Judah [2022] NSWCATOD 89 in reliance upon the decisions of the High Court and the NSW Court of Appeal to which it referred, the Tribunal accepted, at [50], that whilst not being a "court of a State", and thus unable to exercise judicial powers, the Tribunal is ""invested with non-judicial power" to determine the "limits of its own jurisdiction" for the purpose of adjudicating a matter".
The Applicant's pending appeal against the suspension decision pursuant to s 159 and/or s 159B of the National Law is an "external appeal" within s 79 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). If, as the Applicant contends, the suspension order was made without jurisdiction, there can be no appeal as there is no decision against which to appeal. The "limits" of the jurisdiction of the Tribunal to adjudicate the Applicant's appeal fall to be determined.
Section 31 of the CAT Act, which is concerned with external appeals to the Tribunal, provides (s 31(2)(a)) that the Tribunal has jurisdiction to make "ancillary decisions" "in the proceedings". Section 4 of the CAT Act defines "ancillary decision" as including a decision that is "preliminary to" a decision "determining proceedings", and includes "a decision concerning whether the Tribunal has jurisdiction to deal with a matter".
As is apparent from the submissions of the parties, a number of legislative provisions are relevant to the determination of this application.
Section 145B of the National Law finds expression in Subdivision 2 of Division 3 of Part 8 of the National Law, which is concerned with "How complaints (against health professionals) are dealt with", and provides: "(1) The following courses of action are available to a Council in respect of a complaint - (a) the Council may make any enquiries about the complaint the Council thinks appropriate; (b) the Council may refer the complaint to the Commission for investigation; (c) the Council may refer the complaint to the Tribunal; (d) the Council may refer the complaint to a committee; (e) for a complaint about a health practitioner or student who is registered in a health profession other than the medical or nursing and midwifery profession, the Council may deal with the complaint by enquiry at a meeting of the Council; (f) the Council may - (i) refer the practitioner or student for a health assessment; or (ii) refer the matter to an Impaired Registrants Panel; or (iii) refer the professional performance of the practitioner concerned for a performance assessment; (g) the Council may direct the practitioner or student concerned to attend counselling; (h) the Council may refer the complaint to the Commission for conciliation or to be dealt with under Division 9 of Part 2 of the Health Care Complaints Act 1993; (i) the Council may refer the complaint to another entity, including, for example, a National Board; (j) the Council may determine that no further action should be taken in respect of the complaint. (2) The Commission must, on receipt of a complaint referred by a Council for investigation, investigate the complaint or cause it to be investigated. (3) If a Council makes a referral under section (1)(f), the matter ceases to be a complaint for the purpose of this law and the Health Care Complaints Act 1993. (4) Subsection (3) ceases to apply in respect of any matter that a Council subsequently deals with as a complaint."
The references to "Council", "Commission" and "Tribunal" are respectively references to the Medical Council of NSW, the Health Care Complaints Commission, and the Civil and Administrative Tribunal.
Section 145D, which also finds expression in Subdivision 2 of Division 3 of Part 8 of the National Law relevantly provides: "(1) Both a Council for a health profession and the Commission are under a duty to refer a complaint to the Tribunal if, at any time, either forms the opinion that it may, if substantiated, provide grounds for the suspension or cancellation of a registered health practitioner's or student's registration."
Section 149C of the National Law finds expression in Subdivision 6 of Division 3 of Part 8 of the National Law, which is concerned with the disciplinary powers of Tribunals, and relevantly provides (s 149C(1)) that 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" that the practitioner is not "competent to practise the practitioner's profession" (s 149C(1)(a), or is "guilty of professional misconduct" (s 149C(1)(b)).
The Medical Council is not obliged to refer a complaint to the Tribunal under s 145D if it forms the opinion that the power to "caution, reprimand, counsel, etc" pursuant to s 149A, or the power to "fine" a registered health practitioner pursuant to s 149B of the National law may be enlivened. Forming the opinion that s 149C of the National Law may be enlivened obliges the Medical Council to refer a complaint to the Tribunal under s 145D.
Section 150 of the National Law finds expression in Subdivision 7 of Division 3 of Part 8 of the National Law which is concerned with the "powers of a Council for the protection of the public [NSW]", and provides that: "(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 practicing the health profession the Council considers appropriate; or (c) by order impose on a student's registration the conditions the Council considers appropriate."
Section 150A empowers the Medical Council to review a decision made by it under s 150 of the National Law to suspend the practitioner's registration (s 150A(1)(a) or 150A(1)(b)) to impose conditions on the practitioner's registration, or alter conditions imposed on the practitioner's registration.
Section 150C of the National Law empowers the Council at any time to end a period of suspension imposed by it (s 150C(1)(a)) or alter or remove conditions imposed by it, s 150C(1)(b).
Section 150D of the National Law provides that: "(1) A Council must, as soon as practicable but no later than 7 days after taking action under s150 refer the matter to the Commission for investigation. … (3) The matter must be dealt with by the Commission as a complaint made to the Commission against the registered health practitioner or student concerned (4) The Commission must investigate the complaint or cause it to be investigated and, as soon as practicable after it has completed its investigation and if it considers it appropriate to do so, refer the complaint to the Tribunal or a Committee for the health profession in which the health practitioner or student is registered."

Submissions of the Applicant

In fairness to the Applicant, who has represented herself in these proceedings, it is appropriate to consider each of the documents in reliance upon which the Applicant agitated her contentions.
In her email of 14 May 2022 (document 2) the Applicant referred to a matter which is not related to these proceedings, involving the Medical Council of New South Wales and a medical practitioner. There is no reason to believe that the medical practitioner in question was aware that the matter would be referred to, and there has no verification of what was said about that matter, so the Tribunal will order, pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) that the identity of that medical practitioner not be disclosed.
The Applicant stated that "the reason as to why the Medical Council lifted Person X's suspension was unclear because Person X has not had his/her matter heard, either at the Tribunal or at the Supreme Court". In the absence of far more than the Applicant has placed before the Tribunal, no inferences can be drawn as to the likelihood of Person X's claim having been successful if it had been heard and determined (Lake Burrendong State Park Trust v Thompson [2011] NSWSC 1554).
The Applicant reiterated, by reference to what appears to have been a Summons (Judicial Review) filed, or intended to be filed, by or on behalf of Person X that: "When a panel or board exercises immediate action power in relation to s150 there are no appellant [sic] rights existing on merit to a tribunal, only the right(s) of judicial review exists due to the legalities of the action taken under s150. There are no reviews on the merits of the case either to the Council or a tribunal. The panel is obliged to refer the matter to the Tribunal (in its original jurisdiction) because it is only exercising an interim or temporary power until a tribunal decides the merits of the case."
The Applicant concluded her email by asking "Could the Tribunal please confirm to me in writing if NCAT Tribunal has appellate jurisdiction over my legal matter as stated above". The Tribunal's response of 20 May 2020 (document 3) confirmed that the Tribunal had jurisdiction to hear and determine an appeal against a decision of the Medical Council of NSW made under s 150 of the National Law, and directed the Applicant's attention to s 159 and s 159B of the National Law and the decision of the Court of Appeal in Ghosh v Medical Council of New South Wales [2020] NSWCA 122.
The Applicant appears to now accept that, if the Medical Council had jurisdiction to make a suspension order under s 150 of the National Law, which she disputes, the Tribunal has jurisdiction to determine her appeal pursuant to s 159 and/or s 159B of the National Law.
Section 159(3) of the National Law provides that an appeal against a suspension under s 150 pursuant to that section "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."
In substance, although not so described, a "new hearing" on the basis provided by s 159(3) is a determination "on the merits of the case", as they are found at that time, in which the Medical Council bears the onus of making out a case for suspension pursuant to s 150 of the National Law, the requirements for which have been clarified by the decision of the Court of Appeal in Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 (Pridgeon).
The Applicant's submission of 30 May 2022 (document 4) referred to s 145D(1) of the National Law and asserted (page 2) that: "According to s.145D(1), the Medical Council was obliged to refer my matter to the Tribunal prior to my suspension, which it failed to do. There was no indication in the Medical Council's notification to me of its decision to suspend my registration under s.150 of circumstances which would render the exception to this requirement, as outlined in s.145D(2), to be relevant in my case. That is, there was no question at that date about my physical or mental capacity to practice, which would trigger the exception to the referral obligation as outlined in s.145D(2)(a)."
The Applicant submitted (page 2) that the decision in Pridgeon: "ruled that, had a complaint been made in that case, the Medical Council would have been erroneous in failing to refer that complaint to the Tribunal as required under s.145D(1). In that case, Mr Pridgeon's registration was also suspended under s.150. The Court noted ([52] and [53]) that s.150 must be construed in the context of s.145D. That is, s.150 does not override the requirement in s.145D(1) for the Medical Council to refer a complaint that is likely to result in suspension to the Tribunal for consideration."
The Applicant stated that, to her knowledge, her matter was: "not referred to the Tribunal by the Medical Council and the Tribunal has therefore not had the opportunity to consider the complaint before my suspension took effect. Consequently, the Medical Council's suspension decision in my case has been made ultra vires and therefore is not a valid decision capable of review by the Tribunal."
Although it is not entirely clear from the foregoing submission whether the Applicant contends that the power of the Medical Council to suspend her under s 150 of the National Law was only enlivened after the Tribunal had considered a complaint referred to it by the Medical Council under s 145D, or whether the referral of the complaint was sufficient, the Applicant's oral submissions made clear that she contended the latter.
The Applicant made a series of submissions by reference to the merits of the s 150 decision. As is not in doubt, no part of the present application involves consideration of the merits of the s 150 decision. The s 159 appeal hearing will provide the occasion for that determination.
The Applicant referred to a decision of the Victorian Supreme Court of Appeal in Herald & Weekly Times Pty Limited v Victoria [2006] VSCA 146; (2006) 25 VAR 124, at [12], discussing the exercise of original jurisdiction of the Victorian equivalent of the Tribunal pursuant to the referral of a matter to it in accordance with an enabling enactment.
With respect to the Applicant, the facts of that case are materially different from the present case and neither assist nor impede her case. The only referral of proceedings to the Tribunal by either party in this case has been the Applicant's Notice of Appeal of 24 November 2021. In reliance upon the Victorian decision, and what the Applicant contended was the outcome of Person X's case, it was submitted that "In the absence of a referral by the Medical Council of my complaint to the Tribunal under s 145D, the Medical Council's decision to suspend my registration under s 150 is invalid and therefore not capable of appeal by the Tribunal".
The Applicant submitted that the Medical Council was "currently exercising the power of suspension indefinitely in my case", and that such power "does not exist". The Medical Council is not attempting, and could not attempt, to exercise the power of suspension "indefinitely". The Applicant's s 159 appeal, and her ability to seek termination of the suspension order pursuant to s 150A or s 150C of the National Law confirm that to be the case.
On 31 May 2022 the Tribunal responded (document 5) to the Applicant's communication of the previous day. For present purposes little turns on that communication.
On 2 June 2022 (document 6) the Applicant sent an Affidavit to the Tribunal. The Affidavit is in substance a series of submissions, most of which she had previously made. The Applicant referred to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (Bhardwaj). The Applicant relied upon the statement by Gaudron and Gummow JJ at 51 that there was: "no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged."
For present purposes at least, that proposition is not controversial. It flows from finding jurisdictional error but may also inform the determination of whether there has been such error. The present issue is whether, as the Applicant contends, the s 150 suspension order made by the Medical Council on 27 October 2021 lacked a legal, as opposed to an evaluative or discretionary foundation, and was thus "no decision at all".
In her further submissions of 11 August 2022 (document 9) the Applicant submitted (13) that: "S145D(1) therefore operates having regard to the complaint at face value and the Respondent's opinion of that complaint as it stands, if it were to be substantiated. It is not necessary for the question of jurisdiction to know the substantive details of my case and whether suspension was warranted under s.150 of the National Law. The content of my hearing conducted by the Respondent for the purposes of determining whether action was needed under s.150, or the written reasons for the decision made in that hearing or the Respondent's subsequent review hearing, are not required to determine whether s.145D(1) should have been followed by the Respondent."
The Applicant further submitted (14(a)) that the relevant opinion, for the purpose of s 145D, was "that the complaint, if it were to be substantiated, would give grounds for suspicion" and that (14(b)) ss.145D(1) and 150 of the National Law "interact, having regard to that timing" and (14(c)) that the Respondent's "failure to refer my matter to the Tribunal at any time (pursuant to s145D(1)) renders the Respondent's decision to suspend my registration under s150 of the National Law ultra vires".
The Applicant further submitted (20) that: "s145D(1) of the National Law does not require the Respondent or the HCCC to have reached the conclusion that there were reasonable grounds for suspension or cancellation of my registration. Rather it only requires the Respondent or the HCCC to form the opinion that, if the complaint was substantiated, there would be grounds for suspension or cancellation."
The Applicant referred to the emails of 6 October 2021 (document 10) and submitted (22) that the email notification established that "From 6 October 2021 (if not earlier), the Respondent formed the view that "the possibility of suspension of my practitioner registration was a real one based on the complaints received" and that (23) from that date, if not earlier, "the Respondent was obliged to refer my matter to the Tribunal. It did not, at any time." For those reasons, the Applicant submitted (41-44) that the Respondent could not successfully contend that it was not obliged, by reason of other provisions of s 145D, to refer the complaints against her to the Tribunal.
The Applicant submitted (45-49) that the decision in Ghosh was not of assistance for present purposes.
The Applicant placed considerable emphasis on paragraphs 52 and 53 of the Judgment of the Full Court in Pridgeon. Relevantly for present purposes, it was there stated: "52 By reason of the limitation in s145D(1), the Medical Council could not have suspended Dr Pridgeon's registration even if a complaint had been made. If the Medical Council had formed the opinion that the complaint warranted suspension, it would have had to refer it to the Tribunal. 53 This is the setting in s150 is to be found. It is contained in a Division headed "Complaints" and in the context of provisions that contemplate that if a complaint is made, it will be the Tribunal and not the Medical Council that would have the power to suspend. Section 150 is contained in Subdivision 7. The heading to that subdivision is "Powers of a Council for protection of the public"."
The Applicant submitted (54) that the "point being emphasised by the Court is that irrespective of whether or not Dr Pridgeon has a complaint made against him, Medical Council would still have to refer the matter to the Tribunal".

Submissions of the Respondent

The Respondent submitted (16) that the Applicant's contention that the Medical Council could not suspend a health practitioner pursuant to s 150 of the National Law in circumstances where a complaint had been made which has not been referred to the Tribunal under s 145D of the National Law was misconceived. The Respondent submitted (19) "that the references in Pridgeon to s145D of the National Law, at [51] and [52] appear to have been made by the Court for the purpose of illustrating how a complaint that leads to suspension as a final outcome would usually proceed. The Court did not state that the Tribunal could not take action under s150 in circumstances where a complaint has been made and no referral had been made to the Tribunal".
The Respondent referred to the statement of the Court of Appeal in Pridgeon, at [51]: "If a complaint had been made to the Council or to the Health Care Complaints Commission on the basis that Dr Pridgeon was not a suitable person to hold registration in his profession, the complaint would have had to be in writing and to contain particulars of the allegations on which it was based."
The Respondent submitted (20) that: "Sections 145D and 150 of the National Law both appear in Division 3 of the National Law which relates to complaints. Subdivision 2, which contains s145D, relates to the handling of complaints. S145B, which is within the same Division, sets out the course of action available to the Council in respect of dealing with a complaint."
It was further submitted by the Respondent that the powers of the Tribunal dealing with a complaint are set out in Subdivision 6 of Division 3 and that s 149C of the National Law empowers the Tribunal to either suspend or cancel a practitioner's registration. It was submitted (23) that s 145D and s 150 are part of a legislative scheme for the protection of the public. The preferable interpretation, giving effect to the overall scheme of the National Law was submitted to be that the reference in s 145D to suspension or cancellation is to those terms as final outcomes, as used in s 149C. This was submitted to contrast with the interim action provided for in s 150. In those circumstances, compliance with s 145D was not a prerequisite to taking action under s 150. It was further submitted (24) that the contention urged by the Applicant would "undermine the scheme of the National Law and be contrary to the express wording" of s 150.
The Respondent submitted (25) that ,in Pridgeon, the Court of Appeal concluded, ,at [68] and [70], that the power to "take action" pursuant to s 150 was an "emergency power" which was limited to urgent cases, and that the term "public interest" in s 150(1) should be understood as a reference to "the public interest in the protection of the public's health and safety".
In Pridgeon, in the passages to which the Respondent referred, the Court of Appeal at [68] identified the ambit of "public interest" in the context of s 150 of the National Law. The Court of Appeal at [70] said that the "context of s150 suggests that it should only be invoked as an emergency power where the circumstances are urgent" having regard to "the fact that Division 3 provides for the primary mechanism for regulating the profession by way of particularised complaints, including an oral hearing if sought, to be dealt with by the Tribunal, not the Medical Council, if suspension is sought. That construction is reinforced by the explanatory memorandum and the second reading speech".
The Respondent further submitted (26) that, the Council having determined that there was a risk to the health and safety of the public which required immediate action, the power to suspend pursuant to s 150 was enlivened, irrespective of whether there had been a complaint against the Applicant, or, if there had, whether it had been referred to the Tribunal.
The Respondent also relied on the statement in Pridgeon, at [55] that, "Section 150(4) makes it clear that the Medical Council was entitled to take action notwithstanding that no complaint had been made to it about Dr Pridgeon. However, a relevant consideration for the Council is whether it should act under s 150 where no complaint has been made", and submitted that, if the Applicant's contentions were accepted, contrary to s 150(4), s 150 could never be enlivened unless a complaint had been made.
The Applicant's case was encapsulated in her oral submission that the power to suspend pursuant to s 150 of the National Law was "triggered" by the referral of a complaint to the Tribunal and that, if and only if the Respondent had referred a complaint against her under s 145D could it then have been empowered to suspend her under s 150.
The submissions of the Respondent assert that there are two distinct legislative pathways, which are directed to different objects and purposes: s 145D being concerned with how "complaints" against a health professional are dealt with by the Medical Council or the HCCC, whilst s 150 is concerned with the powers of a Council to suspend a practitioner's registration to protect the health and safety of the public in urgent cases. The Respondent submitted that there was no ambiguity with respect to the interpretation of either provision, and that there was no conflict or tension between them.

Disposition

As both parties acknowledge, the Applicant's challenge to the jurisdiction of the Respondent to suspend her pursuant to s 150 of the National Law raises a question of statutory interpretation.
In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405; 91 ALJR 936, Kiefel CJ, Nettle and Gordon JJ said, at [14] that the: "starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is to be had to its context and purpose. Context should be regarded at the first stage and not at some later stage and it should be regarded in the widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected".
As noted above, s 145D finds expression in Subdivision 2 of Division 3 of Part 8 of the National Law, which is concerned with "how complaints are to be dealt with [NSW]". Section 145D provides, relevantly for present purposes, that the Medical Council is under a "duty" to refer a complaint to the Tribunal if, at any time, it forms the opinion that the complaint may, if substantiated, provide grounds for the suspension or cancellation of a registered health practitioner's or student's registration".
Section 149C finds expression in Subdivision 6 of Division 3 of Part 8, which is concerned with "disciplinary powers of tribunals [NSW]". The disciplinary powers of the Tribunal are enlivened if the subject matter of the complaint is found to have been proved (s 149). The power to suspend or cancel a health practitioner's registration is conferred on the Tribunal by s 149C, the grounds for which have been recorded earlier in these reasons.
The contexts in which the relevant statutory provisions find expression are clear, and different. The purpose of each provision is clear. Each purpose is consistent with the "Objective and guiding principle" that, in the exercise of functions under the National Law, the protection of the health and safety of the public must be the "paramount consideration". Neither the context in which each provision finds expression, nor the purpose of either provision supports affording the words of the provisions meanings other than those by which they would ordinarily be understood in discourse (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355). In SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 361 ALR 206, at [64], Edelman J reiterated the difficulty of displacing an interpretation of a legislative instrument which has " a powerful advantage in ordinary meaning and grammatical sense" in favour of one which does not.
The protective orders which may be made by the Tribunal pursuant to s 149C differ materially from those which may be made pursuant to s 149A and s 149D of the National Law. Only s 149C confers the power to "suspend or cancel registration" in the circumstances described in s 149C(1) and s 149C(3). It is clear that the "opinion" required to enliven the duty to refer a complaint against a health professional to the Tribunal pursuant to s 145D(1) is that the complaint "may, if substantiated, provide grounds" for suspension or cancellation of a registered health practitioner's registration" pursuant to s 149C of the National Law.
Section 150 of the National Law finds expression in Subdivision 7 of Division 3 of Part 8 of the National Law, which is concerned with "powers of a Council for protection of the public [NSW]". Section 150 provides that a Council "must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety or any person or persons … or if it is satisfied the action is otherwise in the public interest" either suspend the practitioner's registration (s 150(1)(a)) or impose on the practitioner's registration the conditions relating to the practice of medicine which the Council considers appropriate (s 150(1)(b)).
Nothing emerging from the judgment in Pridgeon provides support for doubting that, as submitted on behalf of the Respondent, the legislative scheme evidenced by the relevant provisions is directed to two different matters, they being how complaints are dealt with, and how, urgent or emergency orders, as they now must be understood, may be made to protect the health and safety of the public. Nothing in s 145D expressly or impliedly suggests that the power given to the Medical Council to suspend pursuant to s 150 of the National Law is only "triggered" when a referral is made pursuant to the section.
The second reading speech to which the Court of Appeal referred in Pridgeon at [56] recorded that the "changes to the council's powers regarding emergency suspensions" involved "moving from emergency suspensions of not more than 8 weeks in duration to emergency suspensions that are not time limited. While this is an extension of the suspension power, it must be noted that a practitioner who is subject to such a suspension may apply for a review of that suspension at any time and as frequently as he or she wishes".
As the Court of Appeal noted, the power of the Medical Council to suspend a health practitioner's registration under s 150 "should", in the circumstances which the Court had earlier identified, and having regard to the passage from the second reading speech which it cited, "be reserved for urgent cases".
Importantly, and contrary to the Applicant's contentions, as submitted by the Respondent, the Court of Appeal noted at [55] that "s 150(4) makes it clear that the Medical Council was entitled to take action notwithstanding that no complaint had been made to it about Dr Pridgeon. However, a relevant question for the Council is whether it should act under s 150 where no complaint has been made." The applicant's contention that s 150 can only be enlivened after there has been a referral pursuant to s 145D requires the words "whether or not a complaint has been made or" to be read as "when a complaint has been referred to the Tribunal".
The Applicant's interpretation does not find support in the terms of the legislation. As the Judgment of the Court of Appeal in Pridgeon, at [56] is suggested to make clear, what does or does not occur pursuant to s 145D of the National Law does not affect the jurisdiction of a Medical Council pursuant to s 150. However, when determining whether the power conferred by s 150 should be exercised for the protection of the health and safety of the public, whether there has been a referral pursuant of the practitioner pursuant to s 145D is a relevant consideration.
In Medical Council of New South Wales v Smithson [2021] NSWCA 53 (Smithson) the Court of Appeal clarified the principles applicable to the determination of an appeal under s 159 of the National Law. The Court said, at [20[1]] that, in the course of "standing in the shoes" of the Council which made the suspension order, the legal standard to be applied by the Tribunal is fixed by s 150 of the National Law.
Their Honours said, omitting authorities, at [20[2]] that: "The subject matter, scope and purpose of s 150 makes clear that it is a protective provision with two independent limbs. The touchstone for the exercise of the Council's role 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 (i) the protection of the health and safety of any person or persons (the first limb), or (ii) that the action is otherwise in the public interest (the second limb). The two limbs may overlap but the public interest is not subsumed in the first limb. The two limbs are disjunctive; satisfaction of either will suffice to trigger the obligation impose by s 150".
Their Honours also said, at [20[3]] that: "The proceedings are not disciplinary and are not necessarily referrable to a complaint. The National Law otherwise makes provision for dealing with complaints against registered health practitioners: see Div 3 Subdivs 2-6. The function of a s 150 hearing is purely protective in character. By s 150D, a Council must, after taking action under s 150(1) (except in the case of impairment), refer the matter to the Health Care Complaints Commission ("HCCC") to be investigated as a complaint".
The court also said, at [20[5]] that, when the Tribunal determines an appeal pursuant to s 159: "Because the circumstances in which action under s 150 may be taken include that there may be a continuing dispute as to the relevant facts 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".
Nothing said by the Court of Appeal in Smithson provides support for the Applicant's case.
For the foregoing reasons, the Tribunal accepts the Respondent's contentions, and does not accept that the Medical Council lacked the jurisdiction to suspend her under s 150 of the National Law.
If the Applicant prosecutes her appeal against the suspension decision, presumably primarily in reliance upon s 159 of the National Law, in the light of Pridgeon and Smithson, the nature and apparent seriousness of complaints against her, and whether or not they have been, or will be referred to the Tribunal, would be relevant considerations at that new hearing.
For the reasons recorded above, the Tribunal does not consider that the interpretation or operation of s 145D or s 150 of the National Law is ambiguous or uncertain. If, however there is ambiguity or uncertainty, the interpretation of s 150 which the Tribunal prefers is supported by s 33 of the Interpretation Act 1987 (NSW) which provides that: "In the interpretation of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object".
In Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214; 91 ALR 16, at [19] Dawson J said that the "approach" required by s 35 of the Victorian Interpretation of Legislation Act 1984, which is in substantially the same terms as s 33 of the NSW statute: "needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair that defect, then this must be done. However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 requires a court to construe an Act, not to rewrite it, in the light of its purpose".
In Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 77 ALJR 1797; 201 ALR 260, the High Court confirmed that legislative purposes stated at "extreme levels of generality" were not "useful in construing particular parts of the legislative language". In Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138; 239 ALR 415, at [5] Gleeson CJ cautioned that "for a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose".
In Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1; 285 ALR 27, at [28] French CJ, Hayne, Kiefel and Bell JJ said that "In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose", and that deriving a statutory purpose involved considering the scheme of the Act as a whole, and the respective functions of the relevant parts of the statute.
Section 3A of the National Law mandates that the health and safety of the public must be the "paramount consideration" when "functions" are exercised pursuant to the National Law. The level of generality of the "objective and guiding principle" of the National Law does not detract from its force as a statement of legislative purpose: every exercise of jurisdiction and power pursuant to the National Law must reflect the paramountcy of the health and safety of the public.
The parts of the National Law which are relevant for present purposes, reflect and facilitate the purpose of the legislation. Although complimentary, the functions of Subdivision 2 of Division 3 of Part 8 of the National Law which is concerned with how complaints against health practitioners are dealt with , and Subdivision 7, which is concerned with powers of, in this case, a Medical Council, for the protection of the public, are different, and directed to the "mischief" (K & S Lake City Freighters Pty Ltd v Gordon and Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309) which each addresses. Nothing raised by the Applicant demonstrates that either provision, and critically s 150, is reasonably open to more than one interpretation.
The construction of s 150 of the National Law asserted by the Applicant involves finding uncertainty when none has been established, and implying a legislative purpose which is contrary to its express purpose, and then importing into the section a requirement which the legislature has not imposed on the Medical Council. Doing so is not warranted in order to achieve the legislative purpose of the provision, and offends the principles of construction identified above. As the Court of Appeal has explained in Pridgeon, in an appropriately urgent case, the power of the Medical Council to suspend a health practitioner is not fettered by any requirement for there to be a complaint, much less that a complaint has been referred to the Tribunal under s 145D of the National Law.
The Tribunal is not persuaded that the Medical Council lacked jurisdiction to suspend the Applicant under s 150 of the National Law. The Tribunal thus has jurisdiction to determine the Applicant's appeal. The present application will be dismissed, and the Applicant's appeal will be listed for directions with a view to fixing a date for it to be heard.

Orders 1. The Applicant's application filed on 7 June 2022 in this matter is dismissed. 2. The Applicant's External Appeal against the orders of the Respondent pursuant to s 150 of the Health Practitioner Regulation National Law (NSW) 2009 is listed for directions before the List Manager on 30 September 2022. 3. Within 14 days, any party seeking an order for costs of the application file and serve written submissions not exceeding 7 pages in length in support of such application. 4. Within 21 days a party opposing an application for an order for costs file and serve written submissions not exceeding 7 pages in length in opposition to such application. 5. Within 21 days a party opposing an order dispensing with a hearing of any costs application pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) file and serve written submissions not exceeding 3 pages in length in support of such opposition. 6. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the name of any medical practitioner, other than the Applicant, referred to in the decision of the Tribunal, is prohibited.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 September 2022

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