EFQ (a pseudonym) v Medical Council of New South Wales

1. [1]

   BELL P: This is an application for leave to appeal from an interlocutory decision of the Occupational Division of the Civil and Administrative Tribunal of New South Wales (the Tribunal) delivered on 26 November 2020: see EFQ v Medical Council of NSW [2020] NSWCATOD 135. An appeal on a question of law from such a decision lies, subject to a grant of leave, pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). The application comes before the Court of Appeal as the Tribunal was constituted by Le Poer Trench ADCJ: see Supreme Court Act 1970 (NSW) s 48.

2. [2]

   Although expressed in terms of a refusal of leave to appeal, the Tribunal’s decision was to refuse to grant the applicant, who will be referred to by the pseudonym EFQ (as she was referred to in the Tribunal), an extension of time in which to appeal from a decision of the Medical Council of NSW (the Council) of 24 October 2018. On that occasion, the Council had, pursuant to s 150 of the Health Practitioner Regulation National Law (NSW) (the National Law), relevantly imposed a condition on EFQ’s registration as a registered health practitioner. The condition was that EFQ not practise medicine. Reasons for the imposition of this condition were provided by the Council on 20 December 2018. It was also on this date that EFQ was notified of the Council’s decision. The Council also referred EFQ to an Impaired Registrants Panel, subject to the consultation conditions of s 150F of the National Law.

3. [3]

   By s 150H(2) of the National Law, the condition imposed, namely that EFQ not practise medicine, was a necessarily temporary one, having effect only until the first of the disposal of the complaint about EFQ that had been made to the Health Care Complaints Commission (HCCC) on 9 February 2018 (the Complaint), or the removal of the condition by the Council. The referral to an Impaired Registrants Panel was also of an interim character: see s 150I(2) of the National Law. The Council first contacted EFQ for her comment in relation to the Complaint against her in August 2018, and she responded to the allegations in issue on 24 September 2018.

4. [4]

   On 1 November 2019, EFQ filed an Administrative Review Application Form in the Tribunal’s Occupational Division in relation to the Council’s decision of 24 October 2018 to impose conditions on her registration. Under the sub-heading “Grounds for Application”, it was stated that the grounds upon which the Council relied were “fabricated and vexatious”. There then followed a detailed and emotive complaint about alleged harassment that EFQ had felt in her professional life, which included the circumstances of her termination from a position at the Redbank House clinic in January 2018 following the receipt of two complaints by mothers of child patients in relation to EFQ. It was noted in the Form that EFQ had received correspondence from the Council advising that it had planned a s 150 hearing under the National Law, but that “[t]hey refused to adjourn it until I could appear with legal representation” and that “the decision was made without seeing me or interviewing me and determined by email”. The grounds also stated that the “conditions are such that a change to life circumstances is necessary into [sic: in] order to appeal.”

5. [5]

   On 9 January 2020, EFQ filed an External Appeal Form in the Tribunal’s Occupational Division which identified some seven grounds of appeal from the Council’s decision of 24 October 2018. These grounds of appeal were as follows:

6. [6]

   The External Appeal Form also contained, under the heading “Late Appeals”, a detailed set of reasons why “the Applicant has needed to file the Appeal out of time”.

7. [7]

   The appeal came on for hearing before the Tribunal on 20 February 2020. EFQ confined her appeal to one made under s 159B of the National Law, which provides that a registered health practitioner who is the subject of action taken by the Council for the health profession under s 150 of the National Law may appeal, with respect to a point of law, to the Tribunal.

8. [8]

   Although, as has been noted, in completing the External Appeal Form, EFQ evidently considered that her appeal was out of time, in the course of the hearing before the Tribunal, EFQ who, by that point in time, was represented by Mr King, submitted that her appeal was of right and that no extension of time was required. This submission was rejected, but has been repeated on appeal.

9. [9]

   If the submission is correct, the Tribunal was wrong to refuse an extension of time because such an extension was, ex hypothesi, unnecessary. If the submission is incorrect and EFQ did require an extension of time, EFQ’s challenge to the Tribunal’s decision is a challenge to an interlocutory decision involving an exercise of discretion adverse to EFQ, and leave is thereby required pursuant to cl 29(6)(a) of Sch 5 of the NCAT Act. As such, to succeed on any application for leave to appeal to this Court and in any ultimate appeal, EFQ must satisfy not only the criteria for a grant of leave to appeal, but must also overcome the strictures limiting interference with a discretionary decision in accordance with the well-known principles in House v The King (1936) 55 CLR 499; [1936] HCA 40.

10. [10]

    It is desirable first to consider whether or not EFQ required an extension of time within which to appeal from the Council’s decision. For reasons explained below, the Tribunal was correct to conclude that an extension of time was required. After explaining my reasons for reaching that conclusion, it will be necessary next to examine whether the Tribunal’s discretion miscarried in refusing EFQ an extension of time within which to appeal.

11. [11]

    EFQ’s argument that no extension of time was required was built on a submission that, whilst s 161 of the National Law provided that:

12. [12]

    This argument overlooked the fact that s 31(1) of the NCAT Act confers on the Tribunal “external appeal jurisdiction” over a decision (or class of decisions) made by an external decision-maker if legislation provides that an appeal may be made to the Tribunal against any such decision (or class of decisions). An “external decision-maker” is simply defined in s 4 of the NCAT Act as a “decision-maker who is external to the Tribunal”. It was accepted that the Council met that description and, as has been seen, s 159B of the National Law was legislation which provided for such an appeal.

13. [13]

    Rule 25(4) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules) provides that:

14. [14]

    The simple tracking through of the relevant legislation and statutory rules supported the view, to which the Tribunal came, that EFQ did require an extension of time within which to bring her appeal. In that context, s 41 of the NCAT Act provided that:

15. [15]

    The Tribunal was correct in its conclusion, and EFQ’s argument that there was no time limit for filing an appeal on a point of law was wrong. As an argument, it rested entirely on reading s 161 of the National Law in isolation. That is the wrong approach. It is a cardinal principle of statutory interpretation that legislation must be read as a whole and in its context. As Sir Anthony Mason said in K & S Lake City Freighters Proprietary Limited v Gordon & Gotch Limited (1985) 157 CLR 309 at 315; [1985] HCA 48, “[t]he modern approach to interpretation insists that the context be considered in the first instance”. In some cases, the statutory context will extend beyond the immediate statute in which a given provision sits, to cognate legislation or Acts “in pari materia” which apply or relate to the same subject matter as the section in question: see P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) at 8.280; Sweeney v Fitzhardinge (1906) 4 CLR 716 at 726; [1906] HCA 73; Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 722-724; and Will v Brighton (2020) 104 NSWLR 170; [2020] NSWCA 355 at [46]-[48]. Here, s 161 of the National Law must be read contextually with the provisions of the NCAT Act and the Rules relating to appeals.

16. [16]

    It follows that, as the Tribunal concluded, EFQ required an extension of time in which to bring her appeal to the Tribunal. That conclusion leads to the question whether the Tribunal’s discretion miscarried in a way that manifested an error that would warrant a grant of leave to appeal in or to this Court and that would justify appellate intervention.

17. [17]

    In approaching the question whether or not to grant an extension of time, the Tribunal identified the relevant principles to be applied in a way that was not controversial, referring in this context to Gallo v Dawson (1990) 64 ALJR 458; [1990] HCA 30; Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson); Khan v Medical Council of NSW [2016] NSWCATOD 88; Roberts v Nursing and Midwifery Board of Australia [2017] NSWCATOD 109; and Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55] (Tomko).

18. [18]

    From the summary supplied in Jackson at [22], the following four factors of relevance to the exercise of the extension discretion were identified:

19. [19]

    Also noted in Jackson was the observation of Hodgson JA in Tomko at [14], namely that:

20. [20]

    The delay in question in the present case between the decision of the Council and the filing of appellate process in the Tribunal was lengthy, being slightly over a year, with EFQ’s appeal being filed on 9 January 2020 and the Council’s reasons for imposing the condition on her registration being supplied to her on 20 December 2018.

21. [21]

    As to the reason(s) for the delay, the Tribunal was supplied with no direct evidence explaining the delay, either in Affidavit form or in submissions: at [193]-[196]. At [197]-[198], the Tribunal said:

22. [22]

    EFQ did refer to the Council’s delay in investigating the complaint that had originally been made to the HCCC on 9 February 2018, and the Council’s delay in publishing its reasons, but these “delays” (even if it is fair to so characterise them) are not relevant to the pertinent question which was EFQ’s delay in lodging her appeal and the reason and/or explanation for it.

23. [23]

    Jumping to the topic of prejudice to the Council, the only prejudice pointed to by the Tribunal was the prejudice of having to retain counsel and incur costs to deal with any appeal to the Tribunal: see at [210]. On the other hand, the Tribunal observed, correctly, that it was and remained open to EFQ to “have the decision to impose the condition reviewed should she use the provisions of s 150A of the National Law”, and/or to “present herself to the Council Appointed Practitioner, as was requested twice by the Medical Council, so that the Medical Council could consider if she was, at that time, an impaired practitioner”: at [211].

24. [24]

    For the purposes of the extension of time application, the Tribunal also had regard to the strength of EFQ’s proposed grounds of appeal from the Council’s decision to impose a condition on her registration pursuant to s 150(1)(b), namely that she “not practise medicine”.

25. [25]

    One point of law related to the Council’s power to impose a condition that a practitioner not practise medicine. Another related to the question of whether or not there had been a breach of procedural fairness by the Council in conducting the hearing in EFQ’s absence, as well as in its denial of an adjournment of that hearing.

26. [26]

    Mr King also sought to attack the Council’s decision by reference to the decision of the Tribunal in Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 at [123] (Karimi), referred to with approval by Brereton JA in Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 at [9] (Ghosh), on the basis that the Council failed to take into account the need for the immediate imposition of the condition that EFQ not practise medicine, and matters of protection and unacceptable risk, even though these grounds had not been raised in the argument for an extension of time before the Tribunal. He submitted that these were mandatory considerations for the Council under s 150(1) of the National Law. Whether or not that is so (which is doubtful in the extreme cf. Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40), it is generally not open to a party to seek to impugn the exercise of a discretion for failure to consider a matter that was not put to the court or tribunal exercising the relevant discretion.

27. [27]

    EFQ should not be permitted to raise a fresh ground which was not put to the Tribunal. As Mr Stafford who appeared for the Council submitted orally, “[t]oday was the first time that the proposition was put that an error of law below was that there had been no attention to ‘immediate action’, ‘protection’ or ‘unacceptable risk’”. The sole ground of appeal put to the Tribunal was as follows:

28. [28]

    Both before the Tribunal and in argument in this Court, EFQ contended that the condition imposed by the Council that she not practise medicine was not a condition “relating to the practitioner's practising” medicine within the meaning of s 150(1)(b) of the National Law. It was submitted that it was the very opposite insofar as it prevented her from practising medicine.

29. [29]

    Section 150(1) of the National Law relevantly provides that:

30. [30]

    As Brereton JA observed in Kirby v Dental Council of NSW [2020] NSWCA 91 at [12] (Kirby):

31. [31]

    EFQ’s argument as to the Council’s power to impose a condition that she not practise medicine drew heavily on the reasoning of Simpson AJA on this precise question in Ghosh, where an identical condition had been imposed. The Tribunal rejected this contention, however, as it considered that Brereton JA in the same case had taken the contrary view, namely that such a condition could be imposed pursuant to s 150(1)(b) of the National Law, and that Emmett AJA had agreed in Ghosh with his Honour’s judgment, so that there was a majority which rejected Simpson AJA’s reasoning and supported the ability to impose a condition such as that imposed on EFQ.

32. [32]

    In my opinion, whilst there was no doubt as to Brereton JA’s views on the relevant question in Ghosh, the Tribunal was probably wrong to conclude that that was a majority view, and certainly wrong to conclude (at [76]) that “no other reasonable conclusion is available” and that the Tribunal was “therefore bound by the determination of the majority of the NSW Court of Appeal on the point of law relevant to this determination.” What Emmett AJA had relevantly said in Ghosh at [135] was that:

33. [33]

    It is not wholly or sufficiently clear from Emmett AJA’s judgment as to whether or not his Honour concurred with Brereton JA’s reasoning as to the Council’s power to impose a condition that Dr Ghosh not practise so as to result in a majority position of the Court, binding on the Tribunal.

34. [34]

    Although the Tribunal’s reasoning based upon a reading of Emmett AJA’s short judgment is at the very least open to doubt, that does not ultimately avail EFQ because I share the view of Brereton JA in Ghosh that the Council’s power pursuant to s 150(1)(b) of the National Law extends to a power to impose a condition, on an interim basis, that a doctor not practise medicine. It follows from this, given that Brereton JA has not departed from this view in the present proceedings, that the Tribunal did not ultimately err in its conclusion that the decision of the Council to impose the condition that it did was open to it and did not involve jurisdictional error. To that extent, it could not be said that the Tribunal’s exercise of its discretion in relation to the extension of time miscarried because of any error in point of law on its part.

35. [35]

    It is appropriate, in light of my support for the view of Brereton JA in Ghosh and the endorsement of his Honour’s reasoning in preference to that of Simpson AJA, that I briefly indicate my reasons for that position.

36. [36]

    Section 150(1) of the National Law permits the Council either to suspend or to impose conditions on the registration of a registered health practitioner. Suspension of registration is conceptually distinct from a restriction on the ability to practise, even a complete restriction. It may, for example, mean that a person could not hold themselves out as a health practitioner during the period of his or her suspension.

37. [37]

    If, as Mr King accepted in argument, the suspension of a doctor’s registration (which is expressly permitted and contemplated by s 150(1)(a) of the National Law) is a more “draconian” remedy than the imposition of a condition that a heath practitioner not practise medicine until the resolution of a complaint against him or her, it would be very strange indeed for Parliament to have authorised the suspension of registration, but not to have authorised imposing a temporary condition that a doctor was not to practise medicine pending the resolution of a complaint against him or her.

38. [38]

    There is no obvious reason why the legislature would hamstring the Council in terms of the range of interim protective measures it could impose pending resolution of a complaint against a health practitioner. That is especially so given the evident protective nature of the Council’s function and the wide language of the provision, which requires the Council either to suspend or impose conditions “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”. As Brereton JA observed in Kirby at [15]:

39. [39]

    Moreover, if the argument were correct (which I do not consider to be the case), it would presumably also have the consequence that a condition could not be put on a practitioner’s ability to practise for a certain period of time whilst he or she undertook some further training or education. Such a limitation, too, is unlikely to have been intended by the legislature.

40. [40]

    The Tribunal also rejected “as viable grounds of appeal which might give rise to a fairly arguable case” EFQ’s contention that she had been denied procedural fairness by the Council. Her proposed challenge on this ground was not considered to be sufficiently strong to warrant an extension of time, notwithstanding the lack of any cogent explanation for her delay in seeking to appeal the Council’s decision to impose an interim condition on her ability to practise medicine.

41. [41]

    For the reasons that follow, the Tribunal’s decision not to grant an extension of time was not vitiated by an erroneous view it took of the strength of EFQ’s argument based upon an alleged denial of procedural fairness by the Council.

42. [42]

    The HCCC received the Complaint in relation to EFQ on 9 February 2018.

43. [43]

    On 17 July 2018, EFQ provided her response to the HCCC in relation to the complaint.

44. [44]

    On 22 August 2018, the Council wrote to EFQ as follows in relation to the Complaint:

45. [45]

    EFQ responded by email the same day acknowledging “the contents including attachments I have received and reviewed.”

46. [46]

    On 10 September 2018, the Council sent a short email to EFQ reminding her that her response to the Council was due by 5pm the following day.

47. [47]

    By an email of 10 September 2018, EFQ requested a 90 day extension to respond to the complaint received and informed the Council that she had submitted “lengthy complaints to the Health Care Complaints Commission and the Independent Commission Against Corruption in relation to this matter”. She also advised that her solicitor was Mr Peter McKell (Mr McKell). Her email was as follows:

48. [48]

    On 11 September 2018, the Council responded as follows:

49. [49]

    On 24 September 2018, EFQ submitted a further detailed response to the Council, the terms of which it is not necessary to reproduce. It was, however, this response that Mr Stafford described in oral submissions as the “catalyst for the convening of the s 150 proceedings”.

50. [50]

    On 11 October 2018, EFQ was contacted by Ms Jenny Ratcliff (Ms Ratcliff) of the Council, and was informed that the Council had reviewed the Complaint against her and the response she had provided to the Council.

51. [51]

    On 12 October 2018, the Council wrote to EFQ as follows:

52. [52]

    On 19 October 2018 at 8.37am, Ms Ratcliff contacted EFQ, seeking a copy of her CV and confirmation that she had received the brief of documents that had been sent electronically on 17 October 2018, and offering to send a hard copy of these documents. The email also recommended that EFQ contact her medical indemnity insurer about the s 150 proceedings “as they may be able to provide advice and support at the hearing”.

53. [53]

    On 19 October 2018, EFQ sent the following email to the Council:

54. [54]

    On 22 October 2018, the Council wrote to Mr McKell advising him of the hearing to be held on 24 October 2018 and said:

55. [55]

    On 23 October 2018 at 8.52am, Ms Ratcliff emailed Mr McKell in the following terms:

56. [56]

    On 23 October 2018, Mr McKell responded to the email from the Council as follows:

57. [57]

    On 23 October 2018, the Council sent a letter to EFQ, which provided her with “Practice Conditions” to which she could consent. The letter stated:

58. [58]

    EFQ responded to this letter by email to the Council at 9.37am on 24 October 2018, as follows:

59. [59]

    On 24 October 2018 at 10.31am, Mr McKell wrote to the Council advising that he now acted for EFQ and had been provided with a copy of the letter from the Council dated 23 October 2018. He objected to the proposed course of action set out in the letter. He asserted that no particulars of the charge against EFQ were provided in the letter. (This observation was misconceived as there was no charge and the Council’s power under s 150 of the National Law to suspend or impose conditions on a registration is not dependent upon a complaint having been made.) Mr McKell asserted that it was contrary to the interests of natural justice to proceed to hear and determine EFQ’s suspension or removal from the profession in the manner set out by the Council, and advised that he had been informed by EFQ that the adjournment sought had been refused and that she had told him the Council proposed to proceed in her absence. He informed the Medical Council that “[i]t is clear in the circumstances that the proposed hearing cannot proceed.”

60. [60]

    At precisely the same time, 10.31am on 24 October 2018, the Council sent an email to EFQ responding to her email of 9.37am (see [58] above). The Council advised:

61. [61]

    The Council’s subsequently published reasons noted that EFQ did not return phone calls made to her during the hearing.

62. [62]

    In its reasons, the Council (which included two delegates who were psychiatrists), noted that it was not the purpose or remit of the hearing before it to consider conflicting accounts of the circumstances of EFQ’s employment and subsequent termination at Redbank House. The Council did, however, identify two areas of probable risk in the matter including by reference to EFQ’s written response of 24 September 2018, namely that she was suffering from an impairment which had the capacity to affect her clinical performance and so put the health and safety of the public at risk and that, as a result of the events in the workplace that led to her termination from Redbank House in January 2018, and/or as a result of her impairment, EFQ was preoccupied with legal matters “to such a degree that she was unwilling or unable to attend the s150 Hearing and by her report is currently unable to work.”

63. [63]

    Earlier in its reasons, the Council had noted that EFQ’s response to the Complaint contained a number of references to identity theft and fraud which predated her employment at Redbank House and observed that “[i]t would appear that [EFQ] has drawn a conclusion that the identity theft and fraud matters and [the complainant’s] complaint are connected and that the current complaint is designed to cover up these connections.” The Council also noted that, since the termination of her locum employment in January 2018, it would appear that EFQ “has been involved in legal matters, where she is the applicant, arising from her employment and at her report, this involvement has meant she has not been able to work as a psychiatrist.”

64. [64]

    Mr King submitted that the denial of procedural fairness manifested itself in a number of ways.

65. [65]

    He initially submitted that there was a lack of reasonable notice of the Council’s resolution to convene s 150 proceedings on 24 October 2018. Despite the Council’s reference at page 4 of its reasons to the fact that EFQ “was notified of [the s 150 hearing] on 17 October 2018”, this was a typographical error, with EFQ relevantly notified of the proceedings on 12 October 2018: see [51] above. EFQ was thus given 12 days’ notice of the relevant proceedings.

66. [66]

    This was ample notice and, in oral submissions, Mr King effectively acknowledged this, noting that his real complaint was in relation to the failure to grant EFQ an adjournment of the hearing on 24 October 2018: see appeal transcript at 28.10-14.

67. [67]

    A party which is given ample notice of a hearing cannot complain that there has been a denial of procedural fairness where he or she declines to participate in the hearing and the hearing proceeds in accordance with the adequate notification. Procedural fairness requires an adequate opportunity to participate to have been given, and a denial of procedural fairness cannot be generated by a deliberate or conscious decision not to participate in a hearing of which sufficient notice has been given.

68. [68]

    In Cuttler v Browne (2010) 201 IR 141; [2010] QCA 346 at [24], the Court addressed the question of notice as a component of procedural fairness in circumstances where the “evidence makes it abundantly plain that the applicant was avoiding service”. In such circumstances, it was held by Muir JA (with whom Holmes and Fraser JJA agreed) that “the applicant was not denied a right to appear and be heard. He merely failed to exercise such a right. There was no denial of procedural fairness”: at [25]. In Lewis v Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory (2013) 280 FLR 118; [2013] ACTSC 198 at [165], Refshauge ACJ said that “[i]t is clear on the authorities that a party who is given an opportunity to put his or her case but, through their own default, fails to take the opportunity, has no basis for complaint if they are not heard”, citing Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [27].

69. [69]

    Turning, then, to the focus on the question of an adjournment, it is clear that a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness: see, for example, Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 611; [2002] HCA 11 at [40]; and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [19] (Li). Review of the reasonableness or otherwise of the exercise of a discretion to grant an adjournment is informed by the considerations referred to by the High Court in Li. There is a stringency to the test for reviewing such a discretionary decision, particularly where the discretion is not exercised by a judicial body (see Li at [113]) even though the test of “legal unreasonableness” is not necessarily to be confined to the famous formulation associated with Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223: see Li at [66]-[72]. The stringency of the test is reflected, for example, in the language of Hayne, Kiefel and Bell JJ in Li at [76], namely that “[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”; see also the language of Gageler J in Li at [124]: “[n]o reasonable tribunal, seeking to act in a way that is fair and just, and according to substantial justice and the merits of the case, would have refused the adjournment”.

70. [70]

    In Sali v SPC Ltd (1993) 67 ALJR 841 at 845; [1993] HCA 47 (Sali), the majority of Brennan, Deane and McHugh JJ, albeit not in the context of judicial review proceedings, stated that “it is only in extraordinary circumstances that the interests of justice will be served by a refusal of an adjournment in a case… where the practical effect of the refusal is to terminate the proceedings”. In that case, their Honours found that one such “extraordinary circumstance” was made out where the application for an adjournment could be characterised accurately as a “mere delaying tactic”: at 845. See also Frugtniet v State Bank of New South Wales [1999] NSWCA 458 at [31]–[32] and [84]–[89]; and Menzies v CRCI Pty Limited [2007] NSWCA 118 at [30]–[33].

71. [71]

    In oral address, Mr King sought to characterise the Council’s refusal to adjourn as one that no Council acting reasonably could have reached. In terms of the language of the plurality in Li at [76], the question may be put in terms of whether or not the Council’s decision to refuse an adjournment lacked “an evident and intelligible justification.”

72. [72]

    In my view, the decision did not lack an evident and intelligible justification.

73. [73]

    Neither the Tribunal nor this Court was in a position to question the expert assessment by the Council, through its delegates, two of whom were practising psychiatrists, that there was a proper basis for imposing the condition it did on EFQ’s ability to practise medicine pending the determination of the complaint. It was the Council’s concern, as a result of its consideration of EFQ’s submission of 24 September 2018 as well as other evidence before it, which had led it to convene the s 150 hearing on 24 October 2018. That concern was reflected in the reasons it published on 20 December 2018, which have been referred to at [61]-[63] above. The Council’s conclusion, namely that the condition imposed was necessary in view of its consideration of the material before it, necessarily informs the assessment of the reasonableness of its decision not to grant the adjournment sought, in light of the Council’s protective jurisdiction under s 150(1) of the National Law and the obligations implicit in the conferral of that jurisdiction on the Council.

74. [74]

    In addition to that important matter, other considerations relevant to the decision to proceed with the hearing on 24 October 2018 included:

75. [75]

    Taking all of these considerations into account, coupled with the protective nature of the Council’s s 150 jurisdiction, the Tribunal was correct, in my opinion, to conclude that the refusal to grant the adjournment was not legally unreasonable and did not involve an error on a point of law.

Conclusion

1. [76]

   For all of the above reasons, the Tribunal’s decision to refuse an extension of time in which to challenge the Council’s decision to impose an interim condition on EFQ was open to it and not infected by appellable error.

2. [77]

   I would grant leave to appeal but dismiss the appeal with costs.

3. [78]

   MACFARLAN JA: I agree with Bell P.

4. [79]

   BRERETON JA: I agree with Bell P.