Pridgeon v Medical Council of New South Wales

1. [1]

   THE COURT: Dr William Russell Massingham Pridgeon was, until 29 October 2018, a general practitioner practising in Grafton in northern New South Wales. On that day, the Medical Council of New South Wales determined pursuant to s 150 of the Health Practitioner Regulation National Law (NSW) of 2009 to suspend his registration. Dr Pridgeon sought a review of that decision pursuant to s 150A. On 2 December 2020, the Medical Council affirmed the order for suspension of Dr Pridgeon’s registration as a medical practitioner.

2. [2]

   Dr Pridgeon then appealed from these determinations to the New South Wales Civil and Administrative Tribunal. On 30 June 2021, the Tribunal dismissed Dr Pridgeon’s appeals: Pridgeon v Medical Council of New South Wales [2021] NSWCATOD 89. Dr Pridgeon seeks leave to appeal from that decision.

Background

1. [3]

   The circumstances that led to the decision of the Medical Council on 29 October 2018 were characterised by the Tribunal as “extraordinary”. They may be described briefly as follows.

2. [4]

   Dr Pridgeon was charged by the Australian Federal Police and later the Queensland Police with offences against the respective criminal codes of the Commonwealth and Queensland. The charges related to Dr Pridgeon’s role in harbouring and/or supporting a woman and her twin daughters, who had been removed by her from a place in Queensland and not returned to the custody of their father. Dr Pridgeon understood that the children’s father was, at the time they were removed by their mother, named as a residential parent by order of the Family Court of Australia and the parent with whom the Family Court had ordered the children to live. At the time when the mother took and secreted the children, Dr Pridgeon understood that she only had a right of supervised contact with them.

3. [5]

   Dr Pridgeon gave evidence in the Tribunal that he had been informed by the mother that the children’s father had sexually abused them. Dr Pridgeon understood that the mother had drawn these allegations to the attention of the Queensland Police, the Family Court and Queensland child protection agencies but was told that these allegations had neither been believed or accepted nor acted upon by these entities in order to protect the children. Dr Pridgeon gave evidence in the Tribunal that the mother had informed him that the children had been anally raped and sexually violated by their father. Dr Pridgeon had observed, when he first had contact with the children on their arrival in Grafton in 2014, that they appeared to be terrified of him. He interpreted that fear as a fear of men in general. Dr Pridgeon said he was present on an occasion when one of the children complained to her mother about bleeding from the anus. He observed blood in the toilet bowl. Dr Pridgeon had been told by the mother that the children had complained of painful genitalia, leading him to conclude that they were infected with genital herpes, a condition the father was said to have had at the time. Dr Pridgeon did not examine the children.

4. [6]

   These circumstances resulted in Dr Pridgeon being arrested on 17 October 2018 and charged with a number of criminal offences, including two charges of conspiring to defeat justice contrary to s 42 of the Crimes Act 1914 (Cth) and two charges of child stealing contrary to s 363(1)(b) of the Criminal Code (Qld). These charges carried maximum penalties of imprisonment for 10 years and 7 years respectively. The child stealing charges were withdrawn on either 21 or 22 September 2020. Other counts of dealing with the proceeds of crime contrary to s 400.4(1)(a) of the Criminal Code (Cth) and of unlawful stalking contrary to s 359E(1) of the Criminal Code (Qld) were also withdrawn.

5. [7]

   It should immediately be observed, as the Tribunal itself emphasised, that the action taken by the Medical Council against Dr Pridgeon had no foundation in a complaint made by a patient or another medical practitioner about any of Dr Pridgeon’s functions performed or executed by him in the treatment of his patients. Nonetheless, the decision of the Medical Council was based upon what the Medical Council described as a risk to the health and safety of the public ([16] below).

6. [8]

   The precipitating event for the action taken against Dr Pridgeon was his highly publicised arrest by the AFP. The Tribunal accepted, “from the evidence of [Dr Pridgeon] and the manner in which he gave his evidence, that [he] was convinced of the veracity of the allegations made by and on behalf of the children, and was compelled by his empathy for the children and personal ethical view of life to do what he could to protect [them].”

Medical Council’s first decision

1. [9]

   The Medical Council received information about Dr Pridgeon’s arrest, and the charges laid against him, from the Health Care Complaints Commission on 18 October 2018. The HCCC had received this information from the AFP. On 23 October 2018, the Medical Council wrote to the solicitor representing Dr Pridgeon in the criminal proceedings, indicating that the Council was considering suspending his registration as a medical practitioner based upon the information it had received. It said that Dr Pridgeon had the opportunity to give reasons to the Council as to why his registration should not be suspended. Dr Pridgeon was asked to provide a response within a matter of days.

2. [10]

   Under the heading “Summary of complaint”, the Council stated that it had received information that he had been charged with the offences outlined above and that the AFP alleged that he was involved in, and had provided material support to, a child abduction ring in contravention of orders made by the Family Court. Dr Pridgeon had not, in fact, been charged with providing material support to a child abduction ring.

3. [11]

   The Medical Council did not identify any reason why the AFP had, or may have, provided its information to the HCCC to be passed on by the HCCC to the Medical Council. The AFP had no obvious or apparent interest in Dr Pridgeon’s right to continue to practise. No complaint had been made against Dr Pridgeon by anyone under s 144 of the National Law.

4. [12]

   The Medical Council’s letter then continued under the heading “Council’s proposal to suspend your registration” in these terms:

5. [13]

   Dr Pridgeon provided responses on 26 and 27 October 2018. In his first letter he admitted that he had sheltered and protected two young children at the request of their mother, and that he had done so after being asked to assist by the late Professor Freda Briggs AO. He admitted that he knew that the children had been placed in the custody of their father by the Family Court and he described the circumstances in which he had been told that they were being sexually abused and that their mother had taken the children and fled. Dr Pridgeon said:

6. [14]

   Dr Pridgeon denied the allegations that there was a “child abduction ring” or that he had been paid any money. He also clearly denied that he had any prior relationship with the children’s mother. He appended a report from Professor Briggs on the abuse of children which he said helped him to understand what had happened. Dr Pridgeon also indicated that he had expended all his savings in the protection of other people’s children and could no longer afford legal representation.

7. [15]

   In his second letter, Dr Pridgeon made a further submission in which he observed that the Medical Council was asking him to defend allegations without his having seen the actual allegation or who made it and without any supporting evidence. He asked for a copy of the complaint. This was not provided because no complaint had ever been made. He was given the AFP statement of facts. Dr Pridgeon’s letter then went on to record the following:

8. [16]

   The Medical Council was not persuaded. It said the following:

Comment

1. [17]

   The Medical Council did not decide the matter on the basis of what was in the public interest, but upon the basis of whether Dr Pridgeon posed a risk to the health and safety of the public. There was no material that suggested that what Dr Pridgeon had done had endangered the health or safety of anyone. The contrary was true. The Medical Council did not seek to identify how Dr Pridgeon’s actions had posed a risk to the health and safety of children who had been in his care for four years or why his actions might be regarded as a significant concern to the health and safety of children more generally. If that concern were based on the AFP allegation that Dr Pridgeon was involved in, or had provided material support to, a child abduction ring, it was ill-founded as any such allegation was never the subject of a charge and was denied by Dr Pridgeon in any event. The conclusion of the Medical Council that Dr Pridgeon posed a risk to the health and safety of the public had no evidentiary foundation and was irrational.

2. [18]

   Moreover, whether Dr Pridgeon was a fit and proper person to practise medicine was never an issue before the Council. No complaint was made against Dr Pridgeon about how he practised as a doctor. Nor was there any complaint that he was not a suitable person to do so. The question of whether Dr Pridgeon was a fit and proper person to continue practising medicine was never in issue and the finding that he was not was a breach of procedural fairness.

3. [19]

   On 15 January 2020, Dr Pridgeon asked the Medical Council to review the decision to suspend his registration. The Council conducted a review on the papers and resolved to affirm its earlier decision. Dr Pridgeon made another such request on 16 September 2020. On 19 October 2020, the Council again confirmed its earlier decision.

The Tribunal’s decision

1. [20]

   Dr Pridgeon’s appeal to the Tribunal was not decided upon the ground that he posed a risk to the health and safety of the public upon which basis the Medical Council had suspended his registration. The Tribunal instead determined to uphold his suspension on the ground of public interest.

2. [21]

   The appeal to the Tribunal was an appeal de novo in which the Tribunal was to be placed in the same position as the Medical Council. Accordingly, the Tribunal was not called upon to consider whether the Medical Council’s decision disclosed error.

3. [22]

   The following paragraphs of the Tribunal decision should be noted:

4. [23]

   It appears from [193] of the Tribunal’s reasons that before the Tribunal the Medical Council (which took an active role as contradictor) did not seek to maintain the basis upon which it had suspended Dr Pridgeon’s registration, namely that he posed a risk to the health and safety of the public, but on the ground of public interest.

Grounds of appeal

1. [24]

   Dr Pridgeon raised several grounds of appeal. As will become apparent, it is sufficient for present purposes to note that Dr Pridgeon asserts that the Tribunal improperly exercised its power by purporting indefinitely to suspend his registration as a medical practitioner pursuant to s 150 of the National Law by doing so for a purpose other than those for which the power was conferred. He also maintained that the Tribunal erred in law because it acted without any factual basis upon which the exercise of the power under s 150 depends.

Dr Pridgeon’s submissions

1. [25]

   Dr Pridgeon’s submissions are detailed and comprehensive. They appear to have been prepared without the benefit of legal assistance. That appearance notwithstanding, Dr Pridgeon has directed specific and focussed attention on s 150, its perceived nature and purpose, and what he characterises as a failure by the Tribunal properly to give effect to it.

2. [26]

   Dr Pridgeon emphasises two principal points. First, at no time has his competence as a medical practitioner been questioned. He is not the subject of any complaint or suggestion that he is neither qualified nor fit, in some specified technical or practical way, to practise as a general practitioner as he had done successfully for many years.

3. [27]

   Secondly, Dr Pridgeon emphasises that s 150 deals with and is directed to suspension of medical practitioners in cases of emergency or where the circumstances call for urgent consideration of whether a medical practitioner should be permitted to retain his or her registration. Dr Pridgeon relied upon the statement of principles applying to a consideration of s 150 by the Tribunal in Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 at [9] as follows:

4. [28]

   Dr Pridgeon submitted that there was no emergency to warrant the use of the emergency power to suspend his registration. Moreover, the Tribunal’s assessment of what was in the public interest erroneously proceeded upon the stated need to maintain confidence in the medical profession and was based upon nothing more than the fact that he faced charges that were yet to be dealt with according to law and which did not in any event raise the spectre of the safety of the community or the protection of the public. It could not be said that there was in any event a demonstrable nexus between the substance of the charges he faces and the reputation of the medical profession.

Medical Council’s submissions

1. [29]

   It is a basic principle of statutory construction that the Court considers the statutory text, read in light of the context of the provision, including the Act as a whole.

2. [30]

   The Medical Council submitted that the text of s 150 is clear. There is no statutory requirement for a time limit to be placed on a suspension made pursuant to this section: the Medical Council must order the suspension of a registered health practitioner “if at any time it is satisfied it is appropriate to do so for the protection of the health and safety of any person … or if satisfied the action is otherwise in the public interest”: s 150(1)(a). A suspension of a registered health practitioner’s registration has effect until the complaint about the practitioner is disposed of or the suspension is ended by the Medical Council: s 150(2).

3. [31]

   In this case, the Tribunal held at [205] that it considered it to be “in the public interest to take action under s 150 of the National Law”. The Tribunal then noted the various actions it could take under s 150 at [210] including the possibility of imposing conditions on Dr Pridgeon’s registration: at [212]. However, it ultimately held, after considering all the facts presented by the parties afresh, that “the suspension of [Dr Pridgeon’s] registration as a medical practitioner is necessary in the public interest and should be imposed pursuant to s 150 of the National Law” and that the suspension “should continue until [Dr Pridgeon] has concluded his trial and then makes another application pursuant to s 150A of the National Law. It will then be for the Medical Council to determine if any further action is necessary”: at [219].

4. [32]

   The Medical Council maintained that this is consistent with the statutory requirements.

5. [33]

   The Council submitted that it is not relevant that other provisions of the National Law state that a registered health practitioner’s registration should be suspended for a “specified period”. This is because the powers in s 150 form part of a selection of emergency powers that were introduced into the National Law by the Health Practitioner Regulation Amendment Bill 2010. In the Second Reading Speech for this Bill, Ms Carmel Tebbutt, the then Minister for Health, specifically noted that these suspension powers were not time limited.

6. [34]

   Accordingly, it was submitted that imposing a suspension without a specified time limit is not contrary to the intentions of Parliament. Nor does the lack of a time limit mean that a suspension under s 150 is not an interim measure or protective in nature. In Ghosh, Brereton JA observed at [5] that:

7. [35]

   His Honour then referred at [9] to the Tribunal’s decision in Karimi v Medical Council of New South Wales [2017] NSWCATOD 180.

8. [36]

   With respect to the public interest grounds, the Medical Council noted that Dr Pridgeon essentially complains that the Tribunal failed to establish that it was in the public interest to suspend his registration. He also contends that there was no evidence upon which the Tribunal could satisfy itself that suspending his registration was in the public interest or alternatively, that it failed to give sufficient weight to the evidence that he provided showing that public interest favours his actions in “protecting children when systems patently failed”. Finally, Dr Pridgeon contends that the Tribunal’s findings were illogical/unreasonable because the only conclusion on the evidence before it was that the public supported his “acts to protect the twins… as protecting children in all circumstances augments trust and regard for the profession”.

9. [37]

   These submissions raise mixed questions of law and fact. There can be an error of law where there is no evidence to support a finding of fact or where the decision is so unreasonable that no reasonable decision-maker would make it. However, a complaint that a tribunal has failed to give proper weight to some aspect of the evidence in its decision-making process is a complaint about the tribunal’s reasoning in determining a question of fact. Therefore, Dr Pridgeon requires leave to appeal on such ground.

10. [38]

    Regardless of whether the complaint raises a question of law or a question of fact, the Medical Council submitted that none of Dr Pridgeon’s complaints indicates any error on the part of the Tribunal for the following reasons.

11. [39]

    “Public interest” is not defined in the National Law. However, when considering the principles for decisions under s 150, the Tribunal referred at [111]-[114] to the Court of Appeal’s decision in Ghosh where Brereton JA referred at [9] to the Tribunal’s decision in Karimi which set out the scope of the public interest test at [123] cited earlier.

12. [40]

    The sentiment was echoed in Steel v Medical Council of New South Wales [2020] NSWCATOD 77 at [30] as follows:

13. [41]

    In McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70; [2005] FCAFC 142, Tamberlin J held at [9]-[11] that the expression “in the public interest”

14. [42]

    In the current matter, the Tribunal held that it was satisfied that it was in the public interest to suspend Dr Pridgeon’s registration because:

15. [43]

    The Medical Council submitted that, contrary to Dr Pridgeon’s submissions, these findings were based on evidence, specifically the oral evidence, given by Dr Pridgeon at the hearing, where he conceded “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” and “He was aware at that time there were family law proceedings on foot”. The Tribunal also noted that “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, Dr Pridgeon agreed”. He also agreed he did not trust the Family Court. When it was put to him that he does not trust child protection agencies, “he said he didn’t in the past”. He also said, “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.”

16. [44]

    There was also significant documentary evidence before the Tribunal about the criminal charges Dr Pridgeon is facing. The Medical Council submitted that together this evidence was sufficient for the Tribunal to conclude that the public interest test had been met.

17. [45]

    The Council also contended that, contrary to Dr Pridgeon’s other submission that the Tribunal failed to give sufficient weight to his evidence that showed there was a public interest in favour of his continuing to practise as a general practitioner, the Tribunal clearly took this into account, noting at [213(7)] that it considered the fact that “there is evidence that a cohort of prior and possibly prospective patients would willingly engage [Dr Pridgeon] as their medical practitioner knowing of the charges laid against him and the circumstances out of which the charges arose”. The Council submitted that there is also no basis for the assertion that the Tribunal’s decision was illogical or unreasonable as there was clearly sufficient basis for the Tribunal concluding that the public interest test had been met.

18. [46]

    The Medical Council submitted that the appeal should be dismissed.

Consideration

1. [47]

   Division 3 of Pt 8 of the Health Practitioner Regulation National Law (NSW) of 2009 is headed “Complaints”. The heading of the Division and the Subdivisions are to be taken to be part of the Act: Interpretation Act 1987 s 35(1). The headings to the sections are not to be taken to be part of the Act but a part of the extrinsic material that can be used in the construction of the Act as allowed by ss 34, 35(2) and (5). Subdivision 1 is headed “Making complaints” and includes s 144 which sets out the grounds of complaint that can be made about a registered health practitioner:

2. [48]

   It is not suggested in the present case that Dr Pridgeon has been guilty of unsatisfactory professional conduct or professional misconduct as defined in ss 139B-139E. Relevantly, the definition of unsatisfactory professional conduct includes “any other improper or unethical conduct relating to the practice or purported practice of the practitioner’s profession”: s 139B(1). Being convicted of a criminal offence is not unsatisfactory professional conduct unless it is a conviction arising from conduct that is an offence under nominated sections of the Mental Health Act 2007, the Children and Young Persons (Care and Protection) Act 1998, the Guardianship Act 1987, the Health Insurance Act 1973 (Cth) or the Private Health Facilities Act 2007: s 139C. Professional misconduct is sufficiently serious unsatisfactory professional conduct: s 139E.

3. [49]

   Dr Pridgeon is accused of none of these things.

4. [50]

   Nor has Dr Pridgeon been convicted of any offence. There was no charge that he was guilty of unprofessional conduct or professional misconduct, or that he lacked competence or was impaired. There has been no charge that he was otherwise not a suitable person to hold registration as a medical practitioner, even though that is the gravamen of the findings of the Medical Council and the Tribunal.

5. [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: s 144D. Section 145D provides:

6. [52]

   By reason of the limitation in s 145D(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. If a complaint had been made, Dr Pridgeon would have been entitled to attend the meeting of the Medical Council at which the complaint was considered and to make submissions: s 148D(1).

7. [53]

   This is the setting in which s 150 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 public”. .

8. [54]

   Section 150 provides relevantly as follows:

9. [55]

   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 question for the Council is whether it should act under s 150 where no complaint has been made.

10. [56]

    The context indicates that the usual way in which a complaint against a doctor should be dealt with is by the making of a particularised complaint, which the doctor can address at an oral hearing and which, if sufficiently serious to warrant suspension, is to be referred to the Tribunal. This suggests that the power of the Medical Council to suspend a doctor’s registration under s 150 should be reserved for urgent cases. This is confirmed by the Explanatory Note relating to s 150, which refers to the Medical Council’s powers “to act where it is necessary to take urgent action for the protection of the public”, and the Second Reading Speech for the Health Practitioner Regulation Amendment Bill 2010, which referred to cases of urgency or emergency in the following terms:

11. [57]

    Additionally, although there is no definition of “public interest”, the content of the expression is informed by the heading to Subdivision 7 that the powers provided by s 150 are to be exercised for the protection of the public.

12. [58]

    It is apparent that the Tribunal recognised that Dr Pridgeon was, in the circumstances that faced him, in effect presented with a dilemma: see, for example, [218] of the Tribunal decision. The Tribunal considered that it was reasonable for Dr Pridgeon to believe that the twin girls had been the subject of sexual abuse and that it was probably inflicted by their father. Dr Pridgeon was therefore confronted with a choice between assisting their mother to hide the children from their father whom he reasonably believed to be abusing them or to allow them to be returned to their father because he was entitled to their custody in accordance with an order of the Family Court.

13. [59]

    In his submissions to the Medical Council, Dr Pridgeon, who was at that time unable to afford legal representation, made no reference either to s 70NAE of the Family Law Act 1975 (Cth) or to s 286 of the Criminal Code (Qld). Those provisions are relevantly as follows:

14. [60]

    Dr Pridgeon ultimately made reference to s 70NAE in his submissions to the Tribunal. However, the Tribunal did not refer to it in its decision.

15. [61]

    Dr Pridgeon said that he was unaware of s 70NAE when he wrote his letter relied on by the Medical Council in its first decision. Even in the absence of a defence under s 70NAE, we would not consider that Dr Pridgeon’s deliberate contravention of the law or of the orders of the Family Court would warrant a finding that it was in the public interest that his registration be suspended.

16. [62]

    As already noted, the Tribunal recognised that the circumstances that led to the decision of the Medical Council on 29 October 2018 were “extraordinary”. It is by any measure a rare and exceptional case.

17. [63]

    With respect to the Tribunal’s finding at [201], this is not a case in which a doctor merely says that an order of the Family Court should be disregarded or evaded because he or she considers or perceives the order to be wrong. Dr Pridgeon was not concerned with whether the order was “right” or “wrong” but was concerned only with what he feared would be the inevitable consequences of complying with the order. The Tribunal accepted that he believed that complying with the order would have resulted in the perpetuation of further abuse of the children.

18. [64]

    The Tribunal's indication at [202] and [207] that the term "honourable practice" in the phrase "honourable practice of an honourable profession" must include a requirement that members of the medical profession act within the law at all times is in our view problematic, and begs the question in light of s 70NAE of the Family Law Act and arguably s 286 of the Criminal Code (Qld). It is also not consistent with the notion that there are some circumstances in which a person can, without a stain on his or her honour, commit a felony: see, for example, In Re a Solicitor; ex parte the Incorporated Law Society (1889) 5 LT 486 at 486-487. Although there may be some circumstances where a tribunal or statutory authority may be empowered to make a finding as to the likelihood that a criminal offence had been committed as a step in taking disciplinary action (as to which, see Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 at [93]), it is the courts that are charged with the duty of determining guilt or innocence, not the Medical Council or the Tribunal.

19. [65]

    The second sentence of [207] suggests that it was because Dr Pridgeon had been charged with committing a criminal act, carrying the possibility if convicted of a significant period of incarceration, that confidence in the medical profession might thereby be reduced and that his suspension from practice was therefore justified. We do not accept that in the circumstances of the present case. Although the Tribunal was at pains to say that it accepted the presumption of innocence, the statement that the charging of Dr Pridgeon with serious criminal offences was enough to justify his suspension from practice is entirely inconsistent with its existence. It deprives the presumption of any meaningful content.

20. [66]

    The Tribunal's observations at [208]-[209] are to like effect. The fact that Dr Pridgeon faces serious criminal charges could not, without more, require the Tribunal to take the "significant step" to which it referred. The public interest is not obviously served by the suspension of a competent and experienced doctor whose medical skills are not in question and whose services are in demand simply because he has been charged with offences in respect of which he would appear to have a good arguable defence. The Tribunal's reference (at [201]) to the undermining of the rule of law proceeds, in the particular circumstances of this case, upon the unspoken assumption, possibly encouraged by his commendably guileless submissions, that Dr Pridgeon will in all likelihood be convicted. The troublesome nature of that assumption will be immediately apparent.

21. [67]

    From our consideration of these matters, the following errors emerge.

22. [68]

    First, in the context of Subdivision 7, the reference to the “public interest” should be understood as a reference to the public interest in the protection of the public’s health and safety. The content to be given to that protection must take its meaning from the conduct of the practice of medicine in respect of which a medical practitioner’s registration is granted. In the present case, the relevant public interest must be in the conduct by Dr Pridgeon of his profession as a medical practitioner. There may, arguably, be some wider, unspecified public interest in limiting the potential for the rule of law to be undermined by conduct of a medical practitioner that is said to be in defiance of an order of the court, but which is unrelated to the practice of medicine which the National Law regulates. However, the honourable reputation of the medical profession that is said possibly to be affected by conduct of that description is not a concern that relevantly informs the particular public interest in the protection of the public with which s 150 is concerned.

23. [69]

    Secondly, and in any event, it could not (yet) be said that Dr Pridgeon’s alleged defiance of the court’s orders undermines the rule of law. His actions may be found to have been justified under s 70NAE(4) of the Family Law Act or he may otherwise be acquitted by a jury, in the case of the Commonwealth offences, or by a judge or jury, in the case of the State offences. For any number of reasons about which it is unnecessary to speculate, Dr Pridgeon’s guilt is not a foregone conclusion. Although the Tribunal paid lip service to the presumption of innocence and did not make findings of guilt, its conclusions were patently infected by assumptions of guilt.

24. [70]

    Thirdly, the context of s 150 suggests that it should only be invoked as an emergency power where the circumstances are urgent. The Medical Council’s submissions specifically acknowledge and accept that the powers in s 150 form part of a selection of emergency powers that were introduced into the National Law. However, that is not this case. This implication arises from 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. There was no urgency in this matter at any time before or during the Tribunal hearing.

Conclusions and orders

1. [71]

   It follows in our opinion that leave to appeal should be granted and that the appeal should be allowed. The orders of the Tribunal and the Medical Council should be set aside.

2. [72]

   The orders of the Court are:

   1. (1)

      Extend the time for the applicant to file his notice of appeal and application for leave to appeal to 2 November 2021.

   2. (2)

      To the extent necessary, grant the applicant leave to appeal.

   3. (3)

      Allow the appeal.

   4. (4)

      Set aside the orders of the Civil and Administrative Tribunal of 30 June 2021.

   5. (5)

      Set aside the orders of the Medical Council of New South Wales of 29 October 2018 and 2 December 2020.

   6. (6)

      Order that the respondent pay the applicant’s costs of proceedings in this court.