Kirby v Dental Council of NSW

[2020] NSWCA 91

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Kirby v Dental Council of NSW [2020] NSWCA 91
Hearing dates:	22 August 2019
Date of orders:	12 May 2020
Decision date:	12 May 2020
Before:	Payne JA at [1] Brereton JA at [8] Emmett AJA at [140]
Decision:	(1) Leave to appeal be granted; (2) The appeal be dismissed; (3) The applicant pay the respondent’s costs.
Catchwords:	ADMINISTRATIVE LAW – bias rule – actual or apprehended – apprehended – where apprehended bias alleged on basis of interest incompatible with role – whether primary judge erroneously considered notion of degree of closure of mind   ADMINISTRATIVE LAW – whether reviewable error of law – jurisdictional error – whether NCAT constructively failed to exercise jurisdiction
Legislation Cited:	(NSW) Civil and Administrative Tribunal Act 2013, Sch 5, cl 29(2), cl 29(4)(b) (NSW) Health Practitioner Regulation National Law, Part 8, Div 3, Subdivs 2, 3, 4 and 5, s 3A, s 41G, s 144C, s 145B, s 150, s 150A, s 150D, s 150F, s 150H, s 159, s 159B, s 159C, s 164A (NSW) Supreme Court Act 1970, s 75A(8), s 101(2)(r)
Cases Cited:	Agricultural Societies Council of NSW v Christie (2016) 340 ALR 560; [2016] NSWCA 331 Australian Workers Union v Bowen (No 2) (1948) 77 CLR 601; [1948] HCA 35 Builders' Registration Board of Queensland v Rauber (1983) 47 ALR 55 Burton v Osteopathy Council of New South Wales [2015] NSWCATOD 150 Cains v Jenkins (1979) 28 ALR 219 Campbell v Higgins (1957) 3 FLR 317 Carver v Law Society of New South Wales (1998) 43 NSWLR 71 Choy v Tiara Coal Ltd (in liq) (2018) 98 NSWLR 493; [2018] NSWCA 205 City of London v Wood (1701) 12 Mod 669; 88 ER 1592 Concrete Pty Ltd v Parramatta Design & Developments Ply Ltd (2006) 229 CLR 577; [2006] HCA 55 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Ethell v Whalan [1971] 1 NSWLR 416 Hanna v Medical Council of NSW [2017] NSWCATOD 27 Health Care Complaints Commission v Kirby [2019] NSWCATOD 47 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 Khan v Medical Council of NSW [2016] NSWCATOD 88 Kirby v Dental Council of New South Wales [2017] NSWCATOD 64 Kirby v Dental Council of New South Wales [2018] NSWSC 1869 Leeson v General Council of Medical Education and Registration (1889) 43 Ch D 366 Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17 Maclean v The Workers Union [1929] 1 Ch 602 Mady and Discipline Committee of the Royal College of Dental Surgeons, Re (1974) 50 DLR (3d) 494 McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Murray v Legal Services Commissioner (1999) 46 NSWLR 224; [1999] NSWCA 70 R v Lee (1882) 9 QBD 394 R v Medical Board of South Australia; ex parte S (1976) 14 SASR 360 S (a Barrister), In re [1981] QB 683 Schabas and Caput of University of Toronto, Re (1974) 52 DLR (3d) 495 Sharman v New Zealand Association of Counsellors Inc [2014] NZAR 638; [2013] NZHC 3553 Stollery v Greyhound Racing Control Board (1972) 128 CLR 509; [1972] HCA 53 Thompson v New South Wales Branch of the British Medical Association [1924] AC 764 Ward v Bradford Corporation [1970] LGR 27
Texts Cited:	J R S Forbes, Justice in Tribunals (5th ed, 2019, The Federation Press)
Category:	Principal judgment
Parties:	David Kirby (applicant) Dental Council of New South Wales (respondent)
Representation:	Counsel: DF Villa SC w JC Sheller & D Tang (applicant) PA Horvath w K Lindeman (respondent) Solicitors: Graham Billing & Co (applicant) Health Professionals Council Authority (respondent)
File Number(s):	2018/382846
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2018] NSWSC 1869 Date of Decision: 6 December 2018 Before: Barrett AJ File Number(s): 2017/158598

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 18 December 2015, following a complaint that Dr Kirby, the applicant and a registered dentist, was applying a substance known as “Cansema” to the skin of some of his dental patients as a purported treatment for skin cancer, the Dental Council of New South Wales (“the Council”), the respondent, by its duly appointed delegates (“the Delegates”) suspended Dr Kirby’s registration pursuant to s 150(1)(a) of the Health Practitioner Regulation National Law (NSW) (“the National Law”). On 12 February 2016, following a review under s 150A of the National Law, the Council (by the Delegates) lifted the suspension, and instead imposed conditions on Dr Kirby’s registration.

On 28 April 2017, Dr Kirby’s appeal to the New South Wales Civil and Administrative Tribunal (“NCAT”) challenging both the s 150 decision to suspend his registration and the s 150A decision to impose conditions was dismissed. On 6 December 2018, Dr Kirby’s appeal to the Supreme Court from the NCAT decision was dismissed. From that decision, Dr Kirby sought leave to appeal to this Court.

The ultimate issue on the appeal was whether the primary judge erred in holding that NCAT did not err in law. The proposed grounds of appeal raised two issues. First, whether NCAT should have held that the Council’s two decisions were affected by apprehended bias. This proposed ground of appeal arose because the Delegates of the Council who were charged with making decisions as to Dr Kirby’s right to practice had had prior involvement in the investigation of the complaint against Dr Kirby. Second, whether NCAT, in confirming that the conditions imposed on Dr Kirby’s registration were appropriate, failed to exercise its jurisdiction under s 159 of the National Law. This proposed ground of appeal challenged whether NCAT conducted a rehearing on the question of conditions attached to Dr Kirby’s practice in accordance with s 159(3) of the National Law.

The Court per Brereton JA, (Payne JA and Emmett AJA agreeing) held, dismissing the appeal:

As to Issue 1

1. The primary judge recognised and proceeded on the basis that the applicant’s case was one of apprehended bias founded on incompatibility of roles arising from prior involvement of the Delegates in investigating the complaint. In that context, the primary judge was right to apply the Ebner test: [64], [67], [68], [136].

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, applied.

2. The primary judge did not fail to appreciate the distinction between an “interest” case and a “prejudgment” case. Although the “degree of closure of mind” is less significant in an “interest” case than in a “prejudgment” case, the manner in which the primary judge used that notion was not erroneous: [63], [72], [73], [79], [136].

Carver v Law Society of New South Wales (1998) 43 NSWLR 71; McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209; Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20, discussed.

3. The primary judge rightly held that the prior involvement of the Delegates was not such as to invest them with an “interest” incompatible with constituting the Tribunal that determined the s 150 proceedings: [86], [137].

4. In the relevant statutory context, there was no incompatibility between the involvement of the Delegates in investigating the complaint and their being the Council’s delegates for the purpose of considering whether s 150 action should be taken. This is because nothing they did was such, alone or together, as to associate them, in any reasonable view, with contending for any particular outcome of that consideration: [92], [137].

Murray v Legal Services Commissioner (1999) 46 NSWLR 224; [1999] NSWCA 70; Carver v Law Society of New South Wales (1998) 43 NSWLR 71; Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20, discussed and distinguished.

As to Issue 2

5. NCAT did not constructively fail to exercise its jurisdiction. Insofar as the point was raised before the primary judge, his Honour rightly held that no error was demonstrated in NCAT’s approach to the imposition of conditions on Dr Kirby’s registration: [120], [123], [133], [138].

As to leave

6. While leave would ordinarily not be granted as the decisions are interlocutory in nature, have already been appealed twice, and have not been shown to involve any relevant error of law, the consideration of important provisions of the National Law which to date have received little attention, in the context of a proceeding which was fully heard as an appeal on a concurrent hearing, warrant a grant of leave: [7], [139].

Judgment

1. PAYNE JA: I have had the benefit of reading the judgment of Brereton JA in draft. I agree with his Honour’s reasons and the orders he proposes.

2. As to Dr Kirby’s principal complaint, as Brereton JA explains, the statutory context in the present case was that the Dental Council of New South Wales (“the Council”) was bound to act if a particular state of affairs appeared to it. Section 150 of the Health Practitioner Regulation National Law (NSW) (“the National Law”) imposes a positive duty on the Council to act, in one of several specified ways, if the Council is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons or otherwise in the public interest. The Council’s duty to act does not depend on the existence of an initiating complaint. Here, the Council was satisfied that Dr Kirby’s conduct made it appropriate to act to protect the public health and safety of citizens of New South Wales.

3. The decision to embark on a consideration of exercising the s 150 function was not a preliminary decision which involved a requirement to be satisfied of anything. It was a decision to examine whether to exercise any of the Council’s powers under s 150, in a context where, if there were no complaint at all, it was open to the Council to do so of its own motion. Consideration of the subject matter, scope and purpose of the National Law leads to a conclusion that merely by participating in a decision to embark on consideration of whether or not to exercise its s 150 power, members of the Council are not thereby disqualified from deciding whether that power should be exercised.

4. Barrett AJ, the primary judge, correctly identified the applicant’s case as being one of apprehended bias founded on incompatibility of roles arising from the prior involvement of delegates of the Council in preliminary stages. The primary judge was right to apply the test set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63. His Honour’s application of that test was correct. The prior involvement of the delegates of the Council was not such as to invest them with an “interest” incompatible with their constituting the Tribunal that determined the s 150 proceedings.

5. As to the second complaint made by Dr Kirby, the New South Wales Civil and Administrative Tribunal (NCAT) did not constructively fail to exercise its jurisdiction. As Brereton JA explains, insofar as the point was raised by Dr Kirby before the primary judge, his Honour rightly held that no error was demonstrated in NCAT’s approach to the imposition of conditions on Dr Kirby’s registration.

6. My reasons for joining on the order refusing leave to Dr Kirby to adduce further evidence are encompassed in those given by Brereton JA.

7. Ordinarily in a case such as the present, involving what is essentially the third appeal from an interlocutory order, leave to appeal to this Court should be refused. In this case, however, the reasons of Brereton JA contain a detailed consideration of important provisions of the National Law which have to date received little attention in this Court. For that reason leave to appeal should be granted.

8. BRERETON JA: On 18 December 2015, following a complaint that the applicant Dr Kirby, a registered dentist practising in Molong in Central Western New South Wales, was applying a substance known as "Cansema" to the skin of some of his dental patients as a purported treatment for skin cancer, the respondent Dental Council of New South Wales (“the Council”), by its duly appointed delegates Dr O'Reilly (who at all material times was the Chair of the Council), Dr Fryer and Ms MacDougal (together, “the Delegates”), pursuant to s 150(1)(a) of the (NSW) Health Practitioner Regulation National Law (“the National Law”), suspended his registration. On 12 February 2016, following a review under s 150A of the National Law, the Council (by the Delegates) lifted the suspension, and instead imposed conditions on Dr Kirby's registration. Dr Kirby appealed to New South Wales Civil and Administrative Tribunal (“NCAT”), challenging both the s 150 decision (to suspend his registration) and the s 150A decision (to impose conditions). On 28 April 2017, NCAT dismissed the appeal. [1] Dr Kirby then appealed to the Supreme Court. Barrett AJ, sitting in the Common Law Division, dismissed that appeal on 6 December 2018. [2] From that judgment, Dr Kirby now seeks leave to appeal to this Court. [3]

   1. Kirby v Dental Council of New South Wales [2017] NSWCATOD 64 (“NCAT decision”).

   2. Kirby v Dental Council of New South Wales [2018] NSWSC 1869 (“Primary judgment”).

   3. Leave is required because the judgment below is a final judgment or order in proceedings of the Court, which does not involve a matter at issue amounting to or of the value of $100,000 or more, or any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more: (NSW) Supreme Court Act 1970, s 101(2)(r).

9. Because Dr Kirby’s appeal to the Supreme Court was confined – in the absence of leave, which was not sought – to a question of law,[4] the ultimate issue for this Court, should leave be granted, is whether the primary judge erred in holding that NCAT did not err in law. The proposed grounds of appeal raise two issues. The first is whether NCAT should have held that the Council's two decisions were affected by apprehended bias. The second is whether NCAT, in confirming that the conditions imposed on Dr Kirby's registration were appropriate, failed to exercise its jurisdiction under s 159 of the National Law.

   4. (NSW) Civil and Administrative Tribunal Act 2013 (NCAT Act), Sch 5, cl 29(4)(b) gives an appeal as of right "on any question of law", and an appeal, with the leave of the Supreme Court, "on any other grounds". Dr Kirby did not seek leave, so his appeal to the Supreme Court was confined to one on a question of law.

The statutory scheme

10. In the National Law, s 3A ("Objective and guiding principle [NSW]"), states:

In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.

11. Section 150 is the first provision in Subdiv 7 ("Powers of a Council for protection of public [NSW]") of Div 3 ("Complaints [NSW]") of Pt 8 ("Health, performance and conduct") in the National Law. It relevantly provides as follows:

150 Suspension or conditions of registration to protect public [NSW]

(1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest—

(a) by order suspend a registered health practitioner's or student's registration; or

(b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or

(c) by order impose on a student's registration the conditions the Council considers appropriate.

(2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens—

(a) the complaint about the practitioner or student is disposed of;

(b) the suspension is ended by the Council.

…

(4) A Council for a health profession may take action under this section—

(a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and

(b) whether or not proceedings In respect of a complaint about the practitioner or student are before a Committee or the Tribunal.

…

(6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned.

(7) If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who—

(a) is not a registered health practitioner or student in the health profession for which the Council is established; and

(b) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act.

12. Exercise of the power under s 150(1) to suspend or impose conditions necessarily requires that the Council undertake an evaluation of circumstances concerning a practitioner that come to its notice. Although a complaint may be the means by which relevant circumstances that require consideration of action under s 150 may come to a Council's notice,[5] s 150(4) makes clear that a complaint is not necessary to enable the Council to act; in other words, it may act of its own motion.

    5. Section 150 appears in a context concerned with complaints, and a Council is designated, by s 144C, as a recipient of complaints.

13. Whether the Council acts on a complaint or of its own motion, it must – except in the case of impairment[6] – refer the matter to the Health Care Complaints Commission (“HCCC”) to be dealt with as a disciplinary complaint which, if considered appropriate, will result in disciplinary proceedings. Section 150D relevantly provides as follows:

    6. National Law s 150D(5)(a).

150D Referral of matter to Commission [NSW]

(1) A Council must, as soon as practicable but no later than 7 days after taking action under section 150, refer the matter to the Commission for investigation.

…

(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.

Note. See section 145D which provides that both Council and the Commission have a duty to refer a complaint to the Tribunal if, at any time, either of them is of the opinion that the complaint, if substantiated, would provide grounds for the suspension or cancellation of the registered health practitioner’s or student’s registration.

…

(5) This section does not apply if a Council takes action against a registered health practitioner or student under section 150—

(a) because, in the Council’s opinion, the practitioner or student has an impairment; or

(b) that is action of a kind referred to in section 150(5).

14. Under s 150(2), a suspension imposed under s 150(1) continues until “the complaint … has been disposed of” or the relevant Council ends the suspension. Similarly, by s 150H, a condition imposed under s 150 continues, if the matter is dealt with as a complaint, until the complaint is disposed of, or the conditions are removed by the Council. Thus (putting to one side cases of impairment), if the complaint is dismissed, whether before or after the institution of disciplinary proceedings, any suspension or condition will lapse; if proceedings in the Tribunal or a Professional Standards Committee result in disciplinary action, that action will thereafter operate in place of any suspension or conditions imposed by the Council under s 150. The s 150 action is, therefore, essentially interlocutory in nature, pending the outcome of the HCCC investigation under s 150D and any ensuing disciplinary proceedings.

14. In the context of a provision headed "Suspension or conditions of registration to protect public", and the objective and guiding principle stated in s 3A, the touchstone for the exercise of the Council’s power under s 150(1) to make an order suspending the practitioner's registration or imposing conditions on it is that the Council be satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons, or that the action is otherwise in the public interest. If so satisfied – regardless of how the matter comes to its attention – it must act. The power is conferred purely for the protection of the public, and thus the Council’s sole concern is what if any action is required for the protection of the health and safety of any relevant persons and/or the public interest. This is not a professional disciplinary power, but purely protective. Although disciplinary proceedings may flow from s 150 action (as a result of the referral to the HCCC under s 150D), they are dealt with separately, under other provisions of the National Law which provide for dealing with complaints. [7] As NCAT in its decision rightly observed, the role of a Council in undertaking a s 150 inquiry is to protect the public, and in a case such as the present, where serious allegations have been made which, if true, could lead to suspension or cancellation of the practitioner's registration but the evidence is incomplete and further investigation is needed, the issue for the Council is not whether the allegations are proved, but whether the evidence establishes a risk to the public requiring suspension, or imposition of a condition, for protection of the public. [8]

    7. Part 8, Div 3, Subdivs 2, 3, 4 and 5 of the National Law.

    8. NCAT decision at [97].

15. Under s 150A, a practitioner may apply for a review of a decision under s 150, and unless the Council considers that the application for review is frivolous or vexatious, it must reconsider its decision and, in doing so, consider any new material or evidence submitted by the practitioner that the Council reasonably considers to be relevant. Following any reconsideration, the Council may affirm or vary its original decision, or set it aside and take any action that the Council has power to take under s 150:

150A Review of certain decisions [NSW]

(1) A registered health practitioner or student may apply to a Council for the review of a decision of the Council under section 150 to—

(a) suspend the practitioner's or student's registration; or

(b) impose conditions on the practitioner's or student's registration or alter conditions imposed on the practitioner's or student's registration.

(2) On receiving an application for review, a Council—

(a) may refuse to reconsider its decision if, in the Council's opinion, the application Is frivolous or vexatious; or

(b) must otherwise reconsider its decision, and in so doing must consider any new evidence or material submitted by the practitioner or student that the Council reasonably considers is relevant.

(3) Following its reconsideration of a decision, a Council may—

(a) affirm or vary the decision; or

(b) set It aside and take any action the Council has the power to take under section 150.

(4) A Council may vary or set aside a decision only if the Council is satisfied there has been a change in the registered health practitioner's or student's circumstances that justifies the variation or setting aside of the decision.

17. Section 41G of the National Law provides that a Council "may appoint any 2 or more members of the Council to exercise the functions of the Council under Division 3 of Part 8". Section 150(7) expressly recognises that such delegation is permitted in relation to the s 150 and s 150A functions.

Background

The investigation

18. In July 2015, Dr Andrew Green, a dentist, was informed by a patient that she had been treated by Dr Kirby for skin cancer with Cansema. Dr Green consulted Dr O'Reilly – presumably at least partly because of his standing as Chair of the Council – as to what he should do, and Dr O'Reilly said that Dr Green was bound to report the matter to the HCCC.

19. On or about 6 August 2015, the HCCC received from Dr Green a completed complaint form, in which he outlined what he had been told by his patient and expressed concern that the treatment described by the patient was outside the normal scope of dental practice and placed the patient at risk (“Dr Green’s complaint”). On or about 18 August 2015, the HCCC forwarded Dr Green’s complaint to Dr Kirby and requested his response, and a copy of his medical records for the patient in question. Dr Kirby responded, denying the allegations, and asserting that the person concerned had never been a patient of his dental practice; however, his response left open the question whether, though she might not have been a dental patient, he had nonetheless treated her, for cancer, with Cansema. In October 2015, consultation between the HCCC and the Council resulted in the referral of Dr Green’s complaint to the Council’s Complaints and Notifications Committee (“the Complaints Committee”) for further investigation, to:

Consider a possible inspection at Dr Kirby's practice to examine his patient records to check if these files exist and to inspect if there are any alleged "Cansema" drugs on the premises.

20. On 21 October 2015, the Council wrote to Dr Kirby, stating that Dr Green’s complaint had been referred to it "for management", and that "any outstanding material relevant to the complaint and any other written submissions that you wish to provide" were "required" by 4 November 2015. Dr Kirby responded on 4 November 2015 that, since the Council had not provided any additional material in relation to the complaint, he did not consider it necessary to provide any further response.

21. On 6 November 2015, the Complaints Committee (in a meeting attended by Dr Burges, Dr Burns, Mr McGlynn, Dr Pearman and Mr Owen) considered a "brief” which recommended that it determine “a course of action for the complaint in accordance with section 145B of Health Practitioner Regulation National Law (NSW)”. The Complaints Committee recommended that the Council require an inspection of Dr Kirby’s practice, for the following “reasons”:

Kirby denies treating patient.

Need to determine if unlicensed/illegal product is being used- Cansema sounds like a very nasty product and would be a source of concern

22. On the same day, the Council itself (in a meeting attended by its full membership of twelve, including the Delegates) considered the recommendation of the Complaints Committee and resolved to authorise an inspection of Dr Kirby's practice, to:

retrieve the record of the subject patient … , inspect the records of Dr Kirby's practice to ascertain if any patients are receiving this treatment, whether there is any evidence to support the complaint and to assess Dr Kirby's compliance with the Dental Board of Australia's Guidelines on infection control.

23. The question of infection control was new, and was introduced by the Council: it had not been raised in Dr Green’s complaint, nor in the referral by the HCCC to the Complaints Committee, nor in the recommendation of the Complaints Committee.

24. Pursuant to the Council's resolution, Dr Brendan White inspected Dr Kirby's practice on 27 November 2015. Dr White produced a report dated 1 December 2015, which addressed the use of Cansema (by reference to a patient file retrieved by Dr White from Dr Kirby's records, for a patient GzB, and his opinion as to the practice’s compliance with the infection control guidelines.

25. On 2 December 2015, the Council’s Executive Officer, Ms Bains, prepared and provided to the members of the Council (including the Delegates) a consultation paper, to inform them of the result of Dr White's inspection and ascertain their views on the appropriate way forward; it was accompanied by supporting documents, including the inspection report of Dr White and the GzB patient file. The consultation paper included the following information:

Source of notification of concern: Notification by Dr Andrew Green to the Health Care Complaints Commission.

Summary of incident/concern: In his complaint Dr Green states that [Patient A] is a long standing patient of his practice since 1992. [Patient A] informed Dr Green that she was diagnosed with a [basal cell carcinoma] of the nose and that she was receiving treatment from Dr David Kirby, a general dentist, involving the administration of an illegal substance (CANCEMA). Dr Green claims that it places the patient at considerable risk of metastases and Dr Kirby is treating patients outside of the normal scope of practice for a dentist.

Dr Kirby provided his response to the Commission on 19 August 2015 where is [sic] denied the allegations made by Dr Green in his complaint and stated that [Patient A] is not his patient or anyone else in his dental practice and therefore, there are no medical records available relating to [Patient A]. [Patient A] also advised the HCCC that she had never been a patient of Dr Kirby.

Dr Green spoke to the HCCC on 25/8/2015 and informed her [sic] that Dr Kirby told him that he has treated 12 other patients with similar conditions by administering 'cansema' …

This matter was considered by the Council on 6 November 2015 where it was resolved to have an authorised person inspect the premises. Dr Brendan White undertook this inspection on 27 November 2015.

Dr White reported that one of the patient records is highly irregular and contains a number of entries relating to "cancema", and this requires further investigation and the practise [sic] is not compliant with infection control requirements and presents a risk to public safety.

26. The paper then asked the members of the Council to indicate which of the following options they preferred as the appropriate action to be taken:

Option A: Convene proceedings to consider taking action pursuant to s 150.

Option B: Consult with the Health Care Complaints Commission with a view of referring the matter for investigation.

Option C: Consideration of course of action to be referred to the next Council/Committee meeting.

Option D: No need to convene s 150 proceedings on the basis that the triggering issue did not warrant consideration of urgent interim action.

27. When they were considering these options, at least some of the councillors had received comments circulated by email by Dr Burges, a member of the Council, as follows:

Now in this case I think we have a really serious issue, I looked at cancema when the initial complaint was made and it is a very nasty substance with no clinical evidence it does any good, but potentially to cause [sic] significant harm and certainly outside the scope [of] dental practice.

There is potential for a life threatening outcome here, the issue of poor infection control makes this even easier, this looks bad.

I opt for option A.

28. By 3 December 2015, eight of the twelve members of the Council (including each of the Delegates) had replied, all eight selecting Option A. Pursuant to an authority previously conferred on her by a standing delegation made to her under s 41J of the National Law, Ms Bains exercised its power of delegation under s 41G to appoint two or more members to perform the s 150 function in the particular case. On that same day, the Council then informed Dr Kirby that it had "determined to hold proceedings pursuant to section 150", that the proceedings would "take place" at 9am on 11 December 2015 at the Council's office, and that Dr O'Reilly, Dr Fryer and Ms Bell were "the Council's delegates who will conduct the proceedings".

The s 150 proceedings

29. The three originally-appointed delegates (Dr O'Reilly, Dr Fryer [9] and Ms Bell) met with Dr Kirby and his support person (a barrister, Mr Walsh) on 11 December 2015. At the outset, Ms Bell said that infection control was not the main concern, which was the original complaint by Dr Green. After a short hearing, the proceedings were adjourned – on account of an issue, raised by Mr Walsh, about the validity of Dr White’s authority to undertake the inspection, and the lawfulness of the seizure of the file relating to GzB – to continue part heard on 15 December 2015. A request by Mr Walsh to have them continue on a different date was refused.

    9. Although there was no record of Dr Fryer’s presence, both parties appeared to accept, before Barrett AJ, that Dr Fryer was in attendance: see Primary judgment at [20] and fn 7.

30. However, it transpired that Ms Bell was not available on 15 December. On 11 December 2015, the Council sent an email and letter to Dr Kirby which confirmed that the delegates had resolved to adjourn the proceedings to address the concerns about Dr White’s authority, and stated:

The Council will convene new proceedings on Tuesday 15 December at 2.00pm.

31. On 14 December 2015, a new s 41G delegation was made (by the Deputy Executive Director, Ms Carroll, under a standing 41J delegation), to Dr O’Reilly, Dr Fryer and Ms MacDougal. In correspondence between Dr Kirby's solicitors and the Council on 14 December 2015, the Council confirmed that new proceedings would be commenced on 15 December 2015 and, in effect, that Ms MacDougal would replace Ms Bell.

32. The new delegates met with Dr Kirby and his support person (again Mr Walsh) on 15 December 2015. At the commencement, Dr O'Reilly made a statement to the effect that the reason why new proceedings were commenced was the unavailability of Ms Bell. A submission on behalf Dr Kirby that the seizure of the file relating to GzB was unlawful because of the invalidity of Dr White’s authority, and concerns about Dr O'Reilly sitting as a delegate on account of his prior involvement with Dr Green in initiating his complaint, were rejected. The proceedings were adjourned part heard to 18 December 2015.

33. On 16 December 2015, after Dr Kirby realised that he had hospital patients booked in on 18 December 2015 for dental treatment under general anaesthetic, his solicitors requested an adjournment to another date. This was refused, and a further request made by Dr Kirby's solicitors on 17 December 2015 did not receive a response (unsurprisingly, given the timeframe). A further letter was sent by Dr Kirby to the Council on the evening of 17 December 2015, which included an offer to submit to conditions in relation to Cansema, and an invitation to reinspect his dental practice.

34. The hearing proceeded in the absence of Dr Kirby on 18 December 2015. At its conclusion the Delegates resolved to suspend Dr Kirby. Written reasons dated 27 January 2016 were provided for the decision, and included the following:

As noted before the delegates were satisfied that the record for [GzB] represented a clinical record in Dr Kirby's practice. The references in that record to other persons accompanied by notations regarding the application of cansema as well as many prescriptions for scheduled and restricted pharmaceuticals satisfied the delegates that Dr Kirby was non compliant in his practice. Some of the drugs being prescribed by Dr Kirby such as Valtrex, Ativan and Scheriproct are not drugs ordinarily used in the practice of dentistry. Although Dr Kirby said that his involvement with persons using cansema were not his patients, the overwhelming evidence in the opinion of the delegates was to the contrary. Without any explanation from Dr Kirby about this clinical record the delegates could not be satisfied that he knew and understood that he was practising in a manner that put the public at risk. In relation to the infection control issues identified by Dr White, Dr Kirby had not offered a satisfactory explanation. His reliance on an outdated inspection in 2002 by Dr Dalton demonstrated to the delegates that he did not understand the current guidelines. When considered with the matters raised in the clinical record the delegates were satisfied that Dr Kirby does not have the necessary standard of practice and knowledge and understanding to ensure that the public's health and safety is protected.

The delegates gave careful consideration to whether or not conditions might be imposed upon Dr Kirby. Dr Kirby's election not to answer their questions in relation to the clinical record was problematic for the delegates. The delegates were left with no explanation as to the matters that have been identified in these reasons. The delegates were concerned that members of the public could be led into believing that Dr Kirby had the necessary qualifications to treat ailments not related to the practice of dentistry, when this was not the case. Dr Kirby demonstrated no understanding of this position.

The delegates were also satisfied that the standard of record keeping as it relates to the prescribing of medications demonstrated conduct that was significantly below the standard that standard [sic] reasonably expected of a practitioner of an equivalent level of training and experience.

Accordingly, the delegates considered they had no alternative than to suspend his registration.

ORDER

Pursuant to section 150(1)(a) of the National Law (NSW) the delegates suspended Dr David William Kirby's registration on 18 December 2015 with effect from 5:00pm.

REFERRAL

We refer this matter for investigation by the Health Care Complaints Commission under section 150D of the National Law (NSW).

35. As Barrett AJ observed,[10] the December 2015 decision was described by the Delegates themselves as "an interim measure to protect the health and safety of the public", and the suspension of Dr Kirby's registration was intended, clearly enough, to operate until varied or until the complaint had been determined. [11]

    10. Primary judgment at [26].

    11. Consequent upon the s 150D referral, in July 2018, the HCCC made an application to NCAT, seeking findings that Dr Kirby's conduct constituted professional misconduct, and orders including suspension or cancellation of Dr Kirby's registration. Dr Kirby unsuccessfully sought a permanent stay of that proceeding: Health Care Complaints Commission v Kirby [2019] NSWCATOD 47. Dr Kirby has since commenced proceedings in the Supreme Court for a stay.

The s 150A review

36. On 4 January 2016, Dr Kirby applied for a review, pursuant to s 150A, of the decision to suspend him, and provided submissions in support of that review on 3 February 2016.

37. The same delegates heard the review proceedings on 12 February 2016. It is apparent, from the reasons for the original decision, that the absence of any explanation by Dr Kirby, who was not available to provide one as he did not attend, had contributed to the Delegates’ concerns. At the review hearing, Dr Kirby was present, with his support person. As the applicant observed in submissions in this Court, at the hearing on 12 February 2016 the Delegates gave some attention to whether members of the public could be led into believing that Dr Kirby had the necessary qualifications to treat ailments not related to the practice of dentistry, when he did not.

38. The Delegates found no evidence that Dr Kirby lacked competence in his practice, and determined that Dr Kirby's suspension should be "lifted",[12] and that instead conditions should be placed on his registration as a dental practitioner, with effect from 17 February 2016. The conditions, which limited the procedures Dr Kirby was permitted to undertake, restricted him from undertaking sole dental practice, prohibited him from dealing with certain drugs, and subjected him to certain reporting obligations, were set out in a Notice of Conditions sent by the Council to Dr Kirby under cover of a letter dated 19 February 2016, and were as follows:

    12. Plainly, this was intended to “end” the suspension, for the purposes of s 150(2)(b).

1. The practitioner's procedures are limited to:

a) examinations

b) restorations

c) minor periodontal procedures

d) minor oral surgery

e) crown and bridgework

f) scale and cleaning

Any patient requiring procedures not listed above must be referred to another dental practitioner.

2. Not to undertake solo dental practice.

3. Within seven (7) days of the end of each calendar month, the practitioner is to provide the Dental Council of NSW with a record of all procedures undertaken in the last month, until such time the Council decides these reports are no longer necessary. The record must include the following:

a) the date and time of each procedure;

b) the patient's name;

c) the nature of the procedure;

d) the place of the procedure; and

e) the referral pathway of any patient requiring procedures not listed in condition one (1).

any complications arising as a result of the procedure (and specifically advising of any unplanned further treatment and/or any infection).

4. Must not to [sic] possess, supply, administer or prescribe any 'drug of addiction' (Schedule 8 drug); and any 'restricted substances' (Schedule 4 drugs) as defined by Poisons and Therapeutic Goods Act 1966 (NSW), with the exception of:

●   Articaine

●   Bupivacaine

●   Lignocaine

●   Mepivacaine

●   Prilocaine

5. The practitioner is to provide written evidence to the Dental Council of NSW by close of business on 22 February 2016, that he has attended the offices of the Pharmaceutical Services Unit of the NSW Ministry of Health, and consented to an Order being made under the Poisons and Therapeutic Goods Regulation 2008 to prohibit him from possessing, supplying, administering or prescribing any 'drug of addiction' (Schedule 8 drug); and any 'restricted substances' (Schedule 4 drugs) with the exception of:

●   Articaine

●   Bupivacaine

●   Lignocaine

●   Mepivacaine

●   Prilocaine

6. Any future change to the practitioner’s Schedule 8 and Schedule 4 authority must include consultation with the Dental Council of NSW before the submission, or variation application, is made to the Pharmaceutical Services Unit of the NSW Ministry of Health.

7. To forward evidence to the Dental Council of NSW within seven (7) days of 17 February 2016 that he has provided a copy of the practice conditions to all registered dental practitioners in any place that he works.

8. To obtain Dental Council of NSW approval prior to changing the nature or place of his practice.

9. To advise the Dental Council of NSW in writing at least seven (7) days prior to changing the nature or place of his practice.

10. Within seven (7) days of a change in the nature or place of his practice, the practitioner is to forward evidence to the Dental Council of NSW that he has provided a copy of the practice conditions to all registered dental practitioners in any place that he works.

11. To authorise the Dental Council of NSW to exchange information with current and future persons or organisations at places where he works as a dental practitioner in Australia, regarding any issues arising in relation to compliance with these conditions. The practitioner must only be employed as a dental practitioner in circumstances where the employer has agreed to notify the Council of any breach of the conditions or unsafe practice; and exchange information with the Council related to compliance with the conditions.

The following conditions are private and do not appear on the public register

12. Must attend for a health assessment by a Psychiatrist appointed by the Dental Council of NSW. The cost of this assessment will be at the Council's expense.

39. Although it was not relevant to any ground of appeal before this Court, the applicant submitted that following a referral for a health assessment (as in Condition 12), ss 145B(1) and (3) apply and the matter ceases to be a complaint. That is so, if the Council is dealing, under s 145B, with a complaint. However, the Council was not performing any function under s 145B; it was acting under s 150. In those circumstances, s 145B(3) has no relevance.

40. On 24 March 2016, written reasons were provided for the s 150A decision of 12 February 2016. Relevantly, they stated:

The central issue for us to consider is whether Dr Kirby poses a risk to the safety or health of the public that warrants action to be taken by the Council. We may also consider whether it is generally for us to take action in the public interest.

We are concerned about Dr Kirby's pattern of prescribing as shown in the [GzB] file]. Even if this file is to be accepted as a private file (and the evidence in our opinion does not support that) the clinical file for [Patient B] shows a pattern of prescribing for conditions which in our opinion are not related to the practice of dentistry. In his written submissions and oral evidence given at the hearing, Dr Kirby maintained his view that the prescriptions that he provided to [Patient B] were for dental treatment only. We were not convinced by his arguments as both records produced to us suggest otherwise. To his credit, once Dr Kirby had read the definitions referred to in the Code of Conduct referred to above, he conceded that he had breached the boundaries of his personal life and his professional life. In addition, as noted in the Reasons for Decision dated 27 January 2016, there was a clear pattern of dental treatment being provided to [Patient B] that straddled the entries related to the application of cansema.

In our opinion, Dr Kirby does pose a risk to the safety or health of the public and that the public interest does require us to take action…

We are of the view that Dr Kirby's registration does not require suspension. We have no evidence before us that he lacks competence in his practice. At the hearing he told us that he engages in ‘general dentistry’. We believe that the following orders are appropriate to deal with our concerns.

41. There followed the 12 conditions which were referred in the Notice of Conditions, and then:

REFERRAL

We refer this matter for consultation with the HCCC pursuant to section 150F of the National Law (NSW). We are of the view that the matter should be dealt with as a complaint for investigation.

42. In response to a query from Dr Kirby, on 13 April 2016 the Council informed him that the reference to s 150F in the referral to the HCCC was a typographical error, and that "the Council referred the complaint to Health Care Complaints Commission under Section 150D(3) of the Law; not Section 150F which relates to impairment”. The letter was accompanied by a revised version of the written reasons dated 24 March 2016, in which the referral was amended to read as follows:

REFERRAL

We refer this matter for consultation with the HCCC pursuant to section 150D of the National Law (NSW). We are of the view that the matter should be dealt with as a complaint for investigation.

43. It was of relevance to Dr Kirby’s appeal to NCAT that the conditions did not refer specifically to Cansema or complementary medicine, nor to infection control. However, it is clear from the reasons, including the passage extracted above, that the concerns about him prescribing for ailments which were not related to the practice of dentistry closely overlapped the Cansema issue. Essentially, it was a concern that a dentist, entitled as such to use the title “Doctor”, might be offering treatments for non-dental ailments, and was directly and closely related to his alleged provision of Cansema.

The appeal to NCAT

44. Dr Kirby appealed to NCAT against both the s 150 decision of December 2015 and the s 150A decision of February 2016, under both s 159 (merits review) and 159B (error of law) of the National Law. His grounds of appeal were to the effect that:

1. he was denied procedural fairness in the proceedings on 11 December 2015, 15 December 2015, 18 December 2015, 27 January 2016, 12 February 2016 and 24 March 2016 by reason of the reasonable apprehension of bias due to the conduct of Dr O'Reilly (on all of the above dates), Dr Fryer (on all of the above dates) and Ms MacDougal (on all of the above dates save 11 December 2015) (ground 1). Denial of procedural fairness is an error of law, so this ground alleged error of law;

2. the decision on 18 December to suspend his registration was against the evidence and the weight of evidence, and upon the evidence no suspension of his registration should have been ordered (grounds 2 and 3). These grounds allege error of fact, not of law;

3. the decision to suspend his registration was a result of an error of fact and/or law (ground 4). However, no specific error was identified;

4. the decision on 12 February 2016 to impose conditions on his registration was against the evidence and the weight of the evidence, and upon the evidence no conditions should have been imposed on his registration (grounds 5 and 6), and in the alternative, if any conditions were appropriate, the conditions that were imposed were inappropriate and too onerous, were unnecessary and prevent him from practising dentistry properly, disadvantage patients and ought to be modified or revoked (ground 7). Again, these grounds alleged error of fact, not law;

5. the decision to impose conditions on his registration was a result of an error of fact and/or law (ground 8). Again, however, no specific error was identified.

45. Thus only ground 1 clearly asserted error of law and, it being an allegation of denial of procedural fairness and having regard to what was said by the High Court in Concrete Pty Ltd v Parramatta Design & Developments Ply Ltd, [13] NCAT dealt with it first. Dr Kirby's contention was, in summary, that each of the Delegates had been involved in proceedings of the Council preceding the hearings in December 2015 and February 2016 at which they made decisions affecting Dr Kirby, and that their earlier involvement was such as to disqualify them, on natural justice grounds, from acting, as they did, as the decision-makers.

    13. (2006) 229 CLR 577; [2006) HCA 55 at [1]-[2].

46. Accepting that, generally, "investigations and proceedings into disciplinary matters must be conducted according to the standards of procedural fairness, [and] the requirements of procedural fairness are superimposed on the statutory framework by the general law, and so may extend beyond the specific requirements of the statute”,[14] NCAT noted that the parties agreed that the general law test of apprehended bias is the so-called "double might" test enunciated by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy ("Ebner"),[15] and concluded, having regard to the applicable statutory provisions, that a fair-minded observer would expect that the Council, when performing its s 150 or s 150A function, should be open to persuasion about whether or not to exercise its power.

    14. NCAT decision at [58].

    15. (2000) 205 CLR 337; (2000] HCA 63 at [6]; NCAT decision at [75]. The test is set out at [64] below.

47. The issue, therefore, was whether a fair-minded observer might reasonably apprehend that the Council might not bring an impartial and unprejudiced mind to the resolution of the question it was required to decide. NCAT was not satisfied that the fair-minded lay observer might reasonably apprehend a possibility of lack of impartiality in the making of the December 2015 decision and the February 2016 decision, for two main reasons: first, that the Council, in embarking on a s 150 inquiry, would be seen to be acting not as an accuser but in order to inform itself within its statutory processes in order to make an informed decision whether or not it needed to take action for the protection of the public; and, secondly, that it might be concluded that the Council gave Dr Kirby the “benefit of the doubt” by ordering an independent investigation before coming to any conclusion to suspend his registration. In reaching that conclusion, NCAT dealt with what it perceived to be some inconsistency between the decisions of this Court in Carver v Law Society of New South Wales [16] and McGovern v Ku-ring-gai Council, [17] taking the view that McGovern had superseded Carver.

    16. (1998) 43 NSWLR 71.

    17. (2008) 72 NSWLR 504; [2008] NSWCA 209.

48. Having dealt with the apprehended bias issue, NCAT proceeded to consider the other grounds of appeal. For present purposes, only the question of the conditions imposed on Dr Kirby's registration by the February 2016 decision is relevant. Before NCAT, Dr Kirby submitted that the conditions were not in any way related to the issue of infection control or Cansema, but were "completely misconceived", and went well beyond any reasonable need to address any risk to public health and safety, particularly as the Council had recognised that there was no question about his competence as a dentist; he submitted that there was no logical nexus between the concerns entertained by the Delegates and most of the conditions they imposed.

49. The Council responded that the conditions were proper, having regard to evidence that Dr Kirby had a belief that he was entitled to treat patients' ailments which were well beyond the usual practice of dentistry (including shingles, haemorrhoids, dehydration, constipation, food poisoning and anxiety), thus indicating a risk to the public warranting a restriction on his activities; that he had been providing healthcare services to members of a "Cansema group" (some of whom may also have been dental patients) in his dental surgery, suggesting a failure to maintain professional boundaries; and that he had been prescribing medications not "for dental treatment only", and did not appreciate that there may have been a danger associated with doing so. The Council submitted that the fact that Dr Kirby's clinical skills were not in issue did not equate to an absence of concerns about his practice of dentistry.

50. NCAT accepted that the conditions did not "correlate neatly" with the risks identified as a result of the February 2016 hearing, particularly in light of the Delegates' view that Dr Kirby's registration did not require suspension and their finding that there was no evidence that Dr Kirby lacked competence in his practice. However, having regard to the whole of the material before it, NCAT had "grave concerns about Dr Kirby's insight and practices", observing that had the Council submitted that suspension should be re-instated, it would have "given very serious consideration to taking this course", because of the "unsatisfactory evidence given by Dr Kirby during the course of his cross-examination". NCAT’s ultimate conclusion was:[18]

The Tribunal considers, in light of the entirety of the evidence before it, that the Second Decision imposing conditions on Dr Kirby's registration should be confirmed and the appeal dismissed.

18. NCAT decision at [154].

The proceedings below

51. Dr Kirby appealed to the Supreme Court, contending that NCAT should have allowed the appeals against the decisions of the Council and set them aside. As has been noted, absent leave, which was not sought, the appeal to the Supreme Court was confined to a question of law. [19] Dr Kirby's main contention was that NCAT should have found that the s 150 decision and the s 150A decision of the Council were infected by denial of procedural fairness and, in particular, apprehended bias. As Barrett AJ observed:[20]

Those shortcomings, if established, would represent good grounds for setting aside the decisions of the Dental Council. But that is not the question before this court. The court's task is to decide whether the subsequent decision of NCAT concerning the decisions of the Dental Council is susceptible to challenge "on any question of law". Lack of procedural fairness within the Dental Council could ground such a challenge only if NCAT, in dealing with the appeal from the Dental Council, had failed to deal adequately with that shortcoming so that NCAT's own decision was in need of correction by the court in exercise of its jurisdiction to deal with questions of law.

19. The right of appeal is given by cl 29(2) of Sch 5 of the (NSW) Civil and Administrative Tribunal Act 2013 (“the NCAT Act”). Such an appeal is confined to questions of law: cl 29(4)(b).

20. Primary judgment at [4].

52. Ultimately, by a further amended summons, Dr Kirby complained of error of law on the part of NCAT on the following four grounds:

1. NCAT applied the wrong test for apprehended bias by applying the test of prejudgment instead of the test for perceived conflict of interest through prior involvement and failed to take into account the multiple failures of the members of the Council to disclose prior involvements in the matter when determining whether the test for apprehended bias had been made out.

2. NCAT failed to determine that the proceedings of the Council were not conducted according to law in that (a) it did not tell Dr Kirby that they were proceedings at which he was required to attend and answer questions, (b) it told him (wrongly) that he was attending at the hearing voluntarily, and (c) it denied him legal representation (other than allowing a lawyer to be a support person).

3. NCAT failed to remove conditions imposed by the Council on 12 February 2016 in circumstances where it found that the conditions did not bear on Dr Kirby's ability or fitness to practise.

4. NCAT failed to consider certain identified evidence and submissions critical to the proper reconsideration of the matter.

53. The Council disputed that there was any apprehended bias, but alternatively argued that if there were, it had been “cured” by the new hearing in NCAT.

54. As has been noted, the appeal was dismissed. While those parts of his Honour’s judgment which are important to this appeal are discussed further below, essentially his Honour concluded:

1. As to ground 1, NCAT's conclusion that there had been no denial of procedural fairness or breach of the rules of natural justice was correct. Nothing in the facts before NCAT was capable of grounding an objectively based apprehension that justice might be compromised if the Delegates played the decision-making roles they in fact undertook. [21] In those circumstances, it was unnecessary to decide whether the NCAT proceeding "cured" any denial of natural justice, but his Honour doubted whether there would have been any "curing", because the powers of NCAT on appeal were not “on all fours” with those of the Council; [22]

2. Ground 2 was not upheld. [23] As it does not feature in the present application, no further elaboration is required;

3. As to ground 3, the issue of Dr Kirby's fitness to practise and whether conditions were needed was not confined to matters of technical and clinical competence, and the other matters to which NCAT had regard were also relevant and were properly taken into account. No error of law was committed; [24]

4. Ground 4 was not upheld. [25] Again, as it does not feature in the present application, no further elaboration is required.

   21. Primary judgment at [83].

   22. Primary judgment at [84].

   23. Primary judgment at [98].

   24. Primary judgment at [105].

   25. Primary judgment at [113].

Proposed grounds of appeal

55. The draft notice of appeal contained the following proposed grounds of appeal:

(1) The trial judge erred in law in applying the wrong test for reasonable apprehension of bias in circumstances in which all the members of the Dental Council, Professor O'Reilly, Dr Fryer and Ms MacDougal, charged with making decisions as to the Appellant's right to practice, had prior involvements in the investigation of a complaint against the Appellant.

(2) The trial judge erred in the application of law in finding there was no reasonable apprehension of bias on the part of Dr O'Reilly, Dr Fryer or Ms MacDougal in the decisions of the Dental Council of New South Wales on 18 December 2015 and 12 February 2016 because the prior involvement or involvements of Dr O'Reilly, Dr Fryer and Ms MacDougal:

(a) did not give rise to a disqualifying interest because Dr O'Reilly, Dr Fryer and Ms MacDougal did not demonstrate any assumption of "ownership" of any particular outcome of the hearings;

(b) did not reveal any commitment to any outcome of the hearings; and

(c) was characterised as administrative or ministerial.

(3) The trial judge erred in finding that the Civil and Administrative Tribunal had conducted a rehearing on the question of conditions attached to the Appellant's practice in accordance with s159(3) of the Health Practitioner Regulation National Law (NSW).

Application to adduce fresh evidence

56. At the outset of the hearing, the Court dismissed the applicant’s motion for leave to adduce further evidence, by tendering seven documents, namely:

1. a letter from the Council to the HCCC dated 23 February 2016, notifying the result of the s 150A hearing, stating that “In accordance with section 150 … the Council will now consult with the HCCC as required”, and foreshadowing more detailed written reasons;

2. a letter from Dr Kirby to the Council dated 5 April 2016, by which Dr Kirby sought information from the Council in relation to compliance with the mandatory consultation requirements of s 150F in the light of the (apparent) referral by the Delegates under that provision;

3. a letter from the Health Professional Councils Authority (relevantly, the Principal Legal Officer for the Council) to Dr Kirby's then solicitor, dated 7 October 2016, dealing with production of documents in response to a summons issued on behalf of Dr Kirby in NCAT;

4. a draft of Dr White’s inspection report prepared dated 28 November 2015, bearing alterations, annotations and comments by the Council’s CEO, Ms Baines;

5. a letter from the Council to Dr Mackie at Orange Day Surgery Centre (where Dr Kirby sometimes worked) dated 24 March 2016, informing him (as an employer) of the conditions imposed on Dr Kirby’s practice (and including, in connection with Condition 12, a reference to s 176BA of the National Law, which relates to obligations arising from a condition imposed because of impairment under s 150F);

6. a letter from Dr Kirby to the Council dated 21 April 2016, in effect disputing that the reference to s 150F had been a typographical error and maintaining that the Council intended to deal with the matter as one of impairment; and

7. a report of Dr Anthony Samuels dated 29 April 2016, which concluded that he could find no clear evidence of impairment.

57. All seven documents were admittedly available to the applicant at the time of the hearing before NCAT, as well as at the time of the hearing before Barrett AJ. No explanation was offered as to why, being available, they were not tendered before NCAT. The fourth, fifth, sixth and seventh were tendered before Barrett AJ; contrary to the applicant’s submissions, they were not rejected, but upon objection to their tender being taken, the tender was not pressed. No explanation has been offered as to why the first, second and third were not tendered before his Honour, nor why the tender of the fourth, fifth, sixth and seventh was not pressed.

58. It is difficult to see how documents which were not in evidence before NCAT, nor tendered before the primary judge, could demonstrate error in law by the primary judge in not finding any error of law by NCAT. The applicant says that the relevance of the documents is to demonstrate, as to the fourth (Dr White’s draft inspection report), that the Council’s executive officer was involved in “settling” Dr White’s report; and, as to the other six, that they demonstrate that the Council intended to refer the matter to the HCCC under s 150F (which relates to impairment), and not under s 150D (which relates to disciplinary complaints) – and thus that the reference to s 150F was not, as the Council claimed, a typographical error. It is simply not apparent how those matters, if demonstrated, would advance the proposed grounds of appeal – which pertain to the prior involvement of the Delegates and whether they ought to have been disqualified because of it, and whether there was a constructive failure on the part of NCAT to exercise its jurisdiction. Even if the Council misconceived the statutory basis on which it was referring the matter to the HCCC, that says nothing about the two issues raised in this Court, namely alleged apparent bias arising from prior involvement, and constructive failure by NCAT to exercise its jurisdiction.

59. Whether or not the proceedings before Barrett AJ were a hearing on the merits for the purpose of (NSW) Supreme Court Act, s 75A(8) – and in my view they were – no sufficient basis to permit this material to be adduced, on what is in effect a third appeal from an interlocutory decision – was established.

60. It was for those reasons that I joined in the dismissal of the applicant’s motion for leave to adduce further evidence.

No reasonable apprehension of bias

61. The first two proposed grounds of appeal attack his Honour’s rejection of the applicant’s case that the Delegates were disqualified, by reasonable apprehension of bias, from participating in the s 150 and s 150A proceedings. Before his Honour, the applicant contended that the prior involvement of the Delegates, before the s 150 proceedings, was incompatible with their acting as the Council’s delegates for the purpose of those proceedings and the subsequent s 150A proceedings. This incompatibility was said to arise, in particular, by reason that:

1. Dr O'Reilly had advised Dr Green that he was obliged to notify the HCCC of his concerns about Dr Kirby’s alleged use of Cansema;

2. all three of the Delegates had participated in the decision that Dr Kirby’s practice be inspected for matters unrelated to Dr Green’s complaint, namely, infection control; and

3. all three of the Delegates had participated in the Council’s decision that it should consider exercising its powers under s 150, and in so doing had received Dr White’s report and other supporting documents, and representations (by Dr Burges) as to what course the Council should take, were offered further consultations on the issue by the Health Professional Councils Authority, and at this point would have considered the potential penalties that may follow from the various options that could have been taken.

62. While these two proposed grounds tend to overlap, in essence the first impugns the test applied by his Honour, and the second his Honour’s application of the test to the facts.

The applicable test

63. The first proposed ground of appeal contends that the primary judge erred in law in applying the wrong test for reasonable apprehension of bias in circumstances in which the Delegates charged with making decisions as to Dr Kirby’s right to practise had prior involvement in the investigation of a complaint against him.

64. As the applicant recognised, in the context of a statutory tribunal, the applicable test for apprehended bias is provided by the so-called “double might” test stated in Ebner v Official Trustee in Bankruptcy, [26] notwithstanding that it is expressed in terms of judicial officers (footnotes omitted):

6 Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.

26. (2000) 205 CLR 337; [2000] HCA 63 (Gleeson CJ, McHugh, Gummow and Hayne JJ). See also Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31]. The test is an objective one: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [12]. This test is not confined to judicial officers: Ebner at [4]; for its application to statutory tribunals, see, for example, Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 [1972] HCA 53; Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17.

65. In the course of addressing the issue of bias, Barrett AJ said (footnotes omitted):

69 In both a pre-judgment case and a conflict of interest case, the central issue is the degree of "closure" of the decision-maker's mind or, more accurately, the degree to which the fair-minded lay observer, approaching the matter objectively, might entertain a reasonable apprehension that the decision-maker might not bring an open mind to bear. Spigelman CJ said in McGovern that a finding of relevant conflict of interest leads to such a reasonable apprehension "almost as of course". "Almost" must be emphasised. The court does not start from some a priori position or work according to some rebuttable presumption. Whether the issue is prejudgment or conflict of interest, the task is to consider the whole of the circumstances according to the "double might" test in Ebner based on the fair-minded lay observer. The absence of any form of presumption and the importance of the word "almost" are illustrated by the decision in Clenae v Australia and New Zealand Banking Group Ltd (2000) 205 CLR 337; [2000] HCA 63 [heard and decided together with Ebner] that a judge's shareholding in a litigant company – something that undoubtedly gave rise to an interest on the part of the judge – did not satisfy the "double might" test because the shareholding was, in a comparative sense, so small that, having regard to what was at stake in the litigation, the outcome of the case could not conceivably impact the judge's personal pocket. Although there was undoubtedly an interest, it was not an interest capable of grounding any reasonable apprehension of bias in the mind of the hypothetical fair-minded lay observer.

66. Against that background, and having described the legislative scheme [27] and analysed the facts, [28] his Honour concluded:

80 … There was no basis for any finding that a hypothetical fair-minded lay observer, acting objectively, might have considered that prior involvement engendering personal interest might cause any of the delegates not to bring an open mind to bear.

27. Primary judgment at [71]-[75].

28. Primary judgment at [76]-[79].

67. That was, in terms, a direct application of the Ebner test. Subsequently, his Honour stated:

83 … Nothing in the facts before [NCAT] was capable of grounding an objectively based apprehension that justice might be compromised if Dr O'Reilly, Dr Fryer and Ms MacDougal played the decision-making roles they in fact undertook.

68. The applicant contends that the judge “misapplied the Ebner test for reasonable apprehension of bias and how different factors assume relevance where the question arises because of an incompatibility of their roles and their continuing interest as opposed to prejudgment”. If the complaint is that the words used by his Honour in the last mentioned passage (at [83]) are not identical to those of the “double might” test as stated in Ebner, then it is spurious. As the respondent submitted, his Honour’s words were no more than a paraphrase of the Ebner test – to which his Honour had previously referred and in the precise terms of which the conclusion at [80] is expressed; if nothing is capable of grounding an "objectively based apprehension that justice might be compromised", it logically follows that the Ebner "double might" test, namely that a fair-minded lay observer might reasonably apprehend that a decision-maker might not bring an impartial mind to the resolution of the question to be decided, cannot be satisfied. It is not arguable that his Honour did not apply the Ebner test. If the applicant’s case is that application of that test, correctly stated by his Honour, to the facts, properly required a different result, then that is the content of proposed ground 2, and is addressed below.

69. However, as I understand the gravamen of the applicant’s argument on the first proposed ground, it is that in the context of a case of apprehended bias arising from conflict of interest rather than from prejudgment, in stating that the central issue in both a prejudgment case and a conflict of interest case was the degree of "closure" of the decision-maker's mind, or, more accurately, the degree to which the fair-minded lay observer might entertain a reasonable apprehension that the decision-maker might not bring an open mind to bear, his Honour “unnecessarily narrowed the question of reasonable apprehension of bias to consideration of the degree of "closure" of the decision-maker's mind without proper account of how those distinctions between prejudgment and prior involvement impact upon the "double might" test”,[29] and that “the kind of "closure" of mind that may be present where there has been prejudgment is of a different nature to the "closure" of mind that may be present where the issue is that of prior involvement”, in which case the applicable test was that in Carver, namely “that, any person, who was at the relevant time, a member of the governing body, or of a relevant committee of the body, which initiated the proceeding in question, is to be regarded as being disqualified by interest or association or both from sitting as, or as a member of, any tribunal called upon to determine the proceeding in question, and it matters not that it may not be shown that the person in question took part in the relevant decision”. [30] As will appear, I agree that the question and degree of “closure” of mind is less important and has a different application in the context of interest from prior involvement as distinct from prejudgment; however, in my judgment the primary judge did not apply the notion inappropriately in the present context.

    29. Primary judgment at [69].

    30. Carver v Law Society of New South Wales (1998) 43 NSWLR 71 at 99 (Powell JA).

70. His Honour plainly recognised and treated the applicant’s case before him as one of (alleged) conflict of interest arising from prior involvement, as distinct from one of (alleged) prejudgment. Having recorded the applicant’s contention that each of the Delegates had "adopted a position involving conflict of interest productive of a reasonable apprehension of bias",[31] his Honour explained, by reference to what Spigelman CJ had said in McGovern, [32] the distinction between these two "species" of apprehended bias: [33]

44 Before NCAT, Dr Kirby maintained that each of Dr O'Reilly, Dr Fryer and Ms MacDougal had, by reason of his or her earlier conduct, created, at the very least, an appearance of prejudgment engendering a reasonable apprehension of bias. In the present appeal, the submission was expanded to include the proposition that each had, at the earlier stage, played a role akin to that of a proponent, accuser or prosecutor and thereby adopted a position involving conflict of interest productive of a reasonable apprehension of bias.

45 The distinction between these two species of apprehended bias was explained by Spigelman CJ in McGovern (at [25]–[27]):

"Many of the authorities upon which the appellants rely are not cases of pre-judgment. It is important, in my opinion, to distinguish a conflict of interest case from a pre-judgment case. There are two relevant differences.

A conflict of interest requires a different analysis as to the relationship, as reasonably perceived, between the interest and the decision. Questions of fact and degree do not arise in the same way. In a pre-judgment case it is necessary to consider the degree of 'closure' of the allegedly closed mind. Where a relevant conflict of interest is established the reasonable apprehension follows almost as of course.

Secondly, in my opinion, a different approach is appropriate when the vote or votes of the allegedly biased decision-maker(s) was not determinative. In a conflict of interest case it appears to me appropriate to conclude without further inquiry, that the statutory requirements of a valid decision-making process have not been complied with or that an adverse conclusion of what an independent observer might believe would more readily be drawn."

46 Spigelman CJ referred, in this connection, to Old St Boniface Residents Association v Winnipeg (City) [1990] 3 SCR 1170 and to the distinction there drawn between "the case of partiality by reason of pre-judgment on the one hand and by reason of personal interest on the other": at 1196 (Sopinka J). In a case of personal interest, the Canadian court said, the decision maker is disqualified if the interest "is so related to the exercise of public duty that a reasonably well-informed person would conclude that the interest might influence the exercise of that duty". In Australia, the "double might" test laid down in Ebner would see "might" substituted for "would" in this passage.

31. Primary judgment at [44].

32. (2008) 72 NSWLR 504.

33. Primary judgment at [44]-[46].

71. Later, his Honour commenced the analysis of this argument with the sentence: “I deal first with the substantive question of disqualifying interest or involvement (or, more precisely, reasonable apprehension thereof), as distinct from the "cure" argument advanced by the Dental Council”,[34] and proceeded (footnotes omitted):

68 A conflict of interest of the kind relevant to Dr Kirby's submissions may arise from any of many circumstances ranging from a personal financial interest in the subject matter to the kind of interest alleged here – in substance, the interest that a proponent has in what he or she proposes, being an interest born of the natural human inclination to wish to see one's own position prevail and that invests the proponent with a form of "ownership" for the purposes of the principle that nobody should be a judge in their own cause. In Carver, the interest arose from the decision-maker's membership of the committee and council each of which had formed and expressed concluded (and adverse) views about the quality of the solicitor's conduct. In lsbester, the interest arose from the earlier conduct of the decision-maker, as a council enforcement officer, in prosecuting the dog owner and securing a conviction. Both those cases exhibited the kind of commitment to (or "ownership" of) a particular outcome that had existed in Dickason v Edwards (1910) 10 CLR 243; [1910] HCA 7 where it was held that a particular officer of a friendly society was disqualified from participating in a meeting of the governing body to consider disciplinary charges brought against a member where the charges had been preferred by the officer himself; and that the disqualification applied even though the constitution directed that the particular officer should chair such meetings.

34. Primary judgment at [64].

72. Thus, although the applicant submitted that in endeavouring to reconcile Carver (an “interest” case) with the later decision in McGovern v Ku-ring-gai Council, [35] (a “prejudgment” case),[36] his Honour “fram[ed] Carver in the same way”, it is clear, from what was said in [68], that, far from framing Carver as a case of prejudgment, his Honour characterised it as a “conflict of interest” case. His Honour plainly appreciated that there were two relevant species of apprehended bias, and that the case the applicant sought to make was one of the “interest” rather than the “prejudgment” species, and that Carver was an “interest”, not a “prejudgment”, case.

    35. (2008) 72 NSWLR 504.

    36. In lsbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [28], the majority explained that the issue in McGovern was "the possibility of bias in the nature of prejudgment on the part of the relevant decision-makers. ... they consequently did not address the question whether a person's involvement in the matter antecedent to the decision is incompatible with his or her participation in the decision".

73. That Ebner embraced “interest” cases as well as “prejudgment” cases was made clear in Isbester v Knox City Council (emphasis added, footnotes omitted):[37]

21  The principle governing cases of possible bias was said in Ebner to require two steps to be taken in its application. The first requires the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. Where it is said that a decision-maker has an “interest” in litigation, the nature of that interest must be spelled out. The second requires the articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits. As Hayne J observed in Jia Legeng, essentially the fear that is expressed in an assertion of apprehended bias, whatever its source, is of a deviation from the true course of decision-making.

79 … There was no commitment, express or implied, to any course of action beyond the creation of a process by which questions necessarily raised by the information already to hand might be pursued and answers sought. Nor was there any commitment to any outcome by way of s 150 action or any judgment or evaluation of Dr Kirby's conduct.

59. Primary judgment at [78].

60. Primary judgment at [79].

105. The applicant submitted that the Delegates’ prior involvement must be considered as a whole, and that it is the cumulative nature of their prior involvement that would found a reasonable apprehension of bias. I entirely agree that their prior involvement must be considered as a whole. But his Honour did not fail to do so. His Honour considered each instance of their prior involvement, [61] before concluding that no reasonable apprehension of bias could follow from their prior involvement. [62]

     61. Primary judgment at [76]-[80].

     62. Primary judgment at [80].

106. In any event, considering their prior involvement as a whole, I would still conclude that every aspect of the prior involvement of each of the Delegates, taken together, does not suggest that any of the Delegates was apparently associated with adoption of a position in favour of, or commitment to, any particular outcome of the consideration of whether action under s 150 should be taken. They did no more than participate in decisions, first, to authorise collection of information, as recommended by the Complaints Committee, in connection with a complaint which had been referred to the Council by the HCCC, and then, to determine that on the available information, consideration should be given (ultimately by the Delegates) as to whether it should take action under s 150 – without adopting any position about the outcome of that consideration.

107. As to the third complaint, in characterising the Delegates’ prior involvement as "administrative or ministerial",[63] and analogous to the position of Mr Capp in Agricultural Societies Council of NSW v Christie,[64] what his Honour in fact did was to use Christie as an illustration of the type of role which the Delegates had played, in a similar factual context, to support the decision already reached (at [80]), that there was no basis for any finding that a hypothetical fair-minded lay observer, acting objectively, might have considered that prior involvement engendering personal interest might cause any of the Delegates not to bring an open mind to bear. The primary judge said:

81 The position of Dr O'Reilly, Dr Fryer and Ms MacDougal is closely analogous to that occupied by Mr Capp in Agricultural Societies Council of NSW v Christie [2016] NSWCA 331; (2016) 340 ALR 560.

63. Primary judgment at [82].

64. (2016) 340 ALR 560; [2016] NSWCA 331.

108. Mr Capp was an official of the Agricultural Societies Council, whose functions included testing show horses for drugs, and disciplining persons involved in administering drugs. He also sat as a member of the disciplinary committee, and as such participated in a decision adverse to Mr Christie. Prior to the disciplinary proceeding in the committee, he had been involved in arranging for samples to be taken from the horse, sending the samples for analysis and, on receipt of the result, consulting with other committee members and agreeing that the result should be referred to the committee for inquiry. This Court rejected an argument that his prior involvement disqualified him from participation in the disciplinary committee hearing and decision. As the primary judge observed,[65] Meagher JA compared the position of Mr Capp with that of Ms Hughes in lsbester, as follows:[66]

Contrary to the primary judge's conclusion, Mr Capp's role was not 'factually and legally indistinguishable' from that of Ms Hughes. He did not undertake or oversee investigations as to whether the relevant conduct had occurred. Nor did he have to decide whether the outcome of those investigations and the character of the conduct justified the bringing of charges. Furthermore he did not oversee the prosecution of any such charges in a civil court or in that capacity have to consider the pleas and penalties which might be negotiated from the perspective of the council. On the contrary, Mr Capp's involvement was, as ASC submitted, more fairly characterised as 'administrative or ministerial’.

65. Primary judgment at [81].

66. (2016) 340 ALR 560; [2016] NSWCA 331 at [77] (Meagher JA).

109. In that context, the primary judge said:

82 So too in this case, the prior involvement of Dr O'Reilly, Dr Fryer and Ms MacDougal is fairly characterised as having been administrative or ministerial. Observations in Lindsay v NSW Medical Board (above) as to the significance of absence from the statutory scheme of any concept of charge or accusation are also apposite although, as I have said, it must be accepted that the particular practitioner is cast in a form of defensive role.

110. The applicant’s submissions raised as a distinction that here the Delegates had participated in “an active step to initiate an additional and unrelated investigation into the applicant's practice which was over and above that arising from the original Complaint, over and above the recommendation arising from the consultation session between the Council and the HCCC, and over and above the recommendation from the Complaints and Notifications Committee”. That was a reference to the infection control practices inspection, which was unrelated to the complaint about use of Cansema, and was initiated by the Council of its own motion. However, all the Council did was to authorise an inspection, effectively by way of an “audit”. In circumstances where there was to be an inspection of Dr Kirby’s practice in any event, it was efficient to conduct an infection control inspection concurrently. A decision to extend the scope of an inspection to a matter not included in the complaint is not an adoption of a position as to whether the outcome of any inspection warrants any s 150 action. An objective bystander aware of all of the circumstances could not have thought that this manifested an intention to “get” the applicant on an alternative ground, if the original complaint were not sustained. That is borne out by the subsequent conduct of the s 150 proceedings, in which infection control did not play a significant part.

111. As the respondent submitted, the analogy with Christie was a close one. The Delegates’ prior involvement consisted of authorising an inspection of Dr Kirby's practice (analogous to arranging for samples to be taken from a horse, and sending the samples for analysis), and upon considering the results of the inspection, agreeing that the Council should consider whether or not s 150 action should be taken (analogous to Dr Capp's receipt of the result of the samples sent for analysis, consulting with other committee members, and agreeing that the result should be referred to the committee for inquiry). Thus the primary judge’s description of the position of the Delegates as “closely analogous to that occupied by Mr Capp in Agricultural Societies Council of NSW"[67] was correct. And that conclusion had been reached[68] prior to the reference to Agricultural Societies Council of NSW v Christie, [69] which served mainly to illustrate by analogy a decision already independently reached, to which multiple factors had contributed, all of which pointed against the Delegates being associated with pursuing a particular outcome such as would have given them an interest incompatible with acting as decision-makers, coupled with a statutory regime that implicitly involved the body authorised to take action under s 150 being the body which determined whether or not to embark on consideration of doing so.

     67. Primary judgment at [81].

     68. Primary judgment at [80].

     69. Primary judgment at [81]-[82].

Conclusion

112. In my judgment, and accepting that the applicant’s case was one of incompatibility of roles arising from prior involvement, his Honour applied the correct test for reasonable apprehension of bias, and his Honour did not err in the application of that test to the facts. In any event, I would reach the same conclusion: in the relevant statutory context, there was no incompatibility between, on the one hand, Dr O’Reilly advising Dr Green that he should make a complaint about Dr Kirby to the HCCC, and the Delegates being party to decisions to authorise inspections of Dr Kirby’s practice and, on receipt of the report, that there should be consideration of whether s 150 action should be taken; and, on the other hand, their role as Council’s delegates for the purpose of considering whether s 150 action should be taken. Fundamentally, this is because nothing they did was such, alone or taken together, as to associate them in any reasonable view with contending for any particular outcome of that consideration. They would not be viewed by a fair-minded lay observer to be accusers or prosecutors, and their prior involvement would not be viewed as such as to invest them with a relevant “interest” in the outcome.

113. The circumstance that not only has no error in his Honour’s conclusion been demonstrated, but that even if there were I would reach the same ultimate conclusion, tells strongly against granting leave to appeal on those grounds.

114. Before us, Dr Kirby sought to rely on various other indicia of bias. These were admittedly not raised before the primary judge, nor were they included in the detailed particulars of bias provided by Dr Kirby before NCAT. [70] Some were the subject of the application for leave to adduce further evidence, referred to above. In circumstances where this is in effect an interlocutory appeal, there have been two earlier appeals, no explanation has been proffered as to why these matters were not previously raised, and they are matters in respect of which the Council may have wished to lead evidence, there are powerful reasons for not permitting them to be invoked now. Moreover, even if the Council misconceived the statutory basis on which it was referring the matter to the HCCC, it is simply not apparent how that says anything about apparent bias arising from prior involvement. Likewise, it is simply not apparent how the change in composition of the panel (involving the replacement of Ms Bell consequent upon her unavailability) is relevant to any appearance of bias arising from the prior involvement of the Delegates.

     70. NCAT decision at [36]-[37].

No jurisdictional error

115. The third proposed ground of appeal contends that the primary judge erred in finding that NCAT had conducted a rehearing on the question of conditions attached to Dr Kirby’s practice, in accordance with s 159(3) of the National Law.

116. The applicant submitted that the primary judge misconceived Dr Kirby’s complaint about NCAT’s decision as to conditions on his practice: whereas the judge had understood the complaint to be that NCAT erred in failing to remove the conditions, in fact it was that NCAT had not conducted a proper hearing on the question of conditions. Before us, it was argued that the primary judge erred in not addressing the question whether NCAT had conducted a genuine rehearing under s 159(3) of the National Law and how the conditions imposed married up with its concerns, and that his Honour should have concluded that NCAT failed to discharge its function by not considering for itself the appropriateness of conditions imposed to address the risk NCAT had identified following the new hearing before it. Thus the argument was that NCAT did not discharge its function, and that the primary judge erred in not finding so. To this the respondent replied that this was not the case put on behalf of Dr Kirby to the primary judge; that in any event, it was sufficiently dealt with and disposed of by the judge; and further, that NCAT did not fail to conduct a rehearing as required.

NCAT did not fail to exercise its jurisdiction

117. I accept that NCAT’s function was to proceed by way of hearing de novo. When Dr Kirby’s appeal to NCAT was initiated in April 2016, s 159(3) provided for an appeal by way of “reconsideration”, in which fresh and further evidence could be adduced:

(3) The appeal is to be dealt with by reconsideration of the matter by the Tribunal and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council when it considered the matter, may be given.

The prevailing view was that such an appeal was in the nature of a hearing de novo, with the powers of NCAT limited by s 159C, and NCAT standing in the shoes of the Council. [71]

71. Khan v Medical Council of NSW [2016] NSWCATOD 88 at [27]-[31]; Burton v Osteopathy Council of New South Wales [2015] NSWCATOD 150 at [14]-[29].

118. In May 2016, s 159(3) was amended to provide for an appeal by way of “new hearing”, which connotes a hearing de novo:

(3) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given.

The prevailing view is that this requires NCAT to exercise afresh the administrative discretion in s 150, having regard to the material before it. [72]

72. Hanna v Medical Council of NSW [2017] NSWCATOD 27 at [17]-[18]; Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 at [123].

119. I am content to proceed on the basis that under the previous as well as the current version of s 159(3), NCAT was required to consider the matter afresh, as if it were the Council, upon the evidence (including any additional evidence that was not before the Council) before it, and having regard to the considerations relevant to the exercise of the discretion conferred by s 150.

120. At all material times (from April 2016, when Dr Kirby initiated his appeal to NCAT, to April 2017, when NCAT gave its decision), NCAT's powers on such an appeal were defined by s 159C of the National Law, in the following terms:

(1) On an appeal, the Tribunal may by order terminate, vary or confirm a period of suspension or revoke, vary or confirm the conditions, as it thinks proper.

(2) The Tribunal's order must not cause a suspension or conditions imposed by a Council to have effect beyond the day on which a related complaint about the person is disposed of.

121. Thus NCAT was required to determine, first, whether action under s 150 was to be taken, and if so, what action – suspension, or imposition of appropriate conditions – was appropriate for the protection of the health or safety of any person or persons or in the public interest.

122. The basis upon which the applicant contends that NCAT did not conduct a proper hearing de novo on the question of conditions is that, in circumstances where NCAT had found that the conditions which the Council had imposed on Dr Kirby in February 2016 did not “correlate neatly” with the Council's concerns, NCAT was required to, but did not, "identify what the lack of correlation was and then impose alternative conditions”, but instead "took a broad-brush approach of finding that because of its concerns about the evidence of [Dr Kirby] and his general lack of insight and concern about his practices, the conditions should not be removed”, and in doing so, presumably, failed to conduct a proper re-hearing on the issue of conditions.

123. However, this is by no means a failure to conduct a hearing de novo on the question of conditions. To the contrary, what NCAT did was entirely in accordance with a requirement to exercise afresh the discretion conferred by s 150 to determine whether or not the imposition of conditions was "appropriate" for the protection of the health or safety of any persons, or was otherwise in the public interest, having regard to the evidence before it, including evidence that was not before the Council, such as Dr Kirby's evidence in cross-examination. In circumstances where NCAT was required to consider afresh the question of the imposition of conditions on Dr Kirby's registration – a view which the applicant embraces – the question was not whether the conditions were "appropriate” by reference to the Council's concerns, but what conditions were appropriate by reference to NCAT’s own conclusions as to the risk Dr Kirby's practice posed to the health or safety of his patients. That is precisely what NCAT did, in concluding that although the conditions may not have neatly conformed to the concerns expressed by the Council, they were appropriate in the context of the concerns which, on the evidence before it, it entertained (emphasis added):

144 … the Tribunal considers that, in reconsidering the matter in light of the additional evidence, particularly the evidence of Dr Kirby's [sic] given in cross-examination, the Tribunal considers that the Council was entirely justified in suspending Dr Kirby's registration.

…

153 … We hold grave concerns about Dr Kirby's insight and practices. Had the Council submitted that, in light [of] Dr Kirby's cross-examination, it was appropriate to reimpose suspension of Dr Kirby's registration, the Tribunal would have given very serious consideration to taking this course. This was because of the unsatisfactory evidence given by Dr Kirby during the course of his cross-examination.

124. Thus, in reconsidering the matter in accordance with s 159 of the National Law on the evidence before it, NCAT having determined that Dr Kirby's practice posed a risk to the health or safety of his patients, determined that the conditions imposed were the minimum "appropriate" to protect the health or safety of Dr Kirby's patients.

125. The complaint that NCAT did not conduct a new hearing on the question of conditions and thereby failed to exercise its jurisdiction is without foundation. In those circumstances, there would be no utility in granting leave to appeal, even if the primary judge did not expressly address this issue.

Insofar as the issue was raised, it was addressed

126. The respondent submitted that the applicant ought not be permitted to raise a ground of appeal asserting error by reference to a submission that was not put in terms below, invoking the observation of this Court in Choy v Tiara Coal Ltd (in liq),[73] that there is no good reason to grant leave to determine a ground of appeal which is based upon a submission which was not made to the primary judge.

     73. (2018) 98 NSWLR 493; [2018] NSWCA 205 at [70].

127. The only potentially relevant ground of appeal before the primary judge was ground 3, which complained that “NCAT failed to remove conditions imposed by the Council on 12 February 2016 in circumstances where it found that the conditions did not bear on Dr Kirby's ability or fitness to practise”. If that were intended to raise a complaint of jurisdictional error, in that NCAT had failed to conduct a rehearing about the conditions, it was supremely oblique in doing so. If, as Dr Kirby submits, the trial judge misunderstood the criticism of NCAT's decision to confirm the Council's imposition of conditions on his registration, in understanding him to have appealed from the decision on the basis that the conditions should have been removed, whereas he in fact contended that NCAT had not conducted a proper re-hearing on the question of conditions, that would be unsurprising in light of the manner in which the grounds of appeal before his Honour were framed.

128. In written submissions before the primary judge, counsel for Dr Kirby submitted that:

1. Dr Kirby had been subjected to significant conditions in the Council's s 150A decision, notwithstanding the Council's acceptance that he is a competent dentist;

2. NCAT determined that the conditions imposed on Dr Kirby's practice were an irregular fit for the concerns expressed by the Council and, having found this, "it was incumbent upon the Tribunal to address the issue of appropriate conditions by reference to the following: (a) Dr Kirby was a competent dentist; (b) what were the requirements for him to discharge his competency"; and

1. rather than completing this exercise, "the Tribunal became distracted about the evidence given by Dr Kirby on matters which gave rise to his suspension, which the Council had seen fit to lift. This was legal error".

129. In oral argument before the primary judge, the issue was addressed in a similar way. First, the conditions imposed by the Council in its s 150A decision were described, then NCAT's obligations pursuant to s 159(3) were stated. Counsel for Dr Kirby submitted, in respect of [153] of NCAT’s decision:

What the paragraph more generally – and this is our ground 3 – is that there is simply no engagement at all on the question before it, as to the conditions being imposed upon Dr Kirby.

130. Elaborating this, counsel for Dr Kirby submitted:

What the Tribunal was required to do was decide for itself whether it was satisfied it’s appropriate to impose conditions and in effect we’d say what those conditions should be.

In our submission the [T]ribunal manifestly failed to do that. What it did do, going over to p 1034, in the first part of para 153, was accept that the conditions imposed do not correlate neatly with the risks, that the [C]ouncil identified in the second decision.

131. In that context, the following submission was made to the primary judge:

So having found that there seemed to be a gap, having also noted that the [C]ouncil thought there was nothing to suggest that Dr Kirby wasn't a competent dentist by this time – he’s been practising for over a quarter of a century - rather than discharging their obligation, as our friends have correctly summarised, to evaluate for itself whether conditions should be imposed, and implicitly what they should be, it simply says, "We didn't like the evidence of Dr Kirby in cross-examination. We have concerns about insight in practices”.

It doesn't specify what they are, and then, as I've said yesterday – your Honour describes perhaps as letting off steam – says something which was never forewarned, and then goes on to say the conditions in para 154, which it didn't think married up, should be confirmed. That is an error of law; the tribunal failed to discharge its obligations in relation to the conditions. If your Honour agrees with that, then obviously purely on that point it's a rehearing on that issue.

132. That is the closest that the applicant came to contending, before the primary judge, that NCAT had not conducted a proper re-hearing on the question of conditions. The applicant submits that this Court should find that the trial judge erred in not addressing this argument, and should conclude that NCAT failed to discharge its function by failing to consider for itself the appropriateness of conditions imposed to address the risk NCAT had identified following the new hearing before it. For reasons advanced above, the underlying submission (that NCAT failed to discharge its obligations in relation to the conditions) is without merit.

133. However, the trial judge did not fail to address the argument, to the extent that it was raised. As the respondent submits, the primary judge expressly dealt with this line of argument. [74] His Honour noted Dr Kirby's submission that "the conditions were, it is said, inconsistent with a finding ... that Dr Kirby was a competent dentist" and that “NCAT, it was submitted, 'became distracted' about Dr Kirby's evidence on the matters that gave rise to his suspension, even though the Dental Council had seen fit to terminate the suspension and that this 'distraction' involved legal error". [75] His Honour considered these submissions, [76] ultimately concluding that no error had been demonstrated, and observing that "it does not follow" from the fact that the Delegates did not see Dr Kirby as lacking technical and clinical competence in dentistry, "that the only permissible conditions are those calculated to allow effective discharge of competency". [77] Thus, insofar as the argument was raised in submissions, even though not explicitly in the grounds of appeal, his Honour did not fail to address it. Moreover, even though the primary judge (understandably) did not in terms refer to Dr Kirby’s contention that NCAT did not conduct a proper rehearing on the question of conditions and thereby constructively failed to exercise its jurisdiction – in circumstances where neither the notice of appeal nor Dr Kirby’s submissions had referred in terms to constructive failure to exercise jurisdiction – his Honour's consideration of this issue conclusively deals with the substance of that complaint. His Honour in substance held that no error was demonstrated in NCATs approach to the imposition of conditions on Dr Kirby's registration, which was entirely consistent with the requirements of s 150 (and s 150A). [78]

     74. Primary judgment at [99]-[106].

     75. Primary judgment at [99].

     76. Primary judgment at [101]-[106].

     77. Primary judgment at [101].

     78. Primary judgment at [102]-[105].

134. The primary judge did not fail to address a submission worthy of consideration. In any event, there was no merit in the submission. Leave to appeal to argue this proposed ground should be refused.

Conclusion

135. My conclusions may be summarised as follows:

136. The primary judge recognised and proceeded on the basis that the applicant’s case was one of apprehended bias founded on incompatibility of roles arising from the prior involvement of the Delegates in preliminary stages. In that context, his Honour was right to apply the Ebner test. Insofar as there is a distinction between an “interest” case and a “prejudgment” case, his Honour did not fail to appreciate it. Although the “degree of closure of mind” is less significant in an “interest” case than in a “prejudgment” case, the manner in which his Honour used that notion was not erroneous.

137. His Honour rightly held that the prior involvement of the Delegates was not such as to invest them with an “interest” incompatible with their constituting the Tribunal that determined the s 150 proceedings. In any event, I would reach the same conclusion: in the relevant statutory context, there was no incompatibility between, on the one hand, Dr O’Reilly advising Dr Green that he should make a complaint about Dr Kirby to the HCCC, and the Delegates being party to decisions to authorise inspections of Dr Kirby’s practice and, on receipt of the report, that there should be consideration of whether s 150 action should be taken; and, on the other hand, their being Council’s delegates for the purpose of considering whether s 150 action should be taken. Fundamentally, this is because nothing they did was such, alone or together, as to associate them, in any reasonable view, with contending for any particular outcome of that consideration. They were not accusers or prosecutors, and their prior involvement was not such as to invest them with a relevant “interest” in the outcome.

138. NCAT did not constructively fail to exercise its jurisdiction, and insofar as the point was raised before the primary judge, his Honour rightly held that no error was demonstrated in NCAT’s approach to the imposition of conditions on Dr Kirby's registration.

139. Although leave to appeal may be granted relatively liberally in disciplinary proceedings, at least in the case of a first appeal, here, where the s 150 and s 150A decisions are interlocutory in nature, pending the outcome of further proceedings; the s 150 decision itself was promptly reviewed and was in effect for only a couple of months; there have already been two appeals (to NCAT and to the primary judge); and even if error were demonstrated, NCAT’s ultimate conclusion has not been shown to involve any relevant error of law, the appropriate order would ordinarily be that leave to appeal be refused, with costs. However, the application was fully argued as an appeal; the interpretation and application of the National Law have not hitherto received extensive consideration in this Court; and the disposition of the application has required the consideration and distinction of this Court’s decision in Carver; in those circumstances, I am persuaded that leave to appeal should be granted, but the appeal dismissed, and that the applicant should pay the respondent’s costs.

140. EMMETT AJA: The principal question in these proceedings is whether the applicant, Dr David Kirby (the Dentist), was denied procedural fairness in decisions of the respondent, the Dental Council of New South Wales (the Dental Council), made on 18 December 2015, to suspend the Dentist and on 12 February 2016, to revoke the suspension and impose conditions on his practice of dentistry. The Dentist asserts that there was a reasonable apprehension of bias on the part of the three members of the Dental Council who made the decisions. In addition, the Dentist claims that the Civil and Administrative Tribunal of New South Wales (the Tribunal) failed to exercise jurisdiction under s 159 of the Health Practitioner Regulation National Law (NSW) (the National Law) by failing to reconsider the conditions to be imposed on the Dentist’s practice in the light of the Tribunal’s findings.

141. I have had the advantage of reading in draft form the proposed reasons of Brereton JA. I agree with his Honour that:

• the primary judge recognised and proceeded on the basis that the applicant’s case was one of apprehended bias founded on incompatibility of roles arising from the prior involvement of members of the Dental Council in preliminary stages and, in so far as there is a distinction between an “interest” case and a “prejudgment” case, did not fail to appreciate it; and

• the Tribunal did not constructively fail to exercise its jurisdiction and that, in so far as the point was raised before the primary judge, his Honour rightly held that no error was demonstrated in the approach of the Tribunal to the imposition of conditions on the Dentist's registration.

I agree with Brereton JA’s proposed reasons for those conclusions and with the orders proposed by his Honour. However, I wish to add a brief comment.

142. The object of the National Law is to establish a national registration and accreditation scheme for the regulation of health practitioners and the registration of certain students. Under s 3A of the National Law, the protection of the health and safety of the public must be the paramount consideration. Under s 5, a health practitioner is an individual who practises a health profession. The term “health profession” means the professions set out in s 5, which include dental and medical professions.

143. Division 2 of Pt 5A deals with Councils. A Council is a body corporate with perpetual succession and has all of the powers of an individual and has and may exercise the functions conferred or imposed upon it under the National Law. Under s 41B, which is in Div 2, each of a number of Councils is established for the health profession listed beside the respective councils in the table in s 41B(1). One of the Councils is the Dental Council in relation to the health profession described as “Dental (including the profession of a dentist, dental hygienist, dental prosthetist, dental therapist or oral health therapist)”. There is also established a Medical Council of New South Wales for the medical health profession.

144. These proceedings arise out of a complaint made under Div 3 of Pt 8 of the National Law. Section 141(2), which appears in Div 2 of Pt 8, provides that a registered health practitioner who, in the course of practising that practitioner’s profession, forms a reasonable belief that another registered health practitioner has behaved in a way that constitutes notifiable conduct, the first health practitioner must, as soon as practicable after forming the reasonable belief, notify the Australian Health Practitioner Regulation Agency established by s 23 of that second health practitioner’s notifiable conduct. Notifiable conduct, in relation to a registered health practitioner, means, relevantly, the practitioner has placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards.

145. These proceedings arise out of a complaint made in respect of the Dentist on 6 August 2015. The complainant said that he recently saw a longstanding patient of the complainant’s practice, who told him that she had been diagnosed with a BBC of the nose and had been seeing the Dentist for treatment of that cancer, which involved an application of a substance that the complainant thought is illegal. The complainant said that the treatment would be outside the normal scope of practice for a dentist and would not be considered best practice. The complainant also said that the treatment places the patient at considerable risk of metastases.

146. Although it does not appear to have been an issue in the proceedings, a question may arise as to whether the conduct of the Dentist that is the subject of the complaint was properly referred to the Dental Council rather than, for example, to the Medical Council of New South Wales. That is to say, there may be a question as to whether the conduct in question was notifiable conduct in relation to the medical profession rather than the dental profession, in that the Dentist may have been engaging in conduct that would require his registration as a medical practitioner rather than as a dental practitioner. The question is whether a complaint in respect of a dentist who, in contravention of the National Law, performs work of a medical practitioner, should be referred to the Medical Council rather than to the Dental Council.

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Endnotes

Inc [2014] NZAR 638; [2013] NZHC 3553 at [50]-[53]..

Decision last updated: 12 May 2020