Kirby v Dental Council of NSW

Kirby (the applicant) sought leave to appeal to the Court of Appeal of New South Wales against a decision of the primary judge. The dispute concerned allegations of apprehended bias in proceedings before the NSW Civil and Administrative Tribunal (NCAT), which the applicant contended amounted to a constructive failure to exercise jurisdiction. The respondent was the Dental Council of NSW.

The Court of Appeal was required to determine whether the primary judge had erred in law by considering the notion of a "degree of closure of mind" in assessing the claim of apprehended bias. It also had to consider whether NCAT had constructively failed to exercise its jurisdiction.

The Court held that the primary judge had not erred in law. The assessment of apprehended bias involves an objective test, considering whether a fair-minded lay observer, informed of all relevant circumstances, would apprehend that the decision-maker might not bring an impartial mind to the issue. The primary judge's reference to a "degree of closure of mind" was not an erroneous application of the legal test but rather an observation about the nature of the apprehended bias. The Court found no basis for concluding that NCAT had constructively failed to exercise its jurisdiction.

Leave to appeal was granted, but the appeal was dismissed. The applicant was ordered to pay the respondent's costs.