Kirby v Health Care Complaints Commission

The appeal concerned the interpretation of the *Health Care Complaints Act 1993* (NSW) (HCC Act) and the *Health Practitioner Regulation National Law 2009* (NSW) (National Law). The Health Care Complaints Commission (the Commission) had referred a complaint against a registered dentist to the Civil and Administrative Tribunal of New South Wales (NCAT) under section 145C of the National Law. The central dispute was whether NCAT, when exercising its functions under the National Law in relation to a registered health practitioner, constituted a "disciplinary body" for the purposes of section 4 of the HCC Act, and whether the Commission was authorised to refer the complaint to NCAT under section 145C of the National Law.

The legal issues before the Court of Appeal were whether NCAT was a "disciplinary body" established under the National Law, and whether the Commission's referral of the complaint to NCAT under section 145C of the National Law was a valid exercise of its powers. Specifically, the court had to determine if the definition of "disciplinary body" in the HCC Act, when read in conjunction with section 90B of the HCC Act and section 145C of the National Law, permitted the Commission to refer a complaint to NCAT for prosecution. A further issue was whether the Director of Proceedings for the Commission acted *ultra vires* in determining that the Commission should prosecute the complaint before the Tribunal, and whether there was a relevant distinction between the Commission "prosecuting" a complaint and referring it to the Tribunal.

The court reasoned that NCAT was established under the National Law and was empowered by that law to exercise disciplinary functions in relation to registered health practitioners. It held that section 145C of the National Law provided the mechanism for the Commission to refer complaints to NCAT, and that NCAT, in exercising these functions, was acting as a disciplinary body established under the National Law. The court found that the Director of Proceedings had acted within their authority, and that the distinction between "prosecuting" and "referring" was not determinative of the Commission's power to initiate proceedings before NCAT under the relevant legislative framework.

The appeal was dismissed, with the court ordering that the appellant pay the respondent's costs. Leave to appeal was granted, and directions were given for the filing of a notice of appeal prior to the dismissal of the appeal.