Kirby v Health Care t/as Health Care Complaints Commission

[2020] NSWSC 1133

Supreme Court

New South Wales

Medium Neutral Citation:

Kirby v Health Care t/as Health Care Complaints Commission [2020] NSWSC 1133

Hearing dates:

29 October 2019

Date of orders:

26 August 2020

Decision date:

26 August 2020

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

(1) The further amended summons filed 13 August 2019 is dismissed.

(2) Costs are reserved.

Catchwords:

ADMINISTRATIVE LAW – Judicial review – Health Care Complaints Act 1993 (NSW) – Registered health practitioner – Whether the decision maker was affected by apprehended bias – Whether the Commission failed to consult the relevant professional council under s 39(2) before making a prohibition order under s 41A – Where the complaint against the health practitioner concerned conduct outside the field of his registration – Application dismissed

Legislation Cited:

Health Care Complaints Act 1993 (NSW), ss 3, 4, 3A, 9, 12, 19, 25B, 39, 40, 41A, 41C, 74, 75, 80, 99A

Health Practitioner National Regulation Law (NSW) No. 86a, s 4

Supreme Court Act 1970 (NSW), s 69

Uniform Civil Procedure Rules 2005 (NSW), r 59.10

Cases Cited:

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; [2000] 205 CLR 337

Hossain v Minister for Immigration and Border Protection [2018] HCA 34

Hot Holdings Pty Ltd v Creasy [2002] HCA 51; [2002] 210 CLR 438

Plaintiff S157/2002 v the Commonwealth (2003) 211 CLR 467

Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425

Regal Consulting Services Pty Ltd v All Seasons Air Pty Ltd [2017] NSWSC 613

Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 102 FLR 517

Category:

Principal judgment

Parties:

David William Kirby (Plaintiff)
Health Care t/as Health Care Complaints Commission (Defendant)

Representation:

Counsel:
J Sheller SC with D Tang (Plaintiff)
P Lowson (Defendant)

Solicitors:
Graham Billing & Co (Plaintiff)
Health Care Complaints Commission (Defendant)

File Number(s):

2019/101278

Publication restriction:

Nil

Judgment

1. HER HONOUR: The plaintiff seeks a judicial review of a decision of the Health Care Complaints Commission (“the Commission”) dated 4 October 2016.

2. By further amended summons (“FAS”) filed 13 August 2019, the plaintiff seeks firstly, an order extending the time to bring the FAS pursuant to rule 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”); secondly, a declaration that the decision of the Commission dated 4 October 2016 is void and of no effect; thirdly, an order preventing the Commission from taking any further steps in relation to the making of any prohibition order in respect of the plaintiff concerning events before 4 October 2016; and finally, in the alternative to the second order, an order quashing the decision of the Commission dated 4 October 2016.

3. The plaintiff is Dr David William Kirby. The defendant is the Commission. The parties relied upon a joint court book (Ex A).

The legislative framework

4. The plaintiff is a dentist and a registered health practitioner within the meaning of the s 4 of the Health Practitioner National Regulation Law (NSW) (“the National Law”).

5. The Commission is a statutory body representing the Crown, constituted by s 75 of the Health Care Complaints Act 1993 (NSW). The functions of the Commission are set out in s 80 of the Health Care Complaints Act. Relevantly, s 80 provides that the Commission has the following functions:

“80 Functions of Commission

(1) The Commission has the following functions:

(a) to receive and deal under this Act with the following complaints:

• complaints relating to the professional conduct of health practitioners

• complaints concerning a health service that affects, or is likely to affect, the clinical management or care of individual clients

• complaints referred to it by a professional council under the Health Practitioner Regulation National Law (NSW),

(b) to assess those complaints and, in appropriate cases, to investigate them, refer them for conciliation or deal with them under Division 9 of Part 2,

(c) to make complaints concerning the professional conduct of health practitioners and to prosecute those complaints before the appropriate bodies, including professional councils, professional standards committees and tribunals,

(d) to report on any action the Commission considers ought to be taken following the investigation of a complaint if the complaint is found to be justified in whole or part,

(e) to monitor, identify and advise the Minister on trends in complaints,

(f) to publish and distribute information concerning the means available for the making of complaints and the way in which complaints may be made and dealt with,

(g) to provide information to health service providers and professional and educational bodies concerning complaints, including trends in complaints,

(h) to consult with groups with an interest in the provision of health services, including professional associations, health service provider groups, relevant community organisations and private and institutional health care providers, on the complaints process and the dissemination of information concerning the complaints process,

(i) to develop, after such consultation with clients, health service providers and persons who, in the Commission’s opinion, have an appropriate interest, a code of practice to provide guidance on the way in which the Commission intends to carry out some or all of its functions.

(j) (Repealed)

(2) The Commission also has such other functions as are conferred or imposed on it by or under this or any other Act.

(3) A code of practice developed by the Commission under subsection (1)(i) has no effect unless it is incorporated in, or adopted by, the regulations.

(4) The Commission may exercise its functions even though:

(a) the Commission has not developed a code of practice in relation to those functions, or

(b) a code of practice has been developed but has not been incorporated in, or adopted by, the regulations.

(5) Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Commission to exercise its functions.

Note. Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Commission makes use of) may be referred to as officers or employees, or members of staff, of the Commission. Section 47A of the Constitution Act 1902 precludes the Commission from employing staff.”

6. Section 3 of the Health Care Complaints Act provides that the primary object of the Act is to establish the Commission as an independent body for the purposes of receiving and assessing complaints under the Act, investigating and assessing those complaints and whether they should be prosecuted, and resolving or overseeing their resolution.

7. Further, s 3A(2) of the Health Care Complaints Act provides that the Commission is responsible for dealing with complaints, “with particular emphasis on the investigation and prosecution of serious complaints in consultation with relevant professional councils”.

8. In carrying out its functions, the Commission must have regard to the following principles:

1. that it is to be accountable to the New South Wales community: s 3A(5B)(a); and

2. that its decision making processes are to be open, clear and understandable for clients and health service providers: s 3A(5B)(b).

Complaint against the plaintiff

9. In August 2015, the Commission received a complaint against the plaintiff from a doctor in accordance with s 9 of the Health Care Complaints Act (“the complaint”). The doctor stated that a patient had told him that the plaintiff was administering a substance called “cansema” to treat a form of skin cancer on her nose. Cansema is a caustic topical salve not approved by the Therapeutic Goods Administration.

10. Pursuant to s 19 of the Health Care Complaints Act, the Commission was obliged to assess the complaint. In doing so, the Commission was required to decide whether:

1. the complaint should be investigated;

2. the complaint should be conciliated or dealt with under Division 9;

3. the complaint should be referred to the Health Secretary in accordance with s 25 or s 25A;

4. the complaint should be referred to another person or body in accordance with s 25B or s 26; or

5. the Commission should decline to entertain the complaint.

11. On 8 October 2015, pursuant to ss 12, 19 and 25B of the Health Care Complaints Act, the Commission consulted with the Dental Council of NSW (“the Dental Council”), which was the relevant professional council under the Act, and determined that the complaint should be referred to the Dental Council for consideration. Pursuant to s 25B(2) of the Health Care Complaints Act, the Commission was required to discontinue the complaint as it had been referred to the Dental Council.

12. On 6 November 2015, the Dental Council considered the complaint and resolved to have an authorised person inspect the plaintiff’s dental practice. The inspection revealed practices which were not in compliance with infection control requirements and risked public safety, as well as an irregular patient record which recorded the administration of cansema.

13. On 11 December 2015, and again on 15 December 2015, the Dental Council held urgent hearings in respect of its investigation. The plaintiff gave evidence and made submissions to the effect that the Dental Council did not have power under the law to deal with the complaint, because it involved conduct that occurred outside his practice as a dentist.

14. On 18 December 2015, the Dental Council suspended the plaintiff from dental practice pursuant to s 150 of the National Law. On 27 January 2016, the Dental Council gave detailed reasons for its decision (Ex A, p 207-231).

15. On 12 February 2016, following a review pursuant to s 150A of the National Law, the Dental Council removed the suspension on the plaintiff and imposed conditions on his practice, none of which concerned cansema. Eleven of those conditions were public, and twelve were private. On 25 March 2016, the Dental Council gave detailed reasons for its decision (Ex A, p 189-206).

16. On 23 February 2016, the Commission initiated an investigation into a related complaint against the plaintiff concerning his administration of cansema, as well as his participation in a group involved in alternative health practices.

17. The Commission stated that it commenced its investigation pursuant to s 23(1)(b)(i) of the Health Care Complaints Act. Section 23(1)(b)(i) of the Act states that the Commission must investigate a complaint if, following the assessment of a complaint, it appears to the Commission that the complaint “raises a significant issue of public health or safety”.

18. The Commission stated at [21] of its amended response in this Court (Ex A, p 35-36) that it determined:

1. to investigate those parts of the complaint that related to the plaintiff’s dentistry practice as an investigation against the plaintiff as a registered health practitioner; and

2. to investigate the plaintiff’s prescribing or administering of cansema as a possible breach of the Code of Conduct for unregistered health practitioners.

19. The Code of Conduct for unregistered health practitioners, made under Schedule 3 of the Public Health Regulation 2012 (NSW), is a code of conduct that applies to the provision of health services by:

1. health practitioners who are not registered health practitioners within the meaning of the National Law (including de-registered health practitioners); and

2. registered health practitioners within the meaning of the National Law who provide health services that are unrelated to their registration (s 2).

20. As stated earlier, the plaintiff is and was at the relevant time a registered health practitioner within the meaning of the National Law.

21. As such, the Commission’s investigation into the plaintiff as to his non-compliance with the Code of Conduct could only have been an investigation into the plaintiff as a registered health practitioner providing health services unrelated to his registration. The Commission was also investigating the plaintiff’s conduct in his dentistry practice. By its amended response, the Commission stated that its investigation was not into the plaintiff’s conduct as an unregistered health practitioner (Ex A, p 36, [26]).

22. Division 5 of Pt 2 of the Health Care Complaints Act governs the carrying out of investigations by the Commission.

23. Division 6 of Pt 2 of the Health Care Complaints Act governs what action is to be taken following an investigation.

24. Section 39 of the Health Care Complaints Act relevantly reads:

“39 WHAT ACTION IS TAKEN AFTER AN INVESTIGATION?

(1) At the end of the investigation of a complaint against a health practitioner, the Commission must do one or more of the following:

(a) refer the complaint to the Director of Proceedings,

(b) (Repealed)

(c) refer the complaint to the appropriate professional council (if any) for consideration of the taking of action under the Health Practitioner Regulation National Law (NSW), such as the referral of the health practitioner for performance assessment or impairment assessment,

(d) make comments to the health practitioner on the matter the subject of the complaint,

(e) terminate the matter,

(f) refer the matter the subject of the complaint to the Director of Public Prosecutions,

(g) take action under section 41 A.

(1A) The Commission is not required to take action under this section if it reviews its assessment of the complaint and takes action under section 20A.

(2) The Commission must consult with the appropriate professional council before deciding what action to take.

(3) (Repealed)”

25. Section 4 of the Health Care Complaints Act refers to definitions. It relevantly reads:

“4 Definitions

In this Act:

associated complaint means a complaint made or referred to the Commission in respect of a health practitioner who is, or a health organisation that is, the subject of another complaint being assessed or investigated by the Commission or being prosecuted by the Commission before a disciplinary body, and includes:

(a) a complaint made at any time prior to the completion of the assessment, investigation or prosecution of that other complaint, and

(b) a complaint that has been discontinued or terminated.

…

Commission means the Health Care Complaints Commission constituted by section 75.

complainant means:

(a) the person making a complaint, except as provided by paragraph (b), or

(b) the client on whose behalf a complaint is made if the complaint is made by a person chosen by the client as his or her representative for the purpose of making the complaint.

complaint means a complaint made under this Act or a complaint made under another Act that is able to be dealt with by the Commission under this Act.

...

Director of Proceedings means the Director of Proceedings appointed under Part 6A.

disciplinary action includes the making of an order or the issue of a statement under section 41A.

…

health practitioner means a natural person who provides a health service (whether or not the person is registered under the Health Practitioner Regulation National Law).

Health Practitioner Regulation National Law means:

(a) the Health Practitioner Regulation National Law:

(i) as in force from time to time, set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 of Queensland, and

(ii) as it applies (including with any modifications) as a law of New South Wales or another State or Territory, or

(b) the law of another State or Territory that substantially corresponds to the law referred to in paragraph (a).

…

health service includes the following services, whether provided as public or private services:

(a) medical, hospital, nursing and midwifery services,

(b) dental services,

(c) mental health services,

(d) pharmaceutical services,

(e) ambulance services,

(f) community health services,

(g) health education services,

(h) welfare services necessary to implement any services referred to in paragraphs (a)–(g),

(i) services provided in connection with Aboriginal and Torres Strait Islander health practices and medical radiation practices,

(j) Chinese medicine, chiropractic, occupational therapy, optometry, osteopathy, physiotherapy, podiatry and psychology services,

(j1) optical dispensing, dietician, massage therapy, naturopathy, acupuncture, speech therapy, audiology and audiometry services,

(k) services provided in other alternative health care fields,

(k1) forensic pathology services,

(l) a service prescribed by the regulations as a health service for the purposes of this Act.

health service provider means a person who provides a health service (being a health practitioner or a health organisation).

…

professional council means, in relation to a health practitioner in a health profession for which a Council is established under section 41B of the Health Practitioner Regulation National Law (NSW), the Council for that health profession.

registered includes enrolled.

registered health practitioner has the same meaning as in the Health Practitioner Regulation National Law (NSW).

…”

26. As such, s 39 of the Health Care Complaints Act applies to investigations into health practitioners, both registered and unregistered.

27. Section 41A of the Health Care Complaints Act concerns the making of prohibition orders. It reads:

“41A PROHIBITION ORDERS AND PUBLIC STATEMENTS

(1) The Commission may take action under this section if:

(a) it has complied with Division 6 with respect to an investigation of a complaint against a health practitioner, and

(b) it finds that the health practitioner has breached a code of conduct for non-registered health practitioners or has been convicted of a relevant offence, and

(c) it is of the opinion that the health practitioner poses a risk to the health or safety of members of the public.

(2) The action that the Commission may take under this section is either or both of the following:

(a) make an order (a ‘prohibition order’) that does any one or more of the following:

(i) prohibits the health practitioner from providing health services or specified health services for the period specified in the order or permanently,

(ii) places such conditions as the Commission thinks appropriate on the provision of health services or specified health services by the health practitioner for the period specified in the order or permanently…

…

(3) If the Commission is aware that a person in respect of whom it is proposing to make a prohibition order is a registered health practitioner, the Commission is, before making the prohibition order, to notify the relevant professional council of the proposed order and give that council an opportunity to make a submission.”

28. On 24 August 2016, the Commission gave notice to the plaintiff of an intention to prohibit him from any future dealings with cansema. This notification was required under s 40 of the Health Care Complaints Act.

29. Also on 24 August 2016, the Commission wrote to the Dental Council attaching the same notice of intention to prohibit and indicating that if the Dental Council did not respond to the notice, it would make the prohibition order (Ex A, p 28).

30. On 28 September 2016, the plaintiff made written submissions to the Commission as to why no prohibition order should be made (Ex A, p 28; s 40(2) of the Health Care Complaints Act).

31. On 4 October 2016, the Director of Investigations made orders to take action under s 9(1)(g) of the Health Care Complaints Act to prohibit the plaintiff from participating in the private support group involving or using cansema, or cansema-like substances, pursuant s 41 of the Act (Ex A, p 36; 167-184).

Extension of time

32. Under UCPR 59.10(1), the time for judicial review of a decision must be commenced within three months of the date of the decision. The decision to make the prohibition order was made on 4 October 2016 and communicated to the plaintiff on that date. As such, the plaintiff’s application for judicial review is made out of time and he requires leave.

The plaintiff’s submissions

33. Pursuant to s 41C of the Health Care Complaints Act, a health practitioner may apply to the Civil and Administrative Tribunal for review of a decision under s 41 A of the Act to make a prohibition order. Such an application must be made within 28 days of the health practitioner being provided with the statement of the decision: see s 41C(2) of the Health Care Complaints Act.

34. On 2 November 2016, the plaintiff brought an application to the Tribunal (Ex A, p 130-131).

35. The hearing of that application was stayed pending the outcome of related proceedings before the Tribunal and subsequent Supreme Court proceedings concerning the Dental Council of NSW and the plaintiff (FAS [27]; CB 28).

36. On 14 December 2018, the plaintiff’s application for review of the prohibition order was set down for hearing in the Tribunal on 25 and 26 March 2019 (FAS [28]; CB 28).

37. On 25 March 2019, the Commission submitted that any question concerning the satisfaction of the statutory basis for the making of an order under s 41A could only be dealt with by an application for judicial review in the Supreme Court of NSW.

38. On 25 March 2019, the Tribunal adjourned the plaintiff’s application so that he could bring an application to the Supreme Court of NSW for review of satisfaction of the statutory preconditions of the s 41A prohibition order.

39. Under UCPR 59.10(5), the time limit does not apply to any proceedings in which the setting aside of a decision is not required.

40. The plaintiff does not seek that the Commission’s decision be set aside. The plaintiff’s submission is that the decision was made in excess of power, such that it is not a decision at all: see Plaintiff S157/2002 v the Commonwealth (2003) 211 CLR 467 at [76].

41. In Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 102 FLR 517 at 544, Beaumont, Moore and Gyles JJ stated at [97]:

“[97] Whilst there may be a question as to whether an administrative act is void or voidable, and as to the significance and effect of such an act pending a declaration of invalidity by a court ...it is fundamental that the purported exercise of a statutory power which does not accord with the statute is of no effect and may be disregarded — it does not impose duties or create rights. ... Once a court has declared the invalidity then it follows that the act is avoided ab initio ... like a statute which is declared invalid if it is beyond power.”

42. Where no relief in the nature of certiorari is sought and relief of that nature is not necessary to give effect to the Court’s determination of the proceedings, the time limit under UCPR 59.19(1) does not apply: see Regal Consulting Services Pty Ltd v All Seasons Air Pty Ltd [2017] NSWSC 613 (“Regal Consulting”) at [60]-[61] per McDougall J.

43. The plaintiff submitted that on that basis, his application is not subject to the three month time limit.

44. The plaintiff submitted that in the alternative, if UCPR 59.10(1) does apply, he seeks an extension of time to commence proceedings pursuant to UCPR 59.10(2) on the following bases:

1. at the time of the decision, there was no reason for the plaintiff to suspect or know that the Commission had not complied with its obligations under the Health Care Complaints Act;

2. the plaintiff’s application is of substantial merit;

3. the delay in raising this issue is in part explained by the delay to the proceedings as a whole as a result of the proceedings against the Dental Council;

4. as soon as the proceedings against the Commission in the Tribunal re­commenced, the plaintiff made due enquiries with the Commission as to its compliance with the Health Care Complaints Act; and

5. while the Commission was not aware of this specific ground of challenge, it has been on notice that the plaintiff disputed the validity of the decision since November 2016, and that it should not consider its decision as final and unchallenged.

The defendant’s submissions

45. The primary relief sought in the plaintiff’s FAS is a declaration that the decision of the Commission dated 4 October 2016 is void and of no effect.

46. The defendant submitted that the plaintiff has framed the relief in this way so as to rely on UCPR 59.10(5). Rule 59.10(1) provides that an application for judicial review must be made within three months of the decision, which in this case was by 4 January 2017. However, UCPR 59.10(5) states that “This rule does not apply to any proceedings in which the setting aside of a decision is not required”.

47. As such, the defendant submitted that there is no statutory provision for the plaintiff to obtain the relief he seeks by merely seeking a declaration in the terms expressed in Order 1. This is not a matter where the Court is making a declaration that affects the private rights of individuals. The defendant has made a prohibition order under s 41A of the Health Care Complaints Act restraining the plaintiff from administering cansema, with significant penalties if the prohibition order is breached.

48. The plaintiff referred to Regal Consulting and submitted that where no relief in the nature of certiorari is sought, and it is not necessary to give effect to the Court's determination, the time limit under UCPR 59.19 does not apply.

49. The defendant submitted that the real issue in Regal Consulting was that Regal Consulting disputed liability for a building claim on the basis that there was no “reference date” for a particular payment, where one was required in order to give jurisdiction to an adjudicator. In Regal Consulting, the defendant had asserted that there was a reference date and given the claim to the adjudicator, who found she had jurisdiction and determined the adjudication amount in the sum claim by the defendant. She issued an adjudication certificate that the defendant filed in the Local Court, before obtaining a judgment debt against Regal Consulting in the adjudicated amount.

50. In the Supreme Court proceedings in Regal Consulting, Regal Consulting successfully argued that because there was no available reference date, the adjudicator lacked jurisdiction to deal with the payment claim.

51. In Regal Consulting at [64], McDougall J was satisfied that setting aside the Local Court judgment would give Regal Consulting the desired outcome, such that it was not necessary to set aside the adjudicator’s original decision. The Commission submitted that it was on this basis that McDougall J stated that UCPR 59.10 does not apply, because “the setting aside of [the determination] is not required”. His Honour continued at [60]-[61]:

“[60]... The word ‘required’ may mean at least two things in this context. First, it may mean ‘sought by the party claiming judicial review’. Alternatively, it may mean ‘necessary to give proper effect to the court’s conclusion’ that, for example, the decision under challenge was made without jurisdiction. There may be other available meanings.

[61] ln this case, Regal does not press for relief in the nature of certiorari. Nor is relief of that nature necessary to give effect to the conclusion I have expressed. The declaration that is sought will, when made, do that, because it will bind the relevant parties: Regal, All Seasons and the adjudicator. There is no need to go further, and quash the adjudicator's determination.”

52. The defendant submitted that the real question for this Court to consider is whether the plaintiff is correct in asserting that he does not require relief in the nature of certiorari in order to set aside the prohibition order.

53. The plaintiff applied to the Tribunal for administrative review pursuant to s 41C of the Health Care Complaints Act and s 63 of the Administrative Decisions Review Act 1997 (NSW) by application dated 3 November 2016.

54. The plaintiff has been aware, or could have become aware, of the matters raised in the FAS filed on 9 August 2019 since shortly after 4 October 2016. For example, the assertion that Mr Kofkin was both the investigator and the decision maker, for which there is no evidence, is an assertion that could have been made in October 2016.

55. The plaintiff has been legally represented throughout. The Commission submitted that the plaintiff now seeks to challenge a decision made more than three years ago, and has not adequately explained why steps were not taken until August 2019 to raise these matters with the Supreme Court.

56. The Commission further submitted that the plaintiff’s case is weak, and as such, leave should not be granted.

Resolution

57. Pursuant to UCPR 59.10(1), the time for judicial review of a decision must be commenced within three months of the date of the decision, which in these proceedings was on 4 January 2017. Despite the framing of the plaintiff’s FAS, it is not clear how the plaintiff can obtain relief without the prohibition order being set aside.

58. Rule 59.10(3) of the UCPR sets out a non-exhaustive list of matters that this Court must take into account in considering whether to extend time. They are as follows:

“(3) In considering whether to extend time under subr (2), the Court should take account of such factors as are relevant in the circumstances of the particular case, including the following:

(a) any particular interest of the plaintiff in challenging the decision,

(b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,

(c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,

(d) any relevant public interest.”

59. The plaintiff has a significant interest in his dental practice and professional reputation. He was aware of the decision on 4 October 2016, but submitted that he did not become aware that the Commission did not comply with provisions of the Health Care Complaints Act until much later. I must also consider the public interest, which in this case includes the safety of the public at large. Taking these considerations into account, it is my view that an extension of time should be granted. I will now turn to consider the plaintiff’s grounds of review.

Judicial review generally

60. This Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari, which includes jurisdiction to quash the ultimate determination of a court or tribunal, including the Commission, if that determination has been made on the basis of an error of law on the face of the record. The face of the record includes the reasons expressed by the court or tribunal for its ultimate determination: s 69 of the Supreme Court Act 1970 (NSW).

Grounds of judicial review

61. The grounds of judicial review are, firstly, that the relevant decision maker, Mr Kofkin, did not have the authority to make the prohibition decision; secondly, that the Commission did not discharge a mandatory obligation in the making of the prohibition order under s 39(2) of the Health Care Complaints Act; and finally, that the decision of Mr Kofkin, who acted on behalf of the Commission, was affected by apprehended bias.

62. I will consider first ground 1, followed by ground 3 and then ground 2.

Ground 1 – that the Commission lacked authority to make a prohibition order

The plaintiff’s submissions

63. The plaintiff submitted that the Commission had no power to make a prohibition order under s 41 of the Health Care Complaints Act.

64. The functions of the Commission are set out in s 80 of the Health Care Complaints Act. Relevantly, those functions include assessing and investigating complaints, and performing such other functions as conferred or imposed on the Commission by or under the Act or any other: see ss 80(1)(b) and 80(2). These functions include the power to make a prohibition order under s 41A.

65. Section 75 of the Health Care Complaints Act reads:

“75 The Commission

(1) There is constituted by this section a body corporate with the corporate name of the Health Care Complaints Commission.

(2) The Commission is a statutory body representing the Crown.

(3) Subject to section 90B, the functions of the Commission are exercisable by the Commissioner. Any act, matter or thing done in the name of, or on behalf of, the Commission by the Commissioner, or with the authority of the Commissioner, is taken to have been done by the Commission.

(4) A reference in this Act to anything done or omitted by, to or in relation to the Commission includes a reference to a thing done or omitted by, to or in relation to the Commissioner or another officer of the Commission having authority in the circumstances.”

66. Section 84 provides that “The Commission may delegate its functions, other than its power of delegation, to any officer of the Commission.”

67. In the proceedings against the plaintiff, the Director of Investigations made the prohibition order. The plaintiff noted that the Commission originally asserted that it had delegated the function of making the prohibition order to the Director of Investigations, but appears now to have disavowed those assertions in its amended summons. The plaintiff argued that the Commissioner now asserts that the Director of Investigations had the relevant function under s 75 of the Health Care Complaints Act.

68. Subsections 75(3) and (4) of the Health Care Complaints Act emphasise that the functions of the Commission must be done “with the authority of the Commissioner” or by an “officer of the Commission having authority in the circumstances.”

69. Subsection 80(5) of the Health Care Complaints Act provides that persons may be employed by the Commission to exercise its functions. The plaintiff submitted that this section does not itself confer authority or empower those officers to carry out the functions of the Commission. The delegation of function of the Commission is provided for expressly by s 84 of the Act.

70. The plaintiff submitted that the Commission has not identified the source of the authority under which the Director of Investigations made the prohibition order. In its amended response, the Commission removed any reference to a delegation of its functions under s 84. The plaintiff submitted that this omission is evidence that the Commission had not delegated its functions to the Director of Investigations at the time. As such, the Director of Investigations did not have any authority to make the prohibition order under s 41A. The prohibition order made by the Director of Investigations was made without power and is accordingly void.

The defendant’s submissions

71. The Commission submitted that the plaintiff’s assertion that Mr Kofkin lacked power to make the prohibition order does not appear as a ground for judicial review. The Commission also submitted that leave should not be granted to include it as a ground of review. The Commission asserted that, in accordance with s 75 of the Health Care Complaints Act, Mr Kofkin had authority to make a prohibition order.

Resolution

72. Rule 59.4 of the UCPR requires a plaintiff to plead with specificity the grounds on which relief is sought. This ground of review did not appear in the plaintiff’s FAS. At the hearing of these proceedings, counsel for the plaintiff sought leave to amend the FAS to consider the issues raised in this ground. The defendant opposed the granting of leave.

73. The plaintiff seeks leave to amend the FAS on the basis that the issue of Mr Kofkin’s authority only emerged from the defendant’s amended response filed 13 August 2019 (T 45.24). However, the plaintiff in his FAS of the same date pleaded that as early as 27 and 28 February 2019 and 1 March 2019, his solicitors had enquired of the Commission as to the authority of Mr Kofkin to make the prohibition order (Ex A, p 28-29 [29]). Despite this, the plaintiff failed to plead the issue of Mr Kofkin’s authority in either his summons filed 1 April 2019, amended summons filed 2 May 2019 or FAS filed 13 August 2019. With no satisfactory explanation for the delay, I refused the plaintiff’s application for leave to amend the FAS to include this ground of review (T 79.1).

Ground 3 – that the decision was affected by apprehended bias

The plaintiff’s submissions

74. The plaintiff submitted that as the relevant decision maker, Mr Kofkin, the Director of Investigations, was obliged to afford the plaintiff procedural fairness, which he failed to do.

75. The plaintiff submitted that the process leading to the investigation into him, which culminated in the prohibition decision, has not been explained, and documents in respect of it have not been produced by the Commission. The Commission has obscured the potential role of Mr Kofkin in initiating the investigation which he then ruled upon.

76. All that is known is that Mr Kofkin held the role of Director of Investigations at the time that it was decided that the investigation should be pursued (Ex A, p 70). Which person determined on 23 February 2016 to initiate the complaint against the plaintiff pursuant to s 8(2) of the Health Care Complaints Act has never been disclosed. The plaintiff submitted that the obvious inference is that it was the ultimate decision maker, Mr Kofkin.

77. By 24 August 2016, Mr Kofkin held the title of Acting Commissioner and acted as the relevant decision maker, although the plaintiff submitted that he never identified the source of that authority (Ex A, p 87-88). In his letter dated 24 August 2016, Mr Kofkin invited the plaintiff to provide submissions as to why the prohibition order should not be issued. The plaintiff submitted that at the same time, Mr Kofkin wrote to the Dental Council stating, in terms, that if it did not respond to the notice of an intention to prohibit, he would make the prohibition order (Ex A, p 233).

78. The plaintiff submitted that there was no prospect of Mr Kofkin fairly, and without bias, dealing with the plaintiff’s submissions in the letter dated 28 September 2016 (Ex A, 61-63), as his letter to the Dental Council reveals that he had already made up his mind. The plaintiff’s undertakings to the effect that he would not involve himself with cansema in the future were disregarded (Ex A, pp 62,182-183 [6.19]-[6.22]).

The defendant’s submissions

79. The defendant denied that its decision to make a prohibition order was affected by an apprehension of bias, whether relating to “pre-judgment” or otherwise.

80. In assessing apprehension of bias, the defendant stated that the Court is to consider the perspective of the reasonable person armed with the relevant information: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; [2000] 205 CLR 337 [13]-[18], [30], [69]-[73] (“Ebner”); Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425; Hot Holdings Pty Ltd v Creasy [2002] HCA 51; [2002] 210 CLR 438 per McHugh J at [68].

81. In relation to the notification to the Dental Council, the defendant submitted that Mr Kofkin’s failure to refer to the possible submissions from the plaintiff does not suggest pre-judgment because the plaintiff was provided with the opportunity to make submissions, and Mr Kofkin took those submissions into account before making the final decision to make a prohibition order (Ex A, p 165).

82. In relation to the allegation that Mr Kofkin was both investigator and decision maker, the plaintiff has no evidence to support this assertion. The plaintiff bears the onus of proving the alleged bias. Moreover, the letter identifies someone else as the person who is the investigations officer from the own motion complaint (Ex A, p 71). As such, the defendant submitted that the Court should reject the claim of apprehension of bias on the part of the decision maker.

Resolution

83. The principles governing apprehended bias are set out in Ebner at [6]-[7] relevantly as follows:

“[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…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…

[7] The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.”

84. Briefly, the test for identifying apprehended bias requires two steps: first, the identification of what it is said might lead a decision maker to decide a case other than on its legal and factual merits; and second, an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits (Ebner at [8]).

85. I will deal first with the plaintiff’s submissions questioning Mr Kofkin’s involvement in initiating the own motion complaint. At the hearing of these proceedings, the plaintiff called on the defendant to produce documents representing the Commission’s own motion decision, or those recommending or referring to it (T 28.15-18). Counsel for the plaintiff submitted that these documents were relevant to answering the plaintiff’s admittedly “somewhat speculative” contention that Mr Kofkin had been involved.

86. Counsel for the defendant opposed the production of these documents, citing concerns over the sensitivities of s 99A of the Health Care Complaints Act. Section 99A relevantly reads:

“99A Offence: Improper disclosure of information

(1) If a person discloses information obtained in exercising a function under this Act and the disclosure is not made:

(a) with the consent of the person to whom the information relates, or

(b) in connection with the execution and administration of this Act, or

(c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or

(d) with other lawful excuse,

the person is guilty of an offence.

Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.

(2) A person may not be compelled in any legal proceedings to give evidence about, or produce documents containing, any information obtained in exercising a function under this Act.

…”

87. Counsel for the defendant ultimately stated that the decision to initiate the own motion complaint was made by the Commissioner, not Mr Kofkin. It is my view that this information satisfies the plaintiff’s concerns. I refused to make an order for further production of documents (T 30.40).

88. The plaintiff’s second broad submission under this ground of review is that Mr Kofkin’s letter to the Dental Council on 24 August 2016 reveals his pre-judgment of the plaintiff’s case. It is necessary to reproduce portions of that correspondence as follows.

89. On 24 August 2016, Mr Kofkin, as Acting Commissioner, wrote the following letter to the Executive Officer of the Dental Council (Ex A, p 233):

“…The Health Care Complaints Commission has finalised its investigation of the complaint concerning treatment provided by Dr David Kirby.

At this time the evidence indicates that Dr Kirby has breached the Code of Conduct for unregistered practitioners by providing health services in an unsafe and unethical manner and that he poses a risk to the health and/or safety of members of the public.

In view of this, the Commission proposes to take action under section 41A of the [Health Care Complaints Act].

The purpose of this letter is to inform the Dental Council of NSW of the substance of the grounds for the proposed action and to provide the Council with the opportunity to make submissions, under section 41A(3) of the Act. This provides that, at the end of an investigation, if the Commission proposes to take any action, other than termination of the complaint, it must provide the relevant Council with an opportunity to make submissions on the proposed action.

The Commission’s proposed action and substance of the grounds for the Commission’s proposed action is as set out in the enclosed draft ‘Statement of Decision’.

If the Council wish[es] to make submissions, I would ask that they are provided in writing within 28 days of receipt of this letter. Should the Council elect not to provide any submissions within this period, the Commission will proceed to finalise the matter in line with the proposed action. …” (my emphasis)

90. On 24 August 2016, Mr Kofkin, as Acting Commissioner, also wrote to the plaintiff in nearly identical terms. The letter invited him to make submissions under s 40(1) of the Health Care Complaints Act, and set out a list of documents relating to the Commission’s investigation which were attached for the plaintiff’s review. It then concluded (Ex A, p 88):

“If you wish to make submissions, I would ask that you do so in writing within 28 days of receipt of this letter….Should your submissions not be received by the Commission within [28 days], the Commission will assume that you do not wish to respond and will proceed to finalise the matter in line with the proposed action.” (my emphasis)

91. Both letter to the Dental Council and the plaintiff attached an identical draft “Statement of Decision”.

92. It is the plaintiff’s case that Mr Kofkin’s 4 August 2016 letter to the Dental Council reveals that he had pre-judged the plaintiff’s case, because Mr Kofkin stated that in the absence of submissions from the Council, “the Commission will proceed to finalise the matter in line with the proposed action.” The plaintiff has interpreted this statement to be an exhaustive proposal of Mr Kofkin’s next steps. However, the interpretation ignores the almost identical statement Mr Kofkin made in his letter to the plaintiff proposing the same outcome in the event that the plaintiff failed to provide submissions. Neither letter makes reference to the submissions sought from the other party. In keeping with the stated purpose of the letters, these lines merely emphasise the impact of the recipient’s own submissions, or their absence, on the proposed outcome.

93. For these reasons, it is my view that the letter to the Dental Council does not indicate that Mr Kofkin might determine the case other than on its legal and factual merits.

94. The final issue raised under this ground of review concerns certain undertakings which the plaintiff asserts that Mr Kofkin failed to take into account in reaching his determination.

95. On 28 September 2016, the plaintiff’s solicitor provided written submissions to the Commission in response to its invitation. Several of those submissions concerned references in the draft statement to individuals the plaintiff considered to have been mischaracterised as “patients”. The plaintiff’s submissions also disputed some of the Commission’s statements, in light of “the undertakings given by the plaintiff and accepted by the Dental Council” (Ex A, p 108 [7]-[10]).

96. At [12], the plaintiff submitted:

“On 17 December 2015, 4 January 2016 and 3 February 2016, Dr Kirby gave undertakings to the Dental Council to no longer be involved with the ‘group of persons’ in the application of cansema or a cansema-like substance.

There is no evidence that Dr Kirby has failed, since those dates, to comply fully with those undertakings.

In fact, Dr Kirby has not been involved with this ‘group of persons’ or with the application of cansema or cansema-like substances since May 2015. That is a period of 16 months.

It should be noted that the Dental Council, in imposing Conditions upon Dr Kirby, made no Conditions prohibiting him from being involved with this ‘group of persons’ or in respect of the application of cansema or cansema-like substances. Clearly, the Dental Council was satisfied of the undertakings given by Dr Kirby on 17 December 2015, 4 January 2016 and 3 February 2016.”

97. On 4 October 2016, Mr Kofkin, as Director of Investigations, issued a Statement of Decision prohibiting the plaintiff from applying or administering cansema. In his letter to the plaintiff attaching the decision, Mr Kofkin relevantly wrote:

“…The Commission has finalised the investigation of this complaint following a comprehensive consideration of your submissions of 28 September 2016. Notwithstanding the contents of those submissions, the Commission does not consider that they raise any new evidence or matters that would cause it to alter the proposed action as set out in the draft Statement of Decision, aside from the delayed publication of the matters referred to below. With respect to your concerns regarding not being afforded an opportunity of a hearing before the Commission, I advise that the Commission noted the concessions you made in your written responses, specifically that you admitted ‘seeing’ this group of like-minded people and applying or administering cansema or cansema-like substance to them at their request. On this basis the Commission held the view that these concessions were sufficient for it to proceed without the need for further oral evidence. …” (my emphasis)

98. Reference to the plaintiff’s submissions also appeared in the Statement of Decision. Under the heading “Section 40 submissions”, the decision relevantly reads:

“6.20 By letter dated 28 September 2016, Dr Kirby’s legal representative made submissions on his behalf to the effect that Ms B was never a patient of Dr Kirby and further that there was clear evidence that at no time were any of the persons Dr Kirby saw and applied cansema or cansema like substances to, were ‘patients’ of Dr Kirby. Dr Kirby’s legal representative also denied that Dr Kirby at any time recommended or prescribed any medication, including analgesia in connection with the pain associated with the skin’s responses to the application of cansema. It was further submitted that on the basis of the undertakings Dr Kirby had provided to the Dental Council of NSW (and compliance with them since May 2015), specifically agreeing to no longer be involved with this ‘group of persons’ or with the application of cansema or cansema like substances, that Dr Kirby did not currently pose a risk to the health and safety of members of the public.

6.21 The Commission reiterates its findings and determinations. Essentially the Commission maintains that it is mere semantics to pretend that Dr Kirby’s use of the word ‘help’ means something fundamentally different from ‘treat’ in the circumstances. The Commission also rejects the attempt to recast Dr Kirby’s application of cansema, an alternative herbal remedy for people’s skin, as a ‘Good Samaritan commitment to Christian witness’, or as something in the nature of a religious practice rather than as the provision of a health service.

6.22 The Commission has fully considered Dr Kirby’s submissions. Notwithstanding Dr Kirby’s repeated denial that the group of persons whom he saw were patients and that the application of cansema amounted to the provision of treatment of any kind or the provision of a health service, the Commission does not consider there to have been any new evidence or submissions raised by Dr Kirby which would alter the Commission’s proposed action as set out in the draft Statement of Decision.” (my emphasis)

99. The plaintiff has submitted that Mr Kofkin’s disregard for the plaintiff’s undertakings reveals an apprehension of bias. It is necessary to consider these undertakings in some detail, as they were the subject of significant dispute.

100. The plaintiff’s submissions on 28 September 2016 referred to three dated undertakings. The first was in a letter dated 17 December 2015 addressed to Ms Bains, Executive Officer of the Dental Council (“the Executive Officer”) (Ex A, p 43). It relevantly stated:

“In view of [the Committee’s concerns] I would be prepared to agree to a ‘condition’ to be placed upon my practice to the extent that I will undertake to undergo education in relation to Complimentary Health Care… The ‘conditions’ that I ask the Committee to consider are:

1. That any person with whom I have an association related to naturally occurring herbal preparations will be provided a copy of the Dental Council Policy on Complimentary Health Care.

2. I will not attend any further meetings of the support group until the Dental Council lifts these conditions.

3. I will undergo education on the use of naturally occurring herbal preparations with a dentist with an appropriate qualification in Herbal Medicine who will report back to the Dental Council on my knowledge of herbal ingredients and preparations as it relates to a risk to the public.”

101. The second undertaking to which the plaintiff referred was in his letter dated 4 January 2016 addressed to the Executive Officer (Ex A, p 45-46). It relevantly stated:

“We note that Dr Kirby on the evening of 17 December wrote a letter to the Council in which he volunteered some conditions and promises.

Respectfully we believe there are practical, workable solutions which would permit Dr Kirby to continue to practice dentistry and so afford such protection to the public as may reasonably be necessary. Dr Kirby promises to abide by any reasonable condition which would achieve this end and enable him to resume practice.

In putting forward these undertakings and practical conditions that allow the Council to be assured the public is not at risk through his continued practice as a dentist Dr Kirby reserves all his legal rights in relation to these and any future proceedings including but not limited to challenging the decision of the Council, seeking a review of the Council’s decision to suspend his registration and to refer the matter to the Health Care Complaints Commission and he makes no admissions in relation to the findings of the Council Delegates or otherwise in relation to these issues and expressly reserves his position on all these matters.

…

We are instructed and ‘without prejudice’ to Dr Kirby’s position and to his rights reserved as they are, that he will undertake and agree to a condition in or to the following effect:

‘that he will not apply cansema or any cansema like substances or derivatives thereof to the small group of people referred to in point (v) on page 4 of his correspondence or any member of the public and will not have in his possession or receive from anyone any such substance or derivative.’”

102. The plaintiff expanded this condition in the third undertaking, sent in a letter dated 3 February 2016 and addressed to the Executive Officer (Ex A, p 56). In it, the plaintiff reiterated the “modified suggested condition” made in his letter dated 4 January 2016, and added:

“Further, Dr Kirby will not permit any meeting of the group to be held at the practice dental premises or at any other premises under his control and will not attend any further meetings of the group or any meeting of any members of the group.”

103. There are several observations to be made about these undertakings. The first is that the undertakings offered in the letter dated 4 January 2016 are conditional, as the plaintiff expressly reserved the right to challenge the conditions placed on his practice. Further, the plaintiff did not in his submissions to Mr Kofkin state that his suggested conditions should be imposed in lieu of a prohibition order. The plaintiff simply submitted that he had made undertakings and that they had been accepted by the Dental Council. It should be noted that there is no evidence before this Court that the Dental Council accepted those undertakings.

104. More importantly, it is not clear how Mr Kofkin’s decision not to accept the plaintiff’s submissions concerning the undertakings, indicates that the Mr Kofkin might determine the case other than on its legal and factual merits. The Statement of Decision referred to the plaintiff’s submissions in detail, but determined that nothing in those submissions was sufficient to alter the proposed action. In my view, it cannot be said that this decision might lead a fair-minded observer to reasonably apprehend that Mr Kofkin may not bring an impartial mind to determining the plaintiff’s application. This ground of review fails.

Ground 2 – that the Commission failed to comply with s 39(2) of the Health Care Complaints Act

The plaintiff’s submissions

105. The plaintiff submitted that pursuant to s 39(2) of the Health Care Complaints Act, the Commission was required to consult with the appropriate professional council before deciding what action to take. Under s 41A(1) of the Act, a prohibition order may only be made if the Commission has complied with Division 6, which includes s 39.

106. Prior to determining to make an order under s 41A, which is an action under s 39(1)(g), the Commission did not consult with any professional council. The plaintiff submitted that that failure to comply renders the decision to take action under s 39(1)(g) invalid.

107. The plaintiff submitted that the need to consult with the appropriate professional council prior to taking action under s 39 is significant given the functions of the Commission and the objectives of the Health Care Complaints Act. The Act expressly refers to the need for the consultation process when investigating and prosecuting serious complaints. Section 3A(2) provides that the Commission is responsible for dealing with complaints “with particular emphasis on the investigation and prosecution of serious complaints in consultation with the relevant professional councils.” The specified function of the Commission under s 80 includes the function “to consult with groups” including professional associations. Strict compliance with the stated complaints and investigation process under the Health Care Complaints Act is consistent with the overarching principles stated in s 3A(5B) of the Act, that is, that the Commission is accountable to the New South Wales community and that the Commission’s decision making processes are open, clear and understandable.

108. The plaintiff submitted that it would be inconsistent and contrary to the statutory scheme and purpose if the Commission were permitted not to comply with the express statutory procedures when taking action under s 39 in respect of a complaint. This is particularly so given the significant consequences that may flow from the outcome of an investigation. The decision by the Commission following an investigation may detrimentally impact a health practitioner’s career and livelihood.

109. The Commission asserts that s 39(2) applies only in respect of investigations into registered health practitioners (Ex A, p 36). The plaintiff submitted that the Commission was investigating the plaintiff as a registered health practitioner. The Commission was investigating him with respect to his practice as a dentist, as well as with respect to health services provided outside of his registration. The appropriate professional council for the Commission to consult with would then include the Dental Council, and the Commission’s interpretation of s 39(2) should be rejected for the following reasons.

110. First, there is no express language in s 39(2) that limits s 39(2) to investigations into registered health practitioners.

111. Second, given the definition of “health practitioner” in the Health Care Complaints Act, the action the Commission must take under s 39 is not restricted to circumstances where there has been an investigation of a complaint against a registered health practitioner.

112. Third, the function of the Commission and investigation is directed to the provision of health services. Where an unregistered health practitioner provides a health service, depending on the kind of “health service” provided, there will be an appropriate professional council.

105. The plaintiff submitted that for those reasons, the Commission was required to comply with s 39(2) and consult with the “appropriate professional council” prior to determining to take action under s 39(1)(g) to make an order under s 41A.

106. As to the Commission’s submissions concerning s 41A(3) of the Health Care Complaints Act, if the Commission is aware that a person in respect of whom it is proposing to make a prohibition order is registered under the National Law, the Commission must, before making the prohibition order, notify the relevant professional council of the proposed order and give that council an opportunity to make a submission. The Commission asserted that, in lieu of s 39(2), s 41A(3) specifies the notification process that is required in relation to an investigation into an unregistered health practitioner who is also a registered health practitioner (Ex A, 36). The plaintiff submitted that this must be rejected for the following reasons.

107. First, s 39(2) cannot be characterised as a “notification process”. Section 39(2) requires consultation with the appropriate professional council. Consultation requires a two-way dialogue and discussion. Section 41A(3) provides for notification of the professional council and an opportunity for the council to make a submission. It can be a one-way process, which is what the Commission contends occurred in the plaintiff’s case. That is distinct from consultation. In that way, it cannot be accepted that s 41A(3) is “in lieu” of s 39(2).

108. Second, the processes under ss 39(2) and 41A(3) are directed to different points in time in the complaint investigation procedure. Section 39(2) is directed to consultation between the Commission and the appropriate professional council before deciding what action to take under s 39(1). Section 41A(3) requires notification to a professional council and providing that council with the opportunity to make submissions, where the Commission is proposing to make a prohibition order.

109. Third, the action that is the subject of consultation under s 39(2) is varied, and includes referring the complaint to the Director of Proceedings, referring the complaint to the appropriate professional council, making comments to the health practitioner and terminating the matter. In contrast, the action that is the subject of submissions under s 41A(3) is limited to the Commission’s proposal to make a prohibition order.

110. Accordingly, s 39(2) is directed to a different and anterior part of the complaint and investigation process than s 41A(3). It cannot be said that s 39(2) is in lieu of s 41A(3).

The defendant’s submissions

119. By letter dated 29 January 2016, the defendant notified the plaintiff that it was investigating the complaint. On 23 February 2016, the defendant notified an own motion complaint into the plaintiff’s administration of cansema, in this regard investigating the plaintiff as an unregistered health practitioner. The parties provided this Court with correspondence recording this history, including a letter from Investigations Officer Georgia Garling. Separately, the Commission investigated complaints against the plaintiff as a registered health practitioner. The proceedings emanating from that investigation are the subject of further proceedings before this Court.

120. Division 5 of Part 2 of the Health Care Complaints Act prescribes the way in which the defendant is to investigate. Division 6 of Part 2 of the Health Care Complaints Act, inter alia, prescribes what is to occur after an investigation, and includes s 39. The defendant submitted that as the investigation was conducted into the plaintiff as an unregistered health practitioner, the only action available was action pursuant to s 39(1)(d), (e), (f) and/or (g).

121. The defendant submitted that s 39(2) applies only in respect of investigations into registered health practitioners, and is not mandatory. It says that the Commission “must consult with the appropriate professional council before deciding what action to take”. “Appropriate professional Council” also appears in s 39(1)(c). As the National Law does not apply to unregistered health practitioners, s 39(1)(a) and (c) can only apply to registered health practitioners.

122. The decision maker, the Director of Investigations, determined to take action under s 39(1)(g). There was no “appropriate professional council” with whom to consult before making that decision.

123. Other provisions of the Act, however, recognise that the Commission may investigate an unregistered health practitioner who is also a registered health practitioner. Division 6A of Part 2 of the Health Care Complaints Act applies to action to be taken after investigations into unregistered health practitioners, and includes s 41A. Section 41A(3) specifies the notification process that is required in relation to an investigation into an unregistered health practitioner who is also a registered health practitioner. Section 41A(3) reads:

“If the Commission is aware that a person in respect of whom it is proposing to make a prohibition order is a registered health practitioner, the Commission is, before making the prohibition order, to notify the relevant professional council of the proposed order and give that council an opportunity to make a submission.”

124. The “relevant” professional council is the professional council relevant to the registration as a health practitioner of the person who has been investigated by the Council for conduct he or she has engaged in as an unregistered health practitioner. Unlike s 39A(2), the process is one of notification rather than consultation, recognising that different role of a professional council when a person is investigated as an unregistered health practitioner, as opposed to a registered health practitioner.

125. The defendant noted that it complied with s 41A(3) by writing to the Dental Council in its letter dated 24 August 2016 (Ex A, p 233).

126. The defendant also wrote to the plaintiff by letter dated 24 August 2016 and invited submissions on the proposed action as required by s 40 of the Health Care Complaints Act, and the plaintiff provided submissions dated 28 September 2016 (Ex A, p 61).

127. Further or in the alternative, the defendant submitted that if compliance with s 39(2) was required, failure to comply with s 39(2) does not invalidate or nullify the prohibition order.

128. Specifically, the defendant submitted that the plaintiff has not demonstrated how failure to comply with s 39(2) gives rise to a materiality different outcome: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34 (“Hossain”) at [25]-[31], [46], and [66]-[72].

129. In Hossain, the Court stated at [30]:

“Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made.”

130. The defendant further submitted that even if it was required to comply with s 39(2), this Court cannot be satisfied that the consultation would have resulted in any different outcome than proceeding to impose a prohibition order. Having regard to the Health Care Complaints Act, the purpose of consulting with the Dental Council is to consider which of the outcomes in s 39(1) should flow from an investigation into a registered health practitioner. This is because the Dental Council then would be the professional body with a specific interest in one of its members. Where the plaintiff was being investigated for his conduct as an unregistered health practitioner administering cansema, the plaintiff has not and cannot show how a failure to comply with s 39(2) would have materially affected the defendant’s decision to impose a prohibition order.

Resolution

131. Section 39 of the Health Care Complaints Act, set out earlier in this judgment, concerns what actions are taken after an investigation of a complaint against a health practitioner has taken place. Section 41A, also set out earlier in this judgment, concerns the making of prohibition orders.

132. Having investigated the complaint against the plaintiff, the Director of Investigations determined to take make a prohibition order under s 41A of the Health Care Complaints Act, pursuant to s 39(1)(g). It is not in dispute that the Commission did not consult the Dental Council before determining what action to take under s 39(1) (T 9.22-23).

133. The Commission made two primary submissions in relation to this ground. The first is that the requirement to consult under s 39(2) of the Health Care Complaints Act did not apply to the investigation into the plaintiff, because there was no “appropriate professional council” relevant to conduct which the plaintiff engaged in outside his practice as a dentist.

134. One of the requirements for the making of a prohibition order under s 41A of the Health Care Complaints Act is that the Commission find under s 41A(1)(b) that the health practitioner breached a code of conduct for non-registered health practitioners. In this code of conduct, contained in Sch 3 to the Public Health Regulations (Ex A, 232), “health practitioner” and “health service” have the same meanings as in the Health Care Complaints Act. Despite the name, the so-called “code of conduct for non-registered health practitioners” states that it applies to registered health practitioners. It also applies to the provision of health services, including alternative health services, provided by health practitioners who are not subject to the scheme for registration under the National Law (s 2(a)). In the case of the plaintiff, the Commission considered him to have breached the code of conduct by administering cansema, which constituted the provision of a health service, although it was one outside of his field of registration as a dentist.

135. The Commission submitted that taking action against the plaintiff on this basis was not inconsistent with the provisions of the Health Care Complaints Act. Counsel for the Commission noted that s 39 of the Health Care Complaints Act refers to a “health practitioner” at large, whether registered or unregistered. Both ss 38(2) and 39(1)(c) refer to the Commission either notifying, or consulting with, respectively, the “appropriate professional council (if any)”, and s 38(2) contemplates that such a council may not apply under the circumstances of an investigation.

136. Furthermore, s 41A(3) of the Health Care Complaints Act states that the Commission must notify the relevant professional council “[i]f the Commission is aware that a person in respect of whom it is proposing to make a prohibition order is a registered health practitioner” (emphasis added). Counsel for the Commission submitted that this section applies in circumstances in which a registered health practitioner has been investigated in respect of conduct outside the scope of his or her registration. She argued that as a matter of statutory interpretation, this provision would have no work to do if there was also a requirement to have consulted with the appropriate professional council in those same circumstances under s 39(2) (emphasis added). The reference to “relevant” professional council in s 41A(3) is consistent with there having been no “appropriate” professional council under s 39(2).

137. I agree with the Commission’s submissions on this point. In my view, the relevant provisions in ss 38, 39 and 41A, as well as the code of conduct for unregistered health practitioners, contemplate circumstances in which registered health practitioners such as the plaintiff are investigated for providing health services outside of their field of registration. In those circumstances where an appropriate professional council is not applicable, a failure to consult under s 39(2) of the Health Care Complaints Act does not have the effect of invalidating a prohibition order made under s 41A. Rather, the role of the Dental Council arises later, at the stage of a notification under s 41A(3). The Commission complied with this requirement on 24 August 2016, when it sent the letter to the Dental Council as set out under Ground 3. As such, this ground of review fails.

138. In the event that I am wrong, I will turn to consider the second of the Commission’s primary submissions, which was that the breach of the requirement under s 39(2), if it was in fact a statutory precondition for action under s 41A, is inconsequential to the outcome of the investigation.

139. In my view, there is no evidence that had the Commission consulted with the Dental Council prior to determining what action to take under s 39(1) of the Health Care Complaints Act, it would have materially altered the outcome of the investigation. On the contrary, it was the Dental Council that suspended and then imposed conditions on the plaintiff’s practice, acted as respondent to the plaintiff’s other proceedings in this Court, and, when notified under s 41A(3) of the Health Care Complaints Act and given the opportunity to provide submissions concerning the proposed conditions on the plaintiff’s practice, made no approach to the Commission concerning the draft decision. In my view, the consistent position of the Dental Council indicates that that it accepted the prohibition order, and there is no evidence to suggest that it would have intervened had it been consulted under s 39(2) of the Health Care Complaints Act.

140. The result is that the plaintiff’s application for judicial review fails. The further amended summons filed 13 August 2019 is dismissed.

Costs

141. The parties requested that costs be reserved.

The Court orders that:

1. The further amended summons filed 13 August 2019 is dismissed.

2. Costs are reserved.

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Decision last updated: 26 August 2020