Sager v Dietitians Association of Australia Limited

[2021] NTSC 94

CITATION:Sager v Dietitians Association of Australia Limited [2021] NTSC 94

PARTIES:RICHARD PATRICK SAGER

v

DIETITIANS ASSOCIATION OF AUSTRALIA LIMITED (ACN 008 521 480)

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory jurisdiction

FILE NO:2021-00667-SC

DELIVERED:  2 December 2021

HEARING DATES:  22-24 September 2021

JUDGMENT OF:  Brownhill J

CATCHWORDS:

ADMINISTRATIVE LAW – Judicial review – Procedural fairness – Bias rule – Apprehended or actual bias – Apprehended bias ground fails – Actual bias ground fails.  

ADMINISTRATIVE LAW – Judicial review – Breach of contract – Terms relating to disciplinary procedure –Alleged failure to apply criteria for disciplinary process – Alleged failures to give proper notice of hearing, allegations, potential sanctions, opportunity to provide additional material or further response and matters taken into account by the hearing body – Alleged premature intermediate consideration of the matter – Alleged final decision made without power  – Alleged imposition of a greater sanction than initially recommended without opportunity to be heard  – None of the grounds relied on by the plaintiff made out.

ADMINISTRATIVE LAW – Judicial review – Breach of contract – Effect of the right of appeal and its abandonment.

ADMINISTRATIVE LAW – Remedies – Discretionary remedies – Equitable remedies – Declaration granted – Injunction granted.

Collector of Customs v Pozzolanic (1993) 43 FCR 280; Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Holmes v Keyes [1959] Ch 199; Keogh v Medical Board (SA) (2007) 99 SASR 327; Lukac v The Royal Australian and New Zealand College of Obstetricians [2018] NSWSC 436; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 ; Minister for Immigration v Jia Legeng (2001) 205 CLR 507; Muralidharan v Minister for Immigration & Ethnic Affairs (1996) 62 FCR 402; Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 95 ALJR 128; Politis v Federal Commissioner of Taxation (1988) 16 ALD 707; R v Panel on Takeovers & Mergers; Ex parte Datafin [1987] 1 QB 815; Robert Batcheller & Sons Ltd v Batcheller [1945] Ch 169; Traders Prudent Insurance Co Ltd v Register of Workers’ Compensation Commission (NSW) [1971] 2 NSWLR 513; Ward v Williams (1955) 92 CLR 496, referred to.

Health Insurance Act 1973 (Cth) s 10.
Health Insurance (Allied Health Services) Determination 2014 (Cth) ss 4, 5, sch 1.
Corporations Act 2001 (Cth) ss 140(1)(a), 232.
Health Practitioner Regulation (National Uniform Legislation) Act 2010 (NT).
Health Practitioner Regulation National Law Act 2009 (Qld).
Supreme Court Rules (NT) r 47.04(b).

D Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9 th ed, 2019) [4.56].

REPRESENTATION:

Counsel:

Plaintiff:J Morris QC and P McIntyre

Defendant:T Brennan QC

Solicitors:

Plaintiff:Cardillo Gray Partners

Defendant:BAL Lawyers

Judgment category classification:    B

Judgment ID Number:  Bro2119

Number of pages:  76

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Sager v Dietitians Association of Australia Limited [2021] NTSC 94

No. 2021-00667-SC

BETWEEN:

RICHARD PATRICK SAGER

AND:

DIETITIANS ASSOCIATION OF AUSTRALIA LIMITED (ACN 008 521 480)

CORAM:    BROWNHILL J

REASONS FOR JUDGMENT

(Delivered 2 December 2021)

1. This matter concerns whether the disciplinary sanctions imposed by the defendant, following a complaint about the plaintiff’s professional conduct as a dietitian, were affected by apprehended or actual bias, or were in breach of the terms relating to disciplinary procedure in or under the contract of membership between them. The contractual breaches alleged were: failure to apply the proper test to the plaintiff’s conduct; failures to give proper notice of the allegations, the potential sanctions, the plaintiff’s opportunity to provide additional material, and matters taken into account by the hearing body; a premature intermediate consideration of the matter; a final decision made without power; and the imposition of a greater sanction than initially recommended, without an opportunity to be heard.

   Background facts

2. The following facts are not in dispute.

3. The defendant (‘DAA’) is a corporation established pursuant to the Corporations Act 2001 (Cth). By its Constitution, the principal objects for which the DAA was established include to administer a code of professional conduct and ethical practices, along with a disciplinary process, for members and accredited professionals in the interests of public safety and quality services (cl 2.1(f)).

4. The Constitution established various classes of membership of the DAA, including Members with Dietetic Qualifications (cl 9.1). That class included ‘Members with APD Status’ and ‘Members without APD Status’ (cl 9.1(a)). ‘APD Status’ was defined to mean having, for the time being, accreditation as an Accredited Practising Dietitian (cl 8.4(e)). ‘Accredited Practising Dietitian’ or ‘APD’ was defined to mean a person who is qualified as such by the DAA pursuant to cl 11. Clause 11 provided that a member who complies with (relevantly) cl 10.1 and holds the qualification Accredited Practising Dietitian as established by the By-laws shall be a member with APD Status. Clause 10.1 provided that a person who has graduated from an Australian university, completed a course of study in human nutrition and dietetics approved by the Board and satisfies the Board that they are a fit and proper person as established by the By-laws, is eligible to be admitted as a Member with Dietetic Qualifications and may, on application, be admitted by the Board. The DAA made the ‘Accredited Practising Dietitian (APD) Policy’ (‘APD Policy’), which described the APD Program as ‘the national program for recognition of qualifications, ongoing training and practice standards for dietitians’. The APD Policy sets out the process for applying for and maintaining the APD credential.

5. The plaintiff (‘Mr Sager’) was, until 16 March 2021, a Member with APD Status.

6. The Constitution provided for a Board of the DAA (cl 25) and the business of the DAA was managed by the Board, which was permitted to exercise all such powers of the DAA as are not, by the Corporations Act or the Constitution, required to be exercised by the DAA in general meeting (cl 27.1).

7. The Constitution permitted the Board to delegate any of its powers to such committees or councils as it thinks fit from time to time, with the powers, duties and procedures of such councils to be established in the By-laws (cl 29.1).

8. The Constitution gave the Board power to make such By-laws as it considered necessary and desirable for specified purposes (cl 36(1)). By-laws were subject to the Constitution, required to be consistent with any of its provisions and, when in force, were binding on all members and had the same effect as the Constitution (cl 36.3).

9. The Constitution provided (cl 21.3) that a member who fails to observe all rules relating to professional conduct, as set out in the By-laws from time to time, may be: (a) formally counselled or reprimanded or both; (b) returned to provisional APD status; (c) required to undertake formal mentoring; (d) ‘suspended from membership and/or the APD program for a period not exceeding twelve months’; (e) ‘expelled from the Association and/or APD program’; or (f) any combination of these things. A member was not to be disciplined for a failure to observe a rule relating to the professional conduct of members except in accordance with procedures established in the By-laws (cl 21.4).

10. Pursuant to cl 36 of the Constitution, the Board made the following By-laws:

    (a)the Code of Professional Conduct (‘the Code’);

    (b)the Statement of Ethical Practice (‘Statement’); and

    (c)the Complaints and Disciplinary Procedures By-law (‘Discipline By-law’).

11. The Code stated that it sets minimum national standards for accountable conduct which promotes the health of the public and engenders confidence in the services provided by members and non-member APDs.[1] The Code defined ‘practice’ ‘in the broadest terms’ to cover any activity considered to be within the accepted scope of a dietitian’s or nutritionist’s work.[2] The Code stated there are ‘two criteria under which the complaints and disciplinary process may be activated’, namely:[3]

    (a)unsatisfactory professional conduct – defined as ‘conduct happening in connection with the practice of dietetics that falls short of the standard of competence and diligence that a member of the public or the practitioner’s peers is entitled to expect of a reasonably competent’ dietitian or nutritionist; and

    (b)professional misconduct – defined as ‘conduct which involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence’ or ‘conduct happening in connection with the practice of’ nutrition or dietetics ‘or otherwise that would, if established, justify a finding that the practitioner is not a fit and proper person to continue to be a member of’ the DAA and engage in nutrition and dietetic practice.

12. The Code stated that the Statement provides the principles underpinning the Code.[4] The Statement’s stated objective was ‘to identify fundamental values and principles for practitioners’. Examples of the values and principles listed in the Statement are: (a) to have obligations for the provision of safe and competent service delivery; (b) to not use inaccurate or misleading ways to promote their services or products; (c) to maintain professional competence and provide evidence based practice and quality service; (d) to recognise the limits of competence, referring to the most appropriate provider if necessary; (e) to practice within current evidence based practice; and (f) to limit advice about alternate therapies to those who voluntarily seek it and only about therapies for which there is documented scientific peer reviewed evidence of effectiveness.

13. The Discipline By-law set out the internal disciplinary mechanism of the DAA to deal with ‘complaints about any member as referenced in the Code’.[5] The responsibility to ensure the process set out in the Discipline By-law is performed in accordance with this By-law had been delegated by the Board to the Dietetic Credentialing Council (‘DCC’).[6] Pursuant to cl 29 of the Constitution, the DCC took overall responsibility for the discipline process ‘with the vested authority of the Board, independently of the Board’.[7]

14. The process in the Discipline By-law could include an investigation by a Hearing Assessment Panel (‘HAP’), which had various functions of investigation, reporting and recommending penalties in relation to complaints.[8] Under the process, the HAP was composed of the Lead Assessor (an APD member with significant professional and complaints handling experience, who was to chair all HAPs during their three year appointment), one other APD member from the Complaints Assessors’ Pool, and one independent non-DAA member from the Complaints Assessors’ Pool.[9] Under the process, the DCC would appoint a HAP from the Complaints Assessors’ Pool.[10] The HAP was to review all material presented by the Chief Investigator[11] and the Chair of the DCC Assessment Panel, provide an opportunity for the respondent to present their response to the allegations, and advise the DCC regarding any findings and/or penalties recommended against the respondent for further action.[12] Under the process, the DCC was to consider and make final determination of all recommendations for findings and/or disciplinary action regarding the respondent arising out of any complaint and appeals processes related to an APD credential.[13]

15. Under the process, the Board was to consider and make final determination on all recommendations for findings and/or disciplinary action regarding membership status arising out of any complaint and appeals processes in relation to the membership of the DAA.[14]

16. The Discipline By-law contained more detailed provisions dealing with the making of complaints,[15] acknowledgement of complaints,[16] initial investigation of complaints,[17] notification of the respondent and request for their input,[18] conference between the Chief Investigator and the DCC Assessment Panel to consider the evidence and the complaint,[19] mediation,[20] referral of the complaint to a HAP, including composition of the HAP in the context of a conflict or perceived conflict,[21] the HAP’s initial determination on the complaint,[22] notice of a formal hearing by the HAP,[23] conduct of the hearing,[24] the HAP’s findings and recommendations (‘HAP’s F&R’),[25] the appeal process[26] and final determination of the complaint.[27]

17. On 12 July 2014, Mark Breslin (‘Mr Breslin’) consulted Mr Sager at his practice called ‘Darwin Dieticians’ for dietary advice in relation to improving mild dermatitis and losing body fat. Mr Sager treated Mr Breslin for some time. On 11 July 2019, Mr Breslin lodged a complaint against Mr Sager with the DAA. The substance of the complaint was that Mr Sager recommended or proposed the use of Glutathione to address a skin condition and arranged for Glutathione to be dispensed to Mr Breslin. Mr Breslin said he experienced ‘extreme pain and suffering’ that ‘deeply affected [his] employment, mental health, relationships and general health’, and attributed it to the Glutathione treatment. He also complained Mr Sager’s clinical advice and care was deficient in response to Mr Breslin’s issues.

18. On 3 September 2019, the DCC notified Mr Sager of Mr Breslin’s complaint. On 25 September 2019, Mr Sager responded to the DCC about Mr Breslin’s complaint.

19. On 15 November 2019, a DCC Assessment Panel resolved that Mr Breslin’s complaint was sufficiently complex to warrant investigation by a HAP. On 18 December 2019, the DCC notified Mr Sager that Mr Breslin’s complaint would be dealt with by a HAP.

20. On 15 January 2020, the HAP resolved that the complaint should be progressed to a formal hearing. On 17 January 2020, the DCC notified Mr Sager of the HAP’s conclusion that there was sufficient evidence to indicate that if Mr Breslin’s complaint were upheld it may constitute a breach of the Code, and of specified ‘principal areas of concern’ which were to be canvassed in a hearing. The DCC asked that Mr Sager provide a complete copy of his case file notes for Mr Breslin, including all communications with other healthcare providers involved in Mr Breslin’s care.

21. On 12 February 2020, Mr Sager’s solicitor (‘Mr Pont’) emailed the DCC seeking a 14 day adjournment of the HAP hearing. On 14 February 2020, the DCC wrote to Mr Pont indicating that the HAP hearing had been adjourned as requested to 10 March 2020. In that letter, the DCC provided Mr Pont with all material that had been provided to the HAP for their consideration. The DCC also restated the request for Mr Sager’s case file notes for Mr Breslin. There was further correspondence between the DCC and Mr Pont on 17, 21 and 28 February 2020.

22. On 10 March 2020, the hearing before the HAP proceeded by telephone. On the call were the three members of the HAP, Mr Sager and Mr Pont. Immediately following the hearing, the members of the HAP conferred and decided that the notes and documents provided to them by Mr Sager were deficient. They resolved to ask the DCC to seek confirmation from Mr Sager that all notes relating to Mr Breslin’s dietetic assessment, nutrition care plan and review of dietetic progress had been provided.

23. On 10 March 2020, the DCC emailed Mr Pont seeking that confirmation. That request was the subject of further correspondence between the DCC and Mr Pont on 11 March 2020. On 16 March 2020, Mr Pont advised that Mr Sager had remotely checked his computer system and provided further material.

24. On 16 March 2020, the HAP considered the further material. On 30 June 2020, the HAP produced in writing its findings and recommendations, and the DCC gave a copy of the HAP’s F&R to Mr Sager.

25. On 10 August 2020, Mr Sager sent to the DAA a Notice of Appeal against the HAP’s F&R. There followed various correspondence between Mr Pont, the DCC and the DAA’s lawyer (‘Mr Love’) about the appeal.

26. On 16 October 2020, Mr Pont informed the DAA that Mr Sager no longer wished to proceed with his appeal and that Mr Pont had instead been instructed to commence proceedings in this Court.

27. On 18 December 2020, Mr Love wrote to Mr Pont to notify Mr Sager that the DAA intended to proceed in the New Year with implementing the disciplinary process under its rules.

28. On 4 March 2021, Mr Love wrote to Mr Pont advising that the DCC had resolved to accept that the complaint against Mr Sager had been upheld and to refer the matter to the Board for final decision. Mr Love also advised that the Board had resolved to foreshadow that it intended to give notice it accepted the recommended sanction, namely to suspend Mr Sager’s ‘APD accreditation and DAA membership’ for a period of 12 months.

29. On 12 March 2021, Mr Love wrote to Mr Pont advising that the Board had decided to accept the DCC’s recommendation and that the suspension would come into effect on 15 March 2021.

30. On 17 March 2021, the DAA wrote to Mr Sager advising him that the HAP’s F&R had been upheld by the Board and that the recommended sanction would take effect immediately.

31. The above summary does not refer to all the correspondence between the parties. Some of it is considered in detail below.

    The need for DAA accreditation

32. Unlike those who practise in various ‘health professions’ within the Health Practitioner Regulation (National Uniform Legislation) Act 2010 (NT), which adopts and applies in the Northern Territory the Health Practitioner Regulation National Law, as appearing in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld), there is no legislative requirement of professional association or accreditation for practice as a dietitian.

33. However, members of the public provided with dietetic services can claim a Medicare rebate in respect of those services if the dietitian is an ‘allied health professional’ for the provision of an ‘allied health service’.[28] Those terms are defined in the Health Insurance (Allied Health Services) Determination 2014 (Cth). Relevantly, an allied health professional is a person who meets the qualification requirements in Schedule 1 of the Health Insurance (Allied Health Services) Determination 2014 (Cth), and whose name is entered in the register kept by the Chief Executive Medicare of allied health professionals who are qualified to provide a service of that kind (s 4(1)). Schedule 1 provides that a person is an allied health professional in relation to the provision of a dietetics health service if they are accredited by the DAA as an APD (item 5). The effect is that a dietitian who does not have the APD accreditation of the DAA cannot provide services which are subsidised by a Medicare rebate, making their services more expensive than dietitians who do have the APD accreditation.

34. Further, members of the public provided with dietetic services may be able to claim against their private health insurance for those services, but only if the dietitian has the APD accreditation of the DAA.

35. In addition, the Northern Territory Government requires the APD accreditation of the DAA to enter into contracts for the provision to individuals or groups of dietetic services funded by Government. The Commonwealth Department of Veterans Affairs and the National Disability Insurance Scheme also require dietitians to have an APD accreditation with the DAA to provide dietetic services under the auspices of that Department or that Scheme.

36. It was argued on behalf of Mr Sager that commercial contracts for the provision of dietetic services (such as to a privately operated aged care facility) require dietitians to have professional indemnity insurance, and holding the APD accreditation of the DAA is a requirement for coverage under professional indemnity insurance. The relevant clause of the insurance policy in evidence[29] provided that the policy does not cover a claim connected with any professional services provided at a time:

    (a)when [the insured was] not registered to practise the professional services and such registration is required under any legislation in Australia; or

    (b)when [the insured was] not permitted to provide such professional services under the terms, conditions, undertakings or limitations of your professional registration.

1. As set out in paragraph [32] above, a dietitian is not, under any legislation in Australia, required to hold the APD accreditation of the DAA in order to practise dietetics. Without some detailed analysis and construction of the terms of the insurance policy, it is unclear whether the insurance policy clause captures the situation where APD accreditation (‘registration’) is not required for practise and a dietitian’s APD accreditation is suspended for a period of time.

2. It is unnecessary for these proceedings to determine that issue because it is essentially undisputed that, while a dietitian can practise dietetics without the APD accreditation of the DAA, such accreditation is very important to economically successful practise as a dietitian.

   The plaintiff’s case

3. Mr Sager’s essential case was that the suspension of his APD accreditation of the DAA was unlawful and had a direct and significant adverse financial impact upon his business as a dietitian. He claimed: (a) declaratory relief, essentially going to the invalidity of the various stages of the DAA’s disciplinary decision making process; (b) injunctive relief, essentially restraining the DAA from acting upon or treating the suspension of Mr Sager’s APD accreditation as valid; and (c) damages to compensate him for his financial loss.

4. On 25 June 2021, I ordered, pursuant to Supreme Court Rule 47.04(b), that the questions in relation to compensation or damages claimed by the plaintiff be tried separately from and subsequently to the Court’s determination of the other issues in the proceeding.

5. Ultimately, Mr Sager’s grounds of relief resolved to the following:

   (a)a denial of procedural fairness by:

   (i)apprehended bias on the part of the Lead Assessor chairing the HAP, Julie Dundon (‘Ms Dundon’), because there was actual or potential competition between Mr Sager’s dietetics business and Ms Dundon’s dietetics business in the Northern Territory and/or South Australian market(s) and suspension of Mr Sager’s APD accreditation would effectively remove him from the market, to the benefit of Ms Dundon;

   (ii)actual bias on the part of the HAP in the conduct of the hearing and deliberations, because the HAP considered Mr Sager to be evasive or dishonest and to have created records about his services to Mr Breslin after being asked to provide them as part of the complaint process; and

   (b)breach of the membership contract between Mr Sager and the DAA constituted by the Constitution, the Discipline By-law, the Code and the Statement, by numerous failures to comply with their terms, being essentially:

   (i)failure to consider and apply the criteria for complaints and the disciplinary process contained in the Code, as set out in paragraph [11] above;

   (ii)failure to provide procedural fairness by giving Mr Sager proper notice of various stages of the disciplinary process as required by the Discipline By-law;

   (iii)failure to comply with the requirement for the DCC to consider the HAP’s F&R after the appeal period had expired, as evidenced by the DCC making its decision on the same date as the HAP’s F&R;

   (iv)the Board imposing the sanction when it was a sanction that could only be imposed by the DCC; and

   (v)the Board imposing a greater sanction than that recommended by the HAP by suspending both Mr Sager’s APD accreditation and his membership from the DAA, and failing to give Mr Sager the opportunity to be heard before it did so.

6. The other grounds contained in the Amended Originating Motion filed on 15 April 2021 were not pressed, namely: (a) invalidity of clauses of the Discipline By-law because they were procedurally unfair with consequent unfairness in the hearing; (b) oppression, etc of a member of a company within s 232 of the Corporations Act 2001 (Cth); and (c) jurisdictional error on the basis that the DAA’s disciplinary functions comprised ‘publicly judicially reviewable’ acts within the principle in R v Panel on Takeovers & Mergers; Ex parte Datafin [1987] 1 QB 815.

   Procedural fairness – Apprehended Bias

7. The test for apprehended bias is whether a fair minded and reasonably well informed observer might apprehend that the decision maker might not approach the decision with an open mind.[30] The test has two limbs: first, it requires the identification of what is said might lead the decision maker to make the decision other than on its merits and, secondly, there must be a logical connection between that matter and the feared deviation from the course of deciding on the merits.[31]

   First limb – Competition

8. As set out in paragraph [41](a)(i) above, Mr Sager identified the matter that might have lead the HAP to make a decision other than on the merits as competition for dietetic services as between Mr Sager’s business and Ms Dundon’s business in the Northern Territory and South Australia.[32]

9. Mr Sager’s affidavit evidence included the following. Ms Dundon was a co-director and shareholder of a business called Nutritional Professionals Australia (‘NPA’).[33] In 2009, at a time when NPA was providing dietitian services to Tiwi Gardens Village, an aged care facility in Darwin, Mr Sager also provided dietitian services to that facility.[34] In 2010, again when NPA was providing dietitian services to that facility, Mr Sager was also asked to provide services there.[35] In 2012, NPA provided dietitian services to that facility.[36] In August 2012, the facility contacted Mr Sager and asked him to submit a proposal for providing the services, which he did.[37] His proposal was accepted and he began providing those services.[38] He then received a phone call from Ms Dundon’s business partner and then Ms Dundon asking him if he would take employment as a dietitian and manager ‘as NPA’s person in the NT’, potentially by merging his business with NPA.[39] Mr Sager declined.[40] NPA offered a subscription based service to dietitians allowing them to access recipes, menus and other information for their clients.[41] Mr Sager was an advisor to the Advisory Board of Victus Health, an online service for dietitians and other medical and allied medical professionals providing meal planning from a database of recipes depending on particular requirements.[42] He received an $800 discount on his subscriber fees to the Victus Health subscription service for his work for Victus Health.[43] In 2017, Mr Sager provided dietitian services to Calvary Community Care in Darwin and NPA provided similar services to Calvary Community Care in Adelaide.[44] In cross-examination, Mr Sager agreed that, given that the Calvary group had three hospitals and two retirement communities in South Australia, he had no idea of the basis on which NPA did work for Calvary Community Care in Adelaide. Between 2010 and 2012, Mr Sager provided dietitian services to Serco and NPA provided dietitian services to Serco in 2013.[45] Mr Sager did Google searches of dietitians in Alice Springs, and dietitians in Darwin.[46] The results of those searches included his name, Ms Dundon’s name and Ms Dundon’s business partner’s name, amongst a few others.[47] In cross-examination, Mr Sager agreed that there are more dietitians in Darwin than appeared on the results of that Google search, and that the Google searches also included dietitians in places other than South Australia and the Northern Territory. Since August 2012, Mr Sager had been offered dietitian consultancy work in South Australia.[48] In 2020, Mr Sager was contacted by email by a person living in Adelaide seeking dietitian services.[49] Since 2011, Mr Sager has had 16 clients who lived in South Australia.[50] Of those, four were clients in 2019-2020.[51]

10. These matters led Mr Sager to the belief that NPA was a direct competitor to him and his business.

11. Ms Dundon’s affidavit and oral evidence included the following. She and her business partner established a partnership and the trading name ‘NPA’ as a dietetic and nutritional professional services business in 2001.[52] In March 2010, Ms Dundon and her business partner formed a company, also called NPA, for the purposes of continuing NPA’s business.[53] They had both beneficially owned and controlled NPA’s business since 2001. From 2001, NPA provided: (i) dietetic and nutrition services via personal client consultations, providing clinical care to clients as patients and dietary and nutritional guidance to clients who were not in the course of health care; and (ii) consultation services to organisations serving meals in volume, such as aged care facilities.[54] From about 2007, those services were provided by Ms Dundon and her business partner (including through the company ‘NPA’ after it was formed) to an entity, Masonic Homes, operating four or five residential aged care sites in South Australia and one in Darwin, namely Tiwi Gardens Village.[55] This contract was performed until mid-2012.[56] In 2010, NPA’s business direction changed, moving away from providing patient healthcare and dietary guidance directly and towards operating by licensing clinics and dietitians who would use the name and goodwill of NPA, allowing licensed dietitians to access the licensed clinics to conduct their separate businesses and receive administrative support in the operation of their businesses.[57] NPA implemented its new business model, resulting in licensed clinics and dietitians in Sydney, Melbourne and Canberra, while keeping the food service consulting operations based in Adelaide.[58] From that time, NPA ceased employing new dietitians.[59] In June 2012, Masonic Homes informed NPA that it had sold its residential care business and, ‘with much reluctance’, the services of NPA would no longer be required.[60] After mid-2012, no services were provided by NPA to Masonic Homes and NPA did not seek work from Masonic Homes either in South Australia or Darwin, or from any other residential aged care facility in the Northern Territory.[61] In cross-examination, Ms Dundon’s evidence was that, from this time on, NPA was not looking for any kind of business presence in the Northern Territory because there was not sufficient work for NPA. Neither Ms Dundon nor anyone else associated with NPA offered Mr Sager or any other person employment with NPA in 2012 or thereafter.[62] To do so would have been contrary to NPA’s business plan of recruiting licensed dietitians. However, Mr Sager might have been approached to become a licensed dietitian under NPA’s business model. In cross-examination, Ms Dundon said that in 2012 she and her business partner spoke to many dietitians around the country about becoming licensed with NPA. She said by then NPA had licensed dietitians in New South Wales and the Australian Capital Territory and the idea was simply to identify dietitians that they knew, rather than to establish an NPA presence in places where there was no such presence, although the latter may have been part of the intention. Since mid-2012, NPA had not taken any significant step towards being directly active in the Northern Territory, save that it may have spoken to Mr Sager about becoming a licensed dietitian under its business model.[63] In cross-examination, Ms Dundon said that there were no NPA licensed dietitians in the Northern Territory and none living elsewhere providing dietetic services in the Northern Territory. She said there were currently only four NPA licensed dietitians in Australia, namely herself, her business partner and two others, all based in South Australia. The other two have their own practices but have a licensing agreement with NPA. Although there was a presence in other jurisdictions (but not in the Northern Territory) beforehand, since 2019, NPA had no business presence with licensed dietitians outside of South Australia. NPA’s web-based subscription service was very different to that provided by Victus Health.[64] NPA’s service designed meals to meet specific dietary needs in response to clinical assessments, whereas Victus Health designed meals to meet dietary exclusions recommended from elsewhere.[65] These are fundamentally different things and there is no overlap of any other services offered.[66] The services NPA provided to Serco were in South Australia only.[67]

12. As was properly conceded on Mr Sager’s behalf: (a) Mr Sager’s evidence did not establish that, at the time the HAP was convened, conducted the hearing into the complaint against Mr Sager, deliberated and provided its findings and recommendations, his business and Ms Dundon’s business, NPA, were competing for dietetic services in the Northern Territory and South Australian market(s); and (b) Ms Dundon’s evidence established that they were not.

13. The consequence is that it is unnecessary to consider the ground of apprehended bias any further because, consistent with the concession made on Mr Sager’s behalf, the evidence did not establish the existence, as required by the first limb of the test in  Ebner v Official Trustee in Bankruptcy (‘Ebner’), of what was said might lead the HAP to make the decision regarding the complaint against Mr Sager other than on its merits. The apprehended bias ground fails.

    Procedural fairness – actual bias

14. The test for actual bias in the form of prejudgement is a state of mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.[68]

15. The HAP hearing was conducted on 10 March 2021. Mr Sager attended by phone from a remote Northern Territory community. His solicitor, Mr Pont, also attended by phone. The three HAP members were Ms Dundon, Charlene Grosse and Noel Muller. There is no transcript of the hearing in evidence.

16. In support of this ground, reference was made on behalf of Mr Sager to various parts of the transcript of the deliberations of the members of the HAP which took place immediately after the hearing concluded.[69] The names of the speakers are not identified in the transcript. Rather, they are identified as ‘Male’ (who can be inferred to be Mr Muller), ‘Female 1’, ‘Female 2’ and ‘Facilitator’ (who the evidence established was Julia Schindlmayr).

17. In the transcript (‘the first transcript’), Mr Muller asked why Mr Sager could not provide the HAP with anything about Mr Breslin from his patient records, and Female 1 replied that he did give the HAP the patient records ‘but they were dreadful … they were non existent’.[70] Mr Muller observed that, despite having been a dietitian for some 15 years, Mr Sager had a ‘slovenly attitude to the whole modus operandi [which was] … so casual’.[71] Female 2 said: ‘I didn’t see any evidence of [using the elimination diet challenges] in his clinical notes … we had concerns that we couldn’t see evidence of diet issues being done. When he did the gluten-free diet, et cetera, there wasn’t evidence of that.’[72] Female 2 said: ‘I’m pretty disappointed … with his level of information that he was providing’.[73] Female 1 said: ‘I have to agree. I don’t think he’s – I’m not sure. I don’t know whether it’s not taking it seriously, he doesn’t recall. He hasn’t got good notes.’[74] Mr Muller said: ‘…after listening to him for half hour or so, I think, and it’s certainly not that his voice demonstrated it, but I think he thinks, not quite a joke, but he doesn’t think that what’s at risk is important, or even knows what it is. I think that reflects on the way he’s, in the past, at least, or with this particular client, conducted his business. That’s unacceptable, to me.’[75] After a discussion about whether the HAP could ask Mr Sager for further records, Female 2 said that she would like to see evidence of what Mr Sager told the HAP he had done in providing services to Mr Breslin.[76] Female 1 said that the HAP had all the clinical files and notes because they had asked for them all.[77] Mr Muller observed that, if he had better records, Mr Sager would be able to prompt his memory about seeing Mr Breslin, but ‘[o]bviously, the records don’t exist … because he didn’t take them in the first place, so he has no memory jog to remind himself of things’.[78] Female 2 said: ‘[b]ecause we haven’t been provided with any evidence, because he said he can’t recall the case, but then he’s told us he did an elimination diet challenges, et cetera, but we don’t have evidence’.[79] After a discussion about seeking confirmation from Mr Sager that he had provided all documents relating to his services to Mr Breslin, Mr Muller observed: ‘I don’t think [Mr Sager] has been as transparent as he should have been with his lawyer, either.’[80] Female 2 said that ‘he’s just not taking it as seriously as what we’re feeling, or …he’s sort of unprepared’.[81] Mr Muller said ‘the lack of evidence around the support earlier on, for the patient, client, consumer, is not evident through any of his other stuff … [s]o, to have this false concern [for Mr Breslin’s mental state] now, yeah’.[82] Female 1 said: ‘He’s only grown concerned because, yeah, because there’s action being taken’.[83]

18. On Mr Sager’s behalf, reliance was also placed on a transcript (‘the second transcript’) of a teleconference of the members of the HAP which occurred a few days after 17 March 2021.[84] The HAP discussed what Mr Sager provided to them by way of further records, which included a photograph of a computer screen showing a Victus Health nutrition plan with Mr Breslin’s name on it.[85] Female 2 queried whether this document had ‘just been created now’ because there were current websites showing up in the background, and the plan clearly had not been saved in Mr Sager’s clinical software.[86] Mr Muller also wondered why Mr Sager only sent a screen shot, rather than all pages of the file.[87] Later, Mr Muller said: ‘If we say that he’s failed to provide what we regard as a comprehensive client record, he will invent them, even if he is overseas, as a [professional…[88]] … at some time later. So I think we need to be pretty careful about what we actually hold him to. We could certainly mention the fact that, by the dates that we requested, he hadn’t provided the evidence that we required. But I don’t think we can – because I’m sure he will mumble jumble something up… at a later process.’[89] After the HAP discussed the appropriate findings and sanction to be imposed, Female 2 said that she ‘would also like to make note somewhere that he has chosen to go overseas at a time when the advice was to not have – allow anyone to go overseas. He’s returning – he’ll return and he will be – if and when he returns, he’ll be in a 14 day isolation. He’s chosen to do that as well. So I think I was extraordinarily surprised that he’s chosen to do that at this time.’[90] Female 1 responded that she thought ‘it demonstrates [his …] … there’s some evasiveness going on here, I think, and I just think that that’s fact. We’d been told he’s gone overseas at this time during this sort of time of only – or of no overseas travel and this [unclear] 14 days of isolation period.’[91]

19. It was argued on behalf of Mr Sager that these transcripts demonstrate actual bias on the part of the members of the HAP because they disclose the members’ perceptions of Mr Sager as dishonest, evasive and prepared to fabricate records about his services to Mr Breslin.

20. There are a number of reasons why these transcripts do not demonstrate actual bias on the part of the HAP. Firstly, the comments in the first transcript were made after Mr Sager had been asked to provide ‘any supporting evidence, where able’ in his initial response to the complaint,[92] Mr Sager took up that opportunity by providing various documents in his initial response to the complaint,[93] Mr Sager was invited to ‘collate all the records that [he had] that relate to Mr Breslin’s treatment and any supporting material [he] used to underpin [his] decisions, as the [HAP] may request this information from’ him,[94] Mr Sager was informed of the HAP’s request that he provide certain information to assist in its assessment of the complaint, including a ‘complete copy of [his] case file notes for Mr Breslin, including all communications with healthcare providers involved in his care’,[95] the HAP’s request was reiterated to Mr Sager’s solicitor, Mr Pont, who was informed that this information had not been received to date,[96] Mr Sager provided various additional documents[97] and a submission,[98] along with an email stating that ‘all requested documentation’ had been posted,[99] and the HAP hearing had taken place. The comments in the second transcript were made after all of those events as well as the following: Mr Pont was asked for confirmation that ‘all documentation related to his dietetic assessment, nutrition care plan and review of dietetic progress for Mr Breslin was included in the package of supporting materials’ sent before the HAP hearing,[100] Mr Pont was asked that that confirmation be provided by 16 March 2020,[101] Mr Pont advised that Mr Sager was ‘still in a remote part of NT and won’t be back in Darwin until 16 March 2020 ‘to review and confirm your request’,[102] and Mr Pont had forwarded a photograph of a meal plan created for Mr Breslin using the Victus Health website as well as some further information (by way of factual statements) relayed to him by Mr Sager about his dietary services provided to Mr Breslin.[103]

1. The above makes clear that the comments made by the members of the HAP in the transcripts were matters discussed in the course of their deliberations, and which arose after and as a consequence of Mr Sager’s approach to the provision of records and information to the HAP for the purpose of its deliberations. They were matters arising in the course of judgement, which makes it difficult, if not impossible, to see how they establish a state of mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented, ie actual bias by pre-judgement.

2. Secondly, matters of Mr Sager’s dishonesty, evasiveness or fabrication of records did not appear in the HAP’s written reasons, that is, the HAP’s F&R.[104] Those reasons were drafted by the ‘facilitator’, circulated to the HAP members for their consideration and ultimately collectively adopted as the HAP’s F&R.[105] Relevantly, after reviewing the five consultation notes before it, and observing that ‘[o]verall, notes are sparse and provide little to no documentation required by an [APD] or which would allow a subsequent practitioner to understand the reasoning and continue care’, the HAP concluded that the evidence provided ‘showed no appropriately documented dietetic assessment, nutrition diagnosis, nutrition care plan or review of progress, for the treatment of Mr Breslin’.[106]

3. Thirdly, it is not appropriate to treat the discussions between the HAP members in the course of their deliberations as their fixed and final decision or to ‘cherry-pick’ a few observations made by individual members during the course of those lengthy discussions as indicating an underlying but undisclosed reason for the findings expressed in the final written reasons for decision, because exposing HAP members to such scrutiny is likely to inhibit open and full discussions between HAP members whereas they should be able to discuss and share their views on the outcome of a matter before them without having to justify their comments or establish how they did not surreptitiously impacted the decision the HAP finally reached.[107]

4. Fourthly, in context, the scepticism expressed by the HAP members about what the HAP had been told about Mr Sager’s availability were unremarkable. In the last mentioned email from Mr Pont referred to in paragraph [56] above, Mr Pont stated that Mr Sager ‘advises he remains away from his office and is now travelling overseas for 10 days from today’, and that Mr Sager ‘has remotely checked his computer system’ and added the photograph and factual statements referred to above. As it turned out, Mr Sager had not travelled overseas because of the Federal Government’s travel bans.[108] In cross-examination, Mr Sager agreed that he returned to Darwin from the remote location on 11 March 2020, and remained in Darwin until 16 March 2020. He agreed that he knew, by the end of 15 March 2020, that he would not be travelling overseas. He accepted that he should have kept Mr Pont better informed about his movements. In cross-examination, Mr Sager said that his having ‘remotely checked his computer system’ was simply his accessing the Victus web platform and Mr Breslin’s file. This could have been done any time with access to the internet.

5. Fifthly, Mr Sager’s contention that the HAP members were continually seeking a way to penalise him has no foundation, because the HAP members first established their joint position in relation to Mr Sager’s conduct, and then went on to consider what penalty might be appropriate to that conduct. In the second transcript, Female 1 stated: ‘So what we’re saying is we are – we don’t believe his practice is [to the] standard of an APD. Is that what we’re saying?’ and both other members agreed.[109] The facilitator then said: ‘so your responsibility at this point is to determine what sanctions are appropriate under the circumstances and then we write that recommendation’.[110] Before discussion about what might be the appropriate sanction, the HAP members confirmed that Mr Sager had ‘failed to demonstrate professional practice’, was ‘not demonstrating basic level APD skills’, his ‘practice is not the standard of an APD’, he was ‘working out of his scope of practice of an APD’ and had engaged in ‘non-evidence based practice’.[111] The discussion thereafter related to sanctions applicable given the nature and degree of those findings.

6. The actual bias ground fails.

Breach of contract

1. By s 140(1)(a) of the Corporations Act 2001 (Cth), the DAA’s Constitution has effect as a contract between the DAA and Mr Sager. That contract provided, as set out in paragraph [9] above, that Mr Sager was liable to be disciplined for a failure to observe a rule relating to the professional conduct of members in accordance with procedures established in the By-laws (cl 21.4). That contract also provided that the By-laws made by the DAA were binding on all members and had the same effect as the Constitution (cl 36.3).

2. It follows that, if Mr Sager was disciplined otherwise than in accordance with the terms of the Constitution, the Discipline By-law and the Code, then that disciplinary act was in breach of the contract between Mr Sager and the DAA. Mr Sager’s remedies would then properly comprise a declaration of invalidity and injunctive relief to ensure the declaration is effective to achieve its purpose.[112]

   Breach of contract – criteria for disciplinary process not applied

   How were the criteria governing professional conduct required to be applied?

3. It was argued for Mr Sager that none of the HAP, the DCC or the Board invoked or considered whether the conduct the subject of the complaint comprised unsatisfactory professional conduct or professional misconduct, which was ‘the test’ required by the Constitution, the Discipline By-law and the Code to be applied and to be satisfied before the power to impose sanctions could be exercised.

4. It is correct to say that the words ‘unsatisfactory professional conduct’ and ‘professional misconduct’ do not appear in the HAP’s F&R,[113] the notice to Mr Sager of the DCC’s resolution to accept the HAP’s F&R and recommend to the Board to do so,[114] the notice to Mr Sager of the Board’s resolution to accept the HAP’s F&R[115] or the notice to Mr Sager of the immediately effective imposition of sanctions against Mr Sager.[116] Nor do they appear in the transcripts of the deliberations of the HAP.[117]

5. Essentially, the issue is whether the HAP has failed to comply with the requirements of the Code. There is no evidence before the Court about the Board’s reasoning process. The onus lay on Mr Sager to prove the Board did not apply ‘the test’. However, contrary to the submission on behalf of the DAA, it may be inferred from the fact that the DCC and the Board purported (at least) to accept and adopt the HAP’s F&R, any failure by the HAP to apply ‘the test’ consistently with the Code established a failure by the DCC and the Board to do so. Equally, if the HAP applied the test consistently with the Code, neither the DCC nor the Board could be found to have failed to do so. On the basis of the evidence and inference, if the HAP properly applied the test, a decision of the DCC or the Board to accept the HAP’s F&R would be a decision applying the test.

6. On behalf of Mr Sager, it was argued that a failure to expressly assess the conduct complained of against and by reference to the terms ‘unsatisfactory professional conduct’ and ‘professional misconduct’, and to expressly differentiate between the two, constituted a failure to apply the test consistently with the Code. This was said to follow from the language of the Code referred to in paragraph [11] above and the Discipline By-law referred to in paragraph [13] above, from the fact that these criteria impose ‘an objective test’, and from the proposition that in professional disciplinary contexts it is always a requirement to articulate ‘the actual test’ to be applied. Reference was also made to cll 9.1.2 and 9.1.3, which require the HAP to initially determine whether the matters giving rise to the complaint would or would not, if substantiated, equate to a breach of the Code.

7. No authority was cited for the above proposition and what is critical is not what always happens in other contexts, but what the Code and the Discipline By-law, by their terms, require. While it may be accepted that the criteria are to be assessed objectively, rather than according to the subjective personal preferences or practices of the HAP members, I do not see how the objective character of the test leads to the requirement that the terms must both expressly appear and be distinguished from each other in the relevant decision. Nor do I see how the language of the Code and Discipline By-law lead to that requirement.

8. What the Code and Discipline By-law require is that it be clear from the HAP’s F&R that it found Mr Sager’s conduct in relation to his services to Mr Breslin to comprise, in substance, conduct ‘that falls short of the standard of competence and diligence that a member of the public or [his] peers is entitled to expect of a reasonably competent’ dietitian or nutritionist or conduct involving ‘a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence’ or conduct that would otherwise ‘justify a finding that [he] is not a fit and proper person to continue to be a member’ of the DAA and engage in nutrition or dietetics practice. It is not necessary that the conduct be expressly found to fall within one, and not the other, of these descriptions.

9. I reach that view for the following reasons. First, the Constitution provides that sanctions may be imposed on a member ‘who fails to observe all rules relating to professional conduct, as set out in the By-laws’ (cl 21.3), and that a By-law must be subject to the Constitution and be consistent with any provision contained in the Constitution (cl 36(a), (b)). The Code provides (relevantly) that it ‘sets minimum national standards for accountable conduct’ and that the Statement provides the principles underpinning the Code. Under the heading ‘Criteria governing professional conduct’, the Code sets out the ‘two criteria under which the complaints and disciplinary process may be activated’. Nothing in those provisions precludes the construction that what is required is that it be clear from the HAP’s F&R that it finds a practitioner’s conduct to comprise, in substance, conduct falling within one or the other (or perhaps both) of the two criteria and compels the construction that what is required is that the HAP’s F&R contain an express finding that a practitioner’s conduct comprises one or the other of, and expressly using the terms, ‘unsatisfactory professional conduct’ or ‘professional misconduct’.

10. Secondly, the provision in the Constitution which confers the power to impose sanctions on a member does not distinguish between sanctions which may be imposed for unsatisfactory professional conduct or professional misconduct (cl 21.3) and nor do the Code or the Discipline By-law. In respect of either form of conduct, there is no constraint in the Constitution, the Code or the Discipline By-law upon the sanction that may be imposed in respect of either criteria.

11. Thirdly, to construe the Constitution, the Code and the Discipline By-law as requiring the HAP’s F&R to expressly include the terms ‘unsatisfactory professional conduct’ and ‘professional misconduct’ in determining whether the practitioner has failed to observe the rules relating to professional conduct would be to prefer form over substance. It is not apparent, for the reasons already set out, that such preference is mandated. Reasonable business efficacy would only require that the HAP’s F&R clearly find that the conduct in question comprises, in substance, conduct falling within one or the other of the two criteria, and company constitutions are to be construed, if possible, so as to give them reasonable business efficacy.[118]

    Did the findings comply with the requirement for applying the criteria?

12. When first notified of the HAP hearing,[119] Mr Sager was informed that the HAP had decided ‘there was sufficient evidence to indicate that if the complaint were upheld it may constitute a breach of the Code’, and that there were five principal areas of concern to be canvassed at the hearing, namely:

    (a)‘whether [his] treatment plan for Mr Breslin was within the scope of dietetic practice’;

    (b)‘whether the treatment plan and information provided to Mr Breslin was evidence-based’;

    (c)‘concern over the transmission of confidential patient information by unsecured electronic means’;

    (d)‘whether [he held] a complementary/alternative therapy degree’; and

    (e)‘whether [he] took steps to refer the patient to other appropriate specialists during the period of [his] care’.

13. The reference to ‘a breach of the Code’ is clearly a reference which captures the two criteria governing professional conduct set out in the Code. The principal areas of concern each fall within the Statement’s fundamental values of maintaining professional competence and providing evidence based practice and quality service, and the Statement’s principles of:

    (a)limiting provision of advice about alternate therapies to those who voluntarily seek it and only about therapies for which there is a documented scientific peer reviewed evidence of effectiveness;

    (b)practising within current evidence based practice;

    (c)respecting the confidences and trust in their relationships with clients; and

    (d)recognising the limits of competence and referring to the most appropriate provider if necessary.

14. To the extent that Mr Sager relied on the transcripts of the two HAP conferences in deliberations in arguing that the HAP failed to apply the right test, I repeat the reasons at paragraph [59] above.

15. It has been held, in the context of judicial review of administrative decisions, that it is wrong to read the reasons of the decision maker minutely and finely with an eye keenly attuned to the perception of error.[120] The proposition has been held to recognise the reality that the reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.[121] It is appropriate to apply those observations in the present context and adopt a fair reading of the HAP’s F&R as a whole, by reading them ‘sensibly and in a balanced way’[122].

16. The HAP’s F&R[123] stated that the allegations in paragraphs [74](d) and (e) above were dismissed, the other allegations were upheld, and that the evidence provided by Mr Sager: (a) failed to demonstrate professional practice; (b) failed to demonstrate entry level dietetic competence; (c) failed to demonstrate that his practice was of the standard expected of an APD; and (d) indicated non-evidence based practice.

17. The HAP’s F&R also said that the evidence: (1) showed no appropriately documented dietetic assessment, nutrition diagnosis, nutrition care plan or review of progress for the treatment of Mr Breslin; (2) failed to demonstrate clear differentiation between Mr Sager’s practice as an APD and his practice as an alternative therapist; (3) indicated that there is significant overlap between the two fields (dietetic and other) in his practice, including in his use of billing codes; (4) failed to demonstrate a strong and documented evidence base for the recommended dietary interventions; and (5) failed to demonstrate adequate procedures to ensure protection of patient privacy, specifically in relation to communicating with other members of the healthcare team. These matters were further particularised in more detailed observations about the evidence. They are clearly the bases for the conclusions referred to in paragraph [78] above.

18. Those conclusions clearly describe conduct which falls short of the standard of competence and diligence that a member of the public or Mr Sager’s peers are entitled to expect of a reasonably competent dietitian or nutritionist. Consequently, they describe conduct falling within ‘unsatisfactory professional conduct’. They clearly do not describe conduct which would justify a finding that Mr Sager is not a fit and proper person to continue to be a member of the DAA and engage in nutrition and dietetic practice. While the finding of a failure to demonstrate entry-level dietetic competence could be said to describe conduct which involves a substantial failure to reach or maintain a reasonable standard of competence or diligence, it was conceded on behalf of the DAA that Mr Sager’s conduct did not comprise professional misconduct. Hence, the HAP’s findings are that Mr Sager’s conduct fell within unsatisfactory professional conduct as defined in the Code.

19. That constitutes compliance with the requirements of the Code, the Discipline By-law and the Constitution as to the application of the two criteria. The failure to apply the test ground fails.

    Breach of contract – failure to provide proper notice of the hearing

20. The Discipline By-law provides that a notice of hearing must be served on the respondent no less than 21 days before the hearing date, and the notice ‘must include the following’, relevantly:

    (a)‘state’ the actions or allegations that are the subject of the complaint, including any actions or allegations which have arisen during the investigation of the complaint which are alleged to be a breach of the provisions of the Code which are to be considered at the hearing (cl 10.3.2);

    (b)a copy of the material provided to the HAP under cl 8.3.3, namely all material submitted by the complainant and the respondent and all additional material relied on by the Chief Investigator and the DCC Assessment Panel to make the initial assessment under cl 5.1 (cl 10.3.3);

    (c)‘set out’ the actions under the Constitution which may be taken by the DAA (cl 10.3.4); and

    (d)advise the respondent that they may send in any additional material, information or a further response to the complaint which is to be considered by the HAP (cl 10.3.5).

    Notice of the particulars of the allegations in breach of the Code

21. Mr Sager received the letter referred to in paragraph [74] above.[124]

22. Conceding that substantial compliance rather than strict compliance with cl 10.3 is sufficient, it was argued on Mr Sager’s behalf that this letter did not comply with cl 10.3.2 because it did not articulate that these five concerns were alleged to be a breach of the Code. For the reasons set out in paragraph [75] above, applying the reasoning in paragraphs [70] to [73] above to the formulation of allegations, this argument must be rejected. Despite being described as ‘areas of concern’ and not being expressed in an accusatory form, the five matters clearly constitute ‘the actions or allegations which are alleged to be’ a breach of the Code to be considered at the hearing. The failure to give notice of the allegations ground fails.

    Notice of the sanctions that might be imposed

23. When initially informed about the complaint, Mr Sager was provided with a copy of the Code and the Discipline By-law.[125] Mr Sager then received the letter referred to in paragraph [74] above.[126] Mr Pont then received the letter referred to in paragraph [20] above,[127] informing of the new date for the hearing consequent upon his request for an adjournment and attaching all material provided to the HAP, including another copy of the Discipline By-law.

24. It was argued on behalf of Mr Sager that cl 10 mandated, by the use of the words ‘must’ and ‘and’ in cl 10, that all of the things set out in cl 10 are required to be provided in the same notice. Given the concession that substantive compliance with cl 10.3, is sufficient, this argument cannot be sustained. Where the respondent is provided with the matters listed in cl 10 within the time period prescribed before the hearing, there is no warrant for concluding that all of the cl 10.3 matters must be contained in the one letter to the respondent.

1. It was also argued on behalf of Mr Sager that cl 10.3.4 mandated, by the use of the words ‘set out’, that the notice must recite the sanctions that may be taken in relation to the complaint listed in cl 21.3 of the Constitution and cl 16.8 of the Discipline By-law. The latter clause lists the ‘sanctions that may be imposed by the DCC or the Board’. A copy of the Discipline By-law was sent to Mr Pont when he was notified of the adjourned date for the hearing. Clause 10 contemplates that copies of documents will be included in the notice (cl 10.3.3). Clause 10.3.4 refers to ‘the actions under the Constitution which may be taken by the DAA’. That language is broad and encompasses, not only the sanctions that may be applied to a respondent if the complaint is upheld, but all of the steps of the disciplinary process provided for by the Discipline By-law pursuant to the Constitution in relation to and subsequent to the hearing by the HAP. That language does not warrant the construction that a notice providing a copy of the Discipline By-law, without repeating the content of cl 16.8 in the covering letter, would be deficient. The failure to give notice of the sanctions ground fails.

   Notice that additional material or a further response may be provided

2. This issue relates to the letter referred to in paragraph [74] above[128] and the letter referred to in paragraph [20] above.[129] It was argued on Mr Sager’s behalf that the request in the second letter for a complete copy of Mr Sager’s case file notes for Mr Breslin and his qualifications in alternative medicine by 17 February 2020 created ambiguity in relation to the next sentence in the letter which stated that any additional material, information or a further response to the complaint to be considered by the HAP must be submitted by 2 March 2020. That ambiguity was said to have the effect that the letter did not comply with cl 10.3.5.

3. There is no ambiguity. Reference is made to the HAP’s initial request for the case file notes, which were said not to have been received to date. Reference is made to the ‘original deadline’ for submission of that information. The reference to ‘additional material’ is clearly additional to the material requested by the HAP, which is confirmed by the different date for its submission. There is a clear delineation between documents requested by the HAP and other material which Mr Sager might wish to provide. The failure to give notice about additional material or a further response ground fails.

   Notice about dishonesty, evasiveness and record fabrication

4. On the basis of the comments of members of the HAP during their deliberations, as set out in paragraphs [53] and [54] above, it was argued on Mr Sager’s behalf that procedural fairness required that he be notified that these adverse matters were being considered by the HAP. This submission must be rejected, for the reasons which follow.

5. First, there is no requirement in the Discipline By-law for a HAP to give notice to a respondent that it intends to take into account an adverse matter arising from the hearing or material provided by the respondent thereafter. The Discipline By-law simply provides that the HAP will ‘retire to consider the complaint, the material before it and the respondent’s answers (if any) given at the hearing and will determine their findings and recommendations in relation to the complaint’ (cl 13.1). Secondly, the Discipline By-law makes clear that its terms are intended to ensure a fair and transparent process based on principles of natural justice for determining complaints. The clear intention of the contract between the DAA and its members is that there is no super-added duty to afford procedural fairness beyond what is prescribed in the Discipline By-law. This is confirmed by cll 21.4 and 36.3(c) of the Constitution.

6. Thirdly, even if there were a duty to go beyond the Discipline By-law to afford procedural fairness, that duty would not require the HAP to disclose to Mr Sager what it is minded to decide so that he may have a further opportunity of criticising its mental processes before it reaches a final decision, particularly where the HAP is evaluating Mr Sager’s case (ie material or answers provided by him).[130] It follows that the HAP was not obliged to disclose to Mr Sager that things he or his solicitor had told it and provided to it were viewed with scepticism or not believed.

7. Fourthly, as set out in paragraph [58] above, the matters of dishonesty, evasiveness and creation of records were not matters the subject of the HAP’s F&R.

8. The failure to give notice about dishonesty, etc ground fails.

   Breach of contract – DCC considered HAP F&R prematurely

9. The Discipline By-law provides that, after determining its findings and recommendations in relation to the complaint pursuant to cl 13.1, the HAP must prepare a written report for the DCC outlining their findings, brief reasons for those findings and their recommendations (cl 13.4). The respondent is to be served with a copy of the HAP’s F&R as soon as practicable (cl 13.5). The Discipline By-law then provides for the respondent to appeal, within 14 business days of receiving the HAP’s F&R, against ‘the process of the hearing’ if there is an adverse finding in the HAP’s F&R (cl 14). If there is no appeal, the HAP’s F&R must go to the DCC for determination (cl 14.3). The appeal process contemplates the establishment of a Review Panel to hear and determine the appeal, and to prepare a brief written statement for the DCC on its findings in relation to the grounds of appeal and a recommendation to the DCC that it upholds the decision of the HAP or orders a rehearing (cl 15). The DCC must consider the HAP’s F&R and any appeal findings and recommendations (cl 16.1). Final determination is to be by the DCC or the Board (depending on certain matters[131]), by determining to accept that the complaint be dismissed or upheld or ordering a rehearing by another HAP (cll 16.2-16.5) and, if the complaint is upheld, by accepting or modifying the recommended sanction (cll 16.6, 16.7).

10. It follows that the HAP’s F&R may only be considered by the DCC after the lapse of at least 14 business days after service of them on the respondent, and that any earlier consideration would be a breach of the Discipline By-law.

11. It was argued on behalf of Mr Sager that the DCC considered and upheld the HAP’s F&R on the same date that the HAP’s F&R were made. The basis for this submission was that the HAP’s F&R were dated 30 June 2020 and a letter written by Mr Love on 26 February 2021 stated as follows:[132]

    We refer to the complaint made to the [DAA] against your client on 11 July 2019 and the subsequent review and determination made by the [DCC] on 30 June 2020. [emphasis added]

    As you are aware, the review of the complaint against your client resulted in a recommendation by the DCC that your client be suspended from the [APD] Program for a period of 12 months.

    We confirm that the prescribed period for an appeal of the determination has expired, as well as any reasonable extensions to this period that have been granted at your client’s request.

    We are instructed to give notice that the DAA has accepted the recommendation of the DCC and will apply within the next 14 days to suspend Dr Sager’s accreditation and DAA membership for a 12 months period.

12. This letter must be considered in context. For the reasons which follow, the context demonstrates that the references in this letter to the DCC are erroneous and intended to refer to the HAP, and the references to the DAA (except for the last) are erroneous and intended to refer to the DCC. The proper inference is that this letter was intended to give notice of the DCC’s acceptance of the HAP’s F&R in February 2021, well after the time for lodging an appeal had expired.

13. On 10 August 2020, Mr Pont sent to the DCC a notice of appeal.[133] After various correspondence between Mr Love and Mr Pont, Mr Pont wrote to Mr Love on 16 October 2020 indicating Mr Sager did not wish to proceed in the appeal process.[134] Also on 16 October 2020, Mr Love wrote to Mr Pont stating that in light of that, ‘the decision communicated to your client on 30 June 2020 remains’.[135] Mr Sager deposed that, on 30 June 2020 he received a copy of the HAP’s F&R.[136] Mr Love’s letter also stated: ‘Your client has ceased to be entitled to hold himself out as an APD’. In response to a letter from Mr Pont dated 22 October 2020,[137] Mr Love wrote to Mr Pont on 23 October 2020,[138] withdrawing the statement that Mr Sager had ceased to be entitled to hold himself out as an APD, stating that the DCC must be placed in a position to reasonably conclude, in the appeal, that there should be a rehearing by another HAP as permitted by cl 16.5.2 of the Discipline By-law, and that the DAA would give Mr Sager an opportunity to put further material about the matters raised on the appeal and would give Mr Sager seven days’ notice of the DCC’s intention to make a decision adverse to Mr Sager. After further correspondence, Mr Love wrote to Mr Pont on 2 November 2020, stating that notice was now given that the DCC would be requested to decide on the HAP’s F&R. The clear inference from this correspondence is that the DCC did not, on 30 June 2020, consider and accept the HAP’s F&R in purported compliance with cl 16.1 of the Discipline By-law.

14. On 4 March 2021, Mr Love wrote to Mr Pont stating that the HAP’s F&R were submitted by the HAP to the DCC, the DCC had resolved to accept that the complaint is upheld and to refer the matter to the Board for final decision, and that the Board has resolved to foreshadow that it intends to find that the complaint is upheld and to accept the recommended sanction. The last paragraph of this letter states that the letter of 26 February 2021 referred to in paragraph [97] above ‘was to put [Mr Sager] on notice that those steps would be occurring’.

15. In evidence is an undated report to the Board about the HAP’s F&R.[139] The former Credentialling Manager of the DAA, Julia Schindlmayr, gave oral evidence that in that role, she acted as facilitator for the HAP, ensuring its processes were followed, and provided it with secretariat support. As part of her role, she drafted the HAP’s F&R and circulated them to the HAP members. She had similar functions for the DCC. If the DCC were to report to the Board about a HAP’s F&R, she would draft those reports. She ceased as the Credentialling Manager on 7 September 2020. Up to that time, she did not draft the report to the Board in evidence and nor had she seen that document. Ms Schindlmayr’s evidence established that, up to 7 September 2020, the DCC had not reported to the Board about the complaint. This evidence does not establish that the DCC had not made its decision by 7 September 2020, but it does support the inference that the DCC did not do so on 30 June 2020.

16. The correspondence before and after the letter of 26 February 2020 means that letter does not establish, or permit the inference, that the DCC considered the HAP’s F&R on 30 June 2020, inconsistently with the requirements of cl 16 of the Discipline By-law. The ground that the DCC considered the HAP’s F&R prematurely fails.

    Breach of contract – ‘Membership sanctions’ and power to make the final determination

17. The Discipline By-law provides that, if the complaint relates to: (a) a member of the DAA who is not an APD; or (b) a member of the DAA who is an APD where the recommendation includes membership sanctions, then this ‘must’ be referred to the Board for final determination (cl 16.2). It further provides that, if the complaint relates to: (a) a non-member of the DAA who is an APD; or (b) a member of the DAA who is an APD where the recommendation does not include membership sanctions, then the DCC ‘may’ make the final determination (cl 16.3).

18. It was argued on behalf of Mr Sager that the HAP’s F&R did not include a membership sanction within cll 16.2 and 16.3, with the consequence that the appropriate entity to make the final determination was the DCC and there was no power in the Board to make the final determination. Consequently, the Board’s decision to accept the HAP’s F&R, uphold the complaint and impose the sanction on Mr Sager was in breach of the Discipline By-law.

19. It was argued on behalf of the DAA that, for a member with APD Status, there is no status as a member separate from their APD Status. Consequently, a suspension of a member with APD Status falls within cl 16.2. It further argued that, even if the HAP’s recommended sanction did fall within cl 16.3, it is permissive and does not prevent the Board making the final determination. In any event, it argued that under the Constitution, the Board may exercise any power of the DAA, including powers of the DCC.

20. Determination of this ground turns on: (a) how the Constitution defines membership of the DAA; (b) what is meant by ‘membership sanction’ in cll 16.2 and 16.3; and (c) whether the Board had power to impose the sanction it did.

    Membership of the DAA

21. The Constitution defined ‘member’ to mean a person who has been admitted to any one of the classes of membership or association referred to in cl 9 (cl 8.4(w)). Those classes included Members with Dietetic Qualifications (cl 9.1(a)). With the appropriate qualifications, a person was eligible, upon application, to be admitted as a Member with Dietetic Qualifications (cll 10.1, 10.2). There were two sub-classes of Members with Dietetic Qualifications, namely Members with APD Status and Members without APD Status (cl 9.1(a)). Clause 11.1 provided that a member who holds the qualification APD as established in the By-laws ‘shall be a member with APD Status’. ‘APD Status’ is defined to mean having, for the time being, accreditation as an APD (cl 8.4(e)). Clause 11.2 provided that a member who does not hold that qualification ‘shall be a member without APD Status’.

22. Clause 21 of the Constitution was headed ‘Cessation and Suspension of Membership’. Clause 21.3 of the Constitution provided that a member, or a non-member APD program participant, may be sanctioned for failure to observe the professional conduct rules and those sanctions include ‘suspended from membership and/or the APD program’ (cl 21.3(d)) and ‘expelled from the [DAA] and/or APD program’ (cl 21.3(e)).

23. The APD Policy set out the eligibility criteria for ‘the APD Credential’ and described the ‘APD Program’ as the national program for recognition of qualifications, ongoing training and practice standards for dietitians.[140] It said that participants in the APD Program must meet eligibility criteria and adhere to ongoing requirements in order to continue to use the APD title. It was not an eligibility requirement that a person be a member of the DAA.[141]

24. Clauses 11.1 and 11.2 of the Constitution disclosed that the classes of membership are distinct and fixed, with each tied to APD Status, ie accreditation as an APD. By the APD Policy, accreditation as an APD is tied to ongoing participation in the APD Program, rather than membership.

25. Ms Schindlmayr was employed by the DAA as the Credentialling Manager from May 2019 to September 2020, and was (as at May 2021) employed by the DAA in its policy and advocacy section.[142] She deposed that the DAA had as its ‘full members’ professionals who are qualified to deliver dietetic and nutritional advice in the course of health care, with each ‘full member’ attaining and maintaining accreditation as an APD.[143] Ms Schindlmayr r is someone who is in a position to know the prevailing understanding within the DAA about the effect of its Constitution regarding membership. Her evidence was that a Member with APD Status (‘full member’) is someone who attains and maintains accreditation as an APD. It may be inferred from this evidence that, as understood by the DAA, if a ‘full member’s’ accreditation as an APD is lost or suspended, their membership as such is also lost or suspended.

26. It is open to construe cll 21.3(d) and (e) as providing that a member may be suspended from membership, or the APD Program if they are a participant, or both, while a non-member APD Program participant may be suspended from the APD Program.

27. However, it is also open to construe those clauses as if they read as follows:

    A member:

    (a)   [without APD Status] … may be suspended from membership; and

    (b)   [with APD Status] … may be suspended from membership and the APD Program.

    or

    A non-member APD program participant … may be suspended from the APD program.

28. In other words, in the case of a Member with APD Status, the reference to suspension from the APD Program is read together with the suspension from membership, and is read alone in the case of a non-member who is a participant in the APD Program. On this construction, in relation to a Member with APD Status, the sanction comprises a hendiadys – a single idea expressed in two words with the conjunction ‘and’.[144] In the context of statutory construction, an approach to determining whether a phrase is a hendiadys is to ask whether the two parts of the phrase can each reasonably stand on their own, and if they can they will be construed, not as a hendiadys, but as creating two separate options.[145]

29. If a member with APD Status could be suspended or expelled from the APD Program or their APD Status whilst their membership of the DAA remained intact, their membership would have to transmogrify from a Member with APD Status to a Member without APD Status. There is nothing in the Constitution to suggest this can occur. The opposite is indicated by cll 11.1 and 11.2, which provide that a member ‘who complies with’ cll 10.1 or 10.2 (ie who has the requisite qualifications, satisfies the Board they are a fit and proper person, applies to be admitted as a Member with Dietetic Qualifications and is admitted by the Board) ‘and holds the qualification’ APD or ‘does not hold the qualification’ APD (respectively) ‘shall be a member with’ or ‘shall be a member without’ (respectively) APD Status. By these clauses, whether or not a person holds the qualification APD applies at the time of their application for membership.

30. The APD Policy referred to ‘Full APD Status’ and ‘Provisional APD Status’, with the latter conferred on appropriately qualified persons who apply for the APD Program and who either also apply for membership of the DAA in a category that allows APD membership, or the APD Program only.[146] A person with Provisional APD Status is required to complete at least 12 months of mentoring with a ‘Full APD’. It is clear from the APD Policy that both members of the DAA with Full APD Status and Provisional APD Status have ‘APD Status’ within the meaning of the Constitution. This also supports the proposition that membership as a Member with APD Status and their APD Status are inseparable components of the one concept.

31. For these reasons, the construction in paragraph [112] above is rejected and I find that the proper construction is that in paragraphs [113]-[114] above, with the phrase in the second limb operating as a hendiadys.

    Membership sanctions

32. The clear intention of cl 16.2 of the Discipline By-law was to allocate to the Board responsibility for final determination of complaints where the recommended sanction involves the respondent’s membership of the DAA. Such circumstances would include suspension or expulsion from membership of the DAA (cl 16.8.2, 16.8.4). Similarly, the intention of cl 16.3 was to empower the DCC to make a final determination for complaints where the recommended sanction does not involve the respondent’s membership of the DAA. Such circumstances would include where the recommended sanction is a return to a provisional APD credential, a formal reprimand, a requirement to attend counselling or to undertake formal mentoring (cl 16.8.5-16.8.8). It makes sense that sanctions not relating to membership may be finally determined by the DCC (a delegate of the Board) rather than proceeding before the Board.

33. Clauses 16.8.1 and 16.8.2, and cll 16.8.3 and 16.8.4 refer separately to suspension or expulsion from the APD Program and suspension or expulsion from membership of the DAA. Consistently with the construction of cl 21.3 reached in paragraph [117] above, that is to accommodate non-members with APD Status (covered by cll 16.8.1 and 16.8.3) and members, whether they do or do not have APD Status (cll 16.8.2 and 16.8.4).

1. It is clear that the term ‘membership sanctions’ in cll 16.2 and 16.3 refers to sanctions comprising suspension or expulsion from membership of the DAA. This is confirmed by the reference in cl 16.3, after the words ‘membership sanctions’, to the words ‘(ie suspension or expulsion from membership of the DAA)’. It follows from the construction of cl 21.3 reached in paragraph [117] above that, for a Member with APD Status, suspension or expulsion from the APD Program will comprise suspension or expulsion from membership of the DAA and a ‘membership sanction’.

   Board’s power to impose the sanction on Mr Sager

2. It was argued on behalf of Mr Sager that the HAP’s F&R did not include membership sanctions, with the consequence that the Board did not have the power to make the final determination of the complaint. On the basis of the construction of cl 21.3 reached in paragraph [117] above, that argument cannot be sustained. In any event, I have considered the argument below.

3. If the HAP’s F&R did not include membership sanctions, the situation would fall within cl 16.3.2 of the Discipline By-law, which provides that the DCC ‘may’ make the final determination. Clause 16.4 provides that, if cl 16.3 applies, upon receipt and consideration of the HAP’s F&R (and any appeal findings and recommendations), the DCC ‘will’ determine whether to accept that the complaint be dismissed or upheld or order a rehearing of the complaint by another HAP. It was argued on behalf of Mr Sager that the word ‘will’ indicated that, despite the word ‘may’ in cl 16.3, it was the DCC that was required to make the final determination.

4. I reject that argument for the following reasons. First, the word ‘may’ in cl 16.3 is in clear contrast with the word ‘must’ in cl 16.2, indicating (at least prima facie[147]) an intention to use the word ‘may’ in its ordinary and permissive sense. The onus lay on the party asserting that the word ‘may’ has a compulsory meaning, ie Mr Sager, to show this was the intention.[148] Secondly, the word ‘will’ in cl 16.4 does not discharge that onus. It is capable of indicating merely that, if the DCC decides to proceed in accordance with the permission conferred on it by cl 16.3, then it is to do so in accordance with cl 16.4. Thirdly, the introductory words in cl 16.4 (‘If Clause 16.3 applies’) also do not discharge that onus. They are similarly capable of referring to the situation where the DCC decides to proceed in accordance with the permission conferred on it by cl 16.3.

5. Fourthly, it is the case that there is no express power in the Discipline By-law for the DCC to refer a complaint to the Board for final determination where it does not make the final determination itself under cl 16.4, and nor is there a clause expressly providing for the Board to make the final determination in this circumstance, as cl 16.5 is prefaced by the words: ‘If Clause 16.2 applies’. However, by cl 27.1 of the Constitution, the Board has power to exercise all the powers of the DAA that are not required to be exercised by the DAA in general meeting. The By-laws are subject to the Constitution and must be read consistently with it. It would be a significant constraint upon the Board’s power in cl 27.1 to construe the word ‘may’ in cl 16.3 as precluding the Board from finally determining any complaint falling within cl 16.3. No rationale for such a constraint is apparent and none was suggested.

6. The process contemplated by cll 16.1, 16.2 and 16.5 is that:

   (a)Upon being provided with the HAP’s F&R, and upon the expiry of any appeal period or the determination of an appeal, the DCC is to consider the HAP’s F&R and any appeal findings and recommendations under cl 16.1.

   (b)The DCC is to decide whether the complaint relates to a member who is an APD and the recommendation includes membership sanctions within cl 16.2 and, if so, the DCC must refer the complaint to the Board for final determination under cl 16.2.

   (c)If the complaint is not referred to the Board under cl 16.2, the DCC is to decide whether to exercise the discretion in cl 16.3 and make the final determination under cl 16.4.

   (d)If the DCC does not exercise the discretion in cl 16.3 by making the final determination under cl 16.4, it is to refer the complaint to the Board for final determination. This can be done in accordance with the DAA’s usual procedure for Board resolutions.

7. The ground that the Board had no power to finally determine the complaint against Mr Sager fails.

   Breach of contract – Board imposed a greater sanction than recommended

8. The HAP’s F&R recommended that Mr Sager be:[149]

   1.    Suspended from the [APD] Program for a period of 12 months.

   Upon reapplication to the [APD] Program, that Mr Sager be required to submit evidence of:[150]

   1.    documentation of appropriate clinical assessment, care planning and follow-up

   2.    clear delineation between his practice as a dietitian and that of an alternative therapist, including in billing and service delivery

   3.    communication strategy for patients and other health care providers to delineate between the two modalities

   4.    patient awareness of the delineation between the two modalities

   5.    full set of policies related to privacy and protection of patient information, correspondence, referrals

   6.    business plan/model of service delivery under Medicare

   Upon acceptance of the above evidence, that Mr Sager:

   1.    Enter the Provisional [APD] Program and be required to undertake a minimum of 12 months of mentoring with a DAA-nominated mentor.

9. The letter of 26 February 2021[151] described the potential sanction as to ‘suspend Dr Sager’s accreditation and DAA membership for a 12 month period’.[152] The letter dated 4 March 2021 described the potential sanction as ‘to suspend [his] APD accreditation and DAA membership for a 12 month period’.[153] On 12 March 2021, Mr Sager was notified of the Board’s decision to ‘enact the sanction’ and ‘uphold the original decision of the DCC and apply the recommended sanction’, which was to come into effect on 15 March 2021.[154] On 17 March 2021, Mr Sager was notified that the HAP’s F&R ‘have been upheld’ and the Board endorsed the sanctions, including that Mr Sager ‘be suspended from the [APD] Program for a period of 12 months’, along with the conditions about re-application to the APD Program.[155]

10. It was the position of both parties that the Board’s decision included[156] or comprised[157] a suspension of Mr Sager’s membership of the DAA.

11. Clauses 16.6 and 16.7 of the Discipline By-law provided that if the complaint is upheld, the DCC or the Board (respectively) is to either accept or modify the recommended sanction in accordance with the Constitution.

12. On behalf of Mr Sager, it was argued that the Board’s determination constituted a modification of the HAP’s recommended sanction to a more severe or additional penalty, and Mr Sager was not given the opportunity to address that additional penalty and was thereby denied procedural fairness.

13. On the basis of the construction of cl 21.3 reached in paragraph [117] above, that argument cannot be sustained. There was no distinction between the HAP’s recommended sanction and the sanction imposed by the Board; both involved a suspension of Mr Sager’s membership and status as a Member with APD Status for a period of 12 months, and imposed conditions to be satisfied upon his re-application to the APD Program. On this basis, the greater sanction ground fails.

14. In addition to the proper construction of cl 21.3, it was argued on behalf of the DAA that procedural fairness in relation to sanctions is afforded by the appeal process, which Mr Sager invoked and then abandoned, and there was no super-added duty to provide a separate opportunity to be heard about the imposition, on the final determination, of a greater penalty than had been recommended. I will address this argument in the next section.

    Breach of contract – Effect of the right of appeal and its abandonment

15. The Discipline By-law provided that, if there is an adverse finding in the HAP’s F&R, the respondent may serve an appeal ‘against the process of the hearing’ (cl 14.1). The permitted grounds of appeal are allegations ‘that the procedures under [the Discipline] By-law were not followed’ or that the HAP’s F&R ‘are so unreasonable that they cannot rationally be supported by the material before’ the HAP (cl 14.2.3). The appeal was permitted to contain a statement ‘outlining any mitigating circumstances’ (cl 14.2.4).

16. A Review Panel was to be comprised of three members of the Complaints Assessors’ Pool who did not participate in the original hearing (cl 15.1). The Review Panel was required to consider the grounds of the appeal, any statement outlining mitigating circumstances, any statement by the HAP under cl 15.2 and, if there were unreasonableness grounds, the material before the HAP and the HAP’s F&R (cl 15.3). The Review Panel was permitted to make its own inquiries of the complainant, the respondent, the HAP and the materials (cl 15.4). The Review Panel was to prepare a statement of its findings and recommendations to the DCC that it either uphold the decision of the HAP or order a rehearing of the complaint (cl 15.5).

17. In addition to the argument referred to in paragraph [133] above, it was argued on behalf of the DAA that the right of appeal in the Discipline By-law and Mr Sager’s withdrawal of his appeal was the answer to Mr Sager’s entire case, for two reasons. First, they prevented a finding that any defects in the HAP’s or the DCC’s processes caused the Board’s decision to uphold the complaint and impose the sanction on Mr Sager, which was the only event that can be said to constitute a breach of the membership contract. Secondly, even if a breach of contract is found, the right of appeal and the failure to exercise it is a proper foundation for a refusal of the discretionary remedies (declaration and injunction) to which Mr Sager would otherwise be entitled.

    Sanctions – the opportunity to be heard

18. In pressing the argument mentioned in paragraph [133] above, it was argued on behalf of the DAA that the complaints and disciplinary process in the Discipline By-law contemplated: (a) a single hearing directed to whether the allegations the subject of the complaint comprise a breach of the Code; (b) recommendations for sanctions where the HAP makes findings adverse to the respondent; (c) where adverse findings are made, a right to appeal: (i) on the ground that the procedures were not followed; (ii) on the ground the findings and recommendations were unreasonable; or (iii) on the basis of mitigating circumstances, including as to the recommended sanctions.

19. So much may be accepted. There is no requirement in the Discipline By-law for the respondent to be given an opportunity to be heard in relation to sanctions, outside of the appeal process. As I concluded in paragraph [91] above, the clear intention of the contract between the DAA and its members is that there is no super-added duty to afford procedural fairness beyond what is prescribed in the Discipline By-law.

20. In any event, notwithstanding that he did not press his appeal, the evidence demonstrates that Mr Sager did provide information to the DAA about the effect of a suspension on his business and make a submission about whether it was a sanction appropriate to the alleged conduct. Sanctions were not addressed in the letter comprising notice of the appeal,[158] or in subsequent correspondence on behalf of Mr Sager sent before his withdrawal from the appeal process.[159] However, in the letter notifying of Mr Sager’s withdrawal from the appeal process, it was said that Mr Sager would seek judicial review of the HAP’s F&R on grounds including that the recommended sanctions of the HAP were manifestly excessive in all the circumstances.[160] When given notice that a decision was soon to be made and a further opportunity to be heard,[161] Mr Pont’s response was to the effect that Mr Sager wanted an opportunity to be heard on sanctions after a new HAP determined whether there were breaches of the Code and the nature of them.[162] The significant impact of suspension on Mr Sager’s livelihood and the necessity for suspension in protection of the public were mentioned. In further correspondence noting the reference to sanctions, Mr Sager was told the Board had not made its final decision, and that ‘unless [he] has something more meaningful to put before [the Board] than that which has been presented thus far’ he could expect a decision of the Board in the new year.[163] In response, Mr Sager provided information about the operations, earnings and outgoings of his business and the impacts of a suspension upon it and upon his financial position.[164] A submission was also made that suspension equates to deregistration, and is a sanction reserved for severe misconduct, which Mr Sager’s conduct fell well short of. Two months later, Mr Sager received the letter referred to in paragraph [97] above, and shortly thereafter, the letter foreshadowing a decision by the Board to uphold the complaint and accept the recommended sanction.[165] No further information or submission was put by Mr Sager about the recommended sanction.

21. It follows from the above that Mr Sager was given ample opportunity to be heard in relation to the HAP’s recommended sanction, and took up that opportunity in a substantive way before the Board made the final determination imposing the sanction. The denial of procedural fairness in respect of sanctions ground fails.

    Breach of contract – Causation

22. It may be accepted that the only event that had any effect on Mr Sager’s rights or interests was the Board’s decision to uphold the complaint and impose a sanction. Even though the terms of the Discipline By-law and the Code had the same contractual effect as the Constitution (cl 36.3), the making of findings and recommendations by the HAP, and the making of a report and recommendations by the DCC to the Board, did not, of themselves, do anything to Mr Sager’s rights or interests.

23. As I understood it, this argument called in aid ordinary contract parlance involving causation. That is, there must be a causal link between a breach of contract and loss for which claimed compensatory damages will be payable, and a plaintiff’s case will fail if the causal chain is broken by some extraneous factor or the intervening act of the plaintiff or third party.

24. Applying that parlance to the DAA’s argument is problematic, for two reasons. First, the starting point was that the only relevant event of breach of contract was the Board’s decision. But the intervening event said to have broken the chain of causation to loss was the withdrawal of the appeal, which preceded that event of breach. The analogy is flawed. Secondly, under the Discipline By-law, the appeal process occurs after the HAP makes its findings and recommendations, but before any of the steps to be taken by the DCC. The appeal process could not break the chain of causation for any breach by the DCC.

25. Putting what I see to be an imperfect analogy to one side, the real issue is what the contract between the DAA and its members provided. If the contract effectively provided that failures to comply with its terms regarding the disciplinary process for members are to be addressed by, and only by, an appeal, then such failures would not constitute a breach of the contract if no appeal is lodged or it is withdrawn. If, on the other hand, the failures are ones for which the appeal process did not provide, the relief would, subject to discretionary factors, follow because the sanctions imposed as the outcome of the disciplinary process would not have been imposed in accordance with the terms of the contract.

    Withdrawal of the appeal

26. On behalf of Mr Sager, Mr Pont lodged an appeal on 10 August 2020,[166] which was outside the 14 business days for lodgement of an appeal under cl 14.2.1 of the Discipline By-law. The notice of appeal complained of a ‘fundamental issue of a fatal procedural irregularity in respect of the proper composition of the’ HAP, referred to cl 8.2.4 of the Discipline By-law (prohibiting a member sitting on the HAP if they have a conflict or perceived conflict in relation to, relevantly, the respondent), asserted the HAP’s F&R were ‘null and void’ for failure to comply with the Discipline By-law, asserted (relevantly) the conflict of interest on the part of Ms Dundon as argued in these proceedings and asked for an order for a rehearing of the complaint as provided by cl 15.5.2 of the Discipline By-law. In relation to the requested rehearing, various demands were made, including full participation in the rehearing by Mr Sager’s legal representative despite being contrary to cl 12.3 of the Discipline By-law and the opportunity to vet the new HAP members.

27. Despite that the time for lodgement had expired, Mr Sager was informed that the Review Panel was willing to receive further information (by way of responses to various questions about the nature of the asserted conflict of interest).[167] Further correspondence ensued,[168] in which further information was sought on behalf of the DAA about the nature of the conflict of interest and the audio recordings of the HAP’s deliberations were requested on behalf of Mr Sager. On behalf of Mr Sager, allegations were also made, on the basis of the transcripts, of bias on the part of the HAP members. A ‘rehearing of the case de novo in accordance with the provisions of’ cl 8.2.5 was sought on behalf of Mr Sager.[169]

28. On 16 October 2020, Mr Pont informed Mr Love that Mr Sager ‘does not wish to proceed to the internal appeal process’ and instead intended to commence judicial review proceedings in the Supreme Court.[170]

29. On behalf of Mr Sager, it was argued that the complaint of apprehended bias could not be resolved by ‘a review process’ because the ‘review’ would be affected by the same apprehended bias as demonstrated by the HAP, citing Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd.[171] The relevant issue in that case was whether the Court of Appeal, having found the original Land Court decision was affected by apprehended bias, should have referred the matter back to the Land Court on a limited basis, making directions that confined the Land Court’s hearing reconsideration to the issues giving rise to adverse findings (made after a finding that there was no apprehended bias) or should have referred the matter back to the Land Court for a full reconsideration of the entirety of the matters to which the recommendations related. The High Court held that the proper course was the latter.

30. That case concerned the appropriateness of the limitations imposed on the rehearing by the referring court, and did not involve a defined review framework which prescribed a particular rehearing process and content where the original hearing was affected by bias. Here, the appeal process established by the Discipline By-law involved the constitution of a Review Panel tasked with consideration of the grounds on which the respondent alleged that the procedures in the Discipline By-law had not been followed.

31. I do not accept the submission on behalf of Mr Sager that actual bias by the HAP members would not be captured by the appeal process. A decision infected with actual bias would be inconsistent with the requirement in cl 13.1 for the HAP to determine its findings and recommendations on the basis of the complaint, the material before it and the respondent’s answers given at the hearing, and so would be a matter within cl 14.2.3.

32. The other submission on behalf of Mr Sager was that there would be ‘unjustified dependence’ on the infected decision of the HAP because the DCC was obliged by cl 16.1 to consider the HAP’s F&R as well as any Appeal findings and recommendations. This argument confuses two issues: the merits of the complaint as determined by the HAP and a failure to follow the complaint processes of the Disciplinary By-law as determined by the Review Panel. Acting properly, if the Review Panel concluded that Ms Dundon had a conflict of interest within cl 8.2.4, there would have been a failure to comply with the Discipline By-law, obliging the Review Panel to recommend a rehearing of the complaint under cl 15.5.2 and the DCC to order a rehearing under cl 16.4.2 or the Board to do so under cl 16.5.2. That was the process contemplated by the Discipline By-law. The submission that what was required was a hearing de novo was: (a) at the appeal stage, inconsistent with the terms of the contract of membership and premature; and (b) subsequently, what would have occurred if the Review Panel were satisfied there was bias in the form of a conflict of interest.

    DCC decided before appeal was withdrawn

1. On behalf of Mr Sager, it was submitted that the DCC acted to uphold the complaint and adopt the HAP’s F&R before the appeal was withdrawn. This submission was founded on the argument that the DCC acted on the same day that the HAP’s F&R were made, namely 30 June 2020. That argument was rejected in paragraphs [97] to [102] above.

   Discretionary remedies

2. It is trite that the equitable remedies of declaration and injunction are discretionary, and that a significant factor affecting the exercise of the Court’s discretion may be the availability of an alternative remedy which has not been availed of.

3. If, contrary to the above reasons, one or more of the 11 grounds considered above had succeeded, the availability of the appeal process under cl 14 and the fact that Mr Sager commenced but withdrew his appeal would have weighed quite heavily against the granting of the declaratory and injunctive relief sought, particularly because the foundation for the relief sought is the contract between the parties which provides that breaches of that contract of the kinds alleged in this proceeding are to be addressed, at least in the first instance, by way of an appeal under cl 14.

   Disposition

4. None of the grounds relied on by the plaintiff are made out and I find for the defendant. The amended originating motion and amended summons are dismissed. I will hear the parties as to costs if need be.

   -----------------------

[1]Affidavit of Julia Schindlmayr made on 7 May 2021, Annexure DA4 at 13 [3].

[2]Ibid at 13 [s 1].

[3]Ibid at 13-14 [s 2].

[4]Ibid at 13 [5].

[5]Affidavit of Julia Schindlmayr made on 7 May 2021, Annexure DA7 at 26 [s A [1]].

[6]Ibid at [s A [4]].

[7]Ibid at [s C [1]].

[8]Ibid at 27 [s C [10]].

[9]Ibid at [s C [6], [9]]. The Complaints Assessors Pool was established by the DCC and comprised at least four experienced APD members, including the Lead Assessor, and at least two independent non-DAA members with expertise in complaints handling: [s C [7]]. 

[10]Ibid at [s C [11]].

[11]The Chief Investigator was a member of the DAA executive team or their delegate who was to research the complaint, gather material (from the complainant, the respondent and may make their own inquiry) and present that material to the DCC Assessment Panel: Ibid at [s C [4]].

[12]Ibid at [s C [10]].

[13]Ibid at [s C [11]].

[14]Ibid at [s C [12]].

[15]Ibid at 28 [s D(1)].

[16]Ibid at 28-29 [s D(2)].

[17]Ibid at 29-30 [s D(3)].

[18]Ibid at 30 [s D(4)].

[19]Ibid at 30-31 [s D(5),(6)].

[20]Ibid at 31-32 [s D(7)].

[21]Ibid at 32-33 [s D(8)].

[22]Ibid at 33 [s D(9)].

[23]Ibid at 33-34 [s D(10)].

[24]Ibid at 34-35 [s D(12)].

[25]Ibid at 35-36 [s D(13)].

[26]Ibid at 36 [s D(14)].

[27]Ibid at 38-28 [s D(16)].

[28]Health Insurance Act 1973 (Cth), s 10; Health Insurance (Allied Health Services) Determination 2014 (Cth), s 5.

[29]Affidavit of Richard Patrick Sager made on 15 April 2021 (‘Second Sager Affidavit’), Annexure TTT at 27.

[30]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (‘Ebner’) at 344 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

[31]Ibid at 345 [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

[32]Mr Sager initially included an additional matter in this ground of apprehended bias, namely that when he and Ms Dundon were on the DAA Board at the same time in 2006 and 2007, they had had disagreements in making various Board decisions. This matter was not pressed.

[33]Affidavit of Richard Patrick Sager made on 21 March 2021 (‘First Sager Affidavit’) at 14 [65].

[34]Second Sager Affidavit at 8-9 [45].

[35]Ibid at 8 [44].

[36]First Sager Affidavit at 14 [65].

[37]Ibid at 14-15 [66]-[70].

[38]Ibid at 15 [71].

[39]Ibid at 15-16 [72]-[76].

[40]Ibid at 16 [75].

[41]Ibid at 16[81].

[42]Ibid at 17 [82].

[43]Ibid at 11 [61].

[44]First Sager Affidavit at 17 [85].

[45]Second Sager Affidavit at 9 [46]-[49].

[46]Ibid at 10 [52], [55].

[47]Ibid 10-11 [53], [56].

[48]First Sager Affidavit at 16 [79].

[49]Second Sager Affidavit at 11 [58].

[50]Ibid at [59], Annexure FFF.

[51]Ibid.

[52]Affidavit of Julie Anne Dundon made on 7 May 2021 (‘Dundon Affidavit’) at 2 [8]-[10].

[53]Ibid at [9].

[54]Ibid at [11].

[55]Ibid 2-3 at [12], [14].

[56]Ibid 3 at [14].

[57]Ibid at [16]-[17].

[58]Ibid at [18].

[59]Ibid at [19].

[60]Ibid at [21].

[61]Ibid at 4 [23]-[24].

[62]Ibid at [26]-[28].

[63]Ibid 4-5 [29], [32]-[35].

[64]Ibid at 5 [40].

[65]Ibid.

[66]Ibid [41]-[42].

[67]Ibid [45].

[68]Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at 531-532 [72] per Gleeson CJ and Gummow J (Hayne J agreeing).

[69]First Sager Affidavit, Annexure N.

[70]Ibid at 2.

[71]Ibid at 3.

[72]Ibid at 3-4.

[73]Ibid at 5-6.

[74]Ibid at 6.

[75]Ibid at 6-7.

[76]Ibid at 8.

[77]Ibid at 8.

[78]Ibid at 10.

[79]Ibid at 14.

[80]Ibid at 17,

[81]Ibid at 24.

[82]Ibid at 24.

[83]Ibid at 24.

[84]Ibid, Annexure O.

[85]Ibid at 2.

[86]Ibid at 3.

[87]Ibid at 4.

[88]This is the transcriber’s method for indicating uncertainty as to what was said.

[89]Ibid at 6.

[90]Ibid at 23.

[91]Ibid.

[92]Ibid, Annexure C.

[93]Ibid, Annexure D.

[94]Ibid, Annexure F.

[95]Ibid, Annexure G.

[96]Ibid, Annexure H.

[97]Exhibit D1 at 126, 128.

[98]Exhibit D1 at 136-139.

[99]Exhibit D1 at 126.

[100]First Sager Affidavit, Annexure J.

[101]Ibid, Annexure K.

[102]Ibid.

[103]Ibid, Annexure L.

[104]Ibid, Annexure M.

[105]Ibid, Annexure O at 24.

[106]Ibid, Annexure M.

[107]See Keogh v Medical Board (SA) (2007) 99 SASR 327 at 351-352 [135]-[144] per Doyle CJ.

[108]Second Sager Affidavit at 7[39].

[109]First Sager Affidavit, Annexure O at 7.

[110]Ibid.

[111]Ibid at 8.

[112]Lukac v The Royal Australian and New Zealand College of Obstetricians [2018] NSWSC 436 (‘Lukac’) at [88] per Davies J and the authorities cited therein.

[113]First Sager Affidavit, Annexure M.

[114]Ibid, Annexures HH and II.

[115]Ibid, Annexure MM.

[116]Ibid, Annexure PP.

[117]Ibid, Annexure O.

[118]Robert Batcheller & Sons Ltd v Batcheller [1945] Ch 169 at 177 per Romer J; Holmes v Keyes [1959] Ch 199 at 215 per Jenkins LJ (Romer and Ormerod LJJ agreeing).

[119]First Sager Affidavit, Annexure G.

[120]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, citing with approval Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287 per Neaves, French and Cooper JJ.

[121]Ibid.

[122]See Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 at 708 per Lockhart J, cited with approval in Muralidharan v Minister for Immigration & Ethnic Affairs (1996) 62 FCR 402 at 413-414 per Sackville J (Beazley J agreeing) and Lukac at [65] per Davies J.

[123]First Sager Affidavit, Annexure M.

[124]Ibid, Annexure G.

[125]Ibid, Annexure C.

[126]Ibid, Annexure G.

[127]Ibid, Annexure H.

[128]Ibid, Annexure G.

[129]Ibid, Annexure H.

[130]See Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 per Northrop, Miles and French JJ.

[131]As to which, see paragraph [103] and following below.

[132]First Sager Affidavit, Annexure HH.

[133]Ibid, Annexure Q.

[134]Ibid, Annexure W.

[135]Ibid, Annexure X.

[136]Ibid at [30].

[137]Ibid, Annexure Y.

[138]Ibid, Annexure Z.

[139]Exhibit D1, 133-134.

[140]Exhibit D1, 870.

[141]Ibid, 871, 873.

[142]Affidavit of Julia Schindlmayr made 7 May 2021 (‘Schindlmayr Affidavit’), [1], [5].

[143]Schindlmayr Affidavit, [8].

[144]See D Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9 th ed, 2019) [4.56].

[145]Ibid, citing Traders Prudent Insurance Co Ltd v Register of Workers’ Compensation Commission (NSW) [1971] 2 NSWLR 513.

[146]Exhibit D1, 871-872.

[147]In the context of statutory interpretation, see Ward v Williams (1955) 92 CLR 496 at 505 per Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ.

[148]Ibid.

[149]First Sager Affidavit, Annexure M.

[150]It was argued on behalf of Mr Sager that these conditions for re-application could not be satisfied without practising as a dietitian, so they were effectively impossible to comply with. However, in cross-examination, Mr Sager’s evidence was that, since his suspension, he had been practising in his business as a nutritionist, and he agreed that, in relation to each of the six conditions on re-application, there was nothing preventing him from taking steps to ensure that he could satisfy the conditions at the end of the suspension period.

[151]See paragraph [102] above.

[152]First Sager Affidavit, Annexure HH. The proper reading of the terms of this letter is dealt with in paragraphs [97] to [102] above.

[153]Ibid, Annexure II.

[154]Ibid, Annexure MM.

[155]Ibid, Annexure PP.

[156]This was Mr Sager’s position.

[157]This was the DAA’s position.

[158]First Sager Affidavit, Annexure Q.

[159]Ibid, Annexures S, U.

[160]Ibid, Annexure W.

[161]Ibid, Annexure CC.

[162]Ibid, Annexure EE.

[163]Ibid, Annexure FF.

[164]Ibid, Annexure GG.

[165]Ibid, Annexure II.

[166]Ibid, Annexure Q.

[167]Ibid, Annexure R.

[168]Ibid, Annexures S, T, U and V.

[169]Ibid, Annexure S.

[170]Ibid, Annexure W.

[171](2021) 95 ALJR 128.