Jan v Health Care Complaints Commission

1. [1]

   HIS HONOUR: Mr Rey Jan, formerly known as Reza Jangodaz, appeals from the decision of NCAT dismissing his application for reinstatement as a dentist: Jan v Health Care Complaints Commission [2020] NSWCATOD 75.

Preliminary matters

1. [2]

   Mr Jan’s appeal is governed by s 29 of Pt 6 of Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW). Pursuant to s 29(4)(b), his appeal is as of right on any question of law, or with the leave of the Court, on any other grounds. Mr Jan’s original summons purported to identify eight separate grounds, all of which were said to be questions of law. Following a directions hearing in October 2020, when Cavanagh J made constructive suggestions about a number of those grounds, an amended summons was filed seeking leave in the alternative in respect of the same eight grounds.

2. [3]

   Before me, Mr Jan read three more recent affidavits, without objection from the HCCC, or application for cross-examination, which went to three issues. The first was the manner in which the hearing in NCAT was conducted, on 26 March 2020, which was only shortly after the COVID-19 pandemic was declared, and took place entirely by telephone, notwithstanding the nature of Mr Jan’s cross-examination. The second was Mr Jan’s continuing efforts to maintain his professional development and psychological wellbeing. The third addressed certain matters concerning Mr Jan’s evidence and the materials he had supplied in support of his application of which NCAT was critical at the hearing. It will not be necessary to summarise this evidence in any great detail. It is difficult to see how error of law can be demonstrated by documents which were not before NCAT: Kirby v Dental Council of NSW [2020] NSWCA 91 at [58]. However, the further evidence was said to be relevant to the granting of leave, and some would be relevant to a re-exercise of the discretion to reinstate Mr Jan in the event the appeal were allowed.

3. [4]

   I indicated during the hearing that I proposed to adopt a relatively liberal approach, consistently with the HCCC’s attitude (“normally in this type of matter leave would be granted” T5.39) which accords with what was said in Kirby v Dental Council of NSW at [139] (“leave to appeal may be granted relatively liberally in disciplinary proceedings”) and in light of the less than ideal circumstances accompanying the hearing in NCAT, to which no fault should be attributed to either side or to the Tribunal. I also indicated that my preliminary view was that if any ground were made out, it would not be appropriate for me, without having the benefit of hearing and seeing Mr Jan give evidence, to exercise the powers of NCAT myself, but that I would instead remit the application to NCAT to be determined in accordance with law. That preliminary view reflected the fact that although s 29(8) empowers this Court to make orders in place of NCAT, ordinarily the decision-maker in such cases remains NCAT, which in the present case was constituted by a Principal Member, two Senior Members who were qualified dental practitioners, and a lay member, in turn reflecting the way in which the appropriateness of a person to practise should be determined (this is a consequence of s 13 of Sch 5 of the Civil and Administrative Tribunal Act and s 165B of the Health Practitioner Regulation National Law 2009 (NSW) (“National Law”), with the latter prevailing over the former by reason of s 165A). Mr Hourigan, who appeared for Mr Jan both in NCAT and before me, after taking the opportunity to confirm his instructions, did not press that part of the summons which asked for this Court itself to reinstate Mr Jan to practice (T22.11-39).

4. [5]

   It was also common ground that nothing that had occurred, or would occur as a result of this Court’s decision, would stand in the way of Mr Jan making a separate application for reinstatement to NCAT.

5. [6]

   Notwithstanding the multiplicity of grounds in the amended summons, there are essentially four points. The principal point, which was addressed in oral submissions in a rolled-up manner and extends to grounds 1-5 and 9-13, is whether NCAT erred in rejecting the relevantly uncontested opinions of Drs Brown and Kelsey to the effect that Mr Jan should be readmitted to practise, because NCAT nonetheless considered that he posed a real and material risk of reoffending. The second and third points were whether there was error in NCAT’s findings that Mr Jan’s delay in seeking psychological treatment was attributable to a lack of “insight or resolve” and that his “primary motivation for consulting Ms Sannibale was to bolster his application for reinstatement” (these comprise grounds 6, 7, 14 and 15). Finally, there is a pure question of law concerning the operation of s 163B of the National Law and the power to impose conditions upon registration in the event that the reinstatement application were to succeed. The issues are whether there is power to do so and, if so, whether NCAT erred in failing to consider whether to do so. I granted a short period of time for both sides, if they chose, to supplement their submissions on the operation of this provision. Short supplementary submissions were supplied, in accordance with the timetable, on 30 March and 1 April 2021.

6. [7]

   For the reasons that follow, I have concluded that the primary ground is not made out, although, having addressed it on its merits, there should be a grant of leave. Nor are the other factual grounds made out. However, contrary to its original stance, in its supplementary submissions the HCCC accepted there was power to impose conditions upon a reinstatement order, and I have concluded that that is the position in law. I have also concluded that NCAT failed to address whether the risk of reoffending, which was critical to its conclusion, could be addressed by the imposition of conditions. The result is that the decision is affected by legal error, and should be quashed, with the application being remitted to NCAT.

7. [8]

   Had my decision been other than to remit the proceeding to NCAT, then I would have given a more detailed factual background, including as to the nature of the offending and Mr Jan’s subsequent conduct, both to advance public confidence in the control and discipline of the profession and to assist those tasked with determining any future application: see, by analogy with the position as to legal practitioners, Prothonotary of the Supreme Court of New South Wales v Thomson [2018] NSWCA 230 at [4] and the authorities there cited.

Background

1. [9]

   The following matters were uncontroversial. The plaintiff was born in Iran in 1973, and following studies at Teheran University obtained a doctorate in dental surgery in 1998. He worked as a dentist in Dubai and Iran until around 2008, when he moved to Australia and obtained Australian Dental Council accreditation from the Sydney Dental Hospital in September 2008. He practised as a dentist first in Queensland from November 2008 to November 2009, and then in Sydney from 2009.

2. [10]

   I was told that in 2012, and again in 2015, the Dental Council made findings of unsatisfactory professional conduct against the plaintiff. The details of these were not before the Court, save that Mr Hourigan, very properly, directed my attention to the fact they had been made. They formed no part of either side’s submissions.

3. [11]

   Much more significant were the circumstances leading to the plaintiff being deregistered on 3 June 2016: Health Care Complaints Commission v Jangodaz [2016] NSWCATOD 71. NCAT found that all five complaints (four of unsatisfactory professional conduct and one of professional misconduct) propounded by the HCCC were made out. Complaint 1 concerned a sexual and personal relationship with a patient, complaint 2 related to the plaintiff’s attempt to influence that patient to withdraw her complaint, complaint 3 was that the plaintiff had failed to refer the patient to another dental practitioner for dental work he had commenced but not completed, and complaint 4 related to inappropriate personal comments made in that patient’s clinical records. The complaint of professional misconduct was that the four complaints, individually and cumulatively, amounted to professional misconduct.

4. [12]

   Following the cancellation of his registration, the plaintiff continued to work at a dental clinic which he owned. His evidence is that at least for the most part he has subsequently worked in various practice management roles, rather than as a dentist. This led to further difficulties. The plaintiff concealed from most of his staff and all of his patients the fact that his registration had been cancelled and the reasons for it. There is evidence to the effect, and it was not disputed by the plaintiff, that from around mid-2016, he wore a bandage on his wrist at the clinic and advised that he had been involved in a motorcycle accident, and therefore could not practise as a dentist. It is an offence under s 116(1)(c) of the National Law for an unregistered person to hold himself or herself out as a dentist.

5. [13]

   Further, following the execution of a search warrant on the clinic’s premises, the HCCC identified a patient who had been treated by the defendant on 17 November 2016. She was treated, without being told that the plaintiff had been deregistered. This was also an offence under s 116(1)(c) of the National Law.

6. [14]

   The plaintiff pleaded guilty to two charges under s 116(1)(c), one relating to treatment of that patient, the other relating to his holding himself out to staff and patients attending at a branch of his clinic. Those guilty pleas were made in the Local Court of New South Wales on 11 September 2017. He was ordered to pay a fine of $4,750 plus costs. NCAT recorded that the plaintiff had also admitted to providing dental treatment to his son and sister-in-law in June and December 2016 while deregistered. He acknowledged that this was not acceptable and wrong of him.

7. [15]

   Following his deregistration, the plaintiff had undertaken mentoring with Dr John Gale (from November 2016), and Dr Stephen Harlamb (from April 2017). He had also undertaken certain practice management, law, ethics and risk management training with the Royal Australasian College of Dental Surgeons in May 2017 and, more recently, the Ethics Centre. In November and December 2017, he saw Ms Claudia Sannibale, a clinical psychologist. Her notes stated that the plaintiff told her that he had had sexual relations with a patient who began to act inappropriately, provided a “circuitous historical account of his circumstances”, said that he was attended for the “purpose of being seen to be doing the right thing” and in accordance with his lawyers’ advice, and that his attendance would “look good” and “tick off” one of the requirements suggested by his lawyers. Apparently, at the end of the session, he asked whether she would write something for him as “a friend”, and she corrected him by reminding him of her status as a clinical psychologist. None of this suggests any real degree of insight into the plaintiff’s professional obligations.

8. [16]

   The plaintiff ceased seeing Ms Sannibale and commenced treatment with Mr Andrew Fordyce, clinical psychologist, whom he saw on some 13 occasions from February 2018. NCAT was critical of the unexplained absence of any report from, or notes taken by, Mr Fordyce. The plaintiff also saw, twice, Dr Lisa Brown, a forensic psychiatrist, who provided two favourable reports concerning the absence of any psychiatric disability from him being fit and proper to return to practice. He also communicated with and, on one occasion, saw, Dr Ralph Kelsey, a Queensland-based dentist, who undertook to mentor the plaintiff. Dr Kelsey also expressed the opinion that he was fit and proper to return to practice.

9. [17]

   In January 2018, the plaintiff changed his name, from Reza Jangodaz to Rey Jan (it is for this reason that I have for the most part referred to him as the plaintiff). In his examination-in-chief in the hearing before NCAT, he explained why he had done so thus: “I done it for my kids”. In his statement of 14 October 2019, he explained:

10. [18]

    In 2019 the plaintiff applied to the Canadian Dental Board to be registered as a dentist. NCAT recorded the following concerning this:

11. [19]

    I was told that he did not pursue his application to the Canadian authorities because it did not suit his family.

12. [20]

    In his more recent affidavits read in support of the application for leave, the plaintiff provided the clinical notes made by Mr Fordyce. He also supplied a document stating that all applications to the Canadian Dental Board had to be supplied in hard copy, and he gave evidence that he did not retain a copy.

The plaintiff’s application to NCAT

1. [21]

   The plaintiff filed an application seeking reinstatement on 15 October 2019. That was brought under s 163A of the National Law, which is headed “Right of review”, but was directed to seeking an exercise of the power under s 163B(1)(c) to make a reinstatement order. NCAT was the “appropriate review body” for the purposes of the plaintiff’s application: National Law, s 163(1). Very little, save for the last ground of appeal, turns on the precise terms of the legislation. However, I should indicate that the question for NCAT was to determine the “appropriateness”, at the time of the review, of the cancellation order: s 163C(1). Sections 163, 163A, 163B and 163C were “NSW provisions” (meaning that they were modifications to the Health Practitioner Regulation National Law made applicable by s 4 of the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) effected by Sch 1 to that Act), and thus in accordance with s 3A, the protection of the health and safety of the public was the paramount consideration in the exercise of functions under those provisions. Ultimately, if and when a reinstatement order was made, it was for the National Board to effect the registration, which turned on its opinion of suitability, a concept which incorporates whether an individual is a fit and proper person: ss 52(1)(c) and 55(1)(h). Nevertheless, NCAT’s opinion as to whether an individual is a fit and proper person will inform its consideration of “appropriateness”.

2. [22]

   The HCCC opposed the application for reinstatement.

3. [23]

   At the hearing on 26 March 2020, the plaintiff and Drs Brown and Kelsey were cross-examined, by telephone. There was no competing expert evidence tendered by the HCCC.

4. [24]

   Much of the hearing was devoted to the plaintiff’s cross-examination. It was squarely put to the plaintiff, repeatedly, that he was not being truthful. There were no oral submissions; rather, the parties were directed to supply written submissions.

5. [25]

   NCAT reserved its decision subject to the receipt of final submissions. It delivered its decision on 2 July 2020.

6. [26]

   The Tribunal stated, correctly, that the plaintiff bore the onus of proving to the civil standard that he was a suitable person to hold registration and was able to practise professional dentistry in an ethical manner: at [53]. The Tribunal said that what was required was an assessment of whether there was a material risk that he would repeat the conduct which resulted in him being deregistered and convicted of offences under the law, which in turn required consideration of whether his claims of being remorseful and having gained insight into his offending could be accepted without significant reservation: at [53]. It was not suggested that there was any error in that approach.

7. [27]

   The Tribunal thereafter summarised the conduct giving rise to his deregistration and convictions and stated that the inescapable inference was that his primary motivation for consulting Ms Sannibale was to bolster his application for reinstatement: at [56]. This was the subject of grounds 7 and 15. It also led to the Tribunal’s conclusion at [57]:

8. [28]

   The Tribunal, however, correctly proceeded on the basis that the question was not the plaintiff’s position in late 2017 or 2018, but rather whether at the time of the hearing he was a fit and proper person to hold registration as a dentist and whether he posed a risk of reoffending. The Tribunal then made a statement which was the subject of grounds 6 and 14:

9. [29]

   At [59], the Tribunal noted that missing from the material filed in support of his application was anything from Mr Fordyce supporting his claims of having gained insight and benefit from 19 months of counselling with him. Nonetheless, and favourably to the plaintiff, the Tribunal considered that there was “powerful” material supporting the plaintiff’s own statements that he had changed. The Tribunal reproduced the opinions of Drs Brown and Kelsey as follows:

10. [30]

    Also favourably to the plaintiff, the Tribunal declined to draw the adverse inferences which had been put to the plaintiff in cross-examination concerning his failure to disclose to the Dental Board his 2017 conviction and the period when he was mentored by Dr Dale. The Tribunal nonetheless made the following finding at [63]:

11. [31]

    The dispositive paragraphs of the Tribunal’s reasoning were at [64]-[68]. These warrant reproducing in full:

Consideration of the principal grounds

1. [32]

   Grounds 1, 2, 9 and 10 alleged error in failing to determine that the plaintiff had discharged the onus of proving he was a fit and proper person to be registered as a dentist, and in the exercise of the power to reinstate his registration. Grounds 3 and 11 alleged error in finding that on the balance of probabilities the plaintiff posed a real and material risk of reoffending. Grounds 4, 5, 12 and 13 alleged error in failing to accept the opinions of Drs Brown and Kelsey that the plaintiff should be readmitted to practise as a dentist. I shall follow the course taken in oral submissions and address these grounds collectively.

2. [33]

   The plaintiff maintained that there was, in the absence of evidence contradicting the opinions of Drs Brown and Kelsey, no evidence to support NCAT’s failure to be persuaded that there was no material risk of offending, this being an error of law. He added that there was no cross-examination of Dr Brown directed to this (including an absence of putting to Dr Brown the case sought to be made against the plaintiff in cross-examination). But the premise of that submission is that the only evidence capable of bearing upon the plaintiff’s good character was that of the experts. I cannot accept this. The starting point is NCAT’s evaluation of the plaintiff himself, in light of his history of transgression after having been deregistered. It was appropriate for NCAT to consider the plaintiff’s character for itself, in light of the cross-examination, rather than merely to rely upon the expert evidence which the plaintiff had chosen to adduce. That was the gravamen of the HCCC’s cross-examination of him. That would be the case even if the two experts relied upon had had extensive professional experience with the plaintiff, and that was far from the position of Drs Brown and Kelsey. Dr Brown had seen him twice, and her opinion was based, expressly, on the plaintiff’s own reporting. It seems that Dr Kelsey, based in Queensland, had only seen the plaintiff face to face on one occasion, although they had corresponded by email more frequently. This ground, insofar as it based on no evidence and thus amounts to a question of law, is not made out.

3. [34]

   In the alternative, the plaintiff sought leave to challenge the finding insofar as it extended beyond a question of law. In order to evaluate this challenge, it is necessary to return to NCAT’s reasons.

4. [35]

   Plainly enough, the Tribunal had regard to, and was impressed by, the favourable opinions given by Drs Brown and Kelsey. But NCAT did not regard those opinions as sufficient. That was not because of any deficiency in the expert opinions. It was because of the matters explained at [67] to the effect that NCAT was not persuaded that his rehabilitation had been as profound as the plaintiff had asserted.

5. [36]

   The second sentence of [67] accurately records that following his misconduct, the plaintiff undertook mentoring and studies in order to practice. There is no escaping the force of the Tribunal’s finding in the third sentence:

6. [37]

   That is a finding of fact, and one which is likely to have been informed by the cross-examination on this issue.

7. [38]

   Further, the conclusion that the members of the Tribunal were “not persuaded that his rehabilitation is as profound as Mr Jan has asserted to us” is also a finding of fact and one that is likely to have been informed by the cross-examination.

8. [39]

   The restraint stated by the High Court in Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55] in relation to intermediate courts of appeal is equally applicable to the present appeal from NCAT. I did not see or hear the plaintiff give evidence to NCAT, nor did I see him being cross-examined on appeal. The High Court said:

9. [40]

   Although given the way the hearing was conducted, the members of NCAT did not see the plaintiff being cross-examined on those issues, it is plain that that conclusion is one that is “likely” to have been informed by their impressions of his cross-examination.

10. [41]

    Further, NCAT’s conclusion is corroborated by what Ms Sannibale recorded and the incontestable fact that he continued to offend, not only after his patient complained in May 2014, but also after he was deregistered in June 2016.

11. [42]

    The sequence of events is significant here. In June 2016, when making orders deregistering the plaintiff, the Tribunal (which was entirely differently constituted) said at [36]:

12. [43]

    The Tribunal concluded at [41] that “the Tribunal was unable to find that the practitioner had taken responsibility for what occurred, or taken steps to ensure that it would not reoccur”.

13. [44]

    Even so, the plaintiff deceived his staff and patients about being deregistered for at least seven months from 2016. In late 2017, Ms Sannibale made notes which are difficult to reconcile with an acknowledgement of his wrongdoing. The plaintiff accepted that his change of name in January 2018 was to conceal the truth from his patients and his children.

14. [45]

    There is thus a period of some 3½ years from the making of the complaint in May 2014, to his deregistration in June 2016, his convictions in September 2017, his consultation with Ms Sannibale in late 2017 and his change of name in January 2018 when the plaintiff was concealing the truth.

15. [46]

    It is obvious that a barrier to rehabilitation and insight will occur when a deregistered dentist takes active sustained steps to deceive his staff and patients of that fact over a period of months. That sustained deception is hard to reconcile with an acknowledgement of wrongdoing and a sincere and genuine attempt to reform.

16. [47]

    In Dawson v Law Society of New South Wales [1989] NSWCA 58, Mahoney JA observed that a Court would require “solid and substantial grounds” for concluding that a professional whose conduct has been sufficient to indicate his “probable permanent unfitness” leading to his being struck off has sufficiently changed so as to act differently in the future. That is the force of the Tribunal’s statement that “[o]nce an impression of cynicism in relation to rehabilitation is created it is difficult to dispel”.

17. [48]

    The consequence that although the risk to the public had “probably been diminished considerably”, the Tribunal was not satisfied on the balance of probabilities that he “does not still pose a real and material risk of reoffending” followed from the earlier findings. Once again, this is a finding of fact. It is a secondary finding of fact, which falls within the principles governing appellate restraint just as the findings of primary fact about the plaintiff’s rehabilitation. It is insusceptible of review on appeal.

18. [49]

    For completeness, I should address the plaintiff’s concerns based on Mr Fordyce’s notes. In one of his more recent affidavits, the plaintiff explains, concerning Mr Fordyce’s clinical notes, that they had been provided to Drs Brown and Kelsey, who relied upon them, that the HCCC did not ask for a copy of them, nor did it take issue with the comments of Drs Brown and Kelsey upon those notes, as a result of which he considered that the Commission’s submission concerning the “unexplained” absence of the notes to be unfair.

19. [50]

    It is for a plaintiff in a case such as this to make out a case for reinstatement, and conspicuous by its absence from the material put forward by the plaintiff was any report from or notes of consultations with Mr Fordyce. This was in circumstances where he had undertaken some 13 meetings with Mr Fordyce, following his sessions with Ms Sannibale which were disclosed to the Tribunal. Even if the HCCC did not seek them, ultimately it is for the Tribunal to be satisfied that a deregistered practitioner should be reinstated. If in doubt, a deregistered practitioner would generally be well advised to err on the side of comprehensive rather than selective disclosure of matters of this kind.

The remaining grounds raising factual issues

1. [51]

   Grounds 6 and 14 alleged error in the finding that “the Plaintiff’s delay in seeking psychological treatment was attributable to a lack of ‘insight or resolve’ on the part of the Plaintiff”. The HCCC denied any such finding had been made. In response, in submissions in reply, Mr Hourigan pointed to [58], which he said encapsulated that finding. That paragraph (which is reproduced above) contains no such finding. The paragraph falls short of identifying why the plaintiff came late in the day to taking general steps to rehabilitate. It may have been a lack of insight, or it may instead have been one or more of the other factors mentioned such as embarrassment or lack of maturity.

2. [52]

   Further and in any event, as that paragraph itself, and as the ensuing paragraphs [60] and [62] make plain, the reasoning in [58] is not dispositive. The fact of a delay in taking genuine steps to rehabilitate is relevant, but whether it was caused by lack of insight or some other reason is not to the point.

3. [53]

   Thus, not only was there no finding that the plaintiff’s delay in seeking psychological treatment was attributable to a lack of insight or resolve, but even if there were, it is difficult to see how it was material to the decision. These grounds are not made out.

4. [54]

   Grounds 7 and 15 alleged error in finding that the plaintiff’s primary motivation for consulting Ms Sannibale was to bolster his application for reinstatement. The respondent pointed to the following evidence given in cross-examination:

5. [55]

   That evidence, coupled with Ms Sannibale’s notes, amply sustains the finding that the plaintiff’s primary motivation for consulting with Ms Sannibale was to bolster his application for reinstatement. To be fair, little time was devoted to submissions to the contrary.

6. [56]

   These grounds plainly raise questions of fact, contrary to grounds 6 and 7 of the summons. Further, if in fact proposed grounds 14 and 15 fall short of being hopeless, they only just fall on the side of what is reasonably arguable within the broader scope of the appeal which is permissible by way of leave. Even on the liberal approach applicable to granting leave in such cases, I would not grant leave to raise these grounds.

The imposition of conditions as part of a reinstatement application

1. [57]

   The final grounds, 8 and 16, were whether NCAT erred in “failing to have regard to, as a relevant consideration under the Health Practitioner Regulation National Law 2009 (NSW), whether the imposition of conditions upon the Plaintiff’s dental licence may be an appropriate mitigation of risk posed by the Plaintiff”. That is a pure question of law, which supports an appeal as of right. There is thus no occasion to grant leave as is sought by ground 16.

2. [58]

   The ground was developed in oral submissions thus (T21.39-22.2):

3. [59]

   The HCCC maintained in written submissions supplied in advance of the hearing, and in oral submissions, that this ground was misconceived. It referred to the definition of reinstatement order in s 163B(3), which was:

4. [60]

   Subsection 163B(4) confers a power to impose conditions:

5. [61]

   The HCCC accepted that NCAT was the “appropriate review body” but denied, in oral submissions, that that power extended to imposing conditions upon a registration which, at the time the reinstatement order was made, would not yet exist.

6. [62]

   However, in supplementary written submissions, the HCCC said:

7. [63]

   In his supplementary written submissions, the plaintiff agreed, noting decisions where NCAT had ordered reinstatement subject to conditions, including Ng v Health Care Complaints Commission [2018] NSWCATOD 105 at [55] (which included, by way of example, a condition that Dr Ng not engage in solo practice or work as a locum for a 12 month period).

8. [64]

   The parties’ eventual agreement on a question of power is not dispositive. However, I think the parties’ ultimate joint position that there is power to impose conditions attaching to a reinstatement order is correct. True it is that when the power is exercised, the practitioner will not be registered. That will only occur when the relevant National Board makes its decision. However, the words “alter the conditions to which the person’s registration is to be subject under the reinstatement order” can bear no meaning at all unless they refer to conditions to be imposed in the future following the relevant National Board effecting the registration which has been ordered by NCAT, and there is no reason to construe the powers conferred upon the specialist “appropriate review body” narrowly.

9. [65]

   As noted above, Mr Hourigan maintained that the imposition of conditions was always “a live issue” and “it simply wasn't dealt with” (T 22.1-2). In Mr Hourigan’s brief opening to the Tribunal, he mentioned that Dr Kelsey was “willing to mentor Mr Jan insofar as there is any condition along those lines imposed by NCAT on a re-registration”. Dr Kelsey in fact recommended in his report that it would be beneficial for the plaintiff “to continue to see his Psychologist, and mentoring by a senior colleague for a period of 12 months once he returns to dental practice”, and he confirmed in his evidence in chief that he was willing to do so “[i]nsofar as the tribunal considered it appropriate to put a condition of practice upon Mr Jan’s registration” (transcript, 26 March 2020, p 19). Dr Kelsey was then cross-examined to the effect that because he was located in Queensland, that would lead to difficulties with supervision (transcript 26 March 2020, pp 23-24). The plaintiff confirmed in examination in chief that he would “undertake further counselling as might be appropriate, either of your own behest or if the Tribunal were to suggest that as a condition for a period of time” (transcript 26 March 2020, p 39). Dr Brown was cross-examined and agreed with the proposition that “it would be more appropriate that if [the plaintiff] were to return to practise that he return in a supervised fashion” (transcript 26 March 2020, p 75). There were no oral submissions, and the written submissions seem not to have been provided to this Court. However, it was not suggested by the HCCC that the plaintiff in closing written submissions abandoned his fallback position of reinstatement subject to conditions.

10. [66]

    I accept the plaintiff’s submission that the imposition of conditions was a live, significant issue before NCAT.

11. [67]

    The onus rests on the plaintiff, and the power to reinstate should “be exercised with the greatest caution and only upon solid and substantial grounds”: see Ex parte Lenehan (1948) 77 CLR 403 at 422; [1948] HCA 45, applied in Ng v Health Care Complaints Commission at [27], [29]. However, as is plain from the consideration of risk of reoffending in [64], [66], [67] and [68] reproduced above, that risk was, appropriately, central to the NCAT’s decision. NCAT considered that the risk to the public had “probably been diminished considerably” but remained real and material. For the reasons I have already given, there is no appellable error in that finding. However, NCAT did not consider further whether there were conditions which might reduce the real and material risk which remained.

12. [68]

    In its submissions supplied after the hearing, the HCCC also contended that the opinion of the Tribunal at [66]-[67] “was clearly that [a reinstatement] order should not be made and the types of conditions raised in Dr Kelsey’s report do not address these types of concerns”, and continued “where the Tribunal clearly thinks reinstatement is not appropriate it does not then need to consider a reinstatement order with conditions because they have clearly formed the opinion that a reinstatement order is not warranted”. The plaintiff maintained that this submission went beyond the scope of the grant of leave. But it is best addressed on its merits.

13. [69]

    I think the position is more nuanced. One may readily contemplate cases where an applicant is found not to be a fit and proper person for reasons which are unconnected with a risk of offending (for example, an applicant may have suffered a physical injury, or have insufficient language skills, although these are addressed under s 55(1)(a) and (d)). But that is not this case.

14. [70]

    I have reproduced [67] of the Tribunal’s decision above. It commences with its conclusion that the plaintiff was not a fit and proper person, but concludes with its assessment of risk. Read fairly, this is a case where the Tribunal’s assessment of whether the plaintiff was a fit and proper person was closely connected with its evaluation of the risk of reoffending (to be clear, that is not said by way of criticism). That accords with the approach formulated by the Tribunal at [53] which it said it would undertake.

15. [71]

    Contrary to the HCCC’s submission, in determining whether the plaintiff was a fit and proper person, the Tribunal said that it would (at [53]) and did in fact (at [66]-[67]) focus on risk of reoffending. The Tribunal did not in terms state that the conditions proffered by the plaintiff would address that risk. Still less did the Tribunal state that other conditions relating to the supervision of the plaintiff would not address the risk. Perhaps they would, perhaps they would not. But so far as can be seen on the face of the reasons, this was not considered at all, and I am unable to conclude that had conditions been considered, the Tribunal would inevitably have reached the same conclusion.

16. [72]

    A failure to address “a substantial, clearly articulated argument relying upon established facts” may constitute either or both of procedural unfairness or a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24]-[25], [95]; Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54 at [26]. It is necessary to engage with the nature and materiality of the unaddressed argument, for evidently the failure to refer to every argument advanced need not amount be to error, as was observed in Wang v State of New South Wales [2019] NSWCA 263 at [63], and see also Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 at [62]-[66]. But in the present case, the application was to reinstate the plaintiff to practise, either unconditionally or subject to conditions. While the fallback submission could have been more prominently advanced than it was, it was sufficiently significant to require being addressed in terms.

17. [73]

    Given the way in which the Tribunal approached its task, acceptance of the HCCC’s submission that it was sufficient for the Tribunal to form the view that the plaintiff was not a fit and proper person without considering whether the risk of reoffending which was central to its reasoning could be addressed by conditions would be contrary to the principles in the previous paragraph.

18. [74]

    The plaintiff’s historical misconduct is very serious. In my view, the circumstances surrounding the sexual relationship with a patient, and his attempts (which at one stage succeeded) to have her withdraw her complaint, are far removed from the bottom end of the range. The ongoing deception of staff and patients after his deregistration is in some ways even more concerning, insofar as it suggests at best a failure to acknowledge and have insight into his obligations and responsibilities.

19. [75]

    However, I am not able to conclude that no amount of conditions would suffice to reduce the risk of reoffending to an acceptable level. It is not a matter for me, but conditions involving supervision (along the lines of conditions 6(a)-(f) in Ng v Health Care Complaints Commission) (No 2) [2018] NSWCATOD 126 might go some distance towards addressing the risk. Given the circumstances disclosed by the execution of the search warrant upon the practice, conditions requiring the treatment and billing records of the practice to be made available to the HCCC might also be appropriate. Further conditions might involve mentoring with regular face-to-face sessions with a senior colleague, and ongoing psychiatric or psychological treatment.

20. [76]

    I also do not rule out the possibility that, having considered conditions along those lines, and perhaps others, NCAT might nonetheless form the view that the overriding public interest in ensuring the safety of members of the public nonetheless precludes his reinstatement. Once again this is not a matter for me. But I am not satisfied that that is inevitable.

21. [77]

    It follows that NCAT’s dismissal of the plaintiff’s application was affected by error of law, and that it cannot be said that the error was immaterial.

Orders

1. [78]

   In light of the restrictions to which all were subject at the NCAT hearing, and the significance of the decision to the plaintiff, there should be a grant of leave in relation to grounds 9-13. However, for the reasons given above, none of the grounds is made out, save for ground 8. The appeal should be allowed, NCAT’s decision quashed, and the proceedings remitted to NCAT.

2. [79]

   My present albeit preliminary view is that there should be no order as to costs, with the intention that each bear his and its own costs. Most of the grounds failed, and that which succeeded was far from prominent in the plaintiff’s submissions. Had the appeal been confined to ground 8, it may well have come to be heard more quickly, and the HCCC might have focussed on the question of power in advance of the hearing. However, if either side seeks an order in his or its favour, application may be made within the time specified by Uniform Civil Procedure Rules 2005 (NSW) r 36.16.

3. [80]

   The orders I shall make will set aside NCAT’s order as to costs, with the effect that the costs of the proceedings in NCAT to date will be in the discretion of NCAT as constituted to hear the remitted proceeding, in accordance with the principles considered in Hatziandoniou v Ruddy (No 2) [2015] NSWCA 277.

4. [81]

   Accordingly, I make the following orders: