Kirby v Dental Council of NSW

PAYNE JA: I have had the benefit of reading the judgment of Brereton JA in draft. I agree with his Honour’s reasons and the orders he proposes.

As to Dr Kirby’s principal complaint, as Brereton JA explains, the statutory context in the present case was that the Dental Council of New South Wales (“the Council”) was bound to act if a particular state of affairs appeared to it. Section 150 of the Health Practitioner Regulation National Law (NSW) (“the National Law”) imposes a positive duty on the Council to act, in one of several specified ways, if the Council is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons or otherwise in the public interest. The Council’s duty to act does not depend on the existence of an initiating complaint. Here, the Council was satisfied that Dr Kirby’s conduct made it appropriate to act to protect the public health and safety of citizens of New South Wales.

The decision to embark on a consideration of exercising the s 150 function was not a preliminary decision which involved a requirement to be satisfied of anything. It was a decision to examine whether to exercise any of the Council’s powers under s 150, in a context where, if there were no complaint at all, it was open to the Council to do so of its own motion. Consideration of the subject matter, scope and purpose of the National Law leads to a conclusion that merely by participating in a decision to embark on consideration of whether or not to exercise its s 150 power, members of the Council are not thereby disqualified from deciding whether that power should be exercised.

Barrett AJ, the primary judge, correctly identified the applicant’s case as being one of apprehended bias founded on incompatibility of roles arising from the prior involvement of delegates of the Council in preliminary stages. The primary judge was right to apply the test set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63. His Honour’s application of that test was correct. The prior involvement of the delegates of the Council was not such as to invest them with an “interest” incompatible with their constituting the Tribunal that determined the s 150 proceedings.

As to the second complaint made by Dr Kirby, the New South Wales Civil and Administrative Tribunal (NCAT) did not constructively fail to exercise its jurisdiction. As Brereton JA explains, insofar as the point was raised by Dr Kirby before the primary judge, his Honour rightly held that no error was demonstrated in NCAT’s approach to the imposition of conditions on Dr Kirby’s registration.

My reasons for joining on the order refusing leave to Dr Kirby to adduce further evidence are encompassed in those given by Brereton JA.

Ordinarily in a case such as the present, involving what is essentially the third appeal from an interlocutory order, leave to appeal to this Court should be refused. In this case, however, the reasons of Brereton JA contain a detailed consideration of important provisions of the National Law which have to date received little attention in this Court. For that reason leave to appeal should be granted.

BRERETON JA: On 18 December 2015, following a complaint that the applicant Dr Kirby, a registered dentist practising in Molong in Central Western New South Wales, was applying a substance known as "Cansema" to the skin of some of his dental patients as a purported treatment for skin cancer, the respondent Dental Council of New South Wales (“the Council”), by its duly appointed delegates Dr O'Reilly (who at all material times was the Chair of the Council), Dr Fryer and Ms MacDougal (together, “the Delegates”), pursuant to s 150(1)(a) of the (NSW) Health Practitioner Regulation National Law (“the National Law”), suspended his registration. On 12 February 2016, following a review under s 150A of the National Law, the Council (by the Delegates) lifted the suspension, and instead imposed conditions on Dr Kirby's registration. Dr Kirby appealed to New South Wales Civil and Administrative Tribunal (“NCAT”), challenging both the s 150 decision (to suspend his registration) and the s 150A decision (to impose conditions). On 28 April 2017, NCAT dismissed the appeal. [1] Dr Kirby then appealed to the Supreme Court. Barrett AJ, sitting in the Common Law Division, dismissed that appeal on 6 December 2018. [2] From that judgment, Dr Kirby now seeks leave to appeal to this Court. [3]

Because Dr Kirby’s appeal to the Supreme Court was confined – in the absence of leave, which was not sought – to a question of law, [4] the ultimate issue for this Court, should leave be granted, is whether the primary judge erred in holding that NCAT did not err in law. The proposed grounds of appeal raise two issues. The first is whether NCAT should have held that the Council's two decisions were affected by apprehended bias. The second is whether NCAT, in confirming that the conditions imposed on Dr Kirby's registration were appropriate, failed to exercise its jurisdiction under s 159 of the National Law.

In the National Law, s 3A ("Objective and guiding principle [NSW]"), states:

Section 150 is the first provision in Subdiv 7 ("Powers of a Council for protection of public [NSW]") of Div 3 ("Complaints [NSW]") of Pt 8 ("Health, performance and conduct") in the National Law. It relevantly provides as follows:

Exercise of the power under s 150(1) to suspend or impose conditions necessarily requires that the Council undertake an evaluation of circumstances concerning a practitioner that come to its notice. Although a complaint may be the means by which relevant circumstances that require consideration of action under s 150 may come to a Council's notice, [5] s 150(4) makes clear that a complaint is not necessary to enable the Council to act; in other words, it may act of its own motion.

Whether the Council acts on a complaint or of its own motion, it must – except in the case of impairment [6] – refer the matter to the Health Care Complaints Commission (“HCCC”) to be dealt with as a disciplinary complaint which, if considered appropriate, will result in disciplinary proceedings. Section 150D relevantly provides as follows:

Under s 150(2), a suspension imposed under s 150(1) continues until “the complaint … has been disposed of” or the relevant Council ends the suspension. Similarly, by s 150H, a condition imposed under s 150 continues, if the matter is dealt with as a complaint, until the complaint is disposed of, or the conditions are removed by the Council. Thus (putting to one side cases of impairment), if the complaint is dismissed, whether before or after the institution of disciplinary proceedings, any suspension or condition will lapse; if proceedings in the Tribunal or a Professional Standards Committee result in disciplinary action, that action will thereafter operate in place of any suspension or conditions imposed by the Council under s 150. The s 150 action is, therefore, essentially interlocutory in nature, pending the outcome of the HCCC investigation under s 150D and any ensuing disciplinary proceedings.

In the context of a provision headed "Suspension or conditions of registration to protect public", and the objective and guiding principle stated in s 3A, the touchstone for the exercise of the Council’s power under s 150(1) to make an order suspending the practitioner's registration or imposing conditions on it is that the Council be satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons, or that the action is otherwise in the public interest. If so satisfied – regardless of how the matter comes to its attention – it must act. The power is conferred purely for the protection of the public, and thus the Council’s sole concern is what if any action is required for the protection of the health and safety of any relevant persons and/or the public interest. This is not a professional disciplinary power, but purely protective. Although disciplinary proceedings may flow from s 150 action (as a result of the referral to the HCCC under s 150D), they are dealt with separately, under other provisions of the National Law which provide for dealing with complaints. [7] As NCAT in its decision rightly observed, the role of a Council in undertaking a s 150 inquiry is to protect the public, and in a case such as the present, where serious allegations have been made which, if true, could lead to suspension or cancellation of the practitioner's registration but the evidence is incomplete and further investigation is needed, the issue for the Council is not whether the allegations are proved, but whether the evidence establishes a risk to the public requiring suspension, or imposition of a condition, for protection of the public. [8]

Under s 150A, a practitioner may apply for a review of a decision under s 150, and unless the Council considers that the application for review is frivolous or vexatious, it must reconsider its decision and, in doing so, consider any new material or evidence submitted by the practitioner that the Council reasonably considers to be relevant. Following any reconsideration, the Council may affirm or vary its original decision, or set it aside and take any action that the Council has power to take under s 150:

Section 41G of the National Law provides that a Council "may appoint any 2 or more members of the Council to exercise the functions of the Council under Division 3 of Part 8". Section 150(7) expressly recognises that such delegation is permitted in relation to the s 150 and s 150A functions.

In July 2015, Dr Andrew Green, a dentist, was informed by a patient that she had been treated by Dr Kirby for skin cancer with Cansema. Dr Green consulted Dr O'Reilly – presumably at least partly because of his standing as Chair of the Council – as to what he should do, and Dr O'Reilly said that Dr Green was bound to report the matter to the HCCC.

On or about 6 August 2015, the HCCC received from Dr Green a completed complaint form, in which he outlined what he had been told by his patient and expressed concern that the treatment described by the patient was outside the normal scope of dental practice and placed the patient at risk (“Dr Green’s complaint”). On or about 18 August 2015, the HCCC forwarded Dr Green’s complaint to Dr Kirby and requested his response, and a copy of his medical records for the patient in question. Dr Kirby responded, denying the allegations, and asserting that the person concerned had never been a patient of his dental practice; however, his response left open the question whether, though she might not have been a dental patient, he had nonetheless treated her, for cancer, with Cansema. In October 2015, consultation between the HCCC and the Council resulted in the referral of Dr Green’s complaint to the Council’s Complaints and Notifications Committee (“the Complaints Committee”) for further investigation, to:

On 21 October 2015, the Council wrote to Dr Kirby, stating that Dr Green’s complaint had been referred to it "for management", and that "any outstanding material relevant to the complaint and any other written submissions that you wish to provide" were "required" by 4 November 2015. Dr Kirby responded on 4 November 2015 that, since the Council had not provided any additional material in relation to the complaint, he did not consider it necessary to provide any further response.

On 6 November 2015, the Complaints Committee (in a meeting attended by Dr Burges, Dr Burns, Mr McGlynn, Dr Pearman and Mr Owen) considered a "brief” which recommended that it determine “a course of action for the complaint in accordance with section 145B of Health Practitioner Regulation National Law (NSW)”. The Complaints Committee recommended that the Council require an inspection of Dr Kirby’s practice, for the following “reasons”:

On the same day, the Council itself (in a meeting attended by its full membership of twelve, including the Delegates) considered the recommendation of the Complaints Committee and resolved to authorise an inspection of Dr Kirby's practice, to:

The question of infection control was new, and was introduced by the Council: it had not been raised in Dr Green’s complaint, nor in the referral by the HCCC to the Complaints Committee, nor in the recommendation of the Complaints Committee.

Pursuant to the Council's resolution, Dr Brendan White inspected Dr Kirby's practice on 27 November 2015. Dr White produced a report dated 1 December 2015, which addressed the use of Cansema (by reference to a patient file retrieved by Dr White from Dr Kirby's records, for a patient GzB, and his opinion as to the practice’s compliance with the infection control guidelines.

On 2 December 2015, the Council’s Executive Officer, Ms Bains, prepared and provided to the members of the Council (including the Delegates) a consultation paper, to inform them of the result of Dr White's inspection and ascertain their views on the appropriate way forward; it was accompanied by supporting documents, including the inspection report of Dr White and the GzB patient file. The consultation paper included the following information:

The paper then asked the members of the Council to indicate which of the following options they preferred as the appropriate action to be taken:

When they were considering these options, at least some of the councillors had received comments circulated by email by Dr Burges, a member of the Council, as follows:

By 3 December 2015, eight of the twelve members of the Council (including each of the Delegates) had replied, all eight selecting Option A. Pursuant to an authority previously conferred on her by a standing delegation made to her under s 41J of the National Law, Ms Bains exercised its power of delegation under s 41G to appoint two or more members to perform the s 150 function in the particular case. On that same day, the Council then informed Dr Kirby that it had "determined to hold proceedings pursuant to section 150", that the proceedings would "take place" at 9am on 11 December 2015 at the Council's office, and that Dr O'Reilly, Dr Fryer and Ms Bell were "the Council's delegates who will conduct the proceedings".

The three originally-appointed delegates (Dr O'Reilly, Dr Fryer [9] and Ms Bell) met with Dr Kirby and his support person (a barrister, Mr Walsh) on 11 December 2015. At the outset, Ms Bell said that infection control was not the main concern, which was the original complaint by Dr Green. After a short hearing, the proceedings were adjourned – on account of an issue, raised by Mr Walsh, about the validity of Dr White’s authority to undertake the inspection, and the lawfulness of the seizure of the file relating to GzB – to continue part heard on 15 December 2015. A request by Mr Walsh to have them continue on a different date was refused.

However, it transpired that Ms Bell was not available on 15 December. On 11 December 2015, the Council sent an email and letter to Dr Kirby which confirmed that the delegates had resolved to adjourn the proceedings to address the concerns about Dr White’s authority, and stated:

On 14 December 2015, a new s 41G delegation was made (by the Deputy Executive Director, Ms Carroll, under a standing 41J delegation), to Dr O’Reilly, Dr Fryer and Ms MacDougal. In correspondence between Dr Kirby's solicitors and the Council on 14 December 2015, the Council confirmed that new proceedings would be commenced on 15 December 2015 and, in effect, that Ms MacDougal would replace Ms Bell.

The new delegates met with Dr Kirby and his support person (again Mr Walsh) on 15 December 2015. At the commencement, Dr O'Reilly made a statement to the effect that the reason why new proceedings were commenced was the unavailability of Ms Bell. A submission on behalf Dr Kirby that the seizure of the file relating to GzB was unlawful because of the invalidity of Dr White’s authority, and concerns about Dr O'Reilly sitting as a delegate on account of his prior involvement with Dr Green in initiating his complaint, were rejected. The proceedings were adjourned part heard to 18 December 2015.

On 16 December 2015, after Dr Kirby realised that he had hospital patients booked in on 18 December 2015 for dental treatment under general anaesthetic, his solicitors requested an adjournment to another date. This was refused, and a further request made by Dr Kirby's solicitors on 17 December 2015 did not receive a response (unsurprisingly, given the timeframe). A further letter was sent by Dr Kirby to the Council on the evening of 17 December 2015, which included an offer to submit to conditions in relation to Cansema, and an invitation to reinspect his dental practice.

The hearing proceeded in the absence of Dr Kirby on 18 December 2015. At its conclusion the Delegates resolved to suspend Dr Kirby. Written reasons dated 27 January 2016 were provided for the decision, and included the following:

As Barrett AJ observed, [10] the December 2015 decision was described by the Delegates themselves as "an interim measure to protect the health and safety of the public", and the suspension of Dr Kirby's registration was intended, clearly enough, to operate until varied or until the complaint had been determined. [11]

On 4 January 2016, Dr Kirby applied for a review, pursuant to s 150A, of the decision to suspend him, and provided submissions in support of that review on 3 February 2016.

The same delegates heard the review proceedings on 12 February 2016. It is apparent, from the reasons for the original decision, that the absence of any explanation by Dr Kirby, who was not available to provide one as he did not attend, had contributed to the Delegates’ concerns. At the review hearing, Dr Kirby was present, with his support person. As the applicant observed in submissions in this Court, at the hearing on 12 February 2016 the Delegates gave some attention to whether members of the public could be led into believing that Dr Kirby had the necessary qualifications to treat ailments not related to the practice of dentistry, when he did not.

The Delegates found no evidence that Dr Kirby lacked competence in his practice, and determined that Dr Kirby's suspension should be "lifted", [12] and that instead conditions should be placed on his registration as a dental practitioner, with effect from 17 February 2016. The conditions, which limited the procedures Dr Kirby was permitted to undertake, restricted him from undertaking sole dental practice, prohibited him from dealing with certain drugs, and subjected him to certain reporting obligations, were set out in a Notice of Conditions sent by the Council to Dr Kirby under cover of a letter dated 19 February 2016, and were as follows:

Although it was not relevant to any ground of appeal before this Court, the applicant submitted that following a referral for a health assessment (as in Condition 12), ss 145B(1) and (3) apply and the matter ceases to be a complaint. That is so, if the Council is dealing, under s 145B, with a complaint. However, the Council was not performing any function under s 145B; it was acting under s 150. In those circumstances, s 145B(3) has no relevance.

On 24 March 2016, written reasons were provided for the s 150A decision of 12 February 2016. Relevantly, they stated:

There followed the 12 conditions which were referred in the Notice of Conditions, and then:

In response to a query from Dr Kirby, on 13 April 2016 the Council informed him that the reference to s 150F in the referral to the HCCC was a typographical error, and that "the Council referred the complaint to Health Care Complaints Commission under Section 150D(3) of the Law; not Section 150F which relates to impairment”. The letter was accompanied by a revised version of the written reasons dated 24 March 2016, in which the referral was amended to read as follows:

It was of relevance to Dr Kirby’s appeal to NCAT that the conditions did not refer specifically to Cansema or complementary medicine, nor to infection control. However, it is clear from the reasons, including the passage extracted above, that the concerns about him prescribing for ailments which were not related to the practice of dentistry closely overlapped the Cansema issue. Essentially, it was a concern that a dentist, entitled as such to use the title “Doctor”, might be offering treatments for non-dental ailments, and was directly and closely related to his alleged provision of Cansema.

Dr Kirby appealed to NCAT against both the s 150 decision of December 2015 and the s 150A decision of February 2016, under both s 159 (merits review) and 159B (error of law) of the National Law. His grounds of appeal were to the effect that:

Thus only ground 1 clearly asserted error of law and, it being an allegation of denial of procedural fairness and having regard to what was said by the High Court in Concrete Pty Ltd v Parramatta Design & Developments Ply Ltd, [13] NCAT dealt with it first. Dr Kirby's contention was, in summary, that each of the Delegates had been involved in proceedings of the Council preceding the hearings in December 2015 and February 2016 at which they made decisions affecting Dr Kirby, and that their earlier involvement was such as to disqualify them, on natural justice grounds, from acting, as they did, as the decision-makers.

Accepting that, generally, "investigations and proceedings into disciplinary matters must be conducted according to the standards of procedural fairness, [and] the requirements of procedural fairness are superimposed on the statutory framework by the general law, and so may extend beyond the specific requirements of the statute”, [14] NCAT noted that the parties agreed that the general law test of apprehended bias is the so-called "double might" test enunciated by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy ("Ebner"), [15] and concluded, having regard to the applicable statutory provisions, that a fair-minded observer would expect that the Council, when performing its s 150 or s 150A function, should be open to persuasion about whether or not to exercise its power.

The issue, therefore, was whether a fair-minded observer might reasonably apprehend that the Council might not bring an impartial and unprejudiced mind to the resolution of the question it was required to decide. NCAT was not satisfied that the fair-minded lay observer might reasonably apprehend a possibility of lack of impartiality in the making of the December 2015 decision and the February 2016 decision, for two main reasons: first, that the Council, in embarking on a s 150 inquiry, would be seen to be acting not as an accuser but in order to inform itself within its statutory processes in order to make an informed decision whether or not it needed to take action for the protection of the public; and, secondly, that it might be concluded that the Council gave Dr Kirby the “benefit of the doubt” by ordering an independent investigation before coming to any conclusion to suspend his registration. In reaching that conclusion, NCAT dealt with what it perceived to be some inconsistency between the decisions of this Court in Carver v Law Society of New South Wales [16] and McGovern v Ku-ring-gai Council, [17] taking the view that McGovern had superseded Carver.

Having dealt with the apprehended bias issue, NCAT proceeded to consider the other grounds of appeal. For present purposes, only the question of the conditions imposed on Dr Kirby's registration by the February 2016 decision is relevant. Before NCAT, Dr Kirby submitted that the conditions were not in any way related to the issue of infection control or Cansema, but were "completely misconceived", and went well beyond any reasonable need to address any risk to public health and safety, particularly as the Council had recognised that there was no question about his competence as a dentist; he submitted that there was no logical nexus between the concerns entertained by the Delegates and most of the conditions they imposed.

The Council responded that the conditions were proper, having regard to evidence that Dr Kirby had a belief that he was entitled to treat patients' ailments which were well beyond the usual practice of dentistry (including shingles, haemorrhoids, dehydration, constipation, food poisoning and anxiety), thus indicating a risk to the public warranting a restriction on his activities; that he had been providing healthcare services to members of a "Cansema group" (some of whom may also have been dental patients) in his dental surgery, suggesting a failure to maintain professional boundaries; and that he had been prescribing medications not "for dental treatment only", and did not appreciate that there may have been a danger associated with doing so. The Council submitted that the fact that Dr Kirby's clinical skills were not in issue did not equate to an absence of concerns about his practice of dentistry.

NCAT accepted that the conditions did not "correlate neatly" with the risks identified as a result of the February 2016 hearing, particularly in light of the Delegates' view that Dr Kirby's registration did not require suspension and their finding that there was no evidence that Dr Kirby lacked competence in his practice. However, having regard to the whole of the material before it, NCAT had "grave concerns about Dr Kirby's insight and practices", observing that had the Council submitted that suspension should be re-instated, it would have "given very serious consideration to taking this course", because of the "unsatisfactory evidence given by Dr Kirby during the course of his cross-examination". NCAT’s ultimate conclusion was: [18]

Dr Kirby appealed to the Supreme Court, contending that NCAT should have allowed the appeals against the decisions of the Council and set them aside. As has been noted, absent leave, which was not sought, the appeal to the Supreme Court was confined to a question of law. [19] Dr Kirby's main contention was that NCAT should have found that the s 150 decision and the s 150A decision of the Council were infected by denial of procedural fairness and, in particular, apprehended bias. As Barrett AJ observed: [20]

Ultimately, by a further amended summons, Dr Kirby complained of error of law on the part of NCAT on the following four grounds:

The Council disputed that there was any apprehended bias, but alternatively argued that if there were, it had been “cured” by the new hearing in NCAT.

As has been noted, the appeal was dismissed. While those parts of his Honour’s judgment which are important to this appeal are discussed further below, essentially his Honour concluded:

The draft notice of appeal contained the following proposed grounds of appeal:

At the outset of the hearing, the Court dismissed the applicant’s motion for leave to adduce further evidence, by tendering seven documents, namely:

All seven documents were admittedly available to the applicant at the time of the hearing before NCAT, as well as at the time of the hearing before Barrett AJ. No explanation was offered as to why, being available, they were not tendered before NCAT. The fourth, fifth, sixth and seventh were tendered before Barrett AJ; contrary to the applicant’s submissions, they were not rejected, but upon objection to their tender being taken, the tender was not pressed. No explanation has been offered as to why the first, second and third were not tendered before his Honour, nor why the tender of the fourth, fifth, sixth and seventh was not pressed.

It is difficult to see how documents which were not in evidence before NCAT, nor tendered before the primary judge, could demonstrate error in law by the primary judge in not finding any error of law by NCAT. The applicant says that the relevance of the documents is to demonstrate, as to the fourth (Dr White’s draft inspection report), that the Council’s executive officer was involved in “settling” Dr White’s report; and, as to the other six, that they demonstrate that the Council intended to refer the matter to the HCCC under s 150F (which relates to impairment), and not under s 150D (which relates to disciplinary complaints) – and thus that the reference to s 150F was not, as the Council claimed, a typographical error. It is simply not apparent how those matters, if demonstrated, would advance the proposed grounds of appeal – which pertain to the prior involvement of the Delegates and whether they ought to have been disqualified because of it, and whether there was a constructive failure on the part of NCAT to exercise its jurisdiction. Even if the Council misconceived the statutory basis on which it was referring the matter to the HCCC, that says nothing about the two issues raised in this Court, namely alleged apparent bias arising from prior involvement, and constructive failure by NCAT to exercise its jurisdiction.

Whether or not the proceedings before Barrett AJ were a hearing on the merits for the purpose of (NSW) Supreme Court Act, s 75A(8) – and in my view they were – no sufficient basis to permit this material to be adduced, on what is in effect a third appeal from an interlocutory decision – was established.

It was for those reasons that I joined in the dismissal of the applicant’s motion for leave to adduce further evidence.

The first two proposed grounds of appeal attack his Honour’s rejection of the applicant’s case that the Delegates were disqualified, by reasonable apprehension of bias, from participating in the s 150 and s 150A proceedings. Before his Honour, the applicant contended that the prior involvement of the Delegates, before the s 150 proceedings, was incompatible with their acting as the Council’s delegates for the purpose of those proceedings and the subsequent s 150A proceedings. This incompatibility was said to arise, in particular, by reason that:

While these two proposed grounds tend to overlap, in essence the first impugns the test applied by his Honour, and the second his Honour’s application of the test to the facts.

The first proposed ground of appeal contends that the primary judge erred in law in applying the wrong test for reasonable apprehension of bias in circumstances in which the Delegates charged with making decisions as to Dr Kirby’s right to practise had prior involvement in the investigation of a complaint against him.

As the applicant recognised, in the context of a statutory tribunal, the applicable test for apprehended bias is provided by the so-called “double might” test stated in Ebner v Official Trustee in Bankruptcy, [26] notwithstanding that it is expressed in terms of judicial officers (footnotes omitted):

In the course of addressing the issue of bias, Barrett AJ said (footnotes omitted):

Against that background, and having described the legislative scheme [27] and analysed the facts, [28] his Honour concluded:

That was, in terms, a direct application of the Ebner test. Subsequently, his Honour stated:

The applicant contends that the judge “misapplied the Ebner test for reasonable apprehension of bias and how different factors assume relevance where the question arises because of an incompatibility of their roles and their continuing interest as opposed to prejudgment”. If the complaint is that the words used by his Honour in the last mentioned passage (at [83]) are not identical to those of the “double might” test as stated in Ebner, then it is spurious. As the respondent submitted, his Honour’s words were no more than a paraphrase of the Ebner test – to which his Honour had previously referred and in the precise terms of which the conclusion at [80] is expressed; if nothing is capable of grounding an "objectively based apprehension that justice might be compromised", it logically follows that the Ebner "double might" test, namely that a fair-minded lay observer might reasonably apprehend that a decision-maker might not bring an impartial mind to the resolution of the question to be decided, cannot be satisfied. It is not arguable that his Honour did not apply the Ebner test. If the applicant’s case is that application of that test, correctly stated by his Honour, to the facts, properly required a different result, then that is the content of proposed ground 2, and is addressed below.

However, as I understand the gravamen of the applicant’s argument on the first proposed ground, it is that in the context of a case of apprehended bias arising from conflict of interest rather than from prejudgment, in stating that the central issue in both a prejudgment case and a conflict of interest case was the degree of "closure" of the decision-maker's mind, or, more accurately, the degree to which the fair-minded lay observer might entertain a reasonable apprehension that the decision-maker might not bring an open mind to bear, his Honour “unnecessarily narrowed the question of reasonable apprehension of bias to consideration of the degree of "closure" of the decision-maker's mind without proper account of how those distinctions between prejudgment and prior involvement impact upon the "double might" test”, [29] and that “the kind of "closure" of mind that may be present where there has been prejudgment is of a different nature to the "closure" of mind that may be present where the issue is that of prior involvement”, in which case the applicable test was that in Carver, namely “that, any person, who was at the relevant time, a member of the governing body, or of a relevant committee of the body, which initiated the proceeding in question, is to be regarded as being disqualified by interest or association or both from sitting as, or as a member of, any tribunal called upon to determine the proceeding in question, and it matters not that it may not be shown that the person in question took part in the relevant decision”. [30] As will appear, I agree that the question and degree of “closure” of mind is less important and has a different application in the context of interest from prior involvement as distinct from prejudgment; however, in my judgment the primary judge did not apply the notion inappropriately in the present context.

His Honour plainly recognised and treated the applicant’s case before him as one of (alleged) conflict of interest arising from prior involvement, as distinct from one of (alleged) prejudgment. Having recorded the applicant’s contention that each of the Delegates had "adopted a position involving conflict of interest productive of a reasonable apprehension of bias", [31] his Honour explained, by reference to what Spigelman CJ had said in McGovern, [32] the distinction between these two "species" of apprehended bias: [33]

Later, his Honour commenced the analysis of this argument with the sentence: “I deal first with the substantive question of disqualifying interest or involvement (or, more precisely, reasonable apprehension thereof), as distinct from the "cure" argument advanced by the Dental Council”, [34] and proceeded (footnotes omitted):

Thus, although the applicant submitted that in endeavouring to reconcile Carver (an “interest” case) with the later decision in McGovern v Ku-ring-gai Council, [35] (a “prejudgment” case), [36] his Honour “fram[ed] Carver in the same way”, it is clear, from what was said in [68], that, far from framing Carver as a case of prejudgment, his Honour characterised it as a “conflict of interest” case. His Honour plainly appreciated that there were two relevant species of apprehended bias, and that the case the applicant sought to make was one of the “interest” rather than the “prejudgment” species, and that Carver was an “interest”, not a “prejudgment”, case.

That Ebner embraced “interest” cases as well as “prejudgment” cases was made clear in Isbester v Knox City Council (emphasis added, footnotes omitted): [37]

The rationale by which “interest” arising from prior involvement creates apprehended bias was also explained by the High Court in lsbester, in terms which emphasise the need to identify an interest which points to a conflict of interest: [38]

Similarly, Gageler J said:

Accordingly, the Ebner test, stated by his Honour, was the applicable test. The applicant did not submit otherwise.

The applicant did not submit that consideration of the degree of "closure" of the decision-maker's mind was irrelevant, even in an “interest” case. I accept that, as Spigelman CJ explained in McGovern, in an “interest” case, questions of fact and degree do not arise in the same way: whereas in a “prejudgment” case it is necessary to consider the degree of “closure” of the allegedly closed mind, once a relevant conflict of interest is established the reasonable apprehension follows almost as of course. However, as was said in Isbester, explaining the two steps that were said in Ebner to be required in applying the principle governing cases of possible bias, in an “interest” case, where it is said that a decision-maker has an “interest” in litigation, the nature of that interest must be spelled out; and then, the logical connection between that interest and the feared deviation from the course of deciding the case on its merits must be articulated. [39] The requirement to identify a logical connection between the “interest” and the apprehended deviation from proper decision-making directs attention to the question: is the interest one which might affect the impartiality of the decision-maker? The reasonable lay observer might think that prior involvement as an adversary might.

The applicant’s submission seizes on the opening sentence of [69] of the primary judgment, [40] without regard to the remainder of that paragraph, in which his Honour makes clear, first, that once a relevant conflict of interest is established the reasonable apprehension follows almost as of course, and secondly, that nonetheless not every interest will do so. As I understand his Honour’s reasoning, it is that in an “interest” case, the question is whether the interest is such as would ground a reasonable apprehension of bias in the mind of the hypothetical fair-minded lay observer; and that there was no such “interest” in this case, for reasons which, although expressed in different ways (including that they did not take “ownership” of any particular outcome, nor become accusers or proponents or the “moving force”, and that their prior involvement was “administrative or ministerial”), amounted in substance to that the prior involvement of the Delegates was not such as to associate them with the adoption of or commitment to a position in favour of a particular outcome.

So understood, his Honour’s observation that, in both species of case, “the central issue is the degree of 'closure' of the decision-maker's mind” – which was qualified immediately with the explanation “or, more accurately, the degree to which the fair-minded lay observer, approaching the matter objectively, might entertain a reasonable apprehension that the decision-maker might not bring an open mind to bear'' – was intended to do no more than acknowledge that, in the application of the Ebner "double might" test in an “interest” case, it is necessary to ask whether the “interest” is such as might lead the fair-minded lay observer to entertain a reasonable apprehension that the decision-maker might not bring an open mind to bear, and for that purpose to examine the nature of the prior involvement, to see whether it was such as might give rise to such an apprehension. Thus, accepting, as I do, that the “degree of closure” consideration has less significance in a “conflict” case than in a “prejudgment” case, his Honour’s use of it does not reveal error, but rather demonstrates that his Honour was correctly addressing the real question, did the Delegates have such an “interest” as might lead the fair-minded lay observer to entertain a reasonable apprehension that the decision-maker might not approach the matter with an open mind.

Insofar as the applicant contends that the applicable test was that stated in Carver, the passages chiefly invoked were the following statements of Powell JA: [41]

Those statements – which, as Sheppard A-JA pointed out, are statements of general but not universal application [42] – need to be understood in their context, which was that of disciplinary proceedings against a solicitor, instituted by the Council of the Law Society following consideration of the solicitor’s conduct by a Professional Conduct Committee of the Council, culminating in a formal resolution of the Council that the solicitor "may be" guilty of professional misconduct, and that a complaint should be made to the Legal Services Tribunal. The decision that the Council should institute proceedings in the Legal Services Tribunal was one which required a certain state of satisfaction, and which was itself attended by the rules of procedural fairness. [43] When constituted, the Legal Services Tribunal included a person who had at the relevant times been (though he was no longer) a member of both the Council itself and the Committee, and as such had participated in their consideration of and decisions regarding the solicitor's conduct. In other words, the tribunal member was associated with the adoption of a position that disciplinary proceedings alleging professional misconduct should be brought against the solicitor in the tribunal of which he would subsequently be appointed a member. In short, he was a member of the governing body of the prosecutor when it decided to prosecute. As such, he was associated with contending for a particular outcome, and invested with a relevant “interest” in the prosecution.

While it goes without saying that the role of accuser and adjudicator are generally incompatible, [44] the question whether an adjudicator is also a prosecutor is treated as one of substance, and not mere form. Thus in R v Medical Board of South Australia; ex parte S, [45] a member of the board was not disqualified by reason of having attended to the giving of notices and other steps preliminary to the hearing. King J said (emphasis added): [46]

In Ward v Bradford Corporation, [47] Lord Denning MR observed that the prior involvement of the members of the relevant tribunal (which included amending the relevant rules to allow them to institute proceedings of their own motion, which they then proceeded to do) did not go to the justice of the case, but only to points of procedure, while Phillimore LJ observed that in their prior involvement, the members were “careful not to enter into the merits”. It has often been recognised that in the context of tribunals which do not have staff to attend to the tasks of collecting evidence, preparing and notifying charges, and acting as “counsel assisting”, some or all the members will inevitably take a more active pre-trial role than would a judicial officer, [48] and apparent bias does not arise from the mere fact that a member of the tribunal, in the absence of a person appointed for the purpose, receives the complaint and issues a notice to show cause. [49]

In reconciling Carver and McGovern, his Honour said:

Although his Honour may not there have expressly referred to the distinction that Carver was an interest case while McGovern was a prejudgment case, his Honour’s reasoning makes clear that the fundamental question was whether the prior involvement of the Delegates manifested a commitment to a particular outcome such as to be incompatible with their adjudicating on the question.

As appears from the dispositive paragraphs of his Honour’s judgment at [80] and [83], the Ebner test was at the forefront of his Honour’s mind. It is also manifest that his Honour was conscious of the distinction between an “interest” case and a “prejudgment” case, and recognised that the present case was in the former category. In giving significance to the “degree of closure of mind”, his Honour was doing no more than directing attention to whether the prior involvement of the Delegates was of such a nature as to be incompatible with their being adjudicators – which it would be if it involved adoption of a commitment to a particular outcome, but would not if it were merely procedural or ministerial and did not involve entering on the merits. There was no error in the test adopted by his Honour.

The second proposed ground of appeal is that his Honour erred in the application of law in finding there was no reasonable apprehension of bias on the part of the Delegates in the decisions of the Council on 18 December 2015 and 12 February 2016 because their prior involvement: did not give rise to a disqualifying interest because they did not demonstrate any assumption of "ownership" of any particular outcome of the hearings; did not reveal any commitment to any outcome of the hearings; and was administrative or ministerial in character.

Essentially, the primary judge held that the Delegates had not assumed the role of “accusers”, and accordingly did not have a relevant disqualifying “interest” in the outcome. His Honour concluded: [50]

Reduced to its essence, the applicant’s submission was that the primary judge erred in distinguishing, or not applying, Carver, for the three stated reasons, and that his Honour ought to have applied, and not distinguished, Carver, to hold that the Delegates were precluded from participating in the s 150 proceedings and the s 150A proceedings, because of a reasonable apprehension of bias arising from their prior involvement as members of the decision-making body that initiated the investigation of the applicant’s practice, including particularly infection control, and of the decision-making body that determined that s 150 proceedings should be initiated.

As the applicant points out, the question must be considered in the legal, statutory and factual context in which the decision is made. [51] The factual context includes that the Council, as a whole, and including the Delegates amongst its members, made two relevant decisions. The first was to authorise an inspection of Dr Kirby's practice; and the second was to proceed to consider whether it was appropriate to take action under s 150 – albeit that it was ultimately left to the Delegates to do so on behalf of the Council.

The statutory context – which has been more fully set out above – includes that the National Law conferred the s 150 and s 150A functions on the Council, as a whole. As has been explained, s 150 imposes a positive duty to act, in one of several specified ways, if the Council is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons or otherwise in the public interest; and that duty to act is not dependent upon there being any initiating complaint. The legislation does not, in terms, require “proceedings” or a “hearing” or an “inquiry”, although it is clear that the Council may, for the purpose of informing itself, conduct proceedings, [52] as it did here.

In my view, this statutory structure is inconsistent with any view that participation in a decision in effect to embark on consideration of whether or not to take action under s 150 is incompatible with participation in a decision to take such action. It was the Council that was required to act, and although under s 41G it could delegate exercise of the function to two or more of its members, the function was that of the Council as a whole. And while delegation of the s 150 function is permitted, the default position established by the legislation is that, absent delegation, the function is that of the Council. As his Honour explained, [53] the Council is established according to principles of collective deliberation and majority rule based on the expression, through voting, of the will of each member after discussion and debate, and just as a company is said to be entitled to the collective wisdom of its directors, so the community is entitled to the collective wisdom of the Council's members, acting together at a meeting.

In a statutory context where the Council is bound to act if a particular state of affairs appears to it, and is entitled to act of its own motion, participation in a “decision” merely to embark on a consideration of whether or not to act is a necessary step implicitly required of the Council by the legislation. Unlike a committal proceeding, or the function of the Legal Services Commissioner in question in Murray v Legal Services Commissioner, [54] the decision to embark on a consideration of exercising the s 150 function is not a preliminary decision which involves a requirement to be satisfied of anything, to any standard. It is no more than a decision to examine whether to exercise any of the Council’s powers under s 150, in a context where, if there is no complaint at all, it is open to do so of its own motion. It cannot have been contemplated or intended that merely by participating in a decision to embark on consideration of whether or not to exercise its s 150 power, members of the Council would thereby be disqualified from deciding whether that power should indeed be exercised.

Moreover, this statutory structure stands in stark distinction to the statutory framework in question in Carver, in which the Law Society Council was given an investigatory function, culminating in a decision, attended by the requirements of procedural fairness, to institute disciplinary proceedings; [55] and then a prosecutorial function before the Legal Services Tribunal, which had an independent adjudicatory function. While, as the applicant submits, it may not be impossible for the Council, by resort to the power of delegation and by having some members not participate in the anterior decisions, to structure proceedings in such a way that delegates who consider whether to take action under s 150 have had no prior involvement, that does not mean that in this statutory context the Council must do so – not least because to require some members not to participate in anterior decisions on account of a possibility that they might be delegated the s 150 function at a later stage, would exclude from the Council’s anterior deliberations members who are entitled to participate and to whose input the community is entitled.

Contrary to the applicant’s submission that the primary judge “failed to give sufficient weight to the conduct of Dr O'Reilly, Dr Fryer and Ms MacDougal leading up to and at the s 150 proceedings”, his Honour, before reaching the conclusion that there was nothing approaching the concluded decisions and value judgments involved in Carver, [56] fully considered the prior involvement of each of the Delegates, considering “precisely what they did before embarking on the hearings of December 2015 and February 2016", [57] and observing that the “prior involvement” said to establish the relevant “interest” comprised the following three elements.

First, in July 2015, Dr O'Reilly received information from Dr Green about what Dr Green said he had been told by a patient about Dr Kirby’s use of Cansema. Taking that information at face value and with no means of assessing its reliability, Dr O'Reilly told Dr Green that he should lodge a complaint with the HCCC. This was no more than advice to a dentist who sought it from the chair of his professional council, as to what he should do with the information he had received. It did not involve Dr O’Reilly entering into the merits of the matter, or forming any opinion as to whether there was substance to the complaint. As his Honour said:

Secondly, on 6 November 2015, each of the Delegates was present at the meeting of the Council at which it was resolved to authorise the inspection of Dr Kirby's practice that was in due course made by Dr White, and that the inspection include infection control practices. The decision to authorise an inspection was made in accordance with the recommendation of the Complaints Committee (of which none of the Delegates was a member), for the purpose of obtaining information. It did not involve any conclusion that there was substance to the complaint. The extension of the inspection to “infection control practices” indicates no more than that the Council determined to use its resources efficiently in conducting an infection control audit, in conjunction with the inspection that was in any event to be performed in relation to Cansema, in a regional town remote from Sydney. [58] Again as his Honour said:

Thirdly, on 2 December 2015, all members of the Council, including each of the Delegates, received the consultation paper reporting the result of the inspection, and also Dr Burges' comments (referred to at [27] above), and by 3 December 2015, eight members of the Council, including each of the Delegates, selected "Option A", thereby expressing an opinion that proceedings should be taken "to consider taking action pursuant to s 150". Again, this involved no entry into the merits of whether action should in fact be taken under s 150, but only that consideration should be given to it. It involved no commitment to any particular outcome. In this respect, the primary judge said:

It was following that analysis and by reference to it that his Honour concluded that the case was “far removed” from cases such as Carver and lsbester, and involved “nothing remotely approaching” concluded decisions and value judgments of the kind that were involved in Carver, nor the prior pursuit of a prosecution and conviction involved in lsbester, elaborating:

In my judgment, his Honour was right to so conclude, for the reasons given by his Honour. There was nothing in the “prior involvement” of the Delegates that amounted to association with a commitment to a particular outcome, nor even with a particular view about the merits of the matter. Their prior involvement was merely procedural, or, at the highest, authorised the making of inquiries and the gathering of evidence in the context of a body which was not equipped with a separate investigatory arm, and did not enter at all on the merits. In the context of the applicable statutory scheme and structure, a reasonable observer could not have considered their prior involvement invested them with a personal interest in the outcome such as might cause any of them to approach the question of whether s 150 action should be taken other that with a fair and open mind.

Although I have treated it as impugning generally his Honour’s application of the test to the facts, the proposed second ground of appeal focussed on three specific complaints, namely that:

As to the first complaint, the notion of "ownership" of a position or outcome, to which his Honour referred, was no more than a way of describing, summarising and distinguishing the type of prior involvement which would invest a person with an “interest” in the outcome incompatible with an adjudicatory function. In short, it was association with a commitment to a particular outcome. His Honour had earlier explained exactly what was intended to be encapsulated in this notion (footnotes omitted):

His Honour did not hold that there was no reasonable apprehension of bias simply because the Delegates had not assumed "ownership" of any particular outcome. It was one of several ways of characterising what they had – and had not – done. In addition to absence of "any form of assumption of 'ownership' of any particular outcome”, his Honour also took into account that none of the Delegates (at the earlier stages) demonstrated any form of commitment to an opinion on the merits of the issues; none had become an accuser or proponent or moving force; and none had adopted any partisan or advocacy position; on the other hand, each played an "objectively reasonable role" in deciding whether certain investigative steps ought be taken in discharge of the statutory function conferred on the Council of which they were members. Those were all entirely relevant and appropriate considerations in evaluating whether the Delegates had an “interest” arising from their role that was incompatible with their being the decision-makers. For example, had any one of them adopted the role of accuser or prosecutor, he or she might well have been found to have a relevant “interest” – though whether it would have been disqualifying in the context of this statutory regime does not go without saying. Had any of the Delegates, in the course of their prior involvement, assumed a position in favour of a particular outcome, that would be indicative, if not decisive, of “ownership” of a particular position such as to amount to an “interest” that was incompatible with being a decision-maker. Conversely, absence of assumption of such a position was a relevant and important factor in concluding that there was no such incompatible “interest”.

As to the second complaint, Dr Kirby submits that the trial judge erred in finding that the Delegates had not become accusers or proponents or a “moving force” in the Council's decision to take action against him under s 150. I do not doubt that proceedings considering action under s 150 have the potential to affect the reputation and livelihood of the practitioner, and cast the practitioner in a defensive role. But that does not mean that those members of the Board who decide to embark on consideration of whether s 150 action should be taken, and afford the practitioner an opportunity to be heard, are relevantly “accusers”. Again, if they had associated themselves with contending for a particular outcome, that might be otherwise. But they did not. What they did involved no more than authorising inquiries; in the primary judge’s words their prior involvement was "concerned with the obtaining of information", [59] and in deciding to hold an s 150 hearing, "the sole concern was with inquiry and investigation". [60] The fact that s 150 action has significant consequences for a practitioner does not change the character of a decision to embark on consideration of whether to take such action, or to obtain information to inform such consideration. The key consideration is that the Delegates were not apparently associated with adoption of a position in favour of any particular outcome, from which it follows that they were not invested with an “interest” such as might affect their impartiality. As the primary judge observed:

The applicant submitted that the Delegates’ prior involvement must be considered as a whole, and that it is the cumulative nature of their prior involvement that would found a reasonable apprehension of bias. I entirely agree that their prior involvement must be considered as a whole. But his Honour did not fail to do so. His Honour considered each instance of their prior involvement, [61] before concluding that no reasonable apprehension of bias could follow from their prior involvement. [62]

In any event, considering their prior involvement as a whole, I would still conclude that every aspect of the prior involvement of each of the Delegates, taken together, does not suggest that any of the Delegates was apparently associated with adoption of a position in favour of, or commitment to, any particular outcome of the consideration of whether action under s 150 should be taken. They did no more than participate in decisions, first, to authorise collection of information, as recommended by the Complaints Committee, in connection with a complaint which had been referred to the Council by the HCCC, and then, to determine that on the available information, consideration should be given (ultimately by the Delegates) as to whether it should take action under s 150 – without adopting any position about the outcome of that consideration.

As to the third complaint, in characterising the Delegates’ prior involvement as "administrative or ministerial", [63] and analogous to the position of Mr Capp in Agricultural Societies Council of NSW v Christie, [64] what his Honour in fact did was to use Christie as an illustration of the type of role which the Delegates had played, in a similar factual context, to support the decision already reached (at [80]), that there was no basis for any finding that a hypothetical fair-minded lay observer, acting objectively, might have considered that prior involvement engendering personal interest might cause any of the Delegates not to bring an open mind to bear. The primary judge said:

Mr Capp was an official of the Agricultural Societies Council, whose functions included testing show horses for drugs, and disciplining persons involved in administering drugs. He also sat as a member of the disciplinary committee, and as such participated in a decision adverse to Mr Christie. Prior to the disciplinary proceeding in the committee, he had been involved in arranging for samples to be taken from the horse, sending the samples for analysis and, on receipt of the result, consulting with other committee members and agreeing that the result should be referred to the committee for inquiry. This Court rejected an argument that his prior involvement disqualified him from participation in the disciplinary committee hearing and decision. As the primary judge observed, [65] Meagher JA compared the position of Mr Capp with that of Ms Hughes in lsbester, as follows: [66]

In that context, the primary judge said:

The applicant’s submissions raised as a distinction that here the Delegates had participated in “an active step to initiate an additional and unrelated investigation into the applicant's practice which was over and above that arising from the original Complaint, over and above the recommendation arising from the consultation session between the Council and the HCCC, and over and above the recommendation from the Complaints and Notifications Committee”. That was a reference to the infection control practices inspection, which was unrelated to the complaint about use of Cansema, and was initiated by the Council of its own motion. However, all the Council did was to authorise an inspection, effectively by way of an “audit”. In circumstances where there was to be an inspection of Dr Kirby’s practice in any event, it was efficient to conduct an infection control inspection concurrently. A decision to extend the scope of an inspection to a matter not included in the complaint is not an adoption of a position as to whether the outcome of any inspection warrants any s 150 action. An objective bystander aware of all of the circumstances could not have thought that this manifested an intention to “get” the applicant on an alternative ground, if the original complaint were not sustained. That is borne out by the subsequent conduct of the s 150 proceedings, in which infection control did not play a significant part.

As the respondent submitted, the analogy with Christie was a close one. The Delegates’ prior involvement consisted of authorising an inspection of Dr Kirby's practice (analogous to arranging for samples to be taken from a horse, and sending the samples for analysis), and upon considering the results of the inspection, agreeing that the Council should consider whether or not s 150 action should be taken (analogous to Dr Capp's receipt of the result of the samples sent for analysis, consulting with other committee members, and agreeing that the result should be referred to the committee for inquiry). Thus the primary judge’s description of the position of the Delegates as “closely analogous to that occupied by Mr Capp in Agricultural Societies Council of NSW" [67] was correct. And that conclusion had been reached [68] prior to the reference to Agricultural Societies Council of NSW v Christie, [69] which served mainly to illustrate by analogy a decision already independently reached, to which multiple factors had contributed, all of which pointed against the Delegates being associated with pursuing a particular outcome such as would have given them an interest incompatible with acting as decision-makers, coupled with a statutory regime that implicitly involved the body authorised to take action under s 150 being the body which determined whether or not to embark on consideration of doing so.

In my judgment, and accepting that the applicant’s case was one of incompatibility of roles arising from prior involvement, his Honour applied the correct test for reasonable apprehension of bias, and his Honour did not err in the application of that test to the facts. In any event, I would reach the same conclusion: in the relevant statutory context, there was no incompatibility between, on the one hand, Dr O’Reilly advising Dr Green that he should make a complaint about Dr Kirby to the HCCC, and the Delegates being party to decisions to authorise inspections of Dr Kirby’s practice and, on receipt of the report, that there should be consideration of whether s 150 action should be taken; and, on the other hand, their role as Council’s delegates for the purpose of considering whether s 150 action should be taken. Fundamentally, this is because nothing they did was such, alone or taken together, as to associate them in any reasonable view with contending for any particular outcome of that consideration. They would not be viewed by a fair-minded lay observer to be accusers or prosecutors, and their prior involvement would not be viewed as such as to invest them with a relevant “interest” in the outcome.

The circumstance that not only has no error in his Honour’s conclusion been demonstrated, but that even if there were I would reach the same ultimate conclusion, tells strongly against granting leave to appeal on those grounds.

Before us, Dr Kirby sought to rely on various other indicia of bias. These were admittedly not raised before the primary judge, nor were they included in the detailed particulars of bias provided by Dr Kirby before NCAT. [70] Some were the subject of the application for leave to adduce further evidence, referred to above. In circumstances where this is in effect an interlocutory appeal, there have been two earlier appeals, no explanation has been proffered as to why these matters were not previously raised, and they are matters in respect of which the Council may have wished to lead evidence, there are powerful reasons for not permitting them to be invoked now. Moreover, even if the Council misconceived the statutory basis on which it was referring the matter to the HCCC, it is simply not apparent how that says anything about apparent bias arising from prior involvement. Likewise, it is simply not apparent how the change in composition of the panel (involving the replacement of Ms Bell consequent upon her unavailability) is relevant to any appearance of bias arising from the prior involvement of the Delegates.

The third proposed ground of appeal contends that the primary judge erred in finding that NCAT had conducted a rehearing on the question of conditions attached to Dr Kirby’s practice, in accordance with s 159(3) of the National Law.

The applicant submitted that the primary judge misconceived Dr Kirby’s complaint about NCAT’s decision as to conditions on his practice: whereas the judge had understood the complaint to be that NCAT erred in failing to remove the conditions, in fact it was that NCAT had not conducted a proper hearing on the question of conditions. Before us, it was argued that the primary judge erred in not addressing the question whether NCAT had conducted a genuine rehearing under s 159(3) of the National Law and how the conditions imposed married up with its concerns, and that his Honour should have concluded that NCAT failed to discharge its function by not considering for itself the appropriateness of conditions imposed to address the risk NCAT had identified following the new hearing before it. Thus the argument was that NCAT did not discharge its function, and that the primary judge erred in not finding so. To this the respondent replied that this was not the case put on behalf of Dr Kirby to the primary judge; that in any event, it was sufficiently dealt with and disposed of by the judge; and further, that NCAT did not fail to conduct a rehearing as required.

I accept that NCAT’s function was to proceed by way of hearing de novo. When Dr Kirby’s appeal to NCAT was initiated in April 2016, s 159(3) provided for an appeal by way of “reconsideration”, in which fresh and further evidence could be adduced:

In May 2016, s 159(3) was amended to provide for an appeal by way of “new hearing”, which connotes a hearing de novo:

I am content to proceed on the basis that under the previous as well as the current version of s 159(3), NCAT was required to consider the matter afresh, as if it were the Council, upon the evidence (including any additional evidence that was not before the Council) before it, and having regard to the considerations relevant to the exercise of the discretion conferred by s 150.

At all material times (from April 2016, when Dr Kirby initiated his appeal to NCAT, to April 2017, when NCAT gave its decision), NCAT's powers on such an appeal were defined by s 159C of the National Law, in the following terms:

Thus NCAT was required to determine, first, whether action under s 150 was to be taken, and if so, what action – suspension, or imposition of appropriate conditions – was appropriate for the protection of the health or safety of any person or persons or in the public interest.

The basis upon which the applicant contends that NCAT did not conduct a proper hearing de novo on the question of conditions is that, in circumstances where NCAT had found that the conditions which the Council had imposed on Dr Kirby in February 2016 did not “correlate neatly” with the Council's concerns, NCAT was required to, but did not, "identify what the lack of correlation was and then impose alternative conditions”, but instead "took a broad-brush approach of finding that because of its concerns about the evidence of [Dr Kirby] and his general lack of insight and concern about his practices, the conditions should not be removed”, and in doing so, presumably, failed to conduct a proper re-hearing on the issue of conditions.

However, this is by no means a failure to conduct a hearing de novo on the question of conditions. To the contrary, what NCAT did was entirely in accordance with a requirement to exercise afresh the discretion conferred by s 150 to determine whether or not the imposition of conditions was "appropriate" for the protection of the health or safety of any persons, or was otherwise in the public interest, having regard to the evidence before it, including evidence that was not before the Council, such as Dr Kirby's evidence in cross-examination. In circumstances where NCAT was required to consider afresh the question of the imposition of conditions on Dr Kirby's registration – a view which the applicant embraces – the question was not whether the conditions were "appropriate” by reference to the Council's concerns, but what conditions were appropriate by reference to NCAT’s own conclusions as to the risk Dr Kirby's practice posed to the health or safety of his patients. That is precisely what NCAT did, in concluding that although the conditions may not have neatly conformed to the concerns expressed by the Council, they were appropriate in the context of the concerns which, on the evidence before it, it entertained (emphasis added):

Thus, in reconsidering the matter in accordance with s 159 of the National Law on the evidence before it, NCAT having determined that Dr Kirby's practice posed a risk to the health or safety of his patients, determined that the conditions imposed were the minimum "appropriate" to protect the health or safety of Dr Kirby's patients.

The complaint that NCAT did not conduct a new hearing on the question of conditions and thereby failed to exercise its jurisdiction is without foundation. In those circumstances, there would be no utility in granting leave to appeal, even if the primary judge did not expressly address this issue.

The respondent submitted that the applicant ought not be permitted to raise a ground of appeal asserting error by reference to a submission that was not put in terms below, invoking the observation of this Court in Choy v Tiara Coal Ltd (in liq), [73] that there is no good reason to grant leave to determine a ground of appeal which is based upon a submission which was not made to the primary judge.

The only potentially relevant ground of appeal before the primary judge was ground 3, which complained that “NCAT failed to remove conditions imposed by the Council on 12 February 2016 in circumstances where it found that the conditions did not bear on Dr Kirby's ability or fitness to practise”. If that were intended to raise a complaint of jurisdictional error, in that NCAT had failed to conduct a rehearing about the conditions, it was supremely oblique in doing so. If, as Dr Kirby submits, the trial judge misunderstood the criticism of NCAT's decision to confirm the Council's imposition of conditions on his registration, in understanding him to have appealed from the decision on the basis that the conditions should have been removed, whereas he in fact contended that NCAT had not conducted a proper re-hearing on the question of conditions, that would be unsurprising in light of the manner in which the grounds of appeal before his Honour were framed.

In written submissions before the primary judge, counsel for Dr Kirby submitted that:

In oral argument before the primary judge, the issue was addressed in a similar way. First, the conditions imposed by the Council in its s 150A decision were described, then NCAT's obligations pursuant to s 159(3) were stated. Counsel for Dr Kirby submitted, in respect of [153] of NCAT’s decision:

Elaborating this, counsel for Dr Kirby submitted:

In that context, the following submission was made to the primary judge:

That is the closest that the applicant came to contending, before the primary judge, that NCAT had not conducted a proper re-hearing on the question of conditions. The applicant submits that this Court should find that the trial judge erred in not addressing this argument, and should conclude that NCAT failed to discharge its function by failing to consider for itself the appropriateness of conditions imposed to address the risk NCAT had identified following the new hearing before it. For reasons advanced above, the underlying submission (that NCAT failed to discharge its obligations in relation to the conditions) is without merit.

However, the trial judge did not fail to address the argument, to the extent that it was raised. As the respondent submits, the primary judge expressly dealt with this line of argument. [74] His Honour noted Dr Kirby's submission that "the conditions were, it is said, inconsistent with a finding ... that Dr Kirby was a competent dentist" and that “NCAT, it was submitted, 'became distracted' about Dr Kirby's evidence on the matters that gave rise to his suspension, even though the Dental Council had seen fit to terminate the suspension and that this 'distraction' involved legal error". [75] His Honour considered these submissions, [76] ultimately concluding that no error had been demonstrated, and observing that "it does not follow" from the fact that the Delegates did not see Dr Kirby as lacking technical and clinical competence in dentistry, "that the only permissible conditions are those calculated to allow effective discharge of competency". [77] Thus, insofar as the argument was raised in submissions, even though not explicitly in the grounds of appeal, his Honour did not fail to address it. Moreover, even though the primary judge (understandably) did not in terms refer to Dr Kirby’s contention that NCAT did not conduct a proper rehearing on the question of conditions and thereby constructively failed to exercise its jurisdiction – in circumstances where neither the notice of appeal nor Dr Kirby’s submissions had referred in terms to constructive failure to exercise jurisdiction – his Honour's consideration of this issue conclusively deals with the substance of that complaint. His Honour in substance held that no error was demonstrated in NCATs approach to the imposition of conditions on Dr Kirby's registration, which was entirely consistent with the requirements of s 150 (and s 150A). [78]

The primary judge did not fail to address a submission worthy of consideration. In any event, there was no merit in the submission. Leave to appeal to argue this proposed ground should be refused.

My conclusions may be summarised as follows:

The primary judge recognised and proceeded on the basis that the applicant’s case was one of apprehended bias founded on incompatibility of roles arising from the prior involvement of the Delegates in preliminary stages. In that context, his Honour was right to apply the Ebner test. Insofar as there is a distinction between an “interest” case and a “prejudgment” case, his Honour did not fail to appreciate it. Although the “degree of closure of mind” is less significant in an “interest” case than in a “prejudgment” case, the manner in which his Honour used that notion was not erroneous.

His Honour rightly held that the prior involvement of the Delegates was not such as to invest them with an “interest” incompatible with their constituting the Tribunal that determined the s 150 proceedings. In any event, I would reach the same conclusion: in the relevant statutory context, there was no incompatibility between, on the one hand, Dr O’Reilly advising Dr Green that he should make a complaint about Dr Kirby to the HCCC, and the Delegates being party to decisions to authorise inspections of Dr Kirby’s practice and, on receipt of the report, that there should be consideration of whether s 150 action should be taken; and, on the other hand, their being Council’s delegates for the purpose of considering whether s 150 action should be taken. Fundamentally, this is because nothing they did was such, alone or together, as to associate them, in any reasonable view, with contending for any particular outcome of that consideration. They were not accusers or prosecutors, and their prior involvement was not such as to invest them with a relevant “interest” in the outcome.

NCAT did not constructively fail to exercise its jurisdiction, and insofar as the point was raised before the primary judge, his Honour rightly held that no error was demonstrated in NCAT’s approach to the imposition of conditions on Dr Kirby's registration.

Although leave to appeal may be granted relatively liberally in disciplinary proceedings, at least in the case of a first appeal, here, where the s 150 and s 150A decisions are interlocutory in nature, pending the outcome of further proceedings; the s 150 decision itself was promptly reviewed and was in effect for only a couple of months; there have already been two appeals (to NCAT and to the primary judge); and even if error were demonstrated, NCAT’s ultimate conclusion has not been shown to involve any relevant error of law, the appropriate order would ordinarily be that leave to appeal be refused, with costs. However, the application was fully argued as an appeal; the interpretation and application of the National Law have not hitherto received extensive consideration in this Court; and the disposition of the application has required the consideration and distinction of this Court’s decision in Carver; in those circumstances, I am persuaded that leave to appeal should be granted, but the appeal dismissed, and that the applicant should pay the respondent’s costs.

EMMETT AJA: The principal question in these proceedings is whether the applicant, Dr David Kirby (the Dentist), was denied procedural fairness in decisions of the respondent, the Dental Council of New South Wales (the Dental Council), made on 18 December 2015, to suspend the Dentist and on 12 February 2016, to revoke the suspension and impose conditions on his practice of dentistry. The Dentist asserts that there was a reasonable apprehension of bias on the part of the three members of the Dental Council who made the decisions. In addition, the Dentist claims that the Civil and Administrative Tribunal of New South Wales (the Tribunal) failed to exercise jurisdiction under s 159 of the Health Practitioner Regulation National Law (NSW) (the National Law) by failing to reconsider the conditions to be imposed on the Dentist’s practice in the light of the Tribunal’s findings.

I have had the advantage of reading in draft form the proposed reasons of Brereton JA. I agree with his Honour that:

The object of the National Law is to establish a national registration and accreditation scheme for the regulation of health practitioners and the registration of certain students. Under s 3A of the National Law, the protection of the health and safety of the public must be the paramount consideration. Under s 5, a health practitioner is an individual who practises a health profession. The term “health profession” means the professions set out in s 5, which include dental and medical professions.

Division 2 of Pt 5A deals with Councils. A Council is a body corporate with perpetual succession and has all of the powers of an individual and has and may exercise the functions conferred or imposed upon it under the National Law. Under s 41B, which is in Div 2, each of a number of Councils is established for the health profession listed beside the respective councils in the table in s 41B(1). One of the Councils is the Dental Council in relation to the health profession described as “Dental (including the profession of a dentist, dental hygienist, dental prosthetist, dental therapist or oral health therapist)”. There is also established a Medical Council of New South Wales for the medical health profession.

These proceedings arise out of a complaint made under Div 3 of Pt 8 of the National Law. Section 141(2), which appears in Div 2 of Pt 8, provides that a registered health practitioner who, in the course of practising that practitioner’s profession, forms a reasonable belief that another registered health practitioner has behaved in a way that constitutes notifiable conduct, the first health practitioner must, as soon as practicable after forming the reasonable belief, notify the Australian Health Practitioner Regulation Agency established by s 23 of that second health practitioner’s notifiable conduct. Notifiable conduct, in relation to a registered health practitioner, means, relevantly, the practitioner has placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards.

These proceedings arise out of a complaint made in respect of the Dentist on 6 August 2015. The complainant said that he recently saw a longstanding patient of the complainant’s practice, who told him that she had been diagnosed with a BBC of the nose and had been seeing the Dentist for treatment of that cancer, which involved an application of a substance that the complainant thought is illegal. The complainant said that the treatment would be outside the normal scope of practice for a dentist and would not be considered best practice. The complainant also said that the treatment places the patient at considerable risk of metastases.

Although it does not appear to have been an issue in the proceedings, a question may arise as to whether the conduct of the Dentist that is the subject of the complaint was properly referred to the Dental Council rather than, for example, to the Medical Council of New South Wales. That is to say, there may be a question as to whether the conduct in question was notifiable conduct in relation to the medical profession rather than the dental profession, in that the Dentist may have been engaging in conduct that would require his registration as a medical practitioner rather than as a dental practitioner. The question is whether a complaint in respect of a dentist who, in contravention of the National Law, performs work of a medical practitioner, should be referred to the Medical Council rather than to the Dental Council.