Adams v Health Care Complaints Commission

1. [1]

   This judgment involves a judicial review of a decision of the Health Care Complaints Commission.

2. [2]

   The plaintiff is Charlie Armstrong Adams. He is self-represented. The defendant is the Health Care Complaints Commission (the HCCC) and is represented by I Chatterjee of counsel. The parties relied on an agreed joint court book marked as Exhibit A (Ex A).

3. [3]

   By summons filed 23 November 2023, the plaintiff seeks judicial review of a review decision of the HCCC dated 4 October 2024, not to proceed with a complaint made by him against a dentist, Dr Jilin Cai (the dentist), concerning treatment he received from the dentist on 2 November 2023.

4. [4]

   Of paramount concern to the plaintiff is the manner in which the dentist dealt with tooth 38 (T38), the plaintiff’s lower left wisdom tooth.

5. [5]

   The plaintiff seeks an order quashing the decision of the HCCC dated 4 October 2023. Some of the grounds of judicial review were not pressed at this hearing. The grounds of judicial review that remain to be decided are procedural unfairness, failure to consider relevant evidence, neglect of public safety concerns, failure to meet statutory obligations and non-compliance with s 28(8)(b) of the Health Care Complaints Act 1993 (NSW) (HCC Act). He also seeks an order that the review decision of the HCCC dated 4 October 2024 be quashed and an order compelling the HCCC to reassess his complaint in compliance with the HCC Act, and principles of natural justice and fairness, and finally a thorough review of diagnostic failures and their impact on public safety.

6. [6]

   At the hearing, the plaintiff was granted leave to rely on a further ground of judicial review that was not set out in the summons, namely that the notice of the HCCC’s decision did not contain adequate reasons pursuant to s 28(8)(b) of the HCC Act. Counsel for the defendant was in a position to meet that additional ground of judicial review.

Background

1. [7]

   On 26 May 2023, the plaintiff initially attended upon the dentist reporting pain in quadrant 2 of his mouth, with specific concerns about two teeth referred to as T25 and T26. The dentist performed local debridement to flush the gap between T25 and T26, with advice given to monitor for two weeks and re-attend if his symptoms did not improve. On 8 September 2023, T26 split and was removed by another dentist.

2. [8]

   On 2 November 2023, the plaintiff re-attended upon the dentist for a cleaning and check-up. He reported the split and extraction of T26 (the plaintiff’s upper left wisdom tooth) to the dentist. The plaintiff was advised by the dentist that grinding was causing multiple teeth to break at the gum line and that consistent use of a night guard was very important.

3. [9]

   The plaintiff subsequently had two further teeth extracted, namely, an upper left wisdom tooth (identified by the dentist as T28) on 1 February 2024, and a lower left wisdom tooth (T38) on 28 February 2024, both by a different dentist. The upper tooth had suffered a vertical root fracture while the lower tooth was “severely decayed” with “a very large hole”.

4. [10]

   The plaintiff submitted that the dentist failed to identify the issues with these teeth on 2 November 2023, which led to “ongoing pain, distress, and subsequent dental procedures”.

5. [11]

   On 1 February 2024, the plaintiff says he “confronted” the dentist about his concerns and complained of what he described as the dentist’s “dismissive attitude and lack of professional accountability”.

6. [12]

   The plaintiff sought the Commission’s assistance in obtaining his dental records. On 19 June 2024, the dentist provided an electronic copy of the plaintiff’s records to the Commission.

7. [13]

   With respect to the plaintiff's medical records, the dentist identified that all patients at the practice (Dental XX) have permanent “access to their complete dental records at any time and location, immediately available after each appointment” through a phone app that patients are required to have installed on their phones.

8. [14]

   The HCCC ultimately provided the plaintiff discovery of the documents it had before it, including the assessment brief provided to the Dental Council. This is a subject to which I will return.

9. [15]

   The dentist provided a substantive response by way of a letter dated 26 June 2024 relevantly asserting that:

   1. (1)

      The plaintiff did not raise any concerns in relation to T28 or T38;

   2. (2)

      The available radiographic records from 26 May 2023 showed no pathology for either tooth;

   3. (3)

      As the records were less than 6-12 months old at the time, further radiology was contradicted as it would be “inappropriate for radiation safety”; and

   4. (4)

      Their condition at the date of extraction is not necessarily reflective of their state at the date of consultation (which was three months earlier).

10. [16]

    The dentist also responded to his interaction with the plaintiff in February 2024 and apologised that “the exchange made Mr Adams feel I was being evasive around his concerns”, and reflected that the conversation “should have been conducted in a more apposite fashion”.

11. [17]

    The Commission consulted with the Dental Council of NSW (the Dental Council) as to the plaintiff’s complaint, as statutorily required pursuant to s 12 of the HCC Act. The process in this instance involved three Commission officers consulting with three Council officers on 8 August 2024. The Council’s recommendation, which the Commission ultimately adopted, was to “[d]iscontinue with comments”. The Council’s observations with respect to this complaint (which were also effectively adopted by the Commission) were as follows:

12. [18]

    The HCCC submitted that the Council’s consideration of T28 and T38 can be seen from its identification that “diagnosis of unseparated cracks in symptomatic teeth is uncertain and tricky”, taken with the consideration that the dentist’s “examination may not have been thorough”, and the rejection of his assertion that “photos of an extracted tooth do not represent the state of the tooth 3 months previous”. The first observation relates to T28, while the latter comments are focused on the possibility that the decayed tooth T38 was in a similar state as at the date of consultation and therefore, may have been missed by the dentist.

13. [19]

    On 20 June 2024, the plaintiff also raised various complaints regarding the manner in which the Commission was assessing his complaint, alleging that the assessment officer allocated to his complaint was in “potential collusion” with the dentist’s practice, Dental XX. In correspondence in the days immediately after, the plaintiff also asserted that he was:

14. [20]

    The plaintiff continued as follows:

15. [21]

    At the hearing in the court, the plaintiff elected not to press his concerns of bias against anyone who handled his complaint at the HCCC.

16. [22]

    On 13 August 2024, the Commission wrote to both the dentist and the plaintiff with notice of its decision for the purposes of s 28 of the HCC Act. The Commission’s letter to the plaintiff set out in material form the Council’s observations above and concluded by notifying the plaintiff that:

17. [23]

    That day, the plaintiff replied to the Commission requesting a review of the decision concerning his complaint against the dentist (above). The plaintiff wrote to the Commission again on 13, 14, 15, 18 and 20 August 2024 concerning the review.

18. [24]

    The Commission conducted a review that resulted in the same determination. The plaintiff was informed of that decision by way of an email on 8 October 2024 (attaching a letter dated 4 October 2024) (the review decision). It relevantly stated:

Key findings in the review decision of the HCCC dated 4 October 2024

1. [25]

   The HCCC found on review it did not find a basis for further action by the Commission based on the following findings (CB 39-40):

The summons

1. [26]

   The grounds of judicial review raised in the summons were firstly, procedural unfairness; secondly, failure to consider relevant evidence; thirdly, neglect of public safety concerns; and finally, that the Commission’s decision did not contain adequate reasons pursuant to s 28(8)(b) of the HCC Act.

2. [27]

   At the hearing on 4 July 2025, the plaintiff ultimately withdrew appeal ground 2 relating to bias:

3. [28]

   The plaintiff changed his mind but then confirmed that the only grounds that were being contested included procedural fairness, failure to consider relevant evidence, neglect of public safety concerns and the new ground of s 28(8)(b) of the HCC Act:

4. [29]

   Most of these grounds of judicial review overlap. While the plaintiff dealt with each of grounds 1, 3 and 5 separately, the HCCC dealt with them together. I will set out the plaintiff’s submissions individually, followed by the HCCC’s submissions then make my resolution in relation to grounds 1, 3 and 5 together. I will then deal with ground 4 and the new ground 7 concerning s 28(8)(b) of the HCC Act. As set out earlier, grounds 2 and 6 (being procedural irregularities and suspicious conduct) were not ultimately contested by the plaintiff.

A preliminary issue

1. [30]

   The HCCC argued that this Court has no jurisdiction to hear this judicial review due to a decision in Hastwell v Health Care Complaints Commission [2021] NSWCA 22 (‘Hastwell’).

2. [31]

   Counsel for the HCCC submitted that this Court does not have jurisdiction to undertake a judicial review of the review decision of the HCCC confirming its decision not to take any further action, which was made after examining the plaintiff’s complaint.

3. [32]

   In Hastwell, Basten JA said:

4. [33]

   Counsel for the HCCC also referred to Leeming JA’s agreement with Basten JA in Hastwell at [24]:

5. [34]

   Counsel for HCCC submitted that in accordance with Hastwell, the review decision is not amenable to judicial review by the plaintiff. That is, while the dentist was owed statutorily enshrined obligations in relation to procedural fairness and natural justice, as the subject of the complaint, the plaintiff was only owed the specific obligations identified by the Court at [19] of Hastwell; namely, that the complaint had to be assessed and notice of reasons given, neither of which give rise to the right of certiorari claimed here.

6. [35]

   Counsel for the HCCC also submitted that in Mohareb v Health Care Complaints Commission [2023] NSWSC 1224 (‘Mohareb’), Weinstein J considered that Basten JA’s analysis in Hastwell was binding but also agreed at [68] with those conclusions, following consideration of the HCC Act. While the Court of Appeal set aside Mohareb on a consent basis (in Mohareb v Health Care Complaints Commission [2024] NSWCA 70), when the Commission accepted that it made statements that were incorrect such that “its Review Decision was invalid and of no effect, being tainted by jurisdictional error”, the reasoning in Hastwell was not affected.

7. [36]

   The plaintiff did not make any specific submissions on this topic but I have taken his other arguments and submissions into account before making this resolution.

8. [37]

   It is my view that the decision in Hastwell does apply here. While the plaintiff may make a complaint against the dentist, it does not create any obligation on the Commission to take any particular action on the basis of that complaint, nor to do more than identify in broad terms the reason that a step has or has not been taken. It follows that this Court has no jurisdiction to review the review decision of the HCCC confirming its decision not to take any further action. It is nevertheless not clear whether all of the plaintiff’s grounds of judicial review relate to the review decision (being the relevant decision). Hastwell would also be fatal to any judicial ground of appeal that relates to the HCCC decision. On this basis, the plaintiff’s application for judicial review is dismissed.

9. [38]

   In the event that I am wrong, I will briefly deal with the plaintiff’s grounds for seeking judicial review.

Judicial review ground 1 – procedural unfairness

1. [39]

   This ground of judicial review is that the HCCC failed to provide a fair and impartial review process by not adequately considering all the evidence provided by the plaintiff, including photographic evidence and the timeline of dental treatment. This ground of judicial review overlaps with grounds 3, 5 and the new ground 7.

2. [40]

   The HCCC failed to conduct a fair and impartial investigation. The decision lacked transparency and did not adequately address all relevant evidence, including the critical issue of the black tooth that the dentist cleaned, leaving a black mark in an area he could not reach due to the positioning of the lower left wisdom tooth, which was butted up against the second molar.

3. [41]

   After the lower left wisdom tooth was removed, the black mark, which was previously obscured, became clearly visible. This black discoloration is generally indicative of significant dental issues, such as decay or cavity formation. The fact that the dentist cleaned the tooth without mentioning the black area, nor recording it in his dental records, raises questions about the thoroughness and accuracy of his assessment.

4. [42]

   The plaintiff is uncertain whether the HCCC considered the black mark as part of their investigation, as neither the initial outcome letter nor the review of the decision mentioned this significant detail. Despite the plaintiff’s request for clarification on this point, the HCCC did not respond.

5. [43]

   Given the significance of this omission, it is reasonable to infer that the HCCC’s failure to address this key evidence demonstrates a lack of procedural fairness in their decision-making process. In Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 (‘SZSSJ’), the High Court held that procedural fairness is a fundamental requirement in administrative decision making where the rights or interests of an individual are affected. The Court emphasised that a failure to properly consider critical evidence relevant to the decision-making process can amount to a breach of procedural fairness. In the present case, the HCCC’s omission to address the critical evidence concerning the black tooth, which the dentist cleaned without noting or recording, parallels the procedural deficiencies identified in SZSSJ. The omission of this significant diagnostic detail from both the initial decision and the review letter undermines the transparency and fairness of the investigation, thereby justifying judicial scrutiny and reassessment.

Judicial review ground 3 – failure to consider relevant evidence

1. [44]

   This ground of judicial review asserts that the HCCC did not properly evaluate key evidence, including the timeline of symptoms, the nature of the dental issues, and the impact of the failure to diagnose the fractured tooth in a timely manner.

2. [45]

   The HCCC did not adequately consider the evidence the plaintiff presented regarding the black tooth, which the dentist cleaned without recording or notifying the plaintiff of its significance. The black area that remained (where the tooth was butted against the second molar and could not be cleaned) was later revealed to be a significant cavity, ultimately resulting in the extraction of the tooth.

3. [46]

   Despite the critical nature of this evidence, in demonstrating a clear diagnostic oversight, neither the initial outcome letter from the HCCC nor the review of the decision made any mention of the black tooth or its significance. This omission is particularly concerning given that the plaintiff raised this issue and requested clarification, but the HCCC did not respond.

4. [47]

   This failure to assess crucial diagnostic indicators directly impacted the accuracy and completeness of the professional conduct assessment, leading to an erroneous and biased decision. By neglecting to address or even acknowledge this central piece of evidence, the HCCC’s decision-making process lacked the necessary rigor and impartiality, thereby compromising the fairness of the review.

5. [48]

   Both parties referred to the principle established in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 (“Dranichniko”’) that a decision-maker fails to discharge their duty if they do not address or consider a significant and substantial argument that is central to the case. In this context, the High Court emphasised that a failure to engage with crucial evidence or material arguments leads to a decision being legally flawed.

6. [49]

   The plaintiff further submitted that the HCCC’s failure to address the key evidence of the black tooth (despite its diagnostic significance and my specific request for clarification) demonstrates a similar legal error. By omitting this crucial aspect from both the initial decision and the review, the HCCC failed to fulfill its duty to adequately consider relevant evidence, thereby compromising the fairness and accuracy of the professional conduct assessment.

7. [50]

   In oral submissions, the plaintiff says that his request for review of the HCCC’s decision was focused on T38 because, unlike the other teeth that he believes the dentist negligently dealt with, he had taken photographs depicting the black that been cleaned off.

8. [51]

   By reference to the HCCC’s undated assessment brief (CB 90-92), the plaintiff was concerned that the additional material that he provided to the HCCC, including photographs of tooth T38, were not provided to the Dental Council. The forwarding email (CB 89) from the HCCC to the Dental Council seeking to consult under s 12 of the HCC Act was dated as having been sent on 25 July 2024, prior to the initial decision made by the HCCC on 13 August 2024.

9. [52]

   As counsel for the HCCC explained, the materials that the plaintiff included in his original complaint to the HCCC (which included emails to DentalXX containing photographs of the relevant teeth, CB 41-53) were provided to the Dental Council. This material formed part of the HCCC’s assessment brief (CB 90-02) and was provided to the Dental Council for the purposes of its assessment before the HCCC’s first decision was made (noting ultimately, that the HCCC made the decision in line with the Dental Council’s recommendations). However, the Dental Council was not consulted again when the review decision was made (the review decision being a review of the HCCC decision).

Judicial review ground 5 – failure to meet statutory obligations

1. [53]

   This ground of judicial review asserts that the HCCC did not comply with its statutory duties under the HCC Act by inadequately assessing the complaint and failing to ensure public confidence in the healthcare complaints resolution process

2. [54]

   S 28(8)(b) Health Care Complaints Act 1993 reads:

3. [55]

   The HCCC did not fulfill its obligations under the HCC Act, which mandates thorough and impartial investigation of healthcare complaints. By failing to adequately consider the key evidence of the black tooth, the HCCC has compromised public confidence in the healthcare complaint resolution process.

4. [56]

   The principle established in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 highlights that administrative decisions involving jurisdictional errors are not protected from judicial scrutiny, even where a privative clause exists. The High Court held that failure to properly consider key evidence or conduct a thorough and impartial investigation constitutes a jurisdictional error, rendering the decision susceptible to judicial review. In the context of the HCCC’s decision, the failure to adequately address the critical evidence regarding the black tooth may amount to such an error, thereby justifying judicial intervention.

5. [57]

   During the hearing, the plaintiff provided photographs of his teeth T28 and T38 in his complaint provided to the HCCC, but he says that those photographs were not given to the Dental Council such that it could not properly evaluate his complaint. He submitted that the HCCC did not refer to these photographs and of the black teeth in its review and decision letter nor was it communicated to the Dental Council, in breach of s 28(8)(b) of the HCC Act and the obligation to evaluate complaints and give reasons as to why they did not pursue the complaint and reprimand the dentist.

6. [58]

   The plaintiff then accepted counsel for the HCCC’s explanation that it was not obliged to release the documents that the plaintiff requested, being the assessment brief, because of the protection afforded by s 99A(2) of the HCC Act. However, as mentioned earlier in this judgment, the HCCC did release those documents, rather than taking the legal point, in an effort to put the plaintiff’s mind at ease.

HCCC’s submissions – judicial review grounds 1, 3 and 5

1. [59]

   Two preliminary matters should be noted. First, as the operative decision is the review decision, the plaintiff must establish jurisdictional error in the review decision.

2. [60]

   The second is that, in considering the extent of the HCCC’s function, it was expressly not granted the “power to determine or recommend general standards of clinical practice” (s 92, HCC Act).

3. [61]

   The plaintiff’s judicial review grounds 1, 3 and 5 traverse the same ground, which is an alleged failure by the Commission to take into account “black discolouration” on T38 said to have been present at the date of consultation, which was not noted by the dentist, and which is said to be “generally indicative of significant dental issues”. Ground 1 describes this as a denial of procedural fairness; ground 3 describes it as an error to consider key evidence; and ground 5 as a breach of statutory obligations.

4. [62]

   It is accepted that in certain circumstances, a failure to take into account material can amount to a denial of natural justice, or amount to a constructive failure to exercise jurisdiction. Referring to Dranichnikov, the HCCC proceeds on the basis that the plaintiff contends that the HCCC constructively failed to exercise jurisdiction by failing to take into account “a substantial, clearly articulated argument relying upon established facts” (per Gummow and Callinan JJ at [23]-[25]).

5. [63]

   However, the failure to take material into consideration only amounts to jurisdictional error in very confined circumstances. In Hossain v Minister for Immigration and Border Protection [2018] HCA 34 (Kiefel CJ, Gageler J and Keane J) (‘Hossain’), jurisdictional error was defined as (at [24]):

6. [64]

   Further, in Dranichnikov, Kirby J observed at [88] (cited with approval by the Court of Appeal in Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2023] NSWCA 215 at [48] (‘Ceerose’)):

7. [65]

   Finally, and with respect to the contention that it was a breach of statutory obligations (and noting that there is no identification of the section(s) said to have been breached), the High Court observed in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [4] (‘LPDT’) (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) that:

8. [66]

   It is not correct to say that the matter was not taken into account. The Dental Council’s consideration of the conduct proceeded on the basis that the dentist might have failed to conduct a comprehensive assessment, and specifically might have failed to diagnose T38 as suffering from decay. That consideration was adopted by the HCCC, which is a reasonable course noting that the issue is one of technical proficiency and the Council is best placed to assess that. As the review decision noted:

9. [67]

   Second, the matters raised by the plaintiff are essentially speculative (Hastwell). There was no material before the HCCC as to what the state of T38 was as at the date of consultation, whether the “discolouration” was visible, or what conclusions were available if it was present. The plaintiff’s own contentions refer to “the black mark - previously obscured” becoming clearly visible following T38’s extraction. While there is no doubt that the plaintiff raised the issue of discolouration, that was not an issue based on “established facts”.

10. [68]

    Third, it was not a “substantial” argument. As the Court of Appeal observed in Ceerose at [46], that formulation in Dranichnikov “was used to identify a failure on the part of the Tribunal to address the central claim it was required to determine”.

11. [69]

    A slightly different way of putting it is that to the extent that the Commission failed to consider the discolouration (or more accurately, the possibility that discolouration was present which the dentist did not adequately consider), that was not material. This is because the determination proceeded on the basis that the dentist may well have failed to carry out a “comprehensive examination”. An error is only jurisdictional when “there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred” (LPDT).

12. [70]

    Counsel for the HCCC noted the material that was provided to the Dental Council when the first decision (not the HCCC’s review decision) was made. Counsel for the HCCC then noted that the plaintiff had not identified which material was new and had not been provided to the Dental Council.

13. [71]

    Counsel for the HCCC also noted that in the Dental Council’s agreed outcomes from its 8 August 2024 consultation (CB 94 and Ex B), it rejects the dentist’s assertion that tooth T38’s condition at the time of extraction should not have changed dramatically in three months. It was for this reason that the Dental Council recommended that the dentist be given comments, a significant outcome for a newly practising dentist, made where some shortcoming had been identified.

14. [72]

    Counsel for the HCCC submitted that the plaintiff’s complaint about the dentist was disciplinary in nature, and that the Dental Council, as the peer authority for dentists, was in the best position to determine how far below standard, a dentist’s conduct falls.

15. [73]

    Counsel for the HCCC then submitted that in the Commission’s review decision, it was clear that the Commission dealt with the issue of the dentist’s treatment of T38.

16. [74]

    The plaintiff’s judicial review grounds 1, 3 and 5 traverse the same ground. The core complaint is failure by the HCCC to take into account the “black discolouration” on T38 said to have been present at the date of consultation, which was not noted by the dentist of the plaintiff’s complaint, and which is said to be “generally indicative of significant dental issues.” Judicial ground 1 describes this as a denial of procedural fairness; judicial ground 3 describes it as an error to consider key evidence; and judicial ground 5 describes it as a breach of statutory obligations.

17. [75]

    It is my view that the HCCC’s review addressed the plaintiff’s concerns in relation to T38. At . point 3 of its decision it stated:

18. [76]

    While the plaintiff referred to T28, the central cause of his concern was T38. The HCCC review panel rejected the dentist’s assertion that T38 “did not look like that”, recognising that there was an issue with T38. The panel adopted the peer review, that of the Dental Council, which rejected the dentist’s opinion as to the state of T38, but as the dentist was newly graduated, it considered the verity of the dentist’s opinion as to the state and treatment of T38 warranted counselling but nothing further. In these circumstances there was no denial of procedural fairness, as the review panel did consider the key evidence and did not breach its statutory obligations. Judicial grounds 3 and 5 fail.

Judicial review ground 4 – neglect of public safety concerns

1. [77]

   The HCCC failed to recognise the broader implications of the dentist’s diagnostic oversight, particularly the risk to public health if similar failures occur with other patients.

2. [78]

   The decision to only advise the dentist to be more thorough does not adequately address the potential harm to other patients, reflecting a failure to uphold healthcare standards.

3. [79]

   This omission breaches the HCCC’s statutory duty to protect public health and safety. The principle that healthcare regulators have a duty to protect public health and safety is reinforced by the reasoning in R v Department of Health; Ex parte Source Informatics Ltd [2000] 1 All ER 786, where the Court emphasised that the handling of confidential medical information must be conducted with proper regard to legal obligations. In the context of healthcare complaints, this principle extends to ensuring that investigative processes adequately address potential public health risks. The HCCC’s failure to fully address the implications of the dentist's diagnostic oversight, particularly regarding the black tooth that was ultimately found to be significantly decayed, demonstrates a lack of thoroughness in assessing the potential risk to other patients. By merely advising the dentist to be more thorough, rather than addressing the underlying public safety concerns, the HCCC did not adequately fulfill its statutory duty to protect public health and safety.

4. [80]

   As identified in Hastwell, the evaluative judgment reposed in the HCCC to discontinue a complaint is a broad one. The determination to discontinue with comments was within the bounds of reasonableness. There is no basis on which to assume that the dentist would present a risk to the public health or that any such failures (if indeed they occurred) would happen again.

5. [81]

   While it is not doubted that the plaintiff is genuinely aggrieved by the determination, “[e]ven emphatic disagreement with the … reasoning is not sufficient” to make out illogicality or unreasonableness (BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [51(c)]).

6. [82]

   The dentist was a new graduate who had only been in practice for a short while. In my view that is a consideration the Dental Council and the HCCC were obliged to take into account. The dental council did not accept the dentist’s account on examination and evaluation of T38 was correct. Some of the allegations made by the plaintiff were not made out. In my view, the decision of the HCCC to discontinue the action with comments being given to the dentist was reasonable. The HCCC concluded that it did not consider that the dentist would present a risk to public health. It is a matter for the Dental Council to evaluate what is reasonable in the circumstances. Judicial ground 4 fails.

Additional judicial review ground 7 – s 28(8) of the HCC Act

1. [83]

   During the hearing, the plaintiff raised a new ground of judicial review being that the decision of the Dental Council did not contain adequate reasons as required by s 28(8)(b) of the HCC Act.

2. [84]

   In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43;(2013) 252 CLR 480 (‘Wingfoot’), the High Court considered the obligation on a Medical Panel. At [55] the High Court stated:

3. [85]

   The plaintiff submitted that while the HCCC does refer to some photos, it is unclear which photos and which teeth it is referring to in its decision. Rather, the plaintiff asserts that the HCCC confused itself with broad references to photos and conditions of teeth and in so doing did not provide reasons for the decision in accordance with s 28(8)(b) of the HCC Act.

4. [86]

   Ultimately, the plaintiff submitted that . point 4 specifically of the HCCC’s review decision dated 4 October 2024, which stated that the photos of the extracted tooth submitted by the plaintiff “did not accurately reflect its condition over the previous three months” is a reference to the upper left tooth that was removed and not tooth T38 because the black was cleaned off by the dentist. Further, the plaintiff submitted that given the public interest in this matter, the dentist missed the condition of some of the plaintiff’s teeth and those “conditions could have significant consequences”, the review decision of the HCCC should be quashed and remitted back to be determined correctly, with proper reasons.

5. [87]

   Counsel for the HCCC noted that the plaintiff’s submissions in relation to s 28(8) of the HCC Act that the plaintiff spent most of his time dealing with, only appeared for the first time in the plaintiff’s reply submissions. As counsel explained, the plaintiff’s assertions that s 28(8) was breached because the HCCC did not provide adequate reasons in its review decision, has not been addressed in the HCCC’s written submissions because inadequate reasons does not equate to jurisdictional error, and whether construction of the statute means that the reasons were a precondition of the exercise of power.

6. [88]

   I have already addressed this issue in the earlier grounds of judicial review. In my view, the HCCC review decision have given adequate reasons. It squarely addressed the plaintiff’s complaints as to the dentist’s consultation and advice to him and adopted what the Dental Council, being the peer review panel, decided, in circumstances where the newly graduated dentist accepted these shortcomings, that the dentist needed to be counselled. The HCCC review panel in its statement of reasons explained its actual path of reasoning in sufficient detail to enable this Court to see whether the opinion does or does not involve any error of law. This decision accorded with Wingfoot. This ground of judicial review is dismissed.

The result

1. [89]

   The plaintiff’s application for judicial review fails and is dismissed.

Costs

1. [90]

   Costs are discretionary. Costs normally follow the event.

2. [91]

   At the conclusion of the hearing, the plaintiff submitted that even if he lost, he should not have to pay costs because it was brought as a matter of public interest.

3. [92]

   Counsel for the HCCC submitted that it was not a matter of public interest (T53 [45]).

4. [93]

   It is my view that the plaintiff’s complaints to the HCCC in relation to his tooth, T38, and the manner in which it was dealt with by the HCCC on review do not amount to a matter of public interest. Hence, there is no reason to depart from the normal rule. The plaintiff pay the defendant’s costs.

Orders

1. [94]

   The Court orders that:

   1. (1)

      The plaintiff’s application for judicial review is dismissed.

   2. (2)

      The plaintiff’s summons filed 23 November 2023 is dismissed.

   3. (3)

      The plaintiff is to pay the defendant’s costs on an ordinary basis.