Kirby v Dental Council of New South Wales

1. [1]

   This appeal is brought by Dr David William Kirby, a dental practitioner, under clause 29(2) of Schedule 5 to the Civil and Administrative Tribunal Act 2013 (NSW). The appeal relates to a “professional decision” (as defined by clause 29(1)) made by the Civil and Administrative Tribunal of New South Wales for the purposes of the Health Practitioner Regulation National Law (NSW). In the discussion that follows, I shall refer to the first-mentioned Act as “the NCAT Act”, to the Civil and Administrative Tribunal of New South Wales as “NCAT” and to the Health Practitioner Regulation National Law (NSW) as “the National Law”.

The NCAT proceedings

1. [2]

   The “professional decision” of NCAT to which the present appeal relates was made on 28 April 2017 in NCAT’s Occupational Division. [1] The proceeding before NCAT encompassed appeals brought by Dr Kirby in respect of two decisions made by delegates of the Dental Council of New South Wales (the “Dental Council”). The first was a decision of 18 December 2015 (the “December 2015 decision”) suspending Dr Kirby from practice. That decision was made under s 150 of the National Law. The second was a decision of 12 February 2016 (the “February 2016 decision”) upholding Dr Kirby’s application under s 150A for a review of the suspension, “lifting” the suspension and instead imposing conditions on Dr Kirby’s registration. NCAT dismissed both appeals and ordered that Dr Kirby pay the Dental Council’s costs of the NCAT proceedings.

The present appeal

1. [3]

   In this present appeal to the Supreme Court, Dr Kirby contends that both orders made by NCAT were wrongly made and that NCAT should have allowed the appeals against the decisions of the Dental Council delegates and set aside those decisions. It is not in dispute that the scope of the present appeal to the Supreme Court is confined by clause 29(4)(b) of Schedule 5 to the NACT Act which allows appeal as of right “on any question of law” and appeal, with the leave of the Supreme Court, “on any other grounds” [2] . Dr Kirby has not sought leave, with the result that his appeal against NCAT’s substantive decision can succeed, if at all, only “on any question of law”.

2. [4]

   In relation to that substantive decision – by which I mean the decision dismissing his appeals challenging the December 2015 decision and the February 2016 decision – Dr Kirby’s main contention is that NCAT should have found that those decisions were infected by lack of procedural fairness and failure to observe principles of natural justice. Those shortcomings, if established, would represent good grounds for setting aside the decisions of the Dental Council. But that is not the question before this court. The court’s task is to decide whether the subsequent decision of NCAT concerning the decisions of the Dental Council is susceptible to challenge “on any question of law”. Lack of procedural fairness within the Dental Council could ground such a challenge only if NCAT, in dealing with the appeal from the Dental Council, had failed to deal adequately with that shortcoming so that NCAT’s own decision was in need of correction by the court in exercise of its jurisdiction to deal with questions of law.

Provisions of the National Law

1. [5]

   For ease of reference, s 150 and s 150A of the National Law are set out in a footnote to these reasons. [3] Section 150 is the first provision in Subdivision 7 (headed “Powers of a Council for protection of public [NSW]”) of Division 3 (headed “Complaints [NSW]”) of Part 8 (headed “Health, performance and conduct”). Section 150 itself is headed “Suspension or conditions of registration to protect public [NSW]”. Section 150(1) states that a “Council” (an expression that includes the Dental Council) “must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest” take one of two courses of action in relation to a registered health practitioner. The available courses are the making of an order suspending the practitioner’s registration (s 150(1)(a)) and the making of an order imposing on the practitioner's registration such conditions relating to the practitioner's practice as the Council considers appropriate (s 150(1)(b)).

2. [6]

   Section 150(1) assumes, clearly enough, that a Council will perform an evaluative task in relation to circumstances concerning a practitioner that come to its notice. The evaluation must focus entirely on what is required to protect the health and safety of relevant persons and on the requirements of the public interest. Considerations of punishment are foreign to the assessment.

3. [7]

   The fact that s 150 appears in a context concerned with complaints and that a Council is designated as a recipient of complaints (s 144C) indicates that a complaint may be the means by which particular circumstances come to a Council’s notice. [4]

4. [8]

   Under s 150(2), a suspension imposed under s 150(1) continues until any initiating complaint has been disposed of or the relevant Council terminates the suspension.

5. [9]

   Section 150A allows a practitioner to apply to a Council for a review of a decision of the Council under s 150. 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.

6. [10]

   Section 41G deals with a matter of procedure. It provides that a Council “may appoint 2 or more members of the Council to exercise the functions of the Council under Division 3 of Part 8”. As s 150(7) expressly recognises, delegation is thus permitted in relation to the s 150 and s 150A functions.

7. [11]

   The last (but by no means least important) provision of the National Law meriting mention at this stage is s 3A which, according to its heading, sets out an “objective and guiding principle”:

The circumstances of the case

1. [12]

   In July 2015, Dr Andrew Green, a dentist, was informed by a long-standing patient that she had been treated by Dr Kirby for skin cancer with a product known as “Cansema”. Being unsure how he should proceed, Dr Green contacted Dr William O’Reilly [5] who was then and at other material times the Chair of the Dental Council. Dr O’Reilly said that Dr Green was bound to report the matter. On 6 August 2015, Dr Green completed a “complaint” form and lodged it with the Health Care Complaints Commission (the “HCCC”). In that form, he outlined what he had been told by the 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.

2. [13]

   On or about 18 August 2015, the HCCC forwarded the complaint to Dr Kirby and requested both his response and a copy of his medical records relating to the particular patient. Dr Kirby responded promptly, saying that he denied the allegations made against him and that the person concerned had never been a patient of his dental practice.

3. [14]

   Subsequent consultation between the HCCC and the Dental Council resulted in a decision of the HCCC to refer the matter to the Dental Council for investigation. On 21 October 2015, the Dental Council wrote to Dr Kirby saying that the complaint had been referred to it “for management”. The letter said 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’s response on 4 November 2015 was 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.

4. [15]

   On 6 November 2015, the Complaints and Notifications Committee of the Council considered a “brief” [6] referring to “possible inspection at Dr Kirby’s practice to examine his patient records to check if these files exist and to inspect if there are any alleged ‘Cansema’ drugs on the premises”. The committee adopted that recommendation at its meeting on 6 November 2015, referring to:

5. [16]

   The members of the committee who participated in that decision were Dr Burges, Dr Burns, Mr McGlynn, Dr Pearman and Mr Owen.

6. [17]

   Also on 6 November 2015, there was a meeting of the Dental Council itself. It resolved to authorise an inspection of Dr Kirby’s practice to retrieve records concerning the particular patient, to inspect the records of the practice to ascertain whether any patients were receiving “Cansema” treatment, to determine whether there was any evidence to support the complaint and to assess Dr Kirby’s compliance with the Dental Board of Australia’s guidelines on infection control. The meeting of the Dental Council was attended by the full complement of twelve members then in office: Dr O’Reilly, Dr Burns, Dr Biscoe, Dr Burges, Dr Fryer, Dr Lobo, Dr Pearman, Dr Wallace, Mr McGlynn, Ms MacDougal, Mr Miceli and Mr Owen.

7. [18]

   On 27 November 2015, an inspection of Dr Kirby’s practice was undertaken pursuant to the Dental Council’s resolution. The inspection was made by Dr Brendan White.

8. [19]

   On 2 December 2015, a briefing or consultation paper was prepared for the twofold purpose of informing Dental Council members of relevant matters flowing from the making of the complaint (including the result of Dr White’s inspection) and ascertaining their views as to the appropriate way forward. The first part of the paper conveyed information as follows:

9. [20]

   In the second part of the briefing or consultation paper, members were asked to indicate which, if any, of several “options” was preferred. The “options” were:

10. [21]

    At the time of considering these options, some, at least, of the members of the Dental Council had available to them emailed comments of Dr Burges (a member of the Council) as follows:

11. [22]

    By 3 December 2015, eight of the twelve members of the Council had replied. All eight indicated choice of “Option A”. They were Dr O'Reilly, Dr Burges, Mr Owen, Dr Burns, Dr Fryer, Dr Biscoe, Dr Wallace and Ms MacDougal. The Council then informed Dr Kirby that it had “determined to hold proceedings pursuant to section 150” and that the “proceedings” would “take place” at 9am on 11 December 2015 at the Council’s office.

12. [23]

    The Dental Council also informed Dr Kirby that Dr O’Reilly, Dr Fryer and Ms Bell were “the Council’s delegates who will conduct the proceedings”. The power of delegation under s 41G of the National Law was exercised on 3 December 2015 to appoint two or more members to perform the s 150 function in the particular case. The delegation was not made directly or immediately by a resolution of the Dental Council. Rather, the Dental Council’s Executive Officer, Ms Bains, made the delegation in exercise of authority previously conferred on her by a standing delegation (“delegation s 150.02”) made under the general delegation provision in s 41J.

13. [24]

    The three designated delegates met with Dr Kirby and his support person (a barrister, Mr Walsh) on 11 December 2015. However, following the unavailability of Ms Bell, a new s 41G delegation was made to Dr O’Reilly, Dr Fryer and Ms MacDougal on 14 December 2015 [7] and they met with Dr Kirby and his support person (again Mr Walsh) on 15 December 2015. It was that new group of delegates that dealt with the matter and eventually made the decisions challenged by Dr Kirby in his appeal to NCAT.

14. [25]

    The reasons given by the delegates for the December 2015 decision included the following:

15. [26]

    The December 2015 decision was described by the delegates themselves as “an interim measure to protect the health and safety of the public”. The suspension of Dr Kirby’s registration was intended, clearly enough, to operate until varied or until the complaint had been determined. Dr Kirby applied promptly for a review pursuant to s 150A. The delegates conducted the review on 12 February 2016. Again, Dr Kirby was present with his support person. The delegates decided that Dr Kirby’s suspension should be “lifted” [8] and that conditions should be placed on his registration as a dental practitioner effective from 17 February 2016. The conditions 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.

16. [27]

    On 24 March 2016, the Council published written reasons for the delegates’ decision of 12 February 2016. Those reasons relevantly stated:

Dr Kirby’s case before NCAT

1. [28]

   Dr Kirby appealed to NCAT against both the December 2015 decision and the February 2016 decision. The grounds of appeal were:

2. [29]

   Dr Kirby’s complaint reflected in Ground 1 was, in summary, that all of Dr O’Reilly, Dr Fryer and Ms MacDougal had been active in events within the Dental Council preceding the hearings in December 2015 and February 2016 at which they made decisions affecting Dr Kirby and that their earlier activities had caused them to be disqualified, on natural justice grounds, from playing the decision-making roles they eventually undertook.

The NCAT decision

1. [30]

   Bearing in mind what was said by the High Court in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2], NCAT dealt first with the allegation of denial of procedural fairness. It accepted (at [58]) that, as a general proposition, “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.”

2. [31]

   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 (2000) 205 CLR 337; [2000] HCA 63 (“Ebner”) at [6] in these terms [10] :

3. [32]

   NCAT then referred to competing submissions as to whether the National Law modified or required any departure from the general law principles and concluded, having regard to the statutory provisions, that a fair-minded observer would expect that the Dental 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.

4. [33]

   An important consideration mentioned by NCAT is that the role of a Council in undertaking a s 150 inquiry is to protect the public. In the case before it, where serious allegations had been made which, if true, could lead to suspension or cancellation of the practitioner’s registration but the evidence was incomplete and further investigation was needed, the issue was identified not as whether the allegations were proved, but whether the evidence established a risk to the public requiring imposition of a condition for protection of the public.

5. [34]

   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. It gave two main reasons: first, that the Dental Council, in authorising 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 to protect the public; and, second, 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

6. [35]

   In reaching that decision, NCAT dealt with what it perceived to be some inconsistency between the decisions of the Court of Appeal in Carver v Law Society of New South Wales (1998) 43 NSWLR 71 (“Carver”) and McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 (“McGovern”). It was said, in effect, that McGovern had superseded Carver. It will be necessary to return to this matter.

7. [36]

   Having dealt with the apprehended bias issue, NCAT proceeded to consider the other grounds of appeal. For present purposes, it is necessary to refer to only one aspect of those other grounds, being the matter of the conditions imposed on Dr Kirby’s registration by the February 2016 decision. The conditions restricted the procedures Dr Kirby was allowed to perform, precluded prescription of most drugs and required that he not work in sole practice.

8. [37]

   Dr Kirby submitted before NCAT that the conditions could not be and were not in any way related to the issue of infection control or Cansema. He described the conditions as “completely misconceived”, and going well beyond any reasonable perception of the need to address any risk to public health and safety, particularly as the Council had recognised there was no issue about his competence as a dentist.

9. [38]

   Dr Kirby also submitted that the overall effect of the conditions was to limit his dental practice to minor procedures only, with no ability to prescribe antibiotics or carry out implant work so that he was unable to maintain or build his practice. There was, he said, no logical nexus between the matters relied upon by the Council and the bulk of the conditions imposed.

10. [39]

    The Dental Council submitted before NCAT that the conditions were properly imposed. It said that, while Dr Kirby complained that the conditions prevented him from doing implant work, he had not told the delegates on 12 February 2016 that that was part of his practice. The appropriateness of the conditions was said by the Dental Council to be borne out by several matters, namely, evidence establishing 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 activities; evidence that, over a number of years, Dr Kirby had been providing care or healthcare services to members of a “Cansema group” (some of whom may have been dental patients) in his dental surgery, thus suggesting a failure to maintain professional boundaries; and evidence that Dr Kirby had been prescribing medications which were not “for dental treatment only”, and did not appreciate that there may have been a danger associated with his conduct. 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.

11. [40]

    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 held “grave concerns about Dr Kirby’s insight and practices”. NCAT went to the extent of saying that, if the Council had submitted that, in light of Dr Kirby’s cross-examination, it was appropriate to reimpose suspension of Dr Kirby’s registration, it would have “given very serious consideration to taking this course”. This was because of the “unsatisfactory evidence given by Dr Kirby during the course of his cross-examination”. The overall conclusion (at [154]) was:

Grounds of appeal

1. [41]

   By his further amended summons filed in the course of the hearing before me, Dr Kirby alleges error of law in the decision of NCAT on the following grounds:

2. [42]

   The grounds of appeal go, as they obviously must, to alleged defects in decision-making by NCAT. But the real target is decision-making by the Dental Council delegates who made the December 2015 decision and the February 2016 decision. The net result of those decisions, in an ongoing sense, is conditions affecting Dr Kirby’s registration and restricting his professional activities. The conditions imposed in February 2016 remain in force. But the suspension from practice resulting from the December 2015 decision was terminated by the February 2016 decision, which determined Dr Kirby’s s 150A application for review of the suspension. At that point, s 150G caused Dr Kirby’s rights and privileges as a registered health practitioner to be revived, subject to any other action taken by the Council. The suspension was thus in force for roughly two months some three years ago and is, in every practical sense, of historical relevance only. Dr Kirby nevertheless sees fit to maintain that NCAT fell into error of law in declining to set aside not only the February 2016 decision which is the source of present and continuing constraint upon him but also the December 2015 decision which is not.

Ground 1 – Dr Kirby’s submissions

1. [43]

   The claim of denial of natural justice pursued by Dr Kirby in NCAT and, on a broader front, in this court focuses wholly on the circumstance that each of Dr O’Reilly, Dr Fryer and Ms MacDougal, the delegates who made decisions under s 150 and s 150A affecting him, had participated in aspects of Dental Council processes that preceded the delegates’ deliberations and decisions. Dr O’Reilly had received the initial approach from Dr Green and had advised him to lodge the complaint from which later actions flowed. At the meeting of the Dental Council held on 6 November 2015, each of Dr O’Reilly, Dr Fryer and Ms MacDougal, as a member of the council, was party to the decision that there should be an inspection of Dr Kirby’s practice. Each subsequently received the briefing or consultation paper and indicated a choice of “Option A” when members of the Dental Council were asked for their opinions on the appropriate way of proceeding.

2. [44]

   Before NCAT, Dr Kirby maintained that each of Dr O’Reilly, Dr Fryer and Ms MacDougal had, by reason of his or her earlier conduct, created, at the very least, an appearance of prejudgment engendering a reasonable apprehension of bias. In the present appeal, the submission was expanded to include the proposition that each had, at the earlier stage, played a role akin to that of a proponent, accuser or prosecutor and thereby adopted a position involving conflict of interest productive of a reasonable apprehension of bias.

3. [45]

   The distinction between these two species of apprehended bias was explained by Spigelman CJ in McGovern (at [25]–[27]):

4. [46]

   Spigelman CJ referred, in this connection, to Old St Boniface Residents Association v Winnipeg (City) [1990] 3 SCR 1170 and to the distinction there drawn between “the case of partiality by reason of pre-judgment on the one hand and by reason of personal interest on the other”: at 1196 (Sopinka J). In a case of personal interest, the Canadian court said, the decision maker is disqualified if the interest “is so related to the exercise of public duty that a reasonably well-informed person would conclude that the interest might influence the exercise of that duty”. In Australia, the “double might” test laid down in Ebner would see “might” substituted for “would” in this passage.

5. [47]

   It was submitted on behalf of Dr Kirby that NCAT had failed to recognise the difference between bias arising from pre-judgment and bias arising from perceived conflict of interest through prior involvement; and that application of the latter test would have resulted in a conclusion favourable to Dr Kirby. Reference was made to the following passage in the judgment of Spigelman CJ in McGovern at [40]–[41]:

6. [48]

   Counsel for Dr Kirby reinforced this submission by referring to Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 (“Isbester”), a case concerning a decision of a committee of a local government council about the destruction of a dog. One member of the committee (Ms Hughes) was a council employee who occupied the position of Co-ordinator of Local Laws and was responsible for the regulation of domestic animals under relevant legislation. Ms Hughes had, at an earlier time, initiated and conducted a prosecution of the dog’s owner in a magistrates’ court, which resulted in conviction. She had had what was referred to in the High Court as “substantial involvement” in both the prosecution of the charges concerning the dog and the subsequent decision of the committee as to its fate. Kiefel, Bell, Keane and Nettle JJ referred to the distinction drawn by Spigelman CJ in McGovern and said at [33]:

7. [49]

   Reliance was also placed on the following passage in the joint judgment in Isbester (at [46]):

8. [50]

   Counsel submitted that NCAT should have applied this test and found that all of Dr O’Reilly, Dr Fryer and Ms MacDougal had had such active involvement in the processes leading to the decisions affecting Dr Kirby as to disqualify them from participation in the making of those decisions. It was submitted, in this context, that McGovern had not superseded Carver and that observations of Powell JA in Carver warranted a conclusion opposite to that reached by NCAT.

9. [51]

   Reference was also made to the principle that a decision maker should recognise and disclose the existence of factors disqualifying him or her from participation. In Gascor v Elliott [1997] 1 VR 332, Ormiston JA said (at 356) that every judicial officer, arbitrator and tribunal member “should feel obliged, if he does not decide to withdraw of his own accord, to bring to the attention of the parties as soon as practicable any fact or circumstance which could lead to disqualification for bias. . .”. In this respect too, Dr O’Reilly, Dr Fryer and Ms MacDougal are said to have failed to act as they should have.

Ground 1 – the Dental Council’s submissions

1. [52]

   The Dental Council makes two broad submissions: first, that any defect of apprehended bias affecting the Dental Council’s decisions was “cured” by the subsequent NCAT decision which was an appeal de novo; and, second, that there was, in any event, no such defect.

2. [53]

   As to the first aspect, it was pointed out by counsel for the Dental Council that the appeal to NCAT was brought under s 159 and s 159B of the National Law and that s 159(3), as in force at the relevant time, provided:

3. [54]

   Noting that NCAT is thus to undertake “reconsideration of the matter” by reference to the original evidence and any additional or substituted evidence it decides to receive (and that NCAT in fact had before it more than 1,200 pages of evidence tendered by Dr Kirby), counsel for the Dental Council submitted that the decision of NCAT itself should be taken to have cured any deficiency of natural justice attending the Dental Council’s decisions. Reference was made to the following passage in the judgment of Mason J in Twist v Randwick Municipal Council (1976) 136 CLR 106; [1976] HCA 58 at CLR 116, a case concerning the audi alteram partem rule:

4. [55]

   In reaching that conclusion, Mason J noted some conflict in earlier decided cases and gave two reasons for his view:

5. [56]

   Counsel also referred to Hill v Green (1999) 48 NSWLR 161; [1999] NSWCA 477 and, in particular, to the judgment of Fitzgerald JA who, after a comprehensive review of authority, said (at [164]):

6. [57]

   Counsel for the Dental Council then proceeded to a consideration of the nature and incidents of the appeal to NCAT upon which Dr Kirby chose to embark. The Dental Council submitted that, under s 159C of the National Law [11] , it was open to NCAT to confirm or set aside the Council’s decision or to substitute some other decision that the Council could have made. The appeal was a merits appeal and because NCAT proceeded to determine the matter afresh by reference to all the evidence that the Dental Council had considered, Dr Kirby obtained, through the appeal, the result that he would have obtained if NCAT had decided that the claim of apprehended bias in relation to the Dental Council’s proceedings had been made out. Any such apprehended bias was accordingly of no consequence in light of the NCAT decision.

7. [58]

   It was also submitted on behalf of the Dental Council that the complaint of apprehended bias affecting the delegates’ decisions was, in any event, misconceived. In relation to the contention that the test of perceived conflict of interest through prior involvement had been ignored, attention was directed to the following passage in NCAT’s reasons (at [98]):

8. [59]

   That assessment, it was submitted, was consistent with proper exercise of the Council’s functions as explained in Lindsay v NSW Medical Board [2008] NSWSC 40, a case involving analogous proceedings under earlier legislation where Hall J pointed out that there is no “charge” or accusation and no form of pleading outlining issues for determination. The proceedings are not disciplinary in any immediate or direct sense. The question is as to what, if anything, is needed for the protection of the public. In such a context, it is said, Isbester and the “prior involvement” authorities are inapplicable and it cannot be said there was, on the part of Dr O’Reilly, Dr Fryer and Ms MacDougal, what Spigelman CJ, in McGovern described as “involvement . . . [which] can be characterised, in substance, as constituting him or her a party to the proceedings”. On that basis, the observations of Powell JA in Carver should be seen as irrelevant to the present case.

9. [60]

   In relation to the aspect of the ground of appeal that NCAT failed to take into account the multiple failures of Dr O’Reilly, Dr Fryer and Ms MacDougal to disclose prior involvements in the matter when determining whether the test for apprehended bias had been made out, counsel for the Council points to the following passages in NCAT’s reasons:

   1. (1)

      At [37]: “Dr Kirby also submits that at no time during the proceedings on 15 December 2015 did the delegates or any of them inform him that they had been members of the Council on 6 November 2015 and 3 December 2015”.

   2. (2)

      At [42]: “The Tribunal also accepts that no member of Council informed Dr Kirby that they were members of the Council who made the decisions on 6 November and 3 December 2015 referred to above”.

Ground 1 – Dr Kirby’s submissions in reply

1. [61]

   On the issue of “cure” by the NCAT proceedings, counsel for Dr Kirby submitted that the principle for which the Dental Council contended cannot be accepted in the unqualified way in which it is advanced. He gave four reasons: first, doubt or reservation is expressed in some of the cases (particularly at [156] of Fitzgerald JA’s judgment in Hill v Green); second, the existence of an appellate process is, at best, a discretionary reason to decline to grant relief; third, the focus of the inquiry is on the nature of the right of appeal and the circumstances of the case as relevant to exercise of discretion; and, fourth, the authorities relied on by the Council concerned breach of the audi alteram partem rule and are therefore distinguishable.

2. [62]

   In addition, Dr Kirby challenged the proposition that the appeal to NCAT was in truth a hearing de novo. He pointed to s 159C of the National Law (see footnote 11 above) which, he said, makes it clear that NCAT does not have, on appeal, powers corresponding in all respects with those of the original decision maker. Those powers, as conferred by s 150, include a power to impose conditions, something that is absent from s 159C, with the result that, if NCAT thought that the matter before it could be dealt with appropriately by terminating a suspension and substituting conditions, it could not achieve that result.

3. [63]

   In relation to the issue of “accusers”, counsel for Dr Kirby accepts that Dr O’Reilly, Dr Fryer and Ms MacDougal did not technically play any such role but says that they were, in light of their earlier activities, the “moving force” in a way that caused them to have a disqualifying “interest”.

Ground 1 – assessment and conclusion

1. [64]

   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. In doing so, I accept that, although the relevant process is not, in any direct sense, disciplinary, it necessarily concerns the conduct and circumstances of a particular practitioner and, in that way, casts that practitioner in a form of defensive role.

2. [65]

   As a preliminary, I consider what NCAT perceived to be inconsistency between the decision of the Court of Appeal in Carver and its later decision in McGovern. NCAT said (at [102]):

3. [66]

   Observations of Spigelman CJ in McGovern about bias arising from perceived conflict of interest through prior involvement are set out above. McGovern concerned participation by certain local government councillors in a council decision on a development application after a person interested in the development had engaged those councillors in discussion about the merits of the proposal. Although the conclusion that the decision of the council was not affected by apprehension of bias arising from perceived conflict of interest turned largely on the role and function of elected councillors in the statutory system of local government, the course of reasoning adopted by the Chief Justice is instructive for present purposes. The two councillors, he noted, came to a conclusion in favour of the application before a final decision was made. The fact that they did so and expressed themselves in strong terms did not of itself show that they were not open to persuasion. It was perfectly legitimate for one member of a collegial body to make up his or her mind before others had done so and to seek to persuade others. Nothing in such a process constitutes a proper or reasonable basis for an apprehension of bias. It is not a manifestation of pre-judgment bias to maintain a position that has been arrived at after due consideration.

4. [67]

   Carver concerned disciplinary proceedings against a solicitor. The proceedings were instituted by the Council of the Law Society following receipt of reports by a person appointed to examine conduct of the solicitor and consideration of that conduct by a committee of the council. Both the committee and the council formally determined that the solicitor “may be” guilty of professional misconduct and that a complaint should be made to the Legal Services Tribunal. They had earlier made a formal determination that the solicitor “had been” guilty of unsatisfactory professional conduct and invited him to consent to the imposition of a reprimand (which he did not do). The tribunal, as eventually constituted, included a person who had been (but was no longer) a member of both the council itself and the relevant committee and had participated in their decisions regarding the quality of the solicitor’s conduct. The Court of Appeal held that orders of the tribunal adverse to the solicitor should be set aside. Powell JA said (at 87):

5. [68]

   A conflict of interest of the kind relevant to Dr Kirby’s submissions may arise from any of many circumstances ranging from a personal financial interest in the subject matter to the kind of interest alleged here [12] – in substance, the interest that a proponent has in what he or she proposes, being an interest born of the natural human inclination to wish to see one’s own position prevail and that invests the proponent with a form of “ownership” for the purposes of the principle that nobody should be a judge in their own cause. In Carver, the interest arose from the decision-maker’s membership of the committee and council each of which had formed and expressed concluded (and adverse) views about the quality of the solicitor’s conduct. In Isbester, the interest arose from the earlier conduct of the decision-maker, as a council enforcement officer, in prosecuting the dog owner and securing a conviction. Both those cases exhibited the kind of commitment to (or “ownership” of) a particular outcome that had existed in Dickason v Edwards (1910) 10 CLR 243; [1910] HCA 7 where it was held that a particular officer of a friendly society was disqualified from participating in a meeting of the governing body to consider disciplinary charges brought against a member where the charges had been preferred by the officer himself; and that the disqualification applied even though the constitution directed that the particular officer should chair such meetings.

6. [69]

   In both a pre-judgment case and a conflict of interest case, the central issue is the degree of “closure” of the decision-maker’s mind 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. Spigelman CJ said in McGovern that a finding of relevant conflict of interest leads to such a reasonable apprehension “almost as of course”. “Almost” must be emphasised. The court does not start from some a priori position or work according to some rebuttable presumption. Whether the issue is prejudgment or conflict of interest, the task is to consider the whole of the circumstances according to the “double might” test in Ebner based on the fair-minded lay observer. The absence of any form of presumption and the importance of the word “almost” are illustrated by the decision in Clenae v Australia and New Zealand Banking Group Ltd (2000) 205 CLR 337; [2000] HCA 63 [13] that a judge’s shareholding in a litigant company – something that undoubtedly gave rise to an interest on the part of the judge – did not satisfy the “double might” test because the shareholding was, in a comparative sense, so small that, having regard to what was at stake in the litigation, the outcome of the case could not conceivably impact the judge’s personal pocket. Although there was undoubtedly an interest, it was not an interest capable of grounding any reasonable apprehension of bias in the mind of the hypothetical fair-minded lay observer.

7. [70]

   Carver and McGovern are readily reconcilable, having regard to the facts of each and the extent to which and context in which prior opinion-forming had been undertaken and a commitment to a particular outcome had been embraced in advance. In Carver, the committee and the council had, as decision-making bodies, formed and expressed concluded views about the quality of the solicitor’s conduct and had acted on those views. In McGovern, the councillors, although they had expressed certain views, had not yet participated in the process of debate that would cause them to have fully informed and fully formulated views.

8. [71]

   As both Carver and McGovern show, issues of apprehended bias through conflict of interest (or, for that matter, through pre-judgment or on any other ground) must be approached with close attention to the nature and scope of role assigned to the decision-maker and the facts of the case. Where, as here, the issue arises in the context of administrative decision-making under statute, the legislative framework will be the principal determinant of what is required of the decision-maker. Here, the National Law vested the s 150 and s 150A functions in the Dental Council. Section 150, as has been noted, imposed a positive duty to act in one of several specified ways if satisfied that it was appropriate to do so for the protection of the health or safety of any person or persons or otherwise in the public interest. Section 150A authorised and, in certain circumstances, compelled action in the circumstances there specified. In each case, it was the Dental Council that was required or authorised to act but s 41G stated that the Council could (as it in fact did) delegate exercise of the function to two or more of its members.

9. [72]

   The s 150 and s 150A functions are framed in such a way that, whether or not a delegation is made under s 41G, resolutions of the Dental Council itself, as distinct from any committee or delegates of the Council, are essential to due performance of the functions. The Council may act in one of two ways. It may proceed to perform the relevant function itself; or it may make a s 41G delegation to two or more of its members enabling them to perform the function. In either case, collective decision-making by the Council itself is essential at some point.

10. [73]

    Decision-making by the Dental Council is dealt with by provisions in Schedule 5C of the National Law. It is there made clear that decisions of the Council are to be made through the medium of meetings of the Council’s members [14] and:

11. [74]

    The Council is thus 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. [16] Just as a company is said to be entitled to the collective wisdom of its directors [17] , so the National Law shows that the community is entitled to the collective wisdom of a Council’s members, acting together at a meeting.

12. [75]

    In this case, the Dental Council, acting as a body, made two relevant decisions: (a) to authorise an inspection of Dr Kirby’s practice; and (b) to proceed to a consideration of possible action under s 150. The decision to make a s 41G delegation to Dr O’Reilly, Dr Fryer and Ms MacDougal was not made by the Council acting as a body. Ms Carroll, as Deputy Executive Officer, made the decision under a standing delegation from the Council.

13. [76]

    In order to determine how the conduct of Dr O’Reilly, Dr Fryer and Ms MacDougal should be assessed, it is necessary to pay attention to precisely what they did before embarking on the hearings of December 2015 and February 2016. The relevant facts may be summarised as follows:

    1. (1)

       July 2015: Dr O’Reilly received information from Dr Green about what Dr Green said he had been told by a patient about the activities of Dr Kirby. 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.

    2. (2)

       6 November 2015: Dr O’Reilly, Dr Fryer and Ms MacDougal were all 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.

    3. (3)

       2 December 2015: All members of the Dental Council, including Dr O’Reilly, Dr Fryer and Ms MacDougal, received the briefing or consultation paper reporting the result of the inspection. (They also had Dr Burges’s comments set out at [21] above.)

    4. (4)

       3 December 2015: Eight members of the Council, including Dr O’Reilly, Dr Fryer and Ms MacDougal, chose “Option A” in the briefing or consultation paper, thereby expressing an opinion that there should be proceedings to “consider” action pursuant to s 150.

14. [77]

    As a result of his conversation with Dr Green, Dr O’Reilly merely took second-hand hearsay at face value and made a judgment about whether it should be ignored or taken seriously. His decision that it should be made the subject of a complaint did not involve any judgment by him as to the validity or reliability of the second-hand account he had been given. At most, he detected smoke. He certainly did not conclude that there was fire (or even that there might be); nor was it conceivable that any fair-minded observer might think that he had. The material he had was not sufficiently concrete to enable anyone to form any opinion beyond a need for further consideration.

15. [78]

    The Council’s decision of 6 November 2015 to authorise an inspection of Dr Kirby’s practice was a decision to adopt a recommendation by the Complaints and Notifications Committee (of which none of Dr O’Reilly, Dr Fryer and Ms MacDougal was a member). The recommendation was that there should be such an inspection. The course of action that the Council authorised by adopting the committee’s recommendation was purely investigative. It was concerned with the obtaining of information. The highest point that a fair-minded lay observer might have considered the thinking of any of its members might have reached on any substantive issue was a level of suspicion indicating a need for further inquiry. The recommendation of the Complaints and Notifications Committee proceeded on the basis that the untested and unverified allegations arising from Dr Green’s complaint required action calculated to produce more concrete information. Inspection of the practice was a means to that end.

16. [79]

    All members of the Council, including Dr O’Reilly, Dr Fryer and Ms MacDougal, received the briefing or consultation paper of 2 December 2015. All must be presumed to have read it and to have become aware of the results of Dr White’s inspection and of the other information in the paper. Having done so, eight members (again including Dr O’Reilly, Dr Fryer and Ms MacDougal) formed and, on 3 December 2015, notified an opinion that formal steps “to consider taking action pursuant to s 150” were warranted – steps which, as the reference to the section showed, were concerned with whether action might be necessary for the protection of the health or safety of any person or persons or be otherwise in the public interest. At that stage too, the sole concern was with inquiry and investigation. There was no commitment, express or implied, to any course of action beyond the creation of a process by which questions necessarily raised by the information already to hand might be pursued and answers sought. Nor was there any commitment to any outcome by way of s 150 action or any judgment or evaluation of Dr Kirby’s conduct.

17. [80]

    This case is far removed from cases such as Carver and Isbester. There is nothing remotely approaching an equivalent of the concluded decisions and value judgments as to the quality of the solicitor’s conduct in Carver. Nor is there anything remotely approaching the prior pursuit of a prosecution and securing of a conviction in Isbester. The facts of the present case show a degree of prior involvement and opinion formation that even falls short of that which was held not to give rise to a disqualifying interest in McGovern. None of Dr O’Reilly, Dr Fryer and Ms MacDougal demonstrated any form of commitment to an opinion on the substantive merits of Dr Kirby’s conduct or any form of assumption of “ownership” of any particular outcome. None had become an accuser or proponent (or “moving force”) or adopted any partisan or advocacy position. Each had merely played an objectively reasonable role in deciding whether, on the obviously incomplete information to hand, certain steps directed towards further investigation and consideration should be undertaken by the Dental Council in the discharge of its statutory function. 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.

18. [81]

    The position of Dr O’Reilly, Dr Fryer and Ms MacDougal is closely analogous to that occupied by Mr Capp in Agricultural Societies Council of NSW v Christie [2016] NSWCA 331; (2016) 340 ALR 560. Capp was an official of a voluntary association. His functions concerned testing show horses for drugs and disciplining persons involved in administering drugs. As a member of a disciplinary committee, he participated in a committee decision adverse to a particular horse owner or promoter. The Court of Appeal rejected an argument that Capp’s activities prior to the committee’s decision had caused him to be disqualified by reasonable apprehension of conflict of interest bias. The prior activities consisted of 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. The assessment of the Court of Appeal, making a comparison with the circumstances of Ms Hughes in Isbester, was as follows (per Meagher JA at [77]):

19. [82]

    So too in this case, the prior involvement of Dr O’Reilly, Dr Fryer and Ms MacDougal is fairly characterised as having been administrative or ministerial. Observations in Lindsay v NSW Medical Board (above) as to the significance of absence from the statutory scheme of any concept of charge or accusation are also apposite although, as I have said, it must be accepted that the particular practitioner is cast in a form of defensive role.

20. [83]

    It is true that NCAT, in reaching its decision on the substantive natural justice question, confined itself largely to the issue of pre-judgment as distinct from conflict of interest. But whichever of those approaches is taken, NCAT’s conclusion that there had been no denial of procedural fairness or breach of the rules of natural justice was the correct conclusion. Nothing in the facts before it was capable of grounding an objectively based apprehension that justice might be compromised if Dr O’Reilly, Dr Fryer and Ms MacDougal played the decision-making roles they in fact undertook. As to the allied complaint that each of them failed to disclose circumstances that could lead to disqualification for bias, the finding that there were no such circumstances means that there was no relevant failure.

21. [84]

    In view of the conclusions stated on the substantive natural justice issue concerning process within the Dental Council, there is no need to decide whether, as the Dental Council submitted, the NCAT proceeding “cured” any natural justice defect at the Council level. I nevertheless record my opinion that, for a reason identified by counsel for Dr Kirby, there must be doubt whether any “curing” resulted from NCAT’s decision. I say this because, as counsel for Dr Kirby pointed out, the powers of NCAT on appeal were not on all fours with those of the Dental Council itself (see [62] above) and NCAT’s capacity to cover the relevant field precisely and in the fully comprehensive way relevant to the “curing” principle was arguably absent.

22. [85]

    Ground 1 is not upheld.

Ground 2 – assessment and conclusion

1. [86]

   Dr Kirby maintains that NCAT fell into legal error by failing to determine that the proceedings of the Dental Council were not conducted according to law in three respects: first, that it did not tell Dr Kirby that they were proceedings at which he was required to attend and answer questions; second, that it told him (wrongly) that he was attending at the hearing voluntarily; and, third, that it denied him legal representation (other than allowing a lawyer to be a support person).

2. [87]

   These contentions are based on two provisions of the National Law not so far mentioned. The first is s 150B which provides that a Council must cause an audio recording to be made of “any proceedings of the Council in connection with the consideration by the Council of the exercise or proposed exercise of a function” under certain provisions (including s 150 and s 150A) in respect of a practitioner during which the practitioner or the practitioner's adviser is present. The other provision is s 150J. Section 150J(1) empowers a Council to impose certain requirements upon a person who, in the Council’s opinion, “is capable of giving information, documents (including medical records) or evidence that would assist the Council in making a decision about action taken or proposed to be taken by the Council under” certain provisions, including s 150 and s 150A. Such a person may be required to “give the Council, in writing signed by the person . . . information of which the person has knowledge”, to produce documents to the Council or to “appear before the Council . . . and give evidence, either orally or in writing, and produce documents”. Section 150J(3) imposes a penalty for failure to comply with a requirement imposed under s 150J(1) “without reasonable excuse”.

3. [88]

   It was submitted on behalf of Dr Kirby that the proceedings attended by him on 15 December 2015 and 12 February 2016 were proceedings to which s 150J applied and were compulsory as to both his attendance and the giving of evidence by him – with the result that statements to Dr Kirby that his attendance was voluntary were misleading and the supposedly voluntary proceedings involved “a process not known to the National Law”.

4. [89]

   It may be accepted that the National Law indicates, albeit indirectly, that proceedings may, but need not, be conducted in connection with consideration of the exercise or proposed exercise of the s 150 and s 150A functions. The indication comes from s 150B and the requirement that an audio recording be made of any such proceedings if the practitioner or the practitioner’s adviser is present.

5. [90]

   Beyond that, the National Law has little to say about process. But general law principles and expectations apply, subject to any contrary indications in the legislation. The process envisaged by s 150 and s 150A necessarily focuses on circumstances affecting a particular practitioner, given that the outcome may be suspension of the practitioner’s registration or the imposition of conditions on the registration. [18] In each case, the issue will be whether the health or safety of persons or the public interest requires interference with the individual’s right and ability to practice his or her profession in the fullest way the registration allows.

6. [91]

   The contention of Dr Kirby is that, where the process takes the form of proceedings, it will not accord with the legislation unless the Council takes action under s 150J to compel the practitioner to attend and to answer questions. It is said, in other words, that the legislation makes participation in the proceedings by the practitioner in obedience to compulsion exerted upon him or her through s 150J an essential characteristic of the proceedings.

7. [92]

   Where “proceedings” in the sense of a hearing or inquiry are to take place in a s 150 or s 150A context, it may be expected that, at the least, the practitioner concerned will be given notice of the time and place of the proceedings and of the matters involving him or her that are under consideration. No provision imposes any such requirement but the fact that there are to be proceedings affecting the practitioner will, in the ordinary course, activate general principles of procedural fairness. At the same time, however, considerations of that kind may be relegated to a subsidiary position (or, in an extreme case, overridden) where the “proceedings” come on urgently in the context of a particularly pressing need to deal immediately with a matter of public safety. In those circumstances, the “paramount considerations” of “the protection of the health and safety of the public” specified in s 3A will dominate.

8. [93]

   In the present case, the Dental Council conducted “proceedings”. Its letter to Dr Kirby dated 3 December 2015 said that it had “determined to hold proceedings pursuant to section 150 of the Health Practitioner National Law (NSW)”. Such “proceedings” resulted in both the December 2015 decision and the February 2016 decision. On each occasion, Dr Kirby was given notice of the time and place at which the Council would consider the particular matter. On each occasion, he chose to attend, in company with his support person, and to make submissions to the Council, although it is relevant to note that Dr Kirby did not attend the adjourned hearing on 18 December 2015 concerning the first matter. He was present on 15 December 2015 when the proceedings were stood over to 18 December 2015 but had overlooked the need to attend to patient commitments on the latter day. He chose to attend to the patients rather than to return to be present at the adjourned proceedings.

9. [94]

   Contrary to the submission made on Dr Kirby’s behalf, s 150J is not concerned with exerting compulsion on an affected practitioner to participate in proceedings or to make such compulsion an essential characteristic of proceedings. A practitioner given notice that exercise of the s 150 function is contemplated or that inquiry in that direction is proposed might choose to remain absent and silent, to abide the outcome of decision-making within the Council and, if and when an adverse result emerges (or is seen as likely to emerge), to take steps to challenge or forestall the result. In the absence of clear words to the contrary, it cannot be the purpose of s 150J to enable a Council to override the aspect of procedural fairness that enables a practitioner to adopt that course.

10. [95]

    A provision of the National Law abrogates the common law privilege against self-incrimination for certain limited purposes. [19] Other provisions expressly preserve that privilege for certain other purposes. [20] Nothing is said about the privilege against self-incrimination in relation to compulsion under s 150J. Nor is anything said, in that connection, about the allied privilege against self-exposure to penalty or forfeiture. There is, on the face of the enactment, a demonstrated absence of legislative intention to displace either of these common law privileges in the s 150J context. In accordance with the principle of legality, each therefore represents a “reasonable excuse” as referred to in s 150J(3). [21] The majority reasoning in Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42 (concerning disqualification from directorship of companies) indicates that suspension of a practitioner’s registration or the imposition of conditions that reduce the freedom of action that the registration would otherwise confer is a species of penalty or forfeiture attracting the self-exposure privilege. The coercive power conferred by 150J is therefore subject to a limitation of the kind which, in Moosawi v Massey [2015] QSC 169, was held to qualify a similar inquisitorial power created by Queensland health practitioner legislation.

11. [96]

    In summary, Dr Kirby’s submission based on s 150J is inconsistent with the purpose and scope of that provision. The section does not mean that an affected practitioner’s participation in proceedings for the purposes of s 150 or s 150A can only be through the form of compulsion that s 150J allows. Nor does it cause proceedings in which the affected practitioner participates voluntarily to involve “a process not known to the National Law”. In the s 150J context, the National Law leaves intact, for the benefit of the affected practitioner, applicable common law privileges and requirements of procedural fairness. Voluntary attendance is compatible with this. So too is deliberate non-attendance, if that is what the practitioner prefers. Attendance under compulsion is not.

12. [97]

    In relation to the specific matter of legal representation in the particular case, it is sufficient to say three things: first, that Dr Kirby did not question the ruling that the barrister, Mr Walsh, could be present as his support person but could not act as his advocate; second, that the issue of legal representation played no part in the appeal to NCAT; and, third, that the procedure under which a practitioner may be accompanied by a support person (who may be a lawyer) is in line with the general approach taken by the National Law (see, for example, s 148D(6)). It may be added, in amplification of the first of these matters, that, according to the transcript of the proceedings before the delegates on 15 December 2015, Dr Kirby asked at an early stage whether, in the “new proceedings” then in train (that is, the “new proceedings” that had replaced those in which Ms Bell had participated on 11 December 2015), Mr Walsh would have “the courtesy” that was extended to him “on Friday” (11 December 2015), being the “courtesy” of being “allowed to advise on legal matters and the right to adjourn if I believe that I have to answer something legal and I can’t answer it”, adding that he would “like to have that opportunity to consult with Mr Walsh”. The delegates gave an affirmative answer to Dr Kirby’s question and the hearing proceeded accordingly without objection by him. That was in line with a position that Dr Kirby had accepted before commencement of the earlier “proceedings”. His solicitor, when replying on his behalf (by letter dated 11 December 2015) to the Dental Council’s letter of 3 December 2015 notifying him of those earlier proceedings had said:

13. [98]

    Ground 2 is not upheld.

Ground 3 – assessment and conclusion

1. [99]

   Dr Kirby maintains that NCAT fell into error of law by failing to remove conditions imposed on his registration by the February 2016 decision in circumstances where it found that the conditions did not bear on Dr Kirby’s ability or fitness to practise. The conditions were, it is said, inconsistent with a finding (attributed in Dr Kirby’s submissions to NCAT) that Dr Kirby was a competent dentist – which finding might, at the most, attract conditions confined to what was needed to allow him to discharge his competency effectively. 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.

2. [100]

   The Dental Council submitted that NCAT did not make any finding that Dr Kirby was a competent dentist. Rather, it referred to statements regarding competence made by the delegates in their decisions – including the following in the reasons for the February 2016 decision:

3. [101]

   My reading of the situation is that the delegates did not see Dr Kirby as lacking technical and clinical competence in dentistry; and that NCAT did not question that assessment. But it does not follow that the only permissible conditions are those calculated to allow effective discharge of competency.

4. [102]

   Section 150 allows – indeed requires – action that is judged appropriate for the protection of the health or safety of any person or persons or otherwise in the public interest. The issue on a s 150A review application is the same. The implicit assumption in Dr Kirby’s submissions is that competence as a dentist, if found, somehow circumscribes the matters to which regard can properly be had in the assessment of what is required for the protection of health or safety or in the public interest. That is not so. A practitioner who is perfectly competent – even exceptionally skilled – in the practice of dentistry might, for any one of a number of reasons, exhibit characteristics relevant to action against the s 150 criteria.

5. [103]

   NCAT expressed “grave concerns about Dr Kirby’s insight and practices”. It did so in the context of the Dental Council’s submissions referring to evidence that Dr Kirby considered himself entitled to treat obviously non-dental conditions, that he had been providing care in his dental surgery to a “Cansema group” (some of whom may have been dental patients [23] ) and that he had been prescribing medications which were not “for dental treatment only”. The overall assessment was one of lack of essential insight and self-awareness – in particular, failure to recognise and observe professional boundaries and to appreciate that his conduct might have put people in danger. The material before NCAT justified its expression of “grave concerns”. The import of that material was referred to in the extract from the delegates’ reasons for the February 2016 decision at [27] above.

6. [104]

   NCAT’s reference to professional boundaries is important. A vital part of the professional responsibility of even the most competent of practitioners is to keep relationships and conduct within boundaries that pay attention to the potential ascendancy of the practitioner and the potential vulnerability of the patient or client and the need to exclude all forms (and appearances) of exploitation and undue influence by the practitioner. Professional boundaries separate behaviour in the regular and proper course of professional practice from behaviour, well intentioned or not, that might compromise the benefit derived by the patient or client from the practitioner’s skill, undermine the trust and confidence that the patient or client is entitled to repose in the practitioner or blunt public confidence in the integrity of the profession; and they do so without any regard to the standard of the practitioner’s competence. To cite examples far removed from the circumstances of this case, a highly skilled and perfectly competent psychiatrist who engages in a consensual sexual relationship with a patient fails to observe professional boundaries, as does a highly skilled and perfectly competent solicitor who borrows money from a client.

7. [105]

   The issue of Dr Kirby’s fitness to practise and whether conditions were needed to shape his conduct was not confined to matters of technical and clinical competence. The other matters to which NCAT had regard were also relevant to the question and were properly taken into account. No error of law was committed when NCAT took them into account.

8. [106]

   Ground 3 is not upheld.

Ground 4 – assessment and conclusion

1. [107]

   As eventually formulated, Ground 4 was that NCAT had fallen into error of law by failing to consider “crucial” written evidence (and related submissions of Dr Kirby), being:

2. [108]

   It is well established that a court or other tribunal is under no duty to refer in its decision to every piece of evidence placed before it or to indicate whether or not it has accepted it (and why). Failure to refer to some aspect of the evidence does not constitute error if the aspect is not relevant to the resolution of a point critical to the contest between the parties. The relevant principles are discussed in the judgment of McColl JA in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56] – [67]. It is obviously permissible to omit reference to items that have played no part in the decision-making process because they lack of any real capacity to bear upon a matter in issue. For reasons advanced by counsel for the Dental Council, that is the status of the items concerning Dr Rourke and Dr Berne to which Ground 4 refers.

3. [109]

   Dr Rourke is a dental practitioner with specialised knowledge of infection control. He reviewed Dr White’s report concerning his inspection of Dr Kirby’s practice. In summary, his opinion on the adequacy and appropriateness of infection control differed from Dr White’s. In the course of the NCAT proceedings, however, neither Dr White nor Dr Rourke was cross-examined. This, as counsel for the Dental Council emphasised, was because, by the time of the NCAT hearing (which was concerned with the status, for the future, of the practice restriction conditions), infection control was no longer an issue. The conditions arising from the February 2016 decision did not touch upon infection control. There was no need for NCAT to concern itself with infection control. Dr Rourke’s opinion did not pertain to a matter in issue before NCAT

4. [110]

   Dr Berne’s evidence was a character reference or testimonial letter dated 15 July 2016. It expressed an opinion on Dr Kirby’s competence, based on observations made by Dr Berne during an association of “a number of years” and visits to Dr Kirby’s practice “on a number of occasions”. Dr Berne said that Dr Kirby was “a very competent practitioner”. He addressed the conditions to which Dr Kirby’s registration was subject as at the date of the letter and expressed an opinion that the conditions were onerous and that some might “place patients’ lives at risk” (that assessment addressed situations where, in the course of activities permitted by the conditions, a situation might arise indicating a need for treatment beyond the bounds of the conditions). Dr Berne further said that he was “not fully aware of the reasons for the Dental Council to impose such restrictions of practice on Dr Kirby, but on the surface they appear at most to be minor irregularities”.

5. [111]

   Dr Berne’s evidence, like that of Dr Rourke, was irrelevant to the issues before NCAT. Evidence was not needed for NCAT to appreciate the obvious point that inability to do work precluded by the conditions might have consequences for the undertaking of permitted work. Nor was the fact that Dr Berne regarded Dr Kirby as a competent dentist something that had any bearing on the question whether his lack of insight and inability to recognise and observe professional boundaries were matters calling for measures for the protection of the health or safety of any person or persons or otherwise in the public interest.

6. [112]

   In relation to evidence of Patient B (a person treated with Cansema), it is sufficient to say that NCAT did refer, at various points in [151] of its decision, to the content of Patient B’s affidavit. It did so, moreover, in the context of a discussion of Dr Kirby’s activities involving Cansema.

7. [113]

   Ground 4 is not upheld.

Disposition

1. [114]

   The conclusions reached on Grounds 1 to 4 mean that Dr Kirby’s challenge to the substantive decision of NCAT fails. The further amended summons seeks an order setting aside NCAT’s consequential order that Dr Kirby pay the Dental Council’s costs of the NCAT proceedings but I did not understand there to be any submission that the costs order should be set aside even if the challenge to the substantive decision failed. In any event, clause 29(6)(c) of Schedule 5 to the NCAT Act says that, despite clauses 29(2) to 29(5), an appeal does not lie to a court under clause 29 against a decision as to costs except by leave of the court. The further amended summons contains no claim for an order granting leave to appeal; nor did submissions deal with criteria for the grant of leave to appeal.

2. [115]

   The orders are:

   1. (1)

      Order that the appeal initiated by summons filed on 26 May 2017 and prosecuted on the grounds stated in the further amended summons filed on 24 October 2018 and all claims in that further amended summons be dismissed.

   2. (2)

      Order that the plaintiff pay the defendant’s costs of the proceedings.