Dr Derek Mahony v Dental Council of New South Wales

The Statutory Scheme

1. The National Law governs the registration of "health practitioners" who practice a "health profession", the latter defined by s 5 to encompass some sixteen areas of practice, including that of the dental profession. Section 41B establishes a Council relevant to each health profession with functions conferred by the legislation. For the profession of dentistry (which includes the profession of a dentist, dental hygienist, dental prosthetist, dental therapist or oral health therapist) the Dental Council of New South Wales is the relevant Council.
2. The National Law provides for the registration and accreditation of health professionals and students, together with related functions, such as fixing a requirement for continuing professional education, restricting the use of practice titles, and so on. Part 8 regulates "Health, performance and conduct" of health practitioners, with Division 3 of Part 8 providing a mechanism to deal with complaints.
3. Relevantly, Subdivision 1 of Division 3 regulates the making of a complaint about a health practitioner in NSW; Subdivision 2 provides for the manner in which complaints are dealt with; Subdivision 3 confers disciplinary powers on Professional Standards Committees; Subdivision 4 provides for ACs to deal with some complaints; Subdivision 5 governs complaints dealt with by inquiry at a meeting of a Council; and Subdivision 6 sets out the disciplinary powers of the Tribunal. It is worth pausing here to set out in more detail some of the provisions relevant to a Professional Standards Committee ("PSC") and to an AC.
4. A PSC established pursuant to s 169 may exercise certain powers relevant to a health practitioner registered in either the medical, nursing, or midwifery professions (ss 146; 146A). The dental profession is distinct from any of those three professions: s 5. The powers a PSC may exercise include the power to reprimand (s 146B(1)(a)), the power to impose fines (s 146C(1)), and the power to cancel a practitioner's registration (s 146D(1)).
5. Such powers may only be utilised if the PSC finds the subject-matter of a complaint against a relevant health practitioner to have been proved: s 146A.
6. An AC may be established pursuant to s 172A of the National Law. Certain types of complaints concerning a health practitioner other than those registered in the medical, nursing, or midwifery professions can be referred to it by a Council pursuant to s 147A and, pursuant to s 147B, the AC must investigate any such complaint. Having investigated the complaint, an AC's report to the particular Council may include recommendations about the complaint including a recommendation that the Council deal with the complaint by inquiry at a meeting of the Council as a complaint of unsatisfactory professional conduct: s 147D(1)(a).
7. Pursuant to s 147D(3)(a), the Council "must" comply with a recommendation of an AC to deal with the complaint by inquiry at a meeting of the Council as a complaint of unsatisfactory professional conduct. That was the recommendation made concerning the complaint against the plaintiff.
8. Where such a recommendation is made, and an inquiry is held, it is to comply with the terms of Subdivision 5 of Division 3. The subdivision confers powers on a Council of a similar nature to those conferred on a PSC by Subdivision 3.

The Issue for Determination

1. In the plaintiff's case, an AC was established and the 2016 complaint was referred to it by the Dental Council. The Committee investigated the complaint, consistent with its statutory function, and made a recommendation to the Dental Council pursuant to s 147D(1)(a). The question is whether that recommendation can be the subject of an appeal brought pursuant to s 158 or s 158A of the National Law.
2. Sections 158 and 158A are found in Subdivision 1 of Division 6 of the National Law. Division 6 governs appeals to the Tribunal. Subdivision 1 of Division 6 provides for "Appeals against actions of Committee". Section 158 provides: 158 Appeals against decisions of Committee [NSW] (1) If a complaint about a registered health practitioner or student is referred to a Committee, the practitioner or student or the complainant, may appeal against any of the following to the Tribunal - (a) a finding of the Committee; (b) the exercise of a power by the Committee under Subdivision 3 of Division 3; (c) the exercise by the Tribunal List Manager of a power under that Subdivision. Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) The appeal is to be dealt with by way of rehearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the inquiry, may be given. (3) The Tribunal may - (a) dismiss the appeal; or (b) make any finding or exercise any power the Tribunal could have made or exercised if the complaint had been originally referred to the Tribunal. (4) An appeal under this section does not affect any finding or exercise of power with respect to which it has been made until the Tribunal makes an order on the appeal.
3. For present purposes the parties agree that s 158(1)(a) is the relevant provision; neither ss (1)(b) nor ss (1)(c) has application.
4. Section 158A provides: 158A Appeals on points of law [NSW] (1) A registered health practitioner or student about whom a complaint is referred to a Committee or the complainant may appeal with respect to a point of law to the Tribunal. Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) An appeal may be made - (a) during an inquiry - within 28 days after the date of the Committee's decision on the point of law which is the subject of the appeal; or (b) before the commencement of an inquiry but after the date of giving notice of the inquiry. (3) If an inquiry conducted by a Committee has not been completed when an appeal is made, the inquiry must not continue until the appeal has been disposed of. (4) The Committee must not make any decision that is inconsistent with the Tribunal's determination with respect to the point of law.
5. For the purposes of Part 8, in which s 158 and s 158A are located, a "Committee" is defined by s 138(1) thus: Committee means - (a) an Assessments Committee; or (b) a Professional Standards Committee
6. The plaintiff argues that this definition of "Committee", including as it does an AC, must mean that s 158 and s 158A apply to the conclusions reached by an AC, conclusions the plaintiff describes as "findings and recommendations".
7. However, that overlooks both the operation of cl 13(2) of Schedule 7 of the National Law, and the context of the provisions. The former qualifies the operation of s 138(1); the latter gives clarity to the meaning and operation of the definition as it applies to Subdivision 1 of Division 6.
8. Schedule 7 deals with "Miscellaneous provisions relating to interpretation" and, by cl 13(2), provides: Definitions in or applicable to this Law apply except so far as the context or subject matter otherwise indicates or requires.
9. The context or subject matter does not support the application of the definition provision in the way the plaintiff contends for, but rather, makes clear that s 158 and s 158A could only apply to PSCs, and not to ACs.
10. Section 158(1)(a), which the plaintiff concedes is the material provision of s 158, provides for a registered health practitioner to appeal against "a finding of the Committee". To make his argument it is important for the plaintiff to characterise the role of an AC as including the making of "findings" since, only a "finding" of a Committee is amenable to an appeal pursuant to s 158(1)(a). That characterisation is, however, inconsistent with the statutory function performed by an AC, and the language used in the legislation in connection with the role and function of an AC.
11. An AC is empowered to "investigate the complaint" (s 147B(1)); "require" a health practitioner to undergo skills testing (s 147C(1)); and to make "a recommendation" (s 147D). It has no statutory power to make a "finding". The word "finding" is not used anywhere in the National Law in connection with an AC; it is used frequently in connection with a PSC (in s 146C(2)(a); s 146D(4)(b); s 171E(2); and Schedule 5). Indeed, pursuant to s 146A, the exercise of a PSC's powers is dependent upon it making a finding that the complaint is proved, or the practitioner admitting the complaint.
12. Whilst the plaintiff argues that, to make a recommendation to the Council for a complaint to be dealt with at an inquiry of the Council as one relating to unsatisfactory professional conduct, the AC necessarily made findings, this is to mistake an investigative role for a determinative one. No doubt, as part of its investigations, and having come to the conclusion that it should recommend an inquiry to the Dental Council pursuant to s 147D, the members of the AC were satisfied that there was evidence or other information capable of establishing unsatisfactory conduct, but that is to be distinguished from the AC making a "finding" of unsatisfactory professional conduct.
13. Its task is akin to that of an investigative agency or body which conducts an investigation and concludes that there is, prima facie, a case to answer. Such a body has no role in determining that the case is established. Here, the AC has no statutory power to go further than investigate; it cannot make a finding adverse to a health practitioner. If the AC cannot and did not make a "finding" within the meaning of the section, there is nothing for the plaintiff to appeal against.
14. Section 158(2) refers to the appeal before the Tribunal proceeding as a rehearing and receiving fresh evidence, or evidence in addition to or in substitution for the evidence received at the inquiry. That provision clearly contemplates that an "inquiry" has been conducted at which evidence was received. Whilst the Dental Council's role is to conduct an "inquiry" if the AC recommends that such a course is taken, the AC has no power to conduct an "inquiry" and manifestly does not do so. Neither does it receive "evidence".
15. The proceedings of a PSC by contrast, do bear a semi-judicial character. A PSC conducts an "inquiry" (s 170, s 170A); with "proceedings" on the inquiry conducted as the PSC sees fit (s 171A). As with a hearing before a court, the inquiry is to be open to the public, unless it is necessary in the public interest for the proceedings to be closed to the public (s 171(3)). The person the subject of the complaint and the complainant must be notified of the inquiry (s 171); each may be legally represented (s 171B(1)). Proceedings may be adjourned (s 171C(1)). The PSC may make orders (s 170B), and reasons for the orders made must be given (s 171E).
16. Section 158 clearly envisages that an inquiry has been held, and findings and orders made, prior to any appeal being brought. The provision becomes quite nonsensical if read as applicable to an investigation conducted by an AC.
17. Pointing to dictionary definitions, the plaintiff argues that "inquiry" and "investigation" are synonymous, and thus the reference to "inquiry" in s 158(2) can be read as a reference to the AC investigation. There is, however, no support for that contention in the legislation. It is the text of the statute to which regard must be had, before looking beyond it to other potential aids to statutory construction, if such aids are necessary.
18. There is nothing in the statute to suggest that the words "inquiry" and "investigate" are intended to be read interchangeably. The word "investigation" is never used in connection with a PSC in the National Law. With one, somewhat anomalous, exception the word "inquiry" is never used in connection with the function of an AC. The anomaly is s 172C, which the plaintiff points to as supportive of his argument. The section is in these terms: 172C Multiple inquiries [NSW] One or more Committees may conduct more than one assessment at the same time.
19. In my view, the section is not able to sustain the plaintiff's argument, not least because of the operation of cl 4(4) of Schedule 7 to the National Law, which provides A heading to a section or subsection of this Law does not form part of this Law.
20. If the heading to s 172C does not form part of the Law, it cannot be relied upon to establish that an AC conducts "inquiries", contrary to those provisions which confer power upon an AC to investigate, require skills testing, and recommend. The section itself, setting aside the heading to it, refers to "assessments", consistent with the name given to the investigative committee, it being the "AC".
21. There is a further indication in the section that "Committee" as it is employed in s 158(1)(a) refers only to a PSC, and not to an AC, and that is in the terms of s 158(1)(b) and s 158(1)(c). Both of the sub-sections refer to powers exercised under Subdivision 3 of Division 3, a subdivision dealing with the disciplinary powers of a PSC. As an ordinary principle of statutory construction it is reasonable to conclude that the meaning given to a word in one part of a section has the same meaning throughout the section. It is difficult to accept that a word could have different meanings within the same section, unless the altered meaning was clearly stated by the provision. The fact that s 158(1)(b) and (c) refer to PSCs, points strongly to a conclusion that "Committee" as used in s 158 refers only to a PSC.
22. If "Committee" in s 158 applies only to a PSC, that of itself suggests that the word would have the same meaning in the only other section within the Subdivision, s 158A.
23. Further, if the same examination is made of the language used in s 158A as undertaken relevant to s 158, the same conclusion is reached. Section 158A uses language that is not consistent with its application to the work of an AC. The right of appeal on a point of law is concerned with errors that may occur during the conduct of an "inquiry" or immediately before an "inquiry": s 158A(2). For the reasons set out above, an AC has no statutory power to conduct an inquiry, and thus s 158A cannot apply to the functions it does have.
24. The plaintiff's final argument in support of the interpretation he advances of ss 158 and 158A relies upon the terms of s 3(3)(a) of the National Law, in which one of the "guiding principles" of the legislation is given thus: (3) The guiding principles of the national registration and accreditation scheme are as follows - (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; […].
25. The plaintiff argues that it would not be fair for a practitioner the subject of a complaint to have no avenue of appeal against the conclusions of an AC because those conclusions have consequences. Two things might be noted about that argument.
26. Firstly, whilst there are or can be consequences for a practitioner the subject of a complaint in relation to whom an AC conducts an investigation, the consequences do not include any adverse finding of fact, or any adverse finding resulting in disciplinary action against the practitioner. The most that an AC can do is recommend that an inquiry into a complaint is held. Particularly in circumstances where a health practitioner is given an opportunity to provide information or submissions to the AC, there is no unfairness in the process which contradicts s 3(3)(a). That is particularly so in circumstances where s 3(3)(a) is, relevantly to Division 3 of the National Law, qualified by s 3A which provides: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
27. If the health and safety of the public is paramount, it is more likely that the legislation is intended to ensure that the investigation of a complaint is undertaken expeditiously, so that any practitioner who poses a risk to the health and safety of the public is quickly discovered. To permit an appeal at every step of the investigative phase would be wholly contrary to the paramount consideration provided for by s 3A.
28. Secondly, as a matter of practical application, it would render the operation of Division 3 of the National Law unwieldy (at best) if appeals were permitted at the investigatory stage, rather than at the stage of an inquiry. To fragment and delay the process at such an early stage of the complaints procedure is undesirable, and unlikely to be an optimal approach to the protection of the health and safety of the public.

Conclusion

1. In the conclusion of the Court, the Tribunal did not err in finding that it had no jurisdiction to hear an appeal from the work of the AC relevant to the complaint against the plaintiff.
2. On that basis, the summons was dismissed, and an order for the costs of the proceedings was made in favour of the defendant.

The Costs of the Proceedings Before NCAT

1. On those orders being made, the defendant made an application for its costs of the proceedings before NCAT. A timetable was fixed for the parties to file any evidence and written submissions, with the costs application to be determined on the papers.
2. The defendant made an application for costs to the Tribunal on 24 September 2018, after NCAT determined the plaintiff's appeal adversely to him, with the parties tendering evidence and making submissions. Once the plaintiff's appeal to this Court was filed, the costs application was adjourned by the Tribunal, with no date for further hearing and orders fixed.
3. In support of its application the Dental Council tendered a copy of its written application for a costs order pursuant to cl 13 of Schedule 5D of the National Law or, alternatively, s 60(2) of the CAT Act. Both provisions provide a statutory basis upon which costs may be awarded.
4. Before the Tribunal, the Council argued that costs should follow the event, and particularly so in circumstances where it had outlined its position to the plaintiff as to an absence of jurisdiction to hear an appeal against a recommendation by an AC prior to the lodgement of the appeal, and later invited him to withdraw it. Dr Mahony had been forewarned about a costs application being made if the Council was successful.
5. The Council submits that there is a presumption that, pursuant to cl 13 of Schedule 5D of the National Law, costs follow the event: Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] and [87], per Meagher JA, McColl and Ward JJA agreeing. It is argued that there is nothing capable of demonstrating that some other order should be made, such as any disentitling conduct on its part.
6. If the power exercised to award the costs of the Tribunal proceedings is s 60(2) of the CAT Act, it is contended that the question of the proper construction of ss 158 and 158A of the National Law is straightforward, and does not allow for the provisions to be misconstrued. In circumstances where the Council provided Dr Mahony and his representatives with a full explanation of its position on jurisdiction, and invited him to withdraw his appeal, a costs order should be made.
7. The plaintiff contends that the Court has no express power to order costs, particularly so in circumstances where an application made to the Tribunal has been argued and adjourned; and the Tribunal decision was upheld.
8. He also advances an argument that, since both the Tribunal and the Court have held that there was no jurisdiction to determine the appeal brought by the plaintiff to the Tribunal, the proceedings before NCAT were not proceedings "under this Law", a reference taken from cl 1(2) of Schedule 5D of the National Law. That being so, there is no power to award costs against him.
9. Finally, he argues that his appeal was a consequence of a badly drafted law that was ambiguous, and open to different interpretations. No fault can be attributed to him as a consequence, and no costs order should be made.

Determination

1. Although the plaintiff argues to the contrary, this Court has the power to determine the Council's application for its costs before NCAT pursuant to cl 29(8) of Schedule 5 of the CAT Act or, alternatively, pursuant to r 50.16(2) or (6) of the Uniform Civil Procedure Rules 2005 (NSW). The former provides a very broad, if non-specific power for the Court to make "such orders as it considers appropriate in light of its decision on the appeal"; the latter an equally broad power to exercise the powers of the body from whom the appeal is brought (sr (2), or make any order "which ought to have been made" (sr (6)).
2. I am unpersuaded by the argument that, because the Tribunal found that it had no jurisdiction to hear the plaintiff's appeal, the proceedings were not proceedings brought under the National Law, and thus the power of the Tribunal to award costs for a hearing before it pursuant to cl 13(1) of Schedule 5D of the National Law is not enlivened. I accept the defendant's submission that to so conclude would represent a perverse result.
3. Ultimately, the feature of the matter that has decided the issue is the fact that an application for costs is currently on foot and undetermined before NCAT. In that there are proceedings before the Tribunal as to the question of the costs of the proceedings before it, there is some force in the plaintiff's contention that any costs order in this Court would "effectively remove from the Tribunal and determine in its place the costs question which is pending".
4. On that basis, I do not propose to make any costs order as to the proceedings before the Tribunal.

Amendments 08 April 2019 - Typo in Category on cover page. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 April 2019