1. On the question of jurisdiction raised in the proceeding, I determine that the matter that may be referred to a Tribunal hearing under s 63(2)(a) of the Health Professions Registration Act 2005 comprises only those allegations in respect of which the professional standards panel has made a finding under s 63(1)(a),(c) or (d) of that Act.
2. In its referral of allegations against Dr Hartley to the Tribunal arising from the decision of the professional standards panel dated 10 December 2008, the Dental Practice Board of Victoria must not include the allegations in paragraphs 4 to 10 inclusive and paragraph 12(a) of the Draft Allegations dated 14 May 2009.

Dr Ian Freckleton SC of counsel, instructed by DLA Phillips Fox, solicitors.

Mr Patrick Monahan, solicitor, of Monahan & Rowell, Lawyers

1. Dr Hartley is a practising dentist. Following a complaint about his professional conduct and an investigation by the Dental Practice Board, certain allegations against Dr Hartley were referred to a professional standards panel. Those allegations were set out in a notice of hearing served on Dr Hartley.
2. Following a hearing by the professional standards panel December 2008, the panel found that certain of the allegations were 'made out' and constituted unprofessional conduct. The panel found that certain other allegations were 'not made out'. The panel decided to refer the matter to a hearing by this Tribunal, ostensibly in relation to all of the allegations against Dr Hartley in the notice of hearing, whether the panel had found those allegations made out or not. The Draft Allegations dated 14 May 2009, prepared by the Dental Practice Board for filing as part of the referral to the Tribunal, include in paragraphs 4 to 10 inclusive and paragraph 12(a) a series of allegations against Dr Hartley that the panel had found were not made out.
3. Dr Hartley contends that the Board cannot refer to the Tribunal allegations that the panel had found were not made out. He considers those allegations have been finalised in his favour, and cannot be re-agitated by the Board. The Dental Practice Board contends that the finding that certain allegations were 'not made out' is not a positive finding that Dr Hartley has not engaged in unprofessional conduct in respect of those allegations. As a consequence of the panel having found some of the other allegations made out and constituting unprofessional conduct, it considers that it can refer all of the allegations in the notice of hearing to the Tribunal as these collectively comprise 'the matter' of Dr Hartley's professional conduct under review.
4. The issues for me to determine are:
   • (a) what comprises 'the matter' that may be referred to the Tribunal under s 63(2) of the Health Professions Registration Act 2005; and
   • (b) what is the consequence of the panel's finding that certain allegations were 'not made out'.

What comprises 'the matter' that may be referred to the Tribunal

1. Given that the issue of referral to the Tribunal is largely one of statutory interpretation, it is useful to set out the relevant parts of s 61 and s 63 of the Health Professions Registration Act 2005. Those sections provide:

61 Establishment of a professional standards panel

(1) If a responsible board or a health panel determines that a matter relating to the professional performance or professional conduct of a health practitioner should be referred to a professional standards panel, the responsible board may appoint a professional standards panel to conduct a hearing into that health practitioner's professional performance or professional conduct.

63 Outcome of a professional standards panel's hearing

(1) Upon completing a hearing into the professional conduct or performance of a registered health practitioner the panel may find one or more of the following -

(a) that the health practitioner has, whether by act or omission, engaged in unprofessional conduct;

(b) that the health practitioner has not engaged in unprofessional conduct;

(c) that the health practitioner may have engaged in professional misconduct;

(d) the practitioner's professional performance has been unsatisfactory.

(2) If the panel finds that the health practitioner has, whether by act or omission, engaged in unprofessional conduct or may have engaged in professional misconduct or the panel finds the practitioner's professional performance has been unsatisfactory, the panel may make one or more of the following determinations -

(a) that the matter be referred to a Tribunal hearing;

(b) if the panel is of the opinion that the practitioner's ability to practise is affected, that the matter be referred to a health panel hearing;

(e) that the health practitioner undergo counselling;

(f) that any condition be imposed on the health practitioner's registration or endorsement of registration;

(g) that the health practitioner alter the way in which he or she practises as a health practitioner;

(h) that the health practitioner undertake and complete specified further education or training within a specified period.

(3) The panel may determine that no further action be taken if it finds that the health practitioner has not engaged in unprofessional conduct or professional misconduct or that the practitioner's professional performance has not been unsatisfactory.

1. By matching up the possible findings by a panel in s 63(1) with the introductory wording of s 63(2), it is clear that the options in s 63(2)(a) to (h) are only open to the panel where it has made a finding under s 63(1)(a),(c) or (d). The panel cannot refer the matter to a Tribunal hearing where it has made a finding under s 63(1)(b) that the practitioner has not engaged in unprofessional conduct. The Board conceded as much.
2. The debate before me turned in part on what comprises 'the matter' that can be referred to a Tribunal hearing under s 63(2)(a) - both in relation to the use of the definite article 'the', and the word 'matter'.
3. I agree with Dr Hartley's counsel that s 63(2)(a) should be interpreted having regard to its context and the purpose of the legislation. Given the word 'matter' is not a defined term, nor a term of art or absolute specificity, I do not find it particularly useful to look at how the word 'matter' is used elsewhere in the Health Professions Registration Act 2005 in different Parts or Divisions of the Act or in different contexts, as the Board had urged. What comprises a 'matter' (or, indeed the matter here) arises from its more immediate context.
4. I do not agree with the Board that 'the matter' here comprises the entire set of allegations in the panel's notice of hearing, and that a finding of unprofessional conduct on any one allegation is sufficient to trigger a referral of all allegations to a Tribunal hearing.
5. Section 61(1) empowers the Board to determine that 'a matter' relating to a practitioner's conduct be referred to a professional standards panel. Under established principles of statutory interpretation, the singular includes the plural unless the contrary intention appears[1]. Where there are a number of allegations about a practitioner's conduct (related or unrelated), a series of individual allegations or 'matters' may be referred to the panel. What is referred to the panel in such a case is not a single, amorphous or indivisible 'matter'.
6. The panel may find, as here, that some of the individual allegations (or 'matters') are made out and others are not. Indeed, in the case of Dr Hartley, some of the allegations arose from quite different facts and circumstances and were unrelated in substance or outcome. This bolsters the view that there is not a single 'matter' for which only one finding is possible, or for which only one outcome is necessarily appropriate.
7. In context, by reference to the introductory words of s 63(2), the option of referring the matter to a Tribunal hearing under s 63(2)(a) arises only a result of the three possible findings under s 63(1) that are adverse or unfavourable to the practitioner. These are the findings under s 63(1)(a),(c) and (d) relating to unprofessional conduct, possible professional misconduct, or unsatisfactory performance. The option does not arise from the possible finding that is favourable to the practitioner - i.e. under s 63(1)(b), that the practitioner has not engaged in unprofessional conduct. Equally, the panel's options under s 63(2)(b) to (h), all appear to relate to outcomes consistent only with an adverse or unfavourable finding against the practitioner - e.g. reprimand, counselling, conditions on practice etc. In my view, the option of referral to a Tribunal hearing under s 63(2)(a) should be similarly construed as arising only for adverse or unfavourable findings.
8. The existence of s 63(3) supports this interpretation, empowering the panel to determine that no further action be taken if it finds that the practitioner has not engaged in unprofessional conduct.
9. Following from all of this, the reference to 'the matter' in s 63(2)(a) - i.e. the matter that may be referred to a Tribunal hearing - is properly construed as being a reference to any of those individual allegations or matters where there has been an adverse or unfavourable finding under s 63(1)(a),(c) or (d). It is not a reference to the allegations as a combined indivisible whole. In this case, what may be referred to the Tribunal comprises the allegations that the panel has found are 'made out' and constitute unprofessional conduct under s 63(1)(a). It does not include the allegations that the Tribunal has found are not made out.
10. These views are supported by the overall purpose of the Health Professions Registration Act 2005 and the role of the professional standards panel, having regard to the options open to the Board after an initial investigation (s 59(2), including referral to a panel) and the conduct of panel hearings (s 69). Both counsel before me agreed that one of the panel's roles is to act as a 'filter' in dealing with professional conduct and performance matters. The panel deals with a range of matters that the Board chooses not to refer directly to the Tribunal. It conducts its proceedings relatively informally, not open to the public, and without a right to legal representation. The panel determines those matters where it is able to do so (having regard to the limited findings and determinations it is empowered to make), and may refer to the Tribunal those matters where it has made an adverse or unfavourable finding that may warrant a more formal hearing or a greater sanction. It would be inconsistent with this 'filtering' process if the panel was to complete its hearing and then simply refer to the Tribunal all allegations, whether made out or not.
11. If, before the end of the hearing, the panel is of the opinion that a Tribunal hearing should be held, s 70 requires the panel to abandon its hearing and refer the matter to the Tribunal. This provides the panel with the opportunity to make no findings on the individual allegations or matters, but to refer them on. Once the panel completes its hearing, it is limited to the available findings and determinations in s 63(1) and (2).
12. There is also a second aspect of the purposive and contextual approach to interpreting s 63(2) that is relevant here. Dr Hartley's counsel referred me to a number of authorities, including Dr Kabourakis v Medical Practitioners Board of Victoria[2] and Minister for Immigration and Multicultural Affairs v Bhardwaj[3]. Whilst these authorities are not absolutely on point, they stand for the general proposition that a second hearing should not occur where it seeks to revive matters which have been the subject of a 'final' decision favourable to the practitioner. There are administrative and public policy reasons why people affected by decisions need some finality in knowing where they stand. For a health practitioner, the doubt that may arise if a finding in his or her favour could still be referred or reversed (other than by lawful appeal) has clear consequences for reputation, on-going practice, and professional indemnity arrangements.
13. I consider that, if the panel has completed a hearing and made a final decision on one or more of the allegations that is favourable to the practitioner, those particular allegations should not be capable of being re-agitated by referral to the Tribunal unless there is a clear statutory authorisation to that effect. No such statutory authorisation is apparent here.

What is the consequence of the panel's finding that certain allegations were 'not made out'

1. The question therefore arises as to whether the panel has finally determined some of the allegations favourably to Dr Hartley. The parties were diametrically opposed on this issue. It is therefore useful to set out in full the panel's conclusions appearing at page 8 of its decision and reasons:

d) (y),(z), (aa), (bb), (cc), and (dd) are made out. (Noting the audit supplied on 7 October 2008)

By his conduct Dr Hartley has engaged in unprofessional conduct in respect of the above allegations.

The Panel has considered the unprofessional conduct in this case. Under the old Act these breaches would have been classified as serious[4].

The Panel refers the matter to a hearing at VCAT, pursuant to section 63(2)(a) of the Health Professions Registration Act 2005.

1. Having regard to the possible findings open to the panel under s 63(1), and the clear finding of unprofessional conduct for those allegations that "are made out", the subsequent finding that "All other allegations are not made out" carries with it the clear connotation that there was insufficient evidence to support an adverse finding of unprofessional conduct against the practitioner.
2. The Board argued that the panel's finding was not a positive finding that the practitioner had not engaged in unprofessional conduct. It contended that the panel's limited powers (e.g. informal hearing, proceeding without lawyers, no subpoena power etc) meant that the panel may have had insufficient evidence to determine whether unprofessional conduct had occurred but might still consider that the allegations warranted further more formal consideration by the Tribunal. That may possibly be so, but the panel didn't say that in its decision. It instead made a positive finding that those allegations were 'not made out', with the clear implication that the practitioner had no further case to answer on those particular allegations. It is perhaps broadly analogous to a verdict of 'not guilty' on a criminal charge, that is not of itself determinative of innocence, but is nonetheless a decision favourable to the accused that brings the charge to finality.
3. Moreover, s 70 of the Health Professions Registration Act 2005 provides the panel with the opportunity to make no findings on individual allegations and to refer them on without completing its hearing. That is the process the panel could have (or should have) used if it considered there was insufficient material before it, or that it lacked appropriate powers, or that it was otherwise appropriate to refer those allegations to the Tribunal without a finding. Once the panel completes its hearing, it is limited to the available findings and determinations in s 63(1) and (2).
4. In this case, I consider the panels finding that "All other allegations are not made out" is a final decision favourable to the practitioner in relation to those allegations. It manifests an intention that the practitioner has no further case to answer in relation to those allegations. It is also consistent with the 'filtering' process that forms part of the panel's role under the Act. Only those charges that 'are made out', and where there is an adverse finding against the practitioner, should proceed to further review by the Tribunal. As I have indicated, s 70 provides an alternative option to a panel to refer a matter to the Tribunal without making a finding.
5. I therefore determine that 'the matter' that may be referred to a Tribunal hearing under s 63(2)(a) of the Health Professions Registration Act 2005 comprises only those allegations in respect of which the professional standards panel has made a finding under s 63(1)(a),(c) or (d) of that Act. In the case of Dr Hartley, this comprises only the allegations stated that 'are made out' before the panel that have led to findings of unprofessional conduct.
6. It also therefore follows that, in its referral of allegations against Dr Hartley to the Tribunal arising from the decision of the professional standards panel dated 10 December 2008, the Board must not include the allegations in paragraphs 4 to 10 inclusive and paragraph 12(a) of the Draft Allegations dated 14 May 2009, where there has already been a finding that those allegations are not made out.

[1] This principle is also embodied in s 37(c) of the Interpretation of Legislation Act 1984

[2] [2006] VSCA 301 (Court of Appeal - Warren CJ, Chernov & Nettle JJA), inc at [71]

[3] [2002] HCA 11

[4] The Board had anticipated an argument by Dr Hartley that the panel's finding that the breaches were 'serious' for the purpose of the former legislation was an irrelevant consideration. Dr Hartley did not raise any such ground, and it is not therefore dealt with in these reasons.