Health Care Complaints Commission v Kirby [2019] NSWCATOD 47 | Case summary

NCAT Occupational|2018-12-14

Background to the Substantive Application

To address the submissions made by the parties about whether if the proceedings were to continue, they would amount to an abuse of process, it is necessary to set out the background to the Substantive Application. The following summary is taken from the decisions of Kirby v Dental Council of New South Wales [2018] NSWSC 1869 and Kirby v Dental Council of New South Wales [2017] NSWCATOD 64.
In July 2015, dentist Dr Andrew Green, was informed by a patient that she had been treated by Dr Kirby for skin cancer with a product known as "Cansema". Dr Green contacted the Chair of the Dental Council of NSW, Dr William O'Reilly, who told Dr Green he was bound to report the matter. The following month, Dr Green lodged a complaint with the Commission outlining what he had been told by the patient and expressing concern that the treatment described by the patient was outside the normal scope of dental practice and placed the patient at risk.
The Commission forwarded the complaint to Dr Kirby who responded by saying that he denied the allegations made against him and that the person concerned had never been a patient of his dental practice.
Following consultation with the Dental Council, the Commission referred the matter to the Council for investigation.
On 2 December 2015, the Council notified Dr Kirby of its decision to hold an inquiry under s 150 of the National Law to "determine whether any action should be taken, either suspending or placing conditions on your registration".
On 18 December 2015, following an inquiry held over three days, the Council decided to immediately suspend Dr Kirby's registration as a dentist (the December 2015 decision). In oral reasons for that decision the Council stated: [The delegates] were concerned about the information posed in the documents before them, Dr Kirby's oral submissions regarding Dr Green's original complaint and the subsequent inspection of the dental practice by Dr White. The documents produced by Dr White established in the minds of the delegates that Dr Kirby was performing services within his dental practice for which he was not qualified. There were concerns about the apparent prescribing practices of Dr Kirby which included excessive procurement of scheduled medication beyond what would be needed in the practice of dentistry … The delegates were also concerned about the comments made by Dr White that Dr Kirby's practice was not compliant with infection control requirements which represented a risk to the public.

Dr Kirby appeals the decisions made by the Dental Council

Dr Kirby appealed to NCAT against both the December 2015 decision and the February 2016 decision under both ss 159 and 159B of the National Law. Section 159B allows a practitioner to appeal against a decision made by a Council under ss 150 or 150A "with respect to a point of law": s 159B(1). Section 159 allows a practitioner to appeal against certain decisions made by a Council, including a decision to suspend a practitioner's registration and a decision to impose conditions with respect to their registration.
In a decision made on 21 April 2017, the Tribunal (R Titterton, Senior Member; Dr T Boland, Occasional Member; Dr M Stimpson, Occasional Member; B Smith, Occasional Member) confirmed the December 2015 and February 2016 decisions and dismissed the appeals: Kirby v Dental Council of New South Wales [2017] NSWCATOD 64 (the 2017 Tribunal decision).
With respect to the appeal brought under s 159B, Dr Kirby argued that the members of the Council who made the December 2015 and February 2016 decisions had been active in earlier events within the Dental Council at which they made decisions affecting him, and that their earlier activities should have caused them to be disqualified, on natural justice grounds, from playing the decision-making roles they eventually undertook. Dr Kirby contended that their involvement with the initiating complaint, prior to conducting the December 2015 inquiry, gave rise to a reasonable apprehension of bias by the "fair-minded lay observer", the so-called "double might" test enunciated by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]. The Tribunal rejected that contention.
With respect to the appeal brought under s 159, the Tribunal rejected Dr Kirby's contention that the decision to suspend his registration in December 2015 was an "excessive measure" which ought never to have been imposed. The Tribunal reasoned at [145]: [I]n light of [Dr] Kirby's lack of cooperation with the Council, and refusal to answer many of its questions, and his non-attendance on 18 December 2015, the Council had no alternative in view of its obligations to protect the public. As it noted during the hearing on 18 December 2016, the Council was left with no explanation as to the matters it identified during the course of the hearing, and it was concerned that members of the public could be led into believing that Dr Kirby had the necessary qualifications to treat ailments not related to the practice of dentistry, in circumstances when Dr Kirby demonstrated no understanding of this position.
With respect to the February 2016 decision, the Tribunal accepted that the conditions imposed by the Council in that decision did not "correlate neatly" with the risk posed by Dr Kirby identified by the Council in that decision, given the Council's conclusions that Dr Kirby's registration did not require suspension and that there was no evidence that Dr Kirby lacked competence in his practice. However, the Tribunal expressed "grave concerns about Dr Kirby's insight and practices" and went so far as to say at [153] that, if the Council had submitted that it was appropriate to re-impose suspension of Dr Kirby's registration, it would have "given very serious consideration to taking this course".
The Supreme Court dismissed an appeal brought by Dr Kirby against the 2017 Tribunal decision: Kirby v Dental Council of New South Wales [2018] NSWSC 1869 (per Barrett AJ).

Statutory framework

To put the parties' submissions in context it is necessary to examine the respective roles of the Council, the Tribunal and the Commission with respect to complaints made about health practitioners.

The making of a complaint

Division 3 (headed "Complaints [NSW]") of Part 8 of the National Law (headed "Health, performance, conduct") deals with complaints against registered health practitioners. Any person, including a Council, can make a complaint under the National Law about a registered health practitioner: s 145B. A complaint may be made on a number of grounds, including that the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct and that the practitioner is not competent to practice: ss 144(b) and 144(c). A complaint may be made to a Council or the Commission: s 144C.
Before any action is taken on a complaint, the relevant Council and the Commission must consult to see if agreement can be reached between them as to the course of action to be taken concerning the complaint: s 145A.
On receipt of a complaint, the courses of action available to a Council include: making any inquiries about the complaint the Council thinks appropriate; referring the complaint to the Commission for investigation; referring the complaint to the Tribunal; determining not to take any further action in respect of the complaint: s 145B.
The Council (and the Commission) must refer a complaint to the Tribunal if, at any time, it forms the opinion that the complaint may, if substantiated, provide grounds for the suspension or cancellation of a registered health practitioner's registration: s 145D.

Inquiry/review by a Council under ss 150 and 150A

The December 2015 and February 2016 decisions were made by the Council under ss 150 and 150A of the National Law, respectively. Contained in Subdivision 7 (headed "Powers of a Council for protection of public [NSW]") of Division 3 of Part 8 (headed "Health, performance and conduct"), s 150 states: 150 SUSPENSION OR CONDITIONS OF REGISTRATION TO PROTECT PUBLIC [NSW] (1) A 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 - (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or … (2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens - (a) the complaint about the practitioner or student is disposed of; (b) the suspension is ended by the Council. …
Section 150A allows a practitioner to apply to a Council for a review of a decision of the Council made under s 150: 150A REVIEW OF CERTAIN DECISIONS [NSW] (1) A registered health practitioner or student may apply to a Council for the review of a decision of the Council under section 150 to - (a) suspend the practitioner's or student's registration; or (b) impose conditions on the practitioner's or student's registration or alter conditions imposed on the practitioner's or student's registration. (2) On receiving an application for review, a Council - (a) may refuse to reconsider its decision if, in the Council's opinion, the application is frivolous or vexatious; or (b) must otherwise reconsider its decision, and in so doing must consider any new evidence or material submitted by the practitioner or student that the Council reasonably considers is relevant. (3) Following its reconsideration of a decision, a Council may - (a) affirm or vary the decision; or (b) set it aside and take any action the Council has the power to take under section 150. (4) A Council may vary or set aside a decision only if the Council is satisfied there has been a change in the registered health practitioner's or student's circumstances that justifies the variation or setting aside of the decision.
Where a Council imposes conditions on the registration of a health practitioner, the conditions have effect until the complaint against the practitioner is disposed of, or the conditions are removed by the Council, whichever happens first: s 150H(2). Section 150H does not prevent conditions being imposed under another provision of the National Law and is subject to anything done by the Tribunal on an appeal: s 150H(3).

Appeals to NCAT against a decision by a Council made under ss 150 and 150A

A practitioner aggrieved by a decision made by a Council under s 150 to impose conditions on their registration or to suspend their registration, or a decision made under s 150A to affirm or to vary that decision, may appeal to NCAT under ss 159 and/or 159B of the National Law.
Section 159 relevantly states: 159 RIGHT OF APPEAL [NSW] (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession-- … (a) against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension; (b) against conditions imposed by the Council for the health profession on the person's registration under section 127AA or Division 3 or 4 or the alteration of the conditions by the Council; … Note: An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. … (3) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given.
Section 159B relevantly states: 159B APPEALS ON POINT OF LAW [NSW] (1) A registered health practitioner or student who is the subject of action taken by the Council for the health profession under section 150, 150A or 150C 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. … (emphasis added)
On appeal against a decision of a Council under ss 159 and/or 159B, the Tribunal may by order: confirm the decision; set aside the decision; or set aside the decision and make a new decision (being a decision that the Council could have made): s 159C.

Role of the Commission

On 21 December 2015, as required by s 150D of the National Law, the Council referred Dr Kirby's conduct the subject of the s 150 inquiry to the Commission for investigation. Section 150D provides: 150D REFERRAL OF MATTER TO COMMISSION [NSW] (1) A Council must, as soon as practicable but no later than 7 days after taking action under section 150, refer the matter to the Commission for investigation. (2) The Council may (despite any other Act or law) give to the Commission information obtained by the Council in connection with the exercise of functions under section 150 (including information, copies of documents or evidence obtained under section 150J and a copy of a recording made under section 150B) in respect of the matter. (3) The matter must be dealt with by the Commission as a complaint made to the Commission against the registered health practitioner or student concerned. (4) The Commission must investigate the complaint or cause it to be investigated and, as soon as practicable after it has completed its investigation and if it considers it appropriate to do so, refer the complaint to the Tribunal or a Committee for the health profession in which the health practitioner or student is registered. Note: See section 145D which provides that both Council and the Commission have a duty to refer a complaint to the Tribunal if, at any time, either of them is of the opinion that the complaint, if substantiated, would provide grounds for the suspension or cancellation of the registered health practitioner's or student's registration. (4A) Despite subsections (3) and (4), the Commission is not required to investigate the complaint or cause it to be investigated if the matter that is the subject of the complaint is being, or has been, investigated as, or as part of, another complaint to the Commission. …
Section 145D states: 145D SERIOUS COMPLAINTS MUST BE REFERRED TO TRIBUNAL [NSW] (1) Both a Council for a health profession and the Commission are under a duty to refer a complaint to the Tribunal if, at any time, either forms the opinion that it may, if substantiated, provide grounds for the suspension or cancellation of a registered health practitioner's or student's registration. … Note: A referral under this section is an application made to the Tribunal for a general decision for the purposes of the Civil and Administrative Tribunal Act 2013.
The Health Care Complaints Act 1993 (NSW) gives the Commission broad powers to investigate a complaint about a registered health practitioner including a complaint referred by a Council under s 145D of the National Law (See Division 5 (headed "Investigation of Complaints") of Part 2 (headed "Complaints") of the Health Care Complaints Act.)
At the end of the investigation of a complaint against a health practitioner, the Commission must do one of five things, which include referring the complaint to the Commission's Director of Proceedings: s 39(1)(a) of the Health Care Complaints Act. Section 90B of that Act states: 90B FUNCTIONS OF DIRECTOR OF PROCEEDING (1) The following functions of the Commission are to be exercised only by the Director of Proceedings in relation to any complaint referred to the Director by the Commission: (a) to determine whether the complaint should be prosecuted before a disciplinary body and, if so, whether it should be prosecuted by the Commission or referred to another person or body for prosecution, (a1) if the Director determines that the complaint should be prosecuted before a disciplinary body by the Commission, to prosecute the complaint before the disciplinary body,
As noted, the Commission (and the Council) must refer to NCAT a "serious complaint", that is, a complaint which, if substantiated, may provide grounds for the suspension or cancellation of a practitioner's registration: s 145D of the National Law. In addition, the Commission has a discretionary power to refer any complaint to the Tribunal: s 145C(1)(a). The available material does not reveal whether the Complaint referred to NCAT in the Substantive Application was referred under s 145D or s 145C. The Substantive Application simply states that the Commission's Director of Proceedings "had determined to prosecute a complaint against [Dr Kirby] pursuant to s 90B(1) of the Health Care Complaints Act".

Role of the Tribunal following referral of a complaint about a health practitioner under ss 145C and/ or 145D of the National Law

Where a complaint about a registered health practitioner is referred to the Tribunal by the Commission under ss 145C(1)(a) or 145D, the Tribunal may exercise any of the powers conferred by Subdivision 6 (headed "Disciplinary powers of Tribunals") of Division 3 (headed "Complaints [NSW]") of Part 8 if it finds the subject-matter of that complaint to have been proved or the practitioner admits to it in writing to the Tribunal: s 149.
The Tribunal's powers under Subdivision 6 of Division 3 of Part 8 include: 149A GENERAL POWERS TO CAUTION, REPRIMAND, COUNSEL ETC [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner - (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal.
Where the Tribunal is satisfied that a registered health practitioner is guilty of "professional misconduct" the Tribunal may suspend the practitioner's registration for a specified period or cancel their registration: s 149C(1)(b).
If the Tribunal suspends or cancels a health practitioner's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may make a "prohibition order": s 149C.

Submissions

Dr Kirby does not dispute that the Commission had the power under the National Law to file the Substantive Application. However, he contends that, given the history in relation to the Complaint, the application amounts to an abuse of process. Dr Kirby relies on the principle of autrefois convict, which is a principle of law which may be pleaded as a defence to criminal proceedings to prevent the accused from being prosecuted for the same or substantially the same offence for which the accused has been previously convicted (LexisNexis, Halsbury's Laws of Australia, (at 1 April 2019) 195 Evidence, 'Estoppel by Record - Evidence' [195-2590]). Dr Kirby asserts that it would amount to an abuse of process if the Commission were permitted to maintain proceedings for the following reasons.
First, he asserts that there is no material difference between the conduct the subject of the initiating complaint considered by the Council in 2015 and 2016 and the conduct the subject of the Complaint referred to NCAT for determination in the Substantive Application. Each complaint alleges that Dr Kirby: 1. inappropriately prescribed medication to Patient A on various occasions between February 2010 and November 2015; and 2. failed to maintain adequate infection control standards as particularised in the report prepared by Dr Brendan White who investigated Dr Kirby's practice at the request of the Council in November 2015.
Second, Dr Kirby contends that the conduct the subject of the initiating complaint to the Council has now been the subject of extensive consideration by both the Dental Council and NCAT. The initial s 150 inquiry conducted by the Council was held over three days in December 2015. The subsequent s 150A review was conducted on 12 February 2016. The appeals to NCAT brought by Dr Kirby against the December 2015 and February 2016 decisions were heard over four days. Dr Kirby points out that on appeal, as required by s 159, the Tribunal considered the merits of each decision.
Third, Dr Kirby asserts that the allegation that he failed to maintain adequate infection control standards is a complaint of "some antiquity", the Council having determined in the s 150A review proceedings that the issues of concern identified by the Council investigator, Dr White, had by that time been resolved. He points out that the Council in the s 150A review concluded that Dr Kirby had addressed those concerns.
Fourth, he asserts that the disciplinary orders the Commission seeks in the Substantive Application are largely the same as those made by the Council in 2016 and confirmed by NCAT on appeal in 2018. Further, he contends that, given the decision made by the Council in February 2016 to lift the suspension on Dr Kirby's registration, it would no longer be appropriate to order the suspension or cancellation of Dr Kirby's registration.
Fifth, he points out that the conduct the subject of the Complaint occurred between February 2010 and August 2014. Given the passage of time, he contends that it would it would be oppressive if he were again "tried" for the matters the subject of the original complaint.
In short, Dr Kirby contends that the Commission, in now prosecuting the Complaint, is asking the same decision-maker, namely NCAT, to, in effect, remake the 2017 Tribunal decision and, further, is relying on the same evidence and submissions that was before the Council in 2015 and 2016 and the Tribunal on appeal in 2018. He argues that the Tribunal is now being asked to make findings of fact about matters that have now been the subject of findings by both the Tribunal itself and the Council. Taken together with the fact that on appeal the Tribunal confirmed the orders made by the Council in 2016, the proceedings, if they continue, would be an abuse of process.
The Commission disagrees. In short, it contends that the submissions advanced by Dr Kirby reveal a misapprehension of the different roles and functions of the Tribunal and the Council and ignores the obligations imposed on the Commission by the National Law and the Health Care Complaints Act to investigate complaints referred by a Council after conducting an inquiry under ss 150 and/or 150A. In addition, the Commission contends that Dr Kirby's submissions fail to acknowledge that an inquiry under s 150 is nothing more than an interim measure taken where there are immediate concerns for the health and safety of the public.

Are the proceedings an abuse of process?

Dr Kirby's argument that it would amount to an abuse of process if the Tribunal were to proceed to determine the new complaint rests on the flawed assumption that there is no material difference between the role of the Tribunal in exercising the disciplinary powers conferred by Subdivision 6 of Division 3 of Part 8 of the National Law, the role of the Council in exercising its powers under ss 150 and 150A of the National Law, and the role of the Tribunal in exercising its powers on appeal under s 159B.
First, the Tribunal can only exercise the disciplinary powers conferred by Subdivision 6 of Division 3 of Part 8 of the National Law if the Tribunal finds the subject matter of a complaint against the subject practitioner to have been proved or the practitioner admits to it in writing to the Tribunal: s 149. In contrast, it is not a pre-condition to the exercise of the powers conferred on the Council by ss 150 and 150A, or the exercise of powers of the Tribunal conferred by s 159, to first make conclusive findings of fact about the matters the subject of the initiating complaint.
The Council may exercise the power to suspend or to impose conditions on the practitioner's registration conferred by ss 150 and 150A if 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".
As Barrett AJ explained in Kirby v Dental Council of New South Wales at [56], s 150(1) requires the Council to perform an "evaluative task": [T]he 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.
In the 2017 Tribunal decision, the Tribunal made much the same point, explaining at [115] that in determining whether or not to take action under s 150, the role of the Council is not to make findings of fact or to reach a determination of the merits of the complaint. It cited in support the following passage from Saedlounia v Medical Council (NSW) [2015] NSWCATOD 53 at [169]: The purpose [of s 150 of the National Law] is protection of the public. In cases such as this where serious allegations have been made which, if true, could require suspension or cancellation of the appellant's registration, but the evidence is incomplete and further investigation is needed, the issue is not whether the allegations are proved, but whether the evidence establishes a risk to the public requiring imposition of a condition for protection of the public.
Similarly, as explained in Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 (Karimi) at [123], in determining an appeal brought under s 159, the Tribunal is not required to make conclusive findings of fact based on the material before it. As the Tribunal pointed out, when the Council and Tribunal are required to exercise their respective powers under ss 150 and 159, there may be a continuing dispute as to precisely what occurred and why, and investigations into complaints concerning the practitioner by bodies such as the Commission may not have been completed or even commenced: Karimi at [123].
Second, in determining an appeal brought under s 159, the role of the Tribunal, in effect, mirrors the role of the Council under ss 150 and 150A. The Tribunal is required to deal with the appeal "by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given". As explained in Karimi at [123], in determining an appeal under s 159 the Tribunal is "called on to exercise afresh the administrative discretion in s 150(1) having regard to the material before it".
Third, in determining a complaint under Subdivision 6 of Division 3 of Part 8 of the National Law, the Tribunal may exercise a much broader range of powers than those available to a Council under ss 150 and 150A. Among other things, where a complaint is proven or admitted the Tribunal may: caution or reprimand the practitioner; order the practitioner to seek and undergo medical or psychiatric treatment or counselling; order the practitioner to complete an educational course; order the practitioner to report on the practitioner's practice; order the practitioner to seek and take advice in relation to the management of the practitioner's practice from persons specified by the Tribunal; and, in certain cases, impose a fine on the practitioner. In addition, where the Tribunal is satisfied that the practitioner is guilty of "professional misconduct", the Tribunal may suspend the practitioner's registration for a specified period or cancel their registration: s 149C(1)(b). If the Tribunal suspends or cancels a practitioner's registration, and it is satisfied the person poses a substantial risk to the health of members of the public, it may make a "prohibition order": s 149C.
Fourth, the determination of the appropriate orders to be made by the Tribunal under s 159C is directed to the immediate action that may need to be taken in order to protect the health or safety of any person or persons or the public interest (Karimi at [123]). In contrast, as explained by Meagher JA in HCCC v Do [2014] NSWCA 307 at [35], the purpose of protective orders made by the Tribunal under Subdivision 6 of Division 3 of Part 8 is multi-faceted and includes general deterrence: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
That the subject matter of the Complaint mirrors the subject matter of the matters already considered by the Council and by the Tribunal on appeal is not determinative. In determining the threshold question raised by the Substantive Application, namely whether the subject matter of the Complaint is proven, the Tribunal is not bound by previous findings made by the Council or the Tribunal. Notably, neither the Tribunal nor the Council has been required to determine whether, as the Commission asserts in the Complaint, the conduct the subject of the Complaint amounts to professional misconduct, a highly relevant consideration in determining the appropriate form of disciplinary orders under Subdivision 6 of Division 3 of Part 8 of the National Law. Further, I note that the assertion made by Dr Kirby that the Commission is now seeking the same orders confirmed by the Tribunal in 2018, namely the imposition of conditions on his registration, is incorrect. The Commission now seeks a range of orders, including the suspension or cancellation of Dr Kirby's registration.
Dr Kirby's contention that the current proceedings are, in effect, a duplication of the ss 150, 150A proceedings before the Council and the ss 159, 159B appeal before the Tribunal is misconceived. He has not previously been "tried" for the conduct the subject of the Complaint. Neither the Tribunal nor the Council determined or was required to determine whether that conduct was proven. The autrefois convict defence, if it were theoretically available in proceedings of this nature or Tribunals generally, which I doubt, would not be relevant to this particular case.
It is regrettable that the conduct the subject of the Complaint dates back to 2010. Of itself, however, that does not render the proceedings an abuse of process, especially in circumstances where part of the reason for the delay has been the appeals initiated by Dr Kirby.
I am not satisfied that the proceedings are an abuse of process. The application for a permanent stay and/or dismissal of the proceedings must be dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 03 April 2019

Does the Tribunal have the power to permanently stay the proceedings?

As noted above, the parties agree that the Tribunal has the power to permanently stay the proceedings commenced by the Substantive Application. For the reasons outlined below, I am not persuaded, as contended by Dr Kirby, that if proceedings were to continue, it would amount to an abuse of process. Accordingly, it is not necessary to come to a concluded view on the question of whether the Tribunal has power to permanently stay the proceedings.
It is uncontroversial that courts have an implied or inherent power to stay proceedings found to be an abuse of their processes (see for example, Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23, Strickland v Commonwealth Director of Public Prosecutions [2018] HCA 53). Whether this Tribunal has power to permanently stay proceedings is a controversial issue which remains to be resolved. In Lindsay v Health Care Complaints Commission [2005] NSWCA 356, Hunt AJA doubted that the Medical Tribunal had power to stay disciplinary proceedings as an abuse of process. On the other hand, in Council of the NSW Bar Association v Archer [2008] NSWCA 164 (at [40]), Hodgson JA took the opposite view. In Council of the Law Society of NSW v Clarke [2017] NSWCATOD 142 and Health Care Complaints Commission v Karunaratne [2018] NSWCATOD 137, differently constituted tribunals accepted as correct the proposition that NCAT has power to permanently stay proceedings.
Even if NCAT lacks the power to permanently stay proceedings, if the proceedings are found to be an abuse of process, in my view s 55(1)(b) of the NCAT Act would permit the Tribunal to dismiss the proceedings on the ground that they are vexatious. The term "vexatious", which is not defined by the NCAT Act, probably extends to proceedings found to be an abuse of process of the type asserted by Dr Kirby.
Support for this proposition can be found in a number of decisions which have characterised proceedings found to amount to an abuse of process (in the sense used by Dr Kirby) as also being vexatious. For example, in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175, French CJ said at [33] that abuse of process principles may be invoked to prevent attempts to litigate that which should have been litigated in earlier proceedings as well as attempts to re-litigate that which has already been determined. His Honour cited with approval the decision of Mason CJ, Deane and Dawson JJ in Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 in which their Honours said that "proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings" (emphasis added).
In Ridgeway v R (1995) 184 CLR 19 at 74-5; 129 ALR 41 at 83, Gaudron J made the following remarks: Abuse of process cannot be restricted to "defined and closed categories" because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of "abuse of process" is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are "seriously and unfairly burdensome, prejudicial or damaging" or "productive of serious and unjustified trouble and harassment". (Footnotes omitted, emphasis added)
The decision of Crocker v Toys 'R US (Australia) Pty Ltd (No 3) [2015] FCA 728 provides a further example. Reeves J at [9] commented on the interrelationship between the terms "abuse of process" and "vexatious" proceedings:
These expressions [scandalous, vexatious or frivolous] can be used either separately, or in conjunction, or interchangeably, with the expression "abuse of the process of the court":. … A "vexatious" proceeding is one without foundation, which cannot succeed, or is brought for an ulterior and collateral purpose: …. It might also describe proceedings that are "seriously and unfairly burdensome, prejudicial or damaging …". (Footnotes omitted, emphasis added)

Health Care Complaints Commission v Kirby

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