Health Care Complaints Commission v Kirby [2025] NSWCATOD 144;

Commissioner of Australian Federal Police v Curran (1984) 2 FCR 240

Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11

Director of Public Prosecutions (Vic) v Leys [2012] VSCA 304; (2012) 44 VR 1

Director of Public Prosecutions v Walters (2015) 49 VR 356; [2015] VSCA 203

Gleeson v New South Wales Harness Racing Authority (1990) 21 ALD 515

Kelly v R (2004) 218 CLR 216; [2004] HCA 12

McNally v Resolution Life Australasia Limited [2025] NSWCATAP 116

Medical Council of New South Wales v Lee [2017] NSWCA 282

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; [HCA] 11; [2002] HCA 11; 187 ALR 117; 76 ALJR 598

Minister for Resources v Dover Fisheries Pty Limited [1993] FCA 366; (1993) 43 FCR 565

Muto v Shepparton City Council [2021] VSCA 73; 228 LGERA 188

NAQF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 181

Nursing and Midwifery Board of Australia v Linquist [2019] NSWSC 978

Ombudsman v Commissioner of Police (1987) 11 NSWLR 386

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 347 ALR 405; 91 ALJR 936

Project Blue Sky Inc v Australian Broadcasting Association (1998) 194 CLR 355; [1998] HCA 28

Re Australian Federation of construction contractors; Ex parte Billing [1986] HCA 74; 68 ALR 420

SAS Trustee Corporation v Miles [2018] HCA 55; 361 ALR 206

Scott v Moses (1957) 75 WN (NSW) 101

Tsolis v Health Care Complaints Commission [2024] NSWCA 284

Tu v University of Sydney (2003) 57 NSWLR 376; [2003] NSWCA 170

Western Australian Planning Commission v Southregal Pty Limited (2017) 259 CLR 106; [2017] HCA 7

1. On 14 March 2025 Dr David William Kirby (Dr Kirby) filed an application in these proceedings, seeking a declaration that Dr Alex Selby "was no longer eligible to sit as an Occupational Member of the Civil and Administrative Tribunal from November 2023", and a consequential order that the Stage 1 Decision of the Tribunal of 21 June 2024 finding Dr Kirby guilty of unsatisfactory professional conduct be set aside for want of jurisdiction. In support of his application, Dr Kirby relied on an Affidavit sworn by him on 13 March 2025.
2. The Health Care Complaints Commission (the Commission) opposed Dr Kirby's application. The Commission filed no evidence in this application.
3. In support of his application, Dr Kirby filed submissions on 4 April 2025. The Commission filed submissions in answer on 30 May 2025. Dr Kirby filed submissions in reply on 14 June 2025. Counsel for the parties spoke to their submissions on 3 September 2025.
4. On 3 September 2025, the Tribunal reserved its decision.
5. After reserving its Decision, the Tribunal considered that it would be assisted by further submissions with respect to a particular matter with which the parties' submissions may not have directly engaged. In the interests of procedural fairness, the Tribunal invited the parties to make further submissions with respect to that issue. On 8 October 2025, pursuant to a timetable agreed to by the parties, Dr Kirby filed further submissions. On 14 October 2025, the Commission replied to Dr Kirby's further submissions.

1. It was agreed by Counsel for the parties that the Tribunal as presently constituted has jurisdiction to determine Dr Kirby's application. Such agreement was appropriate in the Tribunal's view.
2. Section 165B of the Health Practitioner Regulation National Law (National Law) is concerned with the constitution of the Tribunal to determine, inter alia, "applications". Section 165B(2) provides that, when hearing disciplinary proceedings against, in this case, a dental practitioner, the Tribunal is to be constituted by an Australian lawyer of at least 7 years' standing (which includes a Senior Judicial Officer), two health practitioners selected for appointment by the Dental Council as Occasional Members who are registered in the same health profession as the dental practitioner, and a person who is not registered in the health profession who has been selected by the Dental Council as an Occasional Member from among a panel of lay persons for the time being nominated by the Minister.
3. Section 165B(5A) provides that, when making an "ancillary decision" or an "interlocutory decision" within the meaning of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) the Tribunal is to be constituted by the Tribunal List Manager or, as in this case, a Senior Judicial Officer.
4. The CAT Act defines "ancillary decision" as a decision that is "preliminary to, or consequential on, a decision determining proceedings", including, relevantly for present purposes (a) a decision "concerning whether the Tribunal has jurisdiction to deal with a matter".
5. As is apparent from the terms of Dr Kirby's application and the submissions of the parties, the issue for determination in this application is whether the Tribunal had jurisdiction to make its Stage 1 Decision on 21 June 2024, and is thus, pursuant to s 165B(5A) of the National Law, able to be determined by the Tribunal as presently constituted.

1. The background to the present application is not in dispute, and can be briefly stated. In 2021 Dr Alex Selby was appointed as an Occasional Member of the Tribunal pursuant to s 165B(2)(b) for the hearing of disciplinary proceedings brought against Dr Kirby by the Commission. Dr Selby was then registered under the National Law as a practising Dentist. The Stage 1 proceedings were heard on 6 to 10 March 2023 and 30 October 2023. In November 2023 Dr Selby ceased to be registered as a practising Dentist, and became registered as a non-practising Dentist. When the Tribunal published its Stage 1 decision on 21 June 2024, Dr Selby was registered as a non-practising Dentist.
2. In March 2025 Dr Selby recused himself from further sitting as a member of the Tribunal which, if Dr Kirby's present application is unsuccessful, will conduct a Stage 2 hearing and determine the protective orders which are appropriate in the circumstances. Dr Selby's purported recusal assumes no significance in the determination of the present application.
3. As the submissions of Counsel for the parties confirm, the controversies requiring determination in these proceedings are:

(1) whether Dr Selby's registration as a non-practising Dentist rendered him ineligible to continue as an Occasional Member of the Tribunal;

(2) whether, if the provisions of the National Law rendered Dr Selby ineligible to continue as an Occasional Member of the Tribunal after November 2023, the provisions of the CAT Act enabled him to; and,

(3) whether, if Dr Selby was ineligible to continue as an Occasional Member of the Tribunal after November 2023 on any basis, the Tribunal lacked jurisdiction to continue to hear the proceedings.

1. Dr Kirby submitted, correctly in the Tribunal's view, that the eligibility of Dr Selby to sit as an Occasional Member of the Tribunal after he changed his registration in November 2023 was to be analysed through the National Law and the CAT Act. Dr Kirby submitted that where there was inconsistency between the provisions of the National Law and the CAT Act, the provisions of the National Law prevail. As submitted by Dr Kirby, s 165A of the National Law so provides.
2. By particular reference to s 75 and s 165B(2)(b), Senior Counsel for Dr Kirby submitted that the National Law was "unequivocal in the terms of the restraints upon a non-registered practitioner to practise", and confined qualification to sit as an Occasional Member of the Tribunal to, in this case, Dentists holding practising registration. Sitting as an Occupational Member of the Tribunal was submitted to fall within the regulator's definition of "practising", and thus prohibited pursuant to s 75 of the National Law. The AHPRA and National Boards Code of Conduct, as applying to dental practitioners, and the definition of "practise" on page 30 of the Code were relied on in support of that contention. The Code provides that "Practise means any role, whether remunerated or not, in which the individual uses their skills and knowledge as a practitioner in their regulated health profession. For the purposes of this code, practise is not restricted to the provision of direct clinical care. It also includes using professional knowledge in a direct non-clinical relationship with patients, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that have an impact on safe, effective delivery of health services in the health profession".
3. It was submitted by Dr Kirby that, when sitting as an Occasional Member of the Tribunal, Dr Selby was impermissibly engaging in the practice of dentistry as doing so involved "working" in a "regulatory" role. The role that Members of the Tribunal play was also submitted to have the "impact" referred to in the Code of Conduct, and thus constitute practising dentistry.
4. In support of his contention that there is a material and important distinction between practising and non-practising registration, Dr Kirby relied on s 75(1) of the National Law, which provides that a practitioner who holds non-practising registration in a health profession must not "practise" the profession. Section 75(2) provides that a contravention of s 75(1) by a registered health practitioner does not constitute an offence but "may constitute behaviour for which health, conduct or performance action may be taken".
5. Dr Kirby referred to the definition in s 5 of the National Law of "health practitioner" as an individual who "practises" a health profession. Dr Kirby submitted that, by sitting as an Occasional Member of the Tribunal, Dr Selby was "practising" his profession in breach of s 75, and that it is inconceivable that the legislature would have intended that a practitioner who was prohibited from practising his/her profession by the National Law could nevertheless hold an appointment under the National Law which involved "practising" his/her profession.
6. Senior Counsel for Dr Kirby also relied on the term "when conducting" proceedings of the kinds referred to in s 165B(2) as evidencing the legislative intention that Dr Selby needed to have practising registration at all times that he was sitting as an Occupational Member of the Tribunal in order to remain eligible to do so. The context in which "when conducting" finds expression in the statutory provision was submitted to provide no basis for not adopting the ordinary, present continuous tense meaning of the verb. The statutory criteria by reference to which allegations of unsatisfactory professional conduct are evaluated under the National Law were submitted to support finding that, to be able to properly discharge his/her duties as an Occasional Member of the Tribunal it was necessary for a practitioner to maintain the currency of qualifications and experience required of practising Dentists, which may not be required of non-practising Dentists.
7. Dr Kirby referred to the provisions of s 8 of Schedule 2 of the CAT Act which provides that:

"members and former members may complete unfinished matters:

(1) This clause applies to a member (and "affected member") dealing with any matters relating to proceedings before the Tribunal that have been heard or partly heard (or otherwise the subject of deliberations) by the member if, during the proceedings, the member -

(a) ceases to have a qualification specified by a Division Schedule for a division of the Tribunal or enabling legislation for participation in the proceedings other than because of any of the following reasons -

(i) misconduct or unsatisfactory conduct of the member,

(b) ceases to be a member because of the expiration of the period of the member's appointing, or both.

(2) An affected member may, despite becoming an affected member, complete or otherwise continue to deal with any matters in the proceedings concerned.

(3) While completing or otherwise dealing with matters referred to in subclause (2), the affected member is taken to have and may exercise all the rights and functions of a member that the affected member had immediately before becoming an affected member."

1. To the extent that, as he, correctly, anticipated, the Commission relied upon clause 8(2) of Schedule 2 to the CAT Act as providing an alternative basis on which Dr Selby could continue as a Member of the Tribunal after November 2023, Senior Counsel for Dr Kirby submitted that so finding was "plainly contradictory to the stringent provisions" of the National Law, including the definition of health practitioner in s 5, and the unequivocal prohibition in s 75 against a non-registered health practitioner practising and thus precluded by s 165A of the National Law.
2. Dr Kirby's contention was submitted to be supported by the objectives and guiding principles of the National Law, as they are articulated in s 3A, requiring the Tribunal when exercising functions under the law to regard the protection of the health and safety of the public as the paramount consideration. Hearing disciplinary proceedings involves the Tribunal exercising a function pursuant to the National Law. Reliance was also placed on clause 9 of Schedule 5 to the CAT Act, which provides that, when exercising division functions for the purposes of the National Law, the Tribunal is under a duty to observe the objectives and principles referred to in sections 3 and 3A of the National Law.
3. Dr Kirby submitted that finding that a practitioner who becomes a non-practising health practitioner "with reduced professional obligations and responsibilities" loses the right to continue to sit on the Tribunal in extant Stage 1 proceedings was consistent with the "weighty role assigned to members dealing with health matters", as the provisions of the National Law and the CAT Act were asserted to make clear.
4. Dr Selby's asserted ineligibility to sit as an Occasional Member of the Tribunal after November 2023 was submitted to have "irrevocably tainted" the Tribunal's Stage 1 Decision. The effect of Dr Selby's asserted ineligibility on the validity of the Tribunal's Stage 1 Decision was submitted to be incurable and that, as such, the Decision should be set aside for want of jurisdiction.

1. The Commission summarised the basis of its opposition to Dr Kirby's application in the following terms:

"1 At all material times Dr Selby was validly appointed as a Member of the Tribunal.

2 Dr Selby did not at any material time vacate the office of his appointment as a Member of the Tribunal.

3 To the extent that the change in the nature of Dr Selby's registration had the effect that he was no longer qualified for appointment as an Occasional Member - a matter about which the HCC reserves its position and makes no submission at this time, as it is unnecessary to do so - the provisions of the CAT Act have the effect that Dr Selby was able and eligible to continue to sit as a Member of the Tribunal."

1. The Commission made a number of submissions with respect to jurisdictional error, and referred to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11, 187 ALR 117; 76 ALJR 598. With respect to the Commission, the Tribunal does not consider that decision materially assists in the determination of this application. The authority to which the Commission referred involved a failure to exercise a jurisdiction which undoubtedly existed. The issue in this application is whether the Tribunal had jurisdiction to continue to hear the disciplinary proceedings against Dr Kirby after Dr Selby became a non-practising Dentist in November 2023. Whether the Tribunal failed to exercise jurisdiction, if it had jurisdiction, or otherwise erred in its exercise is not for determination in these proceedings, or by the Tribunal, however constituted.
2. The Commission referred to clause 12 of Schedule 5 of the CAT Act which mandates that the President of the Tribunal must appoint a person as an Occasional Member for particular proceedings in the Health Practitioner List if that person has been selected for participation in the proceedings in accordance with any applicable procedure specified by or under the National Law. It is not in dispute that Dr Selby's initial appointment was valid.
3. Counsel for the Commission submitted that s 165B(2)(b) of the National Law required only that Dr Selby be a health practitioner registered in the same health profession as Dr Kirby. Dr Selby undoubtedly met that qualification at the time of his appointment, which was effected pursuant to s 11 of the CAT Act. Whether, as the Commission recognised, the change in Dr Selby's status from practising to non-practising registration "invalidated his appointment in some way" is controversial.
4. As anticipated by Dr Kirby, to the extent that it might be necessary to do so, the Commission placed significant reliance on the provisions of clause 8 of Schedule 2 to the CAT Act, the terms of which have been set out earlier in these reasons.
5. Counsel for the Commission referred the Tribunal to the provisions of s 11 of the CAT Act, and to clauses 6 and 7 of Schedule 2 to the CAT Act. Section 11 of the CAT Act provides that the President of the Tribunal may appoint a person to be an Occasional Member in relation to particular proceedings if the person is qualified to be appointed as a Member of the kind concerned (pursuant to s 165B(2)) and the President is satisfied that the appointment of the person is necessary to enable the Tribunal to be properly constituted to exercise its functions in the proceedings. As their terms confirm, these provisions are concerned only with the initial appointment of a person as a Member of the Tribunal.
6. Clause 7 of Schedule 2 to the CAT Act is concerned with "vacancy in office of Member (other than President)" and provides the circumstances in which a vacancy in office of a member may arise. As is not in doubt, none of those provisions applied to Dr Selby as a result of the change in his registration.
7. The provisions of clause 8 of Schedule 2 to the CAT Act, which came into effect after the National Law was enacted, were submitted to be consistent with the terms of s 165C of the National Law which provides that:

"(1) If one of the members (other than the Presiding Member) constituting the Tribunal for the purpose of conduct a hearing under this Law vacates office for any reason before an inquiry or appeal is completed or a decision is made in respect of an inquiry or appeal, the inquiry or appeal may be continued and a determination made by the remaining members of the Tribunal.

(2) If more than one of the members vacate office, or the Presiding Member vacates office, for any reason before the Tribunal has completed an inquiry or appeal or made a determination in respect of an inquiry or appeal, the inquiry or appeal is terminated.

(3) When an inquiry or appeal is terminated, the Tribunal may be reconstituted in accordance with this Division for the purposes of conducting a new inquiry or appeal in respect of the matter concerned."

1. Section 165C(4) makes clear that, in the present circumstances, a Senior Judicial Officer constitutes the Presiding Member.
2. It was submitted by Counsel for the Commission that the legislature could have included in clause 7 the loss of a qualifying feature as one of the criteria by reason of which an Occasional Member vacated office but did not do so, and that clause 8 of Schedule 2 specifically preserves a person's capacity to continue sitting as a Member of the Tribunal, notwithstanding a change in, or loss of a qualification for appointment. The Commission submitted that the change in Dr Selby's registration "at most gave rise to a change to which clause 8 applies and pursuant to which he was entitled to remain as an Occasional Member to determine the Stage 1 proceedings". The Commission further submitted that if, contrary to its contentions, the change in Dr Selby's registration from general registration to non-practising registration did mean that he ceased to have a "qualification specified by ... enabling legislation", Clause 8 of Schedule 2 of the CAT Act operated to preserve his continued eligibility for membership of the Tribunal hearing and determining the disciplinary proceedings against Dr Kirby.
3. Counsel for the Commission submitted with respect to s 165A of the National Law that there was no inconsistency between the relevant provisions of the National Law and those of the CAT. In oral submissions, Counsel for the Commission confirmed its contention that the relevant provisions of the National Law and the CAT Act were "complementary", and, in the present circumstances, entailed no inconsistency. It was thus submitted that 165A of the National Law was not enlivened.
4. The Commission relied on the statement in Medical Council of New South Wales v Lee [2017] NSWCA 282 at [7] (Basten JA, Beazley P agreeing), and [87] (Sackville AJA agreeing) that a provision like s 165A of the National Law "will be engaged only where there is inconsistency or repugnancy between the paramount and the subordinate legislation". The Commission submitted, correctly in the Tribunal's view, that it is first necessary to construe the provisions of the relevant legislation in order to determine whether there is an inconsistency. The Commission relied on the decision in DPP (Vic) v Leys [2012] VSCA 304; [2012] 44 VR 1 at [157] in which the Supreme Court of Victoria agreed with the statement by Megarry J in C & J Clark Ltd v Inland Revenue Commissioners (1973) 1 WLR 905 at [911] that "Where there is no clash, the phrase does nothing: if there is a collision, the phrase shows what is to prevail. The phrase provides no warranty of universal collision". It was accordingly submitted that there was neither expressly nor impliedly any provision of the National Law which was inconsistent with the application of clause 8 of Schedule 2 of the CAT Act which provision "simply does not conflict with any provision of the National Law".
5. It was submitted that the National Law mandated "only requirements for appointment (as an Occasional Member of the Tribunal), not requirements for the continuation of that appointment" and that there was accordingly no inconsistency between the National Law and the CAT Act in relation to the circumstances in which a person appointed to be a Member of the Tribunal is eligible to continue to be appointed to the Tribunal. The absence of any provision in the National Law with respect to the circumstances in which the ineligibility of a Member to continue was relied on by the Commission in support of its contention that there was no inconsistency which could enliven s 165A.
6. The Commission further submitted that its construction of the legislative provisions was consistent with the provisions of clauses 12 and 13 of Schedule 5 to the CAT Act and involved no inconsistency with any provision of the National Law.
7. Counsel for the Commission submitted that there was no "real issue of statutory construction" raised by Dr Kirby but, that if there was, the observations of Leeming JA in Tsolis v Health Care Complaints Commission [2024] NSWCA 284 at [34] were apposite. His Honour there said:

"This Court is to prefer a construction which promotes the purpose or object of the statute: National Law, Schedule 7 clause 7 (which displaces the corresponding s 33 of the Interpretation Act 1987 (NSW)). The evident purpose is to prevent the need to appoint a new non-legal member of the Tribunal in the event of death, incapacity or other vacation of position. That has benefits to the public, as well as to the health practitioner. It is a form of provision which has analogies in s 45AA of the Supreme Court Act 1970 (NSW) and s 21A of the Criminal Appeal Act 1912 (NSW). That purpose would be frustrated if Mr Tsolis' narrow construction were adopted. It would be promoted by the construction propounded by the Commission."

1. In Tsolis, albeit involving the construction of s 165C of the National Law, the Court of Appeal dismissed an appeal challenging the legitimacy of the continuation of proceedings by a three Member Tribunal, where one of the Members was appointed as a Professional Member of the Psychology Council, thereby becoming ineligible for continuing appointment to the Tribunal. The decision was submitted to be supportive of the Commission's case.
2. The Commission opposed Dr Kirby's reliance on the AHPRA Code of Conduct, the relevant provision of which has been referred to earlier. The Tribunal suggested to Counsel for the Commission during the hearing, that it was difficult to accept that it cannot permissibly have regard to the Code of Conduct.
3. The Commission referred to the provisions of clause 2 of Schedule 5D of the National Law which provides that the Tribunal is not bound to observe the rules of law governing the admission of evidence and "may inform itself of any matter in the way it thinks fit". Permitting the Tribunal do so is subject to the rules of natural justice. The Commission did not suggest that there was any denial of natural justice or procedural unfairness in the Tribunal receiving and having regard to the AHPRA Code of Conduct on which Dr Kirby sought to rely.

1. Dr Kirby submitted that the change in Dr Selby's registration gave rise to a "jurisdictional error that infected the Stage 1 decision". Reliance was placed upon the Judgment of Kyrou JA at [47]-[49] (McDonald AJA agreeing) in Muto v Shepparton City Council [2018] VSCA 73; 228 LGERA 188, in which it was said [47] that a "statutory requirement that a court or tribunal be constituted in a particular manner for a specified class of proceeding is, generally speaking, jurisdictional in nature. Where this general principle applies, if the court or tribunal in question is not constituted in the prescribed manner, it lacks jurisdiction in relation to that class of proceeding and any order that it purports to make is invalid" and [48] "Where a statute confers jurisdiction on a court or tribunal to hear and determine a particular type of proceeding, the court or tribunal must be constituted in the prescribed manner for both the hearing and determination of such a proceeding ... In other words, the jurisdiction to hear and determine the proceeding is part of a single adjudicative process and cannot be bifurcated".
2. Dr Kirby submitted that s 53 of the CAT Act, which is concerned with "amendments and irregularities" could not cure any absence of jurisdiction consequent upon Dr Selby becoming a non-practising practitioner in November 2023. The Tribunal accepts that, if the Tribunal lacked jurisdiction to continue to hear Dr Kirby's proceedings after November 2023, s 53 of the CAT Act could not cure the absence of jurisdiction. As the terms of s 53 make clear, the provision provides for the consequences of procedural irregularities. For s 53 to be enlivened, the Tribunal must have jurisdiction to hear the proceedings in which irregularities are asserted to have arisen and amendments, or other orders pursuant to s 53(4) of the CAT Act are sought to be made.
3. Dr Kirby also relied on the decision in Attorney-General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261 where Spigelman CJ said at [97] that the purported exercise of power by an improperly constituted statutory tribunal was a "jurisdictional error of a fundamental kind". Tobias JA at [197]-[198] agreed with the Chief Justice's statement. It was thus further emphasised by Dr Kirby that, for the Tribunal to have had jurisdiction to hear the Stage 1 proceedings after November 2023 and publish a decision in relation to them on 21 June 2024, Dr Selby needed to continue to be registered as a practising Dentist, his change of status in November 2023 thereafter incurably infecting the Tribunal's jurisdiction to continue to hear the Stage 1 proceedings. Dr Kirby reiterated his submissions with respect to the use of the present tense "when conducting" in s 165B(2) in support of his contention that the National Law clearly provided that Dr Selby not only needed to be a practising Dentist when he was appointed to hear the disciplinary proceedings against Dr Kirby, but needed to retain that registration status until the determination of the proceedings.

Dr Kirby's Further Supplementary Submissions of 8 October 2025

1. As recorded above, whilst its decision was reserved, the Tribunal invited the parties to file further submissions with respect to the relevance and effect of the definition of "registered health practitioner" in s 5(b) of the National Law.
2. In accordance with the Tribunal's invitation, Dr Kirby's further supplementary submissions addressed s 165B(2)(b) of the National Law and referred to s 5 of the National Law which defines a "health practitioner" as "an individual who practises a health profession". It was not in dispute that dentistry is a health profession. It was submitted, correctly, that the National Law does not define the meaning of "practises" in s 5.
3. Dr Kirby referred to the inclusion in the definition in s 5 of "registered health practitioner" of a person who "holds non-practising registration under this law in a health profession". Dr Kirby submitted that the inclusion of a practitioner holding non-practising registration in the definition of "registered health practitioner" did not, for the reasons previously advanced, preclude finding that Dr Selby ceased to be a health practitioner in November 2023 for the purpose of s 165B(2)(b) of the National Law. Dr Kirby reiterated his reliance on his previous submissions in support of his contentions with respect to the meaning and effect of the definition of registered health practitioner in s 5(b) of the National Law.

The Commission's Submissions in Response to Dr Kirby's Further Supplementary Submissions

1. The Commission submitted that close consideration of "what the legislature intended" by each of the definitions of "registered health practitioner" appearing in s 5 of the National Law revealed the error in Dr Kirby's contentions. The Commission made a number of submissions with respect to the legislative intention and submitted that the "import" of the definition of "health practitioner" was not the verb "practises", but rather:

(1) the fact that the National Law mainly regulates individuals; and

(2) the types of areas of practice that are governed by the National Law by reference to health profession where health profession is itself defined in s 5.

1. The Commission further submitted that "The purpose of the definition of health practitioner is unrelated to the fact that the individual practises a profession, but very much related to the identity of the health profession in which the individual happens to practise". As will be seen, that submission encapsulates the construction issue which is pivotal to the determination of Dr Kirby's challenge to jurisdiction. It was submitted that the use of the verb "practise" was "simply the commonly used expression" amongst health and other professions but was not a "specific term of art" for the purpose of definition of health practitioner in the National Law. The Commission submitted that to hold otherwise would render non-practising registration "lacking any purpose".
2. The Commission reiterated its earlier contention that, if the legislature had intended to limit the category of health practitioners eligible to be selected for appointment to the Tribunal to those holding practising registration, it could have said so, but has not done so.
3. The Commission urged the Tribunal to avoid utilising a definition to enact a substantive law, in reliance upon the statements by McHugh J in Kelly v R (2004) 218 CLR 216; [2004] HCA 12 at [103] in which his Honour said:

"The function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better - I think the only proper - course is to read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment."

1. The Commission submitted that the two definitions of registered health practitioner in s 5 of the National Law exist for "separate and non-intersecting purposes", the former being submitted to delineate those persons who are regulated by the National Law, the second to identify the types of registration that a practitioner may hold.
2. The Commission made a number of submissions with respect to the terminology variously applied in the National Law with respect to "individuals", "registered health practitioners" and "health practitioner". The Commission submitted that it was significant that the National Law does not identify non-practising health practitioners by designating them "non-practising health professionals", but by using the expression "non-practising registration" and, as s 75 of the Act makes clear, prohibiting persons holding such registration from practising the profession in which he or she is registered.
3. The Commission submitted that s 165B(2) set out three specific, mandatory requirements with respect to the two Professional Members appointed to the Tribunal to conduct an inquiry, they being:

(1) they must be health practitioners;

(2) they must have been selected for appointment by the Council as Occasional members; and

(3) they must be registered in the same profession as the respondent in the proceedings.

1. The Commission reiterated the asserted significance of the legislature not having expressly provided that, for the purpose of s 165B(2) a health practitioner must be registered as a practising health practitioner.
2. The Commission submitted that s 165B(2) required "only that a person appointed to the Tribunal be a health practitioner registered in the same health profession as the person the subject of the complaint - there is no requirement that the person hold practising registration".
3. Without conceding its primary position, the Commission reiterated its previous submission that, if Dr Selby ceased to be eligible to continue as an Occupational Member of the Tribunal after November 2023, the provisions of clause 8 of Schedule 2 of the CAT Act applied, enabling him to continue as an Occupational Member of the Tribunal.

Whether Dr Selby's registration as a non-practising Dentist rendered him ineligible to continue as an Occasional Member of the Tribunal

1. As neither party disputes, s 5 of the National Law defines "health practitioner" as an individual who "practises" a health profession. Dentistry is a health profession referred to in s 5. Section 5(b) defines "registered health practitioner" to include an individual who "holds non-practising registration under this law in a health profession". From November 2023, that was Dr Selby's status. Section 75 of the National law prohibits a practitioner holding non-practising registration from "practising" his or her profession. The provisions of s 116 of the National Law, to which the Commission referred, prohibits "claims by persons as to registration as health practitioner", and provides penalties, including imprisonment for breaches of its provisions.
2. As Counsel for the parties submitted, the determination of Dr Kirby's application involves questions of statutory construction. In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405; 91 ALJR 936, Kiefel CJ, Nettle and Gordon JJ at [14] said that:

"The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected."

1. In SZTAL, Gageler J, as Gageler CJ then was, said at [37]-[39]:

"37 The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility "if, and in so far as, it assists in fixing the meaning of the statutory text".

38 The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so categorised. More commonly, the choice is from a "range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural", in which case the choice "turns less on linguistic fit than on evaluation of a relative coherence of the alternatives with identified statutory objects or policies".

39 Integral to making such a choice is discernment of statutory purpose."

1. In SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 361 ALR 206 at [64] Edelman J said that:

"The task of statutory construction must begin and end with the text of the statute. That statement does not mean that the text of a statute must be interpreted only according to the range of semantic meanings of the individual words. It means only that the interpretation of a statute, like any other legal instrument, is an interpretation of its words. Those words are interpreted in their context and in light of their purpose although legal rules can sometimes exclude or restrict the use of some context. In ascertaining the reasonably intended meaning of Parliament context is, literally, those matters to be considered (simultaneously) together with the text. Context can give words an interpretation that is the opposite of their ordinary meaning and grammatical sense. Context can also permit a construction of words that excludes their application to matters that would have fallen within the application of their literal meaning. However, as with contractual interpretation, where "the clearer the natural meaning the more difficult it is to justify departing from it", so too in statutory interpretation "questions of degree arise" and it will be more difficult to displace an interpretation that "has a powerful advantage in ordinary meaning and grammatical sense"." [Citations omitted]

1. As is not in dispute, for present purposes the task of statutory construction "begins" with the National Law. Senior Counsel for Dr Kirby submitted that the task also "ends" with the National Law. Albeit in the alternative, Counsel for the Commission disputed that it necessarily did.
2. Section 5 of the National Law defines a "health practitioner" as an individual who "practises" a health profession. Dentistry is included in the definition of "health profession" in s 5 of the National Law. The National Law does not define "practises".
3. The Cambridge Dictionary defines "practise" as including "working in a field such as medicine or law which requires long periods of training and high levels of skill". Affording "practises" its ordinary meaning is not contraindicated by the context in which it finds expression in the National Law (Project Blue Sky Inc v Australian Broadcasting Association (1998) 194 CLR 355; [1998] HCA 28). Practising dentistry would ordinarily involve, particularly in the context of the National Law, treating patients with presenting dental conditions or performing remedial or preventive dental work. As submitted by Dr Kirby, s 75 of the National Law prohibits a practitioner who holds non-practising registration from practising the profession, and provides that although doing so does not constitute an offence it may constitute behaviour for which health, conduct or performance action may be taken. A health practitioner with non-practising registration could face disciplinary proceedings pursuant to the National Law if he or she practised the profession.
4. The Tribunal has not been referred to any statutory or other legislative provision which expressly or impliedly identifies the practical significance of the distinction between practising and non-practising registration other than as provided by s 75 and 116 of the National Law. The Commission contends that, in those circumstances, the Tribunal cannot permissibly construe the requirements of s 165B(2) in the manner asserted by Dr Kirby. Having seen fit to incorporate s 75 into the National Law, the legislature could have confined s 165B(2) to health practitioners holding "practising" registration in the relevant profession. That it did not is unlikely to have been inadvertent.
5. Dr Kirby contends that, in the absence of statutory provisions clarifying the issue, and as they are not inconsistent with any provision in the National Law, reliance on the Code of Conduct is permissible, and informs determining whether, after November 2023, Dr Selby was practising his profession when not lawfully entitled to do so, by continuing to sit as a Member of the Tribunal. Dr Kirby contends that, sitting as an Occasional Member of the Tribunal, drawing upon his long periods of training and high levels of skill, Dr Selby was "working" in the profession of dentistry. A finding in those terms would be consistent with the provision of the Code of Conduct relied on by Dr Kirby. Dr Kirby contends that it is inconceivable that the legislature would have intended that a person would be entitled to sit on the Tribunal notwithstanding that doing so was unlawful. There is logical force in that contention.
6. In view of the Commission's opposition, the Tribunal has considered whether it should have regard to the provisions of the Code of Practice on which Dr Kirby relies. Paragraph 2 of Schedule 5D to the National Law permits the Tribunal to inform itself of any matter in "the way it thinks fit", subject to the overarching requirements of natural justice. The Commission has been heard in opposition to the Tribunal considering the Code of Conduct, and thus afforded procedural fairness.
7. Section 34 of the Interpretation Act 1987 (NSW) is concerned with the "use of extrinsic material in the interpretation of Acts and statutory rules" and provides:

"(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material-

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or

(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underling the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable."

1. Section 34(2) identifies a number of categories of material which may be considered, none of which applies in this case. The list is inclusive of those matters.
2. Section 34(3) provides that:

"In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to-

(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), and

(b) the need to avoid prolonging legal or other proceedings without compensating advantage."

1. Extrinsic material may be taken into account even when a statutory provision is "clear on its face" (Commissioner of Australian Federal Police v Curran (1984) 3 FCR 240; NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 781).
2. As the terms of s 34 make clear, if the statutory provision under consideration is "clear on its face", extrinsic materials may only be used to confirm the ordinary meaning of the provision. They cannot be used to alter the interpretation which the Tribunal would place on the provision without reference to those materials (Re Australian Federation of Construction Contractors; Ex Parte Billing [1986] HCA 74; 68 ALR 420). The Judges of the High Court, in their joint Judgment, said that reference to, in that case s 15AB of the Acts Interpretation Act 1901 (Cth), did not permit recourse to extrinsic material "for the purpose of departing from the ordinary meaning of the text unless either the meaning of the provision be construed as ambiguous or obscure or in its ordinary meaning leads to a result that is manifestly absurd or is unreasonable". In Ombudsman v Commissioner of Police [1987] 11 NSWLR 386 at [396], it was accepted that s 34 of the Interpretation Act was subject to that constraint. Extrinsic materials cannot be used to fil a "gap" in a statute (Director of Public Prosecutions v Walters [2015] VSCA 303; (2015) 49 VR 356).
3. Dr Kirby's reliance on the Code of Conduct, being extrinsic material, is on the basis that it supports finding that the relevant provision of the National Law is as submitted on his behalf, or that, if there is uncertainty, the meaning of the provision for which the Commission contends would lead to an unreasonable result.
4. On one view, the absence in s 165B(2)(b) of a requirement of "practising registration" or a prohibition on "non-practising registration" in order to be eligible for appointment as an Occupational Member of the Tribunal may be significant having regard to the definition of "registered health practitioner" in s 5(b) as including a practitioner who holds non-practising registration. It is not necessary, if it be possible, for the Tribunal to attempt to identify the metes and bounds of what a health practitioner with non-practising registration can permissibly do. The Tribunal is concerned only with whether, although Dr Selby continued to be a registered health practitioner for the purpose of s 165B(2)(b) upon becoming a non-practising practitioner, he continued to be eligible to be a "health practitioner" in accordance with the section.
5. In view of the inclusion in s 165B(2)(b) of "health practitioner" and "registered health practitioner", construction of the provision involves reconciling two apparently different requirements for eligibility- whether eligibility requires that a person be a "health practitioner" who "practises" the health profession, or need only be "registered in the same health profession" as the respondent in the proceedings.
6. Significantly, s 165B(2)(b) did not refer to "registered health practitioner". The term "registered in the same health profession" differs materially from "registered health practitioner". If the legislature had intended that eligibility for appointment pursuant to s 165B(2)(b) included practitioners holding non-practising registration, articulating that intention would have been a simple matter. Section 165B(2)(b) does not expressly or impliedly qualify the requirement that eligibility for appointment as an Occasional Member is restricted to "health practitioners" who are, by definition "practising" the profession. Nor does the requirement of registration in the same health profession as the respondent. The Tribunal cannot accept that the latter requirement does other than make clear that a health practitioner appointed to the Tribunal hold registration in the same profession as the respondent in the proceedings. From November 2023, Dr Selby ceased to be a health practitioner in accordance with s 165B(2)(b) and was thus ineligible to continue as an Occupational Member of the Tribunal, unless doing so was permitted by an applicable provision of the National Law, or the CAT Act.
7. In Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11 Griffith CJ accepted that, as the 1688 decision to which his Honour referred established with respect to interpretation of statutes "Sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void or insignificant, if by any other construction they may all be made useful and pertinent". That principle was endorsed in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 and on numerous subsequent occasions. In Scott v Moses (1957) 75 WN (NSW) 101, the Court of Criminal Appeal said that "Whatever the difficulties of construction may be ... a Court is bound to give some meaning to the section, and upon no proper principles could a Court ever hold that an act of the legislature was to be regarded as a nullity because of the uncertainty of the language used".
8. In Western Australian Planning Commission v Southregal Pty Limited (2017) 259 CLR 106; [2017] HCA 7 the plurality in the High Court accepted that "Words chosen by the legislature should be given meaning and endeavours should be made to avoid them being seen as redundant" but they "should not be given a strained meaning, one at odds with the scheme of the statute". It has also been consistently held that Courts have a duty to give words the construction which produces the "greatest harmony and the least inconsistency" (Australian Alliance Assurance Co Ltd v Attorney-General (Qld) (1916) St R Qd 135). The Tribunal is satisfied that its construction of s 165B(2)(b) is not strained, at odds with the scheme of the statute or productive of disharmony or inconsistency. The National Law provides for practising and non-practising health practitioners, and prohibits the latter from practising the health profession in which he/she is registered. Having regard to the issues which the Tribunal is required to decide in disciplinary provisions, it is understandable that, to properly evaluate the conduct of respondents in such proceedings, Occasional Members appointed pursuant to s 165B(2)(b) should hold practising registration, which renders them subject to the requirements for continuing professional development articulated in National Boards' registration standards and CPD guidelines. The evidence does not establish whether, and, if so, what CPD requirements attach to non-practising registration.
9. Where there are two provisions in a single piece of legislation which initially appear to be in conflict, as it is improbable that the legislature would have intended to insert a provision which has virtually no practical effect, courts look to see whether any other meaning produces a more reasonable result (Minister for Resources v Dover Fisheries Pty Limited [1993] FCA 366; (1993) 43 FCR 565). Implicit in the Commission's case is that accepting Dr Kirby's construction of s 165B(2)(b), leaves the definition of registered health practitioner in s 5(b) of the National Law with no practical effect. The provisions of s 116 of the National Law, to which the Commission referred appear capable of having significant practical effect. However limited its practical effect might be, the evidence does not support finding that the Tribunal's construction of s 165B(2)(b) leaves the definition of registered health practitioner in s 5(b) with no work to do, or redundant.
10. Dr Kirby sought to rely on the Code of Conduct in support of his case. The Commission opposed such reliance. Although, in view of the Tribunal's finding it is strictly unnecessary to do so, the Tribunal has considered the Code. Although doing so is considered to provide some, but only limited support for its construction of s 165B(2)(b), the Tribunal's acceptance of Dr Kirby's construction of the provision is not dependent upon consideration of the Code.
11. The Code of Conduct "sets out the standards of professional conduct the National Boards expect and is used by Boards to evaluate practitioners' conduct. Practitioners have a professional responsibility to be familiar with and to apply this code". It is apparent that the Code is intended to perform an educative and regulatory function. In disciplinary proceedings pursuant to s 139B(1)(a) of the National Law, it is frequently alleged that a practitioner's conduct demonstrates that "the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience". The Tribunal has regard to provisions of the Code of Conduct when establishing the benchmark by reference to which the practitioner's conduct is assessed. Whilst informing that evaluation, as the terms of the Code confirm, departure from the provisions of the Code does not, of itself, determine whether the practitioner's conduct offends s 139B(1)(a) of the National Law.
12. The Code of Conduct applies to a number of professions other than Dentistry. Its objects and purposes are readily apparent from its terms. It would be surprising if, having regard to those objects and purposes, and the terms of its contents, the Code adopted other than a broad definition of "practise". It would be extraordinary if the boundary and other ethical provisions of the Code were not expressed to apply to every activity in which a health practitioner may be engaged in his or her capacity as a health practitioner. In the absence of evidence that they apply to non-practising health practitioners, clauses 7.3 and 7.4 of the Code, which are concerned with "maintaining and developing professional capability" and "continuing professional development (CPD)" respectively, provide support for the tribunal's construction of s 165B(2)(b) of the National Law.
13. As recorded above, Dr Kirby relied significantly on the words in s 165B(2) of the National Law that "when conducting" a hearing under the National Law the Tribunal was to be constituted at all times in the manner provided by s 165B(2). In Tsolis v Health Care Complaints Commission [2024] NSWCA 284, at [22], Leeming JA said that "the original obligations bearing upon the constitution of the Tribunal are found in s 165B" of the National Law. His Honour referred [23] to the expression upon which Dr Kirby relies and recorded that the reference in s 165B(2) and (7) and s 165C(1), (2) and (3) "extends to all three ways in which proceedings are commenced in the Tribunal". The National Law contemplates that the Tribunal as constituted in accordance with s 165B(2) does not have to remain so constituted in order for it to retain jurisdiction to hear and finally determine an inquiry or hearing. Section 165C, with which Tsolis was concerned, expressly provides for the proceedings to continue, or be terminated in the circumstances provided by the section. Whilst the Tribunal must be properly constituted at all times to retain jurisdiction, it does not have to be constituted at all times by the originally appointed Occasional Members holding practising registration. Acceptance of Dr Kirby's construction of s 165B(2)(b) means that, unless "saved" by some other legislative provision, the Tribunal was not properly constituted after November 2023.

Whether, if the provisions of the National Law rendered Dr Selby ineligible to continue as an Occasional Member of the Tribunal after November 2023, the provisions of the CAT Act enabled him to do so

1. In view of the Tribunal's finding with respect to Dr Kirby's challenge to the jurisdiction of the Tribunal after November 2023 it is necessary to determine the alternative basis on which the Commission relied in support of the continuance of the Tribunal's jurisdiction after that date. If Dr Selby was ineligible to continue as an Occasional Member of the Tribunal upon holding non-practising registration, could he permissibly do so pursuant to a provision of the National Law or the CAT Act?
2. Had Dr Selby become ineligible to sit on the Tribunal in November 2023 and "vacated" office, for that or any other reason, s 165C(1) of the National Law may have preserved the Tribunal's jurisdiction to hear and determine the proceedings notwithstanding that it was no longer constituted in accordance with s 165B(2)(b) of the National Law. Whether s 165C is only enlivened when a Member "vacates" office, or whether the Member's office is constructively vacated upon the Member becoming ineligible to continue in office is not a matter which the Tribunal needs to consider, as Dr Selby continued to sit as a Member of the Tribunal until the Stage 1 decision was published in 2024. If Dr Selby was ineligible to continue as an Occasional Member after November 2023, s 165C of the National Law could not have been enlivened to preserve the Tribunal's jurisdiction in the present circumstances.
3. In support of his contention that the proceedings could not be "saved" by the provisions of clause 8 of Schedule 2 to the CAT Act, Dr Kirby relied on the inconsistency provisions of s 165A of the National Law. As the legislative provisions to which Counsel for the parties have referred make clear, save in s 165C, the National Law does not expressly identify the jurisdictional impact of an Occasional Member becoming ineligible to continue to sit on the Tribunal but not vacating office.
4. Section 165A contemplates that, save to the extent of any inconsistency with it, when exercising jurisdiction under the National Law, the Tribunal may exercise powers conferred on it by the CAT Act. Unless precluded by the National Law as an inconsistent provision, if Dr Selby was ineligible to continue as an Occasional Member of the Tribunal after November 2023, he would have been an "affected" member within the terms of clause 8 of Schedule 2 to the CAT Act, and have been able to continue to sit on the Tribunal until the conclusion of the part-heard proceedings.
5. Section 11(5) of the CAT Act provides that a person who is appointed as an Occasional Member holds office as such until the proceedings in relation to which the Member has been appointed as an Occasional Member have been finally determined, unless the person sooner vacates office. It is difficult to accept that, if Dr Selby was ineligible to continue as an Occasional Member of the Tribunal after November 2023, this provision was not inconsistent with the National Law.
6. Section 11(6) provides that the proceedings in relation to which an Occasional Member has been appointed as an Occasional Member are not finally determined for the purpose of s 11(5) until, relevantly for present purposes, the Tribunal (as constituted by or with the Member) has completed all the processes necessary to decide the substantial merits of the proceedings (including where required the giving of reasons and the determination of costs). The Tribunal's observations with respect to s 11(5) of the CAT Act also apply to this provision.
7. Other than as provided by s 165C, the National Law is silent with respect to the consequences of an Occasional Member appointed pursuant to s165B(2)(b) ceasing to be eligible to sit as an Occasional Member of the Tribunal, but continuing to do so. Dr Kirby submitted that the words "when conducting an inquiry or hearing" in s 165B(2) should, giving those words their ordinary meaning, mean "at all times when conducting an inquiry", save in the circumstances provided by s 165B(4)(b) or s 165B(5) or s 165B(5A). in those circumstances, save if s 165C were enlivened, recourse to the provisions of the CAT Act relied on by the Commission was submitted to involve inconsistency which enlivens s 165A of the National Law.
8. Albeit in a case involving s 165C, in Tsolis by reference to Schedule 7 clause 7 to the National Law, Leeming JA said, at [34] reiterated the obligation of the Tribunal to prefer the construction of legislation which promotes the purpose or object of the statute, and referred to the "benefits to the public, as well as to the health practitioner" of statutory provisions which avoid the termination of proceedings when certain Members of the Tribunal are unable to continue to sit as Members of the Tribunal. In proceedings which have been on foot for as long as these have, those benefits are considerable. It is also beneficial the public and health practitioner facing disciplinary proceedings that the Occupational Members of the Tribunal maintain the professional expertise required of health practitioners holding practising registration. If the Tribunal lacked jurisdiction after November 2023, that absence could not be cured by considerations of the kind which assume significance in the context of s 165C.
9. Schedule 2 clause 8 to the CAT Act refers at (1)(a) to a Member who "ceases to have a qualification specified by a Division Schedule for a Division of the Tribunal or enabling legislation for participation in the proceedings". The Tribunal apprehends that s 165B(2)(b) of the National Law is the relevant enabling legislation for Dr Selby's participation in the proceedings. Clause 8 articulates the constraints on its operation, none of which is suggested to be relevant for present purposes. If Dr Selby became ineligible to continue as an Occupational Member of the Tribunal in November 2023, he would have ceased to have a "qualification" for the purposes of s 165B(2)(b). If, as the Tribunal finds, "when conducting" disciplinary proceedings, the Occupational Members of the Tribunal must continue to hold practising registration, it is difficult to accept that the legislature could have intended that a person who ceased to have that qualification could continue as an Occasional Member of the Tribunal pursuant to a provision of the CAT Act, the resultant inconsistency enlivening s 165A of the National Law.
10. The Tribunal considers that the provisions of clause 8 of Schedule 2 to the CAT Act considered above are inconsistent with the provisions of the National Law. Accepting, as the Tribunal does, that, Occupational Members of the Tribunal must have and retain practising registration throughout the proceedings in which they are appointed renders the absence of other legislative provisions capable of preserving jurisdiction in the present circumstances unsurprising. It also renders unsurprising the absence of provisions expressly concerned with the consequences of an Occupational Member ceasing to hold practising registration he or she ceases to be eligible to continue as an Occupational Member.
11. The CAT Act operates in other ways which are not inconsistent with the National Law. Division 10 of Part 10 of the National Law does not articulate what is to occur in the event that the Members of the Tribunal are not in unanimous accord with respect to the Tribunal's decision. Section 57(1) of the CAT Act provides that when the Tribunal is constituted by more than one Member for the determination of any proceedings and the Members are "divided in opinion, the opinion of the majority is taken to be the decision of the Tribunal". Section 57(3) further provides that if the Members are "equally divided in their opinion, the opinion that prevails" provides for the opinion which is to prevail. Section 57 effectively precludes proceedings of the present kind being stalemated. The National Law makes no such provision. There is no doubt that s 57 of the CAT Act applies in proceedings pursuant to the National Law (Della Bruna v Health Care Complaints Commission [2025] NSWCA 125). If Dr Selby was able to continue as an Occupational Member of the Tribunal after November 2023, he potentially had a "casting vote" with respect to the Tribunal's decision, notwithstanding that he lacked a "qualification" which enabled him to continue on the Tribunal. The Tribunal cannot accept that, in exercising the protective functions invested in the Tribunal by the National Law, such a scenario could have been intended.
12. For the foregoing reasons, the Tribunal is not persuaded that Dr Selby's ineligibility after November 2023 was cured by the provisions of the CAT Act.

Whether, if Dr Selby was ineligible to continue as an Occasional Member of the Tribunal after November 2023 on any basis, the Tribunal lacked jurisdiction to continue to hear the proceedings?

1. Albeit not involving the National Law, in McNally v Resolution Life Australasia Limited [2025] NSWCATAP 116 (McNally), the Appeal Panel of the Tribunal considered whether a change in the constitution of the Tribunal hearing the proceedings at first instance vitiated its decision. The Appeal Panel recognised, at [25], that the CAT Act "specifies special constitution requirements in some cases". Although, in those circumstances the Appeal Panel's decision needs to be approached with caution, the Appeal panel's reasons are instructive for present purposes.
2. The Appeal Panel found [28] that the Tribunal at first instance was not constituted in accordance with the CAT Act, the question then becoming whether that vitiated its decision. The Appeal Panel found that the "weight of authority points to the conclusion that a decision made by an invalidly constituted Tribunal is void".
3. The Tribunal referred [29] to the decision of the Supreme Court in Gleeson v New South Wales Harness Racing Authority (1990) 21 ALD 515 (Gleeson), a case involving the Tribunal empowered to regulate, control, inquire into and adjudicate complaints about the conduct of harness racing trainers. The Authority suspended the applicant, who applied to the Supreme Court for a declaration that its decision was contrary to law. The Appeal Panel recorded the "primary basis" of the applicant's challenge being "that the Authority was not validly constituted. The Authority was said to be invalidly constituted for two reasons: first, that two of the Authority's four members were not present at all days of the hearing; and second, that a member of the Authority was a witness in, and assisted in investigating, the complaint against the applicant". The Tribunal referred [30] to Young J's acceptance that both of the applicant's grounds constituted a denial of natural justice, requiring the Authority's decision to be quashed.
4. The Appeal Panel referred [31] to Tu v University of [Sydney] (2003) 57 NSWLR 376; [2003] NSWCA 170 (Tu) which involved proceedings heard by a Tribunal initially constituted by a Judicial Member and two General Members, in which the Judicial Member became unavailable, and a new Judicial Member was allocated. The precondition for reconstitution of the Tribunal under the Administrative Decisions Tribunal Act 1997 (NSW) (ADT Act) was the consent of the parties. The applicant withheld his consent, but the reconstituted Tribunal nevertheless proceeded to hear and determine the proceedings. The Appeal Panel recorded that the Court of Appeal held, at [32], that the reconstitution of the Tribunal was contrary to the statute and that the error vitiated the orders made. The Court of Appeal allowed the appeal, set aside the Tribunal's orders, and remitted the matter for redetermination.
5. The Appeal Panel referred [32] to the decision of the Court of Appeal in Attorney-General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261 (World Best Holdings) which concerned a decision of the Administrative Decisions Tribunal made by a Panel which included Members who lacked the qualifications required by the relevant statute. The Appeal Panel recorded that, that three Judges in the Court of Appeal agreed that the Tribunal had been constituted contrary to the legislative requirements and that the Court considered whether s 81(3) of the ADT Act "saved the Tribunal's decision from invalidity". The Appeal Panel recorded that s 81(3) of the ADT Act was in similar terms to s 53(3) of the CAT Act, which is concerned with "amendments and irregularities".
6. The Appeal Panel referred [33] to Spigelman CJ's statement that the purpose of s 81(3) was to "ensure that litigants were not defeated by mere technicalities". The Appeal Panel cited Spigelman CJ's observations with respect to s 81(3) at [97] as applying only to "steps or decisions of a procedural character. It does not, in my opinion, relate to the ultimate decision when made by a decision-maker who does not have the capacity to exercise a statutory power. ... What happened in this case was that a statutory power was exercised by persons who had no authority of any character to do so. This is a jurisdictional error of a fundamental kind. It is not a procedural irregularity". The Tribunal referred [33] to Tobias JA's acceptance that the "misconstitution" of the Tribunal was not "merely procedural in nature".
7. The Tribunal also referred [36] the decision of Adamson J in Nursing and Midwifery Board of Australia v Linquist [2019] NSWSC 978. Significantly, that case was concerned s 165B(5A) of the National Law, which is concerned with jurisdiction to make ancillary or interlocutory decisions. The Appeal Panel recorded Adamson J as finding at [52] that the provision provided "no warrant for a "subset" of a constituted Tribunal to separately determine matters in the context of a hearing before the Tribunal". The Appeal Panel recorded that as "there was no reconstitution of the Tribunal for the purpose of the decision as to jurisdiction, the decision of the Presiding Member was beyond its jurisdiction and was void". Linquist involved a Tribunal which was constituted by fewer members than the National Law required. The consequence of which was the Tribunal lacked jurisdiction. In this case the issue is whether the continued participation in the determination of the proceedings by the Tribunal of an ineligible Member rendered its decision beyond jurisdiction and void.
8. In McNally at [40] the Tribunal considered the "two possible scenarios" which arose on the facts of the case. The Appeal Panel summarised the facts at [39] in the following terms:

"The Tribunal was initially constituted by a Senior Member and a General Member. Both Members were present on day one of the hearing, but only the Senior Member conducted the hearing on days two and three. While day two was a directions hearing, day three was a resumption of the hearing of the ancillary application as to the Tribunal's jurisdiction. When the Tribunal delivered its decision on the ancillary question, both Members were named as part of the quorum."

1. The first scenario considered by the Appeal Panel at [40] was the possibility "that both Members participated in the determination of the ancillary question, despite that General Member not being present for the resumed hearing on that issue". The Appeal Panel considered such a case to be "analogous" to Gleeson. The second scenario considered by the Appeal Panel was that "The Tribunal reconstituted to comprise the Senior Member alone for the purpose of the ancillary decision, and the General Member's name was recorded on the published decision in error". The Appeal Panel held that as there was no direction to this effect under s 52 of the CAT Act, there had been a "misconstitution of the Tribunal. The Tribunal was not separately constituted to determine the ancillary issue of jurisdiction". The Appeal Panel accordingly held, following Linquist and Tu, that such a scenario would amount to a jurisdictional error. The Tribunal ultimately found [41] that "In either scenario, the decision of the Tribunal was vitiated by jurisdictional error and must be set aside. This is not a mere irregularity."
2. As the authorities to which the Appeal Panel referred in McNally, and the decision of the Appeal Panel itself in that case confirm, the Tribunal being validly constituted is fundamental to the existence of its jurisdiction. As Dr Selby was ineligible to continue as an Occasional Member of the Tribunal after November 2023, and that inability was not cured by any provision of the National Law or the CAT Act, his continued involvement in the proceedings resulted in the Tribunal being misconstituted. That misconstitution could not be cured by recourse to s 53 of the CAT Act.
3. Although Dr Selby was but one of four members of the Tribunal hearing the proceedings after November 2023, his continued participation vitiated the Tribunal's jurisdiction. By the operation of s 57(3)(a) of the CAT Act, the findings of the Presiding Member and Dr Selby would have prevailed in the event of the other Occasional Member and the General Member making different findings. That provides further support for finding that the jurisdiction of the Tribunal was vitiated by Dr Selby's continued participation in the proceedings. The Tribunal cannot accept that the continued involvement of a person in the hearing of proceedings, particularly under the National Law, could be cured in any way and could not constitute jurisdictional error.

1. For the foregoing reasons the Tribunal is persuaded that Dr Selby became ineligible to continue as an Occasional Member of the Tribunal in November 2023 by reason of his change of registration status. That ineligibility was not cured by any provision of the National Law, or of the CAT Act. The Tribunal was thus deprived of jurisdiction to continue to hear and determine the proceedings as a result of Dr Selby becoming a non-practising Dentist in November 2023. As the Tribunal's reasons confirm, the tribunal's decision involves issues of statutory construction, and does not turn on any absence of professional skill or competence on Dr Selby's part. None was asserted in any event.
2. To the extent that the Tribunal could permissibly make the declaration sought by Dr Kirby, it is unnecessary to do so. Having found as it has with respect to the jurisdiction of the Tribunal after November 2023, it is necessary to make an order giving effect to that finding. The definition of "ancillary decision" in s 4(1)(a) of the CAT Act is considered sufficiently broad to enable the Tribunal to set aside the Stage 1 decision of 21 June 2024. As occurred in some of the cases referred to above, the proceedings. The proceedings would remain pending for re-determination by a differently constituted tribunal.

1. The Tribunal has not heard submissions in relation to costs and will reserve costs.

(1) The decision of the Tribunal of 21 June 2024 is set aside.

(2) The proceedings are to be listed before the List Manager for further directions on a date to be appointed.

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.