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[2026] NSWCA 168
appellant. Appeal allowed. Order 1 made by the Tribunal on 29 October 2025 was set aside; Dr Kirby’s 14 March 2025 Tribunal application was dismissed; Dr Kirby was ordered to pay the Commission’s costs in the...
16 cited instruments linked from this judgment.
The Court of Appeal ruled that the Tribunal’s Principal Member, sitting alone, had no power to set aside the earlier professional-conduct decision. That later decision was not a permitted ancillary or interlocutory decision, and the procedural-irregularity provision did not cure the lack of authority. The appeal could still be heard because the NCAT Act treats a purported decision as a decision even when it was beyond power. On the underlying composition issue, Bell CJ and Ward P considered that the National Law required practising health practitioners, but cl 8 of the NCAT Act allowed Dr Selby to continue dealing with the matter after his registration changed. Leeming JA agreed with the result while leaving the composition question undecided. The appeal was allowed and the purported setting-aside decision was removed.
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2,416 words · generated 08/10/2026
The Commission brought disciplinary proceedings against Dr David Kirby in the Occupational Division of the NSW Civil and Administrative Tribunal. The Tribunal panel comprised a senior judicial officer, a lay member and two dentists, including Dr Selby. The hearing began on 6 March 2023, when Dr Selby was registered as a practising dentist (judgment [2], [4]).
On 21 June 2024, the Tribunal found that Dr Kirby had engaged in unsatisfactory professional conduct. It treated the matter as having two stages: first, whether the conduct was established; second, what protective orders were appropriate. The Tribunal made the stage 1 finding and listed the matter for directions about protective orders, but did not then determine those orders ([1], [28]-[29]).
Before the first decision, Dr Selby had changed to non-practising registration. He remained a “registered health practitioner” under s 5 of the National Law, but no longer fell within that law’s definition of “health practitioner”, which is “an individual who practises a health profession” ([4]-[5]).
Dr Kirby applied to the Tribunal to set aside the first decision. On 29 October 2025, the Principal Member sitting alone purported to do so, reasoning that the Tribunal had not been properly constituted and that cl 8 of Sch 2 to the NCAT Act could not save the decision because s 165A of the National Law took priority ([6]-[8]).
The Commission appealed. The Court of Appeal allowed the appeal, set aside the Principal Member’s decision and dismissed Dr Kirby’s Tribunal application. It also dismissed the parties’ precautionary judicial review summonses with no order as to costs ([55], [93]).
The Court addressed the Principal Member’s authority before turning to the substantive composition arguments. It emphasised that a tribunal must determine its own jurisdiction, and that the parties’ agreement cannot confer jurisdiction that legislation does not provide ([14]-[20]). The same duty applied to the Court of Appeal, notwithstanding that Dr Kirby did not oppose leave to appeal ([20]).
The Principal Member relied on s 165B(5A) of the National Law. That provision allows the Tribunal, when making an ancillary or interlocutory decision, to be constituted by a single specified member. But the second decision did not fit either category. Under s 4(1) of the NCAT Act, an ancillary decision must be “preliminary to, or consequential on, a decision determining proceedings” ([21]-[24]).
The second decision was not preliminary to the first: it came later. Nor was it consequential on the first. Bell CJ explained that a consequential decision assumes the earlier decision’s validity and works out matters such as costs, orders, sanctions or penalties. The second decision did the opposite: it purported to set the first decision aside ([25]-[27], [36]).
The statutory definition also turns on a “decision determining proceedings”. Bell CJ noted that the first decision determined liability but not protective orders. However, the central point was that setting aside the first decision was not itself an ancillary step in carrying it into effect. A stage 1 decision determines an aspect of proceedings, and the legal characterisation of such decisions cannot be assumed from the Tribunal’s administrative practice of dividing hearings into stages ([28]-[36]).
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Health Care Complaints Commission v Kirby [2026] NSWCA 168
Hearing dates: 25 June 2026
Date of orders: 21 August 2026
Decision date: 21 August 2026
Before: Bell CJ at [1];
Ward P at [94];
Leeming JA at [95].
Decision: (1) Appeal allowed.
(2) Order 1 of the Civil and Administrative Tribunal made on 29 October 2025 be set aside.
(3) The application dated 14 March 2025 made by Dr David Kirby in the Tribunal be dismissed.
(4) Dr Kirby pay the Commission’s costs in this Court.
(5) Each Summons filed 30 June 2026 be dismissed with no order as to costs.
Catchwords: ADMINISTRATIVE LAW — Jurisdictional error — where principal member of the Civil and Administrative Tribunal purported, sitting alone, to set aside decision of fully constituted Tribunal — whether a single member could set aside a “stage 1” decision in proceedings in the Occupational Division of the Tribunal on the basis that the decision to set aside was ancillary to or consequential on the stage 1 decision — meaning of “ancillary” and “consequential on” — jurisdictional error — whether appeal still permitted from a decision involving jurisdictional error — appeal or judicial review
APPEALS — Right of appeal — Scope of right — whether right of appeal from a purported decision affected by jurisdictional error
OCCUPATIONS — Health practitioners — Health Practitioner Regulation National Law (NSW) — whether Tribunal constituted by senior judicial officer has power to set aside stage 1 decision of the Tribunal — whether stage 1 decision is an “ancillary” or “interlocutory” decision — whether s 53 of the Civil and Administrative Tribunal Act 2013 (NSW) cures absence of power
OCCUPATIONS — Health practitioners — Health Practitioner Regulation National Law (NSW) — whether reference to “health practitioner … registered” in s 165B(2)(b) of the Health Practitioner Regulation National Law (NSW) refers to “health practitioner” or “registered health practitioner” — whether cl 8 of Sch 2 of the Civil and Administrative Tribunal Act 2013 (NSW) empowers “health practitioner” to continue to deal with matters in proceedings after ceasing to be registered
STATUTORY INTERPRETATION — Definitions — Insertion of definition into substantive enactment — whether reference to “health practitioner … registered” in s 165B(2)(b) of the Health Practitioner Regulation National Law (NSW) refers to definition of “health practitioner” — whether context or subject matter otherwise requires that reference refers to definition of “registered health practitioner”
STATUTORY INTERPRETATION — Legislative purpose — Statement of objects — where s 165B(2)(b) of the Health Practitioner Regulation National Law (NSW) provides that provisions in Pt 8 Div 10 intended to apply despite anything to the contrary in the Civil and Administrative Tribunal Act 2013 (NSW) — where Pt 8 Div 10 of the Health Practitioner Regulation National Law (NSW) provides for procedure, and consequences of vacation of office by member, of Civil and Administrative Tribunal — where cl 8 of Sch 2 to the Civil and Administrative Tribunal Act 2013 (NSW) provides for member who ceases to have required qualification to continue to deal with matter notwithstanding — whether any provisions in Pt 8 Div 10 of the Health Practitioner Regulation National Law (NSW) and enlivened in present case directly inconsistent with or repugnant to cl 8 of Sch 2 to the Civil and Administrative Tribunal Act 2013 (NSW)
Health Care Complaints Commission
Kirby
The second decision was not interlocutory either. The listed examples in s 4(1) concern procedural and evidentiary matters, such as stays, adjournments, evidence, disqualification of a member, joinder and summary dismissal. Following Robinson, the Court treated the residual category of “any other interlocutory issue” as confined to issues of a similar procedural or evidentiary character that do not finally determine an aspect of the dispute ([38]-[40]). The second decision did not meet that description.
Nor could s 53 of the NCAT Act supply authority. That provision addresses procedural irregularities in commencing or conducting proceedings. Bell CJ relied on World Best Holdings, which held that a similar provision did not cure invalid constitution of a tribunal. The error here was not merely a procedural defect; it concerned the authority to exercise the relevant statutory power ([41]-[45]).
Although the second decision involved jurisdictional error, the Commission could appeal from it. Section 5(2)(b) of the NCAT Act says that a purported decision under enabling legislation or the Act counts as a decision for the Act’s purposes “even if the decision was beyond the power of the decision-maker to make”. The Court applied that definition to the appeal right in cl 29 of Sch 5. The judicial review summonses were therefore unnecessary ([46]-[55]).
On the composition issue, Bell CJ concluded that the first reference to “health practitioners” in s 165B(2)(b) means people who practise a health profession. A central textual point was that s 165B(2)(b) uses “health practitioners”, whereas ss 169B(1), 172B(1) and 174A(2) use “registered health practitioners”. The Court considered that the difference was deliberate and significant ([71]-[79]). Bell CJ also considered the nature and seriousness of the Tribunal’s work and the statutory context. Ward P agreed with Bell CJ ([94]).
Leeming JA took a different route. He focused on whether “is to be constituted by” speaks only to constitution at the outset or has continuing, ambulatory effect during an inquiry. He discussed the grammar and context of the phrase, but declined to decide the issue because it had not been argued and did not affect the result. He proceeded on the assumption favourable to Dr Kirby that the change in status could have contravened s 165B ([96]-[110]).
The appeal nevertheless succeeded because cl 8 of Sch 2 to the NCAT Act permitted Dr Selby to continue dealing with the matter. Clause 8 applies where a member dealing with proceedings ceases to have a required qualification for a reason other than the listed exclusions. It provides that the affected member may continue to deal with the matter ([58]).
Bell CJ construed s 165A of the National Law as dealing with direct inconsistency, not as excluding the NCAT Act altogether. Section 165C, which provides for consequences when a member vacates office, did not apply: Dr Selby had not vacated office and continued participating. Clause 8 addressed a different circumstance and could operate alongside the relevant provisions of Pt 8 Div 10 ([81]-[92]). The Court also considered that this construction avoided aborting a hearing and recommencing it, a result the reasons connected to the National Law’s stated public-protection objects ([89]-[91]).
Before this judgment, the Court of Appeal’s decision in Tangsilsat had described a stage 1 professional-conduct decision as ancillary. Bell CJ explained that the statement there was conclusory and that the characterisation appeared to have been reached by assuming that a decision not interlocutory must be ancillary. Livers followed Tangsilsat without separately examining that classification ([30]-[31]).
Robinson later questioned whether stage 1 decisions were ancillary at all. Simpson AJA considered that the two-stage procedure had no express statutory recognition and that the stage 1 findings were neither ancillary nor interlocutory. Leeming JA similarly questioned the ancillary classification, while observing that the question might not determine whether leave to appeal was required ([32]-[35]).
This judgment gives a substantive answer in the context before it: a decision purporting to set aside a stage 1 finding is not ancillary or interlocutory merely because it raises a jurisdictional question. The Court also states that a stage 1 decision may determine an aspect of proceedings even though protective orders remain outstanding ([27]-[40]). The outcome does not depend on classifying the original stage 1 decision as ancillary: the appeal route was determined through cl 29 and the definition of “decision” in s 5(2)(b) ([33], [50]-[51]).
The judgment also clarifies the operation of s 53 of the NCAT Act in this setting. It does not convert a fundamental lack of authority into a procedural irregularity ([41]-[45]). Separately, it explains that s 165A gives priority to Pt 8 Div 10 where a direct inconsistency arises, but does not displace a complementary NCAT Act provision simply because both address Tribunal membership or continuation ([81]-[92]).
On the meaning of “health practitioners” in s 165B(2)(b), the controlling reasons are Bell CJ’s, agreed to by Ward P. They favour a practising-practitioner reading, based in part on statutory drafting differences and context ([71]-[79], [94]). Leeming JA’s alternative discussion of the temporal force of “is to be constituted” is not a competing holding. He expressly left that question undecided ([109]-[110]).
At [19], Bell CJ states that the Tribunal did not gain jurisdiction “merely because the parties agreed” it had it. In plain English, parties cannot create a statutory power by consent. A tribunal must independently check whether the legislation gives it authority.
At [26], Bell CJ explains that a decision “consequential on” an earlier decision assumes that earlier decision is valid and works out its consequences. This helps distinguish implementing a decision from attempting to overturn it.
At [39], the Court adopts Robinson’s explanation that an interlocutory issue is generally procedural or evidentiary and does not finally determine an aspect of the dispute. A decision about whether professional misconduct or unsatisfactory professional conduct occurred is not of that limited kind.
At [44], Bell CJ applies World Best Holdings to conclude that the Tribunal’s constitution error was not “merely procedural in nature”. The significance is that an irregularity provision intended to deal with procedural non-compliance cannot itself supply authority where the statutory decision-maker lacks it.
At [50]-[51], the Court gives effect to the NCAT Act’s express definition of “decision”. In plain English, even a purported decision made beyond power can be treated as a decision for the purpose of an appeal, where the statute says so.
At [79], Bell CJ relies on the difference between “health practitioners” and “registered health practitioners” in nearby provisions. The drafting contrast supports treating those phrases as meaning different things in this context.
At [88]-[92], the Court holds that cl 8 and the relevant National Law provisions can “stand or live together”. In practical terms, the National Law’s provisions about a member vacating office did not address this change in registration status, so the NCAT Act’s continuation provision could operate.
At [109], Leeming JA explains why he did not decide the underlying composition question. The parties had not addressed his proposed analysis of the phrase “is to be constituted”, and the outcome could be resolved without deciding it.
The decision is relevant where a Tribunal member sitting alone purports to set aside an earlier substantive decision and relies on a statutory power limited to ancillary or interlocutory decisions. The critical questions will include whether the later decision is genuinely preliminary to or consequential on the earlier decision, and whether it determines an aspect of the dispute rather than resolving a confined procedural matter ([21]-[40]).
It is also relevant when a party argues that a procedural-irregularity provision validates a decision made by a Tribunal that lacked authority. The judgment distinguishes procedural defects from defects in the decision-maker’s authority to exercise the statutory power ([41]-[45]).
For appeals, the case matters where the impugned decision is said to be legally ineffective because of jurisdictional error, but the statute defines “decision” to include a purported decision made beyond power. The specific conclusion here rests on s 5(2)(b) and cl 29 of Sch 5 to the NCAT Act ([46]-[51]); it should not be detached from that statutory wording.
In professional discipline matters, the judgment is relevant where a Tribunal member’s registration or qualification changes during proceedings. The applicable result will depend on the provisions governing Tribunal composition, any provision dealing with vacancies, and any continuation provision like cl 8. Bell CJ’s conclusion depended on the fact that Dr Selby did not vacate office and that s 165C was not engaged ([86]-[92]).
The supplied judgment does not provide decisions issued after this judgment that treat it as precedent. It does, however, describe how earlier authorities were treated within this case.
Robinson was applied on the meaning of “interlocutory decision” and its distinction between procedural or evidentiary issues and decisions determining an aspect of the dispute ([39]-[40]). Kovac was cited as having followed Robinson on that point ([39]).
Tangsilsat and Livers were not followed insofar as they supported treating a stage 1 decision as ancillary without a considered analysis of the statutory definition ([30]-[35]). Bell CJ regarded the contrary analysis in Robinson as compelling, while separately explaining that the question whether a stage 1 decision is ancillary does not itself determine the leave requirement under cl 29(6) ([34]-[35]).
World Best Holdings was applied to the effect that the irregularity provision does not cure a lack of authority to exercise statutory power ([44]). The judgment also considered Bhardwaj and Plaintiff S157 on the treatment of jurisdictionally erroneous decisions, but concluded that the NCAT Act’s express definition governed the appeal question in this case ([48]-[51]).
The principal open question within the reasons is Leeming JA’s unresolved construction of “is to be constituted” in s 165B(2). The issue is whether the composition requirement must be satisfied only when the Tribunal is initially constituted or throughout the inquiry. Leeming JA considered the language capable of either reading and noted competing indications in cl 13 of Sch 5 to the NCAT Act, but declined to decide the question without submissions ([98]-[109]).
The majority’s conclusion about the meaning of “health practitioners” in s 165B(2)(b) is the construction adopted by Bell CJ and Ward P. Leeming JA did not decide that issue. A case requiring a ruling on the ambulatory effect of s 165B(2) could therefore require consideration of the question Leeming JA identified, on submissions directed to it ([94], [96]-[110]).
The judgment’s conclusion about appealability depends on the particular interaction of s 5(2)(b) and cl 29 of Sch 5 to the NCAT Act. The reasons discuss other approaches to the meaning of a jurisdictionally erroneous decision, but do not establish that every purported decision affected by jurisdictional error is appealable under every statutory appeal scheme ([46]-[51]).
Finally, the judgment distinguishes a member vacating office under s 165C from a member ceasing to have a qualification while remaining in office under cl 8. The precise interaction of those provisions may depend on the reason for a member’s departure, the provision governing constitution, and whether the member continues participating. The Court’s conclusion was tied to the facts that Dr Selby did not vacate office and that cl 8 addressed the contingency before it ([86]-[92]).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Administrative Decisions Tribunal Act 1997 (NSW) s 81
Civil and Administrative Tribunal Act 2013 (NSW) ss 4(1), 5(2)(b), 29(2), 53, Sch 2 cll 6, 7, 8, Sch 5 cll 13, 29
Civil Procedure Act 2005 (NSW) s 56
Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) s 4(1)(a)
Health Practitioner Regulation National Law (NSW) ss 3A, 3B, 5, 7(1), 35(1), 38(1)(a), 39, 41, 41R, 75(1), 76(1), 128, 138, 139B, 139E, 144, 145B(1)(e), 145BA, 145D, 145I, 146, 149A, 149C(4), 150, 158-160, Pt 8 Div 10, 165A, 165B, 165C, 168, 169B(1), 172B, 174A, Sch 7 cl 13(2)
Health Practitioner Regulation National Law Act 2009 (Qld)
Legal Profession Uniform Law 2014 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) r 35.2(2)
Cases Cited: AQO v Minister for Finance and Services (2016) 93 NSWLR 46; [2016] NSWCA 248
Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261
Boglari v Steiner School and Kindergarten (2007) 20 VR 1; [2007] VSCA 58
Butler v Attorney-General (Vic) (1961) 106 CLR 268; [1961] HCA 32
Calvin v Carr [1980] AC 574
Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5
Christian Community Ministries Ltd v Minister for Education and Early Learning [2024] NSWCA 1
Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16
Clisdell v Commissioner of Police (1993) 31 NSWLR 555
Cockle v Isaksen (1957) 99 CLR 155; [1957] HCA 85
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; [1979] FCA 21
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; [1955] HCA 27
Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1; [2013] HCA 2
Commissioner of Police (NSW) v Cottle (2022) 276 CLR 62; [2022] HCA 7
Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46
Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34
Gaffey v Chief Commissioner of State Revenue [2000] NSWSC 403
Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48
Ghosh v Health Care Complaints Commission [2022] NSWCA 229
Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628; [1966] HCA 74
GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503
Health Care Complaints Commission v Dowla (Jurisdiction Application) [2018] NSWCATOD 96
Health Care Complaints Commission v Kirby (No 2) [2024] NSWCATOD 83
Health Care Complaints Commission v Robinson [2022] NSWCA 164
Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12
Livers v Legal Services Commissioner (2020) 103 NSWLR 738; [2020] NSWCA 317
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft (2021) 273 CLR 21; [2021] HCA 19
Minister for Local Government v Blue Mountains City Council (2018) 97 NSWLR 1132; [2018] NSWCA 133
Old UGC Inc v Industrial Relations Commission of New South Wales (2006) 225 CLR 274; [2006] HCA 24
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 247 CLR 240; [2012] HCA 33
Registrar of Titles (WA) v Franzon (1975) 132 CLR 611; [1975] HCA 41
Reimers v Medical Board of Australia [2024] NSWCA 164
Shergold v Tanner (2002) 209 CLR 126; [2002] HCA 19
Tangsilsat v Council of the Law Society of New South Wales [2019] NSWCA 144
Tsolis v Health Care Complaints Commission [2024] NSWCA 284
Tubemakers of Australia Ltd v Newcastle Pipe Line Co Ltd (Court of Appeal (NSW), 23 December 1987, unrep)
Veterinary Practitioners Board of New South Wales v Kovac [2026] NSWCA 60
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Texts Cited: M Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2020, Federation Press)
P Herzfeld and T Prince, Interpretation (3rd ed, 2024, Lawbook Co)
R Quirk et al, A Comprehensive Grammar of English Usage (Longman, 1985)
Category: Principal judgment
Parties: Health Care Complaints Commission (Applicant in the Summons seeking Leave to Appeal filed 23 January 2026, First Respondent in the Summons seeking Judicial Review filed 30 June 2026, Applicant in the Summons seeking Judicial Review also filed 30 June 2026)
Dr David William Kirby (Respondent in the Summons seeking Leave to Appeal filed 23 January 2026, Applicant in the Summons seeking Judicial Review filed 30 June 2026, First Respondent in the Summons seeking Judicial Review also filed 30 June 2026)
Civil and Administrative Tribunal of New South Wales (Second Respondent in the Summons seeking Judicial Review filed 30 June 2026 and in the Summons seeking Judicial Review also filed 30 June 2026)
Representation: Counsel:
O Jones SC, K Woodforde (Health Care Complaints Commission)
J Sheller SC, D Southwood (Dr David William Kirby)
Solicitors:
Health Care Complaints Commission (Health Care Complaints Commission)
Graham Billing & Co (Dr David William Kirby)
File Number(s): 2025/00455750
Publication restriction: N/A
[This headnote is not to be read as part of the judgment]
The Occupational Division of the Civil and Administrative Tribunal (the Tribunal) made a decision (the first decision) in proceedings brought by the Health Care Complaints Commission (the Commission) in which it held that a dentist, Dr Kirby, had engaged in unsatisfactory professional conduct under the Health Practitioner Regulation National Law (NSW) (National Law).
The Tribunal, constituted by the principal member alone, purported to make a decision (the second decision) to set the first decision aside.
The principal member held that the Tribunal had not been constituted in accordance with s 165B(2)(b) of the National Law. That provision required that, when “conducting an inquiry”, the Tribunal “is to be constituted by”, inter alia, two members who are “health practitioners … registered” in the same health profession as the individual the subject of the inquiry. The principal member held that the provision required those two members to be “practising” that profession. Although one of the members of the Tribunal, Dr Selby, was practising dentistry when the proceedings commenced, he had changed his registration to “non-practising” status before the first decision was made.
The principal member held that Dr Selby was not empowered to continue to deal with the matter despite having changed his registration. Clause 8 of Sch 2 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), which would otherwise have had this effect, was ineffective by virtue of s 165A of the National Law because it was inconsistent with Pt 8 Div 10 of the National Law.
The Commission sought to appeal from the second decision.
The Court (Bell CJ, Ward P and Leeming JA agreeing) held, allowing the appeal and setting aside the second decision:
Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34; Cockle v Isaksen (1957) 99 CLR 155; [1957] HCA 85; PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 247 CLR 240; [2012] HCA 33; Boglari v Steiner School and Kindergarten (2007) 20 VR 1; [2007] VSCA 58; Minister for Local Government v Blue Mountains City Council (2018) 97 NSWLR 1132; [2018] NSWCA 133, cited.
Old UGC Inc v Industrial Relations Commission of New South Wales in Court Session (2006) 225 CLR 274; [2006] HCA 24; Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48; Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16; Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5, referred to.
Tangsilsat v Council of the Law Society of New South Wales [2019] NSWCA 144; Livers v Legal Services Commissioner (2020) 103 NSWLR 738; [2020] NSWCA 317, not followed.
Health Care Complaints Commission v Robinson [2022] NSWCA 164, applied.
Veterinary Practitioners Board of New South Wales v Kovac [2026] NSWCA 60; AQO v Minister for Finance and Services (2016) 93 NSWLR 46; [2016] NSWCA 248, cited.
Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261, applied.
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; [1979] FCA 21; Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16; Clisdell v Commissioner of Police (1993) 31 NSWLR 555; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11; Calvin v Carr [1980] AC 574; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2, considered.
Per Bell CJ, Ward P agreeing
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft (2021) 273 CLR 21; [2021] HCA 19; Registrar of Titles (WA) v Franzon (1975) 132 CLR 611; [1975] HCA 41; Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12; Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628; [1966] HCA 74; Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; [1955] HCA 27; Tubemakers of Australia Ltd v Newcastle Pipe Line Co Ltd (Court of Appeal (NSW), 23 December 1987, unrep); Reimers v Medical Board of Australia [2024] NSWCA 164; Ghosh v Health Care Complaints Commission [2022] NSWCA 229; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43, cited.
Per Leeming JA
Christian Community Ministries Ltd v Minister for Education and Early Learning [2024] NSWCA 1, cited.
Per Bell CJ, Ward P and Leeming JA agreeing
Reimers v Medical Board of Australia [2024] NSWCA 164; Commissioner of Police (NSW) v Cottle (2022) 276 CLR 62; [2022] HCA 7; Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1; [2013] HCA 2; Shergold v Tanner (2002) 209 CLR 126; [2002] HCA 19; Butler v Attorney-General (Vic) (1961) 106 CLR 268; [1961] HCA 32, cited.
Health Care Complaints Commission v Dowla (Jurisdiction Application) [2018] NSWCATOD 96; Tsolis v Health Care Complaints Commission [2024] NSWCA 284; GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503, referred to.
BELL CJ: On 21 June 2024, the Occupational Division of the Civil and Administrative Tribunal (the Tribunal) made a decision in proceedings brought by the Health Care Complaints Commission (the Commission) in which it held that a dentist, Dr David Kirby (Dr Kirby), had engaged in unsatisfactory professional conduct under the Health Practitioner Regulation National Law (NSW) (National Law): Health Care Complaints Commission v Kirby (No 2) [2024] NSWCATOD 83 (the first decision).
The panel of the Tribunal included one senior judicial officer (Coleman SC ADCJ, Principal Member) (the P****rincipal M****ember), one lay person and two health practitioners registered as dentists. One of those health practitioners was Dr Selby, Senior Member (Dr Selby).
Subsection 165B(2) of the National Law provides that, save for some presently immaterial exceptions, the Tribunal “when conducting an inquiry or hearing an appeal” under the National Law “is to be constituted by”:
“(a) 1 Division member who is an Australian lawyer of at least 7 years’ standing or, in the case of medical practitioner proceedings, 1 Division member who is a senior judicial officer; and
(b) 2 health practitioners selected for appointment by the Council as occasional members under subsection (1)(b) who are registered in the same health profession as the health practitioner or student the subject of the inquiry or appeal; and
(c) 1 lay person (that is, a person who is not registered in the health profession) selected for appointment by the Council as an occasional member under subsection (1)(b) from among a panel of lay persons for the time being nominated by the Minister.” (emphasis added)
“5 Definitions
…
health practitioner means an individual who practises a health profession.
…
registered health practitioner means an individual who—
(a) is registered under this Law to practise a health profession, other than as a student; or
(b) holds non-practising registration under this Law in a health profession.” (emphasis added)
The linguistic conundrum which underscores this case is immediately apparent: by reason of para (b), a registered health practitioner need not be someone who actually practises a health profession.
By the time the Tribunal made the first decision on 21 June 2024, Dr Selby had changed his registration status to “non-practising” and, while he remained a “registered health practitioner”, notwithstanding this designation, he was no longer a “health practitioner” within the meaning of the definition of that term in s 5 of the National Law.
Following the first decision, Dr Kirby purported to bring an application to set the first decision aside on the basis that Dr Selby’s change in registration status to “non-practising” meant that he was not qualified to be a member of the Panel as he no longer met the definition of a “health practitioner” and that, as such, the Panel was not constituted in accordance with s 165B(2) of the National Law and therefore lacked jurisdiction to make the first decision.
That “application” was heard by the Principal Member on 3 September 2025. He gave his decision on 29 October 2025 in which he purported to set aside the first decision: Health Care Complaints Commission v Kirby [2025] NSWCATOD 144 (the second decision).
The Principal Member held that the first decision was void for two reasons. First, the Tribunal had not been constituted in accordance with s 165B(2) of the National Law when it made the first decision by reason of Dr Selby’s change in registration status. Secondly, although cl 8 of Sch 2 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) would otherwise have enabled Dr Selby to deal with any matters in the proceedings despite having changed his registration status, the Principal Member held that that clause was ineffective by reason of s 165A of the National Law which provides that “[t]he provisions of [the Division in which s 165B is located] are intended to apply despite anything to the contrary in the [NCAT Act].”
The Commission sought leave to appeal from the second decision, purportedly pursuant to cl 29 of Sch 5 to the NCAT Act. Leave was not opposed by Dr Kirby and was initially granted at the outset of the hearing of the appeal.
In this Court, the Commission attacked both aspects of the second decision. It contended that Dr Selby’s change in registration status did not affect his ability to participate in the first decision because, on the proper construction of s 165B(2)(b) of the National Law, a “health practitioner” in that section referred to a “registered health practitioner”, whether practising or not. The Commission also contended that, even if that construction were not correct, cl 8 of Sch 2 of the NCAT Act applied to allow Dr Selby to continue to deal with matters in the proceedings.
Dr Kirby sought to uphold the second decision and its reasoning.
In this Court, a question arose as to what jurisdiction the Principal Member had to hear the “application” to set the first decision aside or to make the orders he did. That question should be dealt with first.
A related issue which arose concerned whether, if the Principal Member lacked jurisdiction to give the second decision, an application for leave to appeal and any appeal from a decision which the Principal Member lacked jurisdiction to give, was competent. This issue is considered in further detail at [46]-[55] below.
“[I]t is the first duty of judicial and quasi-judicial bodies, when a question of their jurisdiction and powers is raised, to satisfy themselves as to such jurisdiction and as to their power to afford the relief claimed”: Old UGC Inc v Industrial Relations Commission of New South Wales (2006) 225 CLR 274; [2006] HCA 24 at [51]; see also Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 at [131]; Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 at [24]-[25] (Citta).
If jurisdiction is wrongly determined to exist, statute aside, such order as is ultimately made in the purported exercise of jurisdiction is wholly lacking in legal force: Citta at [27]; Cameron v Cole (1944) 68 CLR 571 at 590-591; [1944] HCA 5.
It should also be noted that the National Law makes no provision for an appeal from a decision of the Tribunal to the Tribunal in the context of a decision made by the Occupational Division (although an appeal may lie to the Tribunal from a decision of a Professional Standards Committee, Council or Performance Review Panel: see ss 138, 158, 159 and 160 of the National Law). Similarly, the NCAT Act provides that a “profession decision”, being (relevantly) a decision for the purposes of the National Law, is not an internally appealable decision: Sch 5 cl 29(1)(d). Clause 29(2) of Sch 5 provides for an appeal from a profession decision to the Supreme Court. Clause 29(6) of Sch 5 provides that:
“ … Despite subclauses (2)-(5), an appeal does not lie to a court under this clause against any of the following decisions except by leave of the court—
(a) an interlocutory decision of the Tribunal,
(b) a decision made with the consent of the parties,
(c) a decision as to costs.”
“[6] 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.
…
[8] Section 165B(5A) provides that, when making an ‘ancillary decision’ or an ‘interlocutory decision’ within the meaning of the [NCAT Act] the Tribunal is to be constituted by the Tribunal List Manager or, as in this case, a Senior Judicial Officer.
[9] The [NCAT] 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’.
[10] 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.”
Dr Kirby supported the Principal Member’s view that the second decision fell within the definition of an “ancillary decision”.
Contrary to [6] of the second decision, the Tribunal constituted by the Principal Member alone did not have jurisdiction to set aside the first decision merely because the parties agreed that he did. A concession about jurisdiction is not binding: M Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2020, Federation Press) at p 38, citing Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 at [196]; Cockle v Isaksen (1957) 99 CLR 155 at 161; [1957] HCA 85; PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 247 CLR 240; [2012] HCA 33 at [16]; Boglari v Steiner School and Kindergarten (2007) 20 VR 1; [2007] VSCA 58 at [55]; Minister for Local Government v Blue Mountains City Council (2018) 97 NSWLR 1132; [2018] NSWCA 133 at [49]-[51] (Blue Mountains City Council).
So, too, the fact that leave to appeal was sought and not opposed does not relieve this Court of the need to satisfy itself of its own jurisdiction: Blue Mountains City Council at [51]. As noted above, where the order under appeal “is wholly lacking in legal force” (see Citta at [27]), that purported decision will have been affected by jurisdictional error.
“The Tribunal, when constituted to make an ancillary decision or an interlocutory decision within the meaning of the [NCAT Act], is to be constituted by the Tribunal List Manager or the member referred to in subsection (2)(a).”
Subsection 165B(2)(a) refers to “1 Division member who is an Australian lawyer of at least 7 years’ standing or, in the case of medical practitioner proceedings, 1 Division member who is a senior judicial officer”. The Principal Member met this description. The critical question is whether the second decision was an “ancillary decision” or an “interlocutory decision” within the meaning of the NCAT Act. For the reasons that follow, it was neither.
“ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including —
(a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and
(b) a decision concerning the awarding of costs in proceedings.”
The two examples in paras (a) and (b) of this definition are respectively illustrations of a decision made preliminary to a decision determining proceedings and a decision consequential on a decision determining proceedings.
Jurisdiction to make ancillary decisions is conferred by s 29(2) of the NCAT Act.
Obviously enough, the second decision was not “preliminary to” the first decision but post-dated it by many months, and a decision concerning a court or tribunal’s jurisdiction is one that is required to be made at the outset. Sometimes and perhaps usually (although not invariably), such a decision will be made discretely by way of a free-standing decision; in other cases, where a jurisdictional argument is entertained concurrently with the hearing of the substantive matter, a decision concerning jurisdiction may be made as part of the substantive decision (assuming jurisdiction is found).
Similarly, the second decision was not “consequential on” the first decision. A decision which is “consequential on” an earlier decision assumes the validity and correctness of that decision and will involve a working out of matters such as costs, orders or forms of sanction or penalty.
These observations are not, however, the end of the analysis. The statutory definition of an ancillary decision focuses upon whether the decision is preliminary to or consequential on “a decision determining proceedings”.
While the first decision involved a determination that Dr Kirby engaged in unsatisfactory professional conduct under the National Law, it did not involve the determination of any protective orders consequent upon that decision. As the Tribunal noted at [10] of the first decision:
“These proceedings potentially involve two stages. The first is whether the Tribunal is comfortably satisfied that the Practitioner is guilty of unsatisfactory professional conduct and/or professional misconduct (Stage 1). In the event that findings of guilt are made, the second stage in the proceedings involves the determination of the appropriate protective orders (Stage 2).”
“(1) The Respondent is guilty of unsatisfactory professional conduct.
(2) Direct that the matter be listed for directions for hearing with respect to the determination of appropriate protective orders.
(3) Pursuant to s 64 of the [NCAT Act], the disclosure of the name of Patient A listed in the Schedule to the Complaint annexed to the Application for disciplinary findings and orders in this matter is prohibited.”
“The appellant had filed a summons … described as both a summons commencing an appeal and a summons seeking leave to appeal. The respondent … accepts that leave is not required and that the appeal lies as of right. The appeal lies pursuant to cl 29(2)(b) of Schedule 5 to the [NCAT Act]. The decision in question is an ancillary decision and not an interlocutory decision (definition of “ancillary decision” in s 4(1) and “interlocutory decision” in s 4(1)).”
I agreed with White JA’s decision as did Macfarlan JA.
It is plain that the final sentence of this passage from Tangsilsat was directed to the requirement for leave to appeal in cl 29(6) of Sch 5 to the National Law, reproduced at [16] above. In deciding that leave to appeal was not required, White JA evidently considered that the stage 1 decision the subject of the Summons was not an “interlocutory decision” within the meaning of s 4(1) of the NCAT Act. That definition is reproduced at [38] below. His Honour appears to have then assumed, by a process of elimination, that the stage 1 decision was an ancillary decision although his Honour’s statement to this effect was conclusory. Tangsilsat was followed in Livers v Legal Services Commissioner (2020) 103 NSWLR 738; [2020] NSWCA 317 at [5] but again without any consideration of the correctness of the characterisation of the nature of a stage 1 decision.
In a subsequent decision, Health Care Complaints Commission v Robinson [2022] NSWCA 164 (Robinson), both Leeming JA and Simpson AJA questioned the correctness of White JA’s characterisation of a stage 1 decision as an “ancillary decision”. It was observed by Simpson AJA that the terminology of stage 1 and stage 2 decisions found no support in the NCAT Act. Her Honour held at [82]-[84] that:
“It seems clear that, in constructing the appeal rights set out in cl 29 of Sch 5 [to the NCAT Act], the drafters of the legislation did not have in contemplation the two stage procedure that has been adopted by the Tribunal, which, as mentioned above, has no statutory recognition. That is why there is no express provision in cl 29 for appeal against a decision made in Stage 1 of an inquiry.
In my opinion, neither of the decisions of the Tribunal, that the respondent was guilty of unsatisfactory professional conduct, but was not shown to have been guilty of professional misconduct, was either an ancillary or an interlocutory decision.
That conclusion directs attention back to cl 29. Each decision was a ‘professional [sic] decision’, as to which a right of appeal is conferred by subcl (2)(b), subject to subcl 4(b).”
Clause 29(4)(b) of Sch 5 to the NCAT Act to which Simpson AJA referred provides that, in the case of an appeal from a “profession decision” of the Occupational Division other than a decision under the Legal Profession Uniform Law 2014 (NSW), an appeal lies as of right on any question of law, or with the leave of the court, on any other grounds. In other words, a right to appeal from a stage 1 decision does not require it to be characterised as “ancillary”.
That White JA’s characterisation of a stage 1 decision as an “ancillary decision” was problematic was explained by Leeming JA in Robinson as follows:
“[13] When making the decision giving rise to the present appeal, the Tribunal was not constituted in accordance with s 165B(5A). It is easy to see why a Tribunal constituted so as to include two health practitioners and one lay person is appropriate to determine issues of professional misconduct and unsatisfactory professional conduct, and why it might be thought appropriate for the Tribunal to be reconstituted by a single legally qualified person for the resolution of questions of jurisdiction and costs. Likewise, it is impossible to conclude that the Tribunal when making some of the most important decisions in its work, resolving serious allegations against health practitioners, would be constituted by a single legally qualified person, and yet that is a possible consequence of accepting the Commission’s submission as to the decision being an ancillary decision.
[14] In an attempt to avoid that outcome, the Commission submitted that s 165B(5A) although mandatory did not stand in the way of characterising the decision as an ancillary decision. The submission focussed upon the proposition that s 165B(5A) required an inquiry as to the purpose of constituting the tribunal. In the present case, the purpose was to conduct ‘Stage 1’ of the proceeding brought by the Commission, and so it was said s 165B(5A) was not engaged.
[15] It is not necessary to resolve that submission, although I am sceptical of its correctness. Whether or not the decision falls within the definition of ‘ancillary decision’ is a distraction from the real question. The real question is much simpler. It is whether cl 29(6) in Schedule 5 of the [NCAT] Act, which qualifies the right of appeal in cl 29(4), is engaged.
[16] The operation of cl 29(6) does not turn on whether the decision is or is not an ‘ancillary decision’. Indeed, as the respondent’s submissions pointed out, decisions as to costs are explicitly ‘ancillary decisions’ by reason of para (b) in the definition in s 4, but an appeal lies only by grant of leave from such a decision: cl 29(6)(c). This illustrates that determining whether or not a decision is an ‘ancillary decision’ will not determine the only issue which presently matters, which is whether cl 29(6) is engaged.”
That analysis, while obiter, is to my mind compelling. A stage 1 decision is “a decision determining proceedings”, albeit only one aspect of proceedings (liability) which was not apt to be characterised as ancillary.
Nor was the second decision “consequential on” the first, stage 1 decision. It concerned whether an implicit finding concerning jurisdiction should be set aside and was, in that sense, akin to the determination of an appeal in respect of which only the Supreme Court had jurisdiction: see at [16] above. Such a decision cannot be described in any sense as “ancillary” to or “consequential” on the very decision it purports to set aside: see also at [26] above.
For completeness, I turn to consider whether the second decision can be characterised as an interlocutory decision and thus one which was capable of having been made by the Principal Member by virtue of s 165B(5A) of the National Law: see at [21] above.
“interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following—
(a) the granting of a stay or adjournment,
(b) the prohibition or restriction of the disclosure, broadcast or publication of matters,
(c) the issue of a summons,
(d) the extension of time for any matter (including for the lodgment of an application or appeal),
(e) an evidential matter,
(f) the disqualification of any member,
(g) the joinder or misjoinder of a party to proceedings,
(h) the summary dismissal of proceedings,
(h1) the granting of leave for a person to represent a party to proceedings,
(i) any other interlocutory issue before the Tribunal.”
“Section 4 of the [NCAT] Act includes in paragraphs (a)-(h1) nine classes of procedural decisions which are classically interlocutory – granting of a stay or adjournment, making of confidentiality orders, issuing a summons (the equivalent of a subpoena), extending time, ‘any evidential matter’, disqualifying a member, joinder and misjoinder, summary dismissal, and representation. The concluding paragraph is ‘any other interlocutory issue before the Tribunal’. Whether or not a person’s conduct amounts to professional misconduct or unsatisfactory professional conduct is not something which answers the description of an ‘interlocutory issue’. Consistently with this, the word ‘other’ reflects the fact that the final category is to be read ejusdem generis as limited in the same way as the categories which precede it, and thus ‘interlocutory issue’ is to be understood as confined to procedural or evidentiary issues which do not determine on a final basis any aspect of the dispute between the parties.”
“53 A****mendments and irregularities
…
(3) If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise.
(4) The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings.” (emphasis added)
The NCAT Act defines “procedural rules” in s 4:
“procedural rules means each of the following—
(a) the Tribunal rules,
(b) the regulations in their application to the practice and procedure of the Tribunal.”
“13 Constitution of Tribunal for proceedings entered in Health Practitioner List
(1) The Tribunal, when exercising a Division function in proceedings that are entered in the Health Practitioner List, is to be constituted (and, where necessary, reconstituted) in accordance with any applicable requirements specified by or under the National Law for the constitution of the Tribunal in proceedings of the kind concerned.
(2) Nothing in subclause (1) limits the exercise by the List Manager for the Health Practitioner List (or a delegate of the List Manager) of any of the functions of the List Manager.”
“81 Amendments and irregularities
(1) The Tribunal may, in any proceedings before it, make any amendments to the proceedings that the Tribunal considers to be necessary in the interests of justice.
(2) Any such amendment may be made:
(a) at any stage of the proceedings (including the commencement or purported commencement of proceedings), and
(b) on such terms as the Tribunal thinks fit (including, if it can award costs in the proceedings, terms as to costs).
(3) If this Act, the regulations or a rule of the Tribunal is not complied with in relation to the commencement (or purported commencement) of proceedings or conduct of proceedings before the Tribunal, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings or any decision in the proceedings.
(4) For the purposes of subsection (3), the Tribunal may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings.”
“[84] This section is clearly derived from longstanding provisions in rules or legislation of courts, which find their origins in the concern of the Judicature Acts to ensure that litigants were not defeated by mere technicalities. (See, for example, the Supreme Court Act, s 81 and the District Court Act 1973, s 159; see the analysis in Rust v Barnes [1980] 2 NSWLR 726 at 729-731; Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734 at 752-753.)
[85] Such provisions in statutes affecting courts have been interpreted as directed to matters of practice and procedure. They do not operate as some kind of privative clause. Section 81(3) of the [ADT Act] has the same purpose.
…
[97] The scope and purpose of this provision is confined to procedural irregularities. The word ‘decision’ in the final clause of the subsection, identifying what kinds of matters are not ‘nullified’, must be read in the context that something is to be classified as a mere ‘irregularity’ so as not to nullify either a ‘step taken’ or a ‘decision in’ the proceedings. This, in my opinion, means 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 the statutory power. …”
Tobias JA agreed with Spigelman CJ at [196]-[197] that the error in that case was not “merely procedural in nature”. The observations of Spigelman CJ and Tobias JA equally apply such that s 53(4) of the NCAT Act is not enlivened in the present case, even assuming that the Tribunal comprised of the Principal Member sitting alone could have exercised the jurisdiction.
It follows that the second decision was made without and beyond jurisdiction. In World Best Holdings, Spigelman CJ said that the purported exercise of a statutory power “by persons who had no authority of any character to do so” was “a jurisdictional error of a fundamental kind”: at [97].
Notwithstanding this and its contention to that effect, the Commission submitted that its appeal from the second decision “remained a proper and competent one” for two reasons:
“First, the fact that the October Decision [the second decision] may be affected by jurisdictional error does not prevent appeal or review proceedings being taken in respect of it. It remained a ‘decision’ for the purposes of the NCAT Act. This position accords with the position adopted in relation to the Administrative Decisions Judicial Review Act 1977 (Cth): Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 at 344, per Bowen CJ; Clisdell v Commissioner of Police (1993) 31 NSWLR 555 at 558-559, per Sheller JA, Handley and Cripps JJA agreeing; Zubair v Minister for Immigration (2004) 139 FCR 344 at [28]-[32], per the Court.
Second, this must be so, because the premise for an appeal from a decision under the National Law (absent leave to appeal on factual grounds) is that an error of law has been made. When an administrative decision-maker makes an error of law a jurisdictional error occurs: Craig v South Australia (1995) 184 CLR 163 at 179, per the Court; quoted in Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [67]-[68], per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. This reinforces the conclusion that the mere fact that a ‘decision’ under the [NCAT] Act is affected by jurisdictional error does not mean that it is not possible to appeal from that decision pursuant to the [NCAT] Act. Were it otherwise, no appeal on a question of law would be possible at all.”
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; [1979] FCA 21 (Lawlor) involved an appeal to the Federal Court from an administrative decision under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The question of power concerned the power of the Administrative Appeals Tribunal to entertain an application made to it by Brian Lawlor Automotive Pty Ltd from a decision of the Collector of Customs and turned on the meaning of the word “decision” in the AAT Act. In the context of the AAT Act, a decision that is legally ineffective because of some form of jurisdictional error was nonetheless treated as a “decision in fact” and therefore capable of review by the AAT. As the High Court explained it in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [39], the fundamental reason for adopting this meaning of “decision” lay in the evident legislative purpose of the AAT Act.
Clisdell v Commissioner of Police (1993) 31 NSWLR 555 (Clisdell) involved a challenge to a recommendation which Sheller JA held “cannot be considered as totally void”: at 559. By way of contrast, there is another line of authority that holds that a decision that involves jurisdictional error is a “decision that lacks legal foundation and is properly regarded, in law, as no decision at all”: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 at [51], [63] (Bhardwaj). In that case, referring critically to Calvin v Carr [1980] AC 574, upon which both Lawlor and Clisdell drew heavily, Gaudron and Gummow JJ, with whom McHugh J agreed, rejected as unhelpful descriptions of administrative decisions made without jurisdiction as “void”, “voidable”, “invalid”, “vitiated” or even as “nullities”: at [46].
In Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 (Plaintiff S157), Gaudron, McHugh, Gummow, Kirby and Hayne JJ said at [76]:
“ … the expression ‘decision[s] ... made under this Act’ must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is ‘regarded, in law, as no decision at all’. Thus, if there has been jurisdictional error because, for example, of a failure to discharge ‘imperative duties’ or to observe ‘inviolable limitations or restraints’, the decision in question cannot properly be described in the terms used in s 474(2) as ‘a decision ... made under this Act’ …” (emphasis added; footnotes omitted)
“a decision that purports to be made under enabling legislation or this Act is taken to be a decision made under the enabling legislation or this Act even if the decision was beyond the power of the decision-maker to make …” (emphasis added)
The National Law is “enabling legislation”, which is defined in s 4 of the NCAT Act as including legislation that “provides for applications or appeals to be made to the Tribunal with respect to a specified matter or class of matters”.
It follows, by analogy with Lawlor, that the second decision, purportedly “made” under s 165B(5A) of the National Law or s 53 of the NCAT Act, must be taken for the purposes of cl 29 of Sch 5 to the NCAT Act to be a decision made under one of those enactments, notwithstanding that the decision was beyond the power of the Tribunal to make. It is a decision from which an appeal on a question of law lies: see at [33] above. No grant of leave to appeal was or is in fact required.
As such, the appeal is competent but, when the question as to the competency of the appeal emerged in the course of argument, consistent with s 56 of the Civil Procedure Act 2005 (NSW), the Court raised the possibility with the parties that, if the appeal was in fact incompetent, the position could be procedurally salvaged by the parties being given leave nunc pro tunc to file, in the case of the Commission, a Summons seeking to set aside the second decision for jurisdictional error and, in the case of Dr Kirby, a Summons seeking to set aside the first decision also on the grounds of jurisdictional error. In the case of the Commission’s Summons, the jurisdictional error lay in the wrongful assumption of jurisdiction by the Principal Member; in the case of Dr Kirby’s Summons, the jurisdictional error (if there was one) lay in the decision being made in non-compliance with s 165B(2)(b) of the National Law.
It appeared to the Court that, against the contingency that the appeal was incompetent, this course would allow the substance of the dispute, which essentially involved questions of statutory construction, to be determined without any further hearing and consequent expense. Leave was given and directions made allowing the parties to file their respective Summonses as well as to make any submissions in writing in opposition to this proposed course.
This course was not opposed and, out of an abundance of caution, the parties filed Summonses for judicial review which provided an alternative means for ventilating their respective arguments.
As, for the reasons given above, the appeal is in fact competent given the definition of “decision” in s 5(2)(b) of the NCAT Act and, as the issues which arise on the appeal are the same as have been sought to be raised in the Summonses, it is unnecessary to consider the Summonses for Judicial Review and they should be dismissed with no order as to costs.
“1. The Principal Member … made an error of law in his construction of s 165B of the Health Practitioner Regulation National Law (‘the National Law’) by holding that the phrase ‘health practitioner ... registered in the same health profession’ required the person to hold practising registration (rather than non-practising registration) in order for the person to continue to be qualified as an occasional member and for the Tribunal to be validly constituted.
- If Ground 1 is answered in the negative, the Principal Member … made an error of law in holding that s 11 and cl 8 [of] Sch 2 of the [NCAT] Act … are inconsistent with s 165B of the National Law, such that cl 8 [of] Sch 2 of the [NCAT] Act did not apply pursuant to s 165A of the National Law.”
The initial question that arises is whether, for the purposes of s 165B(2)(b) of the National Law, set out at [3] above, the phrase “health practitioner … registered in the same health profession as the health practitioner … the subject of the inquiry” does not include an individual who holds a “non-practising” registration.
If this be so, in circumstances such as those in the present case, does cl 8 of Sch 2 to the NCAT Act operate? That clause, entitled “Members and former members may complete unfinished matters”, provides:
“(1) This clause applies to a member (an affected member) dealing with any matters relating to proceedings before the Tribunal that have been heard or partly heard (or were 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,
(ii) the mental incapacity of the member,
(iii) the member becoming bankrupt or insolvent, or
(b) ceases to be a member because of the expiration of the period of the member’s appointment,
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.”
On its face, that clause would appear to answer any jurisdictional problem arising from Dr Selby’s change of registration status, and this was not seriously in contention. But Dr Kirby contended that s 165A of the National Law which provides that “[t]he provisions of this Division are intended to apply despite anything to the contrary in the [NCAT Act]” stood in the way and effectively overrode the operation of cl 8 of Sch 2 to the NCAT Act. This was, it was submitted, because s 165B(2) required the Tribunal at all times to be constituted by two health practitioners, and that requirement was inconsistent with cl 8 of Sch 2 to the NCAT Act and was also inconsistent with s 165C of the National Law which was concerned with, to quote the heading of the section, the “[e]ffect of [a] vacancy on [the] Tribunal”. The terms of s 165C are set out at [86] below in the context of considering this argument.
There are thus two principal questions of statutory interpretation that arise: first, in relation to the proper construction of s 165B(2)(b) of the National Law and, second, in relation to s 165A.
“Except as provided by subsections (4), (5) and (5A), the Tribunal, when conducting an inquiry or hearing an appeal under this Law, is to be constituted by—
(a) 1 Division member who is an Australian lawyer of at least 7 years’ standing or, in the case of medical practitioner proceedings, 1 Division member who is a senior judicial officer; and
(b) 2 health practitioners selected for appointment by the Council as occasional members under subsection (1)(b) who are registered in the same health profession as the health practitioner or student the subject of the inquiry or appeal; and
(c) 1 lay person (that is, a person who is not registered in the health profession) selected for appointment by the Council as an occasional member under subsection (1)(b) from among a panel of lay persons for the time being nominated by the Minister.”
The definitions of “health practitioner” and “registered health practitioner” have been set out at [4] above. Clause 13(2) of Sch 7 to the National Law provides that “[d]efinitions in or applicable to [the National] Law apply except so far as the context or subject matter otherwise indicates or requires”.
The parties are at issue as to whether the phrase “health practitioner … registered in the same health profession as the health practitioner … the subject of the inquiry” in s 165B(2)(b) of the National Law includes an individual who holds a “non-practising” registration, the Commission urging that it does, Dr Kirby to the contrary.
Mr Jones SC, who appeared for the Commission, advanced his argument in several ways, and with great skill. First, he submitted that “health practitioner”, where first used in subsection (b), should be understood as a “registered health practitioner” by reason of the phrase “who are registered” used later in the subsection. There was no difference in substance, he submitted, and the expression “health practitioners who are registered” was simply another grammatical form of referring to “registered health practitioners”. Other examples of this phenomenon in the National Law included ss 35(1)(c)(iii) (“guidance to health practitioners registered in the profession”), 35(1)(g)(i) (“persons who are or were registered as health practitioners”), 39 (“health practitioners it registers”), and 41 (“a health practitioner registered”).
Second, he submitted that the second reference to “health practitioner” in the subsection must include a non-practising registered health practitioner as complaints can be made against such a practitioner. This submission was supported by at least the following provisions of the National Law: ss 5 (definition of “health, conduct or performance action”), 35(1)(a) and (g)(i), 139B(1), 144, 145B(1)(e), 145D(1), 145I, 149A(1) and (3), 149C(4) and 150(3). This being the case, he submitted, was a further reason to interpret the first reference to “health practitioner” in the subsection as a “registered health practitioner” by reason of the principle of statutory interpretation that the same word(s) used in the same provision or clause should bear the same meaning: P Herzfeld and T Prince, Interpretation (3rd ed, 2024, Lawbook Co) at [5.180] (Interpretation); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft (2021) 273 CLR 21; [2021] HCA 19 at [25], citing Mason J in Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618; [1975] HCA 41: “It is a sound rule of construction to give the same meaning to the same words appearing in different parts of a statute unless there is reason to do otherwise.”
Thirdly, Mr Jones submitted that the National Law was quite imprecise in its use of the term “health practitioner” and gave numerous examples from elsewhere in the National Law where a reference to “health practitioner” had to be understood, in context, as a reference to a “registered health practitioner”. Examples pointed to included National Law ss 5 (definition of “registration authority”), 38(1)(a), 76(1), 145B(1)(e), 145BA, 146, and 168. This founded a platform for Mr Jones’ submission that the Court would not simply follow the mechanical course favoured by McHugh J in Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 at [103] (Kelly), namely of reading in the words of a defined term into a section of the statute which used that defined term.
On the other hand, the Kelly approach was favoured by Mr Sheller SC who appeared for Dr Kirby. The Kelly approach involved reading the reference to “2 health practitioners” in s 165B(2)(b) as “2 individuals who practise a health profession”. That definition would necessarily exclude an individual who is a “non-practising” “registered health practitioner” who “must not practise the profession”: National Law s 75(1).
At [103] of Kelly, McHugh J observed:
“ … 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.” (emphasis added)
“The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense — or are to be taken to include certain things which, but for the definition, they would not include. ... [Definition] clauses are ... no more than an aid to the construction of the statute and do not operate in any other way.” (emphasis added)
and the observation of Dixon CJ in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397; [1955] HCA 27 that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.”
It should also be noted that cl 13(2) of Sch 7 to the National Law provides that “[d]efinitions in or applicable to [the National] Law apply except so far as the context or subject matter otherwise indicates or requires”.
As with Mr Jones, Mr Sheller sought to boost his argument by reference to other provisions of the National Law, in particular ss 169B(1), 172B(1) and 174A(2) which all fall within Part 8 and which were all inserted at the same time as s 165B (which was at the time numbered 165A).
These sections make provision for the constitution of Professional Standards Committees, Assessment Committees and Performance Review Panels respectively. The sections adopt a common form of drafting and it is sufficient to take s 169B(1) as an example:
“A Committee consists of—
(a) 2 registered health practitioners who—
(i) are registered in the same health profession as the relevant health practitioner the subject of the proceedings before the Committee; and
(ii) have the qualifications, if any, prescribed by the NSW regulations for that profession; and
(b) one person who is an Australian lawyer and not a registered health practitioner and who is to be appointed by the Council as Chairperson of the Committee; and
(c) one person, appointed from among a panel of persons for the time being nominated by the Minister, who—
(i) is not a registered health practitioner or student in the same health profession as the relevant health practitioner the subject of the proceedings before the Committee; and
(ii) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act.” (emphasis added)
“2 health practitioners … who are registered in the same health profession as the health practitioner or student the subject of the inquiry or appeal”
The key difference is that, whereas s 165B(2)(b) simply uses the expression “health practitioners”, each of ss 169B(1), 172B(1) and 174A(2) uses the expression “registered health practitioners”. It is clear that the legislative drafter intended this conspicuous difference, one consequence of which is that the issue that arose in the present case, with Dr Selby changing his registration status, would not have arisen in the context of any of the committees or panels whose constitution was prescribed by ss 169B(1), 172B(1) or 174A(2). A further consequence would be that none of those committees or panels would have had to include a practising health practitioner in the first place (although they could have been constituted by one or more practising health practitioners).
“A lawyer, when drafting a document, will ordinarily use the same word when the same meaning is intended: he will be conscious that, when a different word is used, the presumption will be that a different meaning was intended. Those not confined by the rules and techniques of legal drafting are less confined in the use of language: they are apt to use different words where the same meaning is intended and to see verbal felicity in this.”
Consistent with this statement of linguistic logic, equally applicable to contractual documents as to legislation, Mr Sheller submitted that the difference referred to at [73] above (and the asserted requirement that the Tribunal under s 165B(2)(b) of the National Law include practising health practitioners) was quite deliberate and that the requirement for practising health practitioners (as opposed to non-practising registered health practitioners) to constitute the Tribunal reflected the more extensive powers, greater sanctions and ability to impose conditions on health practitioners than were conferred on any of the committees or panels whose constitution was prescribed by ss 169B(1), 172B(1) and 174A(2). So much is also reflected in the fact that the Tribunal had to include a senior lawyer of at least seven years’ standing (s 165B(2)(a)) whereas the other committees or panels either required a lawyer with no requirement for any particular seniority (s 169B(1)(b)) or did not require a lawyer at all: ss 172B, 174A.
Further, given that the Tribunal is concerned with serious complaints (National Law s 145D) and inquiries and complaints which could result in findings of unsatisfactory professional conduct and professional misconduct (ss 139B, 139E) and penalties being imposed which could include conditions being imposed on a right to practise, it was submitted that there were sound policy reasons for decisions that could result in such consequences being made by practising health practitioners as opposed to non-practising registered health practitioners who are proscribed from practising: s 75(1). Apart from the mere fact of practice, practising as opposed to registered non-practising health practitioners are also subject to mandatory ongoing continuing professional development obligations under the National Law (s 128) which are designed to ensure that they are up to date with recent developments. These may be germane to a particular inquiry. Putting the matter conversely, if the composition of the Tribunal could include two registered non-practising health practitioners, they could be practitioners who had been retired (but maintained their registration status) for many years and whose knowledge of practice was out of date by reason of both their having ceased to practise and their not having had to keep up to date with continuing professional education.
There was considerable force in each of Mr Jones’s arguments, summarised at [64]-[66] above, which involved an exhaustive survey of the National Law, a statute that is far from a model of drafting consistency. The nature of the National Law and some of its undoubted complexity was explored and explained by Leeming JA in Reimers v Medical Board of Australia [2024] NSWCA 164 (Reimers). Mr Jones was correct to point out imprecision and inconsistency in drafting and to point to examples where the term “health practitioner” had to be understood as “registered health practitioner” which could include a registered non-practising health practitioner.
Contrary to Mr Sheller’s policy submissions noted at [75]-[76] above, Mr Jones also articulated policy arguments that could be made in favour of having non-practising registered health practitioners sit on the Tribunal, contending that “one can have qualified and experienced people sitting on the [T]ribunal even though they are not actively practising” and that retired but experienced dentists who were registered but in a non-practising capacity were likely to have greater time to participate in hearings as opposed to busy practitioners. He also pointed out that the role of a health practitioner on the Tribunal will not be to form and give his or her own opinion on the medical or other health questions that may be presented by a complaint by applying his or her own experience and expertise: Ghosh v Health Care Complaints Commission [2022] NSWCA 229 at [56]-[57]; cf Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47].
Notwithstanding the cogency of Mr Jones’ contentions, the first question of interpretation is to be answered in support of the view that the reference to “health practitioners” where first occurring in s 165B(2)(b) of the National Law must be a reference to health practitioners who practise a health profession and does not extend to include non-practising but registered health practitioners. The deliberate difference in drafting between s 165B(2), on the one hand, and ss 169B(1), 172B(1) and 174A(2), on the other hand, powerfully supports this conclusion and, although there are some policy arguments to the contrary, the arguments identified by Mr Sheller, rooted in provisions of the National Law identified at [75]-[76] above, reinforce the deliberate drafting difference between s 165B(2) and ss 169B(1), 172B(1) and 174A(2). The context supplied by those sections also favours reading the definition of “health practitioner” into s 165B(2)(b), consistent with Kelly and cl 13(2) of Sch 7 to the National Law.
That conclusion necessarily leads to the second question concerning the efficacy or otherwise of cl 8 of Sch 2 to the NCAT Act which has been set out at [58] above. That turns on the proper interpretation of s 165A of the National Law.
It will be recalled that s 165A of the National Law provides that “[t]he provisions of this Division are intended to apply despite anything to the contrary in the [NCAT Act]”. The relevant Division being referred to is Division 10 of Part 8 which is headed “Constitution and proceedings of Tribunal”.
Section 165A is curiously worded. That curiosity arises from the expression “are intended to apply”. Similar language is employed in s 7(1) of the National Law. In Reimers at [41], Leeming JA said of such expressions:
“ … It is unclear whether the drafter has had full regard to the limitations of a statement of legislative intent. Stating an intention that the effect of the statute is something falls far short of enacting substantive provisions which achieve the intended effect. In John Holland Pty Ltd v Victorian WorkCover Authority (2009) 239 CLR 518; [2009] HCA 45 at [20] [the High Court] said, of an ‘express statement of legislative intent’, that:
‘[…] such a statement is only a statement of intention which informs the construction of the Act as a whole. It must be an intention which the substantive provisions of the Act are capable of supporting.’”
Mr Sheller submitted that some significance lay in the fact that s 165A of the National Law did not apply to other Divisions within Part 8 but, as Mr Jones pointed out correctly, s 165A only applied to Division 10 because that was the only Division which was explicitly concerned with the Tribunal and so the reference to the NCAT Act was appropriately confined to that section.
To the extent that s 165A of the National Law is dealing with potential inconsistency between the National Law and the NCAT Act, it itself contemplates that legislation acting harmoniously and operating together. This is because, to the extent that s 165A is engaged, it is only to the extent that something in the NCAT Act is “to the contrary” of Division 10 of Part 8 of the National Law. Otherwise, the principle that an Act of Parliament should be construed in a way that best achieves a harmonious result has also been held to inform “the construction of two statutes which may share a field of operation”: Commissioner of Police (NSW) v Cottle (2022) 276 CLR 62; [2022] HCA 7 at [23], citing Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1; [2013] HCA 2 at [78].
Section 165A of the National Law does not purport to treat Division 10 as covering the field to the exclusion of the NCAT Act. Its operation is more limited than that. It is concerned with direct inconsistency or repugnancy. Health Care Complaints Commission v Dowla (Jurisdiction Application) [2018] NSWCATOD 96 is an example of direct inconsistency.
Division 10 of Part 8 of the National Law includes s 165C which relevantly provides:
“165C Effect of vacancy on Tribunal [NSW]
(1) If one of the members (other than the presiding member) constituting the Tribunal for the purpose of conducting 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.
(4) In this section—
presiding member means the member referred to in section 165B(2)(a).”
Mr Jones eschewed any reliance on this section and it was not suggested that Dr Selby “vacated” his office as a member of the Tribunal. Indeed, to the contrary; he continued to participate in the decision-making process and was party to the stage 1 decision. But this notwithstanding, s 165C of the National Law has some significance to the question under consideration.
First, it illustrates that, in the circumstances to which s 165C of the National Law applied, the work of the Tribunal could continue and be effective with only one rather than two health practitioners participating. That provided an answer to one of Mr Sheller’s points, namely that s 165B(2) required that, at all times, the Tribunal include two health practitioners. Section 165C directly contradicts that submission.
Second, Mr Sheller also accepted that s 165C of the National Law does not cover the case exemplified by Dr Selby’s change of registration status. That being so, it is not possible to conclude that cl 8 of Sch 2 to the NCAT Act is to the contrary of anything in Division 10 of Part 8 of the National Law. The two can “stand or live together”: Shergold v Tanner (2002) 209 CLR 126; [2002] HCA 19 at [35], citing Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 280; [1961] HCA 32.
Clause 8 of Sch 2 to the NCAT Act covers a contingency not dealt with in Division 10 of Part 8 of the National Law but is consistent with or complementary to the purpose of s 165C of the National Law in dealing with contingencies which may arise in the course of a particular Tribunal’s life cycle: namely, it avoids having to abort a hearing or inquiry at cost to the Commission and the health practitioner the subject of any inquiry or appeal: see Tsolis v Health Care Complaints Commission [2024] NSWCA 284 at [34].
If there is any clash or repugnancy between s 165C of the National Law and a provision of the NCAT Act, it is not with cl 8 of Sch 2 to that Act but, rather, with cll 6 and 7 of Sch 2 which are expressly concerned with vacation of office. The circumstances of the present case and those comprehended by cl 8 of Sch 2 are not treated as within the concept of vacating office.
Further, requiring the aborting of a hearing and the need to recommence from scratch would not be consistent with the main guiding principle and paramount consideration stated in ss 3A and 3B of the National Law, namely the “protection of the health and safety of the public”. It should also be presumed that, by its enactment of s 165A of the National Law, Parliament did not intend to enact legislation which would have highly inconvenient consequences: see Interpretation at [9.30] and the cases there cited. To the extent, as submitted by Mr Jones, that cl 8 of Sch 2 to the NCAT Act is a legislative expression of the “de facto officer” doctrine, its rationale, in modern times, is the protection which it affords the public, especially against the great inconvenience that would otherwise be caused in public administration: see GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 at 527.
For these reasons, although Dr Selby’s change of status meant that he was no longer a health practitioner for the purposes of s 165B(2) of the National Law, he was an “affected member” within the meaning of cl 8(2) of Sch 2 to the NCAT Act and, as such, was authorised to complete or otherwise continue to deal with any matters in the proceedings.
It follows that the appeal should be allowed and the following additional orders made:
Order 1 of the Civil and Administrative Tribunal made on 29 October 2025 be set aside.
The application dated 14 March 2025 made by Dr David Kirby in the Tribunal be dismissed.
Dr Kirby pay the Commission’s costs in this Court.
WARD P: I agree with Bell CJ.
LEEMING JA: I have had the considerable advantage of reading the reasons of the Chief Justice in draft. I agree with the orders he proposes. I also agree with what his Honour has said about the threshold questions concerning this Court’s jurisdiction, to the effect that the appeal is competent and the summonses for judicial review filed out of an abundance of caution are unnecessary. However, on the substance of the appeal, I would reach the same result as the Chief Justice but by a slightly different route.
The threshold question is whether, when Dr Selby changed his registration status to non-practising, notwithstanding that he remained a “registered health practitioner”, did the fact that he ceased to be a “health practitioner” as that term is defined in s 5 of the National Law as “an individual who practises a health profession” stand in the way of the proper composition of the Tribunal pursuant to s 165B(2)(b)? The difficulty comes about because the definition in s 5 of the National Law confines, somewhat counter-intuitively, “health practitioners” to practising health practitioners.
The Chief Justice has reproduced s 165B, and the submissions exchanged by the parties (which were of a high calibre) on the various uses of “health practitioner”, “registered health practitioner” and other variants of those terms throughout the so-called “National Law” (which in reality is the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) applied as a law of New South Wales by s 4(1)(a) of the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) but with hundreds of modifications contained in the Schedule to the latter statute). Section 165B (and the other provisions dealing with reviews and appeals) are modifications, and it is tempting to think that at least part of the difficulty is that the definition of “health practitioner” is found in the Queensland Schedule but nonetheless is prima facie applicable to the New South Wales modifications. I agree that there is, to say the least, considerable force in the submissions on this issue made on behalf of Dr Kirby, especially the textual variation between s 165B(2) and s 169B(1).
However, I would prefer to approach this issue differently, basing my reasoning not on the meaning of “health practitioner” but instead on the command in s 165B(2), “is to be constituted by”.
It was common ground that the Tribunal was properly constituted when it commenced to conduct an inquiry. The issue then is whether, in addition to s 165B(2) containing requirements as to the composition of Tribunal at the outset, does it also have ongoing effect while the inquiry is being conducted (which may be - as the present litigation illustrates - a lengthy period of time). That is to say, is the requirement in s 165B(2) satisfied once and for all when the Tribunal is first constituted, or does it have ambulatory effect?
Little assistance is given in answering that question from the text of s 165B(2). The words “is to be constituted” are capable without undue strain of referring either to the point of time when the Tribunal is first constituted, or to the constitution of the Tribunal throughout the duration of the inquiry. Any reader of chapter 4 of R Quirk et al, A Comprehensive Grammar of English Usage (Longman, 1985) “The semantics of the verb phrase” will rapidly realise just how complex the word “is” is (some of the examples include “Margaret is tall”, “Tomorrow is Tuesday” and “Brahms is the last great representative of German classicism”). Ordinarily the grammatical ambiguity flowing from the multiple ways in which the present tense may be deployed is readily resolved by recourse to semantics, and in the examples given in that work, the sentences mentioning Brahms and Tuesday refer to the past and the future, while that mentioning Margaret refers to the present as an ongoing state. The ongoing or continuous present is in further contradistinction with the instantaneous present, such as “I enclose (herewith) a form of application” or “I resign” (examples also given in that work), which refer to specific acts with limited duration.
These complexities have long been known to lawyers as well as grammarians. This point was well made by Griffiths AJA in Christian Community Ministries Ltd v Minister for Education and Early Learning [2024] NSWCA 1 at [58] by reference to what had been said by Young J in Gaffey v Chief Commissioner of State Revenue [2000] NSWSC 403 at [12]:
The word “is” in its most common use indicates an immediately present situation: Public Trustee v McKay [1969] NZLR 995, 1001. However, as McCarthy J pointed out in that case at 1002, the use of the present tense does not necessarily focus on a point in time because it is quite customary to use the present tense as though the past, and indeed the future, were present such as “the steamer leaves every Tuesday in winter”. The word “is” is also often used in a continuous sense, such as “where the court is satisfied” of something, referred to as the “continuous present” by Gee J in Penza v Penza [1998] FLC 91-949 at 76,858. Occasionally the word can have a past significance such as in Hargreaves v Hopper (1875) 1 CPD 195, where the Act gave the vote to a person who “is on the last day of July in any year” a person who possesses the prescribed qualifications. The word can mean “shall be” or “will be”: Botts v Simpson 167 P (2d) 231, 233 (1946) (Cal); Jersey City v Flynn 70 A 497, 510 (1908) (NJ Chancery). Sometimes the word has no temporal significance at all: Pye v Minister for Lands NSW [1954] 1 WLR 1410, 1425. See generally Darkingung Local Aboriginal Land Council v Minister for Natural Resources (1985) 58 LGRA 298.
As Young J observed, in all cases it is a matter of looking at the word in context. Sometimes the sense will make it clear that the words must connote a single point in time. For example, various rules of court require that “notice is to be given”, including UCPR r 35.2(2) concerning a notice to attend for cross-examination, which “is to be given a reasonable time” in advance. Because the notice is the consequence of the party’s election to cross-examine, the sense of the rule is that the requirement of notice must only be satisfied once. Alternatively, sometimes it will be clear that the condition must be satisfied throughout the period. Gummow J pointed out one example where a power was conditioned upon satisfaction that a prisoner who was to be detained “is a serious danger to the community” in Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46 at [112].
That leads to a consideration of the words “is to be constituted by”. “Constituted” can refer to what occurs on a single occasion. Sections 41R and 138 of the National Law refer to “the Health Administration Corporation constituted under the Health Administration Act 1982” and “the Health Care Complaints Commission constituted under the Health Care Complaints Act 1993”. Section 165B uses the same language.
However, it must be acknowledged that s 165B is a little different because it does not refer to the initial creation of a body corporate, but instead the membership of a group of natural persons who shall “constitute” the Tribunal for the purposes of a particular complaint or other issue. Even so, it is at least to my mind a natural use of language to refer to the tribunal being constituted at the outset, when the particular natural persons are selected. And indeed s 165B(1) appears to proceed on that basis. The heading “Constitution of Tribunal for complaints, applications and appeals” describes the process whereby, on referral of a complaint, “the Council for the health profession must select 3 persons (whether or not they are currently Division members) to sit as members of the Tribunal in the proceedings”. The statute proceeds on the basis that the selection process will take place on a single occasion.
It is also clear that there is a close link between s 165B(1), (2) and (3). The selection to be made by the Council under subs (1) is to comply with the requirements (as to registration in the same health profession) in subs (2) and (3). The persons identified in s 165B(2) read in context with subs (1) include those to be chosen by the Council.
Moreover, there is no especially good reason for s 165B, whose focus is selecting the persons who will comprise the Tribunal for a particular purpose, also to have an ambulatory effect so as to invalidate determinations if the status of those persons subsequently changes. Another way of putting this is that s 165B speaks unambiguously to the time immediately after the referral of a complaint, and only obliquely, if at all, to the qualifications to be held by members of the Tribunal throughout the time during which the complaint is heard and determined.
Another provision which bears on this issue is cl 13 of Schedule 5 of the Civil and Administrative Tribunal Act 2013 (NSW), which provides:
The Tribunal, when exercising a Division function in proceedings that are entered in the Health Practitioner List, is to be constituted (and, where necessary, reconstituted) in accordance with any applicable requirements specified by or under the National Law for the constitution of the Tribunal in proceedings of the kind concerned.
On the one hand, the present continuous force of “when exercising a Division function” tends to suggest that the words “is to be constituted” apply ambulatorily, throughout the same period of time. On the other hand, the words “and, where necessary, reconstituted” tend to suggest that the “constitution” or “reconstitution” of the Tribunal are acts that take place at a single point in time. On the whole, I incline to the view that cl 13 favours giving the words in s 165B a continuous sense.
I am conscious that this was not the subject of the parties’ submissions. I think it is inappropriate to decide this issue in the absence of such submissions. And I am disinclined to determine the meaning of “health practitioners” in s 165B(2) without determining the meaning of “is to be constituted by”; after all, the phrase as a whole is, relevantly, “is to be constituted by 2 health practitioners”. If it mattered to the outcome, I would favour giving the parties an opportunity to be heard on this point. But there is no need to take that course because the view tentatively expressed above makes no difference to the outcome. I would prefer to express no view as to the “first question” identified by the Chief Justice in light of the considerations I have mentioned above. However, if it be assumed (favourably to Dr Kirby) that (a) what I have sketched above concerning the non-ambulatory force of “is to be constituted by” is wrong, and (b) there was a contravention of s 165B when Dr Selby’s status changed to non-practising, then I would respectfully agree with the reasons and conclusion of the Chief Justice on the “second question”.
For those reasons, I agree with the orders proposed by the Chief Justice.
**********
[2005] HCA 34
[2002] HCA 11
(2016) 93 NSWLR 46
(2005) 63 NSWLR 557
(2007) 20 VR 1
(1961) 106 CLR 268
(1944) 68 CLR 571
(2022) 276 CLR 216
(1993) 31 NSWLR 555
(1957) 99 CLR 155
(1979) 41 FLR 338
(1955) 92 CLR 390
(2013) 252 CLR 1
(2022) 276 CLR 62
(2004) 223 CLR 575
(2005) 227 CLR 166
(2020) 102 NSWLR 123
(1966) 118 CLR 628
(1986) 7 NSWLR 503
(2004) 218 CLR 216
(2020) 103 NSWLR 738
(2002) 209 CLR 597
(2021) 273 CLR 21
(2018) 97 NSWLR 1132
(2006) 225 CLR 274
(2018) 264 CLR 217
(2003) 211 CLR 476
(2012) 247 CLR 240
(1975) 132 CLR 611
(2002) 209 CLR 126
(2013) 252 CLR 480
(1989) 17 NSWLR 734
(2004) 139 FCR 344
(1995) 184 CLR 163
(2010) 239 CLR 531
(2009) 239 CLR 518
Appeal allowed. Order 1 made by the Tribunal on 29 October 2025 was set aside; Dr Kirby’s 14 March 2025 Tribunal application was dismissed; Dr Kirby was ordered to pay the Commission’s costs in the Court of Appeal. Each judicial review summons was dismissed with no order as to costs: [93].