Holt v Dental Board of Australia [2023] NTSC 28

Avopiling (NSW) Pty Ltd v Menard Bachy Pty Ltd [2012] NSWSC 1466; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Booth v An Assessor [2019] NTSC 89; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Byrne v Legal Services Commissioner [2009] VSC 210; Cmunt v New South Wales Commissioner of Police [2019] NSWCCA 177; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576; Commissioner of Taxation v Crown Insurance Services [2012] FCAFC 153; Eckersley v Medical Board of Queensland [1998] 2 Qd R 453; Hansen v Patrick [2018] QCA 298; John Holland Pty Ltd v TAC Pacific Pty Ltd [2009] QSC 205; [2010] 1 Qd R 302; Lavorato v R [2012] NSWCCA 61; (2012) 82 NSWLR 568; Meadows v Minister for Immigration & Multicultural Affairs [1998] FCA 1706; (1998) 90 FCR 370; Medical Board of Australia v Athinodorou [2018] SAHPT 7; Musico v Davenport [2003] NSWSC 977; Perkins v County Court of Victoria [2000] VSCA 171; (2000) 2 VR 246; Public Service Board (NSW) v Osmond (1986) 159 CLR 656; Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72; S v Crimes Compensation Tribunal [1998] 1 VR 83; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; The Queen v General Medical Council; Ex parte Gee [1986] 1 WLR 226; The Queen v Judge Mullaly; Ex parte Attorney-General (Cth) [1984] VicRp 66; [1984] VR 745; The Queen v Tennant; Ex parte Woods [1962] Qd R 241; TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 17; Tracy Sports Village and Social Club v Walker [1992] NTSC 91; (1992) 111 FLR 32; WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480; Zurich Bay Holdings Pty Ltd v Brookfield Multiplex Engineering and Infrastructure Pty Ltd [2014] WASC 40, referred to.

Health Practitioner Regulation National Law Act 2009 (Qld)

Health Practitioner Regulation National Law (NT) ss 5, 193

Health Practitioner Regulation (National Uniform Legislation) Act 2010 (NT) ss 4, 6

Northern Territory Civil and Administrative Tribunal Act 2014 (NT) ss 10, 52, 23, 105, 141

Supreme Court Rules 1987 (NT) r 83.23

Holt v Dental Board of Australia [2023] NTSC 28

[1] This is an application for leave to appeal, and an appeal (if leave be granted), against a finding by the Northern Territory Civil and Administrative Tribunal that a dentist had engaged in professional misconduct. The issues in the appeal are whether the Tribunal erred in law by: (a) making a finding that the dentist had fabricated documents in support of his case in a civil action in the Local Court when there was no evidence on which that finding could be made; (b) failing to notify the dentist of that potential finding, thereby denying him procedural fairness; and (c) providing inadequate reasons in relation to that finding.

[2] The applicant ('Dr Holt') is a dental practitioner. The respondent ('the Board') is the national body which regulates dentists and dentistry pursuant to the Health Practitioner Regulation National Law (NT) ('National Law').[1] In order to practice dentistry, Dr Holt is required by the National Law to be registered with the Board. Dr Holt has, at all relevant times, been registered with the Board.

[3] On 8 April 2018, pursuant to s 193(1)(a)(i) of the National Law, the Board referred a matter to the Northern Territory Civil and Administrative Tribunal ('Tribunal') based on the Board's belief that Dr Holt had behaved in a way that constitutes professional misconduct.[2]

[4] The allegations of professional misconduct made by the Board before the Tribunal were set out in a substituted notice of allegations dated 7 July 2021 (referred to in detail below).[3] In essence, the allegations were that, between 1 and 4 April 2014, Dr Holt gave oral evidence before the Local Court that was false or misleading, and caused documents to be disclosed or tendered as evidence on his behalf in the Local Court that were false or misleading, and, on 3 February 2010, made a false or misleading declaration when he applied for registration as dentist.

[5] On 4 April 2022, after six days of hearing at which Dr Holt and three other witnesses gave oral evidence and both parties tendered documents and made written and oral submissions, the Tribunal delivered its decision and written reasons ('Tribunal's Reasons').[4] The Tribunal found that Dr Holt engaged in certain behaviour which was substantially below the standard reasonably expected of a registered health practitioner, and so constituted professional misconduct as defined by s 5(a) of the National Law.[5]

[6] On 12 August 2022, the Board suspended Dr Holt's registration.

[7] By s 141 of the Northern Territory Civil and Administrative Tribunal Act 2014 (NT) ('NTCAT Act'), a party to a proceeding before the Tribunal may, with the leave of the Supreme Court, appeal to the Supreme Court against a decision of the Tribunal 'on a question of law'. On hearing an appeal, the Supreme Court must confirm the decision of the Tribunal, vary the decision of the Tribunal, set aside the decision of the Tribunal and substitute its own decision or send the matter back to the Tribunal for reconsideration, or dismiss the appeal (s 141(3)).

[8] On 20 April 2022, Dr Holt filed an application for leave to appeal to the Supreme Court. The Supreme Court Rules 1987 (NT) ('Supreme Court Rules') then provided that an application for leave to appeal was to be filed within seven days of the date of the Tribunal's decision (SCR 83.23). The application was filed outside of the time prescribed by the Supreme Court Rules. The lateness was explained in an affidavit filed by Dr Holt's solicitor and no issue was taken by the Board with the lateness. Consequently, I ordered that compliance with SCR 83.23 be dispensed with.

[9] In the interests of efficiency, and with the consent of the parties, I ordered that the application for leave to appeal and the appeal itself be heard and dealt with at the same time.

[10] The proposed grounds of appeal were set out in the amended notice of appeal filed on 15 November 2022. Dr Holt sought orders that the findings of the Tribunal be quashed or otherwise set aside, that the orders made by the Tribunal about submissions on sanctions and costs be set aside, that the Board's application to the Tribunal be dismissed, that any further hearing of the allegations be permanently stayed, and that the Board pay Dr Holt's costs of the proceedings.

[11] The unchallenged factual findings of the Tribunal include the following.

[12] The Local Court proceedings involved an employment contract dispute between Dr Holt and another dentist who operated a dental practice in Palmerston.[6] Dr Holt sued in the Local Court for unpaid payments under the contract. By his defence, the other dentist asserted he was entitled not to pay Dr Holt because Dr Holt had breached an implied term of the contract requiring him to work on Saturdays from time to time, and he had falsely told the other dentist he could not work on Saturdays because, between January and May 2011, he attended a psychologist in Queensland, when in fact Dr Holt had been working as a dentist in Singapore during the employment contract period and, particularly, before the employment contract was terminated on 5 May 2011. Dr Holt's case was that he did not work as a dentist in Singapore until after the contract was terminated.

[13] Dr Holt gave oral evidence in the Local Court that: (a) he was seeing a psychologist in Queensland in early 2011, but he did not have any financial records for that treatment because it was paid for by Medicare; (b) it was only after he was terminated from the Palmerston practice (on 5 May 2011) that he made inquiries about work with the Singapore dental practice; (c) he was not registered to practice as a dentist in Singapore until June 2011; and (d) he did not work at all between 5 May and 13 June 2011.[7]

[14] Documents were tendered by Dr Holt's legal representatives in support of his case,[8] particularly: (i) a contract with a Singapore dental practice dated 13 June 2011 indicating Dr Holt did not commence work until that date ('June contract');[9] (ii) a Singaporean employment pass application dated 6 May 2011 ('SPASS application');[10] and (iii) a letter from the Singapore Dental Council ('SDC') dated 9 June 2011, referring to Dr Holt's application for registration to practice as a dentist in Singapore made on 18 May 2011 and informing him his application was approved ('SDC letter').[11]

(a) Dr Holt knowingly gave false evidence to the Local Court in April 2014 when he stated that:

(i) he was seeing a psychologist in Queensland between January and May 2011, paid for by Medicare;

(ii) he was not registered as a dentist in Singapore until after 9 May 2011; and

(iii) he did not work in Singapore or travel to Singapore for the purpose of working before 13 June 2011;

(b) Dr Holt knowingly caused to be tendered in the Local Court the following false evidence:

(i) the SDC letter; and

(ii) the June contract; and

(c) Dr Holt knowingly discovered in the Local Court proceeding a purported reference from the principal of the Singapore dental practice, Dr Cooney, dated 29 July 2013 ('the Cooney reference') which he knew to be false.

[16] In reaching those findings, the following findings were made by the Tribunal:

(a) The SDC letter was not authentic and was drafted by Dr Holt.[13]

(b) The SPASS application was not authentic, but 'we are reluctant to conclude that [Dr Holt] drafted this document'.[14]

(c) The June contract was not authentic and was drafted by Dr Holt or altered to date it June 2011, with a dishonest intention.[15]

(d) The Cooney reference was not written by Dr Cooney and was drafted by Dr Holt knowing it to be false.[16]

[17] The amended notice of appeal set out three proposed grounds of appeal. In short, they were:

(a) The Tribunal erred in law by failing to accord Dr Holt procedural fairness in various ways, namely: (i) hearing and finding proved duplicitous charges or charges which were vague, ambiguous and unparticularised; (ii) admitting and accepting irrelevant evidence outside the parameters of the charges; (iii) failing to take into account relevant considerations; (iv) making findings on matters not put to Dr Holt during the hearing; (v) admitting hearsay evidence from available witnesses who were not called; and (vi) not applying the standard of proof in relation to charges, effectively, of perjury or attempting to pervert the course of justice.

(b) The Tribunal erred in law by making its findings contrary to the evidence or in the absence of evidence capable of supporting the findings.

(c) The Tribunal erred in law by failing to give any or adequate reasons for its decision.

[18] In oral submissions, the applicant revised its proposed grounds of appeal to the following:

(a) There was no evidence upon which the findings set out in paragraph [16] above (said to be that Dr Holt had 'fabricated' the four documents) that could be made, or alternatively, there was no proper basis upon which such inferences could be drawn.

(b) The allegation that Dr Holt had fabricated the four documents was never put to Dr Holt so he was denied the opportunity to respond to that allegation and thereby denied procedural fairness in the form of a fair hearing.

(c) The Tribunal's reasons were inadequate as regards the findings about the four documents.

[19] The submissions the subject of the first ground of appeal in the amended notice of appeal (see paragraph [17](a) above) were pressed only in support of the relief sought if the appeal were to be allowed and in response to the Board's submission that the Tribunal's finding of professional misconduct is supported on other bases.

[20] The function of this Court on an appeal under s 141 of the NTCAT Act is to determine whether the Tribunal's decision was infected by an error of law, and does not involve any consideration or determination of the merits of the Board's application to the Tribunal.[17] Leave to appeal should only be granted if it is in the interests of justice to do so in all the circumstances of the case.[18] For leave to appeal to be granted, the applicant must identify a question of law (as distinct from a question of fact) which bears directly upon the relief sought in the appeal, and a real or significant argument to be put that there was error below in relation to the identified question of law.[19]

[21] Identification of a question of law is critical to the success of an application for leave to appeal because it is the question of law which enlivens the Court's jurisdiction on appeal[20] and is the subject matter of the appeal.[21] It follows that the question of law should be stated with precision.[22] In the context of a case stated, it has been held that a question that asks: 'Did I err in deciding that...?' does not identify a question of law and will usually involve the Court in deciding a question of mixed fact and law.[23]

[22] The Board argued that the proposed amended notice of appeal and the reformulated proposed grounds of appeal did not identify, with precision, the questions of law the subject of the appeal.

[23] In King v Commissioner for Consumer Protection [2018] WASCA 194, the appellant raised four grounds of appeal contending that the Tribunal erred in fact and law in drawing an inference about the appellant's knowledge from various unchallenged facts. The Western Australian Court of Appeal held (at [136]) that the question at the heart of the appeal was whether the Tribunal's findings of fact were capable of supporting the inference drawn, which is a question of law.[24] The Court held (at [167]) that there was no error in the drawing of the inference by the Tribunal and consequently refused leave to appeal.

[24] Taking a similar approach, the questions at the heart of Dr Holt's proposed appeal, reframed as set out in paragraph [18] above, were:

(a) Was there no evidence before the Tribunal for the findings, or no proper bases for the inferences, set out in paragraph [16] above, that, essentially, Dr Holt had fabricated the four documents there referred to ('Question 1')?

(b) Was the allegation that Dr Holt had fabricated the four documents never put to Dr Holt so he was denied the opportunity to respond to that allegation and thereby denied a fair hearing ('Question 2')?

(c) Were the Tribunal's reasons inadequate as regards the findings set out in paragraph [16] above ('Question 3')?

Further unchallenged findings of fact made by the Tribunal

[25] In addition to the facts set out in paragraphs [11] to [14] above, there is no challenge, in this appeal, to the following findings[25]ade by the Tribunal.25

[26] On 18 January 2011, the SDC received an application from Dr Holt for registration as a dentist in Singapore. In January to March 2011, Dr Holt made various trips to Singapore. On 25 February 2011, not 9 June 2011 as shown in the SDC letter, Dr Holt was conditionally registered with the SDC.

[27] There were no Medicare claims by Dr Holt between 1 January and 5 May 2011 (suggesting he did not receive treatment in Queensland at this time).

[28] On 12 March 2011, Dr Cooney and Dr Holt entered into the agreement for him to work at the Singapore dental practice from that date. The last date of Singapore entry stamps in Dr Holt's passport is 14 March 2011 (suggesting he held an SPASS around this time). On 17 March 2011, Dr Holt travelled to Singapore and ticked the Customs card as 'Australian resident departing permanently' for future residence in Singapore. On 21 March 2011, records of the Singapore dental practice showed Dr Holt requesting dental hardware for a patient. On 22 March 2011, Dr Holt wrote to the dental practice in Palmerston seeking time off to see a therapist in Brisbane. On 29 March 2011, Dr Holt returned to Darwin. On 31 March 2011, records of the Singapore dental practice showed Dr Holt's earnings for the month. On 2 April 2011, records at the Singapore dental practice were in Dr Holt's handwriting. On 13 April 2011, the SDC granted Dr Holt unconditional registration. Dr Holt travelled from Darwin to Singapore and back twice more in April 2011. On 30 April 2011, records of the Singapore dental practice showed Dr Holt's earnings for the month. On 5 May 2011, the Palmerston dental practice terminated Dr Holt's contract. On 31 May 2011, records of the Singapore dental practice showed Dr Holt's earnings for the month.

[29] On the basis of those facts, the Tribunal found that Dr Holt submitted his dental registration in Singapore in January 2011, contracted with the Singapore dental practice in March 2011 and started working not long thereafter, and he was working in Singapore for three or so days a week at the same time he held a contract to work with the Palmerston dental practice.[26]

[30] The Tribunal found that Dr Holt's evidence to the Local Court that he was not registered to work in Singapore until May 2011, and that he did not work there until June 2011, was not correct.[27]

[31] The Tribunal found that Dr Holt held down two jobs in two different countries, but told the Local Court (in 2014) that did not happen as he did not work in Singapore until June 2011, and told the Tribunal the same thing in 2021 but added that if he was wrong about that, it was an honest mistake.[28]

[32] The Tribunal found that, when Dr Holt gave evidence in 2014, he must have remembered he held jobs in Singapore and Darwin at the same time.[29] That finding was made on the basis that an individual would be most unlikely to forget the time when they had two jobs, in two countries, at the same time, where finishing work in Darwin and flying four hours to Singapore to work three days would be exhilarating, if not exhausting.[30] On the basis of these matters, the Tribunal found that Dr Holt's evidence to the Local Court was knowingly false.[31]

[33] The Tribunal found that what Dr Holt told the Palmerston dental practice in March 2011 about seeing a therapist in Brisbane on Saturdays was a lie because he was actually seeking time off every week to perform his new work in Singapore.[32]

[34] The Tribunal referred to Dr Holt's argument that the four documents referred to in paragraph [16] above legitimately caused him to believe that he did not start work in Singapore until[33]une 2011,33 and to the Board's allegations that the four documents were false or [34]sleading.34

[35] The Tribunal found that the four documents did not fit with the chronology as found by the Tribunal as set out in paragraphs [26] to [[35]](2023_28.html#_Ref1284 (a) In the Local Court proceedings, Dr Holt's case was that he did not work as a dentist in Singapore until after his employment contract was terminated on 5 May 2011.

(b) Dr Holt gave oral evidence in the Local Court that it was only after his employment contract was terminated that he sought work as a dentist in Singapore, he was not registered to practice as a dentist in Singapore until June 2011, and he did not work at all between 5 May and 13 June 2011.

(c) The SDC letter was addressed to Dr Holt, and was tendered in the Local Court by Dr Holt's legal representatives on his behalf in support of his case.

(d) Dr Holt was registered with the SDC on 25 February 2011, not 9 June 2011, as shown in the SDC letter.

(e) Dr Holt was working in Singapore as a dentist from around 12 March 2011, when he entered into the March contract, and he worked in Singapore for three or so days a week at the same time as he held a contract to work with the Palmerston dental practice.

(f) Working two jobs, in two different countries, flying back and forth weekly to do so, for a number of weeks, is not something an individual would forget. Dr Holt was not mistaken when he gave his oral evidence to the Local Court.

(g) Dr Holt's oral evidence to the Local Court about this was knowingly false.

(h) Dr Holt lied to the Palmerston dental practice about needing Saturdays off to see a psychologist in Queensland. He sought the time off to perform his new work in Singapore.

(i) Dr Holt lied in the Local Court about seeing a psychologist in Brisbane which was paid for by Medicare at this time. Medicare records did not show any claims in relation to such treatment.

(j) Dr Holt argued in the Tribunal that the SDC letter (and the three other documents) led him to believe he did not work in Singapore until June 2011.

(k) The SDC letter was factually incorrect, was not generated by the SDC, and was not authentic, but it was consistent with Dr Holt's evidence in the Local Court.

[45] These are facts upon which the inferences that Dr Holt drafted the SDC letter, and tendered it knowing it to be false, might be drawn, on the balance of probabilities applying the Briginshaw standard.[46] Essentially, the SDC letter was not factually correct (ie, it contained factual assertions that were objectively untrue) or authentic (ie, it was not what it purported to be), it contained factual assertions consistent with Dr Holt's oral evidence in the Local Court, which evidence was not factually correct and Dr Holt must have known his evidence to be so because an individual would not forget a time when they were working two jobs in two different countries, and it was tendered by Dr Holt. The inferences that he drafted it, and tendered it knowing it to be false, were open.

[46] The answer to Question 1 is 'no' in relation to the SDC letter.

[47] The SPASS application was a print out of 6 pages from a website of the Singapore Government.[47] It was headed 'Employment Pass / S Pass Application', was in the form of questions or requests for information and answers, contained sections relating to the employing company's information and the applicant's information and, at the end, contained the words 'submitted on 06/05/2011 by' 'user: Suzanne Brodrick' (an employee of the Singapore dental practice) and 'Company name: Dr Marcus Cooney & Associates PTE LTD'.

[48] The evidence of Dr Holt in the Tribunal was that he had no recollection of applying for permission to work in Singapore before 6 May 2011.[48] He said in giving evidence in the Local Court, he believed he applied for permission on 6 May 2011 on the basis of the SPASS application.

[49] There was no evidence before the Tribunal from the Singapore Government about whether the SPASS application formed part of their records.

[50] No oral evidence was called from Suzanne Brodrick in the Tribunal. Ms Brodrick had provided a statement to the Tribunal[49] and was apparently to be a witness called by the Board, but she declined to participate shortly before the hearing.[50] Only part of her statement was received in evidence.[51] The body of Ms Brodrick's statement does not deal with the SPASS application. Dr Holt had written to the Singapore dental practice to complain about Ms Brodrick's involvement in the Tribunal proceedings. Dr Holt was asked to read his letter during his oral evidence in the Tribunal. He did not read it accurately and the Tribunal found this was an attempt to understate the effort he made to prevent Ms Brodrick from giving evidence.[52] The Tribunal relied on Dr Holt's misreading of the letter as 'a further ground to have little confidence in his credibility as a witness'.[53]

[51] On the basis of its findings about the factual chronology, the Tribunal found that Dr Holt obtained an SPASS in or about March 2011, meaning the SPASS application was incorrect.[54] The Tribunal found it was highly unlikely that Dr Holt would have applied for a second SPASS two or three months after getting the first.[55] On the basis of those findings, the Tribunal found that the SPASS application was not authentic.[56] However, despite that it was tendered by Dr Holt in the Local Court proceedings, the absence of evidence from the Singaporean border control made the Tribunal 'reluctant to conclude that [Dr Holt] drafted this document'.

[52] Although perhaps not expressed in the clearest terms, contrary to Dr Holt's submission, this is a refusal to find that Dr Holt fabricated the SPASS application. So much is confirmed by the Tribunal's findings that Dr Holt knowingly tendered or discovered false evidence,[57] which omit any reference to the SPASS application.

[53] Consequently, the Tribunal did not find that Dr Holt fabricated the SPASS application. It only found that the SPASS application was not authentic. Unlike the other three documents, the Tribunal did not make findings that Dr Holt knowingly tendered false evidence comprising the SPASS application, or that this constituted professional misconduct.

[54] Consequently, Question 1 in relation to the SPASS application is answered: 'The Tribunal did not find or infer that Dr Holt fabricated the SPASS application'. No error has been shown.

[55] The June contract provided that Dr Holt was to provide services to the Singapore dental practice from 13 June 2011 until the agreement was terminated, for a specified fee.[58] On its face, the June contract was executed by Dr Holt and Suzanne Brodrick on behalf of the Singapore dental practice, with both signatures apparently witnessed by Tracey Warren, a manager of the practice.

[56] Also before the Tribunal was a very similar agreement dated 12 March 2011, which was, on its face, executed by Dr Holt and Dr Cooney, with both signatures apparently witnessed by Tracey Warren ('March contract').[59] It provided that Dr Holt was to provide services from 12 March 2011. The March contract was otherwise almost identical to the June contract.

[57] The evidence of Dr Holt in the Tribunal was that the only copy of the agreement with the Singapore dental practice that he had during the proceedings was the June contract, and he had no recollection of signing the March contract and did not believe that he did because that was before termination of his contract with the Palmerston dental practice on 5 May 2011.[60] He said that, leaving aside when it was signed, the first time he saw the March contract was when the Board served it in the Tribunal proceedings. He could not explain why there were two agreements, and had no recollection of signing two agreements, but speculated that if he did sign the March contract, the June contract may have been signed after 5 May 2011, after one of the parties realised that the date on the March contract was wrong. He doubted that the agreement was signed on 12 March 2011. He also doubted that Tracey Warren would have been involved in preparing or witnessing the agreements.

[58] In a written statement adopted by Dr Cooney in the Tribunal, he said that, on Dr Holt's commencement with the Singapore dental practice in March 2011, he entered into an agreement with Dr Holt executed by Dr Holt, Tracey Warren and himself at the clinic in Singapore, with the original being provided to Suzanne Brodrick.[61] He said Dr Holt provided part time dental services in accordance with the agreement between March and December 2011. He said he had no recollection of entering into, or authorising to be entered into, the June contract. He said the only agreement with Dr Holt which he could recall entering into was the one he signed in early 2011.

[59] In cross-examination, Dr Cooney agreed that the signature on the June contract was Suzanne Brodrick's.[62] He said Suzanne Brodrick had recently told him she signed the June contract at Dr Holt's request. Dr Cooney said Ms Brodrick told him that Dr Holt's reason for asking was that he would otherwise have some complication with his former employer. Dr Cooney said that, when he asked Ms Brodrick why she did it, she told him she was trying to 'be agreeable'. He said it was not their usual practice to have secondary employment contracts, and it was he who executed them, not Ms Brodrick. Dr Cooney agreed that Ms Brodrick would have been acting within her authority to sign a further employment contract.

[60] Suzanne Brodrick's statement provided that she prepared the March contract and emailed it to Dr Holt before his commencement, she had located an original hard copy of the March contract in the records of the Singapore dental practice, and a soft (electronic) copy was held on the practice's server.[63] She had no recollection of signing the June contract, but believed the signature on it to be hers. She stated that, if a further contract had been entered into in June 2011, it would have been at Dr Holt's request. Also before the Tribunal was a more recent email from Suzanne Brodrick confirming that the signature on the June contract was hers, she did not recall the reason for creating the June contract, but was of the view that Dr Holt gave her a reason for creating it and, as she could see no prejudice to the dental practice in doing so, she believed a further agreement may have been entered into with Dr Holt at that time.[64]

[61] As regards the evidence that Suzanne Brodrick had drafted the June contract at Dr Holt's request, Dr Holt's evidence was that nothing like that ever happened.[65]

[62] On the bases of its findings that Dr Holt had been working for the Singapore dental practice for three months before June 2011 and that the June contract was inconsistent with that fact, a finding that the June contract did not come from the Singapore dental practice, and Dr Cooney's evidence that there was no reason to enter into two agreements with Dr Holt, the Tribunal found that the June contract was not authentic.[66] On the basis of these findings, and that Dr Holt tendered the June contract in the Local Court proceedings, the Tribunal found that Dr Holt drafted the June contract, or altered the March contract to give it a date that suggested he commenced employment in Singapore in June 2011, with a dishonest intention.[67]

[63] Essentially, the Tribunal has drawn the inferences that Dr Holt drafted the June contract or altered the March contract, with a dishonest intention, and tendered it in the Local Court knowing it to be false. The alternative inferences available to the Tribunal were that someone else drafted the June contract (ie, Suzanne Brodrick) and, when Dr Holt tendered it in the Local Court, he was unaware that it was false. The Tribunal preferred the former set of inferences over the latter. There were the following relevant factual findings made by the Tribunal:

(a) The factual findings set out in paragraphs [44](a) to (k) above.

(b) The June contract was tendered in the Local Court by Dr Holt's legal representatives on his behalf in support of his case.

(c) Dr Holt commenced working for the Singapore dental practice around 12 March 2011 as shown in the March contract, not 9 June 2011, as shown in the June contract.

(d) It was not the usual practice of the Singapore dental practice to enter into multiple employment contracts, and Dr Cooney was unaware of the June contract until long after 2011.

(e) Dr Holt argued in the Tribunal that the June contract (and the three other documents) led him to believe he did not work in Singapore until June 2011.

(f) The June contract was factually incorrect and was not authentic, but was consistent with Dr Holt's evidence in the Local Court.

[64] These are facts upon which the inferences that Dr Holt drafted the June contract or altered the March contract, with a dishonest intention, and tendered the June contract knowing it to be false, might be drawn, on the balance of probabilities applying the Briginshaw standard.[68] Essentially, the June contract was not factually correct (ie, it contained factual assertions that were objectively untrue) or authentic (ie, it was not what it purported to be), it contained factual assertions consistent with Dr Holt's oral evidence in the Local Court, which evidence was not factually correct and Dr Holt must have known that evidence to be so because an individual would not forget a time when they were working two jobs in two different countries, and it was tendered by Dr Holt. The inferences that he drafted the June contract or altered the March contract, with a dishonest intention, and tendered it knowing it to be false, were open.

[65] The existence of some evidence to support a different inference (that someone else, being Suzanne Brodrick, drafted the June contract at Dr Holt's request) does not deny the conclusion just reached. Dr Holt's evidence was that this did not happen. The primary facts referred to above are facts upon which the inferences might be drawn. The Tribunal did not find, as a primary fact, that Suzanne Brodrick drafted the June contract. Even if it did, that the inference is inconsistent with other primary facts found (or other evidence before the Tribunal) may constitute an error of fact, but it does not constitute an error of law where there are other factual findings on which the inference drawn was open.

[66] Question 1 is answered 'no' in relation to the June contract.

[67] The Cooney reference was a letter from Dr Cooney dated 29 July 2013 stating that the Singapore dental practice commenced the pre-registration and employment process for Dr Holt on 6 May 2011, Dr Holt began working in Singapore on 13 June 2011, and did so for two years.[69] The Cooney reference went on to state that Dr Holt was reliable and diligent, with exemplary clinical ability and patient care. The Cooney reference was signed by Dr Cooney and had two stamps on it, one with Dr Cooney's name and the other with the practice name.

[68] Dr Cooney's evidence to the Tribunal was that the Cooney reference had not been authored or authorised by him, the signature on it was not his, and it did not reflect his views of the conduct and performance of Dr Holt.[70] He also said Dr Holt worked for the practice from early 2011 to about August 2014 and, during that time, Dr Holt had access to the clinic and administration office both during and after hours.

[69] The evidence of Dr Holt to the Tribunal was that he had asked Suzanne Brodrick to arrange for Dr Cooney to provide him with a written reference for the purpose of refuting allegations made against him in the Local Court proceedings.[71] He could not recall if Ms Brodrick had given him a hard copy of the Cooney reference or had emailed it to him in PDF format. He denied having access to the Singapore dental practice clinic and administration office during and after hours in July 2013. He said he could not recall ever seeing the stamps and denied having access to, or knowing the location of, Dr Cooney's stamps at that time. He said that if the signature was not Dr Cooney's, he suspected the Cooney reference was signed by Suzanne Brodrick or one of the administrative staff on Dr Cooney's behalf.

[70] On the bases of its findings that Dr Holt had been working for the Singapore dental practice for three months before June 2011, and that the Cooney reference was inconsistent with that fact, but consistent with Dr Holt's 'false chronology', Dr Cooney's denial that he drafted it, and that Dr Holt had discovered it in the Local Court proceedings, the Tribunal found that Dr Holt drafted the Cooney reference and discovered it knowing it to be false.[72]

[71] Essentially, the Tribunal has drawn the inferences that Dr Holt drafted the Cooney reference, and discovered it in the Local Court knowing it to be false. The alternative inferences available to the Tribunal were that someone else drafted the Cooney reference and, when Dr Holt discovered it in the Local Court, he was unaware that it was false. The Tribunal preferred the former set of inferences over the latter. There were the following relevant (unchallenged) factual findings made by the Tribunal:

(a) The factual findings set out in paragraphs [44](a) to (k) above.

(b) The Cooney reference was discovered in the Local Court by Dr Holt's legal representatives on his behalf.

(c) Dr Holt commenced working for the Singapore dental practice around 12 March 2011, not 13 June 2011, as shown in the Cooney reference.

(d) Dr Cooney denied that he authored or authorised the Cooney reference and the signature purporting to be his was not.

(e) Dr Holt argued in the Tribunal that the Cooney reference (and the three other documents) led him to believe he did not work in Singapore until June 2011.

(f) The Cooney reference was factually incorrect but consistent with Dr Holt's evidence in the Local Court.

[72] These are facts upon which the inferences that Dr Holt drafted the Cooney reference, and discovered it knowing it to be false, might be drawn, on the balance of probabilities applying the Briginshaw standard.[73] Essentially, the Cooney reference was not factually correct (ie, it contained factual assertions that were objectively untrue) or authentic (ie, it was not what it purported to be), it contained factual assertions consistent with Dr Holt's oral evidence in the Local Court, which evidence was not factually correct, and Dr Holt must have known that evidence to be so because an individual would not forget a time when they were working two jobs in two different countries, and it was discovered by Dr Holt. The inferences that he drafted it, and discovered it knowing it to be false, were open.

[73] Question 1 is answered 'no' in relation to the Cooney reference.

Findings crucial to the Tribunal's ultimate conclusion?

[74] Dr Holt argued that the findings in paragraph [16] above were crucial to the Tribunal's ultimate finding of professional misconduct because the findings that Dr Holt knowingly tendered or discovered evidence he knew to be false depended on the findings that Dr Holt fabricated the documents.

[75] The Tribunal's findings that Dr Holt knowingly tendered or discovered false evidence is limited to the three documents which the Tribunal found Dr Holt had drafted (ie, excluding the SPASS application). The question is whether the Tribunal's findings that Dr Holt drafted those three documents were crucial to the Tribunal's conclusion that he engaged in professional misconduct by knowingly tendering or discovering false evidence.

[76] It is clear from the Tribunal's Reasons that its path of reasoning was to find, firstly, that Dr Holt's evidence in the Local Court was not factually correct, and Dr Holt must have known that evidence to be so because an individual would not forget a time when they were working two jobs in two different countries. Then follows the finding that Dr Holt's evidence in the Local Court was knowingly false. Then follows reference to Dr Holt's excuse for giving factually incorrect evidence, namely reliance on the four documents. Then follows consideration of the authenticity and authorship of the four documents. Then follows the findings about Dr Holt's drafting of three of them, which are inferences inevitably drawn from, amongst other findings, the finding that Dr Holt's evidence in the Local Court was knowingly false.

[77] The Tribunal made its findings that Dr Holt's evidence was knowingly false before, and without reference to, its findings that he fabricated the documents. The findings that he fabricated the documents were made in response to Dr Holt's case that his evidence was not knowingly false because he relied on the documents. It follows that the findings that Dr Holt fabricated three of the four documents were not crucial to the Tribunal's ultimate conclusion of professional misconduct comprising giving knowingly false oral evidence to the Local Court. While the findings that Dr Holt fabricated the documents would have supported that conclusion, that conclusion would necessarily have been reached even if the findings that Dr Holt fabricated three of the four documents were not made. There was no suggestion that knowingly giving false evidence in a Court proceeding would not fall within the definition of 'professional misconduct' in s 5 of the National Law.

[78] Consequently, even if the findings that Dr Holt fabricated three of the four documents were erroneous in the relevant sense, no error of law would be established.

Question 2: Was the allegation of fabrication of the documents never put to Dr Holt such that he was denied a fair hearing?

[79] A denial, by the Tribunal, of procedural fairness comprising jurisdictional error is an error of law.[74] The content of the requirements of procedural fairness in this case fall to be determined having regard to the NTCAT Act, particularly the objectives of the Tribunal (s 10), the Tribunal's power to determine its own procedures (s 52), the overarching principle that the Tribunal must act fairly and according to the substantial merits of the matter (s 53(1)), the Tribunal's power to inform itself in any way it considers appropriate, that the Tribunal is not bound by the rules of evidence, and that it must act with as little formality and technicality, and with as much speed, as the requirements of the statute and a proper consideration of the matter permit (s 53(2)).[75]

[80] Procedural fairness requires that the party liable to be directly affected by the decision be given the opportunity to be heard, which ordinarily requires they be given the opportunity to ascertain the relevant issues and to be informed of the nature and content of adverse material.[76]

[81] Because of their very serious nature, findings of lying, forgery or other fraud should not be made by an administrative decision maker if the allegation of such, or the potential for such a finding, has not previously been plainly put to the person concerned.[77] Obviously, if the person concerned is aware of the potential for such a finding, and has had the opportunity to address that potential finding (by calling or giving evidence to respond to it), there can be no denial of procedural fairness.[78] Further, procedural fairness does not normally require decision makers to disclose their proposed conclusions, but does require a decision maker to notify the parties of proposed conclusions that were not put forward by the parties and could not be easily anticipated.[79]

[82] Dr Holt initially submitted that procedural fairness required an express allegation be put to him that he had fabricated evidence contrary to particular provisions of the Criminal Code Act 1983 (NT). Ultimately, Dr Holt argued that where the allegation could comprise criminal conduct, that should be expressed. No authority was identified that supported either proposition.

[83] Dr Holt relied on the decision in Hansen v Patrick [2018] QCA 298 in which the Queensland Court of Appeal upheld an appeal against findings by a trial judge that the appellant had made a deliberate attempt to create a false impression and deceive the Court, which attempt was not only unreliable but deceptively false. The appeal was upheld because the defendants had not made any such allegation, whether in cross-examination or otherwise. It was held (at [26]) that the accuracy, correctness and reliability of the appellant's evidence was in issue in the trial, but the proposition that he had set out to fabricate a false case, to deceive the Court and to perjure himself were not in issue before the trial judge. The Court held this to be a denial of procedural fairness, holding (at [39]) as follows:

In this case, the documents in evidence and the testimony of witnesses whose independence and honesty were not challenged presented [the appellant] with apparently formidable obstacles to the acceptance of his evidence, or at least parts of it. However, the defence did not put forward that [the appellant] had concocted his whole story. If such an imputation had been made, it might have drawn a response that, for example, any errors found by the trial judge in [the appellant's] evidence were explicable by faulty memory rather than deliberate invention. Counsel might then have developed arguments in support of their competing contentions. There was no issue of that kind joined between the parties. No question was put to [the appellant] that expressed or implied that he was a perjurer and no circumstances said to support any such imputation were put to him. Consistently with the conduct of the defence, the defendants did not invite the learned trial judge to find that he was a perjurer. [The appellant] had no reason to think that he had to defend himself against the possibility that the judge might make such a finding. Yet, his Honour made such findings.

[84] This decision does not establish the proposition that, in the context of allegations of professional misconduct heard by an administrative decision maker, express allegations that the alleged conduct is, or may be, a criminal offence are necessary. This decision simply supports the proposition, founded on the authorities referred to in paragraph [81] above, that it is sufficient if the person affected has notice of the potential for a finding that they have lied, falsified or fabricated documents, or committed some other fraud.

[85] Dr Holt submitted that, up until the time the Tribunal delivered its decision and reasons, he was unaware of a potential for a finding by the Tribunal that he had altered or fabricated the four documents. The Board submitted that Dr Holt was plainly on notice of the potential for the findings set out in paragraph [16] above.

[86] The substituted notice of allegations[80] set out, relevantly, two sets of allegations. By allegation 1, it was alleged that Dr Holt engaged in professional misconduct or unprofessional conduct in that he gave oral evidence in the Local Court proceedings that was false or alternatively misleading. The oral evidence alleged to have been given by Dr Holt, which related to seeing a psychologist in Queensland which was paid for by Medicare, and to his registration and working in Singapore as a dentist, was set out. That oral evidence was alleged to be false or alternatively misleading by reference to seven facts or sets of facts. Two of those were the dates Dr Holt actually applied for and was granted conditional registration by the SDC. Another of those was that Dr Holt entered into the March contract. Another of those was that Dr Holt travelled to Singapore for the purposes of providing services to the Singapore dental practice in March, April, May and June 2011. It may be noted that the alleged facts are inconsistent with the facts asserted in (respectively) the SDC letter, the June contract and the Cooney reference, and the SPASS application.

[87] By allegation 2, it was alleged that Dr Holt engaged in professional misconduct or unprofessional conduct in that, in the course of the Local Court proceedings, he caused documents to be disclosed and tendered as evidence on his behalf that were false or alternatively misleading. The identified documents alleged to be tendered were: 'a document purporting to be' a copy of Dr Holt's SPASS application 'which recorded the date submitted as 6 May 2011' (ie, the SPASS application); 'a letter purportedly authored' on behalf of the SDC dated 9 June 2011 (ie, the SDC letter); and a copy of an agreement between Dr Holt and the Singapore dental practice dated 13 June 2011 (ie, the June contract). It was further alleged by allegation 2 that Dr Holt caused to be filed on his behalf a List of Documents which included as a disclosed document 'a letter purportedly written by Dr Marcus Cooney' dated 29 July 2013 (ie, the Cooney reference).

[88] The further allegations are considered below in relation to each document.

[89] The Board's written outline of its opening address to the Tribunal summarised the allegations by saying (relevantly) that Dr Holt had been 'dishonest ... with a Court in civil proceedings', specifically, in the Local Court, in that, while under oath, Dr Holt gave an account which was materially relevant to the proceedings which was untruthful, and at the same time, in support of that position, he advanced documents which he must have known made representations which were untrue.[81] After more specifically referring to the substituted notice of allegations, the outline stated that, in both respects, Dr Holt was dishonest.[82]

[90] The Board's note in response to Dr Holt's outline (see below) distinguished between its primary allegations that his oral evidence and the documents were false, and its alternative case, that Dr Holt's evidence and the documents were misleading.[83]

Dr Holt's awareness and understanding of the allegations

[91] Dr Holt's response to the substituted notice of allegations was that the four documents were: (a) to his knowledge, true and correct; (b) to his knowledge, what they purported to be; and (c) factually correct.[84]

[92] Dr Holt's written outline of his opening address to the Tribunal summarised the Board's position as alleging not only that Dr Holt's evidence was incorrect, but that it was dishonest, requiring the Board to establish that Dr Holt's evidence was false and he knew it was false when he gave it.[85] The outline also said that allegations 1 and 2 were 'in substance' allegations of the offences of perjury, fabricating evidence and attempting to pervert the course of justice.[86] Submissions were made about the standard of proof applicable to such serious allegations. This is a clear indication that Dr Holt was aware of the possibility of a finding by the Tribunal that he fabricated the four documents.

[93] Dr Holt's closing submissions put that the Tribunal may accept there are good reasons to doubt whether some parts of Dr Holt's evidence in the Local Court were correct, particularly his evidence that he did not start working in Singapore until 13 June 2011, but the 'real question' is whether the Board has established that his evidence definitely was false and he gave the evidence dishonestly.[87] Dr Holt's submissions said the submissions put that the Board had compiled a chronology by accessing records Dr Holt did not have in 2014 to show that his evidence in the Local Court was wrong, but it did not follow that he was dishonest. Dr Holt's submissions said that the submissions put that the Board argued Dr Holt could not have forgotten that he was working in Darwin and Singapore at the same time, but this assumes too much about a normal pattern of life for most people, whereas Dr Holt had travelled a lot and worked in many places. Dr Holt's submissions argued that the date Dr Holt started working in Singapore was not a significant issue in the Local Court proceedings, whereas the Board's case needed it to be in order to justify a conclusion that Dr Holt was motivated to lie about it. Dr Holt's submissions then put the following:[88]

It is obvious that [Dr Holt's] evidence to the Local Court about dates and the sequence of events was anchored to the dates on documents. That is a perfectly normal and honest way of explaining a recollection. This directs attention to the real issue in this case: has the Board comfortably established that when giving evidence in 2014, he knew that the documents he was relying on were not genuine?

[94] Dr Holt's closing submissions, particularly the paragraph set out above, show that Dr Holt was aware of the link between the issue of the authenticity of the four documents and the issue of the honesty of his evidence in the Local Court. They clearly show he was aware of the potential for the Tribunal to find that Dr Holt fabricated the documents, as either a step along the way to a finding that his evidence in the Local Court was knowingly false and dishonest, or in determination of his response that his evidence was not knowingly false and dishonest because he relied on the authenticity of the documents.

[95] The substituted notice of allegations alleged that the SDC letter was false or misleading in that it was not a true and correct copy or original of a document authored or authorised by the SDC, the signature on it was not that of the SDC Registrar and Dr Holt was first granted conditional registration on 25 February 2011, not 9 June 2011. It was alleged to have been tendered to mislead the Court to the view that Dr Holt was first granted conditional registration on 9 June 2011.[89]

[96] Dr Holt's evidence included that: (a) he did not accept that the SDC letter was not authentic; (b) he had no reason to doubt its authenticity at the time of the Local Court hearing; (c) he could not remember whether, at the time it was tendered in the Local Court, he had located the SDC letter himself, or whether his accountants had (a matter related to the source of, or opportunity to create, the document); and (d) if it was not authentic, he had nothing to do with its creation.[90]

[97] It is apparent from the matters in paragraphs [91] to [94] above and his evidence, that Dr Holt understood that allegation 2 was, in substance, one of fabricating the four documents, and he responded to that allegation in relation to the SDC letter by denying the SDC letter was not authentic, and by denying that he created it. He was clearly aware of the potential for the Tribunal to find that he fabricated the SDC letter, and he elected to meet that potential by denying that he did. He was not denied procedural fairness.

[98] Question 2 is answered 'no' in relation to the SDC letter.

[99] The substituted notice of allegations alleged that the use of the June contract was misleading in that there was the March contract, Dr Holt provided services under the March contract in Singapore in March, April, May and June 2011 and the June contract was tendered to mislead the Court to the view that Dr Holt first entered an agreement with the practice on 13 June 2011.[91]

[100] Dr Holt's evidence included that: (a) the only contract he ever had was the June contract (a matter related to the source of, or opportunity to create, the document); (b) he did not believe he signed the March contract because that was before 5 May 2011 when his contract with the Palmerston dental practice was terminated; (c) he could not explain why there were two contracts and did not recall signing two; and (d) for specified reasons, he doubted the contract was signed in March 2011.[92] Essentially, by his evidence, Dr Holt pressed the factual accuracy and authenticity of the June contract. Given the March contract and the evidence showing Dr Holt was working for the Singapore dental practice in March, April and May, Dr Holt's position clearly raised the potential for a finding that Dr Holt created the June contract, with a dishonest intention.

[101] It is apparent from the matters in paragraphs [91] to [94] above and his evidence, that Dr Holt understood that allegation 2 was, in substance, one of fabricating the four documents, and he responded to that allegation in relation to the June contract by pressing its factual accuracy and authenticity. Dr Holt was clearly aware of the potential for the Tribunal to find that he fabricated the June contract. He was not denied procedural fairness.

[102] Question 2 is answered 'no' in relation to the June contract.

[103] The substituted notice of allegations alleged that the Cooney reference was false and misleading in that it was not a true and correct copy or original document authored or authorised by Dr Cooney, the signature on the document was not Dr Cooney's, it purported to contain a positive character reference which had not in fact been given or authorised by Dr Cooney, Dr Holt commenced the pre-registration and employment process prior to 6 May 2011 and commenced work from the premises of the Singapore dental practice in or about March 2011, not 13 June 2011.[93]

[104] Dr Holt's evidence included that: (a) he wanted the Cooney reference to help him refute the allegations in the Local Court that he worked in Singapore before his contract with the Palmerston dental practice was terminated; (b) he could not remember whether he had a hard copy or a pdf version of it (a matter related to the source of, or opportunity to create, the document); (c) he could not have accessed Dr Cooney's stamps; and (d) if the signature was not Dr Cooney's, it must have been signed by Ms Brodrick or another staff member.[94] Essentially, by this evidence, Dr Holt pressed the authenticity of the Cooney reference and responded to the proposition that he had created it.

[105] It is apparent from the matters in paragraphs [91] to [94] above and his evidence, that Dr Holt understood that allegation 2 was, in substance, one of fabricating the four documents, and he responded to that allegation in relation to the Cooney reference by pressing its authenticity, and by denying that he created it. He was clearly aware of the potential for the Tribunal to find that he fabricated the Cooney reference, and he elected to meet that potential by effectively denying that he did. He was not denied procedural fairness.

[106] Question 2 is answered 'no' in relation to the Cooney reference.

[107] Given the conclusion above that the Tribunal did not make a finding that Dr Holt had created the SPASS application, Question 2 does not arise in relation to the SPASS application. It is therefore strictly unnecessary to address Question 2 in relation to it. I will do so briefly for completeness.

[108] The substituted notice of allegations alleged that the SPASS application was false or misleading in that Dr Holt did not first apply for permission to work in Singapore on 6 May 2011. It was alleged to have been tendered to mislead the Court to the view that he first applied for permission to work in Singapore on 6 May 2011.[95]

[109] Dr Holt's evidence included that: (a) he did not recall applying to work in Singapore before 6 May 2011; (b) he believed he applied on that date because that was the date on the SPASS application; and (c) he could not remember whether, at the time it was tendered in the Local Court, he had located the SPASS application himself, or whether his accountants had (a matter related to the source of, or opportunity to create, the document).[96] Essentially, by this evidence, Dr Holt pressed the factual accuracy and authenticity of the SPASS application.

[110] It is apparent from the matters in paragraphs [91] to [94] above and his evidence, that Dr Holt understood that allegation 2 was, in substance, one of fabricating the four documents, and he responded to that allegation in relation to the SPASS application by pressing its authenticity. He was clearly aware of the potential for the Tribunal to find that he fabricated the SPASS application. He was not denied procedural fairness.

[111] If it had arisen, Question 2 would be answered 'no' in relation to the SPASS application.

Question 3: Were the Tribunal's reasons about the fabrication of documents inadequate?

[112] The failure to provide reasons, or adequate reasons, for an administrative decision may constitute an error of law.[97]

[113] In Adjrun v Chief Executive Officer (Housing) [2022] NTSC 42 ('Adrun'), Grant CJ held (at [67]-[69]) as follows:

...[T]here is no free-standing common law duty to give reasons for making a statutory decision.[98] Different considerations arise in relation to the exercise of judicial power by a court. That is because the giving of adequate reasons lies at the heart of the judicial process, there is a common law duty on courts to give adequate reasons, and the standard of reasons required of a court is higher than that required of an administrative tribunal.[99] The duty on a statutory body such as the Tribunal to give reasons for decision is governed by statute, and the assessment of the standard required is an exercise in statutory construction.[100] The statutory requirement is found in s 105(2) of the NTCAT Act, which provides:

'The Tribunal must give the decision, the reasons for the decision and any relevant findings of fact in writing to the parties to the proceeding within 28 days after the hearing of a proceeding.'

...[T]he relevant requirements are that the Tribunal give its decision in writing, that it provide reasons for that decision in writing, and that it identify any relevant findings of fact in writing. There is no obligation to give reasons in writing for relevant findings of fact. That is consistent with the principle that, in circumstances where an appeal is limited to a question of law, the purpose of requiring reasons is to permit the appellate court adequate opportunity to see whether the finding does or does not involve error on a question of law.[101] It is unnecessary for that purpose that the reasons extend to determinations of pure findings of fact.[102] ...

The duty imposed by the statute also did not require the Tribunal to spell out every detail of the process of reasoning to its ultimate finding. The only essentiality is that the reasons expose in broad terms why a point critical to the contest has been resolved in a particular way. In this context, a failure to conduct an examination of each piece of evidence is not a failure to comply with the statutory requirement. That is particularly so in circumstances where the complaint is not that the Tribunal failed to deal in a satisfactory way with objective documentary material in support of the applicant's case. There may in those circumstances be an elevated need to explain why the evidence has been rejected, but that issue did not arise in the present case. Similarly, there were no credit issues to be determined in this case. ...

[114] Dr Holt argued that the Tribunal's reasons for its findings as set out in paragraph [16] above were inadequate, essentially because the findings were critical to the ultimate conclusion of professional misconduct and the Tribunal's reasons did not address or refer to the principal submissions of Dr Holt.

[115] Relevantly for this case (which involved the drawing of inferences to make the findings set out in paragraph [16] above), and because the drawing of inferences not reasonably open is an error of law, it may be accepted that the Tribunal's Reasons should expose in broad terms the path of reasoning from the found facts to the inferred facts.

[116] Dr Holt argued that the Tribunal did not address Dr Holt's submissions as to the passage of time and the issue of memory. On the contrary, the Tribunal's Reasons addressed Dr Holt's ability to recall in 2014 things that he did in 2011 and the fallibility of human recollection, what is needed to make findings about dishonesty and the unlikelihood that Dr Holt would have forgotten that he was working two jobs in two countries at the same time.[103]

[117] Dr Holt argued that the Tribunal did not address Dr Holt's submissions as to the insignificance of the issue of when he worked in Singapore in the Local Court proceedings, going to the motive of Dr Holt to lie about that issue and fabricate the four documents to sustain the lie. On the contrary, the Tribunal's Reasons referred to the defence in the Local Court proceedings which alleged Dr Holt had breached an implied term of the employment contract by falsely saying he needed weekends off to get counselling in Queensland, when rather, he was working in Singapore on Fridays, Saturdays and Mondays, and referred to Dr Holt's case that he only worked in Singapore after his contract with the Palmerston dental practice was terminated.[104] The Tribunal's Reasons referred to Dr Holt's oral evidence in the Local Court about these issues, and the documents tendered by Dr Holt's legal team in support of his case in the Local Court.[105] The Tribunal's Reasons referred to the strength of evidence necessary to establish a serious matter such as fraud.[106] It is clear from these reasons that the Tribunal rejected the submission that the issue of when Dr Holt worked in Singapore was so insignificant in the Local Court proceedings that Dr Holt could not have been motivated to lie about it.

[118] Dr Holt argued that the Tribunal did not address the possible explanations for the dates on the March contract and the June contract, and did not refer to the email recording the conversation with Suzanne Brodrick referred to in paragraph [60] above. The Tribunal's Reasons set out the factual findings that the June contract was inconsistent with all the evidence showing Dr Holt had already worked for three months in Singapore, that the June contract was not authentic, that the June contract did not come from the Singapore dental practice and that Dr Cooney's evidence was that there was no reason to enter into two contracts wi[107]Dr Holt.107 As the observations from Adjrun set out above make clear, the reasons must identify any relevant findings of fact in writing, but there is no obligation to give reasons for pure findings of fact, and a failure to examine each piece of evidence is not a failure to comply with the requirement to give reasons. Consequently, the Tribunal's Reasons on this point are not inadequate.

[119] Furthermore, as set out in paragraphs [43], [51], [62], [70] and [76] above, the Tribunal's Reasons do expose in broad terms the path of reasoning from the found facts to the inferred facts set out in paragraph [16] above.

[120] The Tribunal's Reasons are not inadequate and comply with the requirements of s 105(2) of the NTCAT Act.

[122] Dr Holt made various arguments about the conduct of the matter before the Tribunal which were ultimately pressed only in support of the relief sought to the extent that an error on a question of law was established. As set out above, no error has been established. Consequently, I will deal with these arguments only briefly.

[123] Dr Holt argued, by reference to criminal law authority, that the 'charge' of professional misconduct was duplicitous because numerous different allegations were made as comprising the alleged professional misconduct. The submission was contrary to s 5 of the National Law, which expressly contemplates an allegation of professional misconduct comprising 'more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience'.[108]

[124] Dr Holt argued that the substituted notice of allegations did not adequately inform of the meanings of 'false' and 'misleading', and made 'compound allegations' of falsity, making the 'charge' vague, ambiguous and unparticularised. This submission is rejected. The substituted notice of allegations made clear which of Dr Holt's oral evidence and which documents tendered or discovered on his behalf in the proceeding were alleged to be false or alternatively misleading. The Board's written outline of opening explained that the references to 'false' meant 'knowingly false', and Dr Holt's closing submissions demonstrate he understood the allegations in that way.

[125] Dr Holt argued that the Tribunal admitted evidence that was 'outside the parameters of the charges' and therefore irrelevant, or admitted evidence to which Dr Holt had taken objection, including hearsay evidence which Dr Holt could not challenge by cross-examination. This is an appeal on a question of law, which is a proceeding in the nature of judicial review.[109] Even in contexts where the rules of evidence apply (unlike here), certiorari does not lie to correct an error as to the admissibility of evidence, whether arising from misconstruction of the enabling statute or from misunderstanding of the laws of evidence, even where the evidence admitted is highly prejudicial or fatal to a party's case.[110] Dr Holt did not refer to any authority to show that the admissibility of evidence bore on the grant of relief in a successful appeal. If the admission of evidence could not be a basis to allow an appeal on a question of law, I find it difficult to accept that the appeal Court should, as part of its appellate function, re-determine objections to the admission of evidence before the Tribunal for the purpose of deciding what relief to grant on a successful appeal, specifically whether to refer the matter back to the Tribunal for further hearing or to permanently stay the proceeding in the Tribunal.

[126] Dr Holt argued that the Tribunal made findings which had not been put to Dr Holt. As regards the findings set out in paragraph [16] above, I have already concluded that Dr Holt was given adequate notice of the potential for those findings and responded to them.

[127] Dr Holt argued that the Tribunal failed to 'avert to the relevant standard of satisfaction' as to Dr Holt's dishonesty. Essentially, this was an argument as to the merits of the Tribunal's decision. Such arguments have no place in an appeal on a question of law.

[128] On the questions of law set out in paragraph [24] above, Dr Holt has established a real or significant argument to be put that there was error in the Tribunal's decision. Given that: (a) the Tribunal's decision has the potential for significant impacts upon Dr Holt and his ability to practise his livelihood as a dentist; and (b) full argument was heard and has been determined in respect of each proposed question of appeal, it is in the interests of justice to grant leave to appeal on those questions.

[129] The application for leave to appeal is allowed.

[130] None of the questions of law arising in the appeal have been answered that error is established. The appeal is dismissed and the decision of the Tribunal is confirmed.

[1] Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld), which applies in the Northern Territory pursuant to s 4 of the Health Practitioner Regulation (National Uniform Legislation) Act 2010 (NT).

[2] The Tribunal is the responsible tribunal pursuant to s 6 of the Health Practitioner Regulation (National Uniform Legislation) Act 2010 (NT).

[5] Tribunal's Reasons, [61]: AB, p 1379.

[6] Tribunal's Reasons, [12]-[15]: AB, p 1370.

[7] Tribunal's Reasons, [16]: AB, p 1370.

[8] Tribunal's Reasons, [17]: AB, pp 1370-1371.

[9] AB, pp 504-506. There was another document before the Tribunal, almost identical in form but dated 12 March 2011 ('March contract'): AB, pp 437-439.

[12] Tribunal's Reasons, [58]-[60]: AB, pp 1378-1379.

[13] Tribunal's Reasons, [42]: AB, p. 1375.

[14] Tribunal's Reasons, [43]: AB, p. 1376.

[15] Tribunal's Reasons, [44]: AB, p. 1376.

[16] Tribunal's Reasons, [45]-[46]: AB, p. 1376.

[17] Booth v An Assessor [2019] NTSC 89 at [35] per Grant CJ.

[19] Ibid; King v Commissioner for Consumer Protection [2018] WASCA 194 at [136], [166] per Murphy, Mitchell and Pritchard JJA.

[20] Commissioner of Taxation v Crown Insurance Services [2012] FCAFC 153 at [13] per Lander and Foster JJ and the authorities there cited.

[21] TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 per Gummow J.

[22] Commissioner of Taxation v Crown Insurance Services [2012] FCAFC 153 at [13] per Lander and Foster JJ.

[23] Cmunt v New South Wales Commissioner of Police [2019] NSWCCA 177 at [12] per Simpson AJA (Walton and Adamson JJ agreeing), citing Lavorato v R [2012] NSWCCA 61; (2012) 82 NSWLR 568 at [13].

[24] See also Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 at [40]- [46] per Warren CJ (Chernov JA and Bell AJA agreeing).

[25] Tribunal's Reasons, [24]: AB, pp 1371-1372.

[26] Tribunal's Reasons, [26]: AB, p 1373.

[27] Tribunal's Reasons, [27]: AB, p 1373.

[28] Tribunal's Reasons, [31]-[32]: AB, p 1374.

[29] Tribunal's Reasons, [32]: AB, p 1374.

[30] Tribunal's Reasons, [33]: AB, p 1374.

[31] Tribunal's Reasons, [34]: AB, p 1374.

[32] Tribunal's Reasons, [35]-[36]: AB, p 1374.

[33] Tribunal's Reasons, [38]: AB, p 1374-1375.

[34] Tribunal's Reasons, [39]: AB, p 1375.

[35] Tribunal's Reasons, [40]: AB, p 1375.

[36] Tribunal's Reasons, [40]: AB, p 1375.

[37] Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 at [44]- [46] per Warren CJ (Chernov JA and Bell AJA agreeing), citing Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 per Kirby P; Tracy Sports Village and Social Club v Walker [1992] NTSC 91; (1992) 111 FLR 32 at 37-38 per Mildren J; S v Crimes Compensation Tribunal [1998] 1 VR 83 at 91 per Phillips JA.

[44] Tribunal's Reasons, [42]: AB, p 1375.

[45] Tribunal's Reasons, [42]: AB, p 1375.

[46] See Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[50] Tribunal's Reasons, [47]: AB, pp 1376-1377.

[51] Tribunal's Reasons, [47]: AB, pp 1376-1377. The parts of Ms Brodrick's statement that were received in evidence comprised essentially the body of her statement, and the business records annexed to it, which included financial records and the March contract, but not the June contract: AB pp 137-139, pp 292-295.

[52] Tribunal's Reasons, [48]-[50]: AB, p 1377.

[53] Tribunal's Reasons, [53]: AB, p 1378.

[54] Tribunal's Reasons, [43]: AB, p 1376.

[55] Tribunal's Reasons, [43]: AB, p 1376.

[56] Tribunal's Reasons, [43]: AB, p 1376.

[57] Tribunal's Reasons, [59]-[60]: AB, p 1379.

[66] Tribunal's Reasons, [44]: AB, p 1376.

[67] Tribunal's Reasons, [44]: AB, p 1376.

[68] See Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[72] Tribunal's Reasons, [45]-[46]: AB, p 1376.

[73] See Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[74] See Booth v An Assessor [2019] NTSC 89 at [39]- [42] per Grant CJ. See also Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [13] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ.

[75] See Booth v An Assessor [2019] NTSC 89 at [43]- [46] per Grant CJ.

[76] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 590-591 per the Court, cited with approval in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [32] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.

[77] See, for example, Meadows v Minister for Immigration & Multicultural Affairs [1998] FCA 1706; (1998) 90 FCR 370 at 380 per Einfeld J, at 383 per von Doussa J, at 387, 388 per Merkel J; WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at 524 per Lee, Hill and Carr JJ.

[78] See, for example, WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188 at [54] per Lee, Hill and Marshall JJ, citing Meadows v Minister for Immigration & Multicultural Affairs [1998] FCA 1706; (1998) 90 FCR 370 at 380 per Einfeld J, at 383 per von Doussa J, at 387, 388 per Merkel J.

[79] See, for example, Zurich Bay Holdings Pty Ltd v Brookfield Multiplex Engineering and Infrastructure Pty Ltd [2014] WASC 40 at [10] per Le Miere J, citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, Musico v Davenport [2003] NSWSC 977; John Holland Pty Ltd v TAC Pacific Pty Ltd [2009] QSC 205; [2010] 1 Qd R 302; Avopiling (NSW) Pty Ltd v Menard Bachy Pty Ltd [2012] NSWSC 1466.

[81] Supplementary Appeal Book ('SAB'), p 1.

[97] See Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 ('Wingfoot') at [28] per French CJ, Crennan, Bell, Gageler and Keane JJ.

[98] Public Service Board (NSW) v Osmond (1986) 159 CLR 656.

[99] See Wingfoot at [56] per French CJ, Crennan, Bell, Gageler and Keane JJ; Byrne v Legal Services Commissioner [2009] VSC 210 at [12] per Beach J.

[100] Wingfoot at [43]-[44] per French CJ, Crennan, Bell, Gageler and Keane JJ.

[101] Wingfoot at [54]-[55] per French CJ, Crennan, Bell, Gageler and Keane JJ.

[102] Perkins v County Court of Victoria [2000] VSCA 171; (2000) 2 VR 246 at [64] per Buchanan JA (Charles and Phillips JJA agreeing); Wingfoot at [63] per French CJ, Crennan, Bell, Gageler and Keane JJ.

[103] Tribunal's Reasons, [29]-[33]: AB, pp 1373-1374.

[104] Tribunal's Reasons, [14]-[15]: AB, pp 1370.

[105] Tribunal's Reasons, [16]-[17]: AB, pp 1370-1371.

[106] Tribunal's Reasons, [30]: AB, pp 1373-1374.

[107] Tribunal's Reasons, [44]: AB, pp 1376.

[108] See Medical Board of Australia v Athinodorou [2018] SAHPT 7 at [15], citing Eckersley v Medical Board of Queensland [1998] 2 Qd R 453 and The Queen v General Medical Council; Ex parte Gee [1986] 1 WLR 226.

[109] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72 at [15] per Gaudron, Gummow, Hayne and Callinan JJ.

[110] See The Queen v Judge Mullaly; Ex parte Attorney-General (Cth) [1984] VicRp 66; [1984] VR 745 at 749-750 per Brooking J, citing The Queen v Tennant; Ex parte Woods [1962] Qd R 241.