Kirby v Dental Council of New South Wales [2025] NSWCATOD 116;

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25

Clarke v Midwifery Council of New South Wales [2020] NSWCATOD 58

Commonwealth v BIS Cleanaway Ltd [2008] NSWCA 170

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; [1983] HCA 25

Fox v Commissioner of Police [2016] NSWCATAD 77

Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458; (1990) 93 ALR 479

Health Care Complaints Commission v Kirby (No 2) [2024] NSWCATOD 83

Health Care Complaints Commission v Philipiah [2013] NSWCA 342

ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248; 110 ALR 47

In the matter of an application by David William Kirby [2020] HCASL 261

Kelly v University of New South Wales [2024] NSWCATOD 203

Kirby v Dental Council of New South Wales [2017] NSWCATOD 64

Kirby v Dental Council of New South Wales [2018] NSWSC 1869

Kirby v Dental Council of New South Wales [2020] HCASL 201

Kirby v Dental Council of NSW [2020] NSWCA 91

Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1

Lindon v The Commonwealth (No 2) [1996] HCA 14; (1996) 70 ALJR 541; (1996) 136 ALR 251

McNally v Resolution Life Australasia Limited [2025] NSWCATAP 116

Samuell v Medical Council of New South Wales [2020] NSWCATOD 149

Smithson v Medical Council of New South Wales [2021] NSWCA 53

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 25

Health Professional Councils Authority (Respondent)

1. On 11 December 2024 Dr David William Kirby (Dr Kirby) filed an "Urgent Emergency Application for hearing" seeking a range of orders against the Dental Council of New South Wales (the Council).
2. A number of documents were attached to the application. Under the heading "Details of 'Urgent Application'" Dr Kirby set out 51 paragraphs of matters of asserted background history and submissions and, under the heading "Conclusion" summarised the crux of his complaints. Annexure 2 to Dr Kirby's Application set out the relief which he sought, which was that a number of decisions of the Council be "set aside". The orders he sought relating to those decisions and the dates on which they were made were:

(1) Order 1: 20 May 2024;

(2) Order 8: 29 May 2020, 7 August 2020, 12 January 2023, 17 May 2023, 20 May 2024;

(3) Order 10: 27 January 2016;

(4) Order 11: 15 December 2015;

(5) Order 13: 12 February 2016, 24 March 2016.

1. Dr Kirby sought leave to appeal only the decisions of the Council of 18 December 2015 and 12 February 2016.
2. Dr Kirby sought a number of orders against the Council with respect to the details of his registration as a Dental Surgeon (orders 2-4) and a number of orders that the Council "acknowledge" or apologise in relation to matters which Dr Kirby identified (orders 5, 6, 7, 9) and that the Council communicate a number of specified matters to a third party (order 12).
3. On 8 January 2025 Dr Kirby filed a further application styled "Urgent Application for Emergency Interim Order". In that application, Dr Kirby sought 10 orders and a reservation of costs. None of the orders sought in that application sought to "set aside" or be granted an extension of time to appeal against the earlier decisions of the Council which Dr Kirby sought to have "set aside" in his December 2024 application. The substance of a number of the orders sought in Dr Kirby's original application was reiterated in his interim application. Sensibly, Dr Kirby appears not to have persisted with his urgent interim application. So doing cannot be to his detriment. Events have overtaken the application. The substance of Dr Kirby's complaints was articulated in the material which he filed in December 2024.
4. On 17 January 2025 the Council filed an application seeking dismissal of Dr Kirby's Application pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) and an order that Dr Kirby pay the Council's costs of the proceedings. The grounds for the Council's application for dismissal of Dr Kirby's application was that the Tribunal lacked jurisdiction pursuant to ss 159 or 159B of the Health Practitioner Regulation National Law (NSW) (the National Law) and should be dismissed as it was "misconceived and lacking in substance" and "not competent".
5. Section 55 of the CAT Act provides that the Tribunal may dismiss "at any stage any proceedings before it" if, relevantly for present purposes, the Tribunal "considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance": CAT Act, s 55(1)(b). Whatever their outcome, the Tribunal does not consider that Dr Kirby's applications are frivolous or vexatious. If requiring determination, the issue pursuant to s 55 is whether they are misconceived or lacking in substance.

1. Section 159 of the National Law provides, relevantly for present purposes, that Dr Kirby may appeal to the Tribunal against any of the decisions of a Council for a health profession (which the Council in these proceedings is) identified in s 159(1)(a1) to (e). Inferentially, however articulated, Dr Kirby appears to seek relief pursuant to one or more of s 159(1)(b), which is concerned with the imposition of conditions on a practitioner's registration by a council; s 159(1)(c), which is concerned with a council's refusal to alter or remove conditions attached to a practitioner's registration; or s 159(1)(e), which is concerned with a Council's refusal to alter or remove conditions imposed on a practitioner's registration. Section 159(3) provides that an appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council.
2. Section 159B of the National Law is concerned with "appeals on point of law [NSW]" and provides that a health practitioner who is "the subject of action taken by the Council for the health profession under section 150, 150A or 150C may appeal, with respect to a point of law, to the Tribunal": National Law, s 159B(1). Section 159B(2) provides that s 159B(1) does not limit a right of appeal under s 159.
3. Section 159C of the National Law articulates the "Tribunal's powers on appeal [NSW]", and provides that on an appeal against a decision of a Council the Tribunal may by order confirm the decision, or set aside the decision, or set aside the decision and make a new decision (being a decision that the Council could have made). As relief pursuant to s 159C is discretionary (ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248), the relief which may be granted is constrained by the terms of s 159B.
4. Sections 159 and 159B of the National Law do not expressly provide for time limits but the notes to each section provide that an appeal pursuant to either section is an "external appeal" to the Tribunal pursuant to the CAT Act. Section 79 of the CAT Act, which is concerned with "making and determination of external appeals" does not prescribe times within which external appeals must be lodged.
5. Section 41 of the CAT Act provides that the Tribunal may of its own motion, or on application extend the period of time for the doing of anything under the legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation, and may do so even though the relevant time period has expired. Rule 25(4)(c) relevantly provides that any appeal against decisions of the Tribunal must, unless the time to appeal is extended, be filed within 28 days of the appellant being notified of the Tribunal's decision. Although Dr Kirby has not sought an extension of time to appeal against any of the Council's decisions, the Tribunal approached his application as seeking to extend the time to appeal against each of the council's disputed decisions. Unless and until extensions of time to appeal are granted, there is no occasion for consideration of Dr Kirby's appeals.
6. In his submissions filed on 3 February 2025 in reply to the Council's submissions in support of its summary dismissal application, Dr Kirby set out in 113 paragraphs the reasons why he submitted that the Council's summary dismissal application should be rejected. In the course of his submissions, Dr Kirby identified at par 1 that he sought to appeal pursuant to s 159 and s 159B of the National Law.
7. At par 14 of his submissions, Dr Kirby identified the reference in the Council's application for dismissal to the Council's decision of 20 May 2024. At [44], Dr Kirby submitted that "It is important to note that [his] appeal lodged on 11 December 2024 and his right of appeals are by no means confined specifically to the one decision on 20 May 2024". That decision was submitted at par 45 to merely represent the "culmination of multiple other decisions and actions by the Dental Council under which Dr Kirby was the subject ranging from August 2015 to the present date including under s 150, s 150A and s 150C" of the National Law. Dr Kirby did not then otherwise identify particular decisions of the Council against which he was appealing.
8. Sections 150, 150A and 150C find expression in Subdivision 7 of Part 8 of the National Law - "Powers of a Council for protection of public [NSW]". Section 150 provides for "Suspension or conditions of registration to protect public [NSW]". Section 150A provides for "Review of certain decisions [NSW]". Section 150A(1) provides that a health practitioner may apply to a Council for the review of a decision under s 150 to, relevantly for present purposes, impose conditions on the practitioner's registration or alter conditions imposed on the practitioner's registration. Section 150C(1) provides that a Council may at any time, relevantly for present purposes, "alter or remove conditions imposed" on a practitioner's registration.
9. Before considering the substance of the present dispute, it is appropriate to deal with a procedural matter, and a jurisdictional question.

1. Dr Kirby invited the Tribunal to determine the proceedings "on the papers" and without an oral hearing. The Council did not agree, or necessarily disagree, with that course. The National Law does not expressly provide a basis for dispensing with a hearing of proceedings, other than when the subject-matter of a complaint is admitted: s 165H. Section 165K implies that a hearing will ordinarily be conducted, publicly or in private. Section 50(2) of the CAT Act provides that the Tribunal may dispense with a hearing in the circumstances referred to in the section. Section 165A of the National Law provides that the provisions of Division 10, in which s 165A finds expression, apply despite anything to the contrary in the CAT Act. The Tribunal does not consider that applying s 50(2) of the CAT Act is contrary to the provisions of the National Law.
2. The Tribunal is satisfied that the parties have had the opportunity to make submissions as to whether a hearing should be dispensed with, as required by s 50(3) of the CAT Act. The Tribunal has taken such submissions into account. The Tribunal is satisfied that it is appropriate to make an order pursuant to s 50(2) of the CAT Act dispensing with a hearing as the issues for determination "can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal". To the extent that an order pursuant to s 50(2) could constitute a denial of procedural fairness to the Council, as the Council succeeds with its application, it could not complain about any such denial.

Jurisdiction of the Tribunal as presently constituted

1. Although the Council has submitted that many of Dr Kirby's prayers for relief do not fall within the jurisdiction of the Tribunal, and that those which potentially do lack substance, the Council's submissions do not identify the basis on which the Tribunal as presently constituted has jurisdiction to determine Dr Kirby's application.
2. The Council may have assumed that Dr Kirby's application would be determined in accordance with the provisions of s 165B of the National Law. Section 165B(1) refers, inter alia, to an "appeal" to the Tribunal under the National Law and provides 165B(1)(b) for the Council for the health profession selecting three "persons" to sit as Members of the Tribunal in the proceedings. Section 165B(2), except as provided by subsections (4), (5) and (5A), relevantly for present purposes provides that the Tribunal is to be constituted by a Division member who is an Australian lawyer of at least 7 years' standing, two health practitioners selected for appointment by the Council who are registered in the same health profession as the appellant health practitioner and one lay person. Section 165B(4) provides that, when constituted to hear appeals under this law that are restricted to points of law, the Tribunal is to be constituted by, in this case, "1 Division member who is an Australian lawyer of at least 7 years standing". Section 165B(5A) provides that, when constituted to make an "ancillary decision or an interlocutory decision" within the meaning of those terms in the CAT Act, the Tribunal is to be constituted by a member of the Tribunal who is, in this case, an Australian lawyer of at least 7 years standing.
3. The CAT Act defines "ancillary decision" as a decision that is "preliminary to, or consequential on, a decision determining proceedings", including, relevantly for present purposes (a) a decision "concerning whether the Tribunal has jurisdiction to deal with a matter": s 4. The CAT Act defines "interlocutory decision" to include (h) "the summary dismissal of proceedings".
4. The Tribunal as presently constituted has jurisdiction to determine Dr Kirby's application to extend time to appeal against the decisions of the Council. The Tribunal is constituted by a senior judicial officer pursuant to s 165(b) of the National Law, thereby satisfying the requirements of s 165B(4)(b) and (5A). Section 4(1) of the CAT Act defines "interlocutory decision" to include (d) the extension of time for any matter, including for the lodgement of an appeal or application. As presently constituted, the Tribunal has jurisdiction to determine whether Dr Kirby's prayers for relief, other than prayers pursuant to s 159 or s 159B, fall within the Tribunal's jurisdiction pursuant to s 4(1)(a) of the CAT Act. In the event that any of those prayers falls within the Tribunal's jurisdiction, the Tribunal as presently constituted has jurisdiction to determine any application to extend the time for making such application. Whether the Tribunal as presently constituted would have jurisdiction to determine any application in respect of which time was extended would then require consideration: McNally v Resolution Life Australasia Limited [2025] NSWCATAP 116 (McNally).
5. The Tribunal accepts that the power to summarily dismiss proceedings is exercised with great care and not unless there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99; [1983] HCA 25. Unless, however pleaded, Dr Kirby's applications are shown to have no reasonable prospect of success, they will not be summarily dismissed: Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 942.
6. The Tribunal will first determine which of Dr Kirby's prayers for relief fall within the Tribunal's jurisdiction. Those which do not will be dismissed. The Tribunal will then determine whether to extend the time to appeal against the Council's decisions, or to commence such other proceedings as fall within the Tribunal's jurisdiction and require such extensions. If the Tribunal extends the time for Dr Kirby to appeal decisions of the Council pursuant to s 159 of the National Law, the Tribunal as presently constituted is not competent to determine such appeal because of the requirements of s 165B(2) of the National Law. If time to appeal is extended, the Tribunal as presently constituted would be competent to determine appeals by Dr Kirby pursuant to s 159B of the National Law by virtue of s 165B(4)(b). Although, for the reasons which follow, the Tribunal need not determine the issue, as presently constituted, the Tribunal could determine the Council's application for summary dismissal of the proceedings in accordance with s 165B(5A) of the National Law and s 4 of the CAT Act. Such of those prayers as were not dismissed would be likely to require the Tribunal hearing them to be constituted in accordance with s 165B(2).

1. It is appropriate to provide some background to the present proceedings. The Tribunal is satisfied that the chronology set out in the Council's submissions of 10 February 2025 is accurate. To the extent that he refers to other events in his submission, they will be considered in the context of evaluating Dr Kirby's submissions.
2. On 18 December 2015 the Council suspended Dr Kirby's registration pursuant to s 150(1)(a) of the National Law.
3. On 12 February 2016, after a review pursuant to s 150A of the National Law, the Council lifted the suspension of and imposed conditions on Dr Kirby's registration.
4. On 28 April 2017 Dr Kirby's appeal to the Tribunal challenging the Council's s 150 and s 150A decisions was dismissed: Kirby v Dental Council of New South Wales [2017] NSWCATOD 64.
5. On 6 December 2018 Dr Kirby's appeal to the Supreme Court from the Tribunal's decision of 28 April 2017 was dismissed: Kirby v Dental Council of New South Wales [2018] NSWSC 1869. Dr Kirby sought leave to appeal that decision to the New South Wales Court of Appeal. His application was dismissed by the Court of Appeal on 12 May 2020: Kirby v Dental Council of NSW [2020] NSWCA 91. Dr Kirby's applications to the High Court for special leave to appeal and reopen his special leave application were dismissed by the High Court: Kirby v Dental Council of New South Wales [2020] HCASL 201; In the matter of an application by David William Kirby [2020] HCASL 261.
6. On 6 to 10 March 2023 and 30 October 2023 the Tribunal heard disciplinary proceedings brought by the Health Care Complaints Commission (HCCC) against Dr Kirby with respect to his professional conduct in 2015. On 21 June 2024 the Tribunal found Dr Kirby guilty of unsatisfactory professional conduct: Health Care Complaints Commission v Kirby (No 2) [2024] NSWCATOD 83. At the time of the submissions of the parties in these proceedings, a hearing to determine appropriate protective orders as a result of the Stage 1 determination (Stage 2 hearing) was scheduled for 21 February 2025. For reasons which now do not assume significance, the Stage 2 hearing has since been vacated and, again for reasons which do not assume present significance, has yet to be relisted. The senior judicial officer determining the present proceedings is the presiding member in the HCCC proceedings. Although neither party has raised any objection, as Dr Kirby is unrepresented, the Tribunal has satisfied itself that Dr Kirby could not be prejudiced by that circumstance, given that no part of the present applications requires the Tribunal to make findings with respect to credit or disputed facts, or in any way involves inadvertent reliance on any findings made with respect to credit or otherwise in the HCCC proceedings.
7. On 7 April 2024 and 28 April 2024 Dr Kirby requested the Council to exercise its powers pursuant to s 150C of the National Law, writing "If you would care to read the documentation to which I refer you will clearly see that the request I have made falls squarely under s 150C and seeks a decision from the current Council to acknowledge and make restitution, most relevantly for its misrepresentations made to the public that are false, misleading and deceptive which were made at the practitioner's expense and for the Council to accept that its conduct represents an apprehension of bias and misconduct in public office".
8. On 20 May 2024 the Council decided not to consider the exercise of its powers to conduct a review pursuant to s 150C of the National Law.
9. The Council said that it had considered Dr Kirby's request but "agreed that it is unable to undertake a s 150C review of your conditions pending the outcome of the NSW Civil and Administrative Tribunal (proceedings) conducted between March 2023 and December 2023".
10. On 7 March 2025 the Council decided pursuant to s 150C of the National Law to remove all conditions to which Dr Kirby's registration had hitherto been subject.

Relief which does not fall within the jurisdiction of the Tribunal

1. The Council submitted that prayers 2 to 7, 9 and 12 of Dr Kirby's application filed 11 December 2024 fell outside the jurisdiction of the Tribunal pursuant to the National Law, the CAT Act or otherwise. The orders sought by Dr Kirby in those paragraphs were:

"2. That the Dental Council NSW immediately cause the true, accurate and up-to-date conditions on the Practitioner's Registration be entered into the National Register according to the wording in Annexure 4.

3. That the Dental Council immediately cause the Conditions and Links attached to the practitioner's registration advertised on the Australian Health Practitioner Regulation Agency (AHPRA) website and the National Register be removed.

4. That the Dental Council immediately communicate to AHPRA the true and accurate conditions on the Practitioner's Registration to be advertised on the AHPRA website for public viewing according to the wording in Annexure 4.

5. That the Dental Council be ordered to acknowledge to the Practitioner in writing that the Dental Council was the body responsible for ensuring the true, accurate and up to date conditions given to the Australian Health Practitioner Regulation Agency (AHPRA) for recording on the National Register and advertised for public viewing via the AHPRA website.

6. That the Dental Council be ordered to acknowledge to the Practitioner in writing that the current conditions imposed on his registration and advertised on the AHPRA website are not representative of the true, accurate or up to date conditions imposed on his registration.

7. That the Dental Council of NSW issue a written apology on terms acceptable to the Practitioner.

9. That the Dental Council be ordered to acknowledge to the Practitioner in writing that the failure of the Dental Council to directly respond to the serious matters put to the Council in relation to matters that included (but were not limited to) procedural fairness towards him, the Council's 150 and s150A decisions against him, the risk to public health and safety, and that he put to the Council in his letters dated 22 May 2020, 2 July 2020, 21 August 2020, 15 December 2022, 8 January 2023, 10 April 2023, 27 April 2023, 9 May 2023, 17 May 2023 (phone call), 4 July 2023, 7 April 2024, 28 April 2024, 20 May 2024 resulted in a risk to the health and safety to the public that denied members of the public emergency, preventive and routine services to which they were legitimately entitled to receive.

12. An order that the Dental Council immediately communicate to Ameer Tadros Director Health Professional Councils Authority (HPCA) in writing stating his signature on Dr White's Certificate of Authority was wrong at law and a copy of such advice be immediately provided to the practitioner."

1. In his Application filed 8 January 2025, the orders sought by Dr Kirby reiterated, in some instances in identical terms, the relief previously sought by him. It is unnecessary to set out in their entirety the 10 orders Dr Kirby there sought.
2. In his submissions filed 31 March 2025, after identifying the series of orders which he sought to have "set aside and rendered void ab initio" (1-5 and 13-14), Dr Kirby reiterated the substance of a number of the orders previously sought by him with respect to AHPRA and sought:

(1) at paragraph 6, an order that he was "permitted to undertake" a number of procedures which he set out in an annexure "from a date not later than 24 March 2016 until 7 March 2025";

(2) at paragraph 9, an order that the Dental Council NSW within fourteen (14) days "write to Dr Kirby's former Employers, his professional indemnity organisation, his professional association (ADA) and HCF advising that the restrictions on his registration and provided to them and advertised on the AHPRA website for public viewing since February 2016 were not representative of the true, up to date and accurate restrictions so imposed by the Dental Council and should not have been relied upon until 7 March 2025";

(3) at paragraph 10, an order that the Dental Council within fourteen (14) days "write to Dr Kirby's former Employers his professional indemnity organisation his professional association (ADA) and HCF apologising for the advertised publication";

(4) at paragraph 11, a request that AHPRA "remove the links to case law on Dr Kirby's registration as advertised on the AHPRA website for public viewing within fourteen (14) days of the date of these orders"; and

(5) at paragraph 12, a "declaration and finding that the restrictions on the practitioner's registration the Dental Council caused to be advertised on the AHPRA website for public viewing between 17 March 2016 and 7 March 2025 were false, misleading and deceptive".

1. In his submissions filed on 3 February 2025, Dr Kirby engaged in detail with the meaning of "decision" and the appeal provisions of the National Law, reiterated a number of previous complaints and advanced further complaints with respect to the alleged conduct of the Council.
2. In opposition to the Commission's application to dismiss his applications, Dr Kirby relied on a number of principles and authorities emerging from decisions of courts with respect to "summary dismissal" (at pars 79-100). Although, correctly, identifying the cautious approach of courts to summary dismissal applications, Dr Kirby did not identify, there or elsewhere, the jurisdictional basis of the orders which he sought in the terms recorded above.
3. The Council's submissions of 10 February 2025 asserted that the relief sought by Dr Kirby in the terms recorded above constituted "an attempt to have the Tribunal conduct some sort of roving inquiry with respect to correspondence and decisions by the Council dating back to 2015". As indicated earlier in its submissions, the Council contended that the Tribunal had no jurisdiction to grant the relief sought by Dr Kirby, either in those terms, or of that kind.
4. Although not unexperienced in litigation pursuant to the National Law, Dr Kirby is an unrepresented litigant in these proceedings. Consistent with authority, the Tribunal has endeavoured to ascertain the substance of his case and whether, howsoever articulated, Dr Kirby raises matters which demonstrate an application which falls, or could fall within the Tribunal's jurisdiction: Lindon v The Commonwealth (No 2) [1996] HCA 14; (1996) 70 ALJR 541; (1996) 136 ALR 251. In his 49 page, 358 paragraph submissions of 31 March 2025, Dr Kirby referred (at page 1) to the "powers of tribunal" quoting, accurately, s 159C of the National Law which identifies what on an appeal from a decision of the Council the Tribunal may order. As Dr Kirby's submissions record, the Tribunal may confirm the decision under appeal, set aside that decision or set aside the decision and make a new decision (being a decision that the Council could have made). As is not in doubt, s 159C can only be enlivened in appeals pursuant to s 159 and/or s 159B of the National Law. Apologies, acknowledgments and other relief of the kind sought by Dr Kirby, not involving appeals against decisions of the Council's exercise of powers conferred by ss 150, 150A or 150C could not be granted pursuant to s 159C.
5. Dr Kirby's submissions engaged extensively with the meaning of "decision" and, under the heading "Interpretation" set out in detail why his "right of appeals are by no means confined specifically to the one decision on 20 May 2024" (page 8). Under the heading "The Appealable Decisions" (page 9 and following), Dr Kirby set out the basis on which he submitted that his challenges to decisions of the Council over the years identified by him were within jurisdiction. Under the heading "Previous Action" (page 11 and following), Dr Kirby set out why he maintained that previous decisions of Courts and the Tribunal did not preclude him from seeking to appeal against decisions of the Council prior its decision of 20 May 2024.
6. Dr Kirby made a number of submissions with respect to the "general discretion of Tribunal" (pages 16 to 18). In his submissions, Dr Kirby referred to statutory provisions with respect to interpretation of provisions of the National Law and the specific provision that, consistent with provisions of Federal and State Interpretation Acts, an interpretation that will "best achieve the purpose or object of this law is to be preferred to any other interpretation". Dr Kirby did not there or elsewhere identify any provision of the National Law which, howsoever interpreted, could enliven jurisdiction to entertain the prayers for relief identified above. It is likely that the real asserted jurisdictional basis of those prayers was articulated by Dr Kirby under the heading "Interplay of National Law of s 159C with s 79 of CAT Act" (pages 18-19). Dr Kirby there, at least inferentially, asserted that s 79(2)(b) of the CAT Act invested the Tribunal with jurisdiction to grant the relief sought by him. Section 79(2) of the CAT Act provides that:

In determining an external appeal, the Tribunal may-

(a) in the case of enabling legislation that specifies the orders that may be made by the Tribunal on the appeal - make any of those orders, or

(b) in any other case - make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for:

(ii) the decision under appeal to be confirmed, affirmed or varied,

(iii) the decision under appeal to be quashed or set aside,

(iv) the decision under appeal to be quashed or set aside and for another decision to be substituted for it,

(v) the whole or any part of the case to be reconsidered by the decision-maker whose decision is under appeal ...

1. With respect to Dr Kirby's submissions, s 79(2)(b) of the CAT Act cannot be engaged to assist his case with respect to jurisdiction to entertain the prayers identified above. The enabling legislation for present purposes is the National Law. Dr Kirby has sought, correctly, to rely upon s 159 or s 159B of the National Law to challenge decisions made by the Council in the exercise of its powers conferred by ss 150, 150A and 150C of the National Law. Dr Kirby did not identify the nexus between the Council's decisions which he seeks to appeal against and the source of power to challenge them, or of the Tribunal to make them in the context of either a s 159 or a s 159B appeal. To be appellable pursuant to s 159 and/or s 159B, that nexus is essential. Put bluntly, an appeal pursuant to s 159 or s 159B does not invest the Tribunal with a "roving" jurisdiction to address a health practitioner's grievances. As discussed later in these reasons, s 159C of the National Law defines the relief which may be granted.

1. In its dismissal application, the Council's grounds asserted at par 3 that s 159 of the National Law did not confer a right of appeal in relation to the Council's decision of 20 May 2024 not to consider the exercise of its powers under s 150C of the National Law. Whether that is so need not be decided in these proceedings. In view of the terms of s 150A, a decision by a council not to exercise its powers under s 150C does not leave a health practitioner who seeks to have conditions of registration discharged or varied without a remedy, except in the exceptional circumstances identified in s 150A(2)(a), as the terms of s 150A(2)(b) confirm - the council "must reconsider" its earlier decision. With respect to Dr Kirby's challenge pursuant to s 159B, the Council submitted at par 5 that the Council's 20 May 2024 decision not to consider the exercise of its powers under s 150C was not an "action taken" by it pursuant to ss 150, 150A or 150C and thus could not enliven appellate jurisdiction under s 159B.
2. In its submissions of 22 April 2025 the Council submitted, correctly, that the "decisions, or actions, or correspondence" which are asserted by Dr Kirby to give rise to rights of appeal are not clearly identified by him. The Commission "emphasised" that s 159B "does not confer a right of appeal against 'action taken at large'", only against action "taken under identified sections of the National Law". The Council reiterated the substance of its previous submissions with respect to the absence of jurisdiction in relation to the prayers identified above and submitted, correctly, that an absence of jurisdiction to deal with an application is an appropriate case for summary dismissal: Kelly v University of New South Wales [2024] NSWCATAD 203 at [62].

1. Dr Kirby bears the onus of establishing that his prayers for relief fall within the jurisdiction of the Tribunal. The Tribunal has focussed on the substance of Dr Kirby's contentions, making due allowance for the fact that he is unrepresented. Nothing to which Dr Kirby has referred in any of his submissions or accompanying material identifies the jurisdictional basis for the Tribunal granting any of the prayers for relief identified above. Assuming for the purpose of this determination that Dr Kirby successfully agitates an appeal pursuant to ss 159 or 159B of the National Law, although nothing to which he has referred, or the Tribunal has gleaned for itself, establishes that the Tribunal would have jurisdiction to grant any of that relief pursuant to s 159C, that would be a matter for determination by the appropriately constituted Tribunal which hears Dr Kirby's appeals.
2. Nothing to which Dr Kirby has referred establishes that the Tribunal has jurisdiction to make "stand alone" orders directing the Council to do or refrain from doing anything with respect to the National Register, or to acknowledge anything or issue an apology to Dr Kirby on his or any other terms. If the time to appeal is extended, and Dr Kirby succeeds with any of his appeals, although no basis for suggesting that it is within the power of the Tribunal has been advanced, he may be able to agitate his complaints if s 159C is enlivened. Dr Kirby has not demonstrated any other basis on which he may be able to do so.
3. It is unnecessary to make findings in accordance with s 55(1)(b) of the CAT Act, or to rely on the section in order to dismiss Dr Kirby's prayers for want of jurisdiction: Boyland v Commonwealth Bank of Australia [2025] NSWCATAP 160 at [29]- [30]. As the Tribunal does not have "authority to decide" (Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1) those prayers, they should be dismissed.
4. The prayers for relief which are accordingly dismissed are:

(1) prayers 2 to 7, 9 and 12 of the Application filed on 11 December 2024;

(2) prayers 1 to 10 of the Application filed on 7 January 2025;

(3) prayers 6 to 12 attached to Dr Kirby's submissions filed 31 March 2025.

Relief which falls within the jurisdiction of the Tribunal

1. As the Council submitted, Dr Kirby has not appealed within the times applicable to any of the decisions in respect of which he asserts rights of appeal. Nor has Dr Kirby sought an extension of time to appeal. As a litigant in person, and although Dr Kirby has not expressly engaged with the issue, the Tribunal treats Dr Kirby as seeking an extension of time to appeal each of the decisions of the Council which he wishes to challenge. There have been extensive submissions by both parties in relation to whether the decisions Dr Kirby seeks to challenge are "decisions" which fall within the ambit of s 159 or s 159B. Without expressing a concluded view, so doing being unnecessary in the circumstances, the Tribunal determines Dr Kirby's application for an extension of time to appeal on the basis that the decisions which he wishes to challenge are appellable decisions.
2. Dr Kirby is out of time to appeal against all of the decisions which he seeks to challenge, by as little as 7 months, and as much as more than 9 years. Those decisions are:

(1) decision of 20 May 2024 (order 1),

(2) decisions of 29 May 2020, 7 August 2020, 12 January 2023, 17 May 2023 and 20 May 2024 (order 8),

(3) decision of 27 January 2016 (order 10),

(4) decision of 15 December 2015 (order 11), and

(5) decisions of 18 December 2015 and 12 February 2016 (order 13).

1. For the purposes of determining whether to grant an extension of time to appeal, and as Dr Kirby is a litigant in person, the Tribunal does not propose attempting to definitively determine whether Dr Kirby's proposed grounds fall within s 159 or s 159B of the National Law. Having regard to the totality of the material before the Tribunal, if Dr Kirby establishes an entitlement to an extension of time to appeal, it should be with respect to both his s 159 and s 159B appeals. The converse is also true. There is no basis for differentiating between the two appeals. If time to appeal is extended, the Tribunal as presently constituted will consider those grounds of appeal which are identified as s 159B grounds. Whether the Tribunal as presently constituted could do other than refer to those grounds of appeal which are identified as s 159 grounds as being beyond its powers would require consideration: McNally at [62]-[63].

1. Dr Kirby's "grounds for appeal" in support of his application filed on 11 December 2024 made numerous allegations with respect to the conduct of the Council from as early as December 2015. In his grounds, Dr Kirby referred to a number of matters which, if established, might enliven appellate intervention, either pursuant to s 159 at a hearing de novo, or pursuant to s 159B on points of law, but did not identify a legal or evidentiary basis supporting the complaints.
2. In "grounds for interim order" in his application filed on 8 January 2025, Dr Kirby made extensive allegations of corrupt, unconscionable and other improper conduct by members of the Council, and asserted errors of law and failure to discharge the members' duties in accordance with the National Law. The complaints extended to the conduct of the Council in its own proceedings and in proceedings before the Tribunal. Other than allegations, the grounds did not identify any legal or factual basis on which appellate intervention was likely pursuant to ss 159 or 159B of the National Law.
3. In his submissions of 31 March 2025, Dr Kirby reiterated his "right to appeal" but did not engage with the need for an extension of time in which to appeal. The Council, particularly in submissions of 22 April 2025, comprehensively engaged with the issue of an extension of time by reference to the asserted absence of any merit in any of Dr Kirby's complaints against any of the earlier decisions of the Council. Dr Kirby has not sought to respond to those submissions. As will be seen, having not done so has not been held against Dr Kirby.

1. The Council submitted that, as Dr Kirby's registration is not and has not since 7 March 2025 been subject to any conditions, there could be no possible utility in granting an extension of time for him to appeal against any of the Council's earlier decisions, pursuant to either ss 159 or 159B of the National Law.
2. The Council's opposition to the extension of time to appeal against any of the earlier decisions of the Council significantly relied on the fact that, since 7 March 2025, Dr Kirby's registration has not been subject to any conditions. In those circumstances, the Council submitted that success with respect to any of Dr Kirby's proposed appeals could have no practical significance and, that, to the extent that the Tribunal may have made "findings" which differed from those of the Council in any of its earlier decisions, which were not "findings" in any event, other than perhaps in giving Dr Kirby some satisfaction or sense of vindication, no practical purpose consistent with the objectives of the National Law could possibly be served.
3. The Council submitted that any of Dr Kirby's proposed appeals against the Council's s 150C decisions of 20 May 2024 and earlier were overtaken by the fact that what Dr Kirby has "been seeking for some time", removal of all conditions attaching to his registration, was granted by the Council on 7 March 2025. As noted earlier, without forming a concluded view, or needing to, the Tribunal proceeds on the basis that the determinations of the Council which Dr Kirby seeks to challenge constitute "decisions" capable of being reviewed on appeal. As the Council's detailed submissions of 22 April 2025 suggest, that is not necessarily the case, particularly in those instances where rights of appeal have been previously exhausted, or where the Council decided not to exercise its powers under s 150C of the National Law.
4. In relation to Dr Kirby's stated intention to rely upon further or new evidence or arguments in addition to those which he advanced in previous hearings, some going back more than 9 years, it was submitted that, in relation to appeals which Dr Kirby did agitate, which were determined by Courts or the Tribunal, the Tribunal could not revisit its own earlier decisions, or do other than follow decisions of the Court of Appeal. It was submitted, correctly in the Tribunal's view, that to allow further appeals with respect to matters in respect of which appeal rights have been exhausted would involve the Tribunal in reviewing its own previous decisions, despite clearly having no jurisdiction to do so. As the Council submitted, Dr Kirby has in the past challenged decisions of the Tribunal as far as the High Court. For the reasons which follow, it is unnecessary to attempt to discern which of Dr Kirby's proposed appeals are second or subsequent attempts to challenge previous decisions of the Council or the Tribunal, or, indirectly, previous decisions of courts.
5. The Council submitted that the principles of estoppel and res judicata were capable of being applied in the present proceedings. Without suggesting that could not be the case, it is unnecessary for the Tribunal to consider those grounds for refusing to extend time to appeal.
6. In support of its contentions that extending time for Dr Kirby to institute appeals would have no utility, the Council stressed the scope of the relief which would be available under s 159C if time to appeal were extended, and submitted that Dr Kirby failed to acknowledge those limits, notwithstanding that, as recorded earlier, Dr Kirby identified them in his submissions. The Council submitted that there is "no longer any suspension or any conditions for the Tribunal to revoke, vary or confirm". In what way, if Dr Kirby successfully agitated an appeal, that would not be so is not apparent and, save by way of vindication, Dr Kirby has not identified any such ways.
7. Critically for the purposes of the application to extend time to appeal, the Council submitted that the Tribunal cannot "expunge or erase the historical facts of the decisions made or strike them from historical records. The 2015 and 2016 ss 150 and 150A decisions remain not only decisions made as a matter of fact but decisions which have been affirmed on review by the Tribunal (and its decision in turn upheld on appeal by the courts)". If Dr Kirby's employment and insurance arrangements have been impacted by those decisions, that is simply the consequence of valid decisions made by the Council and Tribunal, and not something the Tribunal has any capacity to address.
8. The Council reiterated its reliance upon the s 150C decision of 7 March 2025, as having "superseded" the action taken by it under s 150C in May 2024. It was submitted that a reconsideration of the May 2024 action taken under s 150C could produce no outcome having any practical effect more favourable for Dr Kirby than matters presently exist.
9. The Council relied on the decision of the Tribunal in Clarke v Nursing and Midwifery Council of New South Wales [2020] NSWCATOD 58 in which at [31]-[33] it was held that:

"31 It is the longstanding principle that courts and tribunals do not entertain abstract, academic or hypothetical disputes, but, rather, confine themselves to live disputes where an outcome is needed for a practical purpose. [Citations omitted]

32 There is nothing in either the National Law or the Civil and Administrative Tribunal Act 2013 which provides any reason to think that the legislature intended this Tribunal to entertain an abstract, academic or hypothetical dispute.

33 Ms Clarke is attempting, by both of her initiating proceedings in the Tribunal, to agitate a dispute which is academic in the sense that the resolution of the dispute can have no practical impact upon the subject matter of the dispute."

1. The Council also relied on the decision in Samuell v Medical Council of New South Wales [2020] NSWCATOD 149 (Samuell) where the Tribunal quoted with approval the following paragraphs from Fox v Commissioner of Police [2016] NSWCATAD 77:

"27 The words "at any stage" (in s 55(1)(b)) mean inter alia that an application that is legitimate when commenced can become vexatious because of changes in circumstances. Thus, if no purpose will be advanced by continuing the application, even though the applicant is genuine in his or her belief in the matter raised, the application should be struck out (Re Williams and Australian Electoral Commission (1995) AATA 160, (1995) 38 ALD 336). The defect must be apparent on the face of the pleading [Citation omitted] or, in the case of Tribunal proceedings on the face of the statements of facts and contentions, and evidence is not normally admissible on the point. A proceeding that constitutes an abuse of process may be dismissed as frivolous or vexatious (Re Hinds and Australian National University (2012) AATA 495 (2012) 129 ALD 476.

29 A proceeding is thus vexatious if it is brought for a collateral purpose (Cabot v City of Keilor [1994] VicRp 14; (1994) 1 VR 220) or if the outcome of the proceedings, whether successful or not, will be devoid of any practical effect.

31 Where the applicant is seeking only restoration of honour (i.e., clearing his name) and has no chance of success in the proceeding, the matter should be dismissed. While the power should be exercised cautiously and sparingly [Citations omitted] it is not necessary for the sole purpose in continuing an action to be collateral to the process, and ... it is sufficient that the collateral purpose is the predominant one."

1. In Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 535; [1992] HCA 34, Brennan J held that there was no impropriety of purpose in maintaining a proceeding with an ulterior purpose or motive, but said the matter should be dismissed if the proceeding was for a purpose that did not include, at least to any substantial extent, the obtaining of relief within the scope of the remedy. The Tribunal would not dismiss Dr Kirby's applications on that basis. Dr Kirby's motives do not appear to be limited to his desire to clear his name.
2. The Council referred specifically to Samuell's case and the rejection by the Tribunal of the practitioner's claim that the imposition of a condition had caused him "reputational damage, which should be ameliorated or addressed by the setting aside of the decision to impose the condition". In Samuell at [53], the Tribunal held that:

"The setting aside on procedural grounds of the decision of the Council to impose a condition which has now been removed would serve none of the purposes of the National Law set out in ss 3 and 3A. The allocation of the time and resources of the Tribunal and the parties to the arguing of the appeal on the points of law, in all of the circumstances, would not be consistent with the object of the Tribunal set out in s 3(d) of the CAT Act, which speaks of the Tribunal resolving 'the real issues in proceedings justly, quickly, cheaply and with as little formality as possible'. In short, it would put the Tribunal and the parties to significant expense and effort for an outcome of no practical effect."

1. The Tribunal summarily dismissed the appeal, notwithstanding that it found that it had been instituted for a "proper purpose" which, once the subject of the appeal was removed denied the appeal any practical purpose in terms of the practitioner's registration or the objects of the National Law, and thereby became misconceived and lacking in substance. The Tribunal accepted that, although setting aside an earlier decision of the Council to impose a condition was "technically available" under s 159C of the National Law, the granting of the remedy would have no practical effect.
2. Significantly, it was further held in Samuell at [56] that the making of a decision under s 150 of the National Law did not involve the Council arriving at a concluded view of the facts or a "characterisation" of the practitioner's professional conduct, but was "simply the outcome of a risk assessment, the setting aside of the Council decision on procedural grounds in circumstances where the practical effect of that decision has already been removed with the removal of the condition, should have no effect upon any reputational impact" suffered by the practitioner as a result of the making of the decision. As submitted by the Council, the facts of Samuell are sufficiently similar to those in this application to justify the Council's reliance upon the decision.
3. Council further submitted that Dr Kirby should be refused an extension of time to appeal on the basis that his proposed appeals were an abuse of process and frivolous and vexatious. Although there is force in the Council's submissions, it is unnecessary for the Tribunal to engage with them.

1. Section 4 of the CAT Act defines interlocutory proceedings to include "the extension of time for any matter, including for the lodgement of an application or appeal". The power to grant an extension of time to appeal is discretionary: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25. The discretion is not unfettered.
2. In Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458; (1990) 93 ALR 479, McHugh J summarised the principles governing applications to extend time to appeal. His Honour said at [2] that the grant of an extension of time to appeal was "not automatic", the object of the rule being to "ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties". His Honour said that the discretion can "only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant". In order to determine whether the rules will work an injustice it was thus "necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequence for the parties of the grant or refusal or the application for extension of time".
3. McHugh J observed that, when an application is for an extension of time in which to file an appeal "it is always necessary to consider the prospects of the applicant succeeding in the appeal". It was also "necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has a "vested right to retain the judgment" unless the application is varied". For those reasons McHugh J concluded that before an applicant could secure an extension of time to appeal "there must be material upon which I can be satisfied that to refuse the application would constitute an injustice".
4. His Honour referred to the applicant's explanation for her delay in seeking to appeal, 16 months in circumstances where the rules provided a 21 day period. His Honour suggested that "[a] case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved", adding that "[l]ack of legal knowledge is a misfortune, not a privilege". His Honour ultimately concluded that it would be "a waste of time, money and court resources to extend the time for appealing to enable the applicant to seek the relief which she proposes in her amended claim". The principles emerging from his Honour's decision have been consistently followed by courts and tribunals.
5. Dr Kirby's appeal filed on 11 December 2024, as developed by him in his subsequent submissions, ceased to have any possible utility on 7 March 2025 when the Council removed all conditions attaching to his registration. Whether pursuant to s 159, on a rehearing before a Tribunal constituted in accordance with s 165B(2) of the National Law, or a s 159B appeal before a Tribunal constituted by a senior judicial officer or an Australian lawyer of at least 7 years' standing, if Dr Kirby made out any or all of his appeal grounds the Tribunal could grant him no relief which the Council had not already given him.
6. Whilst Dr Kirby may have grounds for feeling aggrieved by the actions of the Council in the almost 10 years since protective and/or disciplinary proceedings were commenced against him, no part of the original jurisdiction of the Tribunal or jurisdiction in appeals to it from decisions of the Council involves entertaining proceedings the real purpose of which can now only be what Dr Kirby hopes will be vindication of his conduct in 2015 and since and/or criticism of the Council and the various persons named by Dr Kirby in his material. As submitted by the Council, if Dr Kirby made out a successful appeal under s 159 or s 159B, even though that may involve implied criticism of earlier decisions of the Council, that would not change the futility of the appeals.
7. The plain and unavoidable reality is that extending time for Dr Kirby to appeal against any of the earlier decisions of the Council which he now seeks to challenge would have no possible utility, and indeed would serve only to expose Dr Kirby to the likelihood of an order for costs of those proceedings.
8. The Tribunal is not satisfied that declining to extend the time to appeal would allow the rules with respect to the time for filing to work an injustice upon Dr Kirby. It is unnecessary to extend time to enable the Tribunal to do justice between the parties. Between previous undisturbed decisions of the Council or the Tribunal, justice has to date been done. To the extent that Dr Kirby could argue that any possible injustice would be visited upon him by refusing an extension of time to appeal some or all of the Council's previous decisions, the potential for such injustice to result dissolved on 7 March 2025. Although Dr Kirby would not see it in such narrow terms, in the context of the proceedings with which the Tribunal is presently concerned, the sole issue on appeal, whether pursuant to s 159 or 159B, would be the appropriate relief pursuant to s 159C of the National Law. As none currently are, and the Council has made plain that it is not seeking to reimpose conditions, and Dr Kirby sensibly would not be seeking that outcome, refusing an extension of time for Dr Kirby to appeal could visit no injustice upon him.
9. Although not decisive, the history of these proceedings militates against extending time for Dr Kirby to appeal. As the Council has submitted, Dr Kirby has had and exercised appeal rights, including to the ultimate court in this country. To the extent that he may not have, Dr Kirby has provided no explanation for his failure to have appealed against earlier decisions. Although the Tribunal does not find fault with the conduct of either party, and accepting that Dr Kirby is a litigant in person, as and from 7 March 2025, Dr Kirby's continued conduct of these proceedings can be seen as predominantly, if not only, the pursuit of vindication of his past conduct and/or criticism of members of the Council by whom he feels that he has been unfairly treated.
10. The nature of the litigation which these proceedings involve is determined by the provisions of the National Law and, in particular, the objective and guiding principle articulated in s 3A of the National Law which is that "the protection of the health and safety of the public must be the paramount consideration" when any "functions" under the National Law are exercised (s 4). The Tribunal is presently exercising a function and must in those circumstances observe the "paramount consideration" articulated in s 3A. Extending time for Dr Kirby to prosecute either of his proposed appeals could have no outcome which could properly be referable to the paramount consideration which the Tribunal must observe, and further militates against the granting of an extension of time to appeal.
11. The consequences for the parties of granting or refusing the application to extend time can be simply stated. Refusing an extension of time can have no consequences for Dr Kirby which would be capable of amelioration if leave were granted and either or both of his appeals succeeded. The same is not true for the Council. If time to appeal were extended, it is difficult to see having regard to Dr Kirby's material, and as he is unrepresented, not adopting an overly legalistic approach to the articulation of his complaints, how the Council could avoid two separate appeal proceedings, unless Dr Kirby elected to pursue his s 159 appeal and abandon his s 159B appeal. Dr Kirby has given no indication that he would do that.
12. The prolongation of proceedings, particularly if two differently constituted Tribunals were required to determine them, the cost and expense, and the Tribunal hearing time which would be taken up by those proceedings which would otherwise be available for the determination of other protective proceedings militate against extending time for Dr Kirby to appeal.
13. As McHugh J observed in Gallo it is always necessary to consider the prospects of the appellant succeeding in the proposed appeals. Ultimately, success in an appeal results in the appeal tribunal or court granting different relief to that which was obtained at first instance. An appellant may establish an error on a point of law or other appealable error but fail to persuade the appellate court or tribunal that any different order should be made. In those circumstances, although grounds of appeal may have been made out, the appeal will be dismissed. Appeals are against orders, not against findings. An appellate court or tribunal may hold that a finding of fact by the court or tribunal at first instance was erroneous without that necessarily establishing a ground of appeal. Although not so expressed, and particularly in view of the s 150C decision of the Council on 7 March 2025, Dr Kirby's proposed appeals can be seen as appeals against findings, although the Council does not make "findings" in proceedings pursuant to s 150, 150A or 150C of the National Law: Smithson v Medical Council of New South Wales [2021] NSWCA 53.
14. Dr Kirby has failed to offer an explanation for his failure to appeal the most recent decision of the Council until almost 7 months after the decision was made, he thus being almost 6 months out of time. That time was clearly not as inordinate as the applicant in Gallo, but was nevertheless significant and unexplained. Although unrepresented in these proceedings, Dr Kirby has been represented by eminent Senior Counsel in the HCCC proceedings, which have been on foot during the time in which the decisions of the Council of which he now complains were made. It is ultimately unnecessary to refuse Dr Kirby's application for an extension of time to appeal by relying in any way on the absence of the explanation for delay. If Dr Kirby demonstrated that he had an arguable appeal(s) which had some potential utility, time to appeal would be extended.
15. As Dr Kirby's proposed appeals could serve no practical purpose, or have any utility, extending time to enable them to be agitated, if successful, would involve the Tribunal in making "merely declaratory" decisions. Unlike the Supreme Court pursuant to s 75 of the Supreme Court Act 1970 (NSW) the Tribunal has no jurisdiction to make "binding declarations of right" irrespective of "whether any consequential relief is or could be claimed". Even if, in some way which has not been identified, the Tribunal could grant declaratory relief in the context of an appeal pursuant to s 159 or s 159B of the National Law, the Tribunal would not extend the time to appeal in this case. In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10, at 581-582 the High Court held that"

"declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have 'a real interest' and relief will not be granted if the question is 'purely hypothetical'...or if 'the Court's declaration will produce no foreseeable consequences for the parties'."

1. In Commonwealth v BIS Cleanaway Ltd [2008] NSWCA 170 at [8], Hodgson JA reiterated that the absence of "practical consequences" of doing so militated against courts entertaining applications for purely declaratory relief.
2. For the foregoing reasons, as McHugh J held in Gallo, to extend the time for Dr Kirby to appeal either pursuant to s 159 or s 159B of the National Law would in the circumstances of this case be a waste of time, money and the Tribunal's resources.
3. For these reasons the Tribunal declines to extend time for Dr Kirby to appeal against any of the decisions identified in his Notices of Appeal.

1. The Council seeks an order that Dr Kirby pay its costs of these proceedings.
2. Dr Kirby has been wholly unsuccessful in these proceedings. The Tribunal has found that a number of Dr Kirby's prayers for relief do not fall within the Tribunal's jurisdiction. The Tribunal has also found that Dr Kirby's proposed appeals are without merit. In proceedings pursuant to the National Law, ordinarily, costs "follow the event": Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. Unless persuaded to the contrary, the Tribunal considers that, albeit involving relief pursuant to the CAT Act, s 60 of which creates a presumption that each party pay its own costs, Dr Kirby's applications are actually or purportedly in reliance on the National Law. Clause 13(1) of Schedule 5D to the National Law provides that the Tribunal may order a party to proceedings to pay the costs of another party to the proceedings. Unlike s 60 of the CAT Act, cl 13(1) does not require the Tribunal to find "special circumstances" in order to enliven the power to award costs. It is difficult to see how Dr Kirby could avoid an order that he pay the Council's costs of the proceedings as agreed or assessed on a party and party basis. However, as a matter of procedural fairness, the Tribunal will afford Dr Kirby the opportunity to file written submissions in opposition to such order, on any basis, and, if he does so, afford the Council the opportunity to respond to such submissions.

(1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with a hearing of these proceedings.

(2) The Applications filed 11 December 2024 and 8 January 2025 are dismissed.

(3) Leave to extend the time for appealing against decisions of the Dental Council of New South Wales of 15 December 2015, 18 December 2015, 27 January 2016, 12 February 2016, 29 May 2020, 7 August 2020, 12 January 2023, 17 May 2023 and 20 May 2024 is refused.

(4) That, unless within 21 days the Appellant files and serves written submissions not exceeding 7 pages in length (inclusive of any attachments) in opposition to such course, the Appellant pay the Respondent's costs of and incidental to the proceedings as agreed or assessed on a party and party basis.

(5) In the event that the Appellant files submissions pursuant to order (4) the Respondent file and serve written submissions in reply not exceeding 5 pages in length (inclusive of any attachments) within 42 days of the date of these orders.

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