Kirby v Dental Council of New South Wales [2025] NSWCATOD 162;

Blue Wedges Inc v Minister for Environment, Heritage and the Arts [2008] FCA 8

CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50

Coombes v Registrar of Aboriginal Corps (No 2) [2008] FCA 1078

Darcy v New South Wales [2011] NSWCA 413

Doppstadt Australia Pty Ltd v Lovick and Son Developments Pty Ltd (No 2) [2014] NSWCA 219

Dr Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 211 CLR 476; [2003] HCA 26

Ebner v Official Trustee (2000) 205 CLR 337; [2000] HCA 63

Fay v Moramba Services Pty Ltd [2010] NSWSC 725

Hansen v Monterey (Coolah) Pty Ltd [2012] NSWSC 1383

Hastings Point Progress Assn Inc v Tweed Shire Council (No 3) [2010] NSWCA 39

Health Care Complaints Commission v Do [2014] NSWCA 307

Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 158

Health Care Complaints Commission v Philipiah [2013] NSWCA 342

Hogan v Trustee of the Roman Catholic Church (No 2) [2006] NSWSC 74

Isbister v Knox (2015) 255 CLR 135; [2015] HCA 20

Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59

Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333; [1912] HCA 69

Northern Territory of Australia v Sangare (2019) 266 CLR 164; [2019] HCA 25

Nudd v Mannix [2009] NSWCA 32

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 59

Re Refugee Review Tribunal; ex parte H (2001) 75 ALJR 982

Reisner v Bratt [2004] NSWCA 22

Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 133

Smits v Roach (2006) 227 CLR 423; [2006] HCA 36

Szebel v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63

Tomasevic v Ravaglini [2007] VSC 337

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Health Professional Councils Authority (Respondent)

1. On 29 August 2025 the Tribunal dismissed applications for a range of orders, filed by Dr Kirby (Dr Kirby) on 11 December 2024 and 8 January 2025, and refused leave to extend the time for appealing against decisions of the Dental Council of New South Wales (the Council) which were made on a number of dates between 2015 and 2024. The Tribunal ordered that, unless Dr Kirby filed submissions in opposition to such order, he pay the Council's costs of the proceedings on a party and party basis.
2. On 29 September 2025, Dr Kirby filed submissions opposing any order for costs against him pursuant to the Tribunal's orders, and sought orders that:

"1 The costs order made on 29 August 2025 be set aside, and that there be no order as to costs.

2 In the alternative and that in any event, the question of costs be reserved or stayed pending determination of the Practitioner's Application for Leave to appeal.

3 That costs be apportioned so that the practitioner is not required to pay any costs referable to issues caused or expanded by the Dental Councils/HPCA's conduct identified below; or, further in the alternative, that the Dental Council/HPCA pay the practitioner's costs of the Appeal/Review and any interlocutory steps reasonably caused by their conduct.

(f) such further or other order [sic] orders as the Tribunal deems applicable."

1. On 15 October 2025 the Council filed submissions opposing the relief sought by Dr Kirby, and seeking that the Tribunal make orders with respect to costs in the terms envisaged by the orders of 29 August 2025.

1. Neither party sought an oral hearing of the costs dispute. The parties are familiar with the provisions of s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) having consented to an order pursuant to that provision dispensing with an oral hearing of the proceedings which were determined on 29 August 2025. The Tribunal is accordingly satisfied that the parties have had an opportunity to make submissions in opposition to an order dispensing with a hearing of the costs dispute.
2. The Tribunal is satisfied that it is appropriate to determine the proceedings without a hearing in reliance upon the written submissions of the parties and, in the context of a costs dispute, the reasons for the Tribunal's decision of 29 August 2025. Accordingly, the Tribunal dispenses with a hearing of the costs dispute pursuant to s 50(2) of the CAT Act.

Whether the costs dispute should now be determined, as the Council seeks or adjourned, as Dr Kirby seeks

1. In support of his submission that the Tribunal should reserve costs until his intended appeal is determined, Dr Kirby submitted only that, having lodged an appeal against the decision of 29 August 2025 it "would be premature and unjust to enforce a costs order before the resolution of that appeal". Dr Kirby did not otherwise make submissions with respect to the issue.
2. The Council submitted that the Tribunal should determine the costs issue which was "separate from questions of its enforcement and whether the order should be stayed pending an application for leave to appeal", submitting that it was open to Dr Kirby to make an application to stay the costs order pending the determination of his application for leave to appeal. The Tribunal agrees with that contention.
3. The Tribunal considers the interests of justice would be better served by determining the costs dispute now, rather than leaving the issue of costs in abeyance until the determination of Dr Kirby's appellate challenge to the decision of 29 August 2025. If costs are determined now, an appeal by either party in relation to any costs decision would be likely to be heard with Dr Kirby's appellate proceedings. So doing would be unlikely to add significantly to the cost of Dr Kirby's application for leave to appeal. If successful with his appellate challenge, having regard to the basis of the Council's claim for costs- Dr Kirby's lack of success in the proceedings- a challenge to any costs order against Dr Kirby would be likely to result in his appeal against a costs order succeeding. Determining the costs dispute now would avoid the potential for further submissions with respect to costs at first instance after Dr Kirby's appellate challenge is determined, and two appellate proceedings with respect to related issues.

1. Under the heading, "governing principles", Dr Kirby identified, correctly, the decision of the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 as the "governing authority on costs". Dr Kirby acknowledged that "Philipiah establishes that, unlike in ordinary civil litigation, there is a tendency in disciplinary and occupational matters for costs to follow the event, given the protective and public interest functions of such proceedings", but that Philipiah "equally recognises that costs will not be awarded where the successful party has engaged in disentitling conduct or misconduct of a kind that makes it unjust to burden the other party with costs".
2. At its simplest, "the event" is the ultimate outcome of a claim or counter-claim, or, as sometimes defined, the practical result of a particular claim (Avopiling Pty Ltd v Bosevski [2018] NSWCA 146). The "practical result" may be determined by reference to the matters over which the parties joined issue, and who succeeded on them (Hansen v Monterey (Coolah) Pty Ltd [2012] NSWSC 1383). The Tribunal is satisfied that the decision of 29 August 2025 was an "event", and that the Council succeeded on all issues over which the parties joined issue. The issue for determination is whether, individually or cumulatively, the matters relied on by Dr Kirby justify wholly or partially declining to order that costs follow the event.
3. Dr Kirby identified, correctly, the source of the Tribunal's power to award costs in these proceedings as clause 13 of Schedule 5D to the Health Practitioner Regulation National Law (NSW) (National Law), which provides that the Tribunal may order any party to pay costs "as decided by the Tribunal", displacing the requirement articulated in s 60 of the CAT Act that "special circumstances" be demonstrated before costs can be awarded. Dr Kirby emphasised in the context of his submissions with respect to governing principles, and in detail in his subsequent submissions, the alleged "disentitling" conduct of the Council.
4. Dr Kirby submitted, correctly, that where a party's conduct "has unnecessarily expanded or prolonged the proceeding, or pressed issues that should have been confined, NCAT has refused or reduced" the party's costs and, in appropriate cases, ordered costs in favour of the practitioner (Health Care Complaints Commission v Dowla (No. 2) [2019] NSWCATOD 156). Dr Kirby submitted, again correctly, that the Tribunal retains a discretion to depart from the general rule where "fairness and justice require", such determination being by reference to "all circumstances, including fairness and public interest". In McCusker v Rutter [2010] NSWCA 318, the Court of Appeal confirmed that costs may not follow the event when the "overall justice of the case" warrants some other order.
5. The general rule with respect to costs may be departed from, either wholly or in part, in circumstances where each party has had substantial success, in which case the Tribunal may exercise its discretion to make no order as to costs (Hogan v Trustee of the Roman Catholic Church (No. 2) [2006] NSWSC 74), or where a successful party has incurred unnecessary costs (Jones v Sutton (No. 2) [2005] NSWCA 203), or in an appropriate case the successful party's costs may be capped pursuant to UCPR r42.4 (Nudd v Mannix [2009] NSWCA 32). Dr Kirby relies on the second of these principles.
6. Where the deficiencies in the unsuccessful party's case are equalled or exceeded by those of the successful party the general rule may be departed from or either no, or only a partial costs order made (Rural and General Insurance Broking Pty Ltd v APRA [2009] ACTSC 67). Dr Kirby makes allegations about the conduct of the Council which, if established, could enliven this principle.
7. The Council does not dispute the principles identified by Dr Kirby.

1. In view of the form in which Dr Kirby has articulated his case, and the Council has responded to such articulation, it is appropriate to consider Dr Kirby's submissions with respect to particular topics, the Council's response to such submissions, and the Tribunal's determination with respect to each issue. Before doing so, the Tribunal records the over-arching basis on which the Council disputes Dr Kirby's contentions with respect to disentitling conduct on its part which were submitted by the Council on 10 February 2025 at [37] that:

"The conditions imposed on (Dr Kirby's) registration on 12 February 2016 are exactly as they appear on the website of the AHPRA (save for the private condition which does not appear on the website). A copy of the conditions as extracted from the s 150A reasons for decision, and a copy of a printout from the AHPRA website are each attached to these submissions. The applicant's complaint appears to be that some of the conditions have been complied with (and so he says they should be removed) and the explanation about what is in and out of condition 1 does not appear on the website. He appears to have made amendments to the conditions that go beyond the letter at page 34 (compare page 34, with page 14ff of the interim application) and has removed conditions e.g., 2 (not to undertake solo dental practice), 3 (reporting). The website is not inaccurate because it does not spell out the detail in the page 34 correspondence."

Misleading of the Tribunal as to conditions by the Dental Council

1. Dr Kirby submitted that the Council "led the Tribunal to believe that the conditions published on the AHPRA national register were the true and current conditions on the practitioner's registration". So doing was submitted to be "misleading and disentitling conduct under the Philipiah framework". Dr Kirby disputed the Council's contentions with respect to the accuracy of the National Register at various times. Dr Kirby submitted that the Council's "submission was factually incorrect" and that the Dental Council's "stance on the matter was false, misleading and deceptive". That was submitted to be so:

"because the conditions underwent a reconsideration which led to fundamental and implicit alterations between 12 February 2016 and 17 March 2016, but the register and public record continued to reflect incorrect restrictions thereby misleading the public and employers and denying them (inter alia) emergency health services for over nine (9) years. The failure by the Dental Council to notify AHPRA of the true conditions coupled with the more serious conduct of the Council attempting to shield itself from scrutiny of the substantive alterations to the applicant's conditions by categorising the alterations clarifications was misleading and represented an attempt to minimise the seriousness of its regulatory failings."

1. Dr Kirby asserted that "similar omission(s) constituting misleading and deceptive statements were made by the Council in their reply submissions", resulting in the Tribunal and Dr Kirby being misled as to the true state of the National Register. This was submitted to have prolonged the proceedings unnecessarily, and placed Dr Kirby at a disadvantage. Dr Kirby submitted that, at the time the Council was advancing those propositions it or the HPCA had provided a "contrary Private Clarification" to him "and/or otherwise knew that the public entry did not reflect the actual operative conditions". The Council was submitted to have misled the Tribunal in 2016, and again in 2025. In summary, Dr Kirby submitted that the:

"regulator's persistence with an inaccurate position - and its failure to promptly to [sic] correct the public record - constitutes disentitling conduct within the Philipiah framework. This conduct by the Council and its representation (i) unreasonably expanded and prolonged the litigation; (ii) required the practitioner to address and rebut a false premise and (iii) increased hearing and preparation time. Apart from conduct constituting bad faith, a public regulator and its counsel have a duty to assist the Tribunal with accurate submissions and to correct any misstatements once identified. Pressing an inaccurate premise when the regulator could verify and correct the public register unfairly shifted the cost burden; costs should therefore be refused (or apportioned from the date of the misstatement."

1. Under the heading "Mischaracterisation of Alteration as "Clarification" by the Dental Council", Dr Kirby submitted that between 12 February 2016 and 17 March 2016 the Dental Council "altered the appellant's conditions" and that "Rather than acknowledging this alteration, the Council characterised it as a mere clarification. This was misleading: a comparison of the original and altered conditions shows fundamental and implicit material differences that could not be described as clarificatory. This mischaracterisation obscured the fact that an appellable decision had been made under s 159(1)(b) of the National Law".
2. Under the heading "Persistence with an inaccurate public record by the Dental Council" Dr Kirby submitted that the Council/HPCA had "failed to take reasonable steps to correct the AHPRA register once it had privately "clarified" the meaning or scope of conditions to the practitioner. This created a divergence between the private position and the public record, generating confusion and litigation risk. It is conduct that unnecessarily enlarged the controversy and is disentitling under the Philipiah framework".
3. Dr Kirby further submitted that the Council's private "clarification" of 17 March 2016 "made plain that the public register did not reflect the operative conditions. The register was never corrected. As public regulators and model litigants, the Council/HPCA were obliged to act with candour and to minimise costs, which included promptly rectifying a known public record error and not pressing submissions premised on that error." The Council's asserted failures were submitted to have "unreasonably enlarged the proceedings and shifted a cost burden onto a self-represented" party. Such conduct was submitted to have constituted disentitling conduct pursuant to Philipiah.
4. Dr Kirby reiterated his contentions with respect to "unreasonable expansion of issues", submitting that:

"By refusing to acknowledge the existence of the alterations to the conditions let alone correct them the regulator necessitated an appeal/review to restore lawful practice parameters and correct public facing information. Issues at hearing that should have been narrow (interpretation/application of conditions) were expanded to include reputational impact, scope of practice, and protective risk analysis derived from the incorrect public record. The regulator's conduct costs and delayed resolution contrary to the Tribunal's case management objectives."

1. The Council's submissions addressed Dr Kirby's contentions globally, submitting that nothing asserted by Dr Kirby, in reliance upon anything said or done by the Council, or omitted to have been done by the Council or otherwise established disentitling conduct. The Council submitted that Dr Kirby's "voluminous and confusing materials", had obliged the Council to review and respond to Dr Kirby's case and, the Council submitted, there was "no inappropriateness" in "trying to understand and meet the case against it".

1. Dr Kirby's submissions agitate two issues. The first is the alleged false, misleading and deceptive conduct of the Council in the proceedings. The second is the alleged unreasonable prolongation of the proceedings.
2. As the Council has reiterated in its submissions, the Tribunal is not currently determining an appeal against the decision of 29 August 2025. Unless and until that decision is disturbed, or the Tribunal is confronted with evidence which objectively materially undermines its decision, which it has not been, the Tribunal determines the costs dispute in reliance upon its decision and the findings and reasons recorded in it. In support of his case on costs, in substance, Dr Kirby has advanced allegations which he unsuccessfully agitated in the applications which were determined on 29 August 2025. If Dr Kirby demonstrates appealable error, appellate disturbance of that decision, and any costs order made in reliance upon the decision, or material findings in it would be likely, but determining the costs dispute does not involve revisiting the merits of the decision of 29 August 2025. Dr Kirby's allegations with respect to the first issue identified above are not substantiated.
3. The Tribunal is not satisfied that anything done by the Council in the proceedings which were determined on 29 August 2025 gave rise to an unreasonable, or any, expansion of the issues requiring determination. As the Tribunal's decision of 29 August 2025 recorded, and as was his right, Dr Kirby made comprehensive written submissions in support of his applications and in rejection of the Council's submissions in opposition to them. The Council did no more than respond, in a concise and measured way, to Dr Kirby's submissions. Nothing done by the Council either expanded the issues, or delayed the resolution of the proceedings. In what way Dr Kirby was allegedly disadvantaged by the Council's conduct of the proceedings has not been identified, and is not apparent from the record of the proceedings.

Denial of procedural fairness/lack of clarity caused by Dental Council's disentitling conduct

1. Dr Kirby submitted that any "lack of clarity" in his submissions concerning the Tribunal's "perception of its jurisdiction stem directly from the Council's conduct that included the Dental Council steadfastly refusing to admit the existence of the alterations to the applicant's conditions, let alone to correct them". Dr Kirby submitted that such "obdurate refusal" created the "uncertainty upon which Coleman SC ADCJ relied in characterising the appeal as misconceived, and stating that the proposed appeals had ceased to have "any possible utility" and that (Dr Kirby) "did not identify the nexus". Dr Kirby submitted that it would be "unjust to penalise" him in costs where "any perceived lack of clarity in relation to utility, nexus and jurisdiction was the direct product of the (Council's) own refusal to disclose and acknowledge material facts". As articulated throughout its submissions, the Council rejected Dr Kirby's contentions.

1. As Dr Kirby's submissions with respect to the principles governing the costs dispute appear to acknowledge, having been unsuccessful in the proceedings, the presumption that he should pay the Council's costs is enlivened. Dr Kirby bears the onus of persuading the Tribunal that the presumption should not apply, or apply to only a limited extent.
2. To the extent that Dr Kirby's submissions challenged the merits of the decision of 29 August 2025, such submissions do not advance his case on costs. Dr Kirby bore the onus of persuading the Tribunal that it had jurisdiction to grant some of the relief sought by him and/or that it should extend time to appeal against decisions made by the Council between 205 and 2024. Dr Kirby was wholly unsuccessful in the proceedings. In view of the submissions of the Council, it was for Dr Kirby to demonstrate the possible utility of the relief he sought. The Tribunal found that he had not done so. Dr Kirby's submissions do not engage with the Council's submissions, which the Tribunal accepted, with respect to the lack of possible utility of his proposed appeals. The Tribunal found that Dr Kirby had not established, in the face of the Council's contentions, that the Tribunal had jurisdiction to grant some of the relief he sought.
3. With respect to him, Dr Kirby's assertions that his failure to demonstrate "utility, nexus and jurisdiction" was referable to any conduct of the Council have not been made out. The Tribunal does not find that any deficiencies in Dr Kirby's case were referable to the conduct of the Council. Dr Kirby formulated and presented his case. The Council raised squarely, and successfully why it should be dismissed. As recorded later in these reasons, the Tribunal dealt with the substance, or apparent substance of Dr Kirby's case knowing that he was a litigant in person. The Tribunal was obliged to afford Dr Kirby procedural fairness. That obligation did not extend to suggesting how he might best present his case.

Breach of statutory obligations under the CAT Act by the Dental Council

1. Dr Kirby submitted that the Council's conduct "contravened express provisions of the CAT Act", s 38(6) and s 71 being identified in that regard. With respect to s 38(6), which provides that the Tribunal is to "ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings", Dr Kirby submitted that the Council "failed to disclose the critical fact of the 2016 alteration, depriving the Tribunal of necessary material to properly determine jurisdiction". Apart from Dr Kirby's assertion in that regard, the evidence does not support finding that the Council failed to disclose relevant or necessary evidence to enable the Tribunal to "properly determine jurisdiction". Dr Kirby has not demonstrated how the assertedly withheld evidence could have changed the outcome of the proceedings.
2. With respect to s 71 of the CAT Act, which provides that "a person must not, in any proceedings or application to the Tribunal, provide any information, or make any statement, to the Tribunal knowing that the information or statement is false or misleading in a material respect", Dr Kirby submitted that "By describing the alteration as a clarification and by maintaining that the AHPRA register was accurate, the Council provided material that was false or misleading in a material particular", contrary to s 71 and "comprising Tribunal procedure" under s 38(6) of the CAT Act.
3. The Council disputed that it had ever withheld or misrepresented relevant material and that the documents which Dr Kirby relied on to demonstrate that there had been an "alteration" of the conditions applicable to his registration were in evidence before the Tribunal.

1. Although possibly relevant in any appellate challenge to the decision of 29 August 2025, the Tribunal is not persuaded that Dr Kirby's submissions advance his challenge to the Tribunal's proposed costs order. The evidence does not establish the factual basis of Dr Kirby's submissions.

Breach of model litigant obligations and abuse of process

1. Dr Kirby submitted that, as a model litigant, the Council and its representative, the HPCA were "public regulatory authorities which were bound to act with scrupulous honesty, candour and fairness assisting the Tribunal, provide fairness to self-represented practitioners, promptly acknowledge and correct known errors, avoid technical defences, pursue a "win at all costs" approach and take steps that did not unnecessarily increase costs". The Council accepted that it was a model litigant, but disputed that it had failed to discharge its obligations as a model litigant.
2. Dr Kirby submitted that the Council had breached its obligations as a model litigant "in all respects". Dr Kirby articulated in detail (page 4 of his submissions) the respects in which the Council was submitted to have abused the processes of the Court "seeking to shield its maladministration from scrutiny while exposing (Dr Kirby) to the burden of defending mischaracterised facts". Dr Kirby further submitted that the Council's "failure to acknowledge the alteration and its misleading submissions breached those obligations". Dr Kirby submitted that the "regulator failed to acknowledge and correct its error regarding the conditions published on the APHRA public register, and persisted with submissions premised on that error such conduct for which falls materially below the model litigant standard and, in its cumulative effect, amounts to an abuse of process or, at the least, oppressive litigation conduct that are necessarily expanded and prolonged the proceedings".
3. In support of his contentions, Dr Kirby referred to the Judgment of Griffith CJ in Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333; [1912] HCA 69, at [342] in which his Honour criticised a public body for failing to uphold model litigant standards. In the passage upon which Dr Kirby appears to rely, Griffith CJ observed "I am sometimes inclined to think that in some parts - not all - of the Commonwealth, the old fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken."
4. By reference to provisions of the model litigant policy issued by AHPRA in 2012, Dr Kirby submitted, correctly, that the Council was required to act "honestly and fairly in handling litigation" which included "acting with complete propriety, fairly and in accordance with the highest professional standards". Dr Kirby referred to the provision of the policy involving minimisation of costs of litigation by "not requiring another party to prove a matter the National Law entity knows to be true". Dr Kirby submitted that the combined effect of the matters advanced by him was to demonstrate that the conduct of the Council in these proceedings "amounts to an abuse of process or oppressive litigation that unnecessarily expanded and prolonged these proceedings".
5. The Council submitted that Dr Kirby's allegations were made in the absence of "any evidence or proper particularisation", and submitted that the Council had complied with its obligations as a model litigant and had not caused the proceedings to become unnecessarily expanded. The Council submitted that its approach was also fair to the applicant as a self-represented litigant.

1. As recorded earlier in these reasons, the Tribunal is concerned with a costs application arising out of proceedings in which Dr Kirby was wholly unsuccessful. The evidence does not establish that the Council breached its obligation as a model litigant, or engaged in any conduct in the proceedings which was unfair, deceptive, misleading, a departure from the "standards of fair play" expected of it, or otherwise warranting criticism. Dr Kirby was the applicant in the proceedings which were determined on 29 August 2025. As was his right, Dr Kirby agitated the issues which he chose to agitate. By agreement, Dr Kirby's case was determined by reference to the written submissions of the parties. They speak for themselves, and provide no basis for Dr Kirby's submissions in relation to the conduct of the Council or its asserted impact on the scope or duration of the proceedings. Dr Kirby made extensive and comprehensive submissions. The Council responded to those submissions in a robust, but concise and appropriately way.
2. To the extent that the proceedings were prolonged, which the Tribunal does not find that they were, that was not referable to anything done or omitted to be done by the Council. Dr Kirby's complaints pursuant to this topic do not establish disentitling conduct as a model litigant, or any other basis on which the Council should be denied the fruits of its success. It is to be remembered that, for reasons which were not explained, Dr Kirby first commenced proceedings in 2024 with respect to matters which allegedly occurred over almost a decade prior to his doing so, to which the Council responded. As the Tribunal's reasons confirm, Dr Kirby's lack of success was not reliant upon any adverse finding of fact, but on the Tribunal's finding that the facts relied on by him did not establish what Dr Kirby needed to in order to succeed.

1. Dr Kirby reiterated the thrust of his submissions with respect to the Council, and the regulators "disentitling conduct". To the extent that the regulator's conduct may have been deficient, which has not been established, in the absence of evidence establishing that such conduct was caused or contributed to by the Council, that cannot assist Dr Kirby's case. The evidence does not establish such matters. The evidence does not establish that the Council's conduct in the proceedings "caused" any of the effects of which Dr Kirby accuses it. Nor does it establish that the Council's conduct of the proceedings was other than "proportionate" to the issues which Dr Kirby agitated.

1. Dr Kirby asserted that he had been denied procedural fairness, and that the determination of 29 August 2025 was infected with apprehended bias. Dr Kirby submitted, accurately, that Principal Member Coleman SC ADCJ had presided over disciplinary proceedings against him in June 2024 and, as part of a four Member panel, had found Dr Kirby guilty of unsatisfactory professional conduct. By reference to Ebner v Official Trustee (2000) 205 CLR 337; [2000] HCA 63 and Isbister v Knox CC (2015) 255 CLR 135; [2015] HCA 20, Dr Kirby submitted that a fair minded observer might reasonably apprehend that Coleman SC ADCJ may not have brought an impartial mind to the costs determination.
2. Dr Kirby submitted, in reliance upon Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 211 CLR 476; [2003] HCA 26 that decision of 29 August 2025 was made on "grounds not pleaded by the Council and not ventilated by the parties" and was thus procedurally unfair (Szebel v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63). It was accordingly submitted that, in those circumstances, there should be no order for costs or "at least that costs be reserved or stayed pending appeal on the bias ground".
3. In response, the Council disputed Dr Kirby's submissions with respect to apprehended bias and submitted that Dr Kirby had been given the opportunity to make written submissions in relation to costs, and had done so. The Council submitted that Dr Kirby's submissions with respect to apprehended bias were "without foundation". By reference to Ebner, Re Refugee Review Tribunal; ex parte H (2001) 75 ALJR 982; CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50, the Council submitted, correctly in the Tribunal's view, that the test of apprehended bias involved two steps. The first was identifying what might lead the decision maker to determine a case other than on its legal and factual merits. The second was that a logical connection must be established between the identified thing and the feared deviation from deciding the case on its merits.
4. The Council submitted that there was no "commonality of issues between the present matter and the HCCC Stage 1 proceedings". The Council submitted, accurately in the Tribunal's view, that the present proceedings "did not involve factual issues such as credit, or professional misconduct/unsatisfactory professional conduct issues". The Council further submitted that Dr Kirby knew that Coleman SC ADCJ was presiding over the present matter and did not raise any objection to his doing so, in any terms or at any previous time.
5. The Council submitted that, although a litigant in person, Dr Kirby was "not unfamiliar with litigation in the Tribunal" and should be "taken to have waived any potential objection" (Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44; Smits v Roach (2006) 227 CLR 423; [2006] HCA 36; Bilgin v Minister for Immigration and Multicultural Affairs [1997] FCA 1022; (1997) 149 ALR 281). The Council submitted, correctly in the Tribunal's view, that any apprehended bias arguments were not relevant to the determination of the costs dispute, although they may be raised in the appellate proceedings.
6. The Council submitted that, in its decision of 29 August 2025, at [30], the Tribunal recorded that the senior judicial officer determining the proceedings was the presiding member in the HCCC proceedings against Dr Kirby which, subject to the outcome of other litigation, were likely to be listed for a Stage 2 hearing at some future time. The Tribunal recorded that, although neither party raised any objection, as Dr Kirby was unrepresented, the Tribunal satisfied itself that Dr Kirby could not be prejudiced by that circumstance "given that no part of the present proceedings 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".

1. Although, as submitted by the Council, Dr Kirby's allegations of apprehended bias are matters for appellate consideration, the Tribunal is satisfied that Dr Kirby has had the opportunity to make submissions in opposition to a costs order in favour of the Council, which he has clearly done. In any event, Dr Kirby has not identified the factual basis on which he alleges apprehended bias.
2. Dr Kirby's contention that part of the procedural unfairness which allegedly infected the decision of 29 August 2025 was referable to the matter being "decided on the papers" cannot be accepted. As the Tribunal recorded, [17]-[18], Dr Kirby agreed to his applications being determined in that manner.
3. Dr Kirby's contention that the Tribunal "pivoted" to "threshold grounds rather than the foreshadowed s 55 contest" overlooks what the Tribunal's reasons recorded in that regard ([24]). Although possibly relevant in an appellate context, Dr Kirby's contention that the Tribunal's decision was made on grounds not pleaded by the Council and not ventilated by the parties" does not assist him in relation to costs. Dr Kirby's submissions, to which the Council responded, and with which the Tribunal engaged in its reasons for decision, clearly addressed the matters which Dr Kirby, as the applicant, presumably considered to be relevant in that regard and, in substance, "pleaded".

1. Dr Kirby referred to his being "unrepresented" in these proceedings. The Tribunal referred at [44] to that circumstance, and to the allowance that was made in reliance upon it. Dr Kirby complained that although "due allowance" was assertedly given "no particulars were identified of the actual adjustments or accommodations said to have been made which should be considered in light of courts having stressed that self-represented litigants are entitled to a fair trial" (Tomasevic v Travaglini [2007] VSC 337). What "adjustments or accommodations" should have, but were allegedly not made was not identified. Dr Kirby submitted that failing "to provide meaningful accommodation while still imposing costs is unfair and legally unsound" and that the "asserted allowance" for his being unrepresented was "illusory to at least the extent that the Tribunal proceeded in a manner that required close legal analysis pivoting away from s 55 to jurisdiction/utility grounds, without ensuring that Dr Kirby, as a self-represented litigant, had proper notice or an opportunity to respond". Dr Kirby submitted that courts have "emphasised that fairness requires real, not formulaic, allowance for self-representation".
2. The Council disputed Dr Kirby's contentions and submitted that self-representation is not a reason to make a costs order against a litigant (Northern Territory of Australia v Sangare (2019) 265 CLR 164; [2019] HCA 25; Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159).

1. In Reisner v Bratt [2004] NSWCA 22, the Court of Appeal reiterated that a court, and thus a tribunal, must give unrepresented litigants a fair hearing, and that it may be appropriate to give some assistance in order to fulfil that duty, but cannot do so in a way that conflicts with its role as an impartial adjudicator. The Court observed that, where a case is brought by an unrepresented litigant, and material required for the adequate determination of the proceedings is not available or presented, it is not necessarily the case that the court should itself investigate whether such material exists, and if so, seek to have it brought before the court so that it can be considered. Where the deficiency is obvious, and can be cured without prejudice to the opposing party, it may be appropriate to have such material made available, but, as an impartial adjudicator, a court cannot take steps to improve a party's case by investigating whether there is material available to support the case, and then taking steps to obtain it.
2. As is not in doubt, Dr Kirby is an intelligent and experienced litigant. The contents of his submissions reveal his awareness of the legal issues in both proceedings. Unless an appellate court or tribunal determines otherwise, otherwise the Tribunal considers that, other than by intervening in ways contrary to the principles reiterated in Reisner, the Tribunal failed to afford Dr Kirby procedural fairness in these proceedings.
3. Dr Kirby's submissions, though potentially relevant in an appellate context, do not assist him in relation to the costs issue. Dr Kirby's submissions, and the issues raised by him required "close legal analysis". Whether, as Dr Kirby alleges, the Tribunal failed to give proper, genuine and realistic consideration to the merits of his case (Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 133), or, if it did, the Tribunal erred in any of the ways Dr Kirby asserts is potentially for appellate determination.

1. Dr Kirby submitted that the Tribunal dismissed part of his application "without identifying a statutory footing" under s 55 of the CAT Act. Dr Kirby submitted that the dismissal of his application was thus "without statutory footing" and "jurisdictionally defective" and that, as such, a costs order attached to such error should not stand. Dr Kirby thus submitted that the Tribunal should exercise its discretion with respect to costs in his favour in reliance upon the dismissal being "infected by error as to the legal basis", and that it would "be unfair and unreasonable to burden the practitioner with costs incurred because the Tribunal failed to specify and apply the correct s 55 limb". Dr Kirby did not identify the assertedly correct s 55 "limb".

1. As submitted by the Council, no part of the present proceedings involves determination of the merits Dr Kirby's challenges to the decision of 29 August 2025. The Tribunal, at [19]-[24] of its decision of 29 August 2025 identified the jurisdiction of the Tribunal. Unless and until disturbed on appeal, the Tribunal's orders of 29 August 2025 provide the measure of the parties' success in those proceedings. That measure is not in doubt.

1. Dr Kirby submitted that his applications were not "frivolous and raised significant public interest questions about the conduct of the Dental Council and by default the accuracy of the AHPRA national register as advertised and so informed to the public and this Tribunal by the Dental Council". Although without merit, the Tribunal has not suggested that Dr Kirby's applications have been "frivolous". Dr Kirby submitted that it would be contrary to the objectives of the National Law to "penalise (him) with costs for pursuing an appeal that sought to clarify the accuracy of information advertised to the public by Councils". For the reasons which he developed (page 6) in his submissions Dr Kirby submitted that he had raised issues of public importance.
2. The Council submitted that it was "not possible to view the proceedings as having been brought and pursued in the public interest" and that Dr Kirby "sought to pursue and/or to vindicate his own private interests". The Council submitted that courts have "generally rejected the notion that public interest litigants are subject to any different costs principles" (Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11).

1. Public interest considerations may influence the discretion with respect to costs (Oshlack), but do not constitute a general exception to the presumption (Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59). An element of public benefit in clarification of the law may give rise to the displacement of the presumption in favour of costs (Blue Wedges Inc v Minister for Environment, Heritage and the Arts [2008] FCA 8), particularly if the proceedings create certainty for future disputes (Darcy v New South Wales [2011] NSWCA 413). It is not sufficient that a case involves the resolution of an important question of law which is in the public interest, if the proceedings are of a private nature involving the pursuit of private interests (Coombes v Registrar of Aboriginal Corps (No 2) [2008] FCA 1078). The absence of broader implications for the community will generally preclude departure from the presumption (Hastings Point Progress Assn Inc v Tweed Shire Council (No 3) [2010] NSWCA 39).
2. As is not in doubt, Dr Kirby was the applicant in the proceedings which were determined on 29 August 2025. It is difficult to suggest in what way the issues raised by Dr Kirby had implications for anyone but Dr Kirby. The Tribunal found that the issues either fell beyond jurisdiction, or that their resolution had no private or public utility, and accepted the thrust of the Council's contention that, properly analysed, Dr Kirby's claims were for personal "vindication". The Tribunal is not persuaded that Dr Kirby raised any issues of other than private importance in the proceedings determined on 29 August 2025, or that he has established a basis for departure from the presumption that costs should follow the event on any of the public interest grounds which emerge from the authorities.

1. Dr Kirby submitted that the Tribunal had erred by, inter alia, failing to "give proper consideration to the full scope of the objective of protecting the health and safety of the public", and that, for the reasons which he advanced (submissions page 6) the Tribunal's decision was "unjust and contrary to principle". A costs order in those circumstances was submitted to be unjust. Dr Kirby referred to the decision of the Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307, at [34]-[41]. The Tribunal has considered the Court of Appeal's judgment. Whatever significance it may assume in an appellate context, Do does not assist Dr Kirby in the costs dispute. To the extent that Dr Kirby's submissions engage with the present dispute, as their terms confirm, they do not assist his case.

Inconsistency with NCAT's protective jurisdiction

1. Dr Kirby submitted that the Occupational Division of the Tribunal "exists to protect the public, not to punish practitioners through adverse costs orders". Dr Kirby further submitted that making a costs order against him "would deter other practitioners from raising legitimate concerns about regulatory conduct" which would "undermine public confidence in the disciplinary and appellate framework". Dr Kirby reiterated, by reference to Philipiah, that the discretion to order costs must be exercise judicially and not punitively and that "financial hardship, procedural fairness, and public interest are all relevant factors". Dr Kirby disputed that his applications for leave to extend time to appeal lacked "utility" as found by the Tribunal and submitted that his application "had real utility".
2. The Council disputed that the making of a costs order was punitive, and submitted that a costs order in its favour would serve to compensate the Council for its costs reasonably incurred in successfully defending Dr Kirby's applications.

1. There is no evidence before the Tribunal that making a costs order would entail "financial hardship" for Dr Kirby. Even if there was, that would not necessarily mean that costs would not be awarded (Adamson v Liu (No 2) [2009] NSWSC 864; Fay v Moramba Services Pty Ltd [2010] NSWSC 725). As recorded elsewhere in these reasons, the merits of the Tribunal's decision of 29 August 2025 are not relevant to determining the costs dispute. There is no evidence that a costs order against Dr Kirby would have a punitive effect. Even if it did have such effect, in the circumstances of these proceedings, that would not disincline the Tribunal to make a costs order. If a costs order is made, that would be to compensate the successful party, not to punish Dr Kirby, although such order may have a punitive effect (Dr Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90). The plain fact is that Dr Kirby was wholly unsuccessful with his applications. The evidence does not establish that imposing costs orders in cases which fail for jurisdiction or are wholly unsuccessful on the merits would deter other practitioners from commencing, maintaining or defending proceedings in which there were real issues to be determined, reasonable prospects of success and potential outcomes which had utility.

1. Dr Kirby submitted that if, contrary to his submissions, any of the factors relied upon by him individually might not justify a departure from the ordinary rule with respect to costs, the "cumulative effect of the Council's misconduct, procedural unfairness, failure to correct the record, breach of model litigant obligations, bias concerns and public issues strongly compels the conclusion that costs should not be imposed". For the foregoing reasons, the Tribunal does not agree that any of Dr Kirby's individual challenges has merit. In those circumstances, they can have the cumulative effect for which Dr Kirby contends.

1. Having been wholly unsuccessful in the proceedings determined on 29 August 2025, and having failed to demonstrate disentitling conduct by the council, there is no occasion for the Tribunal engage in an "impressionistic" approach on a "relatively broad brush basis" (Doppstadt Australia Pty Ltd v Lovick and Son Developments Pty Ltd (No 2) [2014] NSWCA 219). Nor is there occasion to analyse the costs incurred by the Council on any reduced percentage or empirical basis. Dr Kirby having not persuaded the Tribunal to depart from the usual order, the Tribunal will order that he pay the Council's costs of the proceedings as agreed or assessed on a party and party basis.

(1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) dispense with a hearing of the costs dispute.

(2) Dr Kirby pay the costs of the Respondent as agreed or assessed on a party and party basis.

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.