Kirby v Dental Council of New South Wales

AQO v Minister for Finance and Services (2016) 93 NSWLR 46; [2016] NSWCA 248

Boyland v Commonwealth Bank of Australia [2025] NSWCATAP 160

Commissioner of Police, NSW Police Force v FYH [2024] NSWCATAP 176

Grabovsky v Department of Communities and Justice [2025] NSWCATAP 192

Health Care Complaints Commission v Quach [2015] NSWCATOD 2

Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32

Houda v Seraphim [2025] NSWCATAP 135

Konstantinidis v Council of the Law Society of New South Wales [2018] NSWCA 59

Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; [2005] HCA 28

Patrick v Secretary, Department of Communities and Justice [2025] NSWCATAP 206

Quach v Civil and Administrative Tribunal of New South Wales [2022] NSWSC 1091

SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55

Singh v Health Care Complaints Commission [2023] NSWCATAP 240

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

Health Professional Councils Authority (Respondent)

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

1. This is an internal appeal from the decision of the Tribunal made on 29 August 2025 in proceedings in the Occupational Division (OD) between Dr David William Kirby (Dr Kirby) and Dental Council of New South Wales (the Council) whereby it relevantly dismissed two applications of Dr Kirby so far as he claimed relief which does not fall within the jurisdiction of the Tribunal and otherwise reused leave to extend the time for appealing against certain decisions of the Council: Kirby v Dental Council of New South Wales [2025] NSWCATOD 116 (the OD proceedings or the 2025 OD decision according to the context).
2. At the direction of the Appeal Panel the parties have addressed the issue of whether the Appeal Panel has jurisdiction to determine the appeal (the jurisdiction issue).
3. I have decided to dismiss on the appeal on the ground that the Appeal Panel does not have jurisdiction to determine the appeal.

1. Since 7 February 1990, Dr Kirby has been registered with the Australian Health Practitioner Regulation Agency as a general dentist.
2. On 18 December 2015, the Council suspended Dr Kirby's registration pursuant to s 150(1)(a) of the Health Practitioner Regulation National Law (NSW) (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 decisions under s 150 and s 150A of the National Law was dismissed: Kirby v Dental Council of New South Wales [2017] NSWCATOD 64 (the 2017 OD decision).
5. On 6 December 2018, Dr Kirby's appeal to the New South Wales Supreme Court against the 2017 OD decision was dismissed: Kirby v Dental Council of New South Wales [2018] NSWSC 1869 (the 2018 NSWSC decision).
6. On 12 May 2020, the New South Wales Court of Appeal granted Dr Kirby's application for leave to appeal against the 2018 NSWSC decision and dismissed the appeal: Kirby v Dental Council of NSW [2020] NSWCA 91 (the 2020 NSWCA decision).
7. On 8 October 2020, the High Court of Australia dismissed Dr Kirby's application for special leave to appeal against the 2020 NSWCA decision: Kirby v Dental Council of New South Wales [2020] HCASL 201.
8. On 3 December 2020, the High Court of Australia dismissed Dr Kirby's application for leave to reopen his application for special leave to appeal against the 2020 NSWCA decision: In the matter of an application by David William Kirby [2020] HCASL 261.
9. 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 in relation to the request by Dr Kirby.

"1. Set aside the Decision of the Dental Council NSW made on 20 May 2024.

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.

8. Set aside the related Decisions and notifications with respect to paragraph 1 above of the Dental Council NSW and/or members of the Dental Council/HPCA on behalf of the Dental Council dated 29 May 2020, 7 August 2020, 12 January 2023, 17 May 2023, 20 May 2024 rejecting the applications of the Applicant.

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 @hone 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.

1. On 8 January 2025, Dr Kirby lodged a further application styled "Urgent Application for Emergency Interim Order" in the OD proceedings in which he set out 11 orders he was seeking (the 8 January 2025 Kirby application).
2. On 17 January 2025, the Council lodged an application for miscellaneous matters seeking orders that the OD proceedings be dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and Dr Kirby pay its costs of the OD proceedings (the dismissal application). The grounds for the dismissal application were that the Tribunal lacked jurisdiction pursuant to ss 159 or 159B of the National Law and so the OD proceedings should be dismissed as they were "misconceived and lacking in substance" and "not competent".
3. 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 (the 7 March 2025 Council decision).
4. On 31 March 2025, Dr Kirby lodged submissions styled "Practitioner Amended Submissions" in which he relevantly stated that he no longer pressed the 8 January 2025 Kirby application, and set out 11 orders he was seeking (the 31 March 2025 Kirby submissions).
5. On 29 August 2025, the Tribunal constituted by Coleman SC ADCJ, Principal Member, made the 2025 OD decision comprising:

"(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."

(2) the following statement of reasons (the dismissal reasons) in which:

(a) it sets out introductory matters as to the OD proceedings by summarising the 11 December 2024 Kirby application, the 8 January 2025 Kirby application and the dismissal application ([1]-[4]);

(b) it sets out the relevant statutory provisions being ss 159, 159B and 159C of the National Law, s 41 of the NCAT Act (which confers power to extend time, and r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (which specifies a period of 28 days to lodge an external appeal from the later of the day on which the appellant was notified of the decision to be appealed or given reasons for the decision unless the Tribunal grants an extension of time under s 41 of the NCAT Act. It decides that it should approach the 11 December 2024 Kirby application as seeking an extension of time to appeal against each of the Council's disputed decisions. It infers that Dr Kirby is seeking to appeal pursuant to ss 159(1)(b), (c) or (e) or 159B of the National Law ([5]-[16]);

(c) it finds that s 50(2) of the NCAT Act is applicable and that it should dispense with a hearing of the 11 December 2024 Kirby application so far as Dr Kirby seeks an extension of time to appeal against each of the Council's disputed decisions and the dismissal application ([17]-[18]);

(d) it finds that the Tribunal as presently constituted has jurisdiction to determine the 11 December 2024 Kirby application so far as Dr Kirby seeks an extension of time to appeal against each of the Council's disputed decisions and the dismissal application ([19]-[24]);

(e) it sets out the background to the OD proceedings ([15]-[34]);

(f) with respect to orders 2 to 7, 9 and 12 sought in the 11 December 2024 Kirby application, after summarising the submissions of Dr Kirby and the Council, it finds that Dr Kirby has not established 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 him on his or any other terms. It accordingly dismisses the 11 December 2024 Kirby application so far as orders 2 to 7, 9 and 12, the 8 January 2025 Kirby application so far as orders 1 to 10, and orders 6 to 12 in the 31 March 2025 Kirby submissions on the basis that the Tribunal does not have "authority to decide" ([35]-[50]);

1. On 25 September 2025, Dr Kirby as the appellant commenced this appeal against the Council as the respondent by lodging a notice of appeal in which he challenges the dismissal orders. To the extent that the appeal does not raise a question of law Dr Kirby seeks leave to appeal.
2. On 21 October 2025, the Council lodged a reply to appeal in which it objects to the competency of the appeal, raises the jurisdiction issue and states it will seek an order for its costs if the appeal is dismissed.
3. On 24 October 2025, the Appeal Panel constituted by Principal Member D Robertson made procedural orders for the hearing of the jurisdiction issue as a preliminary separate question (the 24 October 2025 orders) including order 5 that unless the Appeal Panel determines that a hearing is necessary, the jurisdiction issue would be decided on the basis of the written material lodged by the parties and without a hearing.
4. On 3 November 2025, the Council lodged its evidence on the jurisdiction issue (the Council's evidence).
5. On 5 January 2026, Dr Kirby lodged Submissions of Appellant dated 5 January 2026 (the Kirby jurisdiction submissions).
6. On 20 February 2026, the Council lodged Outline of Submissions dated 19 February 2026 (the Council jurisdiction submissions).

1. The determination of the jurisdiction issue will involve answering the following two questions:

(1) whether there should be a hearing of the jurisdiction issue;

(2) whether the appeal should be dismissed.

Whether there should be a hearing of the jurisdiction issue

1. I am satisfied that the issues for determination in relation to the jurisdiction issue can be adequately determined in the absence of the parties by considering their evidence and written submissions. Accordingly, I have decided not to revoke order 5 of the 24 October 2025 orders.

1. Before considering this issue, I have set out the applicable statutory provisions and summarised the relevant legal principles, the evidence of Council and the submissions of the parties.

1. Part 1 (ss 1-6) contains preliminary provisions. Section 3 specifies the objects of the NCAT Act, and relevantly states:

The objects of this Act are -

...

(d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and

...

1. Section 4 contains definitions and relevantly states:

...

ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including -

(a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and

...

interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following -

...

(d) the extension of time for any matter (including for the lodgment of an application or appeal),

...

1. Section 5 contains a definition of decision, and relevantly states:

...

(2) For the purposes of this Act -

(a) a decision is made under enabling legislation or this Act if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation or this Act, and

1. Part 2 Div 2 (ss 16-19) contains provisions dealing with the Divisions of the Tribunal. Section 17 deals with a Division Schedule for a Division of Tribunal, and relevantly states:

17 Division Schedule for a Division of Tribunal

(1) The Division Schedule for a Division of the Tribunal is the Schedule to this Act that provides for the composition and functions of that Division.

...

(3) The provisions of a Division Schedule for a Division of the Tribunal prevail to the extent of any inconsistency between those provisions and any other provisions of this Act (except Part 3A) or the provisions of the procedural rules.

...

1. Part 3 (ss 28-34) contains provisions dealing with the jurisdiction of the Tribunal. Section 31 deals with the external appeal jurisdiction of the Tribunal, and relevantly states:

(1) The Tribunal has external appeal jurisdiction over a decision (or class of decisions) made by an external decision-maker if legislation provides that an appeal may be made to the Tribunal against any such decision (or class of decisions).

(2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its external appeal jurisdiction -

(a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,

...

(3) An appealable external decision is a decision of an external decision-maker over which the Tribunal has external appeal jurisdiction.

(4) An external appeal is an appeal to the Tribunal against an appealable external decision.

...

1. Section 32 deals with the internal appeal jurisdiction of the Tribunal, and relevantly states:

(1) The Tribunal has internal appeal jurisdiction over -

(a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and...

...

(3) However, the internal appeal jurisdiction of the Tribunal does not extend to -

...

(b) any decision of the Tribunal in an external appeal, or

...

(4) An internally appealable decision is a decision of the Tribunal or a registrar over which the Tribunal has internal appeal jurisdiction.

(5) An internal appeal is an appeal to the Tribunal against an internally appealable decision.

...

1. Part 4 Div 1 (ss 35-38) contains introductory provisions dealing with the practice and procedure of the Tribunal. Section 36 deals with the guiding principle to be applied to the practice and procedure of the Tribunal, and relevantly states:

36 Guiding principle to be applied to practice and procedure

(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The Tribunal must seek to give effect to the guiding principle when it -

(a) exercises any power given to it by this Act or the procedural rules, or

(b) interprets any provision of this Act or the procedural rules.

1. Part 6 Div 2 (ss 80-81) contains provisions dealing with internal appeals. Section 80 deals with the making of internal appeals, and relevantly states:

(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made.

1. Part 6 Div 3 (ss 82-84) contains provisions dealing with appeals from the Tribunal to courts, and at the beginning of the Part states:

Note.

A Division Schedule for a Division of the Tribunal may, in some cases, make special and different provision for appeals to the Supreme Court or another court against certain decisions made by the Tribunal in the Division.

1. Section 82 deals with the interpretation of the Division, and states:

(1) Each of the following kinds of decisions of the Tribunal is an appealable decision of the Tribunal for the purposes of this Division -

(a) any decision made by an Appeal Panel in an internal appeal,

(b) any decision made by the Tribunal in an external appeal,

(c) any decision made by the Tribunal in proceedings in which a civil penalty has been imposed by the Tribunal in exercise of its enforcement or general jurisdiction.

An appealable decision includes any ancillary or interlocutory decisions of the Tribunal in such proceedings.

1. Schedule 5 relates to the OD. Part 1 (cl 1) of Sch 5 contains provisions dealing interpretation. Clause 1 contains definitions, and relevantly states:

...

(2) Except as otherwise provided by this Schedule, a provision of this Schedule that provides for, or limits or excludes, an appeal against a decision of the Tribunal that is made for the purposes of specified legislation (or a specified provision of legislation) is taken to extend to any ancillary or interlocutory decision of the Tribunal in the proceedings in which that decision was made.

1. Part 6 (cl 29) of Sch 5 contains provisions dealing with appeals against certain OD decisions. Clause 29 deals with OD decisions that are not internally appealable, and relevantly provides:

29 Certain profession decisions to be appealed directly to Supreme Court or Land and Environment Court

(1) Profession decisions not internally appealable Despite section 32 of this Act, each of the following Division decisions (a profession decision) is not an internally appealable decision for the purposes of an internal appeal -

...

(d) a decision for the purposes of the Health Practitioner Regulation National Law (NSW) (other than a decision for the purposes of clause 13 of Schedule 5F to that Law),

...

A Division decision other than a profession decision that is a general decision or administrative review decision may be subject to an internal appeal. See section 32 and Division 2 of Part 6 of the Act.

(2) Right to appeal to Supreme Court or Land and Environment Court However, a party to proceedings in which a profession decision is made may appeal against the decision in accordance with this clause to -

(a) in the case of an order for the purposes of Division 3 of Part 5 or Division 4 of Part 7 of the Aboriginal Land Rights Act 1983 declaring a vacancy in an office - the Land and Environment Court, and

(b) in the case of any other decision - the Supreme Court.

1. Part 8 Div 6 Subdiv 2 (ss 159-159C) contains provisions dealing with appeals to the Tribunal against actions by the Council. Section 159 deals with the right of appeal, and relevantly states:

(1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession -

...

(b) against conditions imposed by the Council for the health profession on the person's registration under section 127AA or Division 3 or 4 or the alteration of the conditions by the Council;

(c) against a refusal by the Council for the health profession to alter or remove conditions imposed by the Council under Division 3 in accordance with a request made by the person under section 150I;

...

(e) against a refusal by the Council for the health profession to alter or remove conditions imposed on the person's registration, or to end a suspension, imposed under Division 4 in accordance with a request made by the person under section 152K.

Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013.

1. Section 159B deals with appeals on point of law, and relevantly states:

(1) A registered health practitioner or student 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.

Note.

An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013.

(2) Subsection (1) does not limit a right of appeal under section 159.

...

1. Part 8 Div 10 Subdiv 2 (ss 165B-165C) contains provisions dealing with the constitution of the Tribunal in proceedings under the National Law. Section 165B deals with the constitution of Tribunal for complaints, applications and appeals, and relevantly states:

165B Constitution of Tribunal for complaints, applications and appeals [NSW]

...

(2) Except as provided by subsections (4), (5) and (5A), the Tribunal, when conducting an inquiry or hearing an appeal under this Law, is to be constituted by -

(a) 1 Division member who is an Australian lawyer of at least 7 years' standing or, in the case of medical practitioner proceedings, 1 Division member who is a senior judicial officer; and

...

(5A) The Tribunal, when constituted to make an ancillary decision or an interlocutory decision within the meaning of the Civil and Administrative Tribunal Act 2013, is to be constituted by the Tribunal List Manager or the member referred to in subsection (2)(a).

1. In Grabovsky v Department of Communities and Justice [2025] NSWCATAP 192 (Grabovsky), the Appeal Panel:

(1) at [98]-[105] made general observations about the Tribunal's jurisdiction, which included the following summary of principles at [105]:

"In our view, the following principles emerge from these cases and legislative provisions concerning the identification of, and limitations on, the Tribunal's jurisdiction:

(1) The Tribunal must be independently satisfied that it has jurisdiction to determine a matter regardless of the views of the parties.

(2) Although a party invoking the jurisdiction of the Tribunal is ordinarily expected to point to the legislation conferring jurisdiction, it is ultimately a matter for the Tribunal to decide whether it has jurisdiction because of its duty to remain within the confines of its jurisdiction.

(3) There must be legislation (in the narrow sense defined by both the ADR Act and NCAT Act) that confers authority on the Tribunal to decide a matter in dispute.

(4) The Tribunal does not have inherent jurisdiction based simply on the fact that it is a civil and administrative tribunal. Consequently, it cannot provide a forum for vindicating rights and remedying wrongs based merely on notions of injustice, wrongdoing or the public interest."

(2) at [111] noted the power to dismiss for want of jurisdiction is an implied power of the Tribunal that derives from its duty to remain within the limits of its jurisdiction, citing Boyland v Commonwealth Bank of Australia [2025] NSWCATAP 160 (Boyland) at [29];

1. In Quach v Civil and Administrative Tribunal of New South Wales [2022] NSWSC 1091 (Quach) the practitioner purported to appeal against to the Supreme Court from decision of the Appeal Panel of the Tribunal dismissing appeal from a profession decision of the Occupational Division that the practitioner engaged unsatisfactory professional conduct and professional misconduct, and his registration was cancelled and consequential protective action: Health Care Complaints Commission v Quach [2015] NSWCATOD 2; Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32. Wright J, at [23] relevantly referred to cl 29(1)(d) and (2) of Sch 5 to the NCAT Act, and at [24]-[26] held:

"[24] The decision of the Occupational Division in proceedings 1420086 and 1420065 concerning Mr Quach were decisions falling within cl 29(1)(d) of Sch 5 of the Civil and Administrative Tribunal Act. A number of things follow from the terms of cl 29.

[25] First, the decisions in proceedings 1420086 and 1420065, which were decisions for the purposes of the Health Practitioner Regulation National Law (other than for the purposes of Sch 5F cl 13) were not internally appealable decisions, by operation of cl 29(1)(d). Thus, the purported internal appeal to the NCAT Appeal Panel in proceedings 2021/00313229 from the "profession decisions" in proceedings 1420086 and 1420065 was misconceived and incompetent. Section 165B of the Health Practitioner Regulation National Law had no application in respect of the decision by the NCAT Appeal Panel to dismiss that purported internal appeal. That appeal was properly dismissed by Principal Member Suthers, who was exercising powers under ss 55(1)(b) and 80(1)(a) of the Civil and Administrative Tribunal Act and not powers under the National Law. As a result, the summons filed on 16 December 2021 instituting the present proceedings in this Court and seeking to appeal from that dismissal would be bound to fail, ....

[26] Secondly, cl 29(1)(d) of Sch 5 has the effect that the comment of Abrahams J in Quach v Marks (No 2) [2021] FCA 922 at [22] that "a party may challenge an error by NCAT by an appeal to NCAT's Appeal Panel", while generally correct for decisions in relation to which NCAT has "internal appeal jurisdiction" under of the , is not correct in relation to the decisions against which Mr Quach has sought to appeal which are "profession decisions" as identified in cl 29(1) of Sch 5. Unfortunately, it appears that cl 29 and the fact that the provisions of the Division Schedules to the generally prevail over any inconsistent provisions of the Act itself, by operation of of that Act, were not brought to her Honour's attention in the Federal Court proceedings. ..."

1. In Singh v Health Care Complaints Commission [2023] NSWCATAP 240 (Singh) the Appeal Panel considered whether it had jurisdiction to hear the appeal against the decision of the Tribunal in the OD against the refusal to grant access to documents produced in answer to two summons, and held the decision was not an internally appealable decision because it was a decision "for the purposes of" the National Law within the meaning of cl 29(1)(d) of Sch 5 to the NCAT Act. The Appeal Panel did not agree with the contention of the appellant that an ancillary and interlocutory decision, such as in respect of the issuing of a summons, should not be regarded as being for the purposes of the National Law but simply a decision for the purposes of the NCAT Act, and at [53]-[58] held:

"[53] In our view, consistent with the ordinary meaning of the term 'for the purposes of', the Decision which dealt with the production of documents under summonses issued in the disciplinary proceedings under the National Law were for the 'purposes of' those proceedings and hence, also the National Law itself within the meaning of clause 29(1)(d) of Schedule 5 of the NCAT Act.

[54] Where the ordinary meaning of the term 'for the purposes of' is broader than 'under' there is no reason to assume that Parliament intended that the former phrase should be interpreted consistently with a different and narrower phrase.

[55] If one were to ask the question what were the 'purposes of' issuing the summonses for production, the obvious and sensible answer is that the summonses were issued for the purposes of pursuing the Appellant's defence in the disciplinary proceedings pursuant to or under the National Law. Similarly, it seems reasonably clear to us, that the purposes of the orders in question were to allow for the orderly and efficient course to be taken in the conduct of the disciplinary proceedings under or pursuant to the National Law.

[56] In our view, interlocutory decisions which provide for the orderly conduct of disciplinary proceedings under the National Law can be fairly and correctly described as being decisions 'for the purposes of the National Law'.

[57] Our conclusion that the orders should be regarded as being 'for the purposes of the National Law' is reinforced by s 4(2) of the NCAT Act which provides as follows:

A reference in this Act (however expressed) to the exercise by the Tribunal of its functions in relation to other legislation includes a reference both to its functions under the legislation and its functions under this Act in relation to the legislation.

[58] This encapsulates our conclusion that the interlocutory decision in question whilst made under the NCAT Act should also be taken to be for the purposes of the National Law within the meaning of clause 29(1)(d) of Schedule 5."

1. There has been some debate concerning whether appeals against decisions of the Tribunal dismissing proceedings for want of jurisdiction are interlocutory decisions or ancillary decisions which has had its genesis in observations made by Basten JA in AQO v Minister for Finance and Services (2016) 93 NSWLR 46; [2016] NSWCA 248 at [127]. Recent decisions of the Appeal Panel have treated the decision of the Tribunal at first instance dismissing an administrative review application for want of jurisdiction as an ancillary decision rather an interlocutory decision: Commissioner of Police, NSW Police Force v FYH [2024] NSWCATAP 176 at [21]−[22]; Grabovsky at [65]-[72].
2. In Konstantinidis v Council of the Law Society of New South Wales [2018] NSWCA 59 (Konstantinidis) the New South Wales Court of Appeal considered an appeal against the decision of the Tribunal that it had jurisdiction to entertain proceedings commenced by the Council of the Law Society of New South Wales against the solicitor under the predecessor of the Legal Profession Uniform Law (NSW). The Court (Payne and White JJA; Emmett AJA) at [17] rejected the Council's submission that the Tribunal's decision was not a decision "for the purposes" of the predecessor legislation within the meaning of cl 29(1)(e) when read with cl 1(2) of Sch 5 to the NCAT Act:

"The Council's submission that the Tribunal's decision was not a decision "for the purposes" of the Legal Profession Act should be rejected. Clause 1(2) in Schedule 5 to the Tribunal Act is sufficient to dispose of this question. Clause 1(2) of Schedule 5 provides that except as otherwise provided, a provision in Schedule 5 that provides for, or limits or excludes, an appeal against a decision of the Tribunal that is made for the purposes of specified legislation (or a specified provision of legislation) is taken to extend to any ancillary or interlocutory decision of the Tribunal in the proceedings in which that decision was made. Accepting (as the parties did) that the decision of the Tribunal was an ancillary decision, the effect of that clause is that a provision providing for an appeal against a decision of the Tribunal extends to an appeal from any ancillary decision of the Tribunal."

1. The Council in the Council's evidence has relevantly given uncontroversial evidence comprising the 11 December 2024 Kirby application, the 8 January 2025 Kirby application, the dismissal application, the submissions of the parties in relation to the dismissal application, and the 2025 OD decision.

1. The Kirby jurisdiction submissions are organised into the following three parts:

(1) "Part A Reply to the s32 CAT Act issue re competency (including Orders Sought)";

(2) "Part B Reply to the Clause 29 CAT Act issue re competency";

(3) "Part C "In the Alternative" submission re General Application to set aside the decision of 29 August 2025 1 as an alternative to an Appeal".

1. As part C of the Kirby jurisdiction submissions does not relate to the jurisdiction issue, I have not summarised them, taken them into account and made any decision in relation to them.
2. Dr Kirby in part A of the Kirby jurisdiction submissions relevantly:

(1) in part A1, sets out the following orders sought (omitting the order relating to part C):

"1. A declaration that the internal appeal is competent.

2. Directions for the internal appeal to proceed (with leave under s 80(2)(b) CAT Act only to the extent required for any non-law grounds)."

(2) in part A2 in referring to the statutory framework (text, context, and purpose), refers to s 32(1), (2) and (3)(b) of the NCAT Act and s 165B(5A) of the National Law;

(3) in part A3, submits that the 2025 OD decision should not be interpreted as the kind of "external appeal" decision caught by s 32(3)(b) for the following reasons:

(a) as to the text, the 2025 OD decision did not determine the external appeal on its merits. It disposed of the OD proceedings at a pre-merits threshold. It prevented the external appeal from being heard at all by invoking a threshold bar (and, critically, by not invoking s 55 of the NCAT Act which was the basis of the Council's pleadings). That represents a pre-merits, jurisdictional/procedural disposal. A threshold procedural dismissal that forecloses the external appeal before any appellate adjudication is undertaken is not a decision "in an external appeal" for the purposes of s 32(3)(b). It is anterior to the exercise of external appeal jurisdiction and is properly characterised as an interlocutory/procedural ruling. Read purposively, a decision preventing an application for external appeal from being entertained on the merits is not a decision in the exercise of external appeal jurisdiction. It is a threshold refusal to exercise that jurisdiction and therefore is not excluded from internal appeal jurisdiction by s 32(3)(b);

(b) as to the context, s 32(2) expressly recognises ancillary/interlocutory decisions within the Tribunal's appellate work. The scheme expects threshold rulings to occur and be supervised, internally, so procedural error can be corrected swiftly without forcing a Supreme Court appeal on every procedural misstep. This is consistent with s 3 of the NCAT Act that provides for resolving the real issues in proceedings justly, quickly and cheaply;

(c) as to the purpose, the mischief addressed by s 32(3)(b) is to send merits determinations "in an external appeal" directly to the Supreme Court (consistent with Sch 5, Pt 6) and to avoid a two-tier merits appeal. It should not be interpreted to preclude internal correction of threshold, procedural or jurisdictional disposals (especially where the member declined to use the designated summary power in s 55). Properly construed, a pre-merits threshold dismissal that bypasses s 55 is not a "decision in an external appeal" within s 32(3)(b). It is a procedural/jurisdictional ruling capable of internal correction.

1. Dr Kirby in part B of the Kirby jurisdiction submissions relevantly:

(1) in part B1, submits that:

(a) the Council's reading that the 2025 OD decision is a "profession decision" within cl 29(1)(d) is overbroad and defeats the statute's structure for the following reasons:

(i) "profession decisions" should be read as the substantive, merits-bearing determinations which the legislature routes to the Supreme Court (protective orders, final findings under the National Law, etc);

(ii) the 2025 OD decision is not such a merits determination. It is a threshold, procedural dismissal (and by the dismissal reasons, not made under s 55). It does not "decide" the National Law controversy; it avoids deciding it;

(iii) clause 29(1)(d) ("profession decisions") should be interpreted as properly confined to final, merits-bearing outcomes "for the purposes of the (National Law)". The 2025 OD decision should not be treated as such a determination but more appropriately as a pre-merits barrier. To treat it as a "profession decision" would produce impractical, incoherent and burdensome consequences across the National Law jurisdiction;

(iv) clause 29(1)(d) should therefore be construed as being directed to final, merits bearing OD decisions "for the purposes of" the National Law. The 2025 OD decision is a threshold procedural dismissal that avoided determining the National Law controversy at all. Properly characterised, it is not a "profession decision" within cl 29(1)(d);

(v) clause 29(1)(d) is expressed in confined terms. It excludes from internal appeal only a decision made for the purposes of the National Law. It does not extend to every decision merely relating to a health practitioner or arising in proceedings involving a health profession. To construe the provision in that broader sense would impermissibly expand the statutory exclusion beyond its text and would collapse the distinction "the Act" draws between procedural decisions made under the NCAT Act and final profession decisions determining rights or liabilities under the National Law;

(vi) the Council's characterisation is contradicted by the face of the 2025 OD decision. Order 1 of the dismissal orders was made in the exercise of a procedural power conferred by the NCAT Act, not a power conferred by the National Law;

1. The Council in the Council jurisdiction submissions, after referring to the applicable statutory provisions and the relevant legal principles, submits in relation to the Kirby jurisdiction submissions:

(1) rulings made in the OD proceedings on interlocutory or ancillary matters remain decisions made in the exercise of the Tribunal's external appeal jurisdiction as specified in the note to s 82(1) of the NCAT Act;

(2) its position is confirmed by the text of the legislation. There is no basis to read into the legislative text in cl 29(1)(d) or s 32(3)(b) a requirement that a "profession decision" / "any decision" be a "substantive, merits bearing" / "final merits-bearing" decision;

(3) the fact that the National Law makes provision for the Tribunal to be constituted in particular ways for certain proceedings does not advance Dr Kirby's argument or overcome the plain language of the NCAT Act;

(4) the Tribunal cannot ignore the operation of the legislation to adopt a result that Dr Kirby might perceive as efficient or preserving an avenue for what he considers to be the "internal correction of error".

1. I accept that, in accordance with the principles in Grabovsky at [105], I have an obligation to determine whether this purported appeal is an appeal against an internally appealable decision within s 80(1) of the NCAT Act. This requires the 2025 OD decision to be properly characterised as a decision made by the Tribunal in proceedings for a general decision or administrative review decision within s 32(1)(a) of the NCAT Act and not as either a decision of the Tribunal in an external appeal within s 32(3)(b) or a profession decision within cl 29(1)(d) of Sch 5.
2. Neither Dr Kirby nor the Council advanced a submission that the OD proceedings were proceedings for a general decision or administrative review decision within s 32(1)(a) of the NCAT Act.
3. Pursuant to s 17(3) of the NCAT Act the rights of appeal of Dr Kirby against the 2025 OD decision are to be determined in accordance with Sch 5 rather than any provision of Part 6 to the extent of any inconsistency. It follows that the Council's submission about the relevance of the note to s 82 of the NCAT Act is misconceived because the applicable provision is cl 29(1)(d) of Sch 5.
4. As the 2025 OD decision dismissed relevantly involved the dismissal of the 11 December 2024 Kirby application so far as orders 2 to 7, 9 and 12 because of the lack of jurisdiction and orders 1, 8, 10, 11 and 13 because of the refusal to extend time for its lodgement, it will be necessary to consider these grounds of dismissal separately.

The 11 December 2024 Kirby application so far as orders 2 to 7, 9 and 12

1. The assumption underlying each of part A of the Kirby jurisdiction submissions and the Council jurisdiction submissions is that the 11 December 2024 Kirby application so far as orders 2 to 7, 9 and 12 was an appealable external decision within s 31(3) of the NCAT Act. Neither Dr Kirby nor the Council addressed any submissions with respect to the question of whether the Tribunal had jurisdiction under ss 159(1)(b), (c) or (e) or 159B of the National Law to determine the 11 December 2024 Kirby application so far as these claims for relief. I do not accept this assumption for the reasons in the 2025 OD decision at [35]-[50].
2. In circumstances where the Tribunal held that it had no authority to decide the 11 December 2024 Kirby application so far as orders 2 to 7, 9 and 12 there cannot be a decision of the Tribunal in an external appeal within s 32(3)(b) of the NCAT Act.
3. The plurality (Kiefel CJ, Nettle and Gordon JJ) of the High Court of Australia in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 (SZTAL) at [14] stated the principles of statutory construction (with citations omitted):

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

1. The passage in SZTAL at [14] has been cited with approval in many subsequent authorities in various courts as well as in the Appeal Panel: see for example Houda v Seraphim [2025] NSWCATAP 135 at [55].
2. It is uncontroversial that context includes the surrounding text of the relevant provision and indeed the whole of the relevant Act and the objects of the Act, as expressly stated: Patrick v Secretary, Department of Communities and Justice [2025] NSWCATAP 206 at [21(4)]- [21(5)]; citing Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; [2005] HCA 28 at [37] (Kirby J); SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [20] (Kiefel CJ, Bell and Nettle JJ).
3. I do not accept the submission of Dr Kirby that on its proper construction the expression "a decision for the purposes of the Health Practitioner Regulation National Law (NSW) ..." in cl 29(1)(d) of Sch 5 to the NCAT Act according to its text and purpose is to be construed narrowly to exclude a threshold procedural decision in distinction to a substantive merits-bearing decision for the following reasons:

(1) there is nothing in the text to indicate such a narrow construction;

(2) this submission ignores the context of cl 29(1)(d). This context includes cl 1(2) which makes clear that the exclusion in cl 29(1)(d) extends to any ancillary or interlocutory decision of the Tribunal in the applicable proceedings. Further, the context in the objects of the NCAT Act to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible in s 3(d), the definition of decision in s 5(2)(a), and the guiding principle in s 36(1) does not require a construction that some decisions are not within the exclusion in cl 29(1)(d);

(3) this submission does not explain why the purpose of cl 29(1)(d) requires a construction that some decisions are not within its exclusion;

(4) this submission is contrary to Konstantinidis at [17] which makes clear that a decision about the jurisdictional of the Tribunal is an ancillary decision and is encompassed by the analogous exclusion in cl 29(1)(e) in relation to a profession decision "for the purposes of the Legal Profession Uniform Law (NSW)" when read with cl 1(2).

1. I am satisfied that the 2025 OD decision with respect to the dismissal of the 11 December 2024 Kirby application so far as orders 2 to 7, 9 and 12 is an ancillary decision within the meaning of par (a) of the definition in s 4(1) of the NCAT Act. It follows that the 2025 OD decision to this extent pursuant to cl 1(2) is taken to be encompassed by the exclusion in cl 29(1)(d) provided that it is a decision for the purposes of the National Law.
2. I also do not accept the submissions of Dr Kirby that procedural decisions which are taken to include a decision as to the jurisdiction of the Tribunal are not properly characterised as decisions made "for the purposes of" the National Law within cl 29(1)(d) of Sch 5 to the NCAT Act for the following reasons:

(1) there is nothing in the text, context and purpose to indicate such a narrow construction. In particular, the context in s 3(d) that the objects of the NCAT Act include to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible does not require a construction that procedural or jurisdictional decisions are not within the exclusion in cl 29(1)(d);

(2) a decision as to whether the Tribunal has jurisdiction to determine an external appeal under ss 159(1)(b), (c) or (e) or 159B of the National Law is a decision made "for the purposes of" the National Law because it ensures that there is an external appeal which can be determined by the Tribunal;

(3) it is contrary to Singh at [53]-[58] which makes clear that interlocutory decisions are "for the purposes of" the National Law within the meaning of cl 29(1)(d) of Sch 5 to the NCAT Act. There is no reason why Singh at [53]-[58] should be confined to interlocutory decisions as opposed to jurisdictional decisions.

1. Pursuant to cl 29(1)(d) and (2)(b) of Sch 5 to the NCAT Act that Dr Kirby has a right of appeal to the Supreme Court against the 2025 OD decision with respect to the dismissal of the 11 December 2024 Kirby application so far as orders 2 to 7, 9 and 12. It follows that the appeal should be dismissed to this extent.

The 11 December 2024 Kirby application so far as orders 1, 8, 10, 11 and 13

1. I note that the Tribunal in the 2025 OD decision proceeded on the basis that the 11 December 2024 Kirby application so far as orders 1, 8, 10, 11 and 13 was an appealable external decision within s 31(3) of the NCAT Act. Each of Dr Kirby and the Council made their submissions on the same basis. In this decision I have proceeded on the same basis.
2. I do not accept the submissions of Dr Kirby that s 32(3)(b) of the NCAT Act according to its text, context and purpose is to be construed narrowly to exclude procedural/jurisdictional decision in distinction to a merits decision for the following reasons:

(1) there is nothing in the text to indicate such a narrow construction;

(2) this submission ignores the context of s 32(3)(b). This context includes s 31(2)(a) which makes clear that the Tribunal has jurisdiction to make ancillary and interlocutory decisions. This means that an ancillary and interlocutory decision is to be properly characterised as a decision of the Tribunal in an external appeal. Further, the context in s 3(d) that the objects of the NCAT Act include to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible does not require a construction that some decisions are not within the exclusion in s 32(3)(b);

(3) the submission that as to the purpose, the mischief addressed by s 32(3)(b) is to send merits determinations "in an external appeal" directly to the Supreme Court and to avoid a two-tier merits appeal but not threshold, procedural or jurisdictional disposals is unsupported by any extrinsic material demonstrating such a purpose.

1. It follows that the 2025 OD decision with respect to the dismissal of the 11 December 2024 Kirby application so far as orders 1, 8, 10, 11 and 13 is not a decision of the Tribunal in an external appeal within s 32(3)(b) of the NCAT Act.
2. I am satisfied that the 2025 OD decision with respect to the dismissal of the 11 December 2024 Kirby application so far as orders 1, 8, 10, 11 and 13 is an interlocutory decision within the meaning of par (a) of the definition in s 4(1) of the NCAT Act. It follows that the 2025 OD decision to this extent pursuant to cl 1(2) is taken to be encompassed by the exclusion in cl 29(1)(d) provided that it is a decision for the purposes of the National Law.
3. In view of my findings as to the proper construction of cl 29(1)(d) of Sch 5 to the NCAT Act, Dr Kirby pursuant to cl 29(1)(d) and (2)(b) of Sch 5 has a right of appeal to the Supreme Court against the 2025 OD decision with respect to the dismissal of the 11 December 2024 Kirby application so far as orders 1, 8, 10, 11 and 13. It follows that the appeal should be dismissed to this extent.

1. Section 165B(5A) of the National Law does not supports internal supervision of interlocutory rulings as explained in Quach at [25].
2. Dr Kirby's submission about a procedural fairness overlay is misconceived. All that Boyland decided was that the source of the power to dismiss proceedings for lack of jurisdiction is an implied power of the Tribunal rather than s 55(1)(d) of the NCAT Act.

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.