Kirby v Dental Council of NSW

Conclusion

1. In my judgment, and accepting that the applicant's case was one of incompatibility of roles arising from prior involvement, his Honour applied the correct test for reasonable apprehension of bias, and his Honour did not err in the application of that test to the facts. In any event, I would reach the same conclusion: in the relevant statutory context, there was no incompatibility between, on the one hand, Dr O'Reilly advising Dr Green that he should make a complaint about Dr Kirby to the HCCC, and the Delegates being party to decisions to authorise inspections of Dr Kirby's practice and, on receipt of the report, that there should be consideration of whether s 150 action should be taken; and, on the other hand, their role as Council's delegates for the purpose of considering whether s 150 action should be taken. Fundamentally, this is because nothing they did was such, alone or taken together, as to associate them in any reasonable view with contending for any particular outcome of that consideration. They would not be viewed by a fair-minded lay observer to be accusers or prosecutors, and their prior involvement would not be viewed as such as to invest them with a relevant "interest" in the outcome.
2. The circumstance that not only has no error in his Honour's conclusion been demonstrated, but that even if there were I would reach the same ultimate conclusion, tells strongly against granting leave to appeal on those grounds.
3. Before us, Dr Kirby sought to rely on various other indicia of bias. These were admittedly not raised before the primary judge, nor were they included in the detailed particulars of bias provided by Dr Kirby before NCAT. [70] Some were the subject of the application for leave to adduce further evidence, referred to above. In circumstances where this is in effect an interlocutory appeal, there have been two earlier appeals, no explanation has been proffered as to why these matters were not previously raised, and they are matters in respect of which the Council may have wished to lead evidence, there are powerful reasons for not permitting them to be invoked now. Moreover, even if the Council misconceived the statutory basis on which it was referring the matter to the HCCC, it is simply not apparent how that says anything about apparent bias arising from prior involvement. Likewise, it is simply not apparent how the change in composition of the panel (involving the replacement of Ms Bell consequent upon her unavailability) is relevant to any appearance of bias arising from the prior involvement of the Delegates.

No jurisdictional error

1. The third proposed ground of appeal contends that the primary judge erred in finding that NCAT had conducted a rehearing on the question of conditions attached to Dr Kirby's practice, in accordance with s 159(3) of the National Law.
2. The applicant submitted that the primary judge misconceived Dr Kirby's complaint about NCAT's decision as to conditions on his practice: whereas the judge had understood the complaint to be that NCAT erred in failing to remove the conditions, in fact it was that NCAT had not conducted a proper hearing on the question of conditions. Before us, it was argued that the primary judge erred in not addressing the question whether NCAT had conducted a genuine rehearing under s 159(3) of the National Law and how the conditions imposed married up with its concerns, and that his Honour should have concluded that NCAT failed to discharge its function by not considering for itself the appropriateness of conditions imposed to address the risk NCAT had identified following the new hearing before it. Thus the argument was that NCAT did not discharge its function, and that the primary judge erred in not finding so. To this the respondent replied that this was not the case put on behalf of Dr Kirby to the primary judge; that in any event, it was sufficiently dealt with and disposed of by the judge; and further, that NCAT did not fail to conduct a rehearing as required.

NCAT did not fail to exercise its jurisdiction

1. I accept that NCAT's function was to proceed by way of hearing de novo. When Dr Kirby's appeal to NCAT was initiated in April 2016, s 159(3) provided for an appeal by way of "reconsideration", in which fresh and further evidence could be adduced: (3) The appeal is to be dealt with by reconsideration of the matter by the Tribunal and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council when it considered the matter, may be given. The prevailing view was that such an appeal was in the nature of a hearing de novo, with the powers of NCAT limited by s 159C, and NCAT standing in the shoes of the Council. [71]
2. In May 2016, s 159(3) was amended to provide for an appeal by way of "new hearing", which connotes a hearing de novo: (3) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given. The prevailing view is that this requires NCAT to exercise afresh the administrative discretion in s 150, having regard to the material before it. [72]
3. I am content to proceed on the basis that under the previous as well as the current version of s 159(3), NCAT was required to consider the matter afresh, as if it were the Council, upon the evidence (including any additional evidence that was not before the Council) before it, and having regard to the considerations relevant to the exercise of the discretion conferred by s 150.
4. At all material times (from April 2016, when Dr Kirby initiated his appeal to NCAT, to April 2017, when NCAT gave its decision), NCAT's powers on such an appeal were defined by s 159C of the National Law, in the following terms: (1) On an appeal, the Tribunal may by order terminate, vary or confirm a period of suspension or revoke, vary or confirm the conditions, as it thinks proper. (2) The Tribunal's order must not cause a suspension or conditions imposed by a Council to have effect beyond the day on which a related complaint about the person is disposed of.
5. Thus NCAT was required to determine, first, whether action under s 150 was to be taken, and if so, what action - suspension, or imposition of appropriate conditions - was appropriate for the protection of the health or safety of any person or persons or in the public interest.
6. The basis upon which the applicant contends that NCAT did not conduct a proper hearing de novo on the question of conditions is that, in circumstances where NCAT had found that the conditions which the Council had imposed on Dr Kirby in February 2016 did not "correlate neatly" with the Council's concerns, NCAT was required to, but did not, "identify what the lack of correlation was and then impose alternative conditions", but instead "took a broad-brush approach of finding that because of its concerns about the evidence of [Dr Kirby] and his general lack of insight and concern about his practices, the conditions should not be removed", and in doing so, presumably, failed to conduct a proper re-hearing on the issue of conditions.
7. However, this is by no means a failure to conduct a hearing de novo on the question of conditions. To the contrary, what NCAT did was entirely in accordance with a requirement to exercise afresh the discretion conferred by s 150 to determine whether or not the imposition of conditions was "appropriate" for the protection of the health or safety of any persons, or was otherwise in the public interest, having regard to the evidence before it, including evidence that was not before the Council, such as Dr Kirby's evidence in cross-examination. In circumstances where NCAT was required to consider afresh the question of the imposition of conditions on Dr Kirby's registration - a view which the applicant embraces - the question was not whether the conditions were "appropriate" by reference to the Council's concerns, but what conditions were appropriate by reference to NCAT's own conclusions as to the risk Dr Kirby's practice posed to the health or safety of his patients. That is precisely what NCAT did, in concluding that although the conditions may not have neatly conformed to the concerns expressed by the Council, they were appropriate in the context of the concerns which, on the evidence before it, it entertained (emphasis added): 144 … the Tribunal considers that, in reconsidering the matter in light of the additional evidence, particularly the evidence of Dr Kirby's [sic] given in cross-examination, the Tribunal considers that the Council was entirely justified in suspending Dr Kirby's registration. … 153 … We hold grave concerns about Dr Kirby's insight and practices. Had the Council submitted that, in light [of] Dr Kirby's cross-examination, it was appropriate to reimpose suspension of Dr Kirby's registration, the Tribunal would have given very serious consideration to taking this course. This was because of the unsatisfactory evidence given by Dr Kirby during the course of his cross-examination.
8. Thus, in reconsidering the matter in accordance with s 159 of the National Law on the evidence before it, NCAT having determined that Dr Kirby's practice posed a risk to the health or safety of his patients, determined that the conditions imposed were the minimum "appropriate" to protect the health or safety of Dr Kirby's patients.
9. The complaint that NCAT did not conduct a new hearing on the question of conditions and thereby failed to exercise its jurisdiction is without foundation. In those circumstances, there would be no utility in granting leave to appeal, even if the primary judge did not expressly address this issue.

Insofar as the issue was raised, it was addressed

1. The respondent submitted that the applicant ought not be permitted to raise a ground of appeal asserting error by reference to a submission that was not put in terms below, invoking the observation of this Court in Choy v Tiara Coal Ltd (in liq), [73] that there is no good reason to grant leave to determine a ground of appeal which is based upon a submission which was not made to the primary judge.
2. The only potentially relevant ground of appeal before the primary judge was ground 3, which complained that "NCAT failed to remove conditions imposed by the Council on 12 February 2016 in circumstances where it found that the conditions did not bear on Dr Kirby's ability or fitness to practise". If that were intended to raise a complaint of jurisdictional error, in that NCAT had failed to conduct a rehearing about the conditions, it was supremely oblique in doing so. If, as Dr Kirby submits, the trial judge misunderstood the criticism of NCAT's decision to confirm the Council's imposition of conditions on his registration, in understanding him to have appealed from the decision on the basis that the conditions should have been removed, whereas he in fact contended that NCAT had not conducted a proper re-hearing on the question of conditions, that would be unsurprising in light of the manner in which the grounds of appeal before his Honour were framed.
3. In written submissions before the primary judge, counsel for Dr Kirby submitted that: 1. Dr Kirby had been subjected to significant conditions in the Council's s 150A decision, notwithstanding the Council's acceptance that he is a competent dentist; 2. NCAT determined that the conditions imposed on Dr Kirby's practice were an irregular fit for the concerns expressed by the Council and, having found this, "it was incumbent upon the Tribunal to address the issue of appropriate conditions by reference to the following: (a) Dr Kirby was a competent dentist; (b) what were the requirements for him to discharge his competency"; and 3. rather than completing this exercise, "the Tribunal became distracted about the evidence given by Dr Kirby on matters which gave rise to his suspension, which the Council had seen fit to lift. This was legal error".
4. In oral argument before the primary judge, the issue was addressed in a similar way. First, the conditions imposed by the Council in its s 150A decision were described, then NCAT's obligations pursuant to s 159(3) were stated. Counsel for Dr Kirby submitted, in respect of [153] of NCAT's decision: What the paragraph more generally - and this is our ground 3 - is that there is simply no engagement at all on the question before it, as to the conditions being imposed upon Dr Kirby.
5. Elaborating this, counsel for Dr Kirby submitted: What the Tribunal was required to do was decide for itself whether it was satisfied it's appropriate to impose conditions and in effect we'd say what those conditions should be. In our submission the [T]ribunal manifestly failed to do that. What it did do, going over to p 1034, in the first part of para 153, was accept that the conditions imposed do not correlate neatly with the risks, that the [C]ouncil identified in the second decision.
6. In that context, the following submission was made to the primary judge: So having found that there seemed to be a gap, having also noted that the [C]ouncil thought there was nothing to suggest that Dr Kirby wasn't a competent dentist by this time - he's been practising for over a quarter of a century - rather than discharging their obligation, as our friends have correctly summarised, to evaluate for itself whether conditions should be imposed, and implicitly what they should be, it simply says, "We didn't like the evidence of Dr Kirby in cross-examination. We have concerns about insight in practices". It doesn't specify what they are, and then, as I've said yesterday - your Honour describes perhaps as letting off steam - says something which was never forewarned, and then goes on to say the conditions in para 154, which it didn't think married up, should be confirmed. That is an error of law; the tribunal failed to discharge its obligations in relation to the conditions. If your Honour agrees with that, then obviously purely on that point it's a rehearing on that issue.
7. That is the closest that the applicant came to contending, before the primary judge, that NCAT had not conducted a proper re-hearing on the question of conditions. The applicant submits that this Court should find that the trial judge erred in not addressing this argument, and should conclude that NCAT failed to discharge its function by failing to consider for itself the appropriateness of conditions imposed to address the risk NCAT had identified following the new hearing before it. For reasons advanced above, the underlying submission (that NCAT failed to discharge its obligations in relation to the conditions) is without merit.
8. However, the trial judge did not fail to address the argument, to the extent that it was raised. As the respondent submits, the primary judge expressly dealt with this line of argument. [74] His Honour noted Dr Kirby's submission that "the conditions were, it is said, inconsistent with a finding ... that Dr Kirby was a competent dentist" and that "NCAT, it was submitted, 'became distracted' about Dr Kirby's evidence on the matters that gave rise to his suspension, even though the Dental Council had seen fit to terminate the suspension and that this 'distraction' involved legal error". [75] His Honour considered these submissions, [76] ultimately concluding that no error had been demonstrated, and observing that "it does not follow" from the fact that the Delegates did not see Dr Kirby as lacking technical and clinical competence in dentistry, "that the only permissible conditions are those calculated to allow effective discharge of competency". [77] Thus, insofar as the argument was raised in submissions, even though not explicitly in the grounds of appeal, his Honour did not fail to address it. Moreover, even though the primary judge (understandably) did not in terms refer to Dr Kirby's contention that NCAT did not conduct a proper rehearing on the question of conditions and thereby constructively failed to exercise its jurisdiction - in circumstances where neither the notice of appeal nor Dr Kirby's submissions had referred in terms to constructive failure to exercise jurisdiction - his Honour's consideration of this issue conclusively deals with the substance of that complaint. His Honour in substance held that no error was demonstrated in NCATs approach to the imposition of conditions on Dr Kirby's registration, which was entirely consistent with the requirements of s 150 (and s 150A). [78]
9. The primary judge did not fail to address a submission worthy of consideration. In any event, there was no merit in the submission. Leave to appeal to argue this proposed ground should be refused.

Conclusion

1. My conclusions may be summarised as follows:
2. The primary judge recognised and proceeded on the basis that the applicant's case was one of apprehended bias founded on incompatibility of roles arising from the prior involvement of the Delegates in preliminary stages. In that context, his Honour was right to apply the Ebner test. Insofar as there is a distinction between an "interest" case and a "prejudgment" case, his Honour did not fail to appreciate it. Although the "degree of closure of mind" is less significant in an "interest" case than in a "prejudgment" case, the manner in which his Honour used that notion was not erroneous.
3. His Honour rightly held that the prior involvement of the Delegates was not such as to invest them with an "interest" incompatible with their constituting the Tribunal that determined the s 150 proceedings. In any event, I would reach the same conclusion: in the relevant statutory context, there was no incompatibility between, on the one hand, Dr O'Reilly advising Dr Green that he should make a complaint about Dr Kirby to the HCCC, and the Delegates being party to decisions to authorise inspections of Dr Kirby's practice and, on receipt of the report, that there should be consideration of whether s 150 action should be taken; and, on the other hand, their being Council's delegates for the purpose of considering whether s 150 action should be taken. Fundamentally, this is because nothing they did was such, alone or together, as to associate them, in any reasonable view, with contending for any particular outcome of that consideration. They were not accusers or prosecutors, and their prior involvement was not such as to invest them with a relevant "interest" in the outcome.
4. NCAT did not constructively fail to exercise its jurisdiction, and insofar as the point was raised before the primary judge, his Honour rightly held that no error was demonstrated in NCAT's approach to the imposition of conditions on Dr Kirby's registration.
5. Although leave to appeal may be granted relatively liberally in disciplinary proceedings, at least in the case of a first appeal, here, where the s 150 and s 150A decisions are interlocutory in nature, pending the outcome of further proceedings; the s 150 decision itself was promptly reviewed and was in effect for only a couple of months; there have already been two appeals (to NCAT and to the primary judge); and even if error were demonstrated, NCAT's ultimate conclusion has not been shown to involve any relevant error of law, the appropriate order would ordinarily be that leave to appeal be refused, with costs. However, the application was fully argued as an appeal; the interpretation and application of the National Law have not hitherto received extensive consideration in this Court; and the disposition of the application has required the consideration and distinction of this Court's decision in Carver; in those circumstances, I am persuaded that leave to appeal should be granted, but the appeal dismissed, and that the applicant should pay the respondent's costs.
6. EMMETT AJA: The principal question in these proceedings is whether the applicant, Dr David Kirby (the Dentist), was denied procedural fairness in decisions of the respondent, the Dental Council of New South Wales (the Dental Council), made on 18 December 2015, to suspend the Dentist and on 12 February 2016, to revoke the suspension and impose conditions on his practice of dentistry. The Dentist asserts that there was a reasonable apprehension of bias on the part of the three members of the Dental Council who made the decisions. In addition, the Dentist claims that the Civil and Administrative Tribunal of New South Wales (the Tribunal) failed to exercise jurisdiction under s 159 of the Health Practitioner Regulation National Law (NSW) (the National Law) by failing to reconsider the conditions to be imposed on the Dentist's practice in the light of the Tribunal's findings.
7. I have had the advantage of reading in draft form the proposed reasons of Brereton JA. I agree with his Honour that:

• the primary judge recognised and proceeded on the basis that the applicant's case was one of apprehended bias founded on incompatibility of roles arising from the prior involvement of members of the Dental Council in preliminary stages and, in so far as there is a distinction between an "interest" case and a "prejudgment" case, did not fail to appreciate it; and
• the Tribunal did not constructively fail to exercise its jurisdiction and that, in so far as the point was raised before the primary judge, his Honour rightly held that no error was demonstrated in the approach of the Tribunal to the imposition of conditions on the Dentist's registration. I agree with Brereton JA's proposed reasons for those conclusions and with the orders proposed by his Honour. However, I wish to add a brief comment.

1. The object of the National Law is to establish a national registration and accreditation scheme for the regulation of health practitioners and the registration of certain students. Under s 3A of the National Law, the protection of the health and safety of the public must be the paramount consideration. Under s 5, a health practitioner is an individual who practises a health profession. The term "health profession" means the professions set out in s 5, which include dental and medical professions.
2. Division 2 of Pt 5A deals with Councils. A Council is a body corporate with perpetual succession and has all of the powers of an individual and has and may exercise the functions conferred or imposed upon it under the National Law. Under s 41B, which is in Div 2, each of a number of Councils is established for the health profession listed beside the respective councils in the table in s 41B(1). One of the Councils is the Dental Council in relation to the health profession described as "Dental (including the profession of a dentist, dental hygienist, dental prosthetist, dental therapist or oral health therapist)". There is also established a Medical Council of New South Wales for the medical health profession.
3. These proceedings arise out of a complaint made under Div 3 of Pt 8 of the National Law. Section 141(2), which appears in Div 2 of Pt 8, provides that a registered health practitioner who, in the course of practising that practitioner's profession, forms a reasonable belief that another registered health practitioner has behaved in a way that constitutes notifiable conduct, the first health practitioner must, as soon as practicable after forming the reasonable belief, notify the Australian Health Practitioner Regulation Agency established by s 23 of that second health practitioner's notifiable conduct. Notifiable conduct, in relation to a registered health practitioner, means, relevantly, the practitioner has placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards.
4. These proceedings arise out of a complaint made in respect of the Dentist on 6 August 2015. The complainant said that he recently saw a longstanding patient of the complainant's practice, who told him that she had been diagnosed with a BBC of the nose and had been seeing the Dentist for treatment of that cancer, which involved an application of a substance that the complainant thought is illegal. The complainant said that the treatment would be outside the normal scope of practice for a dentist and would not be considered best practice. The complainant also said that the treatment places the patient at considerable risk of metastases.
5. Although it does not appear to have been an issue in the proceedings, a question may arise as to whether the conduct of the Dentist that is the subject of the complaint was properly referred to the Dental Council rather than, for example, to the Medical Council of New South Wales. That is to say, there may be a question as to whether the conduct in question was notifiable conduct in relation to the medical profession rather than the dental profession, in that the Dentist may have been engaging in conduct that would require his registration as a medical practitioner rather than as a dental practitioner. The question is whether a complaint in respect of a dentist who, in contravention of the National Law, performs work of a medical practitioner, should be referred to the Medical Council rather than to the Dental Council.

Endnotes

1. Kirby v Dental Council of New South Wales [2017] NSWCATOD 64 ("NCAT decision").
2. Kirby v Dental Council of New South Wales [2018] NSWSC 1869 ("Primary judgment").
3. Leave is required because the judgment below is a final judgment or order in proceedings of the Court, which does not involve a matter at issue amounting to or of the value of $100,000 or more, or any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more: (NSW) Supreme Court Act 1970, s 101(2)(r).
4. (NSW) Civil and Administrative Tribunal Act 2013 (NCAT Act), Sch 5, cl 29(4)(b) gives an appeal as of right "on any question of law", and an appeal, with the leave of the Supreme Court, "on any other grounds". Dr Kirby did not seek leave, so his appeal to the Supreme Court was confined to one on a question of law.
5. Section 150 appears in a context concerned with complaints, and a Council is designated, by s 144C, as a recipient of complaints.
6. National Law s 150D(5)(a).
7. Part 8, Div 3, Subdivs 2, 3, 4 and 5 of the National Law.
8. NCAT decision at [97].
9. Although there was no record of Dr Fryer's presence, both parties appeared to accept, before Barrett AJ, that Dr Fryer was in attendance: see Primary judgment at [20] and fn 7.
10. Primary judgment at [26].
11. Consequent upon the s 150D referral, in July 2018, the HCCC made an application to NCAT, seeking findings that Dr Kirby's conduct constituted professional misconduct, and orders including suspension or cancellation of Dr Kirby's registration. Dr Kirby unsuccessfully sought a permanent stay of that proceeding: Health Care Complaints Commission v Kirby [2019] NSWCATOD 47. Dr Kirby has since commenced proceedings in the Supreme Court for a stay.
12. Plainly, this was intended to "end" the suspension, for the purposes of s 150(2)(b).
13. (2006) 229 CLR 577; [2006) HCA 55 at [1]-[2].
14. NCAT decision at [58].
15. (2000) 205 CLR 337; (2000] HCA 63 at [6]; NCAT decision at [75]. The test is set out at [64] below.
16. (1998) 43 NSWLR 71.
17. (2008) 72 NSWLR 504; [2008] NSWCA 209.
18. NCAT decision at [154].
19. The right of appeal is given by cl 29(2) of Sch 5 of the (NSW) Civil and Administrative Tribunal Act 2013 ("the NCAT Act"). Such an appeal is confined to questions of law: cl 29(4)(b).
20. Primary judgment at [4].
21. Primary judgment at [83].
22. Primary judgment at [84].
23. Primary judgment at [98].
24. Primary judgment at [105].
25. Primary judgment at [113].
26. (2000) 205 CLR 337; [2000] HCA 63 (Gleeson CJ, McHugh, Gummow and Hayne JJ). See also Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31]. The test is an objective one: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [12]. This test is not confined to judicial officers: Ebner at [4]; for its application to statutory tribunals, see, for example, Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 [1972] HCA 53; Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17.
27. Primary judgment at [71]-[75].
28. Primary judgment at [76]-[79].
29. Primary judgment at [69].
30. Carver v Law Society of New South Wales (1998) 43 NSWLR 71 at 99 (Powell JA).
31. Primary judgment at [44].
32. (2008) 72 NSWLR 504.
33. Primary judgment at [44]-[46].
34. Primary judgment at [64].
35. (2008) 72 NSWLR 504.
36. In lsbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [28], the majority explained that the issue in McGovern was "the possibility of bias in the nature of prejudgment on the part of the relevant decision-makers. ... they consequently did not address the question whether a person's involvement in the matter antecedent to the decision is incompatible with his or her participation in the decision".
37. (2015) 255 CLR 135; [2015] HCA 20.
38. (2015) 255 CLR 135; [2015] HCA 20.
39. (2015) 255 CLR 135; [2015] HCA 20 at [21].
40. See at [65] above.
41. (1998) 43 NSWLR 71 at 87 and 99 (Powell JA, with whom Stein JA and Sheppard A-JA agreed).
42. (1998) 43 NSWLR 71 at 102G.
43. Murray v Legal Services Commissioner (1999) 46 NSWLR 224; [1999] NSWCA 70.
44. City of London v Wood (1701) 12 Mod 669 at 687; 88 ER 1592 at 1602 (Hobbs J); Leeson v General Council of Medical Education and Registration (1889) 43 Ch D 366 at 384; In re S (a Barrister) [1981] QB 683; R v Lee (1882) 9 QBD 394; Australian Workers Union v Bowen (No 2) (1948) 77 CLR 601 at 616; [1948] HCA 35; Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA at [63] (Gageler J).
45. (1976) 14 SASR 360 (Bray CJ, Jacobs and King JJ).
46. (1976) 14 SASR 360 at 376. See also Sharman v New Zealand Association of Counsellors Inc [2014] NZAR 638; [2013] NZHC 3553 at [50]-[53]..
47. [1970] LGR 27 at 35 (Denning MR), 37 (Phillimore LJ).
48. See, for example, Re Schabas and Caput of University of Toronto (1974) 52 DLR (3d) 495; Ethell v Whalan [1971] 1 NSWLR 416; Australian Workers Union v Bowen (No 2) (1948) 77 CLR 601 at 639; [1948] HCA 35; Maclean v The Workers Union [1929] 1 Ch 602 at 626. See also J R S Forbes, Justice in Tribunals (5th ed, 2019, The Federation Press), [15.46].
49. Thompson v New South Wales Branch of the British Medical Association [1924] AC 764 at 778; Campbell v Higgins (1957) 3 FLR 317; Cains v Jenkins (1979) 28 ALR 219 at 228; Re Mady and Discipline Committee of the Royal College of Dental Surgeons (1974) 50 DLR (3d) 494; Re Schabas and Caput of University of Toronto (1974) 52 DLR (3d) 395; Builders' Registration Board of Queensland v Rauber (1983) 47 ALR 55 at 56-7 (Murphy J). See also J R S Forbes, Justice in Tribunals (5th ed, 2019, The Federation Press) at [15.46].
50. Primary judgment at [80].
51. lsbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [20], [23].
52. This is implicit in s 150B, which provides that a Council must cause an audio recording to be made of "any proceedings of the Council in connection with the consideration by the Council of the exercise or proposed exercise of a function" under certain provisions (including s 150 and s 150A) in respect of a practitioner during which the practitioner or the practitioner's adviser is present. See primary judgment at [87], [89], [92], [93].
53. Primary judgment at [74].
54. (1999) 46 NSWLR 224; [1999] NSWCA 70.
55. Murray v Legal Services Commissioner (1999) 46 NSWLR 224; [1999] NSWCA 70.
56. Primary judgment at [80].
57. Primary judgment at [76]-[79].
58. The authority for such an inspection was said to be s 164A of the National Law. However, its legality was not in issue before us, and it was relied upon only as evidence of apprehend bias.
59. Primary judgment at [78].
60. Primary judgment at [79].
61. Primary judgment at [76]-[80].
62. Primary judgment at [80].
63. Primary judgment at [82].
64. (2016) 340 ALR 560; [2016] NSWCA 331.
65. Primary judgment at [81].
66. (2016) 340 ALR 560; [2016] NSWCA 331 at [77] (Meagher JA).
67. Primary judgment at [81].
68. Primary judgment at [80].
69. Primary judgment at [81]-[82].
70. NCAT decision at [36]-[37].
71. Khan v Medical Council of NSW [2016] NSWCATOD 88 at [27]-[31]; Burton v Osteopathy Council of New South Wales [2015] NSWCATOD 150 at [14]-[29].
72. Hanna v Medical Council of NSW [2017] NSWCATOD 27 at [17]-[18]; Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 at [123].
73. (2018) 98 NSWLR 493; [2018] NSWCA 205 at [70].
74. Primary judgment at [99]-[106].
75. Primary judgment at [99].
76. Primary judgment at [101]-[106].
77. Primary judgment at [101].
78. Primary judgment at [102]-[105]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 May 2020