Kirby v Health Care Complaints Commission

Background

1. Dr Kirby is a registered dentist practising in Orange. The circumstances giving rise to the complaint by the Commission filed in NCAT are summarised by the primary judge at J [17]-[22]: [17] By application dated 3 July 2018, the Director of Proceedings referred a complaint against the plaintiff ("the complaint") to the Tribunal under s 145C(1)(a) of the National Law. The complaint alleged that the plaintiff had engaged in "unsatisfactory professional conduct" within the meaning of [sic] s 139(1)(a), (b) and (I) of the National Law, and that the nature of the unsatisfactory professional conduct amounted to "professional misconduct" within the meaning of s 139E of the National Law. [18] The conduct alleged was that the plaintiff inappropriately prescribed Schedule 4 medications to one of his patients between February 2010 and August 2015, and that he failed to maintain appropriate infection control standards over a similar period. [19] On 18 December 2015, the Dental Council suspended the plaintiff from practice following proceedings under s 150 of the National Law which were held on 11, 15 and 18 December 2015, and published written reasons. [20] In January 2016, the plaintiff sought a review of the Dental Council's decision pursuant to s 150A of the National Law. [21] On 12 February 2016, following a review hearing under s 150A, the Dental Council lifted the plaintiff's suspension and imposed conditions on his practice of dentistry, which remain in place to date. [22] Between 21 December 2015 and 2 July 2018, the Commission conducted an investigation into the complaint.
2. The reference in the application to s 139(1) of the National Law was an error. The reference should have been to s 139B of the National Law.
3. It was common ground below that, following the decision of the Dental Council on 18 December 2015 to suspend Dr Kirby's registration as a health practitioner under s 150 of the National Law, the Dental Council, pursuant to s 150D(1) of the National Law, referred the matter to the Commission for investigation. The Commission was required to deal with the matter as a complaint made to the Commission against a registered health practitioner (s 150D(3)). That was a reference to Pt 2 ("Complaints") of the HCC Act. At the end of the investigation of the complaint, the Commission referred the matter to the Director of Proceedings, who exercised the Commission's prosecution functions. The Director of Proceedings determined under s 90B of the HCC Act that the complaint should be prosecuted before NCAT and that the Commission should prosecute the complaint.
4. The Commission's application filed 3 July 2018 was in the approved form of an "Application for disciplinary findings and orders" (see Civil and Administrative Tribunal Rules 2014 (NSW), r 18). The application was signed by the Director of Proceedings, Ms Karen Mobbs, dated 2 July 2018, and seeks disciplinary orders under ss 149A, 149B and/or 149C of the National Law. The "Grounds" of the application state: The Director of Proceedings, HCCC, has determined to prosecute a complaint against [Dr Kirby] pursuant to s 90B(1) of the Health Care Complaints Act 1993 alleging that he has been guilty of unsatisfactory professional conduct within the meaning of [sic] s 139(1)(a), (b) and (l) and/or professional misconduct within the meaning of s 139E of the National Law.
5. Before NCAT, Dr Kirby sought a permanent stay or dismissal of the complaint on the ground that it constituted an abuse of process. That application was dismissed on 3 April 2019 by Principal Member Britton: Health Care Complaints Commission v Kirby [2019] NSWCATOD 47.
6. Dr Kirby then brought proceedings in the Common Law Division seeking relief by way of judicial review under s 69 of the Supreme Court Act and the Court's supervisory jurisdiction. The amended summons filed 2 May 2019 sought orders (1) restraining the Commission from maintaining and prosecuting the disciplinary proceedings filed in the Tribunal, (2) preventing the Commission from taking any further steps in relation to the prosecution of Dr Kirby, (3) in the alternative to (1), quashing the decision of the Commission dated 2 July 2018 to commence the complaint proceedings, and (4) setting aside the decision of Principal Member Britton on 3 April 2019 refusing a permanent stay of the proceedings before the Tribunal.
7. Ultimately, Dr Kirby abandoned his challenge to the decision of Principal Member Britton. The claim for relief was primarily advanced on the ground that the decision of the Commission to refer the complaint to NCAT was ultra vires because NCAT is not a "disciplinary body" established under the National Law before which the Director of Proceedings can prosecute a complaint against a health practitioner, as referred to in s 90B(1) of the HCC Act.

The primary judge's reasons

1. The dispositive reasoning of the primary judge for rejecting Dr Kirby's jurisdictional challenge is contained at J [73]-[77]: [73] Section 7(1) of the CAT Act unambiguously "establishes" the Tribunal at large. However, it is also the case that the Tribunal, in exercising its function of conducting an inquiry into a complaint made against a health practitioner, is "constituted" under Div 10 of Pt 8 of the National Law. Division 10 of Pt 8 of the National Law, titled "Constitution and Proceedings of the Tribunal", is set out earlier in this judgment. Relevantly, s 165B(1) specifies how the Tribunal is constituted for the purposes of hearing a complaint against a health practitioner. [74] The words "establish" and "constitute" are functionally synonymous in that they both mean to make and create, or to set up or found. As such, in my view the plain meaning of the definition of "disciplinary body" under s 4 of the Health Care Complaints Act would not seem to exclude the Tribunal as a body established under, in the sense of having been constituted under, the National Law. [75] In its submissions, the Commission also noted that the plaintiff's interpretation of the legislation would have the effect of depriving parts of the National Law with meaning. For example, s 145C of the National Law governs the referral of complaints to the Tribunal by the Commission for the purposes of inquiring into complaints. Subdiv 6 of Div 3 of Pt 8 sets out the powers that may be exercised by the Tribunal when a complaint has been referred to and admitted or found proven under s 149 of the National Law. [76] The Commission noted that the Tribunal can only inquire into, find proven and exercise disciplinary powers in relation to admitted complaints, or complaints to the Tribunal as a disciplinary body under s 4 of the Health Care Complaints Act. If the Tribunal is not a disciplinary body, then reference to the Tribunal in s 145C of the National Law, and the exercise of powers described in s 149, would have no work to do, as the Commission could not refer complaints to the Tribunal. This would be an absurd result. [77] I agree that in ascertaining the meaning of a statutory provision, this Court is to prefer an interpretation that gives meaning to all words in the Act. In circumstances such as these, where two Acts interrelate, the interpretation of the National Law advanced by the plaintiff would deprive certain provisions of the Health Care Complaints Act of any work to do. The Commission itself is constituted under the Health Care Complaints Act, as recognised at s 138 of the National Law. In my view, the interpretation most consistent with the plain text, context and purpose of the Health Care Complaints Act and Pt 8 of the National Law is that the Tribunal is established, in the sense that it is constituted, under the National Law for the purposes of prosecuting a complaint pursuant to s 90B(1) of the Health Care Complaints Act. As such, in prosecuting the complaint within the Tribunal, the Director of Proceedings did not act ultra vires. The result is that the plaintiff's application for judicial review fails.

Appeal grounds

1. Ground 1 challenges the factual finding of the primary judge (at J [17]) that, by application dated 3 July 2018, the Director of Proceedings referred a complaint against Dr Kirby to the Tribunal under s 145C(1)(a) of the National Law.
2. Ground 2 contends that the primary judge erred in her interpretation of the definition of "disciplinary body" in s 4 of the HCC Act by finding that the Tribunal is "established under" the National Law.
3. The Commission filed a notice of contention seeking to affirm the primary judge's decision on the ground that the definition of "disciplinary body" in s 4 of the HCC Act does not require as a necessary precondition that the disciplinary body be separately established under the National Law.
4. An understanding of the appeal grounds is assisted by an outline of the scheme of the health care complaints system applying to health practitioners registered in New South Wales. The complaints system is a co-regulatory scheme comprising of both the National Law and the HCC Act. Some reference to the legislative history of particular provisions is also of assistance.

Relevant statutory provisions

1. The HCC Act created the statutory authority, the Health Care Complaints Commission (s 75), on which the following functions were relevantly conferred by s 80: 80 Functions of Commission (1) The Commission has the following functions: (a) to receive and deal under this Act with the following complaints: • complaints relating to the professional conduct of health practitioners • complaints concerning a health service that affects, or is likely to affect, the clinical management or care of individual clients • complaints referred to it by a professional council under the Health Practitioner Regulation National Law (NSW), (b) to assess those complaints and, in appropriate cases, to investigate them, refer them for conciliation or deal with them under Division 9 of Part 2, (c) to make complaints concerning the professional conduct of health practitioners and to prosecute those complaints before the appropriate bodies, including professional councils, professional standards committees and tribunals, (d) to report on any action the Commission considers ought to be taken following the investigation of a complaint if the complaint is found to be justified in whole or part, … (2) The Commission also has such other functions as are conferred or imposed on it by or under this or any other Act. (Emphasis added.)
2. The functions of determining whether a complaint should be prosecuted before a disciplinary body and prosecuting such a complaint are conferred upon an officer, the Director of Proceedings, appointed by the Commission as a member of its staff (HCC Act, s 90A(1)). Section 90B provides: 90B Functions of Director of Proceedings (1) The following functions of the Commission are to be exercised only by the Director of Proceedings in relation to any complaint referred to the Director by the Commission - (a) to determine whether the complaint should be prosecuted before a disciplinary body and, if so, whether it should be prosecuted by the Commission or referred to another person or body for prosecution, (a1) if the Director determines that the complaint should be prosecuted before a disciplinary body by the Commission, to prosecute the complaint before the disciplinary body, (b) to intervene in any proceedings that may be taken before a disciplinary body in relation to the complaint. (Emphasis added.)
3. The office of Director of Proceedings was introduced in 2004 with the functions conferred by s 90B(1)(a) and (b) by the Health Legislation Amendment (Complaints) Act 2004 (NSW) (2004 Amendment Act). The function conferred by s 90B(1)(a1) was introduced in 2005 by the Statute Law (Miscellaneous Provisions) Act 2005 (NSW).

Definition of "disciplinary body"

1. Prior to the 2004 Amendment Act, s 39(1)(a) of the HCC Act provided that at the end of the investigation of a complaint against a health practitioner the decision whether to prosecute the complaint before a disciplinary body was given to the Commission. The term "disciplinary body" was defined in s 39(3) for the purposes of s 39 to mean: a person or body (including a professional standards committee) established under a health registration Act that has the power to discipline a health practitioner or suspend or cancel (by whatever means) the registration of a health practitioner. (Emphasis added.)
2. Immediately prior to the 2004 Amendment Act, the expression "health registration Act" was defined in s 4 of the HCC Act to mean any of the identified Acts with respect to different health professions and included the Dental Practice Act 2001 (NSW).
3. Consistent with the introduction of Pt 6A ("Director of Proceedings") of the HCC Act, the 2004 Amendment Act amended s 39(1)(a) to provide that the action the Commission could take at the end of an investigation of a complaint against a health practitioner included referring "the complaint to the Director of Proceedings". However, no amendment was made to s 39(3), nor was a definition of "disciplinary body" included in s 90B. When s 39(3) was subsequently omitted by the Health Legislation Amendment (Unregistered Health Practitioners) Act 2006 (NSW), s 90B remained without a definition of "disciplinary body". In 2008, the Medical Practice Amendment Act 2008 (NSW) (2008 Amendment Act) inserted a definition of "disciplinary body" into s 4 of the HCC Act that applied to the whole Act in the same terms as that previously found in s 39(3): see [20] above.
4. In 2010, the Health Practitioner Regulation Amendment Act 2010 (NSW) (2010 Amendment Act):

• repealed the health registration Acts (see Sch 3); and
• amended the definition of "disciplinary body" in s 4 of the HCC Act by omitting the words "a health registration Act" and inserting the words "the Health Practitioner Regulation National Law (NSW)", so that the definition of "disciplinary body" now reads: a person or body (including a professional standards committee) established under [the National Law] that has the power to discipline a health practitioner or to suspend or cancel (by whatever means) the registration of a health practitioner. (Emphasis added.)

NCAT

1. The Tribunal or NCAT was established by s 7(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (Tribunal Act), effective 1 January 2014. NCAT is comprised of several Divisions, including the Occupational Division: Tribunal Act, s 16(1)(c).
2. Concurrent with the establishment of NCAT, amendments were made to the National Law by the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 (NSW) (2013 Amendment Act) with effect from 1 January 2014, which:

• introduced the new definition of "Tribunal" in s 138(1) to mean NCAT;
• repealed the former Div 10 of Pt 8 of the National Law ("Tribunals [NSW]"), including s 165 ("Establishment of Tribunals [NSW]") which established health practitioner tribunals for different health professions; and
• inserted Div 10 of Pt 8 of the National Law ("Constitution and proceedings of Tribunal") as it now appears containing s 165A which provides that the provisions of Div 10 are intended to apply despite anything in the Tribunal Act.

1. Prior to 1 January 2014, "Tribunal" was defined in s 138(1) of the National Law to mean "a Tribunal established under section 165" (emphasis added). In turn, s 165(1) provided that "[e]ach of the following Tribunals is established for the health profession listed beside that Tribunal in the following Table" (emphasis added). The specified tribunals in the Table included the Dental Tribunal of New South Wales for the dental health profession. It is not in dispute that each of the specified Tribunals in the former s 165(1) of the National Law was a "disciplinary body" established under the National Law for the purposes of s 90B of the HCC Act. That followed from the fact that the specified Tribunals were established by the National Law.
2. The functions of NCAT in relation to enabling legislation that are allocated to a Division of NCAT are to be exercised in that Division: Tribunal Act, s 16(2). Relevantly, the functions of NCAT allocated to the Occupational Division by Sch 5 (Pt 3), cl 4 of the Tribunal Act, include those functions under the:

• Health Care Complaints Act 1993 (NSW); and
• Health Practitioner Regulation National Law (NSW).

1. Part 4 of Sch 5 of the Tribunal Act provides special constitution requirements for the exercise of a Division function. Relevantly, Div 3 ("Health Practitioners") applies to proceedings entered into the Health Practitioner List established by cl 10, and cl 13 provides: 13 Constitution of Tribunal for proceedings entered in Health Practitioner List (1) The Tribunal, when exercising a Division function in proceedings that are entered in the Health Practitioner List, is to be constituted (and, where necessary, reconstituted) in accordance with any applicable requirements specified by or under the National Law for the constitution of the Tribunal in proceedings of the kind concerned. (2) Nothing in subclause (1) limits the exercise by the List Manager for the Health Practitioner List (or a delegate of the List Manager) of any of the functions of the List Manager. Note - The National Law also makes special provision with respect to certain practice and procedure for proceedings entered in the Health Practitioner List.

Councils and Committees

1. It is necessary to say something about how a Council and Committee is established and whether they have disciplinary powers with respect to a registered health practitioner. Dr Kirby says both are disciplinary bodies as defined in s 4 of the HCC Act.

How Councils and Committees established?

1. Division 2 of Pt 5A of the National Law deals with the establishment of Councils. Section 41B relevantly provides: 41B Establishment of Councils [NSW] (1) Each of the following Councils is established for the health profession listed beside that Council in the following Table - Table - State Councils Name of Council Health profession … … Dental Council of New South Wales dental (including the profession of a dentist, dental hygienist, dental prosthetist, dental therapist or oral health therapist) … … (emphasis added.)
2. Subdivision 2 of Div 11 of Pt 8 of the National Law deals with the establishment of Professional Standards Committees. Sections 169(1) and 169A relevantly provide: 169 Establishment of Committees [NSW] (1) There are to be Professional Standards Committees established for the purposes of this Law. … 169A Council to establish Committee when required [NSW] (1) A Council must establish a Committee when a complaint about a relevant health practitioner is referred to a Committee. … (Emphasis added.)
3. In Div 11 of Pt 8 of the National Law, "relevant health practitioner" means a health practitioner registered under this Law in the (a) medical profession; or (b) nursing and midwifery profession.

Disciplinary powers of a Council and Committee

1. The disciplinary powers of a Council (other than with respect to a complaint against a health practitioner registered in the medical profession or the nursing and midwifery profession (see s 148)) are contained in Subdiv 5 of Div 3 of Pt 8 of the National Law: ss 148E, 148F and 148G.
2. The disciplinary powers of a Professional Standards Committee (with respect to a complaint against relevant health practitioners registered in the medical profession or the nursing and midwifery profession (see s 146)) are contained in Subdiv 3 of Div 3 of Pt 8 of the National Law: ss 146B, 146C and 146D.
3. Neither a Council nor a Professional Standards Committee has power to suspend or cancel the registration of a registered health practitioner (beyond the power of a Council under the National Law (s 150(1)) to suspend a registered health practitioner's registration for the protection of the health or safety of any person or otherwise in the public interest); both only have power to make such a recommendation to the Tribunal - in the case of a Council under s 148G, and in the case of a Committee under s 146D.
4. Nonetheless, both a Council and a Committee have power to discipline a health practitioner, including to caution, reprimand or counsel the practitioner, impose conditions on the practitioner's registration and order that the practitioner complete an educational course specified by the Council or the Committee (see s 148E(1)(a), (c) and (e) for a Council, and s 146B(1)(a), (b) and (d) for a Committee). In addition, a Council and a Committee have power to impose a fine on the health practitioner in the circumstances specified in ss 148F and 146C respectively.

THE APPEAL

1. It is convenient first to deal with ground 2 as it raises matters which are also relied upon by Dr Kirby in support of the factual challenge in ground 1.

Ground 2: whether the Tribunal is a "disciplinary body"

Dr Kirby's submissions

1. There are two limbs to Dr Kirby's jurisdictional challenge.
2. The first asserts that there is a distinction between the Commission "referring" a complaint to the Tribunal under the National Law and the Director of Proceedings "prosecuting" a complaint before a disciplinary body as referred to in s 90B of the HCC Act.
3. Dr Kirby says that the language of "prosecute" and "prosecuted" is unique to s 90B(1), that it does not appear elsewhere in the HCC Act, aside from s 3(1)(c) (repeated by s 80(1)(c)), and it does not appear in the National Law. According to the submission, the "prosecution" of a complaint is not synonymous with the "referral" of a complaint, and proceedings before the Tribunal are not akin to a prosecution before a disciplinary body because the Tribunal conducts an "inquiry", as the word is used in s 165B(2) of the National Law.
4. The second limb asserts that the Commission's power to prosecute a complaint, through the Director of Proceedings, by proceedings "under" s 90B(1) of the HCC Act, cannot be brought in the Tribunal because NCAT is established under the Tribunal Act, not the National Law, and therefore is not a "disciplinary body" for the purposes of s 90B(1).
5. In response to the notice of contention, Dr Kirby says that the Commission's argument misses the point because the judicial review proceedings are concerned with restraining the Director of Proceedings from acting ultra vires in circumstances where the definition of "disciplinary body" in s 4 of the HCC Act operates to delineate the scope of the powers and functions of the Director of Proceedings under s 90B, and determine where the Director may prosecute a complaint.

The Commission's submissions

1. The Commission's primary argument was directed to its notice of contention which relies upon the submission that the Commission's power to prosecute a complaint before the Tribunal derives from the power to refer a complaint to the Tribunal under the National Law (ss 145C(1)(a) and 145D(1)). The Commission says that it is these provisions that are the source of the Tribunal's jurisdiction to hear and determine the complaint, not s 90B of the HCC Act. The submission continued that the Court would not conclude that a necessary pre-condition on the Tribunal's jurisdiction to hear a complaint that has been referred to it under the National Law is that the Tribunal, as a disciplinary body, has been separately "established" under the National Law.
2. Alternatively, the Commission submitted that the Tribunal is a "disciplinary body" for the purposes of s 90B(1) of the HCC Act because the word "establish" does not confine the definition of "disciplinary body" to persons or bodies created under the National Law. The Commission says that the natural and ordinary meaning of "establish" includes broader notions, such as the appointment or constitution of a person or body, and the primary judge was correct to find that the words "establish" and "constitute" are functionally synonymous. It was emphasised that when hearing and determining disciplinary proceedings under the National Law, the special constitution requirements in Sch 5, cl 13 of the Tribunal Act provide that the Tribunal must be constituted in accordance with the National Law (s 165B(2)).
3. The Commission says that the words "established under" ought not be construed narrowly, and that their meaning extends to persons or bodies authorised by the National Law to exercise powers to discipline a health practitioner or to suspend or cancel the registration of a health practitioner. The Commission says that the Tribunal is such a body.

Reasoning

1. The starting point for the ascertainment of the meaning of a statutory provision is the text of the provision considered in light of its context and purpose: SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [20], citing CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14].
2. The function of a definition is not to enact substantive law; it is to provide aid in construing the statute: Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 at [103] (McHugh J); Moreton Bay Regional Council v Mekpine Pty Ltd (2016) 256 CLR 437; [2016] HCA 7 at [61] (French CJ, Kiefel, Bell and Nettle JJ). For this reason, the usual process of statutory construction requires the definition to be read into the provision or provisions in which the term as defined is used, assuming it is not expressly or impliedly excluded in that context: Kelly v The Queen at [103]; Wilkie v Brown [2016] NSWCA 128 at [41] (Beazley P, McColl and Gleeson JJA agreeing).
3. In this case, that requires the definition of "disciplinary body" in s 4 of the HCC Act to be read into s 90B. The definition is not expressly excluded by s 90B, and neither party suggested that the definition was implicitly excluded in the context of s 90B.

Whether the Tribunal is "established under" the National Law

1. Dr Kirby's argument depends upon the correctness of the narrow construction of the word "under". There are difficulties with that construction when the expression "disciplinary body" is read into s 90B of the HCC Act.

(1) "established under" the National Law is not synonymous with "created by"

1. A major difficulty with Dr Kirby's construction is that it reads the word "under" as synonymous with "by", but the context of s 90B of the HCC Act indicates that "under" includes more than "by".
2. As Jordan CJ said in Ex parte Zietsch; Re Craig (1944) 44 SR (NSW) 360 at 364-365 (Davidson and Street JJ agreeing), "[i]n a particular context "under" may clearly mean "by", and it may be open to question whether it includes anything else" (emphasis in original). Jordan CJ cited Corporation of Hyde v Bank of England (1882) 21 ChD 176 at 180-181 and Attorney General v Chapman [1891] 2 QB 526 at 532, where the word "under" in the particular context was given a broader meaning than "by". And as Herzfeld and Prince observe in Interpretation (2nd ed, 2020, Thomson Reuters) at [4.360]: … things done "by" the statute are only things done by force of the statute itself; things done "under" the statute include things done by bodies authorised by the statute, for example, pursuant to subordinate legislation. (Citations omitted.)
3. In the HCC Act, the definition of disciplinary body is used in s 90B of the HCC Act to indicate a relationship with the National Law that a person or body has, namely, power to discipline a health practitioner or to suspend or cancel (by whatever means) the registration of a health practitioner.
4. When the definition of disciplinary body is read into the provision in which it is applied (s 90B), the relationship between a person or body having the specified power of a disciplinary body and the National Law is not limited to a person or body created by the National Law itself; the particular context of s 90B includes a person or body authorised by the National Law having the specified power of a disciplinary body in relation to a registered health practitioner. Several contextual indications can be identified.
5. First, a "person" may include natural persons (Interpretation Act 1987 (NSW), s 21), who, on any view, cannot be created by the National Law. A person having the specified power of a disciplinary body in relation to a registered health practitioner can only be authorised by the National Law to exercise such power. There is no sound reason, nor contextual indication in s 90B, for giving a different meaning to the words "established under" when applied to a "body" (having the specified power of a disciplinary body in relation to a registered health practitioner).

(2) Narrow construction is too restrictive

1. Another major difficulty with Dr Kirby's construction is that it is too restrictive. As indicated at [64] above, it would have the consequence that there is no disciplinary body, as referred to in s 90B of the HCC Act, which has power to suspend or cancel (by whatever means) the registration of a health practitioner. The submission, faintly advanced by Dr Kirby, that the words "by whatever means" in the definition of "disciplinary body" should be read as including a recommendation by a Council or a Committee to the Tribunal to suspend or cancel the registration of a health practitioner is unpersuasive. The power of a Council and a Committee to recommend such action be taken is not the same as the power of the Tribunal to act on such a recommendation under the National Law (ss 146D and 148G).
2. The effect of the restrictive construction of s 90B of the HCC Act would be that the Commission's power or duty (in the case of serious complaints) to refer complaints to the Tribunal would be negated because the Commission could not prosecute a complaint by referring the complaint to the Tribunal under the National Law (s 145C(1)(a)). The restrictive construction conflicts with the scheme of the National Law because the legislature has made a policy decision that (a) upon referral of a complaint by the Commission to either a Council, a Committee or the Tribunal under s 145C(1)(a), only the Tribunal has power to impose the serious sanctions of suspension or cancellation against a registered health practitioner (s 149C), and (b) the Commission is subject to a duty to refer a complaint to the Tribunal if the Commission forms the opinion that the complaint may, if substantiated, provide grounds for the suspension or cancellation of a registered health practitioner (s 145D(1)). The restrictive construction is also inconsistent with the primary objects of the Commission as stated in the HCC Act, which include investigating and assessing whether any complaint under the Act is serious and, if so, whether it should be prosecuted (s 3(1)(b)), and prosecuting serious complaints (s 3(1)(c)).
3. Insofar as the choice between the potential meanings of "disciplinary body" in s 90B of the HCC Act ultimately turns on an evaluation of the relative coherence of each within the scheme of the statute and its identified objects or policies, preference is to be given to the meaning which provides greater coherence: SAS Trustee Corporation v Miles at [20] citing Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [66] (Gageler and Keane JJ); SZTAL v Minister at [38] (Gageler J). In this case, the meaning which provides greater coherence within the scheme of the HCC Act and its identified objects or policies, especially that the Commission prosecute complaints before appropriate bodies, including tribunals, is that "disciplinary body" in s 90B includes the Tribunal, when the special constitution requirements for NCAT in the National Law are met (s 165B(2)).

(3) Conflation of the exercise of the Commission's prosecution functions with their manner of performance

1. Another major difficulty with Dr Kirby's construction is that the Commission's prosecution functions, which are exercisable by the Director of Proceedings (s 90B), are derivative only of the functions conferred on the Commission, relevantly, by s 80(1)(c) of the HCC Act: to make complaints concerning the professional conduct of health practitioners and to prosecute those complaints before appropriate bodies, including professional councils, professional standards committees and tribunals.
2. Contrary to the premise of Dr Kirby's argument, the Director of Proceedings does not commence complaint proceedings before a disciplinary body "under" s 90B of the HCC Act. The Director of Proceedings determines under s 90B of the HCC Act whether to prosecute the complaint before a disciplinary body and whether the complaint should be prosecuted by the Commission. It is the Commission that then exercises the power or performs the duty (as the case may be) conferred by the National Law to prosecute a complaint before a disciplinary body. Dr Kirby's submissions erroneously conflated the Commission's prosecution functions, which are only exercisable by the Director of Proceedings under s 90B, with the manner of performance of those functions by the Commission exercising its power or complying with its duty to refer a complaint to the Tribunal under the National Law (ss 145C or 145D).

(4) "prosecute" in s 90B is not used in any technical sense

1. A further difficulty with Dr Kirby's construction is that it assumes that the word "prosecute" in s 90B of the HCC Act is used in a technical sense and does not include the action of the Commission referring a complaint to the Tribunal in the exercise of its power or duty under the National Law (s 145C and 145D).

Meaning of "prosecute"

1. In the context of civil proceedings, the word "prosecute" and cognate words can have different shades of meaning: see the discussion by Campbell JA in Reimers v Health Care Complaints Commission [2012] NSWCA 317 at [26]-[27], concerning the meaning of the word "prosecute" in the Uniform Civil Procedure Rules 2005 (NSW), r 12.7(1) ("If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or ...").
2. In s 90B(1) of the HCC Act, the words "prosecute" and "prosecuted" are used in the context of civil proceedings before a person or body having the specified powers of a disciplinary body in respect of a registered health practitioner; the words are not used in any technical sense, as in prosecuting a health practitioner on a criminal charge.
3. The word "prosecuted", when used as a verb in relation to the words "it" in s 90B(1)(a) and "the complaint" in s 90B(1)(a1), refers to what is being prosecuted, namely the complaint, not the person. The same meaning is to be given to the word "prosecuted" in s 3(1)(b) of the HCC Act when used in relation to the expression "any such complaint".
4. The word "prosecute", when used as a verb in s 90B(1)(a1) in the phrase "to prosecute the complaint", refers to the shade of meaning that The Macquarie Dictionary captures as "to follow up or go on with something undertaken or begun: to prosecute an inquiry". (Emphasis in original.) The same meaning is to be given to the word "prosecute" in s 80(1)(c) when used in relation to the expression "those complaints". The cognate word "prosecution", when used as a noun in s 3A(2) in relation to the words "serious complaints", has the shade of meaning which The Macquarie Dictionary captures as "the institution and carrying on of legal proceedings …".
5. As indicated, the exercise by the Director of Proceedings of the Commission's power or duty to refer a complaint to the Tribunal under the National Law (ss 145C or 145D), including in the circumstance referred to in s 150D(4), is the manner in which the Director performs the Commission's functions in s 80(1)(c) of the HCC Act to "make complaints" concerning the professional conduct of health practitioners and "to prosecute those complaints" before appropriate bodies, including tribunals, which functions are only exercisable by the Director of Proceedings.

"inquiry"/ "prosecution" distinction

1. The National Law refers to an "inquiry" into a complaint (s 165B(2)) in describing the nature of the complaint proceedings commenced by the Commission, upon referral of a complaint to the Tribunal. Consistent with the non-technical meaning of the words "prosecute" and "prosecuted" in s 90B being a reference to commencing and carrying on civil proceedings before a disciplinary body with the specified powers, the referral of a complaint by the Commission to the Tribunal under the power or duty in ss 145C or 145D of the National Law is the means by which the Commission "prosecutes" a complaint before a disciplinary body, as referred to in s 90B of the HCC Act.

Role of Director of Proceedings on a complaint

1. The distinction suggested by Dr Kirby between the role of the Director of Proceedings as the "moving party" under s 90B of the HCC Act in the prosecution of a complaint by the Commission before a disciplinary body, and the role of the Director in a complaint referred by the Commission to the Tribunal pursuant to the National Law (ss 145C or 145D), is illusory.
2. Contrary to Dr Kirby's submissions, the Director of Proceedings has an active role when a complaint is referred by the Commission to the Tribunal under the National Law. As indicated, the Director makes the decision under s 90B of the HCC Act whether the complaint is to be prosecuted by the Commission before the Tribunal and, where the Director so decides, the Director is given the Commission's function of prosecuting the complaint before the Tribunal by exercising the Commission's power or duty to refer a complaint to the Tribunal under ss 145C or 145D of the National Law. That includes deciding what particular outcome the Commission seeks if the complaint is substantiated under ss 149A, 149B or 149C of the National Law. This is what occurred in the present case; the application filed by the Commission in the Tribunal was signed by the Director of Proceedings and seeks disciplinary sanctions under ss 149A, 149B and/or 149C of the National Law.

Significance of the s 90C criteria

1. That the decision of the Director of Proceedings under s 90B of the HCC Act to prosecute a complaint is exercisable in accordance with prescribed criteria in s 90C does not mean, as Dr Kirby submitted, that the exercise of the Commission's prosecution functions by the Director of Proceedings referring a complaint to the Tribunal under the National Law is not subject to the criteria in s 90C. The criteria in s 90C apply equally to the exercise by the Director of the Commission's power or duty to refer a complaint to the Tribunal under ss 145C or 145D of the National Law.

Conclusion

1. When the definition of "disciplinary body" is read into s 90B of the HCC Act, the composite expression "established under" should not be given a narrow meaning as referring only to a person or body established or created by the National Law; its true meaning includes a person or body authorised by the National Law to exercise the specified power of a disciplinary body in relation to a registered health practitioner. The Tribunal is such a body. The Tribunal is a body authorised by the National Law, having power to discipline a health practitioner or to suspend or cancel (by whatever means) the registration of a health practitioner, when the special constitution requirements for NCAT in the National Law are met (s 165B(2)).
2. Accordingly, the Tribunal has jurisdiction to hear a complaint referred by the Commission to the Tribunal under the National Law (ss 145C or 145D). That includes in the circumstance referred to in s 150D(4), where the Commission refers the complaint to the Tribunal after investigation of a matter referred by a Council to the Commission under s 150D(1), following a Council taking action under s 150(1) to suspend a registered health practitioner's registration on the grounds of protection of the health or safety of any person or otherwise in the public interest.
3. Ground 2 is not made out. Given this conclusion, it is not necessary to address the alternative argument raised by the Commission's notice of contention.

Ground 1: whether the complaint was referred to the Tribunal under s 145C(1)(a)

Dr Kirby's submissions

1. Dr Kirby submitted that there was no factual basis for the primary judge to conclude that the Director of Proceedings had referred a complaint to the Tribunal under s 145C(1)(a) of the National Law. Dr Kirby says that the only conclusion open to her Honour was that the Director of Proceedings had commenced a prosecution against Dr Kirby "pursuant" to s 90B(1) of the HCC Act. Elsewhere in submissions, Dr Kirby submitted that the Director of Proceedings had commenced a prosecution "under" s 90B(1).

The Commission's submissions

1. The Commission submitted that whilst s 90B of the HCC Act sets out the functions of the Director of Proceedings, ss 145C and 145D of the National Law are relevant to the decision to exercise those functions by the Commission in referring a complaint to NCAT. The Commission says that this is what occurred in this case.
2. The Commission further submitted that Dr Kirby is precluded from relying on ground 1 as it had not been agitated below and was not in issue before the primary judge.

Reasoning

1. The Commission's objection that ground 1 raises a new point on appeal is misplaced. The finding by her Honour at J [17] is the converse of the finding sought by Dr Kirby below, namely, that the application by the Commission filed 3 July 2018 was beyond the power of the Director of Proceedings under s 90B of the HCC Act as the Director did not have power to determine that the Commission refer a complaint to the Tribunal under s 145C(1)(a) of the National Law.
2. Turning to the substance of ground 1, Dr Kirby's submissions gain no assistance from the statement in the application filed by the Commission that: The Director of Proceedings, HCCC, has determined to prosecute a complaint against (Dr Kirby) pursuant to s 90B(1) of the Health Care Complaints Act 1993. …
3. That statement was factually correct; the Director of Proceedings, in the exercise of the Commission's prosecution functions, had determined, pursuant to s 90B(1) of the HCC Act, that the complaint should be prosecuted before the Tribunal and that it should be prosecuted by the Commission.
4. Contrary to Dr Kirby's submissions, none of the statements by the Commission in pars [3], [34] or [35] of its response to the amended summons below constitute an admission by the Commission that the proceedings commenced in the Tribunal were not commenced pursuant to s 145C(1)(a) of the National Law.
5. That the Director of Proceedings exercised the Commission's power to refer the complaint to the Tribunal under s 145C(1)(a) of the National Law is apparent from the form of the application filed by the Commission and signed by the Director of Proceedings, specifically:

• the application is styled "Application for disciplinary findings and orders";
• in Pt 1, under the heading "Application", the following statement is marked with a "x" in the square next to the reference to the National Law: This is an application for a disciplinary finding and order under the: … Health Practitioner Regulation National Law (NSW) Specify relevant profession: Dentistry
• the application alleged that Dr Kirby had been guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(a), (b) and (l) and/or professional misconduct within the meaning of s 139E of the National Law; and
• the relief sought by the Commission in the application are orders under ss 149A, 149B and/or 149C of the National Law.

Conclusion and orders

1. Dr Kirby has failed to establish that NCAT lacks jurisdiction to deal with the complaint filed by the Commission on 3 July 2018 or that the Director of Proceedings acted beyond her power in referring the complaint to the Tribunal under s 145C(1)(a) of the National Law. There is no reason why costs should not follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42.1. I propose the following orders: 1. Grant leave to appeal. 2. Direct the appellant to file a notice of appeal in the form of the draft notice of appeal contained in the White Book within 7 days. 3. Appeal dismissed. 4. Appellant to pay the respondent's costs.
2. WHITE JA: I agree with Gleeson JA.
3. EMMETT AJA: I agree with Gleeson JA.

Amendments 24 November 2021 - [70] - amended "augment" to "argument" 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: 24 November 2021