Kirby v Health Care Complaints Commission - [2021] NSWCA 139 - NSWCA 2021 case summary — Zoe

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Kirby v Health Care Complaints Commission

[2021] NSWCA 139

Court of Appeal (NSW)|2021-04-29|Before: Gleeson JA, White JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2021-04-29

Before

Gleeson JA, White JA

Catchwords

[1997] HCA 2 Corporation of Hyde v Bank of England (1882) 21 ChD 176 Ex parte Zietsch
Re Craig (1944) 44 SR (NSW) 360 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503
[2012] HCA 55 Health Care Complaints Commission v Kirby [2019] NSWCATOD 47 Kelly v The Queen (2004) 218 CLR 216
[2004] HCA 12 Kirby v Health Care Complaints Commission [2020] NSWSC 1207 Moreton Bay Regional Council v Mekpine Pty Ltd (2016) 256 CLR 437

Source

Original judgment source is linked above.

Catchwords

[1997] HCA 2 Corporation of Hyde v Bank of England (1882) 21 ChD 176 Ex parte ZietschRe Craig (1944) 44 SR (NSW) 360 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503[2012] HCA 55 Health Care Complaints Commission v Kirby [2019] NSWCATOD 47 Kelly v The Queen (2004) 218 CLR 216[2004] HCA 12 Kirby v Health Care Complaints Commission [2020] NSWSC 1207 Moreton Bay Regional Council v Mekpine Pty Ltd (2016) 256 CLR 437[2016] HCA 7 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355[1998] HCA 28 Reimers v Health Care Complaints Commission [2012] NSWCA 317 SAS Trustee Corporation v Miles (2018) 265 CLR 137[2018] HCA 55 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362[2017] HCA 34 Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531

Judgment (30 paragraphs)

[1]

Background

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.
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.
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.
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.
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.
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.
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.

[2]

The primary judge's reasons

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.

[4]

Relevant statutory provisions

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.)
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.)
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).

[5]

Definition of "disciplinary body"

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.)
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).
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.
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.)

The criteria which the Director of Proceedings is required to take into account when making a decision whether or not a complaint should be prosecuted before a disciplinary body are specified in s 90C(1) of the HCC Act, which provides: 90C Criteria relevant to determinations of Director of Proceedings (1) The Director of Proceedings is to take into account the following matters when making a determination as to whether or not a complaint should be prosecuted before a disciplinary body - (a) the protection of the health and safety of the public, (b) the seriousness of the alleged conduct the subject of the complaint, (c) the likelihood of proving the alleged conduct, (d) any submissions made under section 40 by the health practitioner concerned.
In the National Law, the expressions "Council", "Committee", and "Tribunal" are defined in s 138(1) for the purposes of Pt 8 to mean:

"Council" means a Council established under s 41B;
"Committee", relevantly, means a Professional Standards Committee established under s 169;
"Tribunal" means the Civil and Administrative Tribunal of New South Wales.

The National Law (s 145C(1)) confers power on the Commission to refer a complaint, or make a complaint, about a registered health practitioner, to a Council, a Committee or the Tribunal as follows: 145C Courses of action available to the Commission on complaint [NSW] (1) The following courses of action are available to the Commission in respect of a complaint made to the Commission, or that the Commission has decided to make, about a registered health practitioner or student- (a) the Commission may refer the complaint to the Council for the health profession in which the practitioner or student is registered or, after consultation with a Council, to a Committee or the Tribunal; …
It is not necessary to refer to the other courses of action available to the Commission under s 145C(1) when dealing with a complaint.
The National Law also provides that both a Council and the Commission have a duty to refer a complaint to the Tribunal if, at any time, either forms the opinion that the complaint may, if substantiated, provide grounds for the suspension or cancellation of a registered health practitioner's registration (s 145D(1)).
As indicated, where a matter is referred by a Council to the Commission as required by the National Law (s 150D(1)) following the decision of a Council to suspend or cancel the registration of a health practitioner under the National Law (s 150(1)), the matter must be dealt with by the Commission as a complaint made to the Commission against a registered health practitioner (s 150D(3)). The Commission is required to investigate the complaint, or cause it to be investigated and, as soon as practicable after it has completed its investigation and if it considers it appropriate to do so, refer the complaint to the Tribunal or a Committee for the health profession in which the health practitioner is registered (s 150D(4)). The effect of s 150D(4) of the National Law is to qualify the Commission's power to refer a complaint under s145C(1) to a Council, because in the circumstance specified in s 150D(4) the Commission may only refer the complaint to a Committee or the Tribunal, not (back) to a Council.
The disciplinary powers of the Tribunal are contained in Subdiv 6 of Div 3 of Pt 8 of the National Law. In addition to the general powers to caution, reprimand or counsel a health practitioner under s 149A, or to impose a fine in the circumstances specified in s 149B, the Tribunal has the power to suspend or cancel the registration of a health practitioner under s 149C if the Tribunal is satisfied, among other things, that the practitioner is guilty of professional misconduct: s 149C(1)(b).

[6]

NCAT

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).
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.

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.
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).

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.
Subdivision 2 ("Constitution of Tribunal") of Div 10 of Pt 8 of the National Law contains s 165B which provides for the special constitution requirements of the Tribunal where a complaint is referred to the Tribunal: 165B Constitution of Tribunal for complaints, applications and appeals [NSW] (1) If a complaint is referred to the Tribunal or an application or appeal is made to the Tribunal under this Law- (a) the Tribunal must inform the Council for the health profession of the referral, application or appeal; and (b) the Council for the health profession must select 3 persons (whether or not they are currently Division members) to sit as members of the Tribunal in the proceedings. … (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 (b) 2 health practitioners selected for appointment by the Council as occasional members under subsection (1)(b) who are registered in the same health profession as the health practitioner or student the subject of the inquiry or appeal; and (c) 1 lay person (that is, a person who is not registered in the health profession) selected for appointment by the Council as an occasional member under subsection (1)(b) from among a panel of lay persons for the time being nominated by the Minister. (3) If the health profession has divisions, at least one and, if practicable, both, of the health practitioners referred to in subsection (2)(b) must be registered in the same division of the health profession as the health practitioner or student the subject of the inquiry or hearing. …
The effect of cl 13 of Pt 4 of Sch 5 of the Tribunal Act is that the special constitution requirements in s 165B of the National Law apply to NCAT where a complaint is referred by the Commission to the Tribunal under ss 145C or 145D of the National Law.

[16]

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

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".
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.)
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.
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.
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).
Second, the function conferred on the Commission by s 80(1)(c) of the HCC Act to prosecute complaints concerning the professional conduct of health practitioners "before appropriate bodies, including professional councils, professional standards committees and tribunals", would be rendered inutile if there is no tribunal "established under" the National Law to prosecute such complaints. Dr Kirby's response is that there is a lacuna in the National Law following the abolition of the existing established health practitioner tribunals for different health professions by the 2013 Amendment Act and the establishment of NCAT effective 1 January 2014 because, unlike the former health tribunals, NCAT was established by the Tribunal Act and not the National Law. The difficulty with this argument is that it reads the words "established under" as synonymous with "created by" the National Law, when there is no warrant for giving a narrow meaning to those words, particularly given the function conferred on the Commission by the HCC Act to prosecute complaints before appropriate bodies, including "tribunals".
Third, a Committee, whilst not established "by" the National Law itself, is a body authorised by the National Law when established by a Council to conduct an inquiry into a complaint (ss 169 and 169A) having the specified power to discipline a registered health practitioner. Similarly, there is no reason for giving a narrow meaning to the words "established under" when identifying the relationship which a Tribunal has with the National Law. The Tribunal, like a Committee, is also a body authorised by the National Law as having the specified power to discipline a registered health practitioner, when the special constitution requirements for NCAT in the National Law are met (s 165B(2)).

[17]

(2) Narrow construction is too restrictive

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).
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)).
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)).

[20]

Meaning of "prosecute"

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 ...").
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.
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".
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 …".
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.

[28]

Reasoning

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.
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. …
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.
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.
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.

Ground 1 should be rejected.

Parties

Applicant/Plaintiff:

Kirby

Respondent/Defendant:

Health Care Complaints Commission

Legislation Cited (15)

Civil and Administrative Legislation (Repeal and Amendment) Act 2013(NSW)

Dental Practice Act 2001(NSW)

Health Legislation Amendment (Complaints) Act 2004(NSW)

Health Legislation Amendment (Unregistered Health Practitioners) Act 2006(NSW)

Health Practitioner Regulation Amendment Act 2010(NSW)

Medical Practice Amendment Act 2008(NSW)

Statute Law (Miscellaneous Provisions) Act 2005(NSW)

(Interpretation Act 1987(NSW)

Health Care Complaints Act 1993(NSW)

Civil and Administrative Tribunal Act 2013(NSW)

Civil and Administrative Tribunal Rules 2014(NSW)

Interpretation Act 1987(NSW)

Supreme Court Act 1970(NSW)

Supreme Court Rules 1970(NSW)

Uniform Civil Procedure Rules 2005(NSW)

Cases Cited (20)

012] HCA 55 Health Care Complaints Commission v Kirby [2019] NSWCATOD 47 Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 Kirby v Health Care Complaints Commission [2020] NSWSC 1207 Moreton Bay Regional Council v Mekpine Pty Ltd (2016) 256 CLR 437; [2016] HCA 7 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Reimers v Health Care Complaints Commission [2012] NSWCA 317 SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 Wilkie v Brown [2016] NSWCA 128 Texts Cited: P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) The Macquarie Dictionary (2020, online) Category: Principal judgment Parties: David William Kirby (Appellant) Health Care Complaints Commission (Respondent) Representation: Counsel: J Sheller SC / D Tang (Appellant) K Richardson SC / P Lowson (Respondent)

Solicitors: Graham Billing & Co (Appellant) Health Care Complaints Commission (Respondent) File Number(s): 2020/262403 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2020] NSWSC 1207 Date of Decision: 7 September 2020 Before: Harrison AsJ File Number(s): 2019/135976

HEADNOTE [This headnote is not to be read as part of the judgment] Dr Kirby is a registered dentist practising in Orange. In August 2015, the Health Care Complaints Commission (Commission) received a complaint against Dr Kirby. The alleged conduct the subject of the complaint concerned the inappropriate prescription of a Schedule 4 medication, namely cansema or cansema-like substances, to one of Dr Kirby's patients and the failure to maintain appropriate infection control standards. On 18 December 2015, following a hearing at which Dr Kirby was present and made submissions, the Dental Council suspended Dr Kirby's registration under s 150 of the Health Practitioner Regulation National Law (NSW) (National Law). Following a review of the Dental Council's decision pursuant to s 150A of the National Law, in January 2016, the Dental Council lifted Dr Kirby's suspension and imposed conditions on his practice. The Dental Council referred the matter to the Commission for investigation, as required by s 150D of the National Law. At the end of the investigation, the Commission referred the matter to the Director of Proceedings, an officer appointed by the Commission as a member of staff to exercise the Commission's functions under s 90B of the Health Care Complaints Act 1993 (NSW) (HCC Act) to determine whether the complaint should be prosecuted before a "disciplinary body" and, if so, whether it should be prosecuted by the Commission. The Director determined that the complaint should be prosecuted by the Commission before the New South Wales Civil and Administrative Tribunal (NCAT or the Tribunal) pursuant to s 145C(1)(a) of the National Law. By application filed 3 July 2018, the Commission commenced the complaint proceedings against Dr Kirby in NCAT alleging that Dr Kirby had engaged in "unsatisfactory professional conduct" within the meaning of s 139B(1)(a), (b) and (l) 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. The application was signed by the Director of Proceedings and sought disciplinary orders under ss 149A, 149B and/or 149C of the National Law, including suspension or cancellation of Dr Kirby's registration as a health practitioner. Dr Kirby brought proceedings in the Common Law Division seeking relief by way of judicial review under s 69 of the Supreme Court Act 1970 (NSW) and the Court's supervisory jurisdiction on the grounds that NCAT did not have jurisdiction to deal with the complaint because NCAT is not a "disciplinary body" established under the National Law, and the decision of the Director of Proceedings to exercise the Commission's prosecution functions by referring the complaint to NCAT was ultra vires because the Director cannot prosecute a complaint before NCAT. The primary judge (Harrison AsJ) rejected Dr Kirby's jurisdictional challenge finding that the words "establish" and "constitute" are functionally synonymous, and although NCAT is established by the Civil and Administrative Tribunal Act 2013 (NSW), when hearing complaints against a registered health practitioner, NCAT is constituted under the National Law, given the special constitution requirements in s 165B(2) of the National Law. Dr Kirby sought leave to appeal on two grounds: the primary judge erred in finding 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 (ground 1); and 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 (ground 2). Held, granting leave to appeal on both grounds and dismissing the appeal (per Gleeson JA, White JA and Emmett AJA agreeing): As to ground 2 (whether the Tribunal is "established under" the National Law) The usual process of statutory construction requires the definition of "disciplinary body" in s 4 to be read into the provision in which the term as defined is used (s 90B), assuming it is not expressly or implied excluded in that context: [56]. 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 s 165B(2) of the National Law are met: [61]-[62], [81]. Ex parte Zietsch; Re Craig (1944) 44 SR (NSW) 360; Corporation of Hyde v Bank of England (1882) 21 ChD 176; Attorney General v Chapman [1891] 2 QB 526 considered. 3. A narrow construction of the expression "disciplinary body" in s 90B of the HCC Act is too restrictive; it would have the consequence that there is no disciplinary body, as referred to in s 90B, which has power to suspend or cancel (by whatever means) the registration of a health practitioner. The Commission's construction of s 90B of the HCC Act gives greater coherence to the statutory scheme: [66]-[68]. SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55; Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 considered. 4. The Director of Proceedings does not commence complaint proceedings before a disciplinary body "under" s 90B of the HCC Act. The Director determines under s 90B whether to prosecute the complaint before a disciplinary body and, if so, whether the complaint should be prosecuted by the Commission. It is then the Commission that exercises the power (s 145C) or performs the duty (s 145D) under the National Law to prosecute the complaint before a disciplinary body: [69]-[70]. 5. The word "prosecute" and cognate words in s 90B of the HCC Act are not used in a technical sense; "prosecute" includes the action of the Commission referring a complaint to the Tribunal in the exercise of the Commission's power to "refer" a complaint to NCAT: [71]-[80]. Reimers v Health Care Complaints Commission [2012] NSWCA 317 considered. As to ground 1 (whether the Director of Proceedings referred a complaint under s 145C of the National Law) 6. 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. That is apparent from the form of the application filed by the Commission and signed by the Director, including the relief sought in the application under ss 149A, 149B and/or 149C of the National Law: [91]-[92].

Cited By (3)

Dr Hill v Health Care Complaints Commission

Health Care Complaints Commission v Clarke

Trinh v Medical Council of New South Wales