Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kirby v Health Care Complaints Commission [2020] NSWCATOD 151 Hearing dates: 27 November 2020 Date of orders: 21 December 2020 Decision date: 21 December 2020 Jurisdiction: Occupational Division Before: A Britton, Principal Member Decision: 1. The application to stay the operation of the Publication Order is refused. 2. The matter is listed for directions on January 28 2021 at 9:30 am by phone. Catchwords: PRACTICE AND PROCEDURE — stay of publication of prohibition order Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Kirbach v Health Care Complaints Commission [2015] NSWCATAD 195 Kirby v Dental Council of New South Wales [2017] NSWCATOD 64 Kirby v Dental Council of New South Wales [2018] NSWSC 1869 Kirby v Dental Council of NSW [2020] NSWCA 91 Kirby v Health Care Complaints Commission [2020] NSWSC 1207 Kirby v Health Care t/as Health Care Complaints Commission [2020] NSWSC 1133 Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113 Texts Cited: Department of Health, 'Australian Register of Therapeutic Goods' (2019) Category: Procedural and other rulings Parties: Dr David Kirby (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: J Shellar SC (Applicant ) P Lowson (Respondent) Solicitors: Graham Billing & Co (Applicant) Health Care Complaints Commission (Respondent) File Number(s): 2016/00378466 Publication restriction: Nil REASONS FOR DECISION 1. On 4 October 2016, the Health Care Complaints Commission issued a "prohibition order" under s 41 of the Health Care Complaints Act 1993 (NSW) ("HCC Act") prohibiting dental practitioner, Dr David Kirby from "applying or administering black salve, red salve cansema or cansema-like substances to any person, whether at his dental premises or elsewhere" ("Prohibition Order"). In addition, the Commission decided to publish that order on its website together with a statement outlining its reasons for making that order ("Publication Order"). 2. Cansema is a substance used as a purported treatment for skin cancer. It is not entered in the Australian Register of Therapeutic Goods maintained by the Therapeutic Goods Administration ("TGA"). Since 2013, the TGA's website has carried a note "advising consumers against purchasing or using black salve, red salve or cansema products". 3. In November 2016, Dr Kirby made an application to NCAT for administrative review of the 4 October 2016 decision. That application is yet to be determined. At Dr Kirby's request, NCAT adjourned a hearing listed to determine that application until his application for judicial review, challenging the validity of the 4 October 2016 decision, was determined. In a decision handed down on 26 August 2020, the NSW Supreme Court (AsJ Harrison) dismissed Dr Kirby's application: Kirby v Health Care t/as Health Care Complaints Commission [2020] NSWSC 1133 ("2020 Supreme Court decision"). On 26 November, Dr Kirby filed an appeal against the 2020 Supreme Court decision. 4. To date, the Commission has not published the Prohibition Order. Shortly after the 2020 Supreme Court decision was handed down, the Commission notified Dr Kirby of its intention to publish the Prohibition Order on its website. 5. Dr Kirby now applies to NCAT for a stay of the operation of the Publication Order. He contends that if the Commission proceeds to publish, his appeal against the 2020 Supreme Court decision and his application to NCAT for administrative review will be rendered nugatory. In addition, he claims that the publication has the potential to harm his personal and professional interests. Further, he contends that continued non-publication does not pose a risk to public safety, claiming that he has "complied completely" with the Prohibition Order and, furthermore, since May 2015, has dissociated himself from "any interest in respect of Cansema-like products". 6. For the reasons that follow, I have decided not to exercise the discretion to stay the operation of the Publication Order. Statutory framework 1. Pursuant to s 23(1)(b) of the HCC Act, where a person makes a complaint under that Act concerning the professional conduct of a "health practitioner", the Commission must investigate that complaint if, following assessment, it appears to the Commission that the complaint: (i) raises a significant issue of public health or safety, or (ii) raises a significant question as to the appropriate care or treatment of a client by a health service provider, or (iii) if substantiated, would provide grounds for disciplinary action against a health practitioner, or (iv) if substantiated, would involve gross negligence on the part of a health practitioner, or (v) if substantiated, would result in the health practitioner being found guilty of an offence under Division 1 or 3 of Part 7 of the Public Health Act 2010 . 1. At the completion of an investigation of a complaint against a health practitioner, the Commission must do one or more of the things listed in s 39(1) of the HCC Act, which include taking action under s 41A of that Act: s 39(1)(g) of the HCC Act. 2. Section 41A of the HCC Act states: (1) The Commission may take action under this section if: (a) it has complied with Division 6 with respect to an investigation of a complaint against a health practitioner, and (b) it finds that the health practitioner has breached a code of conduct for non-registered health practitioners or has been convicted of a relevant offence, and (c) it is of the opinion that the health practitioner poses a risk to the health or safety of members of the public. (2) The action that the Commission may take under this section is either or both of the following: (a) make an order (a "prohibition order" ) that does any one or more of the following: (i) prohibits the health practitioner from providing health services or specified health services for the period specified in the order or permanently, (ii) places such conditions as the Commission thinks appropriate on the provision of health services or specified health services by the health practitioner for the period specified in the order or permanently, Note: Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (b) cause a public statement to be issued in a manner determined by the Commission identifying and giving warnings or information about the health practitioner and health services provided by the health practitioner. … 1. Section 41E requires the Commission to keep a register containing copies of all prohibition orders and interim prohibition orders in force under this Division, and to make available for inspection by the public, free of charge, the contents of that register on the Commission's website. Power to stay the operation of the prohibition order 1. Where the Commission exercises the power under s 41A of the HCC Act to make a prohibition order and/or to issue a public statement in relation to a health practitioner, the affected health practitioner may apply to the NCAT for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act): s 41C of the HCC Act. 2. In reviewing a decision made by the Commission under s 41A of the HCC Act, the Tribunal must make the "correct and preferable" decision: s 63(1) of the ADR Act. The Tribunal may affirm, vary, or set aside the Commission's decision: s 63(3) of the ADR Act. 3. Section 60 of the ADR Act gives Dr Kirby the right to apply to the Tribunal for orders staying or otherwise affecting the operation of the decision under review: 60 OPERATION AND IMPLEMENTATION OF DECISIONS PENDING APPLICATIONS FOR ADMINISTRATIVE REVIEW (1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision. (2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application. (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest. … 1. ln QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113, an Appeal Panel of NCAT considered the principles governing the operation of s 60, citing with approval the following passage from Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 ("Loveday") at [8]: "... Section 60(2) and (3) give the Tribunal a single discretionary power to make a stay order or to refuse to make such an order taking into account all relevant considerations. Secondly, the words "to secure the effectiveness of the hearing" include a situation where the applicant will suffer irreparable loss in the sense that no recompense for it can be obtained if the application is ultimately successful: Re Pelling and Secretary, Department of Aviation [1984] AATA 179; (1984) 5 ALD 638 at 639. It is not confined to the situation where a hearing would be pointless because the applicant will go out of business if a stay is refused. ..." 1. The Appeal Panel went on to state at [32] that the considerations relevant to the exercise of the discretion to make an order under s 60(2) include: (1) whether the order is appropriate to secure the effectiveness of the determination of the application for review: ADR Act, s 60(2); (2) whether the order is desirable taking into account: (a) the interests of any persons who may be affected by the determination of the application for review: ADR Act, s 60(3)(a), Loveday at [10], Re Scott and Australian Securities and Investments Commission [2009] AATA 798 (Re Scott) at [4]; (b) any submission made by or on behalf of the administrator who made the decision to which the application relates: ADR Act, s 60(3)(b), Loveday at [10], Re Scott at [4]; (c) the public interest: ADR Act, s 60(3)(c), Loveday at [10], Re Scott at [4]; (3) the applicant's prospects of success on the application for review: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 (AVS Group) at [129], Loveday at [10] and [11], Re Scott at [4]. 1. At [33], the Appeal Panel noted that the above considerations "may well overlap or be interrelated". Related proceedings 1. To put the submissions made by the parties in context it is necessary to refer to proceedings commenced by Dr Kirby in NCAT, the NSW Supreme Court and the Court of Appeal. 2. In 2016, Dr Kirby appealed to NCAT against a decision made by the Dental Council of New South Wales in December 2015, to suspend his registration, and a subsequent decision made in February 2016 to lift the suspension and instead to impose conditions on his registration. NCAT dismissed that appeal: Kirby v Dental Council of New South Wales [2017] NSWCATOD 64. Dr Kirby unsuccessfully challenged that decision: Kirby v Dental Council of New South Wales [2018] NSWSC 1869. The Court of Appeal dismissed an appeal brought by Dr Kirby against that decision: Kirby v Dental Council of New South Wales [2020] NSWCA 91. On 8 October 2020, the High Court refused Dr Kirby special leave to appeal from the Court of Appeal's decision. On 11 November 2020, Dr Kirby applied to have the refusal to grant special leave set aside. The High Court is yet to determine that application. 3. In addition, as noted above, Dr Kirby unsuccessfully applied to the NSW Supreme Court to have the decision the subject of these proceedings, the 4 October 2016 decision, declared invalid: Kirby v Health Care t/as Health Care Complaints Commission [2020] NSWSC 1133. On 26 November 2020, he applied for leave to appeal from that decision to the Court of Appeal. That application has not been determined. 4. Further, Dr Kirby applied to the NSW Supreme Court challenging NCAT's jurisdiction to determine a complaint referred by the Commission to NCAT for determination under Part 8 of the National Law. The NSW Supreme Court dismissed that application: Kirby v Health Care Complaints Commission [2020] NSWSC 1207. Dr Kirby's submissions 1. Dr Kirby submits that, for the following reasons, it is appropriate for the Tribunal to exercise the direction to stay the operation of the Publication Order. 2. First, he contends that if the Publication Order is implemented, his appeal against the 2020 Supreme Court decision, and his application to NCAT for administrative review, will be rendered nugatory. 3. Second, he asserts that the implementation of the Publication Order is not necessary to protect the health and safety of the public. Four years have now passed since that order was made and there is no evidence of any risk to the public because of the non-publication of that order on the Commission's website. In an affidavit dated 1 March 2019, Dr Kirby stated that he has "complied completely" with the Prohibition Order, and, since May 2015, has dissociated himself from "any interest in respect of Cansema like products". Dr Kirby repeated those claims in an affidavit dated 20 November 2020. Dr Kirby argues that the Commission has failed to identify any risk to the public, or section of the public, if the status quo were to continue until NCAT determines the administrative review application, or the Court of Appeal determines his appeal brought against the 2020 Supreme Court decision. 4. Third, Dr Kirby asserts that the Commission undertook not to implement the Publication Order until his application for administrative review had been determined. 5. Fourth, Dr Kirby contends that if the Prohibition Order and the accompanying statement of reasons are published on the Commission's website, it has the potential to cause him professional and personal damage. While accepting, as the Commission points out, that suppression orders have not been made in the multiple proceedings in which he has been involved since 2016, he points out that little publicity has been generated. Further, he contends that a report of contested proceedings, and the publication of a prohibition order on a regulator's website are not one and the same. He asserts that the latter is potentially much more damaging. 6. Dr Kirby asserts that the small town in regional NSW where he lives and practices dentistry is a "close knit community" where "rumours abound and travel fast". He argues that the implementation of the Publication Order has the potential to damage his practice, with the worst-case scenario being that the practice will cease to operate and staff will be laid off. Pointing to Kirbach v Health Care Complaints Commission [2015] NSWCATAD 195, in which the conduct of the practitioner which resulted in the making of a prohibition order was of a serious criminal nature, he points out that, nonetheless, the Tribunal factored the potential damage to the applicant, both professional and personal, into its consideration in deciding to stay the publication of that order, and the statement of decision. The Commission's submissions 1. The Commission opposes the stay contending that that there is artificiality in Dr Kirby seeking a stay of the publication of the Prohibition Order on the grounds that he is at risk of personal and professional damage in circumstances where he has initiated multiple legal proceedings, which unsurprisingly has resulted in published judgments which refer to that order and contain many of the salient facts, or facts in issue, relating to that order. 2. Second, the Commission rejects the claim that it gave Dr Kirby an undertaking that it would not implement the Prohibition Order until after the NCAT administrative review proceedings were finalised. It acknowledges that in an email sent to Dr Kirby's solicitor in June 2017 it stated it "does not intend to publish the public statement until the conclusion of the Review proceedings". It points out that it is obliged to keep a register of prohibition orders and make that register available for inspection to the public. Three years have now passed since its decision to defer publication of the Prohibition Order. Further delays are likely as Dr Kirby "pursues every legal option available to him". It is, therefore, no longer appropriate to defer publication of the Prohibition Order. 3. Third, the Commission rejects the contention that publication will render Dr Kirby's appeal to the Court of Appeal, and these review proceedings, nugatory. If Dr Kirby is successful in either proceedings, then to the extent of that success, the publication will be removed or amended and will not be available from that time on. Should the stay be granted? 1. The key issues to be decided are whether the stay is appropriate to secure the effectiveness of Dr Kirby's application for review, and whether the stay is desirable taking into account: the interests of Dr Kirby, his wife, persons employed or engaged by his practice and the public interest. 2. A key issue in dispute between the parties is whether, as a consequence of the legal proceedings relating to Dr Kirby conducted over the last four years, the fact that the Prohibition Order was made and the stated reasons for that decision is now, and has been for some time, in the public domain. Put simply, is the cat now out of the bag? 3. Since April 2017, Caselaw and the Australasian Legal Information Institute (AustLII) have published six decisions made by the NSW Court of Appeal (1), Supreme Court (3) and NCAT (2) which refer to the decision by the Dental Council to suspend and later impose conditions on Dr Kirby's registration and/or the Commission's decision to make the Prohibition Order. The opening paragraph in the headnote in Kirby v Dental Council of NSW [2020] NSWCA 91 records the conduct which resulted in the Commission exercising the power to make that order: On 18 December 2015, following a complaint that Dr Kirby was applying a substance known as "Cansema" to the skin of some of his dental patients as purported treatment for skin cancer, the Council by its Delegates suspended Dr Kirby's registration. Following a review by the Delegates, on 12 February 2016 the Council lifted the suspension and instead imposed conditions on Dr Kirby's registration. 1. In addition, the judgment contains several references to the Prohibition Order. See, for example, Kirby v Dental Council of New South Wales [2020] NSWCA 91 at [34]. See, also, Kirby v Health Care t/as Health Care Complaints Commission [2020] NSWSC 1133 at [47]. 2. An internet search conducted by the Commission shortly before the hearing of the stay application reveals that to date these proceedings appear to have escaped media attention. Using the search words "Dr David Kirby", the Commission located a single document, a newsletter produced by a law firm, which contains a report of the decision of the NSW Supreme Court, handed down in December 2018, dismissing an appeal brought by Dr Kirby against the decision by NCAT to affirm the conditions placed on Dr Kirby's registration by the Dental Council of New South Wales. That report refers to the conduct which resulted in the making of the Prohibition Order but not the order itself. 3. It is not possible to say whether the lack of media interest in the proceedings involving Dr Kirby will continue. Nor is it possible to say whether the publication of the Prohibition Order, and the reason for that order on the Commission's website, will generate media interest. However, I accept that if that order is published on the Commission's website, a person who searches the internet using Dr Kirby's name will be able to find that order. [1] It is arguable as contended by Dr Kirby that, given the Commission's "official" status, the publication of a prohibition order on its website has the potential to be more damaging to a health practitioner's reputation than a report of that order made in the context of contested legal proceedings. Equally, it is arguable that a colourful report in the media has the potential to be more damaging than the publication of a prohibition order on the Commission's website. 4. It is difficult to predict how Dr Kirby's patients, and any prospective patients, might react if they were to learn that the Prohibition Order had been made and published on the Commission's website. It may cause some patients to reconsider their choice of practitioner and, in turn, damage Dr Kirby's practice. Equally, some patients may consider it to be of little consequence. The available material, in my view, falls well short of supporting Dr Kirby's feared "worst case scenario" that the Publication Order may destroy his practice. Nonetheless, I accept that the publication on the Commission's website of the Prohibition Order and the accompanying statement of reasons, has the potential to be damaging to Dr Kirby's practice and those engaged by the practice. 5. I also accept that publication and any publicity generated within the community has the potential to be concerning to Dr Kirby's wife who has a health condition. 6. However, I am not persuaded that a stay is reasonably necessary to "secure the effectiveness of the determination" of the administrative review application in the sense discussed in Loveday at [4]-[8]. As the Commission points out, if Dr Kirby is ultimately successful in that application, he will have the benefit of an order setting aside or at least varying the Prohibition Order and/or Publication Order. Similarly, if he is ultimately successful in the appeal to the Court of Appeal, he will have the benefit of those orders being set aside. 7. But even if, the making of the stay order is reasonably necessary to secure the effectiveness of the determination of the administrative review application, I am not persuaded having regard to the factors listed in s 60(3) that it is desirable to make that order. Four years have now elapsed since the Prohibition Order was made. Section 41E required the Commission to enter that order in a register and to make that register available to the public. That has not occurred. Members of the public seeking to enquire about a health practitioner are entitled to expect, as mandated by s 41E, that any prohibition order made in respect of that practitioner will be recorded in the register. It does not follow that because Dr Kirby has given an undertaking to the Commission to comply with the Prohibition Order and may not currently pose a risk to the health and safety of the public, that there is no public interest in the order being published. In my view there is a legitimate public interest in the Commission maintaining, as required by the HCC Act, a register of current prohibition orders that is accessible to the public. 8. I reject the contention that the integrity of the Commission's decision-making processes will be undermined if the Commission publishes the Prohibition Order, and the reasons for that order on its website. I do not accept the proposition that the statement made by the Commission to Dr Kirby in June 2017 — "the Commission does not intend to publish the public statement until the conclusion of the Review proceedings" — can be properly characterised as an "undertaking". In any event, in circumstances where three and a half years have elapsed since that statement was made and, as the Commission points out, there appears to be "no end in sight", in my view, it is entirely appropriate that the decision not to publish be reviewed. The continued deferral of publication has the potential to undermine public confidence in the integrity of the Commission's processes. 9. I find that that the public interest outweighs the interests of Dr Kirby, his wife and those engaged in his practice who may be adversely affected by publication. I am not persuaded that it is desirable to stay the operation of the Publication Order. Orders 1. The application to stay the operation of the Publication Order is refused. ********** Endnote 1. AustLII and NSW Caselaw are freely available websites containing judgements and decisions published by NSW Courts and Tribunals. Each provides a search function, which enables a decision to be located on their respective sites by entering the name of a party. I understand that AustLII and NSW Caselaw use a filter to prevent a decision being accessed through the use of Google or another general search engine. That understanding is consistent with the search conducted by the Commission, which did not identify any of the six reported decisions on AustLII and NSW Caselaw about Dr Kirby. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 21 December 2020