DENTAL BOARD OF NSW v NIB HEALTH SERVICES PTY LTD [1996] NSWCA 148

DENTAL BOARD OF NSW v NIB HEALTH SERVICES PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and COLE JJA 22 March 1996, 30 May 1996

[1996] NSWCA 148

DENTAL BOARD determination — took into account impermissible factors — determination quashed — bias alleged — reasonable apprehension of bias probably established test for bias when statutory board comprised of necessarily interested persons.

Priestley JA This appeal was argued at the same time as appeal No 40604/92, the reasons for judgment in which have just been handed down.

In this appeal, as in the other, I agree with the orders proposed by Cole JA. My reasons for this are the same as those stated in the other appeal.

Meagher JA I agree with the order proposed by Cole JA, and generally with his Honour's reasons. However, on the question of perceived bias, I do not agree with his Honour's tentative view. In my opinion, the ordinary reasonable man, once he realised that the Dental Board was constituted by Parliament in such a way that it would usually be dominated by practising dentists, would find it unexceptionable - and indeed, inevitable - that one or more of its members from time to time had strong views on the matters on which it deliberated. He would not perceive bias if this in fact happened. Maybe the average psychopath, to whose imaginary views modern courts seem to pay so much attention, would think otherwise.

Cole JA This is an appeal by the Dental Board of New South Wales from the decision of Smart J delivered 11 July 1995 in which his Honour declared void the Board's determination made on 2 October 1992 refusing NIB Health Care Services' (NIB) application for it to employ or be associated with dentists in carrying on the practice of dentistry at dental health clinic in the Sydney Central Business District (CBD). His Honour also declared that the participation of Dr J W Dale, the then President of the Board, in the consideration and determination of the application gave rise to a reasonable apprehension of bias. Smart J directed that the Board determine the application according to law.