Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Saadi v Dental Council of NSW [2014] NSWCATOD 36 Hearing dates: Decided on the Papers Decision date: 17 April 2014 Jurisdiction: Occupational Division Before: O Shub (Principal Member) Decision: Pursuant to Section 163 (1)(a1) that the council is the appropriate review body to review an application for removal of restrictions on the Applicant's registration Catchwords: Dentist - Unsatisfactory professional conduct Legislation Cited: Health Practitioner Regulation National Law (NSW) (The National Law) Cases Cited: Arkita McAuley v Nursing and Midwifery Council New South Wales [2013] NSW MT 13 at paragraph 27 Category: Principal judgment Parties: Dr Abdulla Hristo Saadi (Applicant) The Dental Council of NSW (Respondent) Representation: Sparke Helmore (Applicant) Christine Campbell (Respondent) File Number(s): 1420090 reasons for decision Background 1On 11 November 2013 the Applicant did by letter lodge a request with the executive officer of the council. That request was made pursuant to section 163(1)(a1) of the National Law (NSW) to the then chairperson of the Dental Tribunal of New South Wales to designate the Council as the appropriate review body for reviewing conditions imposed on the Applicant's registration. Those conditions stemmed from enquiries held by the council on the 4th of February 2011 and 20th May 2011 and the exercise of the Council's powers under section 148E of the National Law. Copies of those enquiry decisions were made available to the Principal Member. 2Neither the Council enquiry decision dated 4th of February 2011 nor the Council enquiry decision dated 20th of May 2011 specified that the Council is to be the appropriate review body for the purposes of a review application under section 163A of the National Law. 3The Council supports this application. Jurisdiction of the Tribunal 4The application concerns the orders and conditions imposed by the Council under section 148E following a Council enquiry. The Council is a "decision-making entity" under section 163a (4)(b1) of the National Law, with respect to the orders made under sub-division 5 of division 3 of the National Law flowing from the Council's enquiries. 5The Council made submissions that the orders imposing conditions and the conditions directly imposed on the Applicant's registration fall within the ambit of the definition of the "relevant order" for the purposes of section 163a of the National Law. 6Some guidance can be taken from the decision of the chairperson of the Nursing and Midwifery Tribunal, Her Honour Jennifer Boland, in the case of Arkita McAuley v Nursing and Midwifery Council New South Wales [2013] NSW MT 13 at paragraph 27 concerning an application under the same section and I quote: "There is some ambiguity when the National Law, on the one hand, provides a power to review an order which order may impose a condition, and an express provision of the National Law which empowers a Council or Tribunal to impose a condition but does not specifically provide a mechanism for the review of a condition or conditions so imposed. Thus, it is not clear whether the drafter intended to distinguish between an order and a condition. Giving a purposeful interpretation to the statute as provided in Schedule 7, and in particular Clause 7 of that Schedule, for the purpose of this application, I have not distinguished between an order requiring compliance with a condition and a condition imposed by a Council, a Performance Review Panel, or a Tribunal. To take a strict interpretation of the legislation would lead to the absurdity that a condition imposed by an order is reviewable, but a condition imposed by a Performance Review Panel is incapable of review." 7In that case the Chairperson determined that a purposive of interpretation of "relevant order" needs to be taken given the objectives of the National Law as expressed in section 3a and the wording of the Council's power to direct the imposition of conditions on a practitioner's registration as well as the requirements of schedule 7, clause 6 of the National Law to prefer an interpretation of the National Law to achieve the objectives of that legislation. 8I agree with that position. Transitional Matters 9This application was referred by the executive officer of the Council to the chairperson of the Dental Tribunal of New South Wales on 20 December 2013. On 1 January 2014 the Dental Tribunal was abolished, and the New South Wales Civil and Administrative Tribunal (NCAT) took over the role of the abolished Tribunal. It was understood that the transitional provisions of schedule 1 of the Civil and Administrative Tribunal Act 2013 applied to the subject application as it was lodged before the establishment date of NCAT (1 January 2014) and as at the establishment date no directions hearing had taken place. 10The Council submitted that the application falls within the ambit of "unheard proceedings" as defined in clause 6 of schedule 1 of the Civil and Administrative Tribunal Act 2013. If this view is correct the application is taken to have been commenced in NCAT and can be heard and determined by NCAT. However whether in NCAT or in the now abolished Dental Tribunal, it is submitted by the Council that this is not an application for hearing by a fully constituted Tribunal panel but that the application is properly dealt with by a single presiding Tribunal member. In the Dental Tribunal of New South Wales, this would have been the chairperson up to and including 31 December 2013. In NCAT such matters are to be dealt with by the list manager in view of the consequential amendments to section 163 (1) (a1) of the National Law. 11This application was directed to me as chairperson of the Dental Tribunal by letter dated 20th of December 2013 and following the commencement of NCAT referred to the list manager. The list manager determined that this application should be referred to me which was done on the 12th of March 2014. Accordingly I am of the view that I have jurisdiction to hear this matter. 12I am also satisfied that it is unnecessary for a full panel hearing to be convened to hear this application, particularly as it is supported by the Council. I have accordingly determined to deal with this application on the papers. 13The issues to be determined in this matter rest on issues of the applicant's competence to conduct certain dental treatment and the satisfactory completion of various educational issues relating to the applicant's ongoing professional training. In addition, there is an issue in regard to repayment to the patient by the applicant of fees charged by the applicant to the patient, the subject of the hearings which took place before the Dental Council. 14I am satisfied that the assessment of the adequacy of such treatment plans are matters which are within the knowledge and expertise of the Council. Council is also best placed to determine when the applicant is competent to provide crown and bridge treatment such that this restriction can be lifted. This restriction was imposed by a Council enquiry, and it is appropriate for the Council to be the review body, given the nature of the conditions and the expertise required to conduct the review of that condition. 15I also believe that it is more efficient for the Council to monitor and enforce the repayment to the patient of fees charged by the applicant. Finding 16Accordingly I find that it is appropriate for the Council to be designated as the review body for the purposes of a review application under section 163A of the National Law. Orders 17I hereby make an order pursuant to section 163 (1) (a1) of the National Law ordering that the Council be the body to deal with a review of the conditions ordered or imposed by the Council following the enquiries heard by that body. Costs 18I make no order as to costs ********** 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 Amendments 13 June 2014 - Typographical error, words omitted Amended paragraphs: coversheet and paragraph 17 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: 13 June 2014