Mahony v Dental Council of NSW [2018] NSWCATOD 146

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mahony v Dental Council of NSW [2018] NSWCATOD 146 Hearing dates: 14 June 2018 Date of orders: 28 August 2018 Decision date: 28 August 2018 Jurisdiction: Occupational Division Before: A Britton, Principal Member Decision: Appeal dismissed Catchwords: STATUTORY INTERPRETATION — meaning of "Committee" in ss158, 158A of Health Practitioner Regulation National Law

TRIBUNALS – whether a health practitioner can appeal to NCAT from a decision of an Assessment Committee Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: CIC Insurance Ltd v Bankstown Football Club [1997] HCA 2 (1997); 187 CLR 384 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 United Airlines v Sercel Australia [2012] NSWCA 24 Texts Cited: DC Pearce & RS Geddes, Statutory Interpretation in Australia, Lexis Nexis Butterworths, 8th edn (2014) Category: Principal judgment Parties: Derek Mahoney (Appellant) Dental Council of NSW (Respondent) Representation: Counsel: A Zahra (Appellant) Z Heger (Respondent) Solicitors: Sparke Helmore Lawyers (Appellant) Crown Solicitor's Office (Respondent) File Number(s): 2018/00129081

REASONS FOR DECISION 1. In New South Wales, complaints against health practitioners may be made either to the Health Care Complaints Commission (HCCC) or to a relevant profession Council: s 144C of the Health Practitioner Regulation National Law (NSW) (the National Law). In this case, a complaint was made against Dr Derek Mahony, a dentist, to the HCCC in 2016. The HCCC then referred the complaint and Dr Mahony's response to the Dental Council of NSW (the Council) in accordance with s 145C(1)(a) of the National Law. 2. The Dental Council, in turn, pursuant to s 145B(1)(d) of the National Law, referred the complaint to an Assessment Committee for investigation. As a result of that referral, in August 2017, the Assessment Committee, pursuant to s 147D(3)(a), recommended that the complaint be dealt with by way of inquiry at a meeting of the Council. Dr Mahony now seeks to appeal against that recommendation. 3. A preliminary jurisdictional issue arises. The Dental Council submits that the NSW Civil and Administrative Tribunal (NCAT) does not have jurisdiction to hear Dr Mahony's appeal. Dr Mahony asserts that it has. For the reasons that follow, I have concluded that NCAT does not have jurisdiction. The appeal must therefore be dismissed.