Kirby v Dental Council of New South Wales [2018] NSWSC 1869

Supreme Court New South Wales

Medium Neutral Citation: Kirby v Dental Council of New South Wales [2018] NSWSC 1869 Hearing dates: 23 and 24 October 2018 Date of orders: 06 December 2018 Decision date: 06 December 2018 Jurisdiction: Common Law Before: Barrett AJ Decision: 1. Order that the appeal initiated by summons filed on 26 May 2017 and prosecuted on the grounds stated in the further amended summons filed on 24 October 2018 and all claims in that further amended summons be dismissed.

2. Order that the plaintiff pay the defendant's costs of the proceedings. Catchwords: OCCUPATIONS – health professionals – dental practitioners – appeal by practitioner against decision of Civil and Administrative Tribunal dismissing appeals against decisions of the Dental Council of New South Wales affecting practitioner's registration – challenge to imposition of conditions on registration of practitioner where no finding of incompetence – relevance of professional boundaries in assessment of practitioner conduct

ADMINISTRATIVE LAW – natural justice – apprehended bias – bias through conflicting interest as proponent of administrative action potentially affecting practitioner's registration – such bias distinct from pre-judgment bias – apprehension that mind might be closed is the governing factor in each case – whether the "double might" test in Ebner v Official Trustee in Bankruptcy was satisfied in the particular circumstances

ADMINISTRATIVE LAW – power to compel production of documents or attendance in connection with proceedings potentially affecting practitioner's registration – whether proceedings not lawfully constituted or conducted unless such compulsion exerted on the affected practitioner – whether statute shows an intention to displace privilege against self-exposure to penalty or forfeiture Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Agricultural Societies Council of NSW v Christie [2016] NSWCA 331; (2016) 340 ALR 560 Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1; [2013] HCA 3 Carver v Law Society of New South Wales (1998) 43 NSWLR 71 Clenae v Australia and New Zealand Banking Group Ltd (2000) 205 CLR 337; [2000] HCA 63 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Dickason v Edwards (1910) 10 CLR 243; [1910] HCA 7 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Gascor v Elliott [1997] 1 VR 332 Guinness plc v Saunders [1990] 2 AC 663 Hill v Green (1999) 48 NSWLR 161; [1999] NSWCA 477 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Kirby v Dental Council of New South Wales [2017] NSWCATOD 64 Lindsay v NSW Medical Board [2008] NSWSC 40 McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Moosawi v Massey [2015] QSC 169 Old St Boniface Residents Association v Winnipeg (City) [1990] 3 SCR 1170 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42 Twist v Randwick Municipal Council (1976) 136 CLR 106; [1976] HCA 58 Category: Principal judgment Parties: David William Kirby (plaintiff) Dental Council of New South Wales (defendant) Representation: Counsel: J C Sheller and D Tang (plaintiff) A Horvath and K Lindeman (defendant)