Background
In June 2024, the Occupational Division of the New South Wales Civil and Administrative Tribunal found dentist Dr David Kirby guilty of unsatisfactory professional conduct. That was a stage-one decision; the Tribunal had not yet determined the appropriate protective orders. When the hearing began, the four-member panel included two practising dentists, but one of them, Dr Selby, changed to non-practising registration before the decision was delivered.
Dr Kirby applied to have the finding set aside, arguing that Dr Selby’s changed status meant the panel no longer satisfied the composition requirements in s 165B(2)(b) of the Health Practitioner Regulation National Law (NSW). In October 2025, an NCAT principal member sitting alone accepted that argument and purported to set aside the stage-one decision. The Health Care Complaints Commission appealed.
The Court’s Holding
The Court of Appeal allowed the appeal. It held unanimously that the principal member, sitting alone, lacked jurisdiction to set aside the earlier decision. The purported set-aside ruling was neither an ancillary decision nor an interlocutory decision that could be made by a single member, and s 53 of the Civil and Administrative Tribunal Act 2013 (NSW), which addresses procedural irregularities, supplied no alternative power.
Bell CJ, with Ward P agreeing, concluded that Dr Selby ceased to be a “health practitioner” for s 165B(2)(b) when he stopped practising. Nevertheless, cl 8 of Sch 2 to the NCAT Act authorized him to complete the partly heard matter after losing that qualification. That provision was not displaced by the National Law because it did not conflict with any applicable provision governing the Tribunal. Leeming JA agreed with the result and with the cl 8 analysis but did not finally decide whether s 165B’s composition requirement operated continuously after the panel was initially constituted.
The Court also held that the appeal was competent despite the principal member’s jurisdictional error because the NCAT Act’s definition of “decision” includes a purported decision made beyond the decision-maker’s power. It set aside NCAT’s October 2025 order, dismissed Dr Kirby’s application to NCAT, ordered him to pay the Commission’s appeal costs, and dismissed the parties’ precautionary judicial-review summonses without costs orders.
Key Takeaways
- Party agreement cannot confer jurisdiction on NCAT, and a court must independently satisfy itself that it has jurisdiction even where leave or competency is not contested.
- A ruling that nullifies an earlier stage-one professional-conduct decision is not merely ancillary or interlocutory and cannot be made by a single NCAT member under the provisions invoked here.
- An NCAT member who loses a required qualification during partly heard proceedings may continue under cl 8 of Sch 2 to the NCAT Act where the National Law contains no inconsistent rule applicable to that circumstance.
Why It Matters
The decision preserves continuity in lengthy health-disciplinary proceedings when a panel member’s professional-registration status changes after the hearing has begun. It avoids requiring proceedings to restart unless the governing legislation actually demands that result, while maintaining the National Law’s initial composition requirements.
It also clarifies both the limited character of NCAT’s ancillary and interlocutory powers and the availability of a statutory appeal from a purported NCAT decision affected by jurisdictional error. The ruling restores the finding of unsatisfactory professional conduct but does not itself determine the protective orders to be imposed on Dr Kirby.