Adams v Health Care Complaints Commission [2025] NSWSC 1212
Adams v Health Care Complaints Commission [2025] NSWSC 1212 is a Supreme Court of New South Wales decision (Harrison AsJ, 16 October 2025) concerning an application for judicial review of the Health Care Complaints Commission’s decision to discontinue a complaint about dental treatment. The Court dismissed the application and summons, and ordered the plaintiff to pay the defendant’s costs on an ordinary basis. Click here to be directed to NSW Caselaw to view the judgment: https://www.caselaw.nsw.gov.au/decision/199e69d882688a13022a1897
Medium Neutral Citation: Adams v Health Care Complaints Commission [2025]
NSWSC 1212
Hearing dates: 4 July 2025
Date of orders: 16 October 2025
Decision date: 16 October 2025
Jurisdiction: Common Law
Before: Harrison AsJ
Decision: (1) The plaintiff’s application for judicial review is
dismissed.
(2) The plaintiff’s summons filed 23 November 2023 is
dismissed.
(3) The plaintiff is to pay the defendant’s costs on an
ordinary basis.
Catchwords: ADMINISTRATIVE LAW — judicial review — procedural
fairness — Health Care Complaints Commission —
decision not to take further steps to progress complaint
against dentist — decision reviewed and confirmed by
commission — whether judicial review available — failure
to take matters into account — public safety — failure to
give reasons
Legislation Cited: Australian Courts Act 1828 (Imp) s 5
Health Care Complaints Act 1993 (NSW) ss 12, 28(8)(b),
92, 99A(2).
Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR
564; [1992] HCA 10
Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48
BQQ15 v Minister for Home Affairs [2019] FCAFC 218
Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2023] NSWCA 215
Dranichnikov v Minister for Immigration and Multicultural
Affairs [2003] HCA 26
Hastwell v Health Care Complaints Commission [2021]
NSWCA 22
Hossain v Minister for Immigration and Border Protection
[2018] HCA 34
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996]
HCA 44
LPDT v Minister for Immigration, Citizenship, Migrant
Services and Multicultural Affairs [2024] HCA 12
Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46
Minister for Immigration and Border Protection v SZSSJ
[2016] HCA 29
Mohareb v Health Care Complaints Commission [2023]
NSWSC 1224
Mohareb v Health Care Complaints Commission [2024]
NSWCA 70
Plaintiff S157/2002 v Commonwealth of Australia [2003]
HCA 2
R v Department of Health; Ex parte Source
“Reg” v Prosser (1848) 11 Beav 306; 50 ER 834
Informatics Ltd [2000] 1 All ER 786
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA
43;(2013) 252 CLR 480
Category: Principal judgment
Parties: Charlie Armstrong Adams (Plaintiff)
Health Care Complaints Commission (Defendant)
Representation: Counsel:
Self-represented (Plaintiff)
I Chatterjee (Defendant)
Solicitors:
Self-represented (Plaintiff)
Health Care Complaints Commission (Defendant)
File Number(s): 2025/00067189
Publication restriction: Nil
JUDGMENT
1 This judgment involves a judicial review of a decision of the Health Care Complaints
Commission.
2 The plaintiff is Charlie Armstrong Adams. He is self-represented. The defendant is the
Health Care Complaints Commission (the HCCC) and is represented by I Chatterjee of
counsel. The parties relied on an agreed joint court book marked as Exhibit A (Ex A).
3 By summons filed 23 November 2023, the plaintiff seeks judicial review of a review
decision of the HCCC dated 4 October 2024, not to proceed with a complaint made by
him against a dentist, Dr Jilin Cai (the dentist), concerning treatment he received from
the dentist on 2 November 2023.
4 Of paramount concern to the plaintiff is the manner in which the dentist dealt with tooth
38 (T38), the plaintiff’s lower left wisdom tooth.
5 The plaintiff seeks an order quashing the decision of the HCCC dated 4 October 2023.
Some of the grounds of judicial review were not pressed at this hearing. The grounds of
judicial review that remain to be decided are procedural unfairness, failure to consider
relevant evidence, neglect of public safety concerns, failure to meet statutory
obligations and non-compliance with s 28(8)(b) of the Health Care Complaints Act 1993
(NSW) (HCC Act). He also seeks an order that the review decision of the HCCC dated
4 October 2024 be quashed and an order compelling the HCCC to reassess his
complaint in compliance with the HCC Act, and principles of natural justice and
fairness, and finally a thorough review of diagnostic failures and their impact on public
safety.
6 At the hearing, the plaintiff was granted leave to rely on a further ground of judicial
review that was not set out in the summons, namely that the notice of the HCCC’s
decision did not contain adequate reasons pursuant to s 28(8)(b) of the HCC Act.
Counsel for the defendant was in a position to meet that additional ground of judicial
review.
Background
7 On 26 May 2023, the plaintiff initially attended upon the dentist reporting pain in
quadrant 2 of his mouth, with specific concerns about two teeth referred to as T25 and
T26. The dentist performed local debridement to flush the gap between T25 and T26,
with advice given to monitor for two weeks and re-attend if his symptoms did not
improve. On 8 September 2023, T26 split and was removed by another dentist.
8 On 2 November 2023, the plaintiff re-attended upon the dentist for a cleaning and
check-up. He reported the split and extraction of T26 (the plaintiff’s upper left wisdom
tooth) to the dentist. The plaintiff was advised by the dentist that grinding was causing
multiple teeth to break at the gum line and that consistent use of a night guard was very
important.
9 The plaintiff subsequently had two further teeth extracted, namely, an upper left wisdom
tooth (identified by the dentist as T28) on 1 February 2024, and a lower left wisdom
tooth (T38) on 28 February 2024, both by a different dentist. The upper tooth had
suffered a vertical root fracture while the lower tooth was “severely decayed” with “a
very large hole”.
10 The plaintiff submitted that the dentist failed to identify the issues with these teeth on 2
November 2023, which led to “ongoing pain, distress, and subsequent dental
procedures”.
11 On 1 February 2024, the plaintiff says he “confronted” the dentist about his concerns
and complained of what he described as the dentist’s “dismissive attitude and lack of
professional accountability”.
Provision of dental records
12 The plaintiff sought the Commission’s assistance in obtaining his dental records. On 19
June 2024, the dentist provided an electronic copy of the plaintiff’s records to the
Commission.
13 With respect to the plaintiff's medical records, the dentist identified that all patients at
the practice (Dental XX) have permanent “access to their complete dental records at
any time and location, immediately available after each appointment” through a phone
app that patients are required to have installed on their phones.
14 The HCCC ultimately provided the plaintiff discovery of the documents it had before it,
including the assessment brief provided to the Dental Council. This is a subject to
which I will return.
15 The dentist provided a substantive response by way of a letter dated 26 June 2024
relevantly asserting that:
(1) The plaintiff did not raise any concerns in relation to T28 or T38;
(2) The available radiographic records from 26 May 2023 showed no pathology for
either tooth;
(3) As the records were less than 6-12 months old at the time, further radiology was
contradicted as it would be “inappropriate for radiation safety”; and
(4) Their condition at the date of extraction is not necessarily reflective of their state
at the date of consultation (which was three months earlier).
16 The dentist also responded to his interaction with the plaintiff in February 2024 and
apologised that “the exchange made Mr Adams feel I was being evasive around his
concerns”, and reflected that the conversation “should have been conducted in a more
apposite fashion”.
17 The Commission consulted with the Dental Council of NSW (the Dental Council) as to
the plaintiff’s complaint, as statutorily required pursuant to s 12 of the HCC Act. The
process in this instance involved three Commission officers consulting with three
Council officers on 8 August 2024. The Council’s recommendation, which the
Commission ultimately adopted, was to “[d]iscontinue with comments”. The Council’s
observations with respect to this complaint (which were also effectively adopted by the
Commission) were as follows:
“The patient complains about the quality of treatment from Dr Cai which the patient
believes “constitutes negligence”.
Mouths such as this where teeth are under significant occlusal stress from grinding are
difficult for the patient to live with and for the dentist to diagnose. Build up of stress in
the teeth over time can create vertical fractures. If the vertical crack actually separates,
diagnosis is easy. But, early detection is impractical and diagnosis of unseparated
cracks in symptomatic teeth is uncertain and tricky.
The clinical notes are thorough. At appointment 1 the testing by Dr Cai on symptomatic
teeth has been described and the diagnosis was provisional and appropriate. Treatment
options were offered with a warning to return if symptoms did not abate.
There is concern however, that Dr Cai does not recognise the possibility that his
examination may not have been thorough. He mentions a few times that photos
of an extracted tooth do not represent the state of the tooth 3 months previous.
This is generally inaccurate as, apart from cracks, the condition of a tooth should
not vary dramatically over 3 months.
Recommendation:
Discontinue with comments
Dr Cai was a very new graduate at the time of the complaint. He must understand that
there are times when he needs to take ownership of any shortcomings in his clinical
skill, he needs to show genuine regret if appropriate and he must improve his clinical
skills continually. In this situation, he must ensure that his clinical examinations are
absolutely thorough in the future.”
[My emphasis added.]
18 The HCCC submitted that the Council’s consideration of T28 and T38 can be seen from
its identification that “diagnosis of unseparated cracks in symptomatic teeth is uncertain
and tricky”, taken with the consideration that the dentist’s “examination may not have
been thorough”, and the rejection of his assertion that “photos of an extracted tooth do
not represent the state of the tooth 3 months previous”. The first observation relates to
T28, while the latter comments are focused on the possibility that the decayed tooth
T38 was in a similar state as at the date of consultation and therefore, may have been
missed by the dentist.
19 On 20 June 2024, the plaintiff also raised various complaints regarding the manner in
which the Commission was assessing his complaint, alleging that the assessment
officer allocated to his complaint was in “potential collusion” with the dentist’s practice,
Dental XX. In correspondence in the days immediately after, the plaintiff also asserted
that he was:
“… increasingly concerned about the conduct of HCCC staff including actions that
suggest systemic issues of obfuscation, corruption, discrimination, and gaslighting. It is
alarming that senior management at the HCCC appears to be neither curbing nor
investigating these serious allegations. This level of corruption is inconsistent with
Australian values and more reminiscent of practices seen in less transparent, third-
world governance structures where agency staff act with impunity.”
20 The plaintiff continued as follows:
“Additionally, I am particularly interested in understanding if the actions of [XXXX],
[XXXX], and [XXXX] have been escalated to senior management for investigation. Their
handling of complaints has raised significant concerns, and I believe it is imperative that
their actions are scrutinized to ensure accountability and integrity within the HCCC.
Furthermore, could you kindly provide me with the contact details of the most senior
official or director at the HCCC? I would appreciate their email address so that I may
escalate my concerns directly.”
21 At the hearing in the court, the plaintiff elected not to press his concerns of bias against
anyone who handled his complaint at the HCCC.
22 On 13 August 2024, the Commission wrote to both the dentist and the plaintiff with
notice of its decision for the purposes of s 28 of the HCC Act. The Commission’s letter
to the plaintiff set out in material form the Council’s observations above and concluded
by notifying the plaintiff that:
“Based on these findings, the Commission and the Dental Council of NSW agreed that
there was not a significant departure from acceptable standards that requires further
action by the Commission.”
23 That day, the plaintiff replied to the Commission requesting a review of the decision
concerning his complaint against the dentist (above). The plaintiff wrote to the
Commission again on 13, 14, 15, 18 and 20 August 2024 concerning the review.
24 The Commission conducted a review that resulted in the same determination. The
plaintiff was informed of that decision by way of an email on 8 October 2024 (attaching
a letter dated 4 October 2024) (the review decision). It relevantly stated:
“The initial assessment determined that the appropriate response to this situation was
to provide feedback to Dr Cai about the importance of recognising potential
shortcomings and that clinical examinations are absolutely thorough. The review
determined that this was the most appropriate outcome in the circumstances and noted
that the feedback was provided with the clear expectation that Dr Cai will improve his
future practice.”
Key findings in the review decision of the HCCC dated 4 October 2024
25 The HCCC found on review it did not find a basis for further action by the Commission
based on the following findings (CB 39-40):
“The key findings of the review are as follows:
During the assessment, the Dental Council of New South Wales thoroughly examined
your concerns. This statutory body comprises practitioners, legal experts, and
community representatives, most of whom are nominated by the NSW Minister for
Health and appointed by the Governor of NSW. The Council possesses the authority to
regulate the conduct and health of registered dental practitioners.
Based on the medical records, the Council concluded that the standard of care provided
did not fall below accepted standards. They noted that Dr Cai's medical records were
detailed and contemporaneous, and that his initial care plan, provisional diagnosis, and
treatment recommendations were reasonable.
While Dr Cai did not identify any issues with teeth 28 and 38, the complexities of
diagnosing vertical fractures were acknowledged by Council. It is understood that tooth
28 was later diagnosed with a vertical root fracture on 1 February 2024, and-
subsequently extracted by Dr Yurka.
The Council recognised your concerns regarding Dr Cai's assessment on 2 November
2023, as well as his assertion that, given there were no reported issues or definitive
symptoms at the time, the photos of the extracted tooth did not accurately reflect its
condition over the previous three months. While it is true that diagnosing such issues
can be challenging, the Council noted that, aside from cracks, a tooth's condition should
not change dramatically within a three-month period.
The initial assessment determined that the appropriate response to this situation was to
provide feedback to Dr Cai about the importance of recognising potential shortcomings
and that clinical examinations are absolutely thorough. The review determined that this
was the most appropriate outcome in the circumstances and noted that the feedback
was provided with the clear expectation that Dr Cai will improve his future practice.
Dr Cai has also acknowledged the communication breakdown that occurred and has
apologised, recognising that his communication during this interaction may not have
been ideal. He has expressed regret for not addressing the situation more effectively
and has committed to enhancing his communication skills through professional
development training.
…”
The summons
26 The grounds of judicial review raised in the summons were firstly, procedural
unfairness; secondly, failure to consider relevant evidence; thirdly, neglect of public
safety concerns; and finally, that the Commission’s decision did not contain adequate
reasons pursuant to s 28(8)(b) of the HCC Act.
27 At the hearing on 4 July 2025, the plaintiff ultimately withdrew appeal ground 2 relating
to bias:
“PLAINTIFF: And secondly, I am, like, not - not contesting bias now.
HER HONOUR: You’re not contesting bias?
PLAINTIFF: No. No.” (T50 [43]-[47])
28 The plaintiff changed his mind but then confirmed that the only grounds that were being
contested included procedural fairness, failure to consider relevant evidence, neglect of
public safety concerns and the new ground of s 28(8)(b) of the HCC Act:
“HER HONOUR: What else do you say can come out now?
PLAINTIFF: So the only points that I would like to contest is - is procedural fairness and
also section 28 clause 8(b). And that’s all that I have to say.” (T51 [16]-[19])
…
“HER HONOUR: What about “failure to consider relevant evidence”? Do you want that
in?
PLAINTIFF: No. No.
HER HONOUR: No, but you’re saying - all right. So two’s gone. Three, “An order
compelling”. With that--
PLAINTIFF: Sorry, your Honour. In fact I will change my mind. It’s a bit--
HER HONOUR: Yes, yes, because it sort of follows.
PLAINTIFF: --like, embarrassing but I’m going to do it.
HER HONOUR: You’re saying they didn’t consider tooth 38. Yes, okay, so I’ll put it back
in. I’ll just write it back in.” (T51 [39]-T52 [4])
…
“PLAINTIFF: I would - would like to include the ...(not transcribable)… public safety--
HER HONOUR: I see.
PLAINTIFF: --because that might be an argument--
HER HONOUR: For costs, okay.
PLAINTIFF: --that I will pull out in costs.” (T54 [20]-[29])
29 Most of these grounds of judicial review overlap. While the plaintiff dealt with each of
grounds 1, 3 and 5 separately, the HCCC dealt with them together. I will set out the
plaintiff’s submissions individually, followed by the HCCC’s submissions then make my
resolution in relation to grounds 1, 3 and 5 together. I will then deal with ground 4 and
the new ground 7 concerning s 28(8)(b) of the HCC Act. As set out earlier, grounds 2
and 6 (being procedural irregularities and suspicious conduct) were not ultimately
contested by the plaintiff.
A preliminary issue
Does this Court have jurisdiction?
30 The HCCC argued that this Court has no jurisdiction to hear this judicial review due to a
decision in Hastwell v Health Care Complaints Commission [2021] NSWCA 22
(‘Hastwell’).
HCCC’s submissions
31 Counsel for the HCCC submitted that this Court does not have jurisdiction to undertake
a judicial review of the review decision of the HCCC confirming its decision not to take
any further action, which was made after examining the plaintiff’s complaint.
32 In Hastwell, Basten JA said:
“[1] BASTEN JA: In August 2016 the applicant, Haydyn Gary Hastwell, made a
complaint to the Medical Council of New South Wales regarding the conduct and
performance of Dr Julian Parmegiani, consultant psychiatrist. The applicant had been
referred to Dr Parmegiani for a medico-legal report which, no doubt if favourable, he
hoped to deploy in a claim against his previous employer. He therefore had had a
contractual relationship with Dr Parmegiani, for the provision of services, in the form of
the report, but not as a patient undergoing treatment.
[2] The complaint was referred to the respondent, the Health Care Complaints
Commission. In circumstances fully explained by Leeming JA, the Commission ceased
dealing with the complaint. On 13 November 2018, two years and two days after the
complaint was discontinued, the applicant filed a summons in the Common Law
Division seeking judicial review of the decision to discontinue dealing with the
complaint.
[3] The primary judge, Rothman J, dismissed the summons. By summons filed on 24
August 2020 the applicant sought leave to appeal from that judgment.
[4] I agree with Leeming JA that the application for leave to appeal should be dismissed,
and that the applicant must pay the Commission’s costs in this Court. I also agree with
the reasons given by Leeming JA for that conclusion, given the way in which the matter
was argued in this Court. However, there is a more fundamental doubt attending the
availability of judicial review to a complainant whose complaint has been considered but
not proceeded with.”
…
[11] Although it was conceded by the Commission that it owed a duty of procedural
fairness to the complainant, the basis of that duty was not identified. Generally
speaking, such a duty is owed in circumstances where a body may exercise power
adversely to the rights or interests of another person. The conferral of such a power will
usually entail an obligation (express or implied) to allow the person an opportunity to be
heard against the exercise of the power, and to be notified of material which might
support such an adverse exercise of the power. However, that is not always the case:
police are not required to provide procedural fairness before arresting a person or
obtaining a search warrant with respect to another person’s premises. Furthermore, the
complainant is not the object of the exercise of the functions imposed on the
Commission: it is the practitioner the subject of the complainant who is the object of
possible sanctions and who will usually be entitled to procedural fairness during the
complaint-handling process.
[12] If a statute “confers power to destroy or prejudice a person’s rights or interests,” it
is accepted that principles of natural justice will regulate the exercise of that power.
Those principles may be of varying content, but will only be excluded by “plain words of
necessary intendment”. However, it remains a question of statutory construction as to
whether the precondition to the obligation arises in a particular case. It is by no means
clear that such an obligation is owed to a complainant in relation to the handling of a
complaint against a medical practitioner by the Commission.
[13] It is correct, as the applicant submitted, that the paramount consideration for the
Commission is “the protection of the health and safety of the public”: Health Care
Complaints Act, s 3(2). This provision identifies a public interest, not the interest of an
individual complainant, and the Commission is given power to pursue such a goal even
if the complainant does not wish to, for example, where any dispute between the
complainant and the health practitioner has been resolved.
[14] There is no issue but that the Commission received the complaint from the Medical
Council, commenced an assessment of the complaint, consulted the Medical Council as
to its proposal not to investigate further, and advised the complainant of the outcome. It
was entitled to take the final step on the basis that the subject-matter of the complaint
was “trivial or does not warrant investigation or conciliation or the Commission dealing
with it under Division 9”: s 27(1)(b). (Division 9 of Pt 2 provides for “an alternate and
neutral process of resolving complaints that is independent of the investigative
processes of the Commission”: s 58B(a).) The power of discontinuance is thus
conferred in broad terms which depend upon the Commission making an evaluative
judgment. That judgment is vested in a body which is the statutory authority responsible
for maintaining standards of the health care system within the State. Arguably, it is no
more subject to the supervisory jurisdiction of this Court than is the police force or a
public prosecutor within their areas of operation.
[15] The principles with respect to public prosecutions were addressed in Barton v The
Queen, which dealt with an attempt to review the filing by the Attorney-General of an ex
officio indictment. In the course of their joint reasons, Gibbs ACJ and Mason J (with
whom other members of the Court relevantly agreed) referred with approval to the
statement in Reg v Prosser that the Attorney-General’s power to stay proceedings or
enter a nolle prosequi was unreviewable, stating:
“Prosser dealt, not with the prerogative power to present an ex officio
information, but with the prerogative to enter a nolle prosequi. None the less,
there is no reason to doubt that the conclusion rests on the general principle
that a prerogative power was not examinable by the courts.”
The same reasoning was adopted with respect to the statutory power found in s 5 of the
Australian Courts Act 1828 (Imp) which authorised the prosecution of criminal offences
by information in the name of the Attorney-General.
[16] In Maxwell v The Queen Gaudron and Gummow JJ stated:
“It ought now be accepted, in our view, that certain decisions involved in the
prosecution process are, of their nature, insusceptible of judicial review. They
include decisions whether or not to prosecute, to enter a nolle prosequi, to
proceed ex officio, whether or not to present evidence and, which is usually an
aspect of one or other of those decisions, decisions as to the particular charge
to be laid or prosecuted.
to be laid or prosecuted.”
[17] One rationale for that approach, namely that the integrity of the judicial process
would be compromised if the courts were to decide who should be prosecuted and for
what, does not apply with respect to disciplinary proceedings. Further, it may be
accepted that, where the statute imposes limitations or obligations, those may be
enforced by way of orders in the nature of prohibition and mandamus. However, the fact
that a “client”, which includes any person who has used or received “health services”
from a health practitioner, may make a complaint about a health practitioner, does not
create an obligation in the Commission to take any particular action on the basis of a
complaint, nor to do more than identify in broad terms the reason why a particular step
has, or has not, been taken. As further explained in the joint reasons in Barton:
“It is not correct to say that the exercise of every power given by statute is
examinable by the courts in the manner suggested by the appellants. It is
correct to say that in cases where a statute confers an administrative discretion
which is unlimited in terms, the court must concede to the repository a discretion
unlimited by anything but the scope and object of the statute. ….
The provision made by s 5 is very different from an ordinary administrative
discretion conferred by statute. The section is a self-contained provision the
scope of which is unaffected by other provisions in the statute. It imposes no
duty on the Attorney-General to consider whether a prosecution shall be
instituted.”
[18] These considerations engage the principled limitation as to the scope of the
supervisory jurisdiction, when invoked to quash a decision. The principle is explained in
Hot Holdings Pty Ltd v Creasy in the following terms:
“The proposition that certiorari will lie only in respect of a decision which
determines questions affecting rights has led to a number of cases, of which the
present is one, where the contention has been that the decision in issue is
merely advisory, provides a recommendation, or is made at a preliminary stage
of a decision-making process.
Consideration of the requirement for certiorari that the impugned decision
determines questions affecting rights, on occasion has been confused with a
distinct body of principle. This concerns the existence of a requirement of
procedural fairness. The conceptual distinction is neatly illustrated by the
decision of this Court in Ainsworth v Criminal Justice Commission. In that case it
was held that there had been a failure to observe the requirements of
procedural fairness but, nevertheless, certiorari did not lie because no legal
effect or consequence attached to the report in question.”
[19] If the Health Care Complaints Act conferred any legally enforceable rights on a
complainant, they were limited to receiving an acknowledgement that a “complaint”
complying with the Act had been lodged, and notification of steps taken to deal with it.
The Commission accepted the complaint and gave the applicant notice, in accordance
with s 28(1) of the Health Care Complaints Act, of its decision to discontinue dealing
with the complaint. It gave reasons for the decision pursuant to s 28(8)(b). There is no
suggestion otherwise. Applying Hot Holdings in the context of the statutory scheme, the
decision to discontinue dealing with the complaint was not reviewable on the grounds
relied on by the applicant.”
[footnotes omitted]
33 Counsel for the HCCC also referred to Leeming JA’s agreement with Basten JA in
Hastwell at [24]:
“[24] I agree with what Basten JA has written doubting the Supreme Court’s jurisdiction
to entertain Mr Hastwell’s application. However, while it is a court’s “first duty” to
consider its jurisdiction, this Court’s jurisdiction to hear and determine the appeal from
the judgment of the Common Law Division is undoubted, and in the absence of a notice
of contention or submissions on the point, it is appropriate to address
Mr Hastwell’s proposed grounds of appeal on their merits…”
34 Counsel for HCCC submitted that in accordance with Hastwell, the review decision is
not amenable to judicial review by the plaintiff. That is, while the dentist was owed
statutorily enshrined obligations in relation to procedural fairness and natural justice, as
the subject of the complaint, the plaintiff was only owed the specific obligations
identified by the Court at [19] of Hastwell; namely, that the complaint had to be
assessed and notice of reasons given, neither of which give rise to the right of certiorari
claimed here.
35 Counsel for the HCCC also submitted that in Mohareb v Health Care Complaints
Commission [2023] NSWSC 1224 (‘Mohareb’), Weinstein J considered that Basten JA’s
analysis in Hastwell was binding but also agreed at [68] with those conclusions,
following consideration of the HCC Act. While the Court of Appeal set aside Mohareb
on a consent basis (in Mohareb v Health Care Complaints Commission [2024] NSWCA
70), when the Commission accepted that it made statements that were incorrect such
that “its Review Decision was invalid and of no effect, being tainted by jurisdictional
error”, the reasoning in Hastwell was not affected.
The plaintiff’s submissions
36 The plaintiff did not make any specific submissions on this topic but I have taken his
other arguments and submissions into account before making this resolution.
Resolution
37 It is my view that the decision in Hastwell does apply here. While the plaintiff may make
a complaint against the dentist, it does not create any obligation on the Commission to
take any particular action on the basis of that complaint, nor to do more than identify in
broad terms the reason that a step has or has not been taken. It follows that this Court
has no jurisdiction to review the review decision of the HCCC confirming its decision
not to take any further action. It is nevertheless not clear whether all of the plaintiff’s
grounds of judicial review relate to the review decision (being the relevant decision).
Hastwell would also be fatal to any judicial ground of appeal that relates to the HCCC
decision. On this basis, the plaintiff’s application for judicial review is dismissed.
38 In the event that I am wrong, I will briefly deal with the plaintiff’s grounds for seeking
judicial review.
Judicial review ground 1 – procedural unfairness
39 This ground of judicial review is that the HCCC failed to provide a fair and impartial
review process by not adequately considering all the evidence provided by the plaintiff,
including photographic evidence and the timeline of dental treatment. This ground of
judicial review overlaps with grounds 3, 5 and the new ground 7.
Plaintiff’s submissions
40 The HCCC failed to conduct a fair and impartial investigation. The decision lacked
transparency and did not adequately address all relevant evidence, including the critical
issue of the black tooth that the dentist cleaned, leaving a black mark in an area he
could not reach due to the positioning of the lower left wisdom tooth, which was butted
up against the second molar.
41 After the lower left wisdom tooth was removed, the black mark, which was previously
obscured, became clearly visible. This black discoloration is generally indicative of
significant dental issues, such as decay or cavity formation. The fact that the dentist
cleaned the tooth without mentioning the black area, nor recording it in his dental
records, raises questions about the thoroughness and accuracy of his assessment.
42 The plaintiff is uncertain whether the HCCC considered the black mark as part of their
investigation, as neither the initial outcome letter nor the review of the decision
mentioned this significant detail. Despite the plaintiff’s request for clarification on this
point, the HCCC did not respond.
43 Given the significance of this omission, it is reasonable to infer that the HCCC’s failure
to address this key evidence demonstrates a lack of procedural fairness in their
decision-making process. In Minister for Immigration and Border Protection v SZSSJ
[2016] HCA 29 (‘SZSSJ’), the High Court held that procedural fairness is a fundamental
requirement in administrative decision making where the rights or interests of an
individual are affected. The Court emphasised that a failure to properly consider critical
evidence relevant to the decision-making process can amount to a breach of
procedural fairness. In the present case, the HCCC’s omission to address the critical
evidence concerning the black tooth, which the dentist cleaned without noting or
recording, parallels the procedural deficiencies identified in SZSSJ. The omission of
this significant diagnostic detail from both the initial decision and the review letter
undermines the transparency and fairness of the investigation, thereby justifying judicial
scrutiny and reassessment.
Judicial review ground 3 – failure to consider relevant evidence
44 This ground of judicial review asserts that the HCCC did not properly evaluate key
evidence, including the timeline of symptoms, the nature of the dental issues, and the
impact of the failure to diagnose the fractured tooth in a timely manner.
Plaintiff’s submissions
45 The HCCC did not adequately consider the evidence the plaintiff presented regarding
the black tooth, which the dentist cleaned without recording or notifying the plaintiff of
its significance. The black area that remained (where the tooth was butted against the
second molar and could not be cleaned) was later revealed to be a significant cavity,
ultimately resulting in the extraction of the tooth.
46 Despite the critical nature of this evidence, in demonstrating a clear diagnostic
oversight, neither the initial outcome letter from the HCCC nor the review of the
decision made any mention of the black tooth or its significance. This omission is
particularly concerning given that the plaintiff raised this issue and requested
clarification, but the HCCC did not respond.
47 This failure to assess crucial diagnostic indicators directly impacted the accuracy and
completeness of the professional conduct assessment, leading to an erroneous and
biased decision. By neglecting to address or even acknowledge this central piece of
evidence, the HCCC’s decision-making process lacked the necessary rigor and
impartiality, thereby compromising the fairness of the review.
48 Both parties referred to the principle established in Dranichnikov v Minister for
Immigration and Multicultural Affairs [2003] HCA 26 (“Dranichniko”’) that a decision-
maker fails to discharge their duty if they do not address or consider a significant and
substantial argument that is central to the case. In this context, the High Court
emphasised that a failure to engage with crucial evidence or material arguments leads
to a decision being legally flawed.
49 The plaintiff further submitted that the HCCC’s failure to address the key evidence of
the black tooth (despite its diagnostic significance and my specific request for
clarification) demonstrates a similar legal error. By omitting this crucial aspect from both
the initial decision and the review, the HCCC failed to fulfill its duty to adequately
consider relevant evidence, thereby compromising the fairness and accuracy of the
professional conduct assessment.
50 In oral submissions, the plaintiff says that his request for review of the HCCC’s decision
was focused on T38 because, unlike the other teeth that he believes the dentist
negligently dealt with, he had taken photographs depicting the black that been cleaned
off.
“PLAINTIFF: So, my point is, is that when I asked for the review of - of the …(not
transcribable)… decision, I honed in and very much focused on tooth number 38,
because I’ve got photographic evidence of the black, the black cleaned off, and the -
and, like, the hole.
HER HONOUR: And the ultimate result, that it was extracted?
PLAINTIFF: Yeah. And that was the central part of my complaint. That was the very -
because the other two teeth, which I believe that there was negligence on, there are
grey areas where I will never be able - how could I put it, there are grey areas that Dr
[Cai] can say, well, some time lapsed in between changes in those teeth could have
happened. I can never, ever prove that. He cannot prove what I’m saying is incorrect
and I can’t prove what he’s saying is incorrect. It is never going to happen. That’s why I
am laser focused on tooth--
HER HONOUR: 38?
PLAINTIFF: Yeah, where there has been black, cleaned off, there’s black on the front of
the front - like, the tooth that was butted up--
HER HONOUR: I understand.
PLAINTIFF: -- and Dr [Cai] made no reference to any black and on a clean and check-
up, a black is a serious - if a tooth is black like that, it is a serious indication that there is
something going on there, and he made no - he didn’t say anything to me about it and
he didn’t--
HER HONOUR: Put it in his notes.
PLAINTIFF: No.
HER HONOUR: You’re agreeing with me, he didn’t put it in the notes?
PLAINTIFF: Correct…” (T21 [6]-[40])
51 By reference to the HCCC’s undated assessment brief (CB 90-92), the plaintiff was
concerned that the additional material that he provided to the HCCC, including
photographs of tooth T38, were not provided to the Dental Council. The forwarding
email (CB 89) from the HCCC to the Dental Council seeking to consult under s 12 of
the HCC Act was dated as having been sent on 25 July 2024, prior to the initial decision
made by the HCCC on 13 August 2024.
“PLAINTIFF: I also gave photos, and I pleaded with the Healthcare Complaints
Commission to investigate tooth number 38, which in the outcome letter for the review
of decision they completely omitted again and ignored all my emails. I find this highly -
highly - I don’t want to make accusations, but I will say this. I find it highly irregular what
has gone on in this - in this particular case. And Mr [Shah] did not want to hand over the
assessment brief. Now it’s [g]ot no date. And I’m trying to find out if it was--
HER HONOUR: It’s got no date - sorry. It’s got what was sent, but the forwarding email
doesn’t appear to have a date on it.
PLAINTIFF: Correct.
HER HONOUR: Yes.
PLAINTIFF: And that’s what I wanted to know, was this - was this after I asked - asked
for the review of decision or was it forwarded to the Dental Council at the investigation
of the first complaint, the first outcome letter from the Healthcare Complaints
Commission? Because when I asked for the review of decision, I also included -
because I couldn’t believe--
HER HONOUR: So, you say you included some additional material? Is that what you say?
PLAINTIFF: Yeah.
HER HONOUR: And you’re not sure whether that would--
PLAINTIFF: Yeah.
HER HONOUR: The Dental Council got that?
PLAINTIFF: Yeah.
HER HONOUR: Is that what you say?
PLAINTIFF: Like, those photos in my view are damning and the Dental Council needed
to see what I submitted later on. I find it highly irregular, and now there’s no date.” (T17
[47]-T18 [35])
HCCC’s oral submissions
52 As counsel for the HCCC explained, the materials that the plaintiff included in his
original complaint to the HCCC (which included emails to DentalXX containing
photographs of the relevant teeth, CB 41-53) were provided to the Dental Council. This
material formed part of the HCCC’s assessment brief (CB 90-02) and was provided to
the Dental Council for the purposes of its assessment before the HCCC’s first decision
was made (noting ultimately, that the HCCC made the decision in line with the Dental
Council’s recommendations). However, the Dental Council was not consulted again
when the review decision was made (the review decision being a review of the HCCC
decision).
“CHATTERJEE: I can tell your Honour that the materials were provided to the Dental
Council for the purposes of the assessment before the first decision, and there was no
further consult with the Dental Council when the review decision was made.
PLAINTIFF: Okay. Well, I am satisfied that - that’s what I wanted.
HER HONOUR: All right. So, the review was the review of the decision of the Dental
Council?
CHATTERJEE: No, it’s a decision by the Health Care Complaints Commission. Before
the Health Care Complaints Commission can make a decision, it must consult.
HER HONOUR: Yes, okay.
CHATTERJEE: So, it consulted, made a decision that was in roughly similar terms to
the recommendations made by the Dental Council.
HER HONOUR: Yes.
CHATTERJEE: Mr Adams sought a review of that decision of the commission. There
was no further consult with the Dental Council when the review decision was made.”
(T20 [25]-[48])
Judicial review ground 5 – failure to meet statutory obligations
53 This ground of judicial review asserts that the HCCC did not comply with its statutory
duties under the HCC Act by inadequately assessing the complaint and failing to
ensure public confidence in the healthcare complaints resolution process
54 S 28(8)(b) Health Care Complaints Act 1993 reads:
(8) The Commission’s notice to the parties to the complaint must include—
…
(b) the reasons for the decision.
Plaintiff’s submissions
55 The HCCC did not fulfill its obligations under the HCC Act, which mandates thorough
and impartial investigation of healthcare complaints. By failing to adequately consider
the key evidence of the black tooth, the HCCC has compromised public confidence in
the healthcare complaint resolution process.
56 The principle established in Plaintiff S157/2002 v Commonwealth of Australia [2003]
HCA 2 highlights that administrative decisions involving jurisdictional errors are not
protected from judicial scrutiny, even where a privative clause exists. The High Court
held that failure to properly consider key evidence or conduct a thorough and impartial
investigation constitutes a jurisdictional error, rendering the decision susceptible to
judicial review. In the context of the HCCC’s decision, the failure to adequately address
the critical evidence regarding the black tooth may amount to such an error, thereby
justifying judicial intervention.
57 During the hearing, the plaintiff provided photographs of his teeth T28 and T38 in his
complaint provided to the HCCC, but he says that those photographs were not given to
the Dental Council such that it could not properly evaluate his complaint. He submitted
that the HCCC did not refer to these photographs and of the black teeth in its review
and decision letter nor was it communicated to the Dental Council, in breach of s 28(8)
(b) of the HCC Act and the obligation to evaluate complaints and give reasons as to
why they did not pursue the complaint and reprimand the dentist.
“PLAINTIFF: Can I just say something. I have - I have seen the assessment brief and
I’ve also seen the - in the court book. The problem with the Health Care Complaints
Commission is that they didn’t give context for the tooth 38.
HER HONOUR: Yes, to the Dentistry Council.
PLAINTIFF: Yeah. Yeah, there was absolutely no context at all. So there was no point
even contacting the - the Dental Council because they didn’t give that information that
the Dental Council needed to make an evaluation. They - they totally— (T9 [25]-[35])”
…
“But my point being is, is that Dr [Cai], what he did is he simply just cleaned off the
black which we can see in the photos that I actually - that I provided to the
Health Care Complaints Commission.” (T11 [4]-7])
…
“PLAINTIFF: ... Now the problem is that this is actually a very, in my view, it’s a very -
it’s a - it’s negligence and I was also expecting the Health Care Complaints Commission
to actually seriously investigate this but they didn’t mention it in their outcome letter,
they didn’t mention in their review of the decision letter and they did not communicate
the context to the Dental Council. This tooth was central to my complaint and although I
might - may not be clear on section 28, I may actually need a little bit more, like, time to
re-find that but my understanding is that the Health Care Complaints Commission when
there is a - when something is central to a complaint they must evaluate it and - and
give a reason why or why not they are not pursuing the complaint or - or they are not -
are reprimanding Doctor [Cai].” (T13 [1]-[12])
…
“HER HONOUR: --“Must include reasons for the decision”?
PLAINTIFF: Yes. But the point is that the - that with number 38, it was never addressed.
There was no reason for the decision because it was totally omitted except for in the
assessment brief where he gave a very vague-- (T14 [14]-[18])”
58 The plaintiff then accepted counsel for the HCCC’s explanation that it was not obliged
to release the documents that the plaintiff requested, being the assessment brief,
because of the protection afforded by s 99A(2) of the HCC Act. However, as mentioned
earlier in this judgment, the HCCC did release those documents, rather than taking the
legal point, in an effort to put the plaintiff’s mind at ease.
“CHATTERJEE: No, your Honour. Let me find the - yes, subs 2, “a person may not be
compelled in any legal proceedings to give evidence about, or produce information
containing, any information obtained in exercising a function under this Act.” So, the
commission’s position is, it is under no legal obligation to produce these documents.
There is a substantial public interest in that non-compellability, because if doctors, for
instance, were aware that their responses - or if witnesses were aware that their
responses could be obtained by a complainant through collateral proceedings, they will
not be frank. In the circumstances of this matter, and to avoid an unnecessary dispute,
a discretionary decision was made to disclose the materials to try and put Mr Adams’
mind at ease. I will just say for the record, that I reject any suggestion that Mr Shar, or
any other officer of the commission, has done anything improper, and they were, most
certainly, entitled to deny, if they wished to do so, the production of the material.
HER HONOUR: Okay.
PLAINTIFF: Okay. I am satisfied with that explanation as a self-represented - I don’t
have a law—” (T19 [32]-[50])
HCCC’s submissions – judicial review grounds 1, 3 and 5
59 Two preliminary matters should be noted. First, as the operative decision is the review
decision, the plaintiff must establish jurisdictional error in the review decision.
60 The second is that, in considering the extent of the HCCC’s function, it was expressly
not granted the “power to determine or recommend general standards of clinical
practice” (s 92, HCC Act).
61 The plaintiff’s judicial review grounds 1, 3 and 5 traverse the same ground, which is an
alleged failure by the Commission to take into account “black discolouration” on T38
said to have been present at the date of consultation, which was not noted by the
dentist, and which is said to be “generally indicative of significant dental issues”.
Ground 1 describes this as a denial of procedural fairness; ground 3 describes it as an
error to consider key evidence; and ground 5 as a breach of statutory obligations.
62 It is accepted that in certain circumstances, a failure to take into account material can
amount to a denial of natural justice, or amount to a constructive failure to exercise
jurisdiction. Referring to Dranichnikov, the HCCC proceeds on the basis that the
plaintiff contends that the HCCC constructively failed to exercise jurisdiction by failing to
take into account “a substantial, clearly articulated argument relying upon established
facts” (per Gummow and Callinan JJ at [23]-[25]).
63 However, the failure to take material into consideration only amounts to jurisdictional
error in very confined circumstances. In Hossain v Minister for Immigration and Border
Protection [2018] HCA 34 (Kiefel CJ, Gageler J and Keane J) (‘Hossain’), jurisdictional
error was defined as (at [24]):
“a failure to comply with one or more statutory preconditions or conditions to an extent
which results in a decision which has been made in fact lacking characteristics
necessary for it to be given force and effect by the statute pursuant to which the
decision-maker purported to make it.”
64 Further, in Dranichnikov, Kirby J observed at [88] (cited with approval by the Court of
Appeal in Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2023] NSWCA 215 at [48]
(‘Ceerose’)):
“[88] Obviously, it is not every mistake in understanding the facts, in applying the law or
in reasoning to a conclusion that will amount to a constructive failure to exercise
jurisdiction. But where, as here, the mistake is essentially definitional, and amounts to a
basic misunderstanding of the case brought by an applicant, the resulting flaw is so
serious as to undermine the lawfulness of the decision in question in a fundamental
way.”
65 Finally, and with respect to the contention that it was a breach of statutory obligations
(and noting that there is no identification of the section(s) said to have been breached),
the High Court observed in LPDT v Minister for Immigration, Citizenship, Migrant
Services and Multicultural Affairs [2024] HCA 12 at [4] (‘LPDT’) (Gageler CJ, Gordon,
Edelman, Steward, Gleeson and Jagot JJ) that:
“A statute which contains an express or implied condition of a conferral of decision-
making authority is not always to be interpreted as denying legal force and effect to
every decision that might be made in breach of that condition. Only by construing the
statute so as to understand the limits of the statutory conferral of decision-making
authority is it possible to determine, first, whether an error has occurred (that is,
whether there has been a breach of an express or implied condition of the statutory conferral of decision-making authority) and, second, whether any such error is
jurisdictional (that is, whether the error has resulted in the decision made lacking legal
force).” (citations omitted)
66 It is not correct to say that the matter was not taken into account. The Dental Council’s
consideration of the conduct proceeded on the basis that the dentist might have failed
to conduct a comprehensive assessment, and specifically might have failed to diagnose
T38 as suffering from decay. That consideration was adopted by the HCCC, which is a
reasonable course noting that the issue is one of technical proficiency and the Council
is best placed to assess that. As the review decision noted:
“During the assessment, the Dental Council of New South Wales thoroughly examined
your concerns. This statutory body comprises practitioners, legal experts, and
community representatives, most of whom are nominated by the NSW Minister for
Health and appointed by the Governor of NSW. The Council possesses the authority to
regulate the conduct and health of registered dental practitioners.”
67 Second, the matters raised by the plaintiff are essentially speculative (Hastwell). There
was no material before the HCCC as to what the state of T38 was as at the date of
consultation, whether the “discolouration” was visible, or what conclusions were
available if it was present. The plaintiff’s own contentions refer to “the black mark -
previously obscured” becoming clearly visible following T38’s extraction. While there is
no doubt that the plaintiff raised the issue of discolouration, that was not an issue based
on “established facts”.
68 Third, it was not a “substantial” argument. As the Court of Appeal observed in Ceerose
at [46], that formulation in Dranichnikov “was used to identify a failure on the part of the
Tribunal to address the central claim it was required to determine”.
69 A slightly different way of putting it is that to the extent that the Commission failed to
consider the discolouration (or more accurately, the possibility that discolouration was
present which the dentist did not adequately consider), that was not material. This is
because the determination proceeded on the basis that the dentist may well have failed
to carry out a “comprehensive examination”. An error is only jurisdictional when “there
is a realistic possibility that the decision that was made in fact could have been different
if the error had not occurred” (LPDT).
HCCC’s oral submissions
70 Counsel for the HCCC noted the material that was provided to the Dental Council when
the first decision (not the HCCC’s review decision) was made. Counsel for the HCCC
then noted that the plaintiff had not identified which material was new and had not been
provided to the Dental Council.
“… So, all of that material was before the Dental Council and Mr Adams hasn’t identified
in the material which was submitted as part of the review, what was the new material
about T38 that required the Dental Council to look at it. And, in my submission, there
was nothing new that was material in relation to tooth 38 that required a review by a
peer expert. So the Dental Council at the time that they did the assessment had all of
the relevant material, including the medical records, the photographs by the dentist, the
photographs by Mr Adams and his description of what had happened.” (T37 [25]-[33])
71 Counsel for the HCCC also noted that in the Dental Council’s agreed outcomes from its
8 August 2024 consultation (CB 94 and Ex B), it rejects the dentist’s assertion that tooth
T38’s condition at the time of extraction should not have changed dramatically in three months. It was for this reason that the Dental Council recommended that the dentist be
given comments, a significant outcome for a newly practising dentist, made where
some shortcoming had been identified.
“CHATTERJEE: The council accepts there that a diagnosis of a vertical fracture, so
that’s what tooth 28 ...(not transcribable)… The fourth paragraph which starts, “There is
concern however”, is the council rejecting Dr [Cai] assertion that tooth 38 didn’t look
the way the photograph showed because what the council says is last sentence, “This
is generally inaccurate as apart from cracks,” so that’s tooth 28, “the condition of a tooth
should not vary dramatically over three months.” And that sentence starts with, “There
is concern however that Doctor [Cai] does not recognise the possibility that his
examination may not have been thorough.”
HER HONOUR: Yes.
CHATTERJEE: And that is what leads to the recommendation that he be given
comments. And the council notes that Dr [Cai] was a very new graduate. And then the
recommendation is that comments be given to him that he needs to take ownership of
shortcomings and he must improve his clinical skills and he must ensure his clinical
examinations are absolutely thorough. And your Honour will appreciate that particularly
for a new practitioner having comments made to the practitioner by the regulator, is a
matter of importance and it wouldn’t be made unless a shortcoming had been identified.
In other words, Mr Adams’s case on a factual basis doesn’t succeed because there was
a recognition that there may have been a misdiagnosis or a failure to diagnose on
2 November 2023 about tooth 38…” (T39 [43]-T40 [16])
72 Counsel for the HCCC submitted that the plaintiff’s complaint about the dentist was
disciplinary in nature, and that the Dental Council, as the peer authority for dentists,
was in the best position to determine how far below standard, a dentist’s conduct falls.
“CHATTERJEE: The Dental Council, your Honour, your Honour will be aware is the
peer authority for dentists. They are the best position to assess how far below standard
a dentist’s conduct falls, as between the commission and the council, that judgment is
best placed with the Dental Council because this is a matter of technical skill, not
propriety. Your Honour will appreciate that this is a disciplinary complaint.
HER HONOUR: Yes, I do.
CHATTERJEE: And even negligence is not necessarily a breach of the code of conduct
or a disciplinary matter because when it comes to skill it has to be significantly below
the standard before it becomes a disciplinary issue. So the judgment of the peer
experts was that there was a possibility that there had not been a diagnosis and the
council considered that in terms of the level of that deficiency, what was appropriate
were comments from the commission. And in my submission, that’s certainly within the
bounds of reasonableness for a decision as to how severe the conduct was. And
your Honour will not disturb or would not consider it appropriate to assess that
reasonableness in the context of a judicial review.” (T40 [47]-T41 [15])
73 Counsel for the HCCC then submitted that in the Commission’s review decision, it was
clear that the Commission dealt with the issue of the dentist’s treatment of T38.
“CHATTERJEE: The review decision is a review of this decision, but it’s not the section
28 notice because he’d already received the section 28 notice here. And if your Honour
looks at this, you will see the second paragraph “Severely decayed lower left wisdom
tooth”, that’s at the fourth line. “...(not transcribable)… cognisant of tooth 38.”
HER HONOUR: Yes.
CHATTERJEE: And then if you look at “Outcome of assessment.”
HER HONOUR: Yes.
CHATTERJEE: That is obviously dealing with tooth 28 because that concerns the third
...(not transcribable)… Then over the page, second bullet point there’s a rejection of Dr
[Cai’s] assertion that tooth 38 didn’t look like that. It says “This is generally inaccurate.”
HER HONOUR: Yes.
CHATTERJEE: And then the determination that--
HER HONOUR: We’ve read.
CHATTERJEE: --comments will be given.
HER HONOUR: Yes. That’s right.
CHATTERJEE: So, looked at in context, there’s no doubt that the commission
appreciated that there was an issue with tooth 38. All of the records were provided in
the judgment of the peer Council. The gravity of that warranted comments but nothing
further.
HER HONOUR: Yes. I understand.
CHATTERJEE: If your Honour looks at the review decision, your Honour had noted that
the third bullet point refers to tooth 38.
HER HONOUR: Hang on, let me find - there it is. Yes.
CHATTERJEE: And what is addressed there is tooth 28.
HER HONOUR: Yes.
CHATTERJEE: Because it’s dealing with fractures.
HER HONOUR: That’s right.
CHATTERJEE: And now that your Honour has context, your Honour will understand
that the fourth bullet points concerns tooth 38 because it’s a rejection of Dr [Cai’s]
assertion that tooth 38 didn’t look like that.” (T41 [48]-T42 [47])
Resolution – judicial review grounds 1, 3 and 5
74 The plaintiff’s judicial review grounds 1, 3 and 5 traverse the same ground. The core
complaint is failure by the HCCC to take into account the “black discolouration” on T38
said to have been present at the date of consultation, which was not noted by the
dentist of the plaintiff’s complaint, and which is said to be “generally indicative of
significant dental issues.” Judicial ground 1 describes this as a denial of procedural
fairness; judicial ground 3 describes it as an error to consider key evidence; and judicial
ground 5 describes it as a breach of statutory obligations.
75 It is my view that the HCCC’s review addressed the plaintiff’s concerns in relation to
T38. At . point 3 of its decision it stated:
“While Dr Cai did not identify any issues with teeth 28 and 38, the complexities of
diagnosing vertical fractures were acknowledged by Council. It is understood that tooth
28 was later diagnosed with a vertical root fracture on 1 February 2024, and-
subsequently extracted by Dr Yurka.”
76 While the plaintiff referred to T28, the central cause of his concern was T38. The HCCC
review panel rejected the dentist’s assertion that T38 “did not look like that”,
recognising that there was an issue with T38. The panel adopted the peer review, that
of the Dental Council, which rejected the dentist’s opinion as to the state of T38, but as
the dentist was newly graduated, it considered the verity of the dentist’s opinion as to
the state and treatment of T38 warranted counselling but nothing further. In these
circumstances there was no denial of procedural fairness, as the review panel did
consider the key evidence and did not breach its statutory obligations. Judicial grounds
3 and 5 fail.
Judicial review ground 4 – neglect of public safety concerns
Plaintiff’s submissions
77 The HCCC failed to recognise the broader implications of the dentist’s diagnostic
oversight, particularly the risk to public health if similar failures occur with other
patients.
78 The decision to only advise the dentist to be more thorough does not adequately
address the potential harm to other patients, reflecting a failure to uphold healthcare
standards.
79 This omission breaches the HCCC’s statutory duty to protect public health and safety.
The principle that healthcare regulators have a duty to protect public health and safety
is reinforced by the reasoning in R v Department of Health; Ex parte Source Informatics
Ltd [2000] 1 All ER 786, where the Court emphasised that the handling of confidential
medical information must be conducted with proper regard to legal obligations. In the
context of healthcare complaints, this principle extends to ensuring that investigative
processes adequately address potential public health risks. The HCCC’s failure to fully
address the implications of the dentist's diagnostic oversight, particularly regarding the
black tooth that was ultimately found to be significantly decayed, demonstrates a lack of
thoroughness in assessing the potential risk to other patients. By merely advising the
dentist to be more thorough, rather than addressing the underlying public safety
concerns, the HCCC did not adequately fulfill its statutory duty to protect public health
and safety.
HCCC’s submissions
80 As identified in Hastwell, the evaluative judgment reposed in the HCCC to discontinue a
complaint is a broad one. The determination to discontinue with comments was within
the bounds of reasonableness. There is no basis on which to assume that the dentist
would present a risk to the public health or that any such failures (if indeed they
occurred) would happen again.
81 While it is not doubted that the plaintiff is genuinely aggrieved by the determination,
“[e]ven emphatic disagreement with the … reasoning is not sufficient” to make out
illogicality or unreasonableness (BQQ15 v Minister for Home Affairs [2019] FCAFC 218
at [51(c)]).
Resolution
82 The dentist was a new graduate who had only been in practice for a short while. In my
view that is a consideration the Dental Council and the HCCC were obliged to take into
account. The dental council did not accept the dentist’s account on examination and
evaluation of T38 was correct. Some of the allegations made by the plaintiff were not
made out. In my view, the decision of the HCCC to discontinue the action with
comments being given to the dentist was reasonable. The HCCC concluded that it did
not consider that the dentist would present a risk to public health. It is a matter for the
Dental Council to evaluate what is reasonable in the circumstances. Judicial ground 4
fails.
Additional judicial review ground 7 – s 28(8) of the HCC Act
83 During the hearing, the plaintiff raised a new ground of judicial review being that the
decision of the Dental Council did not contain adequate reasons as required by s 28(8)
(b) of the HCC Act.
84 In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43;(2013) 252 CLR 480
(‘Wingfoot’), the High Court considered the obligation on a Medical Panel. At [55] the
High Court stated:
“[55] The statement of reasons must explain the actual path of reasoning by which the
Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the
medical question referred to it. The statement of reasons must explain that actual path
of reasoning in sufficient detail to enable a court to see whether the opinion does or
does not involve any error of law.”
Plaintiff’s submissions
85 The plaintiff submitted that while the HCCC does refer to some photos, it is unclear
which photos and which teeth it is referring to in its decision. Rather, the plaintiff asserts
that the HCCC confused itself with broad references to photos and conditions of teeth
and in so doing did not provide reasons for the decision in accordance with s 28(8)(b)
of the HCC Act.
“PLAINTIFF: I mean, look - I mean, look, point number 4, they discuss and they said
that they considered photos. But they don’t say what photos--
HER HONOUR: They say “Photo.”
PLAINTIFF: --that they are referring to. But tooth 38, the - the condition of the tooth can
be proved what that condition of the tooth was in the past previous three months
because Dr [Cai] cleaned the black off, so he already saw it. So, obviously in point
number 4 they can’t be talking about tooth 38. That’s my point. Do you understand what
I’m saying, ma’am?
HER HONOUR: I understand what you’re saying. I understand what you’re telling me.
But I’m not sure that I see the point.
PLAINTIFF: Okay. My point is that [dot] point number 4, they have convoluted and
confused the issues. Therefore, my point on section 28--
HER HONOUR: Yes.
PLAINTIFF: --point 8B. It still exists. They did not give a reason for the decision.
HER HONOUR: Well, in respect of tooth 38?
PLAINTIFF: Yeah.” (T26 [19]-[43])
86 Ultimately, the plaintiff submitted that . point 4 specifically of the HCCC’s review
decision dated 4 October 2024, which stated that the photos of the extracted tooth
submitted by the plaintiff “did not accurately reflect its condition over the previous three
months” is a reference to the upper left tooth that was removed and not tooth T38
because the black was cleaned off by the dentist. Further, the plaintiff submitted that
given the public interest in this matter, the dentist missed the condition of some of the
plaintiff’s teeth and those “conditions could have significant consequences”, the review
decision of the HCCC should be quashed and remitted back to be determined correctly,
with proper reasons.
“PLAINTIFF: --39 of the review of the decision, point 4 - point 4 is actually - it is
discussing the tooth that was removed on - on the - on the upper left. It actually is not in
contact - contacts with point 3, with tooth 38, because tooth 38, the condition cannot be
proved before I saw Dr [Cai] because he cleaned off the black - so, before I saw Dr
Yurka, for the fact is that Dr [Cai] cleaned off ...(not transcribable)… the black. So,
clearly point number 4 is not actual talking about tooth 38, it is talking - it is talking about
the upper left wisdom tooth. So, I submit to the Court that the ...(not transcribable)…
decision should be quashed and remitted back to the Health Care Complaints
Commission--
HER HONOUR: Yes.
PLAINTIFF: --under s 28(8)(b). There’s clearly - there is clearly a stake of public interest
here. There were three ...(not transcribable)… teeth the dentist missed, and wisdom
teeth and infection can have very serious and even life-threatening consequences. I
would hope that the Court remits it back under s 28, and this particular time that they
can also get communication back from the - the Dental Council and the issue can be
resolved with tooth 38 and this time the Health Care Complaints Commission can set
out their outcome letter in - in not a convoluted and confusing—” (T28 [18]-[38])
HCCC’s submissions
87 Counsel for the HCCC noted that the plaintiff’s submissions in relation to s 28(8) of the HCC Act that the plaintiff spent most of his time dealing with, only appeared for the first
time in the plaintiff’s reply submissions. As counsel explained, the plaintiff’s assertions
that s 28(8) was breached because the HCCC did not provide adequate reasons in its
review decision, has not been addressed in the HCCC’s written submissions because
inadequate reasons does not equate to jurisdictional error, and whether construction of
the statute means that the reasons were a precondition of the exercise of power.
“CHATTERJEE: Yes. I should note that s 28 appeared for the first time only in reply
submissions.
HER HONOUR: Yes, we’ve actually managed to deal with it though. Well, I have, I’m
sure you’re going to deal with it, but yes.
CHATTERJEE: Well, to some extent. I can certainly deal with s 28 in so far as it deals
with his grounds of appeal which were breach of procedural fairness, et cetera,
et cetera, et cetera. To the extent that Mr Adams is however making some sort of
inadequate reasons point, that’s nowhere in my written submissions because it wasn’t
raised and the issue’s actually quite complex. Because we’re not in error of law territory,
we’re in jurisdictional error and inadequate reasons does not equate to jurisdictional
error. It would depend on a construction of the statute whether the reasons were a
precondition to the Appeal allowed with costs.
Set aside the order of the New South Wales Court of Appeal and, in lieu thereof, order
that:
(i) the appeal to that Court be allowed with costs;
(ii) the orders made by Clarke J. on 13 November 1986 be set aside; (iii) the action be
stayed on condition that the appellant, in any
proceedings which the respondents bring in Missouri concerning the subject-matter of
these proceedings, undertakes not to plead any defence based upon any statute or
other law relating to the limitation of actions, provided the respondents commence their
proceedings in Missouri within three months of this order; and
(iv) the respondents pay the appellant's costs of the
proceedings before Clarke J.
exercise of power, which in turn will ...(not transcribable)… so it’s actually, it’s a lot more
complicated than just ..(fault in recording equipment)..” (T30 [23]-[39])
Consideration
88 I have already addressed this issue in the earlier grounds of judicial review. In my view,
the HCCC review decision have given adequate reasons. It squarely addressed the
plaintiff’s complaints as to the dentist’s consultation and advice to him and adopted
what the Dental Council, being the peer review panel, decided, in circumstances where
the newly graduated dentist accepted these shortcomings, that the dentist needed to be
counselled. The HCCC review panel in its statement of reasons explained its actual
path of reasoning in sufficient detail to enable this Court to see whether the opinion
does or does not involve any error of law. This decision accorded with Wingfoot. This
ground of judicial review is dismissed.
The result
89 The plaintiff’s application for judicial review fails and is dismissed.
Costs
90 Costs are discretionary. Costs normally follow the event.
91 At the conclusion of the hearing, the plaintiff submitted that even if he lost, he should
not have to pay costs because it was brought as a matter of public interest.
“PLAINTIFF: Okay, I would - would your Honour entertain if I put forward an order that -
that even if I lose that because it is a matter of public interest, that I - that I would not
have to pay costs.” (T53 [39]-[41])
92 Counsel for the HCCC submitted that it was not a matter of public interest (T53 [45]).
93 It is my view that the plaintiff’s complaints to the HCCC in relation to his tooth, T38, and
the manner in which it was dealt with by the HCCC on review do not amount to a matter
of public interest. Hence, there is no reason to depart from the normal rule. The plaintiff
pay the defendant’s costs.
Orders
94 The Court orders that:
(1) The plaintiff’s application for judicial review is dismissed.
(2) The plaintiff’s summons filed 23 November 2023 is dismissed.
(3) The plaintiff is to pay the defendant’s costs on an ordinary basis.
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Amendments
17 October 2025 - Minor change
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