Tribunal dismisses proceeding by former registered dentist against Dental Board

04 Oct 2017

Tribunal dismisses proceeding brought by a former registered dentist against the Dental Board of Australia relating to her application for registration.

The Victorian Civil and Administrative Tribunal (VCAT) has dismissed a proceeding brought by a former registered dentist against the Dental Board of Australia (the Board) relating to her application for registration.

On 15 April 2016, Cathy Pham made an application to the Board for general registration, having earlier surrendered her registration in 2014. The Board began to process Ms Pham’s application but did not make a decision within the 90-day timeframe stipulated under section 85 of the Health Practitioner Regulation National Law, as in force in each state and territory (the National Law). There is provision for the 90-day period to be extended by consent. The Board requested an extension of time to process and assess her application but Ms Pham refused. The application was therefore not put to the Board for consideration, and the Board made no decision as to her application. As a result, the application was deemed to be refused under section 85 of the National Law (deemed refusal).

Ms Pham appealed the matter to VCAT on 6 July 2016. At a hearing on 2 December 2016, VCAT invited the Board to reconsider Ms Pham’s application for registration. Upon reconsideration, the Registration Committee of the Victorian Board of the Board (Committee), under delegated powers, decided that a performance assessment was necessary to assess Ms Pham’s ability to practise. The Committee notified Ms Pham in a letter dated 21 December that it proposed to set aside the deemed refusal and substitute it with a decision requiring Ms Pham to undergo a performance assessment, offering three options as to how it could be undertaken. The Board proposed to make a final decision on the application following the assessment. Ms Pham refused to undergo the proposed performance assessment.

On 8 February 2017, the Committee set aside the deemed refusal and substituted a new decision requiring Ms Pham to undertake the assessment as a precondition to the Board making a final decision on her application. The Committee notified Ms Pham of its decision in a letter dated 6 March and she again advised she would not undertake the assessment. Under section 80(5) of the National Law, her application was taken to be withdrawn by force of law. Ms Pham requested that the matter be relisted for hearing.

At a VCAT hearing on 1 August 2017, Ms Pham sought to have her initial application determined by VCAT and submitted it has jurisdiction to do so. The Board submitted that VCAT had no jurisdiction to hear the original application, as it had been substituted with a new decision. It also submitted that VCAT did not have jurisdiction to review the substituted decision, as a decision to require a performance assessment is not a reviewable decision under section 199 of the National Law. The Board further submitted that as the application was taken to be withdrawn by force of law, VCAT had no application before it.

In its decision dated 10 August 2017, VCAT accepted the Board’s submissions that it had no jurisdiction to hear Ms Pham’s application on the basis that there was no appellable decision before it, and dismissed the proceeding. In making its decision, VCAT reiterated that it had no power to conduct a judicial review, stated that it was abundantly clear from the terms of the National Law that a decision to refer a performance assessment was not an appellable decision and that VCAT therefore did not have jurisdiction to review the decision. It stated that there was no scope for reading down or ignoring the effect of section 80(5) of the National Law.

The decision is available on VCAT’s website.