Clarke v Nursing and Midwifery Council of New South Wales

Ms Clarke's proceedings lodged in the Tribunal in 2020

1. In her application to the Tribunal lodged on 31 January 2020, Ms Clarke sought the following orders; 1. An extension of time be granted to the applicant to proceed with her claim. 2. The Respondent ordered to compensate the applicant with financial compensation for the contraventions evident in the matter complained about and or impose a monetary penalty of the appropriate amount for the penalty against the Respondent. 3. Orders sought under the Health Practitioner Regulations National Law 86a and its provisions therein as follows: a. An order be granted as to how the conditions placed on the Applicant's Nursing Registration on the National Registrar was not complied to due process on 21 September 2015.[sic] b. An order be granted to determine how the initial conditions placed on the applicant's nursing registration on the National Register was deleted from the National Register by not complying to due process on or about 13-25 July 2017.[sic] 5. An order be granted as to why due process was not complied to in suspending the applicant's nursing registration to practice in the capacity of a fully fledged theatre trained Registered Nurse on or about 13-25 July 2017.[sic]
2. In her application lodged on 31 January 2020, Ms Clarke set out the following grounds for her application: 1. that the decision was induced or affected by fraud. 2. an exercise of a power for a purpose other than a purpose for which the power is conferred; (d) an exercise of a discretionary power in bad faith;[sic] 3. that procedures that are required by law to be observed in respect of the conduct have not been, are not being, or are likely not to be, observed; 4. the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was not evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist. 5. an exercise of a power in such a way that the result of the exercise of the power is uncertain; and any other exercise of a power in a way that constitutes abuse of the power and that there is no evidence or other material to justify the making of the proposed decision;
3. In her application lodged on 31 January 2020, Ms Clarke set out as her reason for lodging the application outside the time allowed: The applicant was deemed suffering an impairment under the Law by the Respondent's Court Appointed Practitioner since 29 March 2018.
4. Ms Clarke lodged an external appeal form in the Tribunal on 23 March 2020. Under "Decision Appealed", Ms Clarke nominated the decision she was notified of on 17 July 2017, which is the 13 July 2017 decision.
5. The grounds of appeal set out in the 23 March 2020 appeal form are: Under the Health Practitioner Regulation National Law 86a Sec 150I(b) allegedly occurred by the respondent on 13 July 2017, however a contention exists under Sec 152J on 22 May 2018 susceptible to Ground 1 for argument purposes. 1. The decision was affected by fraudulent and deceptive conduct. 2. The procedures required by law in making the decision were not observed. 3. There was no evidence to make the decision. 4. An exercise of a power for a purpose other than a purpose for which that power is conferred; (d) and exercise of discretionary power in bad faith. An exercise of a power in such a way that the result of the exercise of the power is uncertain; and any other exercise of a power in a way that constitutes abuse of the power and that there is no evidence or other material to justify the making of the proposed decision.
6. In the 23 March 2020 appeal form, Ms Clarke set out the following reason that the appeal was lodged outside the time allowed: The applicant was deemed suffering an impairment under the Health Practitioner Regulation National Law 86a by the Respondent's Council Appointed Practitioner since 29 March 2018. The Applicant was deemed to be suffering from a mood disorder, psychotic and paranoid as at 25 February 2019 The actions of which is contended by the Applicant's attending Psychiatrist for the purposes of counselling presently. [sic]
7. The appeal against the 13 July 2017 decision, which resulted in the decision of the Tribunal in 2017, was an appeal under s 159(1)(b) of the National Law against a decision made by the Council under s 150C of the National Law. Section 159(1)(b) of the National Law is the only provision of the National Law which provides for an appeal to the Tribunal against a decision made under s 150C of the National Law.
8. Ms Clarke, in her application lodged on 31 January 2020, said that her application to the Tribunal was made under the Civil and Administrative Tribunal Act 2013, s 3 A 3 (b). There is no such section. She may have meant s 3(b)(ii), but that does not provide for any right of appeal. Section 3 of the Civil and Administrative Tribunal Act 2013 sets out the objects of the Act.
9. In the external appeal form lodged on 23 March 2020, Ms Clarke said that her appeal was brought under s 150I(b) or s 152J of the National Law. There is no s 150I(b) of the National Law. There is a s 150I, but no part of s 150I confers a right of appeal to the Tribunal, although s 150I(9)(b) provides that the section is subject to anything done by the Tribunal on an appeal. Section 152J does not confer a right of appeal to the Tribunal.
10. In argument, Ms Clarke said that she wished to rely on s 163A of the National Law to found her appeal against the 13 July 2017 decision. Section 163A of the National Law does not confer a right of appeal or review in relation to a decision of a Council under s 150C of the National Law. Under s 163A(4)(b1) of the National Law, the only decisions of a Council which can be the subject of an application for review under s 163A are: orders made under this Division [ie Division 8 of Part 8], Subdivision 5 of Division 3 or section 155C(1)(f).
11. The order made by the Tribunal on 15 November 2017 was that the appeal is dismissed. That order is not an order of the kind which can be the subject of a review by the Tribunal under s 163A of the National Law (see s 163A(1) of the National Law).
12. It was clear from Ms Clarke's submissions that her objective in lodging both the General application form and the External appeal form was to have the Tribunal re-examine the 13 July 2017 decision in the context of all of the events which led to that decision. No evidence was provided to impugn the 21 September 2015 decision.

The Respondent's application

1. In its application filed on 30 April 2020, the Council seeks either of the following orders: a. summarily dismiss the Appellant's appeal pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 on the basis that the current proceedings are "otherwise misconceived or lacking in substance", or b. make an ancillary decision that the Tribunal does not have jurisdiction to hear the appeal on its merits.
2. In its application, the Council referred to its submissions dated 21 April 2020 as setting out the grounds for its application. In summary, those submissions argued the following points:

• The Tribunal decision of 15 November 2017 is conclusive and operative. Ms Clarke did not appeal from the Tribunal decision.
• Ms Clarke has exercised and exhausted her right of appeal in relation to the 13 July 2017 decision.
• If allegations of misconduct on the part of the Council are to be made, including fraudulent or deceptive conduct, then the Tribunal is not the appropriate forum to deal with such claims.
• In the years subsequent to the Tribunal's decision of 15 November 2017, several decisions have been made under the National Law in relation to Ms Clarke's registration, with her participation. The 13 July 2017 decision is no longer the source of the condition imposed on Ms Clarke's registration. The most recent review was a health review under s 152K of the National Law, in relation to which Ms Clarke has a right of appeal which she has not, to date, exercised.

Statutory provisions

1. The Civil and Administrative Tribunal Act 2013 provides, in s 55(1)(b): (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,
2. The respondent's application seeks an ancillary decision as to jurisdiction and the summary dismissal of proceedings, which is an interlocutory decision (see s 4 of the Civil and Administrative Tribunal Act 2013). The Tribunal is properly constituted to make those decisions under s 165B(5A) of the National Law.

Misconceived

1. Both the 21 September 2015 decision and the 13 July 2017 decision have been superseded by the 30 March 2018 decision. This is so whether the condition imposed on 30 March 2018 was imposed with Ms Clarke's consent, as the Council asserts, or whether it was imposed without Ms Clarke's consent, as Ms Clarke asserts.
2. A re-examination of the 13 July 2017 decision or the Tribunal's decision of 15 November 2017 could not produce any outcome which would have any practical effect on Ms Clarke's registration as it is at present.
3. It is a long-standing principle that Courts and Tribunals do not entertain abstract, academic or hypothetical disputes, but, rather, confine themselves to live disputes where an outcome is needed for a practical purpose. (see Sir John Laws Judicial Remedies and the Constitution (1994) 57 MLR 213 and Zamir and Woolf The Declaratory Judgment (Sweet and Maxwell, 2002)).
4. There is nothing in either the National Law or the Civil and Administrative Tribunal Act 2013 which provides any reason to think that the legislature intended this Tribunal to entertain an abstract, academic or hypothetical dispute.
5. Ms Clarke is attempting, by both of her initiating proceedings in the Tribunal, to agitate a dispute which is academic in the sense that the resolution of the dispute can have no practical impact upon the subject matter of the dispute.
6. It is not clear, but Ms Clarke may believe that, if she can successfully attack the 13 July 2017 decision, then the decisions which followed it will also somehow cease to have effect. That is not the case. The condition imposed by the 30 March 2018 decision stands independently of the 21 September 2015 and the 13 July 2017 decision.
7. Ms Clarke's application and her external appeal are misconceived. Both sets of proceedings should be dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 for that reason.
8. I will, however, address the other issues raised.

Principle of finality

1. The decision of the Tribunal on 15 November 2017 was a decision which was made in the context of an appeal under s 159(1)(b) of the National Law. That appeal was dealt with by way of a new hearing with fresh evidence in addition to the evidence that was before the Council, under s 159(3) of the National Law. The Tribunal's decision was made after hearing an appeal de novo (or a merits review) of the Council's decision, and was administrative in character.
2. The first question to be answered is whether the Tribunal's decision was a final decision, which disposed of the 13 July 2017 decision, subject only to the rights of appeal provided for under the Civil and Administrative Tribunal Act 2013, which Ms Clarke did not exercise.
3. In Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] 209 CLR 597, Gleeson CJ said, at [5]-[8]: 5. There is nothing in the nature of an administrative decision which requires a conclusion that a power to make a decision, once purportedly exercised, is necessarily spent. In Ridge v Baldwin[4], Lord Reid said: "I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid." 6. That general proposition must yield to the legislation under which a decision-maker is acting. And much may depend upon the nature of the power that is being exercised and of the error that has been made. 7. In Chandler v Alberta Association of Architects[5] Sopinka J, speaking for the majority in the Supreme Court of Canada, pointed out that, as a general rule, subject to a power to correct a slip or an error of expression, a tribunal cannot revisit its own decision because it has changed its mind, or recognises that it has made an error within jurisdiction, or because there has been a change of circumstances[6]. However, the Court held that the principle of functus officio should not be strictly applied if the tribunal has failed to discharge its statutory function and "there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation."[7] 8. The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or, to use the language of Lord Reid, reconsider the whole matter afresh?

Does the National Law or the Civil and Administrative Tribunal Act 2013 manifest an intention to permit or prohibit reconsideration of the decision in the present circumstances?

1. The Civil and Administrative Tribunal Act 2013 provides, in s 28(1): 28 Jurisdiction of Tribunal generally (1) The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.
2. The National Law provides, in s 159(1)(b): 159 Right of appeal [NSW] (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession - … (b) against conditions imposed by the Council for the health profession on the person's registration under section 127AA or Division 3 or 4 or the alteration of the conditions by the Council;
3. The Civil and Administrative Tribunal Act 2013 provides, in s 61: 61 When decision determining proceedings takes effect A general decision or a decision determining an external or internal appeal takes effect on the date on which it is given or such later date as may be specified in the decision.
4. Ms Clarke's appeal to the Tribunal against the 13 July 2017 decision was an external appeal as described by s 31 of the Civil and Administrative Tribunal Act 2013. The Tribunal's decision in relation to that appeal, on 15 November 2017, took effect on 15 November 2017.
5. The Civil and Administrative Tribunal Act 2013 provides, in s 83, for an appeal to the Supreme Court from a decision of the Tribunal on an external appeal. As I have said, above, Ms Clarke did not exercise her right of appeal.
6. The Civil and Administrative Tribunal Act 2013 provides, in s 63, a power to correct 'an obvious error' in a Tribunal decision. Examples of 'an obvious error' are given in s 63(3), and it is clear that this provision is in the nature of a slip rule. It does not derogate from the finality of the Tribunal's decision of 15 November 2017.
7. The Civil and Administrative Tribunal Regulation 2013 (NSW), in reg 9, provide for the Tribunal to set aside or vary its own decision in circumstances where both parties have consented to such an order or if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. The circumstances which are a pre-condition to the exercise of the power in reg 9 are not present in this matter.
8. In the circumstances of this matter, including the omission on the part of Ms Clarke to exercise her appeal right, the Civil and Administrative Tribunal Act 2013, in s 61, evinces an intention that the Tribunal's decision is to be the final resolution of the appeal from the 13 July 2017 decision.

Interpretation Act 1987 (NSW)

1. The Interpretation Act 1987 provides, in s 48(1): 48 Exercise of statutory functions (1) If an Act or instrument confers or imposes a function on any person or body, the function may be exercised (or, in the case of a duty, shall be performed) from time to time as occasion requires.
2. It has long been recognised that this provision, and the equivalent provisions in jurisdictions other than NSW, are not intended to confer a 'power to make and unmake decisions infinitely' (see Walter Construction Group Limited v Fair Trading Administrative Corporation [2005] NSWCA 65 at [53]).
3. Where a decision is a final decision in the context of the statutory scheme in which it was made, then there is no 'occasion' for the reconsideration of that decision by the same decision maker under a provision such as s 48 of the Interpretation Act 1987 (see Export Development Grants Board v EMI (Australia) Ltd (1985) 9 FCR 269, Kabourakis v The Medical Practitioners Board of Victoria [2006] VSCA 301 [82]-[86], and Stephen J Moloney Finality of Administrative Decisions and Decisions of the Statutory Tribunal AIAL Forum No 61 p 35).
4. The Tribunal is not empowered, by s 48 of the Interpretation Act 1987 to re-examine its decision of 15 November 2017.

Is the Tribunal's decision affected by jurisdictional error?

1. Ms Clarke's initiating proceedings, the material she placed before this Tribunal and her submissions made it clear that the decision she was seeking to impugn was the 13 July 2017 decision. She did not complain of the Tribunal's decision of 15 November 2017 except to imply that it must have been wrong in not overturning the 13 July 2017 decision which Ms Clarke asserted to be an invalid decision. To put Ms Clarke's argument at its very highest, it could be viewed as an allegation that the 13 July 2017 decision was affected by jurisdictional error and was thus a nullity, with the result that Ms Clarke's own appeal against the 13 July 2017 decision, commenced on 15 July 2017, was itself a nullity and so was the Tribunal's decision in that appeal.
2. I have read all of the material submitted by Ms Clarke in these proceedings and considered her oral and written submissions. Ms Clarke made a number of assertions that the decisions of 21 September 2015 and 13 July 2017 were affected by errors which ought to have invalidated those decisions. A great many of Ms Clarke's complaints about those decisions do not amount to complaints of a jurisdictional error. Where the complaints could amount to complaints of jurisdictional error, no evidence of jurisdictional error has been provided to the Tribunal.
3. I bear in mind that the Tribunal's decision of 15 November 2017 followed the hearing of an appeal de novo. Ms Clarke was present for that hearing, and participated. It is evident from the Tribunal's decision that it approached the matter as a fresh consideration of the discretion to be exercised under s 150(1) of the National Law.
4. On the basis of the material before me, I am unable to find that either the decision of the Tribunal of 15 November 2017 or the decisions of the Council of 21 September 2015 or 13 July 2017 were affected by jurisdictional error.

Conclusion on the principle of finality

1. The Tribunal, in 2017, had power to hear and determine an appeal against the 13 July 2013 decision under s 159(1)(b) of the National Law. That power was exercised and exhausted upon the publication of the Tribunal's decision on 15 November 2017. The Tribunal's decision was a final decision. There is no evidentiary basis for the allegations that the 21 September 2015 decision, the 13 July 2017 decision or the Tribunal's decision was affected by jurisdictional error.

Conclusion

1. The Council seeks the summary dismissal of both the application and the external appeal initiated by Ms Clarke in this Tribunal, pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013, on the basis that those proceedings are 'misconceived or lacking in substance'.
2. I have determined that both Ms Clarke's application and her external appeal are misconceived, in that they relate to decisions which are no longer operative because they have been superseded by the decision of 30 March 2018, which has, itself, been reviewed subsequently.
3. The reconsideration of the 21 September 2015 decision or the 13 July 2017 decision would have no practical effect on Ms Clarke's registration or the condition attached to that registration, and the Tribunal should not, therefore, hear the matters. The Tribunal should not entertain matters which are entirely abstract, academic or hypothetical.
4. The Tribunal's decision of 15 November 2017 was a final decision. It was not affected by jurisdictional error.
5. There is no evidentiary basis before me upon which I could conclude that the decisions of the Council on 21 September 2015 and 13 July 2017 were affected by jurisdictional error.
6. There is no basis in law upon which this Tribunal could reconsider its decision of 15 November 2017.

Orders 1. The proceedings filed by Ms Clarke on 31 January 2020 and 23 March 2020 in matter number 2020/00032150 are summarily dismissed on the basis that they are misconceived.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 June 2020