Deano v Health Care Complaints Commission

Judgment 1The appellant, Ms Nusret Deano, brought an appeal from a decision of the Nurses and Midwifes Tribunal of NSW under s 162 of the Health Practitioner Regulation National Law (NSW) , by way of a summons filed on 10 November 2011. The orders there sought included an order for a stay of the Tribunal's decision. By a motion filed on 9 December 2011, Ms Deano sought a number of orders. Two were pressed at the hearing: an order staying the Tribunal's 14 October 2011 order cancelling Ms Deano's registration as a nurse until the determination of the appeal; and alternatively, a stay and restoration of her registration on specified conditions, until determination of the appeal. 2On 14 October 2011, the Tribunal made two orders, one cancelling Ms Deano's registration and the other, that she not apply for a review of that order, for a period of two years. 3The orders Ms Deano sought were opposed and the Court's power to make them was challenged by the first respondent, the Health Care Complaints Commission.

The Court's power 4Section 162(1) of the Act gives Ms Deano a right to appeal the Tribunal's decision on a point of law. Such an appeal must be made within 28 days of the Tribunal's decision (s 162(3)). The Court has power to 'stay any order made by the Tribunal, on the terms the Court sees fit, until the time the Court decides the appeal' (s 162(4)). 5The Tribunal gave reasons for its decision on 14 October. The order made that day did not specify any date of operation. A later date of operation could have been sought of the Tribunal, but it was not, with the result that by operation of s 166A(a), the order took effect on the day it was made, 14 October. The order was implemented on 20 October 2011. In evidence was an extract from the Australian Health Practitioner Regulation Agency website, relating to Ms Deano's registration status, which recorded the cancellation of Ms Deano's registration on that date. 6There was no application made to the Tribunal for any postponement of its decision, pending the appeal, and no pursuit of a stay before this Court, until 9 December 2011, after the cancellation of Ms Deano's registration. The filing of the appeal did not of itself give rise to a stay of the order in question. That requires an application to be pursued before the Court. That application was made by the motion brought on 9 December. 7In those circumstances, a question arose as to whether the Court had power to order the stay of the Tribunal's order cancelling Ms Deano's registration, when it has been given administrative effect. For Ms Deano, reliance was placed on the power to grant a stay given the Court by s 162(4) of the Act. 8The existence of such a power was considered by Handley J in McBride v Walton (Court of Appeal, Handley JA, 27 August 1993, unreported), in circumstances similar to those which have here arisen. His Honour concluded that no stay could be granted under a similar power to order a stay given to the Court by s 30(6) of the Medical Practitioners Act 1938. There, too, at the time the application for the stay was brought, the doctor's name had already been removed from the Register. His Honour observed that the only power granted by the section was to stay the Tribunal's order and that there was no power to order re-registration or reinstatement to the Register, on an interim basis, pending hearing of the appeal. 9In those circumstances, his Honour considered that where the order that was sought to be stayed, having been treated as authority for administrative action which had already been taken, the grant of the stay sought would only have future legal effect and would not operate to restore the doctor to the Register. In coming to that conclusion, his Honour referred to Wilde v Australian Trade Equipment Co Pty Ltd [1981] HCA 13; (1981) 145 CLR 590, where it was observed at 603 that: "... the consequence that will follow an order setting aside an earlier decision will vary from case to case. So long as the earlier decision stands, and no stay is operative, it is a lawful decision and the action taken in reliance upon it is lawful. It is true that from the moment it is set aside the order can no longer provide the lawful justification for further action, but whether what has been done can be undone will depend upon the availability of appropriate remedies, to bring about the appropriate relief." 10His Honour concluded that in the circumstances, the order sought could not be made. 11In the case of this statutory scheme it also appears that the Court has been given no power to revoke the cancellation of a nurse's registration, pending the hearing of an appeal, even if a stay of the Tribunal's order is granted. The practical effect of that situation is that if an appeal from the Tribunals' order is being contemplated, an approach should be made to the Tribunal, postponing the date of effect of the order. If that step is not taken and the order is implemented before any approach is made to this Court, no stay of the Tribunal's order can effect the reinstatement of a nurse's cancelled registration. 12Mc Bride was considered in AVS Group Of Companies Pty Ltd v Commissioner Of Police [2010] NSWCA 81 at [93] - [97]. The statutory scheme there in question, the Administrative Decisions Tribunal Act 1997 ('the ADT Act'), was different to the Act here in question and the legislation considered in McBride . It was found that s 60(2) of the ADT Act granted the Court wider powers than the mere granting of a stay. It also gave power to "make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application." 13It was concluded that this power 'is one that is wide enough to enable the Tribunal to temporarily reinstate a licence that has been revoked pending the hearing of an application for review of a decision to revoke the licence.' (see at [96]) . There is no comparable provision in this legislative scheme. 14Reference was also made to New South Wales Bar Association v Stevens [2003] NSWCA 95, where the Court's general powers to grant a stay under s 23 of the Supreme Court Act 1970 was considered (see at [83] - [104]). Also considered was the grant of a stay in cases 'where a stay is sought in the context of regulatory proceedings taken in the public interest' (at [89]). Reference was then made to a number of other cases where an application for stay brought by medical practitioners was considered, it being observed that: "91 The relevant authorities indicate that the protection of the public is a matter entitled to significant weight on an application for a stay once it appears that a professional person has acted improperly to a substantial degree." 15McBride was not one of the cases referred to in Stevens . The authorities referred to were ones in which there was no difficulty of the kind there discussed. In Sinha v Health Care Complaints Commission [2001] NSWCA 48, for example, the Tribunal had granted a stay of its order for a certain period on specified conditions and what was in issue before the Court was the continuation of the stay, on terms other than those imposed by the Tribunal. 16In the circumstances of this case, it seems to me that the arguments advanced for Ms Deano, that the legislative scheme here in question is similar to that considered in AVS Group, with the result that McBride may be distinguished, cannot be accepted. 17There is no express power granted to the Court to order the restoration of Ms Deano's registration, pending determination of the appeal, even if a stay of the Tribunal's order is granted. Section 162A provides for the powers to be exercised on the appeal. There is no implicit power thereby granted to order the restoration of the registration, pending determination of the appeal. The section provides: " 162A Powers of Supreme Court on appeal [NSW] (1) In deciding the appeal, the Supreme Court may- (a) dismiss the appeal; or (b) make the order it thinks proper having regard to the merits of the case and the public welfare, and in doing so may exercise any one or more of the powers of the Tribunal under this Law. (2) If the Supreme Court dismisses an appeal against an order of the Tribunal, the Court may by order direct that the Tribunal's order is to be taken to include provision that an application for its review under Subdivision 3 of Division 6 may not be made until after a specified time." 18The Court is also given a power of review of the order that Ms Deano's registration be cancelled, by s 163A. Section 163B(1)(c) empowers the Court to order Ms Deano's reinstatement. A ' reinstatement order' is: "(3) an order that the person be registered subject to the same conditions and limitations (if any) to which the person's registration was subject immediately before the person ceased to be registered." 19Section 163B(4) also permits the Court to 'impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order'. 20The exercise of these powers, are, however, subject to the limitation provided in 163A(3), namely: "(3) An application for review of an order may not be made - (a) while the terms of the order provide that an application for review may not be made; or (b) while an appeal to a Tribunal or the Supreme Court in respect of the same matter is pending." 21It follows that given the terms of the Tribunal's order, it may not be reviewed by the Court, during the course of this stay application, given the pending appeal and the terms of the order. 22In all of those circumstances, the application for the stay must be refused. The Court has no power to make either of the orders sought in the alternative.