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[2011] NSWSC 1570
Supreme Court of NSW
2011-12-12
Schmidt J, Handley JA, Handley J
Original judgment source is linked above.
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.
Discretionary considerations 23I should shortly say something about the discretionary matters which arise for consideration, had a different conclusion been available in respect of the Court's powers to grant either of the orders sought. The terms of the stay which were sought, was the imposition of conditions which the Tribunal was itself prepared to consider imposing on Ms Deano. 24It appears that she was unrepresented at the hearing before the Tribunal, but that beforehand, she had been legally represented. There were various submissions advanced to support Ms Deano's case that she had been denied procedural fairness at the hearing and that the Tribunal had erred in the course pursued, because there had been an error made in the terms of the complaint, which had not been addressed in the proceedings. 25It does not seem to me that there is much substance in either complaint. One complaint was addressed to the absence of an evidentiary statement from a particular witness, but Ms Deano had been served with transcripts of interviews which that witness had given, as well as other relevant documents. The alleged error in the complaint which the Tribunal was considering, appears to have reflected that this statutory scheme comprehends the notion of 'unsatisfactory professional conduct' defined in s 139B and 'professional misconduct' dealt within s 139E, which provides: " 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration." 26Two complaints were advanced against the applicant, one in relation to 'unsatisfactory professional conduct' and the other 'professional misconduct'. Similar particulars were provided in respect of the two complaints. Given the statutory definitions, it is difficult to see that there is anything inherently wrong in that approach being adopted to the complaints made. 27The Tribunal's reasons reveal that, having noted the two complaints which related to an identified period and particular employment, the evidence was considered against the particulars of the complaints provided, with the result that: "[102] The Tribunal is satisfied, considering all the instances of unsatisfactory professional conduct found against the respondent, that these, together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of Ms Deano's registration as a nurse and midwife." 28The Tribunal also observed: "[99] ... The Tribunal is satisfied that these matters, taken together, constitute improper conduct and lapses in judgement and care below the level reasonably expected of a registered nurse of the respondent's training and experience." 29The Tribunal also observed that having considered the evidence as to Ms Deano's personal circumstances, consideration was given by the Tribunal to the imposition of conditions on her registration, or suspension, but concluded that given Ms Deano's insistence that she had done nothing wrong, conditions which would adequately address her apparent deficiencies in judgment and practice, could not be formulated. It was also concluded that there was an insufficient basis for confidence that misconduct would not recur, if there was merely a suspension. 30Those conclusions reflect that earlier on 4 April, the Tribunal had invited submissions from both Ms Deano and the HCCC as to certain proposed conditions, as an alternative to her removal from the Register. Ms Deano did not respond to that invitation. It is those conditions which now, however, form the basis of the conditions of stay which are sought. 31In her affidavit, Ms Deano gave an explanation of her many years of clinical experience in acute care in hospitals and her difficulties in dealing with this litigation and the difficult personal consequences of the cancellation of her registration. The complaint related to a period between 2008 and 2009 when she was working at Concord Hospital. She continued her professional work up to the time of the Tribunal's order, without any further difficulty. That was a matter particularly relied on, to urge the restoration of her registration on the specified conditions. 32Given the nature of the conclusions reached by the Tribunal as to Ms Deano's view that she had done nothing wrong, a view which largely appears to remain, given the matters to which she deposed in her affidavit, it is difficult to see that a discretion could be exercised in her favour, on the conditions of practice which she says she is now prepared to accept, but was not prepared to consider, when they were put to her by the Tribunal, Having in mind the matters discussed in Stevens in relation to the consideration which must be given to protection of the public and the Tribunal's views as to Ms Deano's unsatisfactory professional conduct, in my view if there was a discretion available to be exercised, it could not in these circumstances be exercised, in favour of the grant of the application.
Order 33The usual order as to costs is that they should follow the event, with the result that Ms Deano must bear the costs of the motion as agreed or assessed. The parties have liberty to approach if they wish to be heard on costs. 34For the reasons given, otherwise I order that the motion be dismissed.
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: 19 December 2011
Deano
Health Care Complaints Commission