DPD v Nursing and Midwifery Council of New South Wales [2018] NSWCATOD 144 | Case summary

NCAT Occupational|2018-08-03

Civil and Administrative Tribunal New South Wales

Introduction

These reasons deal with whether or not the Tribunal has jurisdiction to hear an appeal against a decision of the Nursing and Midwifery Council of NSW (Council) that a registered nurse, Ms DPD ("the nurse") undergo a performance assessment on 27 August 2018.
The matter was first listed in a directions list before me on 3 August 2018. On that occasion the nurse was unrepresented and the Council was represented by Mr Iain Martin (Mr Martin), a solicitor. Mr Martin is the Assistant Director, Legal, Health Professional Councils Authority. He appears as the solicitor for the Council.
On 3 August 2018 Mr Martin handed up written submissions in support of his oral application that the nurse's appeal should be dismissed because the Tribunal does not have jurisdiction to hear and determine it. As the nurse was unrepresented, and only received the Council's submissions at the time of the directions hearing, I stood the matter over until 17 August 2018 and directed that the nurse may file any material in opposition to the Council's submissions by 16 August 2018.
A substantial submission was received from the nurse to demonstrate her clinical skills together with a considerable number of references. She did not address the provisions of the Health Practitioner Regulation National Law (the National Law) in this material.

Background

On 22 January 2018 the Council instituted proceedings under s 150 of the National Law against the nurse. Conditions were imposed on the nurse's registration which required her only to engage in the practice of nursing under supervision.
The nurse appealed the Council's decision, as she was entitled to do, under s 159 of the National Law. The nurse's appeal was heard on 27 June 2018 and oral (ex-tempore) reasons were delivered that day by the Presiding Member. The panel's decision was that the appeal should be dismissed, the practice conditions on her registration be revoked, and that the Council should pay the nurse's costs of the appeal.
No formal request was made by the Council under s 62(2) of the NCAT Act for the provision of written reasons of the Tribunal. The nurse wrote to the Tribunal on 2 July 2018 and asked for "formal written outcome order document" and "the audio recording". The nurse subsequently completed the prescribed form and paid the fee for the audio recording. I am satisfied from questions I posed to the nurse at the hearing that what she actually wanted was provision of written reasons for the Tribunal's decision. Accordingly, I have made administrative arrangements for that request to be processed, and to the extent it may be necessary to do so, extended the time from the 28 days provided in s 62 to make the necessary request.
From correspondence in the s 159 appeal file (2018/00051188) it appears that the Council wrote to the nurse on 6 June 2018 and requested that she attend a performance assessment on 25 June 2018. The nurse declined to attend an appointment on that date because the appeal hearing was scheduled for 27 June 2018.
On 9 July 2018 Mr Martin, on behalf of the Council, wrote to the nurse and advised that the Council has had the conditions placed on the nurse's registration following the s 150 hearing removed from the register of nurses. He also advised that the Council had written to the Nursing and Midwifery Board of Australia to "advise that the Council's decision has been revoked and to request that the Board amend its record to reflect that the conditions are therefore to be treated as never having been imposed on your registration".
On 12 July 2018 the Council wrote to the nurse and advised her that her performance assessment was rescheduled to 27 August 2018. She was advised of the documents provided to the assessors. The documents provided to the assessors included a complaint made on 12 November 2012 and a performance assessment report of 5 November 2013. Significantly, the documents included the "s 150 RFD" (which I interpret to be Reasons for Decision) two other complaints and a further performance assessment report of 25 May 2016.
On 13 July 2018 the Council again wrote to the nurse explaining that one of the documents included in the list as provided to the assessors incorrectly included the decision of the s150 hearing held on 22 January 2018. That is, the decision overturned on the appeal to this Tribunal on 27 June 2018.

Issues to be determined or considered in this application

I discern the following matters require determination in this application: 1. Does the National Law provide for an appeal against a decision of a Council to require a nurse to undergo a performance assessment? 2. If the National Law does not provide for such appeal, could the issue of the need for the nurse to undergo a performance assessment have been dealt with in her appeal under s 159 as submitted by the nurse? 3. If the performance assessment was not dealt with during the appeal either because there was no power to do so or for any other reason, 4. is the present process tainted by a lack of procedural fairness if the assessors have received the s 150 reasons for decision but have not received the Tribunal's reasons in dismissing the appeal?

The Law

Two statutes are relevant to this application, namely the National Law (the enabling legislation) and the NCAT Act.

The NCAT Act.

I commence by some brief reference to the NCAT Act. The practice and procedure provisions of this Act apply if they are not in conflict with, or repugnant to, the National Law (see Medical Council of New South Wales v Lee [2017] NSWCA 282).
Section 28 of the NCAT Act sets out the jurisdiction of the Tribunal conferred on it by that Act, or as may be conferred or imposed by other legislation. In this case the National Law. Section 28(2)(c) empowers the Tribunal to hear and determine internal and external appeals
Section 31 of the NCAT Act provides as follows: 31 External appeal jurisdiction of Tribunal (1) The Tribunal has external appeal jurisdiction over a decision (or class of decisions) made by an external decision-maker if legislation provides that an appeal may be made to the Tribunal against any such decision (or class of decisions). (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its external appeal jurisdiction: (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings. (3) An appealable external decision is a decision of an external decision-maker over which the Tribunal has external appeal jurisdiction. (4) An external appeal is an appeal to the Tribunal against an appealable external decision. (5) A provision of enabling legislation that provides for a decision of an external decision-maker to be appealed to the Tribunal extends to the following: (a) a decision made by a person to whom the function of making the decision has been delegated, (b) if the provision specifies the decision-maker by reference to the holding of a particular office or appointment - a decision by any person for the time being acting in, or performing any of the duties of, the office or appointment, (c) a decision made by any other person authorised to exercise the function of making the decision. (6) Nothing in this section permits external appeal jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.
As I am deciding an interlocutory matter it is appropriate that I set out the definition of an interlocutory matter found in s 4 of the NCAT Act: interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following: (a) the granting of a stay or adjournment, (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, (c) the issue of a summons, (d) the extension of time for any matter (including for the lodgment of an application or appeal), (e) an evidential matter, (f) the disqualification of any member, (g) the joinder or misjoinder of a party to proceedings, (h) the summary dismissal of proceedings, (h1) the granting of leave for a person to represent a party to proceedings, (i) any other interlocutory issue before the Tribunal..
I am empowered to hear an interlocutory application under s 165B (5A) of the National Law.
Section 55 of the NCAT Act provides as follows: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: (a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings. (2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure. [my emphasis].

The National Law Part 8

Part 8 of the National Law applies only in NSW. Division 6 of Part 8 deals with appeals which may be brought to the Tribunal as an external appeal. The following matters may be appealed to the Tribunal: 1. An appeal against a decision of a Committee (s 158) or on a point of law from a Committee (s 158A) 2. An appeal against a decision of a Council (s 159) 3. An appeal against a decision of Performance Review Panel (s 160) 4. An appeal against a registration decision (s 175)
Section 163A provides for a right of review of a decision of a Council but that review is limited to decisions made under the Division, Subdivision 5 of Division 3 or s 155C (1)(f). The rights of review do not include a right to review a decision of a Council to require a member to undergo a performance assessment.
"A Committee" is defined in s 146 to mean a Professional Standards Committee. Somewhat confusingly, "a Committee" is also defined in s 147 as an Assessment Committee. A definition of Assessment Committee is found in s 138(1) of the National Law. Section 138(1) which is in Part 8 Division 1 of the National Law provides as follows: (1) In this Part - Assessment Committee means an Assessment Committee established under section 172A. assessor means a person appointed as an assessor under section 174D.
Section 172A provides: 172A Establishment of Committees [NSW] (1) There are to be Assessment Committees established for the purposes of this Law. (2) A Committee has and may exercise the jurisdiction and functions conferred or imposed on it by or under this Law.
Performance assessment is also defined in s 138 as follows: performance assessment means an assessment of a registered health practitioner's professional performance conducted by an assessor under Subdivision 3 of Division 5 of Part 8.[my emphasis].
Section 154 of the National Law, which is found in Subdivision 2 of Division 5 of Part 8, deals with performance assessment. It provides as follows: 154 Power to obtain assessment [NSW] (1) A Council may decide to have the professional performance of a registered health practitioner assessed under this Division if a matter comes to its attention that indicates the professional performance of the registered health practitioner, or any aspect of the practitioner's professional performance, is or may be unsatisfactory. (2) Subsection (1) is not limited to matters that are the subject of a complaint or notification to the Council and may include a pattern of complaints about a registered health practitioner's practice.
A number of courses are also available to a Council on receipt of a complaint such as the disputed complaint at the heart of this matter but only in respect of certain health professionals. The available courses are set out in s 145B of the National Law. That section provides as follows: 145B Courses of action available to Council on complaint [NSW] (1) The following courses of action are available to a Council in respect of a complaint- (a) the Council may make any inquiries about the complaint the Council thinks appropriate; (b) the Council may refer the complaint to the Commission for investigation; (c) the Council may refer the complaint to the Tribunal; (d) the Council may refer the complaint to a Committee; (e) for a complaint about a health practitioner or student who is registered in a health profession other than the medical or nursing and midwifery profession, the Council may deal with the complaint by inquiry at a meeting of the Council; (f) the Council may- (i) refer the practitioner or student for a health assessment; or (ii) refer the matter to an Impaired Registrants Panel; or (iii) refer the professional performance of the practitioner concerned for a performance assessment; (g) the Council may direct the practitioner or student concerned to attend counselling; (h) the Council may refer the complaint to the Commission for conciliation or to be dealt with under Division 9 of Part 2 of the Health Care Complaints Act 1993; (i) the Council may refer the complaint to another entity, including, for example, a National Board; (j) the Council may determine that no further action should be taken in respect of the complaint. (2) The Commission must, on receipt of a complaint referred by a Council for investigation, investigate the complaint or cause it to be investigated. (3) If a Council makes a referral under subsection (1)(f), the matter ceases to be a complaint for the purposes of this Law and the Health Care Complaints Act 1993. (4) Subsection (3) ceases to apply in respect of any matter that a Council subsequently deals with as a complaint.[my emphasis]
Under s 147C a Council may direct a committee to require a health practitioner undertake a "skills assessment". Section 147C is in the following terms: 147C Skills testing of relevant health practitioner [NSW] (1) A Council may direct a Committee to require the relevant health practitioner the subject of the complaint referred to the Committee to undergo skills testing. (2) The Committee must, by written notice given to the relevant health practitioner, require the health practitioner to undergo skills testing by an appropriately qualified person specified in the notice, at the reasonable time and place specified in the notice. (3) A failure by the relevant health practitioner, without reasonable excuse, to comply with the notice is, for the purposes of this Part or any inquiry or appeal under this Law, evidence the health practitioner does not have sufficient skill to practise the health profession in which the health practitioner is registered. (4) A person who conducts skills testing for the purposes of this section must report to the Committee on the results of the testing. (5) The Committee must give a copy of the report to the relevant health practitioner. (6) A person must not, directly or indirectly, make a record of or divulge to any person any information contained in a report to a Committee under this section that has come to the person's notice in the exercise of the person's functions under this Law, other than for the purpose of exercising the person's functions under this Law. Maximum penalty - 50 penalty units. (7) A person cannot be required in civil proceedings in any court to produce or permit access to a report made to a Committee under this section or to divulge the contents of the report. (8) In this section - report includes a copy, reproduction and duplicate of the report or any part of the report, copy, reproduction or duplicate.[my emphasis].
However, by reason of the definitions set out in s 147, the provisions which enable a referral to a Committee for a skills assessment, or for a performance assessment, have no application to medical practitioners and nurses. Section 147 provides as follows: 147 Definitions [NSW] In this Subdivision - Committee means an Assessment Committee. relevant health practitioner means a health practitioner registered under this Law other than a health practitioner registered in the - (a) medical profession; or (b) nursing and midwifery profession.[my emphasis]

The National Law - Performance assessment

Schedule 5B of the National Law deals with Performance Assessment. Clause 1 of Part 1 provides as follows: Part 1 Provisions relating to assessors [NSW] 1 General [NSW] (1) An assessor may exercise the powers conferred by this Part only for the purpose of conducting a performance assessment when required by a Council or a Performance Review Panel. (2) The performance assessment must be conducted in accordance with any directions given by the Council or the Performance Review Panel. (3) If the Council or the Panel instructs the assessor to limit the performance assessment to a particular aspect or aspects of the registered health practitioner's professional performance, the assessment must be limited to that aspect or those aspects. (4) However, the assessor may assess other aspects of the professional performance of the registered health practitioner if during the course of the performance assessment the assessor forms the opinion that other aspects of the professional performance of the practitioner may be unsatisfactory and should be assessed.
The Schedule also sets out requirements for a practitioner and consequences of non-compliance with a request to attend a performance assessment. 3 Power to conduct assessment exercise [NSW] (1) A Council may, by notice given to a registered health practitioner who is the subject of a performance assessment, require the practitioner to take part in an assessment exercise. (2) An assessment exercise is an exercise during which the assessor observes and assesses the professional performance of the registered health practitioner. (3) If practicable an assessment exercise must be based on an actual clinical situation (that is, an actual consultation or examination or the giving or performance of any other treatment, by a registered health practitioner). (4) However, an assessment exercise may be based on a simulated clinical situation (for example, a mock consultation) if an actual clinical situation is not practicable in the circumstances. (5) The time and place for, and the length of, the assessment exercise must be reasonable. (6) A failure or refusal by a registered health practitioner to take part in, or to continue with, an assessment exercise does not constitute an offence against clause 5. (7) However, a failure or refusal by a registered health practitioner, without reasonable excuse, to take part in or to continue with an assessment exercise is evidence that the professional conduct of the registered health practitioner is unsatisfactory. (8) This clause does not authorise an assessor to be present during any examination of a person, or at the giving or performance of any other health service or treatment by a registered health practitioner in respect of a person, without the consent of the person. 4 Answers to questions [NSW] (1) Any information furnished by a person in answering a question asked by an assessor for the purposes of a performance assessment is not admissible against the person in civil proceedings before a court except with the consent of the person. (2) Subclause (1) does not extend to any information furnished by a person that is a record required to be kept by or under this Law or any other Act.

National Law - a summary relevant to this application

In summary, it may be seen that the National Law provides a Council may refer a health practitioner, other than a medical practitioner or a nurse, to a committee for a skills assessment or to require such practitioner undergo a performance assessment. For a nurse, a Council can require that practitioner to undergo a performance assessment by an assessor under s 154. There is no similar provision in s 154 to that found in s 147C (1) and (2) to refer the practitioner to a committee for assessment. Following the performance assessment a nurse may be referred to a Performance Review Panel (see below s 155C).
It is clear that an appeal lies to the Tribunal from a decision of a Professional Standards Committee and an Assessment Committee. Section 158 provides as follows: 158 Appeals against decisions of Committee [NSW] (1) If a complaint about a registered health practitioner or student is referred to a Committee, the practitioner or student or the complainant, may appeal against any of the following to the Tribunal - (a) a finding of the Committee; (b) the exercise of a power by the Committee under Subdivision 3 of Division 3; (c) the exercise by the Tribunal List Manager of a power under that Subdivision. Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) The appeal is to be dealt with by way of rehearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the inquiry, may be given. (3) The Tribunal may - (a) dismiss the appeal; or (b) make any finding or exercise any power the Tribunal could have made or exercised if the complaint had been originally referred to the Tribunal. (4) An appeal under this section does not affect any finding or exercise of power with respect to which it has been made until the Tribunal makes an order on the appeal.
The appeal rights under s 159 are particularised in that section. It is useful that I reproduce that section. It provides as follows: (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession - (a1) against a reprimand by the Council for the health profession under Division 3; (a) against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension; (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; (c) against a refusal by the Council for the health profession to alter or remove conditions imposed by the Council under Division 3 in accordance with a request made by the person under section 150I; (d) against a decision by the Council for the health profession to give a direction or make an order in relation to the person under section 148E; (e) against a refusal by the Council for the health profession to alter or remove conditions imposed on the person's registration, or to end a suspension, imposed under Division 4 in accordance with a request made by the person under section 152K. Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) An appeal may not be made in respect of a request by a person that is rejected by a Council because it was made during a period in which the request was not permitted under section 150I or 152K. (3) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given.
It is to be noted that s 159 does not provide a right of appeal against a decision to require a practitioner to attend a performance review by an assessor.
The nurse can appeal against a decision if it is a decision made by an Assessment Committee under s 158(1)(a). However, it is not clear on the material before me that the nurse's clinical performance has been referred to an assessment committee as defined in s 138. As I have already noted s 147 has no application because if does not apply to a nurse. On a plain reading of s 154 the referral is to an assessor not an assessment committee.
The nurse may also appeal under s 158(1)(b) against the exercise of power by the Committee under Sub-division 3 of Division 3. (s 155, s 155A, s 155B, and s 155C). These sections provide as follows: 155 How Council obtains an assessment [NSW] A Council has the professional performance of a registered health practitioner assessed by having one or more assessors conduct an assessment of the practitioner's professional performance, or of any particular aspect or aspects of the practitioner's professional performance. 155A Information to be given to health practitioner [NSW] (1) As soon as practicable after deciding to have the professional performance of a registered health practitioner assessed, a Council must give the practitioner written notice of the decision. (2) The notice must include the following - (a) details of the matter that gave rise to the assessment; (b) information about how the performance assessment process works. 155B Report and recommendations by assessor [NSW] (1) An assessor who is required by a Council to conduct a performance assessment in relation to a registered health practitioner must - (a) conduct an assessment of the practitioner's professional performance; and (b) give a written report about the assessment to the Council. (2) The report must include the recommendations the assessor considers appropriate. (3) If more than one assessor is appointed to conduct a performance assessment in relation to a registered health practitioner, the report may be made jointly or separately, but in any case must be made in the way directed by the Council. 155C Action that may be taken by Council [NSW] (1) After receiving the report of an assessor about a performance assessment, a Council may - (a) decide that no further action should be taken in respect of the registered health practitioner the subject of the report; or (b) require a Performance Review Panel to conduct a performance review in relation to the practitioner; or (c) make a complaint against the practitioner; or (d) refer the matter to an Impaired Registrants Panel; or (e) counsel the practitioner or direct the practitioner to attend counselling; or (f) impose by order on the practitioner's registration, with the consent of the practitioner, the conditions the Council considers appropriate. (2) A Council must make a complaint against the practitioner concerned if the assessment - (a) raises a significant issue of public health or safety that, in the opinion of the Council, requires investigation by the Commission; or (b) raises a prima facie case of professional misconduct by a registered health practitioner, or unsatisfactory professional conduct by a registered health practitioner. (3) This section does not limit a Council's powers under section 150.

(a) the nurse's submissions

The nurse's submissions and material filed address firstly her distress about what she perceives as delay after her successful appeal in the conditions on her registration being removed from the AHPRA web-site and receiving her full registration credentials. That distress is understandable given the time that has elapsed since the appeal was upheld.
The submissions also annex many testimonials and evidence of courses undertaken by the nurse. Without in any way wishing to criticise the nurse, who does not have the benefit of legal representation, these documents are not relevant to the issues to be presently determined.
In her oral submissions before me the nurse says that the Tribunal that dealt with her appeal also, or at least by implication, dealt with the then outstanding performance assessment. I am unable, in the absence of reasons for allowing the appeal being available to me to determine to what, if to any extent the Tribunal commented on the foreshadowed performance assessment. I note that the nurse is not precluded, once the Tribunal's reasons are published, from taking further action, if any, legally available to her.

(b) the Council's submissions

The Council's submissions set out the Tribunal's jurisdiction conferred by s 28 and s 31 of the NCAT Act. Reliance is placed on s 159. The submissions refer to s 55 of the NCAT Act under "orders sought" on the basis the appeal is misconceived or lacking in substance.

Discussion and conclusions

The National Law contains a number of complex provisions dealing with actions that may be instituted against health professionals and appeal rights against those actions. The complexity is exacerbated by discrete NSW provisions of the legislation. This is brought starkly into focus by the definitions scattered throughout the National Law. This interlocutory application highlights the difficulties for self-represented health practitioners navigating the various provisions of the National Law, including those which, by definition, are found to have no application to medical practitioners and nurses.
First, on the material before me, it appears that the Council's decision to require the nurse to undergo a performance assessment by two assessors is not a referral to an assessment committee as defined in s 138.
If I am wrong about that, I consider that no decision having been made at this time by the assessors (as an assessment committee) that no appeal lies under s 158 (1)(a) or under s 159 of the National Law. Appeal rights do lie in respect of s 155 to 155C inclusive of the National Law. It is arguable that s 155 could permit an appeal. However, on a plain reading of this provision it relates to how the assessment process is to be implemented, rather than a decision of the Council to order the assessment. I am fortified in this interpretation having regard to s 154 of the National Law. This is the provision under which the Council determines a performance assessment should occur. As I have earlier noted, it refers to an assessor, not an assessment committee.
Section 155A permits an appeal if the procedure in that provision is not implemented or not properly implemented. In other words, it encompasses procedural fairness requirements. I comment on the effect of this provision below.
Section 155B permits an appeal against a report or recommendations of an assessor after the assessor has conducted the performance assessment. It has no present application.
Section 155C provides an appeal lies from a decision taken by a Council once it receives a performance assessment. That too has no present application.
Having regard to the provisions of both the NCAT Act and the National Law, I am satisfied that the Tribunal does not have jurisdiction to hear and determine an appeal against a decision of a Council to require the nurse to undergo a performance assessment by an assessor. But I am satisfied an appeal lies against aspects of how the performance assessment is conducted, the assessor's report and a Council's subsequent actions. It follows, I find the nurse's present application is misconceived and should be dismissed under s 55(1)(b) of the NCAT Act.

Procedural fairness issues

The object of the NCAT Act is to ensure that the Tribunal resolves the real issues in proceedings justly, quickly, cheaply and with as little formality as possible. The objects of the National Law includes s 3A. This provision requires that the protection the protection of the public must be the paramount consideration of the Tribunal in exercising any function under the National Law. Thus, in dealing with the appeal, or more correctly, the interlocutory application now before me, I must have the health and safety of the public as my paramount consideration. As with any Tribunal hearing while the rules of evidence do not apply I must observe procedural fairness.
It is understandable that, having been successful in her appeal, and having the conditions imposed on her registration revoked, and treated being void from the time of their imposition, the nurse cannot understand why she is now being required to undertake a performance appraisal.
The procedure to be followed when a decision is made to refer a practitioner to a performance assessment is found in s 155A. It provides as follows: 155A Information to be given to health practitioner [NSW] (1) As soon as practicable after deciding to have the professional performance of a registered health practitioner assessed, a Council must give the practitioner written notice of the decision. (2) The notice must include the following - (a) details of the matter that gave rise to the assessment; (b) information about how the performance assessment process works.
It is not clear on the material before me whether there has been full compliance with s 155A, but I note that in the first notice relating to the assessment two assessors are named and the documents to be relied on include at Item 3 "2/13 312490/13 s 150RFD" and Item 9 "22/1/18 DECISION - S150 - DPD, Lansum - 22 January 2018". It is noted that these documents have been provided to the assessors.
I take this opportunity to note that it would be procedurally unfair to the nurse if the assessors, having received the s 150 reasons for decision in both 2013 and in January 2018, did not also receive the appeal decision from those reasons (if any). I am satisfied it could ground an appeal under s 155B of the National Law. I note that Mr Martin stated orally during the course of this hearing that new assessors, who had not been provided with the s 150 decisions, have subsequently been appointed.
I also note that there is a dispute between the parties as to whether the complaints referred to the assessors were dealt with in full during the appeal as alleged by the nurse, or whether the appeal was allowed on lack of procedural fairness grounds as asserted by Mr Martin. That is a matter which will be clarified in the appeal decision which will be published in due course.

Costs

No application was made to me for costs. Each party was constrained to a degree in dealing with this application in the absence of the Tribunal's reasons from 27 June 2018 through no fault of themselves or the panel that heard the matter. In these circumstances I find it is appropriate that each party pay their own costs of the application.

Orders 1. The External Appeal filed 16 July 2018 is dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. Each party is to pay their own costs of the proceedings.

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

Amendments 23 August 2018 - Coversheet 29 August 2018 - Typographical error corrected in paragraph 7 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: 11 October 2018

DPD v Nursing and Midwifery Council of New South Wales

At a glance

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Judgment (17 paragraphs)

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