1 In December 2001 baby Jasmine Cameron died in Portland Hospital. Subsequent investigation disclosed that the infant had suffered a perforated bowel. In due course a Coronial inquest was conducted into the child's death. The Coroner conducting the inquest was highly critical of Ms Duncan, a Division 1 Registered Nurse in the Sate of Victoria who is the applicant in this proceeding.

2 In November 2003 a complaint was made to the Nurses Board of Victoria established under the Nurses Act 1993. A formal hearing was held on 21 October 2005 and the Board Panel published its determination on 22 November of that year. The Board found pursuant to Section 48(1)(a) that Ms Wendy Duncan had engaged in unprofessional conduct of a serious nature in that between 5 December 2001 and 7 December 2001 the standard of care provided to Ms Rachel Lewis and Jasmine Cameron was well below the standard reasonably expected of her by her peers and by the community. The Panel had before it some 10 specific allegations.

3 Allegations 7 to 10 were not sustained by the Panel. A number of allegations were admitted by Ms Duncan, specifically she admitted unprofessional conduct of a serious nature with regard to a failure to keep proper records and perhaps more pertinently the making of an untrue entry on a hospital record.

4 Ms Duncan has sought a review of the Board's determination in this Tribunal and today pursuant to Section 50 of the Victorian Civil and Administrative Tribunal Act 1998 she seeks a stay of the Board's determination pending that review. On the basis of the findings which it made the Board suspended Ms Duncan's registration for a period of six months from 22 November, required her to undertake further educational courses and to report and meet certain requirements with regard to those educational courses and imposed a restriction on her registration that she be disqualified from working as a midwife.

5 Within the 28 day period set down for the filing of review applications, Ms Duncan or solicitor's acting for her filed a review application. This was just before Christmas last year. In January the stay application which is before me today was filed and its listing today was dictated by the availability of applicant's counsel.

6 Mr Gipp appears for Ms Duncan and seeks a stay of the determination of the Board pending the review application. The grant of such stay is opposed by Dr Hanscombe SC who appears for the Board. The power to grant a stay is bestowed by Section 50(3) of the Victorian Civil and Administrative Tribunal Act 1998 and I should say something about that section.

7 The primary rule which is laid down in sub-section (1) is that the mere pendency of a review application does not affect or suspend the operation of a determination subject to a review application in the Tribunal. Sub-section (3) however states:

The Tribunal may make an order staying the operation of a decision that is the subject of a proceeding for review.

8 Sub-section (4) deals with the standing of applicants for a stay and sub-section (5) states:

In making an order under sub-section (3) the Tribunal:

(a) May require any undertaking as to costs or damages that it considers appropriate; and

(b) May make provision for the lifting of the order if specified conditions are met.

9 The parties are agreed that whilst the discretion to grant a stay under Section 50(3) is on the face of the statute wide open, the guiding principles for the exercise of the discretion are to be found in a determination of Kellam J, then President of the Tribunal, in the matter Bell and Eager v Liquor Licensing Victoria and Swapnil [2000] VCAT 214 where His Honour enunciated the following principles:

(a) The power to grant a stay is discretionary to be exercised after full consideration of the circumstances and facts of each particular case.

(b) The dominant principle is whether or not the failure to grant a stay would render the application for review before the Tribunal nugitary.

(c) Whether or not there is a serious question to be tried on review is a matter of some importance.

(d) Whether or not it is in the community interest to grant a stay is properly to be taken into account. This involves the balancing of private interests against the public interest.

(e) It is relevant for the Tribunal to take into account the period of time which will elapse before the hearing of the application for review.

10 Mr Gipp in support of the stay application draws attention to affidavit material filed by Ms Duncan which he elaborated upon to some degree from the bar table without, as I understood it, opposition. The effect of the material and the contention from the bar table was that Ms Duncan from the tragic death in December 2001 until the Board's determination in 2005 has worked continuously as a nurse, save for one period of six months leave without pay. Between the death of the infant and the holding of the Coronial enquiry she continued to work as a midwife at the hospital and thereafter she worked as a district nurse. Her position as a district nurse will be held for her when the period of her suspension is over. Meanwhile, a substitute is performing that work. She desires if a stay is granted, to accept agency work. She has commenced the study of some of the courses that in accordance with the Board's determination she would be required to complete.

11 She says that she will suffer financial hardship and potential deskilling if she is precluded from returning to nursing before 22 May. She wishes, on review, whilst having made significant admissions, to reinstate her reputation to some degree and to obtain a more lenient treatment than the Board has given her. The most significant point upon which she will challenge the Board's determination, according to her counsel is that there was a conflict in expert works as to the safe length of time which may elapse from birth until the bowel motion of an infant occurs. One work says that a period of 48 hours without bowel motion should require immediate medical examination. Another suggests that the period from which urgent examination ought to take place was 24 hours. Apparently it will be contended that Ms Duncan acted in accordance with the views expressed in the first work. The expert opinion accepted by the Nurses Board was that the 24 hour period laid down in the second work was the benchmark and proper standard which a competent nurse should have applied in 2001.

12 Dr Hanscombe on behalf of the Board in opposing the grant of any stay took me to Section 67 of the Nurses Act. This laid down the composition of the Nurses Board. She stressed that the composition required by the statute called for a wide range of nursing expertise in every branch of the profession. An opinion reached after the hearing and due consideration by a Panel of that Board, was, she admitted, one that should stand and should not be likely set aside or even postponed. She referred me to a judgment of the Supreme Court of Tasmania, Fernando v Medical Complaints Tribunal [2004] TASSC 36. In that case Dr Fernando had been the subject of an order by the Medical Complaints Tribunal that his name be removed from the roll of medical practitioners in Tasmania. It was accepted that as a consequence of interstate arrangements this would disqualify him from practice in Victoria which was the principal locus of his practice. The Full Court on appeal from Blow J repudiated any view that a practitioner in these circumstances should expect as a matter of course to be relieved in the consequences of an order along those lines, merely because of the pendency of an appeal.

13 Cox CJ said at paragraph [10]:

If the appeal to the Full Court succeeds, it [that is the cancellation of registration] will be rescinded. It is not in the public interest that persons found guilty of professional misconduct by their regulating or disciplinary authorities should be routinely relieved of the consequence of the orders made by those authorities on proof of some financial hardship and the demonstration of a likelihood of non-repetition due to restraints, or constraints, voluntary or otherwise, upon their opportunity to repeat the misconduct.

14 Dr Hanscombe also stressed that those matters of which Ms Duncan has now effectively pleaded guilty as professional misconduct of a serious nature are not mere errors of record keeping. They go first, fundamentally to competence and secondly, and perhaps even more seriously, fundamentally to integrity. These admissions did not come, as it were, up front but emerged progressively and the Panel was particularly critical of Ms Duncan for an inconsistency in the accounts which she gave to various persons including its own investigators, at the Coronial enquiry, and so forth as compared to her ultimate evidence.

15 Dr Hanscombe said that the making of an entry on an important point which is proved simply to be false is a matter of singular importance. Simple honesty she said is an essential character requirements for the practice of any profession. The public interest therefore lay, in her submission, in this application being refused. She was critical of the delay in mounting the present application. She noted that over a third of the suspension period has already been served and expired.

16 In answer to this point Mr Gipp said that it was necessary for his instructors to obtain authority to commit funds to this proceeding from Ms Duncan who was assisting her in the present proceeding.

17 Where then does justice in the public interest lie? As Kellam J observed in the Bell and Eager case, an application such as this necessarily involves the balancing of private interests against the public interest. In Fernando's case the Supreme Court of Tasmania saw the public interest as the predominant one. In my view however, there is good reason for seeing this case in a different light from Fernando's case. The Tribunal there had made obviously very severe findings which necessitated the disqualification of Dr Fernando for an indefinite period, perhaps for ever. In the present case, subject to a restriction requiring the avoidance of midwifery, the Board contemplates that Ms Duncan will be a fit and proper person to return to nursing practice on 22 May next.

18 One must also note that with the exception of the six month period already referred to, Ms Duncan has continued in the practice of various branches of nursing since the tragic death in December 2001.

19 Mr Gipp has invited me to infer and I do infer that since no fault has been found in her practice in that period of time, I should proceed on the basis that her professional practice in that period is without blemish. Clearly, despite the seriousness of the matters found by the Board Panel and the adverse findings which were made against Ms Duncan she presents in a very different moral and professional character than the doctor who was struck off effectively for life or at any rate indefinitely.

20 Certainly the tragic event that we are dealing with occurred in the practice of midwifery and it seems to me that on any view, if any stay were to be made the public interest would favour conditions that any stay that might be granted would exclude the applicant until the determination of the review application from the practice of midwifery. At the moment however I find it difficult to conceive that the public interest in light of the history which I have narrated, the years of practice since 2001, the fact that as Mr Gipp has observed, it was competent for the Board to take interim action prior to its final finding to disqualify Ms Duncan but it did not take such action, requires assuming that the Board findings and imposition of sanctions are confirmed on review, that the suspension be served at an earlier date rather than an earlier date. Ultimately it seems to me that that was the choice which this application puts before the Tribunal.

21 I am concerned, I must say, as Dr Hanscombe has quite rightly submitted, that this is not an applicant who comes before me saying 'I am confident that on the review I will be able to dispel all of the grave allegations and set aside all of the serious findings that have been made against me'. The matters which are conceded here, which therefore will not be contested are very serious indeed. With all due respect and without wishing to make any observation which would be an embarrassment to whoever ultimately hears this application, the task ahead of Ms Duncan and her counsel in obtaining a more lenient view than the Board has given for a nurse who has made an admittedly false entry in a clinical record, a false entry which is material to so tragic an event as the death of a patient is difficult indeed. However those misgivings are not sufficient for me to conclude that this is not a case where there is a serious question to be tried on the review application. Hence, I believe the just outcome is that the respondent's determination be stayed subject to the applicant's not engaging during the term of the stay in the practice of midwifery.