//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2013] WASAT 16
State Administrative Tribunal (WA)
2013-01-31
Mr J
Original judgment source is linked above.
The application was refused and Ms George applied to review that decision to the State Administrative Tribunal of Western Australia.
Ms George resides in Queensland and pursuant to s 199(2)(d) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) the appropriate responsible tribunal for an appellable decision for somebody in Ms George's circumstances is the responsible tribunal for the participating jurisdiction in which the person lives. Therefore, Ms George's application for review should have been commenced in the appropriate responsible tribunal in Queensland.
Ms George's application to the State Administrative Tribunal was therefore dismissed for lack of jurisdiction.
However, Ms George had been informed by the respondent that the appropriate tribunal to lodge her review was the State Administrative Tribunal of Western Australia. She therefore made an application for her out of pocket expenses in relation to the proceedings before the State Administrative Tribunal. The respondent conceded to all of the expenses that were substantiated and the Tribunal ordered Ms George be paid the sum of $2,823.96 for out of pocket expenses.
Respondent : Australian Health Practitioner Regulation Agency
Motor Vehicle Industry Board and Dawson [2006] WASAT 8
Pearce & Anor and Germain [2007] WASAT 291 (S)
1 On 16 September 2011, Sophyia George (applicant) filed an application for general registration (graduated or trained overseas) as a registered nurse and registered midwife with the Nursing and Midwifery Board of Australia (respondent).
2 On 26 June 2012, a notice of proposal to refuse that application was sent to the applicant and the applicant was invited to make submissions in respect of the proposal to refuse on or before 26 July 2012.
3 On 10 July 2012, the applicant furnished written submissions to the respondent in response to that invitation.
4 On 23 July 2012, the applicant filed an application with the State Administrative Tribunal, Perth under s 199(1)(a) of the Health Practitioner Regulation National Law (WA) Act 2010 (National Law) seeking a review of what the applicant considered to be a decision to refuse the application contained in the letter from the respondent of 26 June 2010.
5 On 7 August 2010, at a directions hearing at the State Administrative Tribunal, orders were made for the matter to go to mediation and the respondent was ordered to provide a copy of its decision on the application for registration on or before 3 September 2012.
6 In a letter dated 30 August 2012 to the applicant under the heading 'Decision of the Committee', the respondent stated:
Having reviewed the above information in accordance with s 82(1)(c)(i)(l) of the National Law, the Committee was of the view that your submission did not provide any additional information which would cause the Committee to amend its proposed decision to refuse your application for general registration. Accordingly, the Committee determined to refuse your application for general registration as a registered nurse and midwife.
8 In the same letter under the heading 'Appeal Rights', the respondent stated:
In accordance with section 199 of the National Law, you have the right to appeal the decision to refuse your application for registration.
If you wish to have the decision reviewed, you must lodge an application with the State Administrative Tribunal within 28 days of the date of this letter.
9 On 10 September 2012, a mediation was held between the parties which was unsuccessful, and the matter was referred back to a further directions at the Tribunal on 25 September 2012 when it was programmed to final hearing on 5 November 2012.
10 Addition directions hearings were held in the Tribunal regarding the production of documents and witness subpoenas, and the matter proceeded to final hearing on 5 and 6 November 2012, with Mr Joseph appearing on behalf of his wife, Ms George, the applicant.
11 As English was not Mr Joseph's first language, the assistance of an interpreter was provided to Mr Joseph for the course of the hearing.
12 During the second day of the hearing on 6 November 2012, the Tribunal raised the issue that, although the application to review the Nurses and Midwifery Board's decision had been brought to the State Administrative Tribunal located in Perth, the applicant, Ms George, appeared to reside in Queensland and the Tribunal queried whether the review was in the correct tribunal.
(1) A person who is the subject of any of the following decisions (an appellable decision) may appeal against the decision to the appropriate responsible tribunal for the appellable decision
(a) a decision by a National Board to refuse to register the person;
(2) For the purposes of subsection (1), the appropriate responsible tribunal for an appellable decision is
(a) for a decision to take health, conduct or performance action in relation to a registered health practitioner or student
(i) the responsible tribunal for the participating jurisdiction in which the behaviour the subject of the decision occurred; or
(ii) if the behaviour the subject of the decision occurred in more than one jurisdiction, the responsible tribunal for the participating jurisdiction in which the practitioner's principal place of practice is located;
(b) for another decision in relation to a registered health practitioner, the responsible tribunal for the participating jurisdiction in which the practitioner's principal place of practice is located; or
(c) for another decision in relation to a student, the responsible tribunal for the participating jurisdiction in which the student is undertaking the approved programme of study or clinical training; or
(i) the responsible tribunal for the participating jurisdiction in which the person lives; or
(ii) if the person does not live in a participating jurisdiction, the responsible tribunal for the participating jurisdiction nominated by the National Board that made the appellable decision and specified in the notice given to the person of the appellable decision.
14 The Tribunal put to the parties that it would appear that as Ms George was living in Queensland, the appropriate responsible tribunal under s 199(2) of the National Law would appear to be the appropriate responsible tribunal in Queensland and not the State Administrative Tribunal of Western Australia.
15 Following a short break in proceedings and having had an opportunity to consider the issue, counsel for the respondent confirmed that the respondent concurred with the Tribunal's view and also confirmed that, unfortunately, the issue had not been considered or noticed previously by the respondent.
16 The Tribunal explained to Mr Joseph, representing the applicant through the interpreter, what the position appeared to be and that a decision would need to be made in respect of Ms George's application and whether this Tribunal had jurisdiction to hear it.
17 Mr Joseph confirmed that Ms George did, in fact, reside in Queensland and that the application had been made in Western Australia for two reasons:
18 Mr Joseph then raised the issue of an extension of time for lodging an application with the relevant Queensland tribunal, if that now needed to be done, and also raised the question of the costs Ms George had incurred in bringing her application in Western Australia.
19 The Tribunal will deal with each of the issues in turn.
20 It is clear that the decision made by the respondent in refusing to register Ms George is an appellable decision pursuant to s 199(1)(a) of the National Law. Pursuant to s 199(2), what has to be decided is which is the appropriate responsible tribunal for the review. The Tribunal is satisfied on the information before it, and Mr Joseph has confirmed, that Ms George, the applicant, lives in Queensland.
21 Section 199(2) of the National Law, set out above, deals with decisions to take health, conduct or performance action in relation to a registered health practitioner or student under subsections (a), (b) and (c), none of which would relate to the applicant.
22 However, s 199(2)(d) of the National Law deals with a decision in relation to another person which, in the context of Ms George's application, she is.
For the purposes of subsection (1), the appropriate responsible tribunal for an appellable decision is
...
(d) for a decision in relation to another person
(i) the responsible tribunal for the participating jurisdiction in which the person lives; or
(ii) if the person does not live in a participating jurisdiction, the responsible tribunal for the participating jurisdiction nominated by the National Board that made the appellable decision and specified in the notice given to the person of the appellable decision.
24 Queensland where Ms George lives, is a participating jurisdiction and therefore, pursuant to s 199(2)(d)(i) of the National Law, the appropriate responsible tribunal for Ms George's application for review is the appropriate responsible tribunal in Queensland and not the State Administrative Tribunal in Western Australia.
25 In the circumstances, as this Tribunal is not the appropriate responsible tribunal and therefore lacks jurisdiction in respect of Ms George's application, the application will be dismissed.
26 As stated earlier, it is clear that the decision made in respect of Ms George is an appellable decision as defined in s 199(1) of the National Law, and Ms George would have had a right to bring an application for review to the appropriate tribunal in Queensland within the appropriate time following the respondent's decision of 30 August 2012.
27 When the issue of jurisdiction was raised by the Tribunal, Mr Joseph, on behalf of the applicant, understanding that the matter may have to be restarted in Queensland, immediately raised the issue of an extension of time and wondered whether this Tribunal would be able to provide him with a letter.
28 It was explained to Mr Joseph that that would not be possible as any extension of time was a discretionary matter entirely in the hands of the Queensland tribunal. However, it is noted that when the issue was raised by Mr Joseph, counsel for the respondent acknowledged that a mistake had been made on the respondent's part and stated that the respondent 'would not oppose an extension of time' and 'should the applicant seek to proceed again with a review in Queensland we would support the applicant's right to do so'.
29 Section 195 of the National Law under the heading 'Costs' states:
The responsible tribunal may make any order about costs it considers appropriate for the proceedings.
30 The State Administrative Tribunal Act 2004 (WA) (SAT Act) at s 87 under the heading 'Costs of parties and others' states:
(1) Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2) Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
...
31 Since the Tribunal's inception, a number of cases have dealt with the issue of costs and it has reiterated that the starting point for any costs application is that the Tribunal is a nocost jurisdiction.
32 However, it has also been recognised that there may be circumstances in which the justice of the case supports moving away from that initial position: see Pearce & Anor and Germain [2007] WASAT 291 (S).
33 In the case of vocational bodies, it was confirmed at an early point that when such bodies are representing the public interest, if successful, they could expect to be awarded their costs, and it is only in exceptional cases that costs would be awarded against such bodies as they should not be discouraged from fulfilling their statutory obligations: see Motor Vehicle Industry Board and Dawson [2006] WASAT 8 at [44] [48].
34 In the present case, when the issue of costs was raised by Mr Joseph on behalf of the applicant, counsel for the respondent, although unable to get express instructions to consent to a costs order, stated:
... there can be no doubt that the respondent has been put to the expense of disbursements because of a mistake made by the respondent in relation to s 199.
35 In the circumstances, as part of its orders on 6 November 2012, the Tribunal ordered:
If the applicant wishes to have its application for out of pocket expenses considered it must on or before 23 November 2012 file with the Tribunal and serve on the respondent an itemised account, supported by the relevant invoices or receipts associated with the outgoings incurred by the applicant and/or by the agent representing her at the hearing on 5 and 6 November 2012.
36 By letter received by the Tribunal on 19 November 2012, the respondent furnished details of what it described as 'Out of pocket expenses' set out as follows:
37 In reply, by letter dated 5 December 2012, the respondent conceded to part of the applicant's claim for out of pocket expenses, and stated:
Please be advised that the Nursing and Midwifery Board of Australia (Board) concedes the following costs:
However, the Board takes [issue] with the following costs for the reasons outlined below:
Mr Joseph is not a legal practitioner and is therefore not entitled to claim his costs of attending the State Administrative Tribunal in respect of this matter. To do so would be a breach of the Legal Profession Act 2008.
There is no evidence that Mr Joseph paid for accommodation for the two nights that have been claimed. The Board would[,] however, concede this cost upon provision of a receipt.
Taxi fare from Brisbane Airport to home x 7 @ $78.70
There is no evidence that Mr Joseph took a taxi from the airport on each of these occasions.
Further, Mr Joseph's claim for accommodation expenses in Perth indicates that on each occasion Mr Joseph was in Perth, he shared accommodation with another person.
We therefore submit that it is likely that Mr Joseph's Taxi costs (if any) were divided 50/50 between himself and his travel companion.
Taxi fare from Perth Airport to Tribunal x 7 @ $46.80
There is no evidence that Mr Joseph took a taxi from the airport on each of these occasions.
Further, Mr Joseph's claim for accommodation expenses in Perth indicates that on each occasion Mr Joseph was in Perth, he shared accommodation with another person.
We therefore submit that it is likely that Mr Joseph's Taxi costs (if any) were divided 50/50 between himself and his travel companion.
Mr Joseph is not entitled to claim for meals consumed during the course of the proceedings.
Further, there is no evidence to support Mr Joseph's claim for food.
There is no evidence to support Mr Joseph's claim for these expenses.
At best Mr Joseph has provided receipts from Australia Post in the sum of $13.75, however, there is no evidence that these receipts relate to this proceeding.
38 By letter of 18 December 2012, Mr Joseph wrote to the Tribunal requesting time to reply to the Board's submissions and the Tribunal made the following orders:
39 By letter of 3 January 2013, Mr Joseph made further short submissions covering issues such as:
40 The Tribunal will not set out those submissions in their entirety here but has taken them into account.
41 The Tribunal is satisfied that this is an exceptional set of circumstances, and although it is acknowledged that parties have a responsibility to bring their application in the correct court or tribunal, part of the reason the application was made to this Tribunal was that the applicant was incorrectly directed here by the respondent.
42 The respondent acknowledges that mistake and has conceded sums totalling $2,823.92, which is the amount of the applicant's out of pocket expenses which have been supported by relevant invoices and receipts.
43 The applicant also seeks other amounts, principal among them being an amount of $1,840 to compensate Mr Joseph for time taken off work (10 days in total) to prosecute the review proceedings on behalf of his wife.
44 Although it was open to Mr Joseph to apply to attend the Tribunal by teleconference or videoconference (which he did on one or two occasions), or to engage legal counsel who would have been able to charge for their time, he chose to travel to Perth on a number of occasions, even for directions hearings.
45 The Tribunal agrees with the respondent's argument that Mr Joseph is not entitled to claim his costs of attending the Tribunal as he is not a legal practitioner and cannot therefore claim reimbursement for representing a party in the Tribunal, and although the applicant describes this amount as reimbursement for leave taken, it amounts to the same thing and will not be allowed.
46 The Tribunal is not without sympathy for the applicant's position, but equally, the respondent has done the correct thing in conceding the costs which the applicant was able to support and has confirmed, in respect of other amounts, that it would concede those amounts upon provision of receipts.
47 Apart from the amount of $1,840 referred to above, which will not be allowed, the application was for out of pocket expenses, and it is not unreasonable to require appropriate evidence of such expenditure if it is to be reimbursed. The Tribunal therefore is not prepared to order payment of amounts that have not been substantiated.
48 In the circumstances, the Tribunal will only order the sum of $2,823.92 be paid by the respondent to the applicant in respect of out of pocket expenses that have been substantiated.
I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________