Greyling v Nursing and Midwifery Board of Australia

NCAT Occupational|2014-05-02|Before: Judge Boland AM

Introduction 1The issue in these proceedings is whether or not a stay of an appeal instituted by Ms Kerry Greyling ("Ms Greyling") under s 175 of the Health Practitioner National Law No 86a (NSW) ("the National law") in the Nursing and Midwifery Tribunal ("the NMT"), and now in this Tribunal, should be granted pending determination of proceedings instituted by her in the Federal Circuit Court ("the Court"). In the Court proceedings Ms Greyling seeks various forms of relief under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) ("the AHRC Act"). 2Ms Greyling is a woman who engaged in the practice of nursing as nurse, and subsequently after qualification as a midwife, between 1998 and early 2006 in the Coffs Harbour area where she lives. She ceased work in February 2006. She has a son who was born in 2005 ("the child") who has been diagnosed with a disorder on the autistic spectrum and subsequently with Asperger's syndrome. She also has another child born in 2007. Ms Greyling is the primary carer of these children. A non publication order was made by me at the hearing of the application in respect of the identity of the child. 3As set out in more detail later in these reasons, the Nursing and Midwifery Board of Australia ("the Board") refused to re-register Ms Greyling as a nurse and midwife unless she first complied with conditions and/or successfully completed courses designed to update her nursing and midwifery skills. Ms Greyling has commenced proceedings under s 175 of the National Law in which she challenges the decision of the Board to refuse her registration as a midwife. She seeks that the Tribunal, in determining afresh her application for registration, should grant her registration, subject to the condition she undertakes supervised practice as a midwife equivalent to three months full-time practice with such supervised practice occurring over a period of twelve months with one month of her supervised practice to occur in a tertiary hospital. 4Ms Greyling has also commenced proceedings in the Court in which she names the Australian Health Practitioner Regulation Agency ("AHPRA") and the Board respectively as the first and second respondents. She asserts that the Board, in its application of the Recency of Practice Standard, ("Standard"), which applies by reason of s 12 (1) of the National Law, has discriminated against her. 5She asserts the Board, in its application of the Standard, has imposed improper requirements on her as conditions precedent to her registration. These requirements, she asserts, fail to take into account her caring responsibilities for her autistic child, and additionally her family responsibilities. She asserts she cannot reasonably comply with the conditions precedent set by the Board, and that the Board should have made reasonable adjustment to the conditions to take into account her caring and family responsibilities. She alleges breaches by the Board in its application of the Standard of s 5(2), s 6 (1), s 6(2), s 19 and/or s 24 of the Disability Discrimination Act 1992 (Cth) ("the DD Act") and of s 4A and/or s 5(2), s 18 and s 22 the Sex Discrimination Act (Cth) ("SD Act"). 6The relief sought in the Court proceedings by Ms Greyling under s 46 PO (4) of the AHRC Act in summary is: 1 A declaration that AHPRA and the Board committed unlawful discrimination under the SD Act and the DD Act; 2. An order that the Board comply with the requirements of the SD Act and the DD Act by registering Ms Greyling as a midwife subject to conditions including to her being supervised for three months full time equivalent, with a minimum of one month at a tertiary hospital 3. Compensation; 4. A declaration that the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) "was invalid in that it purported to lawfully interfere with the rights of [Ms Greyling] and to the extent that interference was inconsistent with the DD Act and/or the SD Act, by reason of s 109 of the Constitution"; and 5. Costs

Transitional Provisions 7As a consequence of the enactment of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act"), Schedule 1, Division 2, Cl. 3 the NMT was abolished effective on 31 December 2013. The NMT's functions were taken over by the Tribunal. Pursuant to the transitional provisions in the NCAT Act (see Schedule 1, Div. 3, Sub-Div. 2, Cl. 7 (2) and (3)) the appeal is now in the Tribunal for finalisation. Clause 7 (3) (b) provides the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had the NCAT Act and the relevant amending Acts not been enacted, continue to apply. In summary, the applicable law is the National Law in force up to 31 December 2013.

Background 8Ms Greyling was registered as a nurse in the State of New South Wales 1998. In 2000 she obtained midwifery qualifications and in 2002 early childhood qualifications. In 2005 the child was born. When he was aged four the child was diagnosed with an autism spectrum disorder. In 2012 he was diagnosed with Asperger's syndrome. In 2007 Ms Greyling gave birth to her second child. As a result of her family responsibilities and caring responsibilities for her first child, Ms Greyling ceased practising as a nurse and midwife in February 2006. 9In 2011 Ms Greyling applied to the Board to be registered as a nurse and midwife. In March 2011 Board advised Ms Greyling she did not meet the the Standard, and it notified her it proposed to refuse her registration. After receiving submissions from Ms Greyling on 15 April 2011 the Board advised her application for registration was refused. Ms Greyling was advised that she could:

Appeal the Board's decision by lodging an appeal with the then NMT within 28 days or
Apply for registration after successful completion of a Board approved re-entry program namely the program conducted by the College of Nursing ("the Board approved re-entry program"). She was also advised of the availability of an interstate bridging course "the interstate course". 10Ms Greyling engaged in correspondence about her personal situation, and the impracticability of her undertaking the Board approved re-entry program and/or the interstate course. Ms Greyling asserts she received advice from the Board to re-apply for her registration in 2012. Consequently, in May 2012, she again applied to the Board for registration as a midwife. By letter dated 13 December 2012 the Board indicated it proposed to refuse Ms Greyling's registration. She was again invited to make submissions to the Board, and advised of appeal rights under the National Law. She was again also advised of the necessity to complete the Board approved re-entry program to be registered as a nurse, and to be registered as a midwife it would be necessary for her to:
complete an interstate course (there being no course for former midwives available in NSW); or
complete 6 months full-time equivalent supervised practice under the supervision of a midwife with certain qualifications in an approved health care/accredited setting; that as a student she be assessed after three months equivalent full-time practice; that the supervised practice be completed within 12 months from December 2012, and as a student that she "successfully complete a subject on contemporary midwifery practise [sic] at university level". 11On 10 January 2013 Ms Greyling wrote to the Board. (Her letter is dated 2012 in error) She advised she was currently undertaking the Board approved re-entry program (to be registered as a nurse) but having pointed out her willingness to do a midwifery re-entry program, and the lack of such a program in NSW, advised she sought an extension of time to complete her midwifery re-entry requirements, because she was presently undertaking the Board approved re-entry course, and a reduction in the supervised time of six months. 12On 15 January 2013 Ms Greyling again wrote to the Board and AHPRA. (This letter is also dated 2012 in error). After setting out her dealings with the Board, including provision of proof of hours worked as a midwife in 2005 and early 2006, she notified the Board she wished to appeal its decision to refuse her registration as a midwife. Ms Greyling pointed out that the Board's requirements for re-registration may be discriminatory under s 18 of the SD Act. She suggested that she should be entitled to re-registration on the same conditions as were noted by the NMT to have been reached between the parties in the matter of Palmer v Nursing and Midwifery Board of Australia [2011] NSWMT 32 and made as orders by the NMT by consent. 13By letter dated 5 April 2013 the Board notified Ms Greyling that her application for registration as a midwife was refused. By letter dated 24 April 2013 Ms Greyling notified the Nursing and Midwifery Council of NSW ("the Council") she wished to make submissions to the Tribunal. The Council, appropriately, treated this letter as notification of an appeal and referred the matter to the NMT. A scheduled directions hearing listed on 17 May 2013 was postponed at the request of Ms Greyling on the basis of the unavailability of her lawyer. 14On 10 May 2013 Ms Greyling lodged a complaint with the Australian Human Rights Commission ("AHRC"). Her claim of discrimination was referred to mediation but not resolved, and a Notice of Determination was issued on 19 December 2013. It is common ground that no proceedings may be commenced in the Court, or the Federal Court of Australia, under the relevant legislation prior to a Notice of Determination issuing. 15On 17 February 2014 Ms Greyling commenced proceedings in the Court. Points of Claim were filed in the Court pleading breaches of the DD Act and the SD Act. 16On 14 March 2014 the NSW Nurses and Midwives' Association notified the Tribunal that the practitioner had filed an application in the Court and was seeking an adjournment of her appeal until the finalisation of those proceedings. 17On 21 March 2014 the Tribunal received a letter from Clayton Utz, Solicitors, acting on behalf of AHPRA. AHPRA in turn, is representing the Board in these proceedings. The letter noted that Board did not consent to the proposed adjournment, and sought that the appeal "take its ordinary course". 18On 21 March 2014 I made orders that Ms Greyling's application for a stay of her proceedings pending the determination of the Court proceedings be listed for hearing on 2 May 2014. I also made directions for filing of material in support of, and opposition to, the stay. 19Procedural directions have also been made in the Court, and those proceedings are listed for mention on 12 May 2014.

The present application 20The practitioner, in her present application, seeks that her appeal be adjourned or "stayed" pending the outcome of the Court proceedings. Her position is that the two sets of proceedings are not identical, although there are overlapping factual matters relevant to both. While she submits that the practical effect of one aspect of the relief she seeks (registration) is common to both proceedings, she asserts she is entitled to different relief in the Court (damages and declaratory relief) and that such relief is not available in the appeal proceedings. 21The nub of Ms Greyling's adjournment application, or the staying of these proceedings, is that:

(only the Court can making findings the Board has breached the SD Act and the DD Act in its application of the Standard, and/or
because there is no provision in the Standard to exercise a discretion to take into account the situation of a practitioner such as herself with caring and family responsibilities and make reasonable adjustments when determining a practitioner's registration, the National Law is invalid. 22Accordingly, the practitioner argues that if this Tribunal strictly applied the Standard, and rejected her appeal, and/or imposed conditions precedent on her attaining registration, such as the requirement to complete an interstate course, it too would, at least potentially, or actually on her submission, be in breach of the two Commonwealth Statutes, and may be joined to the Court proceedings as an additional respondent. 23Ms Greyling also argues that even if her appeal is allowed by this Tribunal, it does not mean the Court proceedings will "fall away". 24By contrast, the Board and AHPRA argue that only this Tribunal, exercising its appellate function under s 175 (3) can make an order that the practitioner be registered under s 52 of the National law as a midwife albeit subject to some re-skilling requirements. It is further submitted that, if the practitioner is successful in her appeal, then the Court proceedings will be nugatory or "fall away". That argument pre-supposes the practitioner's appeal is successful. The Board and AHPRA also maintain that a number of the practitioner's claims set out in her Points of Claim filed in the Court lack a jurisdictional basis and are unsustainable.

The common or agreed facts 25There is no dispute that:

the Tribunal is a creature of statute, and its jurisdiction, in this instance, is found in the National Law and the Civil and Administrative Tribunal Act 2013 (NSW);
the nature of the appeal under the National Law is an appeal de novo. The Tribunal in determining the appeal can confirm the Board's decision, amend the Board's decision, or substitute another decision for the Board's decision (s 175C);
the Tribunal has no jurisdiction under the SD Act or the DD Act;
the practitioner was required under the National Law to notify the Council of her intention to exercise her appeal rights under s 175 within 28 days of the Board's decision in respect of her registration and she did so in the time provided in the National Law (see s 161 of the National Law);
as the appeal is "unheard" proceedings for the purpose of the NCAT Act, the applicable law is the National Law in force up to 31 December, 2013;
the Standard is a standard approved by the Ministerial Council and must be applied to relevant applicants for registration as a consequence of s 12(1) of the National Law;
the Court may in the exercise of its jurisdiction: a. award damages by way of compensation; b. make an order declaring that the Board has committed unlawful discrimination and directing the Board not to repeat or continue such unlawful discrimination; c. make an order requiring the Board to perform any reasonable act or course of conduct to redress any loss or damage suffered by Ms Greyling;
the Tribunal make an order under s 52 that Ms Greyling is eligible for registration with or without conditions on her registration as a midwife or find she is unsuitable for registration under s 82 of the National Law; and
no application has been made by the Board in the Court that proceedings instituted in the Court be stayed pending the determination of the appeal.

Relevant Law 26It is useful to first refer to the provisions of the National Law concerning adjournment of proceedings before the Tribunal. Section 167E (1) provides that: A Tribunal may adjourn proceedings for any reason it thinks fit 27A similar provision is found in s 51 of the NCAT Act. 28Section 166 of the National Law provides as follows: The decision of a Chairperson or a Deputy Chairperson of a Tribunal on a question of law or procedure arsing during an inquiry or an appeal at which the Chairperson or Deputy Chairperson presides is the decision of the Tribunal for the purposes of the inquiry or appeal 29While these proceedings are not before a Tribunal constituted under s 165A of the National Law, it was not suggested by the parties that I did not have jurisdiction to deal with this matter. It is clear the Tribunal does not have the inherent powers of the Supreme Court of NSW to control its proceedings. It appears to me nevertheless that, if s 166 is not applicable, that this matter is a matter or procedure to be conducted in accordance with the Tribunal's, albeit limited, implied powers to exercise control over the conduct its own proceedings (see Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27; (2006) 227 ALR 425). As presently advised, I conclude the matter is one which involves a question of law and/or procedure, and may be dealt with by a Tribunal constituted solely by a Principal Member of the Occupational Division or the List Manager of the Health Practitioner Division List. 30The relevant legal principles which appear apposite to this application include the usual discretionary factors to be taken into account in granting or refusing an adjournment. As the practical effect of the adjournment sought is an effective temporary stay of the s 175 appeal in this Tribunal, I am satisfied that the principles enunciated by Mason P, with whom Giles JA and Santow JA agreed in L & W Developments Pty Ltd v Della [2003] NSWCA 140 are the relevant applicable principles to be applied. Those principles are not those pertaining to a power to stay for forum non conveniens or in dealing with an anti-suit injunction. What is required is a consideration of the criteria discussed in [52] to [55] of Mason P's reasons in L and W Developments: In Sterling Pharmaceuticals, Lockhart J said (at 290-1): The court has a general power to control its own proceedings, and that power extends to enable it to order a temporary stay of proceedings in various circumstances including the case where proceedings are pending in another court and it is desirable that those proceedings should proceed to their conclusion first.... The court is a superior court of record and obviously may control its own proceedings including, where appropriate, the exercise of a power to grant a stay.... In my opinion relevant considerations to be taken into account in the present case include the following: ● Which proceeding was commenced first. ● Whether the termination of one proceeding is likely to have a material effect on the other. ● The public interest. ● The undesirability of two courts competing to see which of them determines common facts first. ● Consideration of circumstances relating to witnesses. ● Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted. ● The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues. ● How far advanced the proceedings are in each court. ● The law should strive against permitting multiplicity of proceedings in relation to similar issues. ● Generally balancing the advantages and disadvantages to each party. Several decisions in the Equity Division have recognised this distinction in a context similar to the present, where a defendant to commercial contract proceedings in the Equity Division has applied to the Industrial Relations Commission pursuant to s106 of the Act seeking to have the underlying contract avoided or varied. These cases include Majik Markets Pty Ltd v S & M Motor Repairs Pty Ltd (No 3) unreported, 13 October 1987 (Young J); The Environmental Group Ltd v Croudace unreported, 7 August 1998 (Santow J); Premier Sports Australia Pty Ltd v Dodds [2001] NSWSC 707 (Palmer J); RSL Com v Mobile Tron [2001] NSWSC 819 (Barrett J) and Rexam Australia Pty Ltd v Optimum Metallising Pty Ltd [2002] NSWSC 916 (Einstein J). These decisions correctly recognise the distinction between a stay based on forum non conveniens and a temporary stay of proceedings in one court to enable related proceedings in another to proceed first to determination (see esp RSL Com at 14; Rexam Australia Pty Ltd at 21-22). In The Environmental Group Ltd, Santow J cited and applied the decision of Lockhart J in Sterling Pharmaceuticals Pty Ltd. His Honour then analysed the nature of the Supreme Court proceedings which he had jurisdiction to determine and of the related proceedings in the Industrial Relations Commission which he did not have jurisdiction to determine. He stated his conclusion in terms which are equally applicable to the present situation: Several things are therefore clear. First, neither the Supreme Court nor the IRC can deal with all matters in dispute between the parties. Second, if all are to be litigated it would be inevitable there will be two sets of proceedings. Thus while 'the law should strive against permitting multiplicity of proceedings in relation to similar issues', here a multiplicity of proceedings may prove unavoidable. It is true it could be said that hearing one set of proceedings before the other makes it less likely the second set will ever be litigated. But that begs the question which proceedings should be heard first and either party may claim first right to be heard. Santow J then examined relevant factors that bore on the granting of a stay and their relative weight in the final balance. These included: ● The impact of the Supreme Court and IRC proceedings on each other. ● The relative progress of each proceedings. ● Conduct of the parties with respect to the relative progress of each proceedings. ● The fact that the Supreme Court proceedings were commenced first in time. ● Not all parties to the Supreme Court proceedings were parties to the IRC proceedings. ● Possible jurisdictional problems in relation to the IRC proceedings and how they bore on the stay application. ● Financial disadvantage. (Cf also the useful checklist offered by Einstein J in Rexam at [21].) Santow J recognised that the defendants bore the onus of satisfying him that the requirements of justice required an exercise of discretion in favour of a stay. He held that they had satisfied this onus, stating that: The factor which weighs heaviest in that result is the potential impact of the IRC proceedings on the Supreme Court proceedings. The contentions of the Defendants, if upheld in the Industrial Relations Commission, will, it is true, not resolve all the issues between the parties - but neither would the Supreme Court proceedings if heard first. However the IRC proceedings have the potential to result in avoidance or variation of two of the agreements the subject of the Supreme Court proceedings ... with consequential fundamental effect on those latter proceedings .... If the IRC proceedings are heard first, it will not impact adversely upon the capacity of the Supreme Court to deal with the issues still remaining. Indeed it will then be clear whether the three agreements are or are not avoided or varied. 31In Rexam Australia Pty Ltd Optimum Metallising Pty Ltd [2002] NSWSC 916 Einstein J at para [21] - [22] explained: There is no issue but that the court has power by reference to Part 13 Rule 5 (1) to stay the Supreme Court proceedings and that the court has general power, derived from its inherent jurisdiction, to stay the proceedings whether permanently or by a temporary stay, as in circumstances where proceedings are pending in another court and it is desirable that those proceedings should proceed to their conclusion. [cf generally the authorities cited in The Environmental Group Limited v Croudace, unreported, Santow J, 7 August 1998] The court may take into account all relevant facts matters and circumstances in exercising its appropriate discretion including the following:

which proceeding was commenced first;
whether the termination of one proceeding is likely to have a material effect on the other;
the public interest;
the undesirability of two courts competing to see which of them determines, the suit first;
considerations of circumstances relating to witnesses;
whether work carried out on pleadings, particulars, discovery, interrogatories and preparation may be wasted;
the undesirability of substantial waste of time and effort if it becomes a common practice to bring actions into courts involving substantially the same issues;
how advanced the proceedings are in each court;
the court's endeavour to strive against permitting multiplicity of proceedings in relation to the same issues;
generally balancing the advantages and disadvantages to each party involved in staying the Supreme Court Proceedings or in refusing to so stay those proceedings.

Discussion and findings 32I propose to deal with this application by considering relevant matters using the principles or guidelines identified in L & K Developments and Rexam noting the substantial overlap between the relevant criteria identified by both Santow JA and Einstein J.

Which proceedings commenced first 33The s 175 appeal proceedings were commenced in the NMT by the Council's referral of the matter, as required by the National Law, to the NMT on 9 May 2013, based on Ms Greyling's letter of 24 April 2013. 34The proceedings in the Court were commenced on 17 February 2014. However, it is not in dispute that it is a pre-requisite before the commencement of proceedings in the Court Ms Greyling was obliged to lodge a complaint with to the Australian Human Rights Commission which she did on 10 May 2013. It was only when the Commissioner provided a Notice of Determination on 19 December 2013 that Ms Greyling was entitled to commence the proceedings which she did on 17 February 2014. 35Ms Greyling, in her earlier correspondence with the Board dated 15 January 2013, notified her complaint of a breach of the SD Act in the Board's application of the Standard. She also raised the issue of her carer's responsibilities in respect of the child because of his disability. 36While I accept that Ms Greyling's proceedings in the NMT commenced prior to the Court proceedings, I find little weight can be given to this factor for the following reasons. First, Ms Greyling was required under the National Law to give notice of her appeal within 28 days of the Board's decision to refuse her registration as a midwife. This triggered the Council notifying the Tribunal of the Appeal on 10 May 2013. 37Second, almost simultaneously with notification of her appeal under s 175, Ms Greyling made a complaint to the Australian Human Rights Commission. This was a necessary pre-requisite to filing proceedings in the Court. I give some slight weight in favour of Ms Greyling's application to the fact that she gave notice to the Board and AHPRA as early as 15 January 2013 of asserted discrimination under the SD Act.

Whether the determination of one proceedings is likely to have a material effect on the other; possible jurisdictional problems 38There is an overlap in factors to be considered under the first heading and possible jurisdictional problems in this case facing each of the Tribunal and the Court. It is convenient to deal with both criteria together. 39Ms Greyling's position is that she will not abandon the Court proceedings if she is unsuccessful in the Tribunal. This is disputed by the Board and AHPRA on the basis that the Court proceedings would be unnecessary if the Tribunal proceedings are successful because she would be able to be registered subject to appropriate conditions. It is also argued on behalf of the Board and AHPRA that the Court cannot make an order granting Ms Greyling registration as a midwife. 40The Points of Claim as presently pleaded include claims for not only declaratory relief but damages. An order for compensation for damages is a remedy only available in the Court proceedings. It supports Ms Greyling's assertion that she would not discontinue the Court proceedings if successful in the Tribunal, and is a factor to be weighed in favour of granting the adjournment. I do however take into account in favour of the Board and AHPRA that, in its correspondence on behalf of AHPRA and the Board, Clayton Utz assert a number of deficiencies in the Points of Claim. If correct, and the proceedings in the Court are unsuccessful, the Board and AHPRA's remedy lies in seeking an order for costs. 41It is also pointed out on Ms Greyling's behalf that if the Court proceedings are heard and determined in her favour, then the s 175 appeal may be unnecessary thus obviating duplicity of proceedings and the attendant costs involved. 42It is further submitted on Ms Greyling's behalf that the Tribunal does not have the power to determine whether the Standard itself, or the way it was implemented by the Board, was discriminatory against Ms Greyling under the relevant federal laws. 43One conclusion sought to be drawn from the last submission is that, if the issues under the SD Act and the DD Act are resolved in Ms Greyling's favour in the Court proceedings in part or whole, she may benefit from an order under s 46 PO (4). The Court could order the Board reconsider its decision, and make appropriate adjustments to its conditions precedent to take into account Ms Greyling's caring and family responsibilities. Thus, while the Court cannot directly make findings under s 52 and s 82 of the National Law that Ms Greyling is entitled to be registered with or without conditions, the Court's orders under s 46PO could, indirectly, have the same result. 44In support of the above position Ms Greyling's counsel relies on decisions made under s 46 PO (4), and in particular, to the recent decision of Mortimer J in Watts v Australian Postal Corporation [2014] FCA 370 at [12] -[69]. 45It is neither necessary or appropriate that I should endeavour to resolve the issues raised in the Court proceedings in this application. Rather, I am satisfied regardless of whether or not the outcome in the Court proceedings favours Ms Greyling, the Tribunal's task is likely to be less complex if the Court proceedings are first resolved. In making this finding I have taken the following matters into account: 1.The Court may conclude that the Board failed to make reasonable adjustments. The Tribunal could then, in the "shoes of the Board", and using the expertise of the professional members of the Tribunal, craft conditions in respect of Ms Greyling's registration which take into account the Court's findings in respect the SD Act breaches and or DD Act breaches, and which satisfy the objects and principles of the National Law set out in s 3 in s 3A to ensure the health and safety of the public. This appears to me to be the broad general basis on which AHPRA and Ms Palmer's representatives sensibly crafted the consent orders made by the Tribunal in Palmer. 2. If the Court finds the Standard itself is invalid by reason of s 109 of the Constitution, then that is a finding only the Court could make. The consequence of such a finding would appear to be that it would be necessary for the Ministerial Council to approve a new or an amended Standard under s 12 of the National Law and Ms Greyling's application, and those of other former practitioners with like disabilities, be assessed by the Board or a Tribunal against an amended Standard. 3. I accept, as is submitted on behalf of Ms Greyling, that if the Tribunal had first determined the s 175 appeal, and dismissed it, it could be joined as a party to the proceedings in the Court on the basis it too had breached the relevant federal legislation by applying the Standard, or failing to make reasonable adjustments to it (if such an outcome is possible about which I do not comment). 46It is noteworthy, that the Tribunal in Palmer observed, the Standard does not, prima facie, appear to apply to nurses or midwives who have not practised for more than 5 years. The focus of the Standard is on permitting former practitioners who can demonstrate recency of practice in the 5 years preceding application for registration to be registered with or without conditions on their registration. I also note the comments of the NMT on the Standard and its interpretation in [79]-[115] in McMahon v NMT [2013] NSWNMT 4. 47I am satisfied, for the reasons enunciated above, that factors favouring the granting of the adjournment outweigh this Tribunal first determining the s 175 appeal.

The public interest 48No submissions were addressed to me on this topic. In McMahon the Tribunal commented on the importance of Standards, and their ready accessibility to practitioners via the Board's web-site. 49Applications are regularly made to the relevant health profession boards, including the Board, by persons whose registration have lapsed, for re-registration. A significant number of former practitioners institute appeals under s 175 in this Tribunal and did so in the former Health Profession Tribunals including the NMT. Many nurses have had periods of absence from their profession due to family responsibilities. Australia has an aging population with a rapidly expanding need for qualified nurses to meet the health care needs of that population as well needs of the general community. I am satisfied that issues raised by Ms Greyling are ones of public interest and importance. The matters to be ventilated in the Court proceedings are ones of significant public interest. That public interest is facilitated by the Court proceedings being determined prior to the s 175 appeal. The Court's determination could provide guidance to the Board and Tribunals of relevant factors to be taken into account in assessing applications for registration.

Considerations relating to witnesses 50No evidence was adduced before me on this topic. I do not find any relevant factor to take into account under this heading.

Whether work carried out on pleadings etc will be wasted, how advanced are the proceedings in each Court 51 Ms Greyling's legal representatives have engaged Counsel and filed detailed Points of Claim in the Court. However, as noted above, regardless of whether the s 175 proceedings are adjourned, Ms Greyling will likely pursue her claim in the Court. Therefore costs thus far expended will not be affected regardless of the outcome of this application. 52As at the time of the notification of Ms Greyling's appeal there was no form of Notice of Appeal required in the NMT. Neither the Court or Tribunal has ordered the filing of any evidence, save and except the two affidavits relied on in this application. Neither matter is listed for hearing. 53There was no evidence of any substantial delay in the Court or the Tribunal to determine the respective applications. I find factors under this heading have no significant relevance to determination of issues in this application. I do however give some little weight to the fact Ms Greyling has filed detailed Points of Claim in the Court.

The endeavour to avoid multiplicity of proceedings on the same issues 54It is submitted on behalf of Ms Greyling that while there are common issues in both proceedings it is inaccurate to refer to the matters in each jurisdiction to have a similarity of issues which in turn raise matters of issue estoppel. Ms Greyling's counsel submits "[in] fact issues to be determined by [the Court] and the [Tribunal] are fundamentally different, albeit intertwined". She refers to the fact that the Court has been asked to determine the validity of the National Law in the context of federal discrimination law. It is submitted that the findings of the Court will fundamentally impact on the Tribunal decision-making process. I accept that submission. 55Costs may be awarded in both jurisdictions. Thus, if Ms Greying is unsuccessful in the Court a costs order made be made against her. 56On a practical level, I am unable to identify any adverse financial consequences to AHPRA and the Board if the Court proceedings are determined first. If AHPRA is successful in the Court proceedings Ms Greyling may abandon her appeal thus bringing both sets of proceedings to finality. On the other hand, if the appeal proceedings are first determined and dismissed, incurring time and expense to both parties, the Court proceedings will continue.

Conclusions 57I find, for the reasons enunciated above, balancing all of the relevant the factors in favour of the application for adjournment against those against granting the relief sought, that the application should be allowed. The primary matters I have taken into account in reaching this conclusion are the lack of jurisdiction in this Tribunal to determine whether the Standard or the Board's application of it has breached federal discrimination law. I have also given weight to the public importance of the issues to be determined in the Court proceedings, and costs issues.

ORDERS 58The application by Ms Kerry Greying to adjourn or stay her appeal under s 175 of the Health Practitioner Regulation National Law No 86a (NSW) (Matter No 1420023) pending the determination of proceedings SYG0346/2014 in the Federal Circuit Court is granted. 59The matter is relisted for directions on 21st November 2014 at 9.30 and may be relisted earlier should the Federal Circuit Court proceedings be resolved. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

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 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: 09 May 2014

At a glance

Court

Decision date

Before

Source

Judgment (16 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (8)

Cited By (1)