Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : H -v- NURSING AND MIDWIFERY BOARD OF AUSTRALIA [2014] WASC 325

Practice and procedure - Application to withdraw a notice of discontinuance of appeal - Grounds of appeal have no reasonable prospect of succeeding - Application dismissed

H v Nursing and Midwifery Board of Australia [2014] WASC 325

H v Nursing and Midwifery Board of Australia [2015] WASCA 60

1 JUDGMENT OF THE COURT: This is an application by the appellant to withdraw a notice of discontinuance she filed on 28 April 2015 and to reinstate the appeal. The circumstances in which the appellant came to file the notice of discontinuance are quite unclear from the affidavit in support of the application, but it appears to be alleged by the appellant that she had to file it in order to procure her release from a psychiatric hospital in which she was then being detained as an involuntary patient.

2 The background to the appeal is set out in H v Nursing and Midwifery Board of Australia [2015] WASCA 60. However, shortly stated, the appellant commenced employment at Royal Perth Hospital (RPH) as a registered nurse in early 2007. Late in 2008, concerns arose as to her mental health. Over the course of 2010 the appellant underwent psychiatric examinations by three different psychiatrists, all of whom concluded that the appellant was suffering from a mental illness and that without effective treatment the appellant was unfit for work as a nurse.

3 On 8 February 2011, the respondent, pursuant to s 71(1)(c) of the Nurses and Midwives Act 2006 (WA), brought an application in the State Administrative Tribunal seeking various orders under s 82 of that Act, including an order that the appellant's registration as a nurse be suspended for a period of up to two years. The ground of the application was that the appellant suffered from an impairment, namely a delusional disorder and a major depressive disorder, to such an extent that her ability to practise as a nurse was or was likely to be affected: s 50(b) of the Nurses and Midwives Act.

4 For the purposes of that application, the Tribunal acceded to a request by the appellant that she be assessed by another psychiatrist. The assessment of that psychiatrist was to the same effect as the other psychiatrists.

5 The Tribunal found that the appellant did suffer from an impairment which was or was likely to affect her ability to practise as a nurse. It ordered that the appellant's registration be suspended for a period of six months and that at the completion of the period of suspension a number of conditions be imposed on the appellant's registration, including periodic evaluation by a psychiatrist appointed by the respondent who was to provide a report to it of the evaluation.

6 The appellant sought leave to appeal out of time to a single judge of the Supreme Court. The proposed grounds of appeal were not in conventional form but the gravamen of them was that the Tribunal had erred in finding that the appellant was suffering from a mental illness.

7 The primary judge refused leave to appeal and dismissed the appeal: H v Nursing and Midwifery Board of Australia [2014] WASC 325. His Honour considered that the medical evidence presented to the Tribunal was consistently to the effect that the appellant was suffering from a delusional disorder. He concluded that no error had been shown [67].

8 The appellant appealed to this court from the decision of the primary judge. As mentioned above, on 28 April 2015 the appellant filed a notice of discontinuance of the appeal. She now seeks to withdraw the notice of discontinuance and to reinstate the appeal.

9 Assuming, without deciding, that this court has the power to set aside the notice of discontinuance and reinstate the appeal, no basis have been made out upon which it would be proper to do so.

10 The appellant's grounds of appeal in this court were again not in conventional form. They were also again without merit. In several of the grounds the appellant sought to rely on provisions of the Vexatious Proceedings Restriction Act 2002 (WA) in support of the proposition that the proceedings before the Tribunal and the primary judge were 'vexatious'. That Act plainly has no relevance to the proceedings.

11 In other grounds, the appellant sought to rely on O 26 of the Rules of the Supreme Court 1971 (WA), relating to discovery of documents, and on O 28, relating to medical examinations, for purposes that do not clearly emerge. In any event, those provisions have no application to the application before the Tribunal or the appeal to the primary judge. Another ground simply asserted that the respondent, its counsel and one of the examining psychiatrists 'violated the rules of the Supreme Court'.

12 There were further grounds which were, with respect, simply incomprehensible. What is clear, however, is that none of the grounds of appeal identified any error by the primary judge. Nor is any error apparent on the material before us. It follows that the appeal had no reasonable prospect of succeeding.

13 In those circumstances, it would be pointless to reinstate the appeal, assuming a power to do so exists.