Linquist v Nursing and Midwifery Board of Australia

The re-opening application

1. In this appeal, the substantive order sought by Ms Linquist is an order under s 175C of the National Law, substituting the decision made by the Board to refuse to grant her application for registration as a nurse with an order that she be granted registration subject to conditions, namely that she successfully complete a re-entry to practice program accredited by the Australian Nursing and Midwifery Accreditation Council (re-entry to practice program).
2. The expert evidence Ms Linquist seeks leave to adduce is a report prepared by former registered nurse, Ms Jennifer Haines. The central issue Ms Haines was asked to address in her report was whether, if Ms Linquist were to undertake and successfully complete a re-entry to practice program, she would be qualified to practise as a nurse in a competent and ethical manner.

Issues remaining to be determined in the appeal

1. To put in context the submissions made by the parties about Ms Linquist's application to re-open her case, it is useful to identify the substantive issues to be determined in this appeal. Much of the hearing before the Tribunal on 21 June 2018 (the original hearing) was devoted to legal argument about the proper interpretation of the Recency of Practice Standard and the operation of, and interrelationship between, ss 52, 82 and 83 of the National Law.
2. In the decision issued on 9 November 2018, which has now been set aside, Principal Member Britton identified four key issues in the dispute between the parties, and concluded that: 1. The Tribunal had jurisdiction to hear the appeal brought by Ms Linquist against the decision of the Board to refuse to grant her application for registration in the profession of nursing. 2. The Recency of Practice Standard applies to a nurse in Ms Linquist's position, that is, a nurse who has not practiced for more than ten years. 3. Ms Linquist does not meet the requirements of the Recency of Practice Standard. 4. Where, through the imposition of conditions under s 83 of the National Law, an applicant for registration as a health practitioner satisfies the requirements for registration listed in s 52(1), the decision-maker is not obliged to refuse an application for registration.
3. At the hearing listed to determine Ms Linquist's application to re-open, the parties informed the Tribunal that, out of the above issues, only one was still in dispute: the proper interpretation of ss 52 and 83 of the National Law (conclusion 4 above). The Board advises that while it does not seek to make further submissions about that issue, it maintains its original position, that the Tribunal lacks the power to impose conditions on Ms Linquist's registration under ss 52(2) and 83 of the National Law to rectify her failure to meet the Recency of Practice Standard.
4. Self-evidently, if the Board's interpretation of ss 52 and 83 were to be adopted, the question of whether leave should be granted to Ms Linquist to re-open her case will be moot. For the purpose of deciding Ms Linquist's application to re-open, we will assume but not decide that the conclusion reached by Principal Member Britton in respect of ss 52 and 83 was correct.

Principles relating to re-opening a case

1. There is extensive authority on the principles applying to the exercise of the discretion to permit a party to re-open their case where, as in this case, judgment stands reserved.
2. In Chao v Chao (No 2) [2008] NSWSC 612, citing Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010, Brereton J summarised at [2] the principles governing the exercise of the discretion: The Court has a discretion to grant a party leave to re-open its case after final submissions have been concluded and the Court has reserved its decision. The ultimate question is whether the interests of justice are better served by allowing or rejecting the application. It is relevant to consider whether prejudice would be occasioned by the late introduction of the evidence to the other party. It will also be relevant to consider the materiality of the proposed additional evidence, and whether it could by reasonable diligence have been discovered before, or at least any explanation for its not having been adduced earlier. If there was a deliberate decision made not to call the evidence when it ought to have been called in the ordinary course of proceedings, that will typically tell decisively against allowing a reopening, although there is no hard and fast rule requiring the Court to reject an application even where the decision not to call a witness or tender a document was a deliberate one.
3. In ASIC v Rich [2006] NSWSC 826, Austin J said that the following was a useful statement of the "relevant discretionary factors" applicable where a party seeks to re-open its case for the purpose of adducing further evidence: (a) the nature of the proceeding; (b) whether the occasion for calling the further evidence ought reasonably to have been foreseen; (c) the consideration of fairness that the defendant is entitled to know all of the evidence he has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question; (d) the extent to which the plaintiff has embarked upon calling evidence on the issue in question in its case in chief; (e) the importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case; (f) the degree of relevance and probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time; (g) the prejudice to the defendant in terms of delay in the completion of the proceeding and the consequential costs; (h) the public interest in the timely conclusion of litigation; (i) what explanation is offered by the plaintiff for not having called the evidence in chief.

Submissions

1. Ms Linquist contends that the interests of justice demand that her application to re-open be granted. She points out that the evidence she seeks to adduce relates to the discrete question of what conditions, if any, could be imposed on her registration such that their fulfilment would render her suitable to be registered as a nurse.
2. Ms Linquist submits that, in the original hearing, neither party fully addressed that question because of the Board's "all or nothing" approach, namely, its contention that, because she did not satisfy the Recency of Practice Standard, the National Law did not permit either the Board or the Tribunal to grant registration subject to conditions. As a consequence, Ms Linquist argues, the Board did not engage with the alternative proposition, namely whether, if she were to successfully complete a re-entry to practice program, the Tribunal could be satisfied that she would be qualified to practise as a nurse in a competent and ethical manner.
3. Ms Linquist points out that the expert retained by the Board to give evidence in the original hearing, Dr Marie Heartfield, did not express an opinion about Ms Linquist's capacity to undertake a re-entry to practice program. Dr Heartfield has recently declined to give evidence in these proceedings about the content of that program on the basis that she has no knowledge of it.
4. Referring to the list of factors identified by Austin J in ASIC v Rich at [13], Ms Linquist contends that the following factors weigh heavily in favour of the exercise of the discretion to permit her to re-open her case.
5. First, Ms Linquist points to the nature of the function performed by the Tribunal. In determining the appeal, the power exercised by the Tribunal is administrative in nature; it is, asserts Ms Linquist, "true merits review". In undertaking the task of determining Ms Linquist's application for registration, justice demands that the Tribunal have available to it the best available material to enable it to reach the "correct and preferable" decision. Ms Linquist contends that unless her application to re-open is granted, there will be no evidence before the Tribunal to assist it to determine whether she is a suitable candidate to undertake a re-entry to practice program, and, if so, whether, if she were to successfully complete that program, she would be competent to practise as a nurse.
6. Second, while acknowledging that there has been significant delay in the finalisation of the NCAT appeal, Ms Linquist points out that this delay is not of her making and is unrelated to her application to re-open her case. Emphasising that the evidence she seeks to adduce addresses a discrete point, she contends that if leave to re-open is granted, it is unlikely to delay the finalisation of the appeal.
7. Third, Ms Linquist contends that there is no evidence of any actual prejudice the Board might suffer if the application to re-open is granted. Ms Linquist points out that, in anticipation that her application to re-open might be granted, the Board has served an expert report and three affidavits in response to Ms Haines' report.
8. Fourth, Ms Linquist asserts that she has provided a reasonable explanation for her failure to provide the Tribunal with an expert report in the original hearing, namely, lack of funds to retain an expert to give evidence.
9. Finally, Ms Linquist contends that the evidence she seeks to adduce is plainly material to the issue that falls to be determined in this appeal.
10. The Board accepts that the Tribunal may permit Ms Linquist to re-open her case but submits that the following matters weigh against the exercise of that discretion for the following reasons.
11. First, the Board points out that the application falls outside the "recognised classes of cases" in which it has been considered appropriate to exercise the discretion to permit a party to re-open their case. While acknowledging that those classes are not closed, Kenny J in Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 identified at [24] four classes of cases in which a court may grant leave to re-open: (1) fresh evidence; (2) inadvertent error; (3) mistaken apprehension of the facts; and (4) mistaken apprehension of the law.
12. Second, the Board contends that the explanation proffered by Ms Linquist for not obtaining an expert report at the time of the original hearing, being lack of funds, cannot be accepted. The Board contends that the evidence advanced in support of that claim is deficient in several key respects. The evidence lacks transparency because it is given by the principal of the firm of solicitors representing Ms Linquist in the NCAT appeal, and it omits information about Ms Linquist's financial affairs that is material to her claim of lacking capacity to pay for an expert report at the time of the original hearing. In addition, the Board contends that there is insufficient evidence to support that claim, especially given that, as revealed in cross-examination, Ms Linquist is the owner of a residential property of significant value.
13. The Board submits that, even if the Tribunal were to accept the explanation proffered by Ms Linquist, courts "routinely reject" claims of lack of funds to obtain evidence in support of requests for significant procedural indulgences, such as the type now sought by Ms Linquist, citing in support Management Service Australia Pty Ltd v PM Works Pty Ltd [2017] NSWSC 1743 at [24].
14. Third, the Board rejects Ms Linquist's assertion that it will suffer no actual prejudice, contending that it will it be "irredeemably prejudiced" if Ms Linquist is permitted to re-open her case. The Board contends that the resultant prejudice will go beyond the additional and significant costs it will inevitably incur, which it accepts can largely be cured by a costs order, and will extend to the loss of its "forensic advantage". The Board contends that it may have made different decisions about the manner in which it conducted its case in the original hearing had it known that Ms Linquist would be relying on an expert opinion. The Board asserts that this prejudice cannot be cured by permitting it to reply to and test the proposed expert evidence. This is because Ms Haines and Ms Linquist herself have had the advantage of considering the evidence given by the Board's expert together with the Board's closing submissions. The Board points out that Adamson J at [58] acknowledged the potentially significant forensic advantage Ms Linquist will gain if her application to re-open is granted.
15. Fourth, the Board points out that, if the application to re-open is granted, it will further delay the NCAT appeal, which was commenced in December 2017. Citing Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [103]; [2009] HCA 27, the Board contends that a consideration relevant to the exercise of the discretion is the inconvenience and stress the Board and Ms Linquist will suffer as a consequence of the prolonging of the NCAT appeal together with the resultant diversion of the Tribunal's limited resources. In addition, further delay would be inconsistent with the "guiding principle" of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) - that is, to facilitate the just, quick, and cheap resolution of the real issues in the proceedings (s 36(1)).
16. Fifth, citing ASIC v Rich at 18(f), Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 477 and Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 18) [2018] NSWSC 1828 at [57], the Board contends that highly relevant to the exercise of the discretion is the nature and significance of the proposed expert evidence. The Board asserts that, in light of her qualifications and experience, Ms Haines is not well placed to give evidence on the ultimate issue the Tribunal has been asked to address, namely, whether Ms Linquist is a suitable candidate for a re-entry to practice program. The Board contends that the report prepared by Ms Haines will add little to the issues that the Tribunal must decide and further has the potential to waste time. The Board asserts that the report is based upon a number of "unsafe" factual assumptions about Ms Linquist's nursing experience and contains little reasoning. The value of the report is further diminished, contends the Board, by the fact that Ms Haines has no formal educational qualifications and has not been involved in the design or assessment of any re-entry to practice program.

Consideration

1. There are many matters of substance and procedure about which the parties disagree. However, they agree that, in determining Ms Linquist's application to re-open her case, the overriding principle the Tribunal must consider is whether the interests of justice are better served by allowing or rejecting that application.
2. The principles developed by the courts in determining applications for leave to re-open provide useful guidance. In applying those principles, it is first necessary to consider the role and function of the Tribunal, together with the statutory framework which governs the Tribunal's practice and procedure.
3. The role of the Tribunal in an appeal brought under s 175 is to hear afresh the appellant's application made to the original decision-maker, in this case the Board. In undertaking that task, the Tribunal is not bound by the decision of the original decision-maker: CWV v Medical Board of Australia [2016] NSWCATOD 161; D'Rozario v Dental Board of Australia [2015] NSWCATOD 19 at [4]-[5]. If the Tribunal decides to substitute another decision for the decision under appeal, the Tribunal can exercise the same powers as the original decision-maker (s 175C(2)). In short, the function of the Tribunal in this appeal is to determine the merits of Ms Linquist's application for registration.
4. The statutory framework governing the Tribunal's practice and procedure requires the Tribunal to seek to give effect to the "guiding principle" - the facilitation of the just, quick, and cheap resolution of the real issues in the proceedings: s 36(1). That principle is reflected in one of the objects of the NCAT Act - to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible: s 3(d). In addition, the NCAT Act requires the Tribunal to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and the complexity of the subject-matter of the proceedings: s 36(4).
5. The NCAT Act affords the Tribunal considerable procedural flexibility. The Tribunal may determine its own procedure (s 38(1)) and is not bound by the rules of evidence (s 38(2)). In addition, not only is the Tribunal permitted to inquire into and inform itself on any matter and in such a manner as it thinks fit, subject to the rules of natural justice (s 38(2)), it has a positive obligation to ensure that all relevant material is disclosed to the Tribunal to enable it to determine all of the relevant facts in issue (s 38(6)(a)).
6. We turn now to the specific factors relevant to the determination of Ms Linquist's application. The explanation provided by Ms Linquist for not providing the proposed expert evidence at the original hearing, while not the most compelling, is nonetheless adequate. Her claim of lacking the funds to retain an expert in circumstances where she was separated from her husband, had full-time caring responsibilities, and was only able to afford representation in the NCAT proceedings because her barrister was providing his services on a pro bono basis and her solicitor had agreed to a deferred fee arrangement, in our view, is plausible. That Ms Lindquist may own a property of significant value does not establish, as the Board appears to contend, that her claim of being unable to afford to fund an expert is false.
7. Whether we find Ms Haines' opinion to be persuasive is not to the point. The matters about which she has expressed opinions in her report are plainly material to the central issue to be determined in this appeal.
8. Permitting Ms Linquist to re-open her case and adduce expert evidence at this late stage of proceedings will, as the Board points out, inevitably result in further delay and add to the cost of the NCAT appeal. While that delay and the additional costs are not likely to be significant, they are nonetheless relevant considerations in the exercise of the discretion to permit, or to refuse, Ms Linquist's application to re-open. As the Board correctly points out, in determining that application, consideration must be given to the wider object of the administration of justice, which includes the interests of other parties seeking to have their matters determined: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 at [51]; Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at 211 [92]-[93], 213 [98]. In addition, the Tribunal is obliged to ensure that its finite and limited resources are appropriately and proportionately used.
9. An issue of some significance in this appeal is whether, as the Board asserts, it will suffer "irredeemable prejudice" if Ms Linquist is permitted to re-open her case. We accept that the Board will suffer some prejudice. However, in our view, that prejudice is largely in the nature of the expense of obtaining evidence to reply to the evidence Ms Linquist now seeks leave to adduce and the additional hearing time to consider that additional evidence. If the Board's fundamental position is as strong as it asserts, the fact that Ms Linquist would be at less of a forensic disadvantage than previously if the case is re-opened does not place it at any significant disadvantage. In circumstances where the Board will be given the opportunity to test and to respond to the proposed expert evidence, we reject the Board's contention that it will suffer irredeemable prejudice.
10. A regrettable consequence of the approach taken by Ms Linquist in this appeal is that we are now confronted with the situation that, unless leave to re-open is granted, there will be limited material available to assist us to decide whether, having regard to the objects of the National Law and the statutory scheme governing the registration of health practitioners in NSW, the preferable decision is to grant registration subject to conditions, or to refuse registration. It is not correct to say, as Ms Linquist suggests, that there is currently no material before us to assist us to decide whether conditions can be formulated such that their fulfilment would render her suitable to be registered as a nurse (see, for example Nursing and Midwifery Board of Australia v Linquist at [23]-[26]). However, we accept the proposition that the available material is limited.
11. The approach the Board now urges us to adopt would mean that we would be required to determine that issue without the benefit of available and centrally relevant material which addresses a narrow and discreet issue. In our view, that approach sits uncomfortably with our statutory role to determine the merits of Ms Linquist's application for registration, together with our obligation to ensure that all relevant material is disclosed to enable us to determine all of the relevant facts in issue. In evaluating whether the interests of justice are better served by allowing or rejecting Ms Linquist's application, we are mindful that this task must not be undertaken through the prism of what fairness to Ms Linquist demands, but requires consideration of what fairness to all parties, and the administration of justice demands. While the considerations are finely balanced, we have decided that the interests of justice are better served by acceding to Ms Linquist's application to re-open her case.

Orders 1. Ms Linquist's application to re-open her case is granted.

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: 04 December 2019