NURSING AND MIDWIFERY BOARD OF AUSTRALIA -v- H [2017] WASC 20 (31 January 2017)

The Vexatious Proceedings Restriction Act

3 Section 4(1) of the Act provides that if the court is satisfied that a person has instituted or conducted vexatious proceedings (whether before or after the commencement of the Act) or it is likely that the person will institute or conduct vexatious proceedings the court may make either or both of the following orders:

(a) an order staying any proceedings, either as to the whole or part of the proceedings, that have been instituted by that person; or

(b) an order prohibiting that person from instituting proceedings, or proceedings of a particular class, without the leave of a court or tribunal, as the case requires under s 6(1).

4 Section 4(2)(c) provides that an order may be made with the leave of the court on an application by a person against whom another person has instituted or conducted vexatious proceedings or a person who has a sufficient interest in the matter.[1]

5 Section 3 of the Act defines 'proceedings' to include:

(a) any cause, matter, action, suit, proceeding, trial or inquiry of any kind within the jurisdiction of any court, including a court of summary jurisdiction, or a tribunal;

(b) any proceedings, including interlocutory proceedings, taken in connection with or incidental to proceedings pending before a court, including a court of summary jurisdiction, or a tribunal; and

(c) an appeal from a decision or determination, whether or not a final decision or determination, of a court, including a court of summary jurisdiction, or a tribunal.

6 Section 3 of the Act defines 'vexatious proceedings' to mean proceedings:

(a) which are an abuse of the process of a court or a tribunal;

(b) instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose;

(c) instituted or pursued without reasonable ground; or

(d) conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose.

7 Proceedings are vexatious if they are objectively an abuse of the process of a court or a tribunal or are instituted or pursued without reasonable ground. Thus, proceedings may be vexatious if they have these latter characteristics regardless of the subjective intention, motive or state of mind of the litigant.[2]

8 The applicant says that the respondent has a history of initiating proceedings against it relating to its refusal to renew or accept her registration as a nurse based on her mental impairment, that those proceedings have been costly and vexatious, that the respondent apparently lacks insight into her mental impairment and so it contends the cycle of costly and vexatious proceedings will continue.[3]

9 The applicant seeks relief on its own behalf and on behalf of AHPRA. In appropriate cases, relief should be tailored to the protection not just of a private applicant but persons or bodies closely associated with the applicant who are prejudiced or likely to be prejudiced by the activities of the respondent.[4]

10 AHPRA is governed by the Health Practitioner Regulation National Law and supports the applicant and other national boards to regulate the health profession, including nursing.[5]

The history of proceedings and applications by the respondent Tribunal proceedings (VR 23 of 2011)

11 The respondent commenced employment at Royal Perth Hospital 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.[6]

12 In 2011, the applicant initiated proceedings in the Tribunal under the Nurses and Midwives Act 2006 (WA) to determine whether the respondent suffered from an impairment which adversely affected her ability to practice as a nurse.

13 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.[7]

14 For the purposes of that application, the Tribunal accepted 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.

15 Following a hearing, the Tribunal determined that the respondent suffered a relevant impairment, suspended her from practice for a period of six months and imposed certain conditions on her registration.[8]

16 In around February 2013, the respondent surrendered her general nursing registration.[9]

17 In late 2013, the respondent applied to the Supreme Court for leave to appeal out of time from the Tribunal's decision in VR 23 of 2011.

18 The application was heard by Justice Corboy who declined leave.[10] The main issue in the appeal was whether the tribunal had erred in finding that the respondent suffered from a psychiatric disorder. His Honour found that the respondent had not demonstrated that the Tribunal had erred in making its findings as to her mental condition. The medical evidence presented to the Tribunal was consistently to the effect that the appellant was suffering from a delusional disorder.[11]

19 His Honour's comprehensive reasons address the evidence before the Tribunal and the history of the proceedings. I do not repeat those reasons here but note their importance and relevance in terms of the background to this application.

20 The respondent appealed from Justice Corboy's decision to the Court of Appeal. She made an interim application in the appeal for subpoenas to issue seeking documents which it was said were necessary for the preparation of her appeal. The interim application was dismissed, the Court of Appeal finding that it was misconceived and that the respondent had failed to establish that the documents were reasonably necessary or relevant to the matters before the Tribunal.[12]

21 The respondent filed a notice of discontinuance of the appeal in April 2015.[13]

22 The respondent then sought to withdraw the notice of discontinuance of the appeal. The Court of Appeal, assuming for the purpose of the application that it had the power to set aside the notice of discontinuance, considered the proposed grounds of appeal and found that they were without merit. It noted that none of the grounds of appeal identified any error on the part of the primary judge. Some grounds of appeal were incomprehensible and unconventional in form. The application was dismissed.[14]

23 On 8 June 2015, the respondent submitted an application for general nursing registration to the applicant. In order to assist in making a decision, the applicant arranged for a psychiatrist, Dr Jansen, to conduct an independent medical assessment of the respondent.[15]

24 A report was received and considered. The applicant declined to register the respondent on the basis that the respondent had an impairment that would detrimentally affect her ability to practice the profession to such an extent that it would place the public at risk.[16]

Appeal to the Tribunal against decision to refuse 8 June 2015 application (VR 213 of 2015)

25 The respondent then appealed to the Tribunal against the applicant's decision to decline to register the respondent as a nurse. For the purpose of the Tribunal hearing, Dr Jansen undertook a further medical assessment of the respondent. Dr Jansen's report confirmed that the respondent was not fit to work as a nurse due to an impairment.[17]

26 On 16 February 2016, the Tribunal dismissed the appeal.[18]

27 On 24 March 2016, the respondent submitted a further application for registration. As part of the application, the respondent declared that she did not have an impairment that detrimentally affects or is likely to detrimentally affect her capacity to practice as a nurse.[19] She did not provide any evidence to the effect that she was fit to practise as a nurse.

28 On 10 June 2016, the applicant refused the respondent's application for registration.[20]

Appeal to the Tribunal against decision to refuse 24 March 2016 application (VR 95 of 2016)

29 On 13 June 2016, the respondent lodged an appeal in the Tribunal against the applicant's decision to refuse the 24 March 2016 application for registration. The ground of appeal was said to be:[21]

I am not a psychiatric person. The [applicant] used an unsigned medical report done by psychiatrist Dr Edwards-Smith suspended my nursing registration in 2011 (VR 23 of 2011). It is unlawful, the nursing registration should be given to me unconditionally.

30 As set out above, the respondent had already unsuccessfully pursued the matters the subject of VR 23 of 2011 to the Supreme Court and Court of Appeal.

31 The applicant applied to strike out the appeal under s 47(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Section 47(1) permits a proceeding to be struck out if it is (relevantly) frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process.

32 On 12 August 2016, the Tribunal dismissed the proceedings under s 47(1).[22]

33 On 12 August 2016, the respondent again submitted an application for registration. Again, the applicant declared that she did not have an impairment that detrimentally affects or is likely to detrimentally affect her capacity to practise as a nurse. She did not provide any evidence to the effect that she was fit to practise as a nurse. [23]

34 These proceedings were issued prior to the applicant determining the 12 August 2016 application. At the time the originating motion was filed, Ms Farnsworth filed an affidavit disclosing that the application remained undetermined.[24] That statement was correct at the time. However, the respondent's application was determined and refused on about 19 October 2016. The applicant did not formally disclose the fact of the refusal until a supplementary affidavit was filed on 14 December 2016.[25] This caused the respondent not inconsiderable concern, voiced in email exchanges, as she considered the applicant deliberately failed to disclose the refusal and provided incorrect information to the court. It is unfortunate that the refusal was not disclosed to the court earlier in circumstances where the respondent had raised the issue by email, but I do not consider the court was deliberately misled. Nor do I consider the outcome is affected in any way.

35 The respondent appeared in person at a directions hearing in the proceedings on 17 November 2016.

36 At the respondent's request, an interpreter was made available. I described to the respondent the nature of the application being brought. Importantly, the respondent asked me what 'leave' meant and whether that meant she could not file anything at all. When I explained the requirement to first seek permission by way of leave before any further proceedings could be filed in the Tribunal or a Western Australian court, the respondent appeared to understand.

37 In emails sent to my Associate, the respondent declined to attend the final hearing and declined to participate by telephone, despite that offer being extended to her. Offers to provide an interpreter were also made.

38 The respondent did file an affidavit, however.[26] It was not clear from the affidavit that the respondent opposed the orders being made but I proceeded on the basis the orders were opposed.

39 There were three themes in the respondent's affidavit. First, the respondent considers herself a 'targeted individual', and says she has no faith in the veracity of the psychiatric reports provided over the years.

40 Second, the respondent contends AHPRA and its staff are corrupt.[27]

41 Third, the respondent wanted certainty as to the outcome of these proceedings and wanted it quickly. She said:[28]

According to the laws, I need to obtain a normal psychiatric assessment report from a psychiatrist to get back my nursing registration. I do not believe there is any psychiatrist would give me such a report in Australia. Please end the proceedings as soon as possible no matter what outcomes would be.

I have no further submissions but wait for the final conclusion from the Supreme Court, please do not let me wait for another 4 months.

42 The respondent made other generalised allegations in her affidavit but she did not expressly address whether or not the application should be made, other than to describe the applicant in some instances as vexatious.

43 The respondent did not file submissions. However, I note that in an email sent to my Associate, the respondent said that she had no intention of filing any application to a court in the future because of injustices she says she has suffered. She then said if the court withdrew orders she might file new applications if necessary.[29] I mention this particular communication because it is relevant to the exercise of my discretion, in that if the respondent's assertion that she would not issue any further proceedings were given weight and taken literally, there would be no need for an order under the Act. In the circumstances, having considered the history of the matter including applications out of time and the attempt to withdraw the notice of discontinuance of appeal, I am not persuaded that I should accept the respondent's statement that she will not seek to issue further proceedings against the applicant or against AHPRA, even if that be her current intention.

44 It remains to consider the various elements of s 4 as to which I must be satisfied before exercising my discretion.

Has the respondent instituted or conducted vexatious proceedings (s 4(1)(a))?

45 As the history set out above discloses, the respondent has instituted vexatious proceedings as that term is defined in the Act. The appeal from the Tribunal's decision was brought without reasonable grounds, as Justice Corboy's reasons explain.[30] The interim application to the Court of Appeal was dismissed as misconceived.[31] The attempt to set aside the notice of discontinuance was brought in circumstances where the Court of Appeal considered the respondent had no reasonable prospects of succeeding.[32] The Tribunal dismissed proceedings on the basis they were vexatious or an abuse of process under s 47 of the SAT Act.[33] The respondent lodged a further application for registration with the applicant and brought proceedings relating to such application without there being any relevant change in circumstances (that is, no medical evidence was provided to counter the previous findings).[34] Viewed objectively, it was not reasonable to continue to challenge the decision in the Tribunal in circumstances where there was no evidence of a change in the respondent's mental condition.

Is the respondent likely to institute vexatious proceedings against the applicant (s 4(1) (b))?

46 I am satisfied that the respondent is likely to bring further proceedings with respect to her desire to obtain registration as a nurse. I take into account that it appears the respondent has not sought to challenge in the Tribunal the latest refusal by the applicant to register the respondent as a nurse. However, as the history indicates, the respondent has on occasions filed applications out of time and has changed her mind as to whether or not to bring applications. Sadly, the nature of the evidence in her affidavit suggests that the respondent lacks insight into her mental condition. She continues to bring fresh applications for registration despite the lack of any evidence as to improvement. I infer that the past conduct in this case is an indication of probable future conduct.[35] I consider it is likely she will continue to apply for registration in the future and, if aggrieved with the outcome, will continue to bring proceedings in the Tribunal and this Court.

Is the applicant a person against whom the respondent has instituted or conducted vexatious proceedings (s 4(2)(c))?

47 This element is satisfied in this case by the answer as to s 4(1)(a).

Should the court exercise its discretion under s 4(d)?

48 It is important to remember the ramifications of an order under s 4 of the Act. As Le Miere J observed in Attorney General v Michael:[36]

The right of an individual to commence proceedings to enforce or defend his rights is one of the fundamental rights fin a free society. The rule of law requires that ordinarily a person should have access to the courts in order to invoke their jurisdiction. To limit this right represents a major restriction on the liberty of the individual for which there must be a proper and adequate justification. The effect of an order made under s 4(1)(d) of the Act does not remove the right to issue proceedings entirely. A person against whom such an order has been made still has access to the courts. However, he is required to take an additional step in the process by obtaining the permission of the court prior to any claims being issued. Nevertheless, the making of an order under s 4(1) of the Act restricts the rights of the person against whom such an order has been made and for that reason the powers conferred by the section must be exercised with caution.

At the same time, the court must have regard to the purpose of the Act. The institution or conduct of unmeritorious litigation will have an emotional and financial impact on the other parties to the litigation. Innocent parties may be dragged through the courts for a decision made at the end of a long legal road that the claim never had any legal merit in the first place. The vindicated party frequently has no practical opportunity to recoup even court assessed costs, let alone actual out of pocket costs. And there is no redress for the loss of time and the aggravation of futile legal proceedings. The Act is intended to provide protection to a person who may be the target of vexatious litigation. Furthermore, the time of the court is unreasonably occupied in dealing with vexatious litigation. Not only are the resources of the court wasted in dealing with such litigation but other more worthy litigation is delayed.

49 In this case, there are several matters to be weighed against the restriction sought to be imposed upon the respondent. The proposed orders do not prevent the respondent from pursuing further applications to be registered as a nurse. The orders only proscribe access to the Tribunal or the court by imposing a requirement that she first obtain leave. The orders provide a filter on applications, a filter which is justified in the circumstances of the cycle of litigation already embarked upon by the respondent.

50 The proceedings identified above have no doubt taken up significant time and costs on the part of the applicant and have utilised the resources of AHPRA. The time of the Tribunal and the courts has been diverted to deal with litigation with no real prospect of success and of a repetitive nature. Allegations made against AHPRA staff no doubt also caused a degree of distress.

51 I am satisfied that a restrictive order should be made against the applicant.

What is the appropriate scope of the orders I should make?

52 The applicant initially sought an order preventing the respondent from bringing any further proceedings against it or AHPRA in the Tribunal or a court without leave. During the hearing, the proposed order was refined to limit such proceedings to those which relate to any application for registration as a nurse or the refusal of such applications.

53 I am satisfied that the order should also extend to proceedings against AHPRA, taking into account allegations made against it and its staff in the respondent's evidence and the role it has in assisting the applicant.

54 For the above reasons I made orders under s 4(2)(c) and s 4(1)(c) respectively of the Act effectively as follows:

1. The applicant have leave to bring the application.
2. The respondent is prohibited from instituting any further proceedings in relation to her registration or refusal of registration as a nurse in the State Administrative Tribunal or a court of the State of Western Australia against the applicant or the Australian Health Practitioner's Regulation Agency without leave.

[1] The rationale for leave in the case of private applicants is discussed in Granich Partners v Yap [2003] WASC 206 [31] - [33].

[2] Attorney General v Michael [2005] WASC 203 [7].

[3] Affidavit of Amelia Farnworth filed 28 October 2016 [26] [29]; notice of originating motion.

[5] Farnworth affidavit [2]. Ms Farnworth is a legal advisor employed by AHPRA and providing assistance to the applicant in that capacity.

[6] As summarised in H v Nursing and Midwifery Board of Australia [2015] WASCA 60, discussed further below.

[7] Section 50(b) of the Nurses and Midwives Act 2006 (WA).

[8] Tribunal orders in VR 23 of 2011 dated 3 November 2011, Farnworth affidavit AKF1.

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

[11] H v Nursing and Midwifery Board of Australia [2014] WASC 325 [60].

[12] H v Nursing and Midwifery Board of Australia [2015] WASCA 60 [31] [35].

[13] H v Nursing and Midwifery Board of Australia [No 2] [2015] WASCA 141 [1].

[14] H v Nursing and Midwifery Board of Australia [No 2] [2015] WASCA 141 [8] [14].

[18] Tribunal orders made 16 February 2016, President, Justice Curthoys, Farnworth affidavit AKF3.

[22] Tribunal orders made 12 August 2016, President, Justice Curthoys, Farnworth affidavit AKF6.

[25] Supplementary affidavit of Amelia Farnsworth filed 14 December 2016.

[26] Respondent's affidavit filed 10 November 2016.

[27] There was no evidence to support the allegation. General allegations were also made as to the inability to obtain documents and reliance on allegedly illegal documents, similar to those referred to in H v Nursing and Midwifery Board of Australia [2014] WASC 325 [49], [51].

[28] Respondent's affidavit [1] [2].

[29] Email from the respondent to the court, copied to the applicant's representative, 1 December 2016.

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

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

[32] H v Nursing and Midwifery Board of Australia [No 2] [2015] WASCA 141.

[34] The 24 March 2016 application; VR 95 of 2016.

[35] See Granich Partners v Yap [41].

[36] Attorney General v Michael [143] [144].