Plaintiff v First Defendant Second Defendant

1 The plaintiff, Mr Peter Omant, was born on 24 May 1957, and holds general registration as a Registered Nurse (Division 1). In November 2010, the plaintiff was charged with various criminal offences relating to the possession of child pornography. The first defendant, the Nursing and Midwifery Board of Australia ('the 'Board'), conducted an investigation into the plaintiff's conduct and referred the matter to the second defendant, the Victorian Civil and Administrative Tribunal, for hearing pursuant to the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) ('National Law').

2 A contested hearing was conducted before a tribunal ('Tribunal')[1] on 15 August 2013. The Tribunal, on 13 September 2013, found that the plaintiff had engaged in professional misconduct and unprofessional conduct. As a result of its findings, the Tribunal made a number of penalty determinations which imposed conditions and restrictions on the plaintiff's ability to be employed as a Registered Nurse (Division 1).

3 The plaintiff seeks judicial review[2] of the decision of the Tribunal on a question of law. Whilst the plaintiff pleaded a number of grounds in submissions, the plaintiff at the hearing principally relied on the ground that the Tribunal had denied him natural justice and procedural fairness. The plaintiff contends the decision of the Tribunal should be quashed, and that the matter be remitted to the Tribunal differently constituted for a hearing de novo.

4 During the Tribunal hearing, the Vice President indicated to the parties that as a matter of procedural fairness, the Tribunal would disseminate its findings and then invite the parties to make further submissions on the appropriate penalty determinations to be made.[3] Despite this indication to the parties, the Tribunal proceeded to deliver its findings and make final penalty determinations without providing the parties with the promised opportunity to make submissions. The penalty determinations made by the Tribunal were serious; they included suspension of the plaintiff's registration for a period of 12 months, that the plaintiff undergo psychotherapy by a suitably qualified health professional approved by the Board on a monthly basis during the period of suspension and on conditions upon his re-employment as a nurse.

5 It is not contested by the Board that the Tribunal erred by failing to give the parties an opportunity to be heard on the penalty determinations made,[4] and that such failure denied the parties procedural fairness.[5] It is also not contested that, by reason of this error, the matter should be remitted to a differently constituted tribunal.[6] What is contested is the nature and extent of the hearing to be conducted before the differently constituted tribunal; whether the differently constituted tribunal should:

(b) be bound by the findings of the Tribunal, and conduct a rehearing limited to penalty determinations.

6 Dr I. Freckelton QC, counsel for the Board, submitted that the findings of the Tribunal should remain the findings of the differently constituted tribunal. He contended that at the rehearing the plaintiff should be able to call whatever evidence the plaintiff sees fit as relevant to new penalty determinations by the differently constituted tribunal.[7] In other words, the differently constituted tribunal should be bound by the findings already made and the reasons in respect of those findings, but would be otherwise free to hear evidence and make any other relevant (but presumably not inconsistent) penalty determinations.[8] Mr P.J. Billings, counsel for the plaintiff, submitted that the penalty determinations and findings of the Tribunal are interdependent[9] and it would be unsatisfactory to bind a differently constituted tribunal to the reasons and findings of the earlier Tribunal.[10]

7 For the reasons further explained below, I am of the opinion that it is highly undesirable that a differently constituted tribunal should be bound by reasoning and findings of another tribunal when such tribunal is required to make penalty determinations that may well impact on very significant aspects of the plaintiff's ability to pursue his career and such tribunal has not had the opportunity of making its own assessment of the evidence on which findings are made. A differently constituted tribunal should not be required to disaggregate between matters that form the basis of the findings, which are binding, and those of the penalty determinations, which are to be ignored; this is particularly so in circumstances where the Tribunal found, and its reasons in part where based upon, 'serious deficiencies in the [plaintiff's] evidence'.[11] In the interests of fairness, the matter should be remitted back to a differently constituted tribunal for a hearing de novo.

8 The nature of the plaintiff's offences were not the subject of any contest before me, and many facts relating to the offences themselves were agreed by the parties prior to the Tribunal hearing.[12] A summary, however, of the plaintiff's offending and subsequent investigation by the Board leading to the Tribunal hearing provides some context to my reasons.

9 The plaintiff was charged with criminal offences relating to the use of a telecommunication service in order to download sexual material involving children, both images and DVD or video footage, and also having possession of that material.[13] This material was downloaded between 2006 and 2007 and again between 2009 and 2010.[14] The images, of which there were in excess of a thousand, depicted children as young as three years old. The images and DVD or video footage included material rated at the most serious or extreme form of child pornography.

10 The plaintiff pleaded guilty on 27 May 2011 in the County Court and received a custodial sentence of 18 months. This sentence was suspended and expired on 26 May 2013.

11 The Board was of the opinion that the plaintiff's alleged conduct and health issues[15] posed a serious risk to persons and it was necessary to take immediate action to protect public health and safety.[16] On 10 December 2010, the Board sent to the plaintiff a notice of immediate action imposing a condition on his registration as a nurse that 'he must not practice nursing until the conclusion of the criminal and [Board] investigations, and any subsequent hearings into his conduct and health'. The plaintiff continues to be suspended.

12 The investigations by the Board took place throughout 2011 and, on 5 December 2012, the matter was referred to the Tribunal for hearing pursuant to s 193 of the National Law. As stated above, the Tribunal hearing was conducted on 15 August 2013, after which the Tribunal made the following findings:[17]

(a) on 27 May 2011, the plaintiff engaged in professional misconduct as defined in paragraph (c) of the definition of 'professional misconduct' in s 5 of the National Law;

(b) between 1 July 2010 and 23 November 2010, the plaintiff engaged in professional misconduct as defined in paragraphs (a) and (c) of the definition of 'professional misconduct' in s 5 of the National Law;

(c) between 23 August 2009 and 30 June 2010, the plaintiff engaged in professional misconduct as defined in paragraphs 3(1)(b) and (c) of the definition of 'professional misconduct' in the Health Professions Registration Act 2005 (Vic); and

(d) between 21 July 2006 and 27 March 2007, the plaintiff engaged in unprofessional conduct as defined in paragraphs 3(1)(a),(b) and (d) of the Nurses Act 1993 (Vic), and such conduct being of a serious nature pursuant to paragraph 48(1)(a) of the Nurses Act 1993.

13 Given that neither the offending, nor the legislation pursuant to which the above findings were made, were contested or the subject of submissions before me, I do not propose to consider these matters in any further detail.

Grounds for review and submissions of the parties

14 The plaintiff, in written submissions, relied upon three grounds for seeking to have the Tribunal decision quashed and the matter remitted to a differently constituted tribunal for rehearing:

(a) first, as stated above, the plaintiff was denied procedural fairness and/or natural justice by reason of the Tribunal failing to invite submissions on the appropriate penalty determinations after making its findings;

(b) second, the Vice President during the Tribunal hearing conducted an inappropriate cross-examination of the expert witness, Dr Owen, which gave rise to 'apparent bias', and materially affected the findings and penalty determinations; and

(c) third, the comments made by the Tribunal in its written reasons exhibited 'apprehended bias'.

15 The Board, in written submissions, accepted that the Tribunal's failure to receive submissions on penalty determinations constituted a denial of procedural fairness and was an error going to jurisdiction. As a consequence, it was submitted by the Board there was no need for the Court to consider the other grounds relied upon by the plaintiff, which related to bias.[18] Mr Billings, on behalf of the plaintiff, did not pursue the grounds relating to bias before me.[19]

16 Mr Billings opened the matter before me by indicating the plaintiff's acceptance of the Board's position that remitting the matter to a differently constituted tribunal for rehearing on penalty determinations only was the appropriate course.[20] While not agreeing with the process by which the Tribunal reached its findings, Mr Billings accepted those findings on the basis that 'even if a differently constituted tribunal heard submissions, the authorities would suggest that the finding with respect to professional misconduct would clearly be made out'.[21]

17 I referred Mr Billings to the decision of Dewan v Medical Board of Australia ('Dewan')[22] identified by the Board in written submissions, which also considered the appropriate type of rehearing to be conducted in circumstances where a tribunal made a determination without receiving submissions concerning determination. In Dewan, Beach J expressed concerns about a differently constituted tribunal having to construe the reasons of an earlier tribunal:

Notwithstanding the complexity and length of the VCAT judgment, it would, in my view, be a difficult exercise to determine the appropriate orders to be made simply from reference to it or the findings contained in it. Undoubtedly, the tribunal as originally constituted knew at the time it delivered reasons on the liability issue precisely what conduct it thought was deserving of, or required, some particular order. The difficulty for a different tribunal would involve trying to construe the various reasons and findings, with or without reference to the full evidence and hearing which led (or might have led) such findings [emphasis added].[23]

There are, of course, circumstances on the other hand when it may be appropriate for a differently constituted tribunal to hear the penalty phase of disciplinary or like proceedings...the issue is the appropriateness of such a course having regard to the facts and circumstances of the individual case.[24]

19 It was upon considering the concerns of Beach J raised in Dewan that Mr Billings changed his position and submitted that the matter should be remitted to a differently constituted tribunal for a hearing de novo.[25] Dr Freckelton submitted that the matter fitted within a category of cases identified by Beach J in Dewan as appropriate, for remitter on a discrete area, such that a differently constituted tribunal could determine penalty.[26]

20 Dr Freckelton submitted that the matter is distinguishable from Dewan on the basis that Dewan involved facts which were far more convoluted, meaning that a differently constituted tribunal in that case was faced with a much harder task than would be the case in the present circumstances.[27] In contrast to the circumstances in Dewan, he submitted that the two key parts of the Tribunal's decision before me, the findings and the penalty determinations, could be separated straightforwardly by reference to the written reasons.[28]

21 The main issue in light of Dewan, as submitted by Dr Freckelton, was whether a rehearing limited to penalty determinations would be unfair to the plaintiff due to the complexity of the matter, or the need for the differently constituted tribunal to observe the presentation of witnesses.[29] In this regard, Dr Freckelton submitted that the matter was not complex, and that any concerns about the observation of witnesses could be alleviated by the recalling of witnesses before the differently constituted tribunal and the provision of new evidence, to address any changes in the plaintiff's situation since the Tribunal hearing.[30] Dr Freckelton stated:

To the extent that impressions have been formed by the [Tribunal] at first instance, the reconvened tribunal can be placed in a perfectly adequate position to deal with these matters by [the plaintiff] stepping back into the witness box and saying whatever it is he wishes to say and calling whatever witnesses he proposes to call.[31]

22 When questioned as to how the recalling of witnesses would differ from a hearing de novo, Dr Freckelton submitted the purpose of recalling witnesses was to allow the parties to produce fresh evidence on matters they believed to be most important to the issue of penalty, such as remorse and rehabilitation, where a significant amount of time has passed since the Tribunal hearing and the circumstances of the plaintiff have likely changed. In this context, Dr Freckelton believed the plaintiff was advantaged[32] by the passage of time, and the ability to demonstrate greater progress in a bid to receive a lighter penalty.

23 Mr Billings submitted that the matter did not fall within the category of case contemplated by Beach J in Dewan, as being appropriate for remitter on penalty determinations only.[33] He contended that the matter is not simple, or non-complex, that there is real difficulty in separating the findings and the reasoning founding the penalty determinations; the approach contended for by the Board created an artificiality because the reasons for the findings cannot be divorced from the penalty.[34]

24 I do not consider the circumstances of this matter to be simple, straight forward or uncomplicated such that a differently constituted tribunal could simply take up the findings and reasons of the Tribunal. I think it would be extremely difficult for a differently constituted tribunal to construe the reasons and findings of the Tribunal, and I consider it would be an unjustified imposition to order a tribunal to do so. This is particularly so where the Tribunal's reasons are in significant part based upon findings that amount to criticism of the plaintiff's evidence and criticisms of the report of an experienced psychologist, Dr Owen, called on behalf of the plaintiff. The Tribunal stated the evidence of Dr Owen, 'provides no assistance to the Tribunal'[35] concerning aspects of the plaintiff's behaviour including, importantly, the reasons for the plaintiff's accessing and continuing to access child pornography during the offending period. There was further criticism of Dr Owen including that her assessment 'was largely predicated upon the [plaintiff's] self-reporting'.[36] It is not for me to decide whether the Tribunal was justified in making those findings and criticisms of Dr Owen. What is clear from my reading of Dr Owen's report and evidence is that a differently constituted tribunal may reasonably make a different assessment of her report and this evidence. It is not appropriate to bind a differently constituted tribunal to such findings.

Undoubtedly, the tribunal as originally constituted knew at the time it delivered reasons on the liability issue precisely what conduct it thought was deserving of, or required, some particular order. The difficulty for a different tribunal would involve trying to construe the various reasons and findings, with or without reference to the full evidence and hearing which led (or might have led) such findings.[37]

26 His Honour's reasoning is applicable to the circumstances of this matter.

27 Dr Freckelton referred to Hall v New South Wales Trotting Club Ltd ('Hall')[38] and Malone v Marr ('Malone')[39] in support of the submission that it would be appropriate to remit this matter to a differently constituted tribunal on the basis of deciding penalty determinations only. In Hall, Hutley JA[40] and Samuels JA[41] found that if the rules of natural justice had been broken concerning a portion of the proceedings (the failure to provide an opportunity to address on penalty), but the penalty determinations were severable, there was no reasons why the whole proceeding should be void. In Malone, Holland J found himself compelled to follow the Court of Appeal in Hall and that he was thus required 'to hold that the resolution on penalty and only that resolution is void on the ground that the decision therein contained was made in contravention of the rules of natural justice'.[42] This, it was submitted on behalf of the Board, is good authority for its submission that the reasons and findings of the Tribunal should stand, and the penalty determinations can be severed.

28 I do not believe the findings and reasons of the Tribunal can be readily separated from the task of assessing penalty, and making penalty determinations. The submission of the Board that the plaintiff and other witnesses could be recalled to provide further evidence is an unsatisfactory halfway house that has the potential to embarrass a differently constituted tribunal, who would be bound by previous findings concerning the witnesses even when the further evidence may suggest to them that contrary findings are appropriate.

29 In Lovett v Chiropractors and Osteopaths Registration Board ('Lovett'),[43] Cummins J ruled that a differently constituted board could determine penalty after a board had found proven a charge of unprofessional conduct. His Honour took into account that a differently constituted board could have access to full transcript of evidence and was prepared to recall any witnesses the plaintiff wished to recall. These 'remedies and ameliorations'[44] were, his Honour found, sufficient to provide natural justice and procedural fairness to the plaintiff. However, important to his Honour's reasoning were circumstances peculiar to that case; two members of the board that determined the substantive issue of unprofessional conduct had ceased to be members, 'however two members to hear penalty were on the original [b]oard'.[45] His Honour described this situation as 'regrettable' and 'ideally it would be preferable if the [b]oard, as originally constituted, heard penalty'.[46]

30 The parties before me agree that this matter is not to be remitted to the original Tribunal, and thus the circumstances are distinguishable from those in Lovett. In this case no member of the differently constituted tribunal will have any understanding of the issues and evidence important to the original Tribunal in making its findings.

31 'The demands of justice in the particular case',[47] in my opinion compel an order that this matter be remitted for hearing de novo by a differently constituted tribunal. Any considerations of expense or delay are outweighed by the potential prejudice to the plaintiff of having a differently constituted tribunal forced to adopt the reasoning and findings of the prior Tribunal when making penalty determinations.

[1] The Tribunal was constituted by Her Honour Jenkins J as Vice President with Members, Ms M. Bylhouwer and Ms M. Archibald, of the Victorian Civil and Administrative Tribunal, at Melbourne.

[2] The plaintiff brings this application pursuant to r 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic). The Board takes no exception to the plaintiff proceeding in this Court by way of an application for judicial review rather than the more appropriate course of an appeal to the Victorian Court of Appeal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

[3] Tribunal hearing transcript ('Tribunal Transcript') at 97.11.

[5] See written submissions of the Board.

[7] Ibid at 7.3, 20.8 and 21.16 - 21.18.

[12] The parties had previously provided a statement of agreed facts dated 14 August 2013.

[15] Including a reported dependency on alcohol.

[16] See notice of proposed immediate action pursuant to s 157 of the National Law dated 6 December 2013_,_ which was sent by the Board to the plaintiff.

[17] See Final Orders made by the Tribunal; see also Tribunal Reasons at 2.

[18] The Board did provide written submissions on the remaining grounds of bias in the event the Court required those grounds to be decided.

[22] [2011] VSC 588.

[38] [1977] 1 NSWLR 378.

[39] [1981] 2 NSWLR 894.

[43] [1993] VicSC 706 (Unreported, Supreme Court of Victoria, Cummins J, 7 December 1993).

[47] Wentworth v Rogers (No 3) [1986] 6 NSWLR 642 at 649 (Kirby P); see also Brennan v Brennan [1953] HCA 28; (1953) 89 CLR 129 at 136-137 (Williams ACJ, Webb and Kitto JJ).