1. Application regarding conditional registration dismissed.

2. No order made in relation to issues of costs in the proceeding.

3. Direction to Tribunal Registry that, in the event of an application involving these parties being issued out of this Tribunal, it bring such application to my attention immediately.

1 This matter, which has been described as having a long and tortured history, comes before me in relation to two issues which could be described as sequelae to a detailed judgment of His Honour Judge Duggan, delivered 27 February 2002. That judgment involved the same parties, and concerns an application by the Applicant, Rosemary Rein ("Rein") seeking a review of the decision of the Nurses Board of Victoria ("NBV") whereby it refused Rein's application for registration as a nurse. I might add that, in referring to NBV, I am including its predecessor in title, the Victorian Nursing Council. The two sequelae to Judge Duggan's judgment concern, firstly, an application by NBV that this Tribunal impose conditions upon any further application by Rein to NBV for registration as a nurse, and, secondly, certain items of cost. Thus it is an application by NBV seeking orders relating to these two matters which is now before me. Ms Rein appeared in person. Mr Robinson of Best Hooper, Solicitors, appeared on behalf of NBV.

2 In order to put this application in context, I shall now deal briefly with the judgment of Judge Duggan and with certain subsequent events.

3 As stated, this comprehensive judgment was delivered on 27 February 2002. It has been put to me, and I accept, that, in hearing the application in the manner in which he did and in delivering such a detailed judgment, Judge Duggan was attempting to "clear the air" and introduce some finality to the matter. His ultimate conclusion was that Rein suffers from a mental impairment which significantly impairs her capacity to practice as a registered nurse and he refused her application for registration. However, before reaching that conclusion, he set out, in considerable detail, both her history and the history of her attempts to gain registration as a nurse. That lengthy history commences at paragraph 3 of His Honour's judgment. What is particularly relevant to the present application is not so much Rein's personal history or her history of treatment and hospitalisation, but what could be described as her litigation history in relation to applications for registration as a nurse. This litigation history can be found in paragraphs

4-14 of His Honour's judgment. I will not go through it in detail. However, a summary of the history would read as follows:-

* 1988: Rein indicates that she wishes to cancel her registration.

* 1990: Rein applies for registration and is told, because of her abusive phone calls to NBV, that she must obtain certain material

* 21 November 1990: NBV announces it is not satisfied that no mental impairment exists.

* 10 July 1991: NBV's Executive Committee holds inquiry (which Rein does not attend) and finds that she has become incompetent and recommends that her application for registration be refused, which is done.

(The above sets the background for the ongoing applications).

* 18 March 1992: NBV appeals successfully to the Supreme Court of Victoria following an earlier Magistrates' Court decision overturning NBV's refusal to register.

* 25 September 1992: Rein's appeal to the Full Court of the Supreme Court of Victoria is unsuccessful.

* 19 August 1992: Rein makes a fresh application to NBV for registration which, in essence, is refused due to the absence of supporting evidence of continuing medical treatment over a period of at least two (2) years.

* 5 April 1993: Rein makes a further application for registration, which is treated in similar fashion to the previous one.

* 15 December 1993: Rein makes another appeal for registration which is dismissed.

* March 1994: Another appeal by Rein to the Magistrates' Court is dismissed by consent.

* July 1994: Rein makes another application for registration.

* 17 February 1995: A complaint by Rein to the Equal Opportunity Board (concerning the same matters) is unsuccessful.

* Shortly thereafter, Rein appeals to the Supreme Court. The appeal is dismissed by consent.

* August 1995: Rein again applies for registration, which application is refused.

* 23 November 1995: Rein's application to review that decision is dismissed with costs by Deputy President Macnamara.

* April 1999: Rein makes a further application for registration which is refused.

* 20 July 2000: Rein's application is further considered by NBV and again refused.

* 28 July 2000: Rein commences review of that decision (which, after further developments, is the review ultimately determined by Judge Duggan).

* 7 March 2001: His Honour Judge Davey stays the proceedings until such time as the Applicant undergoes psychiatric examination and she consults a Dr Chester in March and April.

* May 2001: Rein withdraws Dr Chester's authority to provide a report.

* 6 June 2001 Deputy President Davis further stays the proceedings until such time as the Applicant provides a psychiatric report.

* 3 August 2001: Dr Cunningham reports and, following receipt of that report, Rein requests that the proceedings be withdrawn, which they are.

* October 2001: Rein seeks to have proceedings reinstated.

* 13 November 2001: Justice Kellam, President, and Deputy President Davis reinstate the proceedings on certain conditions.

* 13 December 2001: The matter commences before Judge Duggan.

* 27 February 2002: Judge Duggan refuses Rein's application.

4 Even setting out the litigation history in summary form, it can clearly be seen why Judge Duggan described the matter as having "a long and tortured history". However, as stated, some appreciation of this history is necessary in order to put the present application in context.

5 Firstly, Rein did not appeal in relation to Judge Duggan's judgment. However, apart from this application before me, there have been two other applications issued out of this Tribunal by Rein involving effectively the same matters delivered by Judge Duggan. Each concerns the refusal of registration and each was brought pursuant to the provisions of the Equal Opportunity Act 1995. Accordingly, each was dealt with in the Anti-Discrimination List.

6 On 27 September 2002, Deputy President Coghlan dismissed a proceeding by Rein, pointing out that there had been no appeal in relation to Judge Duggan's judgment and that, in the absence of any evidence that Rein was no longer suffering from an impairment, the Tribunal was bound by Judge Duggan's decision.

7 On 5 April 2004, Deputy President Davis dealt with yet another application pursuant to the Equal Opportunity Act 1995 and relating to the refusal of the application for registration. Deputy President Davis dismissed the application with costs, also pointing out that there was no fresh material, that the decision of Judge Duggan had not been appealed, and that the complaint before her was substantially in the same form and suffered from the same defects as those noted in the decision of Deputy President Coghlan.

8 It is noted that, in Deputy President Davis' written reasons, it is stated that:-

"... it appears that the current complaint is an attempt to circumvent the decision of His Honour Judge Duggan and to re-litigate the Board's decision which amount to an abusive process and ought not to be countenanced".

9 It is also noted that Deputy President Davis recorded a submission by NBV that it and its predecessors billed costs since 1991 total about $75,000 - a figure I would have thought conservative, although similar material (but not identical) was put before me. Through Mr Robinson, NBV complained that it is funded entirely by registration fees paid by nurses and those fees should not be directed to meeting and defending the repeated applications made by Rein.

A FURTHER OBSERVATION CONCERNING THE HISTORY OF EVENTS AND THE BEHAVIOUR OF REIN

10 In order to understand the somewhat novel application made to me by Mr Robinson concerning the registration conditions which should be ordered, it is perhaps also useful to appreciate the following. At paragraph 75 of his judgment, Judge Duggan stated that:-

"The fact remains that the applicant is now a person who suffers from a mental illness the most obvious manifestation of which is a tendency to come into conflict with others. To a very remarkable degree when in conflict the applicant is prone to become abusive and threatening, particularly over the phone."

11 This is certainly the impression which I have formed. Rein has been abusive to me. She has been abusive to my staff. She has been abusive to staff at this Tribunal, to such an extent that both the former President, Justice Kellam, and Deputy President Davis were compelled to make orders on three occasions that any communication between Rein and the Tribunal concerning the proceeding be directed to Senior Registrar O'Keefe. I also note, that in her written reasons following the most recent application referred to above, Deputy President Davis referred to Rein's "outbursts of invective and vitriol levelled at the Board and at the Tribunal".

12 Such abuse has also been levelled at examining legal practitioners - see for example, the remarks of Dr Walton as recorded in Judge Duggan's judgment - and, as one would expect, to officers of NBV and to and about Mr Robinson. Paragraph 63 of His Honour's judgment sets out details of the long history of such abuse.

13 As stated, I accept, as did Judge Duggan, that these are unfortunate manifestations of Rein's mental illness. I have alluded to them because they help to explain the somewhat desperate application that Mr Robinson has now made to this Tribunal and to explain the determination of Judge Duggan in his attempt to bring this whole unfortunate saga to a conclusion. It is one thing having a person bring repeated applications concerning the same matter and causing the incurring of large amounts of costs. It is another thing when the whole exercise is conducted in an atmosphere of great hostility and unpleasantness. The desire to bring some finality to the matter is fully understandable.

THE PRESENT APPLICATION - CONDITIONAL REGISTRATON

14 Mr Robinson has urged upon me that I should make orders, or alternatively a declaration, effectively imposing conditions on Rein which must be satisfied before she applies again for registration. These include her submitting to a medical examination by a psychiatrist, the paying of a deposit as security for such examination and report (there is a long history of difficulty concerning appointments and reports), and concerning the material which is to be made available to any examining psychiatrist. In this regard, Mr Robinson has referred me to ss. 51, 124 and 130 of the Victorian and Civil and Administrative Tribunal Act 1998 ("the Act") and to ss. 5 and 49 of the Nurses Act 1993.

15 Whilst this is an application of some ingenuity, and doubtless born of desperation, in my opinion it is misconceived and the orders sought are orders which this Tribunal has no power to make. In so finding, I am fully aware of the urgent desire of Mr Robinson and his client to bring some finality to the matter. I am aware of the demands on this Tribunal. The amount of time, energy and money which this dispute has already consumed is enormous. However, and whilst I shall be making an order in relation to the future conduct of this dispute, I cannot accede to NBV's application.

16 I have arrived at this conclusion for the following reasons. This Tribunal is a creature of statute. Pursuant to that statute, it has original and review jurisdiction. A matter such as the present one falls within the review jurisdiction. What Judge Duggan was doing was reviewing the decision of the NBV to refuse registration, and that review came to this Tribunal by means of an enabling enactment - s.58 of the Nurses Act 1993.

17 In other words, NBV had made a decision and Rein sought a review of it. Judge Duggan then reviewed it and made an order in relation to it.

18 In the present application, what Mr Robinson is asking me to do is to make an order in respect of a decision which has not yet been made. He has argued that, unless an order of this type is made, Rein will return "again and again and again". That may be so, but I can find no jurisdiction in the Tribunal to make such an order in respect of a decision not yet taken. Mr Robinson has urged upon me that, by reason of a combination of ss.51(1) and 130 of the Act, the Tribunal effectively stands in the shoes of the decision-maker and can make an order subject to any conditions or further orders that it thinks fit. Pursuant to s.49 of the Nurses Act, NBV can make an order imposing conditions upon the registration of a nurse. Accordingly, the Tribunal, standing in the shoes of NBV, can make a similar order.

19 Further, pursuant to s.130(2)(e) of the Act, such an order is necessary to give effect to Judge Duggan's judgment.

20 In my opinion, when, pursuant to s.51(1) the Tribunal assumes all the functions of the decision-maker, it is assuming those functions "in exercising its review jurisdiction in respect of a decision". In other words, the operation of s.51(1) assumes the existence of a decision, and, in reviewing that decision, the Tribunal assumes all the powers of the decision-maker. This does not apply to decisions not yet made, and, however strong to the contrary the indications may be, decisions that may never be made.

21 Judge Duggan reviewed the decision in question, and delivered judgment accordingly. The conditions now under discussion were not part of the reviewable decision and do not form part of any other decision which is under review. In my opinion the Tribunal has no jurisdiction to make an order imposing such conditions.

22 Nor, in my opinion, should any declaration be made pursuant to s.124. The power under that section is to make a declaration concerning any matter in a proceeding instead of any orders the Tribunal could make (or in addition to any such order). As discussed, the Tribunal could not make an order of the type in question. Accordingly, it cannot make a declaration. If Judge Duggan had been asked to review a decision which countenanced such conditions, the situation may have been different. However, he conducted his review on the basis of the existing reviewable decision and delivered judgment. Whilst he did reserve liberty to apply, in my opinion that does not, in some way, confer upon this Tribunal a jurisdiction which would not otherwise exist so that it could grant a declaration referable to some future occasion.

23 In my opinion, not only does the Tribunal lack the jurisdiction to make such a declaration, it should not. Declarations should not be made in respect of situations which are theoretical or hypothetical. As discussed above, the relief here sought relates to possible future applications by Rein for registration. Based upon past events and her statements, the possibility of her making such an application would appear to be a particularly strong one. However, the making of such an application remains theoretical or hypothetical. If such an application is issued and the matter comes back before this Tribunal, the situation may be different. Obviously I make no pre-emptory judgment in that regard. Argument would have to be entertained and the situation considered. All I can say is that, in the present situation, the Tribunal cannot and should not make a declaration of the type sought.

24 Accordingly, NBV's application in this regard is dismissed.

25 NBV is also seeking various items of costs, some of which relate to particular occasions and one of which is simply referred to as being costs "of this proceeding since 7 March 2001". This application must be seen in the light of an order of Judge Duggan of 27 February 2002 in which, whilst reserving liberty to apply, he ordered that NBV's application for costs be refused. The heading above those orders reads "Date of hearing: 13 December 2001 and 6 February 2002. Date of Decision: 27 February 2002". The reference number is that appropriate to this proceeding. It is also noted that Rein was not present on 27 February 2002, only Mr Robinson being in attendance.

26 The particular items of costs claimed by Mr Robinson on behalf of NBV are as follows:-

(a) The costs of and incidental to the discontinuance of Rein's proceeding on 6 October 2000 and of this proceeding since 7 March 2001, including reserved costs; or

(b) The costs of an incidental to Rein's discontinuance of this proceeding of 6 October 2000, her refusal to permit Dr Chester to submit a report on his examination, the hearing of 14 August 2001 and Rein's discontinuance of this proceeding on 12 September 2001.

27 An examination of the various orders made in this proceeding reveals the following extant costs orders:-

* 8 October 2001 (Justice Kellam and Deputy President Davis):

Rein to pay NBV an amount equal to the accounts rendered to NBV by Dr Chester and Dr Cunningham in the sum of $1,678.56 and with a reservation of liberty to apply further and on the question of costs.

* 13 November 2001 (Justice Kellam and Deputy President Davis):

The NBV's application for costs refused and "otherwise grant the respondent (NBV) liberty to apply."

28 Rein resists all applications for costs, save, as I understand it, she accepts some responsibility in relation to costs associated with the withdrawal of her application on 18 September 2001. However, no order in relation to costs was made on that day. Liberty to apply generally and on the question of costs was reserved on 8 October 2001, but whether this was meant to include any costs of 18 September 2001 is not entirely clear. In any event, the orders made on 8 October 2001 were revoked by the orders made on 13 November 2001. This presumably would also include the orders made in relation to Dr Chester's expenses. Thus, the costs situation prevailing in September, October and November 2001 is far from clear.

29 A difficulty which faces Mr Robinson in his costs application is constituted by the orders of Judge Duggan of 27 February 2002. I have referred to them previously. Those orders simply read:-

1. That the respondent's application for costs be refused.

2. Otherwise grant the respondent liberty to apply."

30 As stated, Rein was not present when Judge Duggan's decision was handed down and the orders made. Mr Robinson's recollection is that Judge Duggan was reluctant to make a costs order in the absence of Rein, and for that reason made the order which he did and reserved liberty to apply. However, whilst Mr Robinson's recollection may well be accurate, the fact remains that the order made by Judge Duggan is that NBV's application for costs be refused.

31 Furthermore, when a costs order is made at the conclusion of a principal or ultimate hearing, it is not unusual for such order to embrace the entire proceeding as opposed to being referrable only to that ultimate hearing. Indeed, in my experience, this is very frequently the case. Sometimes such orders also specifically include reserved costs. In addition, the word "otherwise" at the start of Order 2 might be seen as indicating that His Honour was not reserving liberty in relation to the preceding refusal of costs.

32 In summary, I am faced with an order refusing costs. That order was made by Judge Duggan after he had delivered an extremely thorough judgment. I cannot go behind that order, nor sit in appeal on it. Further, whilst I am in no way critical of Mr Robinson's recollection, the wording of the reservation of liberty raises a query as to exactly what was intended.

33 Without wishing to "pass the buck", these matters are matters to be raised with Judge Duggan. As stated, I am faced with a clear order refusing costs. If that order does not reflect what was intended, then the matter has to be taken up with Judge Duggan. Furthermore, it may well be that such order was intended to cover all costs of the proceeding, possibly even reserved costs.

34 I indicated to the parties that I would endeavour to locate the tape of the hearing of 27 February 2002 in an endeavour to ascertain what was put to Judge Duggan on the question of costs, and what observations he might have made. Upon reflection, it seems to me that, whilst this may have assisted the parties, it would not have enabled me to go behind Judge Duggan's order. At best, it may have thrown some light on what was intended and been of some assistance to him in clarifying his order, should that be required. In any event, such argument is academic. Whilst the tapes of the hearing and of 6 February 2002 have been located, no tape can be found of what occurred on 27 February 2002.

35 Accordingly, given the order of His Honour Judge Duggan of 27 February 2002, I make no order as to costs as sought by the Respondent, NBV. I am not dismissing the costs application. I am simply making no orders. If there is scope for the making of such an order, that is something which I leave to Judge Duggan, assuming that he is of the view that the liberty which he reserved was intended to enable him to deal with costs.

CONDUCT OF FUTURE DISPUTES BETWEEN THE SAME PARTIES

36 As I have previously indicated, whilst I am of the view that I possess no jurisdiction to make the type of orders requested by NBV in relation to conditional registration, I can well understand its frustration concerning the numerous and repetitive applications to which it has been subject and to which, apparently, it will be subject. I accept the material referred to and exhibited in the affidavit of Wayne Kenneth Charles Johnston dated 13 December 2002. I accept that Rein has said, in relation to her application for registration, such things as:

"I will continue to run it. You have my undoubted word on it and it will be run and re-run and run again, so you had better make up your mind and make a decision because I am going to keep running this case until I drop dead. Because you have no right to my registration and never have had."

"I will never, ever, as long as I have breath in my body, cease requesting my nurse's registration back ... I will never cease so don't think it's going to go away."

Thus, there is every prospect that the pattern of the past will be repeated in the future.

37 Judge Duggan has determined this matter in a most thorough fashion. I appreciate that he was dealing with a particular application, and that Rein may simply make another application. However, unless circumstances have changed - and I refer particularly to the obtaining of psychiatric evidence which indicates that Rein no longer has a mental impairment which significantly impairs her capacity to practice as a registered nurse - the bringing of further similar applications in an attempt to circumvent Judge Duggan's judgment would seem to me to be an abuse of process.

38 Accordingly, I am making an order or direction similar to that which I made in Al-Hakim v Monash University (written decision delivered 18 February 2003). I direct the Tribunal Registry that, in the event of the issuing of any application out of this Tribunal involving the same parties, such application immediately be directed to my attention. I shall then examine the application in order to ascertain whether it appears to involve the re-litigating of matters already determined by Judge Duggan. If that possibility appears to exist, I shall list the matter for argument before me forthwith. If I am then satisfied that the application represents an attempt to re-litigate matters determined by Judge Duggan, I shall listen to any submission to the effect that such application should be struck out or dismissed. I shall also listen to any argument concerning costs.

1. The application by the Nurses Board of Victoria in respect of conditions to be imposed upon any application for registration by the applicant is dismissed.

2. I make no order as to costs incurred in this proceeding.

3. I direct the Tribunal Registry that, in the event of an application involving these parties being issued out of this Tribunal, it bring such application to my attention immediately.