Roberts v Nursing and Midwifery Board of Australia

Solicitors: Crown Solicitor's Office (Respondent) File Number(s): 1620013

Introduction

1. Ms Roberts was first registered in NSW as a nurse on 4 March 1957 and a midwife on 22 July 1958. Ms Roberts maintained her registration as a nurse and midwife until 31 May 2013 when her registration expired.
2. Prior to expiration of her registration, it appears that Ms Roberts was last employed on a casual/part-time basis as a Registered Nurse in December 2001 and last practised as a midwife in 1975.
3. Since 2013, Ms Robert has made three applications to the Nursing and Midwifery Board (the Board); first a renewal of her registration as a nurse and midwife, and then two general applications for registration as a nurse and midwife once her registration had lapsed. The first two applications were deemed by the Board to be withdrawn when Ms Roberts failed to provide requested information or respond to correspondence. The third application was refused on the basis that Ms Roberts could not demonstrate recency of practise. It is this third determination that is the subject of this application to appeal.
4. Ms Roberts is self-represented in these proceedings and did not appear at the hearing.

Background and Procedural History

1. On 3 June 2013 Ms Roberts applied to the Nursing and Midwifery Board for renewal of her registration.
2. In her application for renewal Ms Roberts disclosed a change to her criminal history. On 13 September 2013 pursuant to s 80 of the National Law, the Board requested Ms Roberts provide further information to facilitate a criminal history check before determining the application for renewal.
3. On 19 September 2013 pursuant to s 110 of the National Law the Board requested Ms Roberts provide information in relation to her recent practise as a nurse or midwife by 14 October 2013. Ms Roberts was informed that in the event she failed to comply with the request for further information her application to renew her registration would be taken to be withdrawn pursuant to s 80(5) of the National Law.
4. On 23 October 2013 the Board wrote to Ms Roberts and informed her that as the further information requested had not been provided her application was deemed withdrawn pursuant to s 80(5) of the National Law.
5. On 24 October 2013 Ms Roberts provided to the Board a copy of a document entitled "Employment Resume" and on 30 December 2013 Ms Roberts provided to the Board a 60-page bundle of documents which were photocopied and returned to Ms Roberts.
6. On 13 February 2014 the Board wrote to Ms Roberts advising that her application to renew her registration had been deemed withdrawn by operation of s 80(5) of the National Law on 22 October 2013. The Board informed Ms Roberts she would be required to make an application for general registration. In that letter the Board alerted Ms Roberts to the issue of her recency of professional practise.
7. On 2 June 2014 Ms Roberts applied for general registration as a nurse and midwife. In her application Ms Roberts did not complete item 17 under Section H of the application which deals with suitability for registration, in particular recency of practise.
8. On 8 August 2014 the Board informed Ms Roberts of their decision pursuant to s 80(1)(e) of the National Law to require Ms Roberts to attend a health assessment by a Board appointed medical practitioner to determine if she had an impairment that would detrimentally affect her capacity to practise the profession to such an extent that it would place the safety of the public at risk. The Board's reasons for requiring Ms Roberts to undergo a health assessment were given in detail. These included the fact that Ms Roberts had attended the AHPRA office on approximately 17 occasions from October 2013 to June 2014, on each occasion stating that her documents had been stolen by neighbours, and on each occasion questioning AHPRA staff as to why her application for renewal has been withdrawn, despite receiving an explanation each time in addition to the reasons in writing.
9. In the letter of 8 August 2014 the Board also addressed the issue of Ms Roberts' recent professional practise and of the need for Ms Roberts to demonstrate that she had undertaken sufficient practise in her profession within the preceding five years to maintain competence in accordance with the Recency Standard.

The Tribunal Proceedings

1. Ms Roberts filed an application for appeal on 12 January 2016 pursuant to s 175(1)(a) of the Health Practitioner Regulation National Law (NSW) (National Law).
2. On 13 May 2016 orders were made requiring Ms Roberts to file documents in support of her application.
3. On 15 July 2016 the Board filed and served the documents upon which it intended to rely at final hearing.
4. On 22 July 2016 Ms Roberts appeared at Directions by telephone. Orders were again made requiring Ms Roberts to file documents in support of her application, although this was extended to 9 September 2016 in light of her difficulties as a self-represented litigant. The application was set down for final hearing on 10 October 2016.
5. On 6 September 2016 the Tribunal received a letter from Ms Roberts seeking an indefinite adjournment of the application.
6. On 12 September 2016 the Tribunal wrote to Ms Roberts and the Board advising that Ms Roberts' application for an indefinite adjournment had been listed for directions on 30 September 2016.
7. At directions on 30 September 2016 the Board neither opposed nor consented to the application for a stay. Ms Roberts failed to appear before the Tribunal. Acting Judge Boland made orders standing over the application for an indefinite adjournment to the hearing date of 10 October 2016.
8. On 30 September 2016 the Board foreshadowed at directions that it intended on 10 October 2016 to make an application to dismiss the proceedings pursuant to s 55 of the CAT Act. This was noted in the orders which were sent to Ms Roberts by the Registrar.

The Application for an Indefinite Adjournment

1. Ms Roberts' letter of 6 September 2016 requested an indefinite stay of her application for appeal on the basis that documents relevant to her appeal were stolen from her possession, and also that she required further time to submit additional documentation and prepare written argument.
2. The Tribunal is charged with hearing and determining matters expeditiously under Cl 11 Schedule 5D of the National Law.
3. Section 36 of the CAT Act provides that the guiding principle in determining matters of practice and procedure in the Tribunal is "the just, quick and cheap resolution of the proceedings".
4. An indefinite stay of proceedings is inconsistent with the objects and provisions of the National Law and the CAT Act: HCCC v Singh [2016] NSWCATOD 85.
5. Ms Roberts did not provide any evidence of her claim that documents had been stolen, and no information as to the steps taken to ameliorate these difficulties or how long it would take her to submit further documentation and prepare argument. Ms Roberts was afforded the opportunity to substantiate her request for a stay on two occasions. It is therefore unclear what benefit a stay would afford Ms Roberts or for how long it would be required.
6. In these circumstances, Ms Roberts' application for a stay must be refused.

The Application to Dismiss the Proceedings

1. Ms Roberts filed no documents in support of her application for appeal.
2. Ms Roberts failed to appear before the Tribunal on two of the three occasions the matter was listed for directions (13 May 2016 and 30 September 2016) and did not appear at the hearing. On each occasion Tribunal staff attempted to reach her by telephone.
3. At the hearing the Board sought an order dismissing the proceedings pursuant to s 55(1)(d) of the CAT Act on the basis that there has been a want of prosecution of the proceedings on Ms Roberts' part.

Reasons

1. The decision to dismiss proceedings for want of prosecution is discretionary: Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 per Heydon JA [51]. In judicial proceedings the question has been framed as "whether or not on balance justice demands that the action should be dismissed": Stollznow v Calvert [1980] 2 NSWLR 749, per Moffitt P at 751-2, citing Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 per Walsh J at 412.
2. As noted above, the Tribunal is required by the CAT Act and the National Law to be both fair and efficient in the conduct of proceedings.
3. The Tribunal is required by virtue of s 38(5) of the CAT Act to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
4. The Tribunal is very mindful of the difficulties faced by unrepresented litigants in this jurisdiction, and of the significance of professional registration to the livelihood and dignity of the health professionals involved.
5. While the Tribunal can accommodate self-represented litigants through flexible procedures, including lesser formality, allowances for delay, and care in explaining processes; it cannot make a party's case for them.
6. Ms Roberts' application to appeal was permitted to proceed through the Tribunal's case management processes despite being filed out of time. Numerous other accommodations were made. At directions hearings her Honour A/DCJ Boland directed the Board to provide Ms Roberts with a copy of the National Law, and the registry to provide Ms Roberts with copies of two decisions of the Tribunal of relevance to her appeal and her application for a stay. Additional time was provided for Ms Roberts to file material. On each occasion when Ms Roberts failed to appear, Tribunal staff attempted to contact her by telephone.
7. This appeal was brought by Ms Roberts but is wholly unsupported by any evidentiary material or any attempt to prosecute it over a nine month period since filing. Ms Roberts has been given a number of opportunities to file material and assistance with the Tribunal processes, and has been accorded procedural fairness. In particular Ms Roberts was on notice from 30 September 2016 that the Board was seeking to have her application dismissed.

Costs

1. The respondent has conducted proceedings efficiently and is successful in its application for dismissal. The respondent is entitled to its costs in these proceedings.

Orders: 1. Ms Robert's application for an indefinite stay of proceedings is declined; 2. The application to appeal is dismissed pursuant to s 55(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW); 3. Costs in favour of the respondent pursuant to cl 13(1) of Sch 5D of the National Law as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

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: 18 October 2016