Roberts v Nursing and Midwifery Board of Australia

The applicant's registration history relevant to this application

1. In June 2013 the applicant applied to the Board for renewal of her registration. The history of her applications for registration after June 2013 is set out in [2] - [21] of the decision now sought by the applicant to be set aside (see Roberts v Nursing and Midwifery Board of Australia [2016] NSWCATOD 129). The applicant's final application for registration was refused by the Board on 6 November 2015.

The procedural history of the appeal, the application for an indefinite adjournment, and the set aside application

1. The applicant filed an appeal out of time against the Board's decision to refuse her registration on 12 January 2016. The appeal did not proceed with expedition due to failures by the applicant to comply with directions. Directions hearings were held 18 March 2016, 13 May 2016, 15 July 2016 and 22 July 2016. Given the issues in dispute in this application I propose to set out the orders made at the directions hearings.
2. On 18 March 2016 the applicant appeared in person. On her application the appeal was stood over to 13 May, 2016. I noted the following request: 1. The Registrar is requested to forward to Ms Roberts a copy of the decision of the NSW Nursing and Midwifery Tribunal in McMahon v Nursing and Midwifery Board of Australia [2013] NSWMNT 4 together with a copy of these orders at P.O. Box 189 Newport Beach NSW 2106.
3. On 13 May 2016 I made the following orders and directions: 1. The Tribunal notes that Ms Roberts has written to the Tribunal seeking a "stay" of her appeal by reason of her inability to attend because of proceedings in the Land and Environment Court also listed for today. 2. In order to progress the appeal the Tribunal orders that: 1. On or before 24 June 2016 Ms Roberts is to file and serve any document on which she relies in support of her appeal. 2. AHPRA on behalf of the Nursing and Midwifery Board of Australia is to file and serve any documents on which it seeks to rely by 15 July 2016. 3. The matter is listed on 22 July 2016 to fix hearing dates. 4. The Registrar is requested to provide to Ms Roberts a copy of the orders and directions made today. It is noted at the same time the Registrar is requested to provide to Ms Roberts a copy of the decision in McMahon v Nursing and Midwifery Board provided for her by Ms O'Neill of AHPRA. 5. It is noted that although Ms Roberts has requested a CD of the hearing in McMahon the Tribunal does not have access to such a CD and is unable to comply with her request.
4. On 22 July 2016 the applicant appeared at the directions hearing held that day before Principal Member, Ms A Britton. A copy of Ms Britton's orders and directions were sent to the applicant's address on 1 August 2016. The orders directions and notations made on that day are as follows: 1. By 16.9.2016 Ms Roberts must give to the Nursing and Midwifery Board of Australia (the Board) any additional documents on which she seeks to rely. 2. By 30.9.2016 the Board must serve on the applicant any documents in reply. 3. By 30.9.2016 each party must give to the Tribunal five (5) copies of all documents on which that party relies together with 4 USBs containing those documents 4. The matter is listed for a one day hearing on 10.10.2016 at 10am. 5. The Registrar is requested to forward a copy of these orders to the parties. 6. It is noted that the Board has agreed to provide Ms Roberts with a copy of the Health Practitioner Regulation National Law (NSW). 7. [Note: Ms Roberts was given a significant period to serve her material because she advises she has applied to the NSW Bar Association for legal assistance. She advises her request for assistance to NSW Legal Aid and the Law Society has been refused. She was advised it was unlikely any further extension of time would be granted].
5. On 6 September 2016 the applicant wrote to the Tribunal seeking an indefinite adjournment of her appeal. Although the applicant's application for an indefinite adjournment was listed for directions on 30 September 2016 and the parties notified by letter from the Tribunal of that date, the applicant failed to appear at the directions hearing. The orders, directions and notations made on 30 September 2016 are as follows: 1. IT IS NOTED THAT there was no response by the appellant when the matter was called outside the Tribunal at 11.05am. Further an attempt to reach Ms Roberts by telephone was unsuccessful. 2. It is noted that the appellant in correspondence to the Tribunal has sought an indefinite stay of her appeal and has not filed any documents in accordance with directions made on 22 July 2016 and at earlier directions hearings. The Tribunal received a chronology prepared by AHPRA as an aide memoire. AHPRA neither oppose nor consent to the appellant's application for an indefinite stay of the appeal. 3. The Registrar is requested to forward to the appellant a copy of the orders made today and a copy of the Tribunal's decision in Health Care Complaints Commission v Singh [2016] NSWCATOD 85. 4. The appellant is to file and serve any material on which she seeks to rely by 7 October 2016. 5. The respondent is to file and serve material on which it relies by 7 October 2016. 6. It is noted that the Tribunal may hear an application by AHPRA to dismiss the proceedings under s 55 of the Civil and Administrative Tribunal Act 2013 (NSW) on 10 October 2016.
6. After the applicant filed this application in the Tribunal on 21 October 2016 the Registrar wrote to the parties on 10 November 2016 notifying them of orders made by the Tribunal as follows: 1. The Respondent is to make any submissions concerning the application to set aside by 1 December 2016 such submissions to be lodged with the Tribunal and provided to the applicant. 2. The Respondent is to make any submissions concerning the application to set aside by 22 December 2016, such submissions to be lodged with the Tribunal and provided to the Respondent. 3. Note: the submissions must address whether the Tribunal may dispense with hearing and decide the application on the papers.
7. As there was no compliance by the applicant with Order 1 of the Registrar's orders made on 10 November 2016, the matter was listed before me on 24 February 2017. On that occasion the applicant appeared in person and the Board was represented by the NSW Crown Solicitor. The applicant was ordered to provide her summary of legal argument by 18 April 2017 and the matter was listed for further directions on 21 April 2017. On the latter occasion I heard brief oral submissions from the parties, and it was agreed the application could be dealt with "on the papers". I had the benefit of a written outline of submissions provided by Ms Amy Douglas-Baker of counsel on behalf of the NSW Crown Solicitor. Again, there was non-compliance with the Tribunal's order by the applicant. Thus, I was left to determine this application based on the applicant's application and material she filed with it being her letter addressed to the Tribunal dated 1 July 2016 but refiled on 1 September 2016, a letter of the applicant to the Tribunal dated 5 September 2016 received on 8 September 2016 and a letter dated 10 October 2016 which annexed an earlier letter of the applicant to the Tribunal dated 29 April 2016. I also took into account the documents annexed to the applicant's appeal.

Relevant legislation

1. The applicant's application is made under Part 3 cl 9 of the Civil and Administrative Regulation 2013 (NSW). That clause and the notes thereto are as follows: In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances: (a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, (b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. Note. The following provisions of the Act are examples of provisions that expressly confer powers to set aside or vary decisions of the Tribunal: (a) section 45 (3) (which enables the Tribunal to revoke leave granted to a person to represent a party), (b) section 53 (4) (which confers a power on the Tribunal to set aside proceedings and decisions involving procedural irregularities resulting from a failure to comply with provisions of the Act or the procedural rules in relation to the commencement or conduct of proceedings), (c) section 63 (which confers a power on the President or a presiding member to correct obvious errors in decisions of the Tribunal), (d) section 64 (3) (which enables the Tribunal to vary or revoke a non-disclosure order made under section 64), (e) section 73 (3) (which enables the Tribunal to vacate or revoke an order with respect to contempt of the Tribunal). (2) The Tribunal may make an order under this clause of its own motion or on the application of a party. (3) Unless the Tribunal grants an extension under section 41 of the Act, an application for an order under this clause must be made within 7 days after the decision concerned was made. (4) Except where the parties have consented to the making of the order, the Tribunal may not make an order under this clause unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (5) A party may not make an application for an order under this clause to set aside or vary a decision of the Tribunal if: (a) an internal appeal or appeal to a court against the decision has been lodged or determined, or (b) an application for a judicial review of the decision has been made or determined . (6) A party may not, without the leave of the Tribunal, make an application for an order under this clause to set aside or vary a decision of the Tribunal if the party has previously made an application under this clause to have the decision set aside or varied. (7) If the Tribunal sets aside a decision under this clause, it may also set aside any orders that it made consequent on the decision that has been set aside. Note. An example of such a consequent order may be an order for costs in the proceedings . (8) Proceedings for the purposes of this clause are prescribed for the purposes of section 50 (1) (d) of the Act. Note. A hearing is not required for proceedings that are prescribed for the purposes of section 50 (1) (d) of the Act. (9) This clause does not limit any power of the Tribunal to set aside, revoke or vary its interlocutory decisions or any other decisions that do not operate to determine proceedings
2. Also relevant to this application is cl 11 of Schedule 5D of the National Law. It provides as follows: 11 Expedition of inquiries and appeals [NSW] It is the duty of a Committee or the Tribunal to hear inquiries and appeals under this Law and to determine those inquiries and appeals expeditiously. (2) Without limiting subclause (1)-- (a) an inquiry or appeal related to action taken by the Council under section 150 must be listed for hearing by a Committee or the Tribunal as soon as practicable; and (b) a Committee or the Tribunal may postpone or adjourn proceedings before it as it thinks fit.
3. All proceedings in the Tribunal are informed and guided by the objects of the CAT Act found in s 3 of that Act. The Tribunal acts in accord with the guiding principle as set out in s 36 of the CAT Act. Those two provisions are as follows: 3 Objects of Act The objects of this Act are: (a) to establish an independent Civil and Administrative Tribunal of New South Wales to provide a single point of access for most tribunal services in the State, and (b) to enable the Tribunal: (i) to make decisions as the primary decision-maker in relation to certain matters, and (ii) to review decisions made by certain persons and bodies, and (iii) to determine appeals against decisions made by certain persons and bodies, and (iv) to exercise such other functions as are conferred or imposed on it, and (c) to ensure that the Tribunal is accessible and responsive to the needs of all of its users, and (d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and (e) to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality, and (f) to ensure that the Tribunal is accountable and has processes that are open and transparent, and (g) to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members. 36 Guiding principle to be applied to practice and procedure (1)The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as 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 complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.
4. Also relevant is s 41 of the CAT Act. It provides as follows: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.

The extension of time

1. The applicant acknowledges her application to set aside the Tribunal's decision was not filed in the 7 day period prescribed in the Regulation.
2. Under the heading in the application "Why do you require an extension of time?" the applicant says: Although I wrote on the 10.10.16 letter attached and requested transcripts I was not aware until 10 Oct 16, that the Directions Hearing would reject my request for an indefinite stay and my external appeal filed in January 2016 and also filed 7 copies of all my possible supporting documents - except my written arguments which my neighbour has stolen - vindictively. That I required to complete this form in order to set aside the decision as requested
3. In her letter to the Tribunal dated 10 October 2016 and noted to have been written at 11am, the applicant explains that her bus from Palm Beach to Wynyard was delayed by reason of traffic and did not arrive at Wynyard until 10.20 am. She says she telephoned the Registry and advised she was waiting for a Metro bus "so could not say when I would arrive". She further says the Metro bus did not arrive until 10.50 am. 1. The applicant further states that she was not aware that "today's directions hearing that it was considering the rejection of my application for an indefinite stay and my external appeal filed in January 2016. So I also request transcripts of the previous directions hearing as a matter of urgency".

Relevant principles

1. The matters requiring consideration in respect of the extension of time application are intrinsically linked to the set aside application. The principles in respect of granting an extension of time are well established. Essentially, it is necessary to ensure that the rules do not work an injustice. Although written in the course of determination an application for an extension of time in which to appeal, the relevant principles are captured by McHugh J in Gallo v Dawson (1990) 93 ALR 479 as follows: The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194 5 ; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935: The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.
2. The core principle of the rules working an injustice is referred to in a number of decisions of the Appeal Panel of this Tribunal (see Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, Habib v State of NSW (NSW Police force) [2014] NSWCATAP 70).
3. In this case, to consider whether an extension of time should be granted, it is necessary to consider whether there is a legitimate basis for the set aside application and whether failure to set aside the Tribunal's decision will cause an injustice to the applicant. That consideration goes to the merits of the Tribunal's decision to dismiss the applicant's appeal or to grant an indefinite adjournment of it.

The earlier Tribunal's reasons for dismissing the indefinite adjournment application and the appeal.

1. I have already noted that the Tribunal's decision records the applicant's applications for renewal of her registration commencing in June 2013 (see [2] to [21]). Those paragraphs disclose a history of the applicant failing to comply with requests from the Board for relevant information in the timeframe provided by the Board. Significantly, however the Tribunal recorded at [21]: On 6 November 2015 the Board informed Ms Roberts that the Board determined that she did not meet the Standard and that pursuant to s 82(1)(c)(i)(E) of the National Law the Board must decide to refuse Ms Roberts' application for general registration. In that letter the Board informed Ms Roberts that she may appeal the Decision to the Tribunal within 28 days of notice of the Decision.
2. In considering the application for an indefinite adjournment, the Tribunal noted in its reasons, which were given orally and later provided in writing, the provisions of Cl11 of Schedule 5D of the National Law (which I have set out above). The Tribunal also noted that an indefinite stay is inconsistent with the objects and provisions of the National Law and the CAT citing as authority Health Care Complaints Commission v Singh [2016] NSWCATOD 85.
3. The Tribunal noted that the applicant provided no corroborative evidence that her documents had been stolen, the steps she had taken to ameliorate those difficulties, or provide an indication of how long it would take her to prepare further argument.
4. In considering the application to dismiss the appeal agitated by the Board under s 55 (1) (d) of the CAT Act (on the basis of a want of prosecution by the applicant) the Tribunal referred to the principles to be applied in dismissing for want of prosecution - "whether or not on balance justice demands that the action be dismissed". The Tribunal balanced the difficulties faced by a self-represented party and the requirements of s 38 of the CAT Act at [44]-[46] the Tribunal said: 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. 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. Significant public resources have been expended to enable the matter to proceed to this stage. Balancing the appellant's important interest in the matter and her position as an unrepresented litigant against the efficient management of cases in this jurisdiction, the interests of justice require that the matter now be terminated.
5. The Board's application was noted as having been successful and the Tribunal concluded it was entitled to an order for costs.

Discussion

1. In the written submissions provided by counsel for the NSW Crown Solicitor it is noted that "the central question is whether there is a real likelihood that it would be unjust not to set aside the decision". Reference is made to the decision of the Appeal Panel in Hammond v Ozzy's Cheapest Cars Pty Ltd t/a Ozzy Car Sales [2015] NSWCATAP 65.
2. The submissions concede that the applicant has satisfied the first limb of cl 9 (b) of the Regulations. I agree with that concession. While it is arguable that the applicant knew well her application for an indefinite stay and the Board's application for dismissal of the appeal under s 55 (1) (d) was listed for 10am on 10 October 2016 and should have allowed sufficient time to be at the Tribunal at the allocated time for the hearing, I accept she did come to the Tribunal sometime during the morning of 10 October 2016. Her explanation that she telephoned the registry when her bus was delayed is not implausible. In summary, I accept the applicant did not have the opportunity to provide oral submissions to the Tribunal as to why her application for an indefinite stay should be granted, or to oppose her appeal being dismissed. She was, however, as the directions hearings set out above demonstrate, provided with more than ample opportunity to file written material.
3. The relevant questions to be addressed in this application is whether the applicant has been denied the opportunity to put her real case to the Tribunal and whether or nor her appeal, if an extension of time is granted, has any reasonable prospects of success.
4. The submissions filed on behalf of the Board at the hearing on 10 October 2016 are relied to oppose the applicant's application to set aside Order 1 of the Tribunal's decision of 10 October 2016. The submissions refer to the reasons given by the Tribunal for dismissing the application for an indefinite adjournment particularly at [35]. The submissions then summarise [45]-[46] of the Tribunal's reasons which I have set out above.
5. The submissions on behalf of the Board at [29]-[31] address part of the history of the applicant's dealings with the Board including her 17 attendances at the AHPRA offices and explanations provided to her at those visits and by letter.
6. The submissions in respect of this application note that "Ms Roberts would not have been successful in obtaining an indefinite stay of proceedings …but might have persuaded the Tribunal a further opportunity to put on evidence in support of her appeal".
7. I am not satisfied that it would be unjust to the applicant if I do not set aside Order 1 of the Tribunal's orders which dismissed the application for an indefinite adjournment for the following reasons: 1. the applicant has been given multiple opportunities to prepare her appeal but has not complied with orders made by the Tribunal. She does not explain why she needs an "indefinite" adjournment; 2. the applicant has advanced an argument that she has not been able to prepare her submissions because her neighbours have stolen her documents. She has, however, provided no corroborative evidence of this assertion. I note that the same assertion was made by the applicant on her External Appeal Form and was made to the Board when she failed to respond to requests for relevant information about her registration application in 2014. The applicant has, however, annexed multiple copies of correspondence between herself and AHPRA, copies of her application for registration and her curriculum vitae provided to AHPRA in support of her application for registration. Those documents are at the crux of the appeal. I am satisfied the applicant was well able to provide her material in support of her appeal but simply, for whatever reason, failed to do so. 3. the applicant's application is for an indefinite adjournment. In Health Care Complaints Commission v Singh [2016] NSWCATOD 85 it was submitted that disciplinary proceedings against a medical practitioner could be subject of an indefinite adjournment. That argument was rejected having regard to the object and principles of both the CAT Act and the National Law. Unless there are extraordinary or special circumstances an indefinite adjournment of proceedings is inconsistent with good case management (see Aon Risk Services Australia Limited v Australian National University [2009] HCA 27); and 4. as discussed below, the prospects of the appeal being successful are at the highest remote, but more likely non-existent.

Order to dismiss the appeal.

1. The earlier Tribunal determined that the appeal should be dismissed for want of prosecution. I am satisfied that decision was based on the evidence and took into account the relevant principles and statutory provisions.
2. I am further satisfied that it would not work an injustice on the applicant if her application is dismissed. In reaching this finding I note that the submissions provided on behalf of the NSW Crown solicitor on this application do not canvass the fact the appeal was out of time, the grounds of appeal set out in the External Appeal form, nor do they address all the documents filed by AHPRA in opposition to the appeal.
3. The applicant notes her appeal is against decisions of 3.6.2013, 21/23.6.2013, 19.12.2013, 2.6.2014, 7.8.2014, 26.9.2014, 6.11.2015, 18.8.2014, 2.4.2015 and 18.11.2015. However, the only decision annexed to the External Appeal Form is the Board's decision of 6 August 2015 which decision was advised to the applicant by letter dated 6 November 2015.
4. I note that from the chronology set out in the Tribunal's decision that the applicant applied for registration on 3 June 2013. The applicant disclosed a criminal offence, and she was requested to provide further information by AHPRA for the Board's consideration. The criminal offence was a breach of an Apprehended Violence Order obtained by the applicant's neighbour. Although the applicant advised she had filed an appeal against her conviction, from the documents before me, it appears she failed to provide any evidence of the outcome of the appeal.
5. On 19 September 2013 the applicant was requested by AHPRA to provide details of her recent practise as a nurse, and notified that, in the event she failed to do so, her application would be deemed withdrawn pursuant to s 80 (5) of the National Law.
6. On 24 October 2013 AHPRA received the applicant's curriculum vitae. I will return to discuss that document shortly.
7. After further correspondence between AHPRA and the applicant she was advised her application was deemed to have been withdrawn.
8. On 13 February 2014 AHPRA advised the applicant she needed to renew her application for registration. She was alerted to the need to establish of "Recency of Practise". This is a requirement that a nurse demonstrate compliance with a Standard made under s 47 of the National Law. Section 52 (1) of the National Law sets out the requirements for a health practitioner to be registered. Among the requirements is a requirement that the individual meets "any other requirements for registration stated in an approved registration standard for the health profession". In the case of applicant the relevant standard is the Recency of Practise Standard. The requirements, effect and operation of the standard as in effect in 2013 is explained in McMahon v Nursing and Midwifery Board [2013] NSWNMT 4. A copy of that decision was provided to the applicant and is referred to by her in her letter to the Tribunal dated 29 April 2016 annexed to her present application.
9. The applicant was advised by AHPRA on 8 August 2014 of the requirement she attend for a health assessment under s 80 (1) (e) of the National Law. The Tribunal in its reasons at [12] noted the reasons provided by AHPRA for requiring a health assessment included "the fact that [the applicant] had attended the AHPRA office on approximately 17 occasions from October 2013 to June 2014 and 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 had been withdrawn, despite receiving an explanation each time in addition to the reasons in writing" The letter also pointed out the Recency of Practise Standard requirements.
10. On 20 March 2015 the applicant attended a health assessment, but withdrew her consent to the provision of the health assessment to the Board. The Board advised the respondent her failure to comply with the health request meant her application was deemed to be withdrawn.
11. On 19 June 2015 the applicant again applied for registration. The Board sought details from the applicant about her nursing practice in particular details of her asserted caring of persons in their home during the period October 2005 to July 2008 and from 2009 to 2012. The Board pointed out that home care of family members and friends had not been accepted as "practise of nursing" for the purposes of the Standard. The applicant was advised the Board proposed to refuse her application and sought submissions by 10 September 2015.
12. On 4 September 2015 the applicant sought an extension of time, which was granted, and submissions were received from her by the Board on 16 October 2015.
13. On 6 November 2015 the applicant was advised she did not meet the Recency of Practise Standard and she was refused general registration.

The applicant's grounds of appeal

1. The applicant's grounds of appeal set out on the External Appeal form are as follows My 2013 registration renewal application was illegally withdrawn and closed contrary to the natural law by subordinate AHPRA compliance coordinator without the knowledge or consent of the Manager of N & M Registration/the Director of NSW Nursing Registration and the (NSW) Registration Board and removed from the National Register. False allegation presented to the NSW N & M Registration Board personal to cover for the own negligence and collusion. Also refuse the Applicant access to agend (sic) being presented to the Board including false allegations being presented including the Appplicants withdrawal of Dr Samuels report - on discovering Dr Samuels had not been provided a letter requesting details of the examination required and other false allegations allegedly received from his staff etc

21 April 2017 hearing

1. When the present application was listed before me, I canvassed with the applicant the information set out in her curriculum vitae. She conceded that she had not engaged in the practise of nursing after 2001 when she engaged in part-time casual agency work for Dukes Nursing Agency. She further conceded any home nursing ceased in 2008. These concessions are consistent with the curriculum vitae as provided to AHPRA. I note however, alterations have been made to the applicant's copy of the documents subsequent to her appearance on 21 April 2017 by changing the date 2008 to 2010 and inserting "nursing" between the words "home" and "care". I infer these changes occurred when the applicant had access to her file at the Registry post 21 April 2017.
2. The applicant's curriculum vitae (a copy of which is retained by AHPRA and was relied on by the Board in these proceedings) discloses that from 2004 to 2012 the applicant engaged in home care for an 88 year old "FP" by preparing and freezing meals and general support. FP is noted by the applicant to have died on 29.3.2013.

Conclusions

1. Section 175 of the National Law provides an appeal may be filed against a Board that refuses to register a person. Giving the applicant the most benevolent interpretation of the National Law, it may be considered an appeal lay against the initial decision that her application for registration was deemed withdrawn when the applicant was notified of that fact on 14 February 2014. But that interpretation of the National Law is not without doubt given the wording of s 175. On a plain reading of the section the decision which may be subject of an appeal is the decision to refuse registration. The refusal to grant registration was notified to the applicant on 8 November 2015. It is that decision the applicant annexes to her external appeal form.
2. I find that it would not be unjust to fail to set aside the order dismissing the applicant's appeal for the following reasons: 1. the appeal was filed out of time; 2. the applicant failed on multiple occasions to comply with directions made by the Tribunal to prepare her appeal for hearing; 3. as discussed above in respect of her application for an indefinite adjournment, I find the applicant's allegation of stolen papers is unsupported by any corroborative evidence; 4. the grounds of appeal do not address or challenge the reason why the applicant's appeal was refused, namely because she lacked relevant recent nursing experience and did not comply with the Standard. She has failed to address the real issue in the appeal; 5. the applicant's own curriculum vitae and her concession before me that she had not engaged in the practise of nursing from 2008 means she could not have satisfied the Standard in either 2013 or any time subsequently and certainly not when she applied for registration on 19 June 2015. Consequently, her application for an extension of time to appeal, or if leave is granted to appeal, is unlikely to succeed. Therefore, it is not unjust to refuse to set aside the orders dismissing her appeal; and 6. in any application under the National Law the health and safety of the public is the paramount consideration. Continuation of the appeal would not be in accordance with either s 3 of 3A of the National Law. This is because I am satisfied the applicant's lack of current nursing and or midwifery experience means she could not meet the professional standards now required of nurses and midwives. Those standards are made to ensure members of the public who need nursing and midwifery care receives appropriate professional care.
3. It follows, as I have determined the decision of 10 October 2016 should not be set aside, an extension of time to bring the application to set aside will not be granted. Thus, the orders made on 10 October 2016 remain operative.

Costs

1. The Board seeks an order that the applicant pay its costs of this application. Costs may be awarded pursuant to cl 13 of Schedule 5D of the National Law.
2. I accept that the Board has been successful in resisting the setting aside of the order in respect of the indefinite stay and the costs order made on 10 October 2016. In this application however, the Board neither consented to or opposed the application to set aside the order dismissing the appeal. In these circumstances I find the appropriate order is that each party pay their own costs of the application.
3. ORDERS 1. The application for an extension of time to set aside or vary a Tribunal decision is dismissed. 2. The application to set aside or vary a Tribunal decision is dismissed. 3. No order as to costs.

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: 07 July 2017