Bahonko v Nurses Board of Victoria

[2005] HCATrans 864

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M72 of 2005

B e t w e e n -
STANISLAWA BAHONKO
Applicant
and
NURSES BOARD OF VICTORIA
Respondent
Application for special leave to appeal
Publication of reasons and pronouncement of orders

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 20 OCTOBER 2005, AT 11.01 AM

McHUGH J: This case is related to matter number M65/2005. The applicant was a registered nurse. Her employment at two nursing facilities was terminated due to misconduct and abandonment of work, respectively. She brought proceedings against both of her former employers in the Federal Court but was unsuccessful in those proceedings. These proceedings relate to the investigation by the Nurses Board of Victoria into the circumstances of the termination of her employment.

On 6 September 2004, the Supreme Court of Victoria dismissed Mrs Bahonko’s originating motion which sought a declaration, an injunction and damages. No cause of action was identified. The Court held that the relief sought was misconceived because the Nurses Board investigation was still on foot and the formal hearing had not yet been conducted. On 19 November 2004, the Court of Appeal of the Supreme Court of Victoria refused an application for leave to appeal against the orders of 6 September on the basis that the applicant had been unable to demonstrate any error in the reasons of the Supreme Court.

The applicant’s submissions in these proceedings do not disclose any arguable cause of action. Many of the matters that she raises are factual and do not provide any basis for a grant of special leave to appeal. The balance of her allegations are not supported by any evidence and would not have sufficient prospects of success to warrant a grant of special leave to appeal. The applicant also raises a question of the consistency of the Nurses Act 1993 (Vic) with the Constitution and unspecified international conventions. These arguments have no prospects of success. Accordingly, the application for special leave to appeal must be refused.

Under the power conferred by Rule 41.10.5 we direct the Registrar to draw up, sign and seal an order that the application is dismissed. I publish our joint reasons.

AT 11.01 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The case of *Bahonko v Nurses Board of Victoria* concerned an appeal to the High Court of Australia by Ms. Bahonko against a decision of the Nurses Board of Victoria. The dispute arose from the Board's refusal to grant Ms. Bahonko registration as a nurse, a decision she challenged on several grounds.

The High Court was required to determine whether the Nurses Board of Victoria had acted lawfully in refusing Ms. Bahonko's application for registration. Specifically, the court considered whether the Board had properly exercised its discretion under the relevant legislation and whether its decision was affected by an error of law, including a failure to afford Ms. Bahonko procedural fairness.

In their joint judgment, McHugh and Heydon JJ analysed the provisions of the *Nurses Act 1983* (Vic) and the principles of administrative law. They found that the Board's decision-making process had been flawed. The court held that the Board had failed to provide Ms. Bahonko with adequate notice of the specific concerns that led to the refusal of her registration and had not given her a sufficient opportunity to respond to those concerns. This failure amounted to a breach of the rules of natural justice, specifically the right to be heard. The court also considered the Board's interpretation of the statutory criteria for registration and found it to be unduly restrictive.

The High Court allowed the appeal, quashed the decision of the Nurses Board of Victoria, and remitted the matter back to the Board for reconsideration according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established