Barry v Queensland Nursing Council

DISTRICT COURT OF QUEENSLAND

CITATION:

Barry v. Queensland Nursing Council [2001] QDC 146

PARTIES:

STEPHEN BARRY
v.
QUEENSLAND NURSING COUNCIL

FILE NO/S:

D3724 OF 2000

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

25 June 2001

DELIVERED AT:

Brisbane

HEARING DATE:

19 June 2001

JUDGE:

McGill DCJ

ORDER:

Appeal allowed with costs, decision of the respondent of 31 August 2000 set aside, registration of the appellant as a registered nurse reinstated.

CATCHWORDS:

MEDICINE – Nurses – registration – referral to Health Assessment Advisory Panel – imposition of limited registration – whether justified – whether procedural fairness accorded – nature of appeal - Nursing Act 1992 ss 65, 66, 137.

Aldrich v. Boulton [2000] QCA 501 – considered
Carrier v. Bonham [2000] QDC 226 – cited
FAI Insurances Ltd v Winneke (1982) 151 CLR 342 – cited
South Australia v O’Shea (1987) 163 CLR 378 – cited
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 – cited

COUNSEL:

J. J. Allen for the appellant
M. D. Hinson SC for the respondent

SOLICITORS:

Roberts & Kane for the appellant
O’Shea Corser & Wadley for the respondent

1. This is an appeal pursuant to s.137 of the Nursing Act 1992 (“the Act”) from a decision of the respondent on 31 August 2000 that the appellant be referred for assessment by the Health Assessment Advisory Panel, and that the appellant’s registration be cancelled and that he be issued with limited registration subject to certain conditions. He was also to be advised that the respondent would review the limited registration and whether any investigation should be initiated on receipt of the Health Assessment report. The appellant is entitled to appeal against the decision to cancel the appellant’s registration under s.137(1)(a)(vii) and to appeal against the decision to grant limited registration under s.137(1)(a)(ii), and to appeal against the other aspects of the decision under s.137(1)(b). There was no dispute as to the jurisdiction in this court to deal with the appeal instituted by the appellant.

Nature of the appeal

1. There was initially some dispute between the parties as to the nature of the appeal. Section 137(3)(c) provides:

“The appeal is by way of rehearing on the material before the council ... or if the judge hearing the appeal so orders, on material submitted on the appeal, or on both.”

The section also contains provisions permitting a judge who considers that the appeal involves a question of special knowledge and skill to appoint one or more assessors to assist in the determination, and provides that:

“On the appeal the judge may make such order as the judge considers just.”: s.137(8).

Counsel for the appellant initially submitted that the effect of this provision was that there was to be a rehearing de novo before this court, so that the onus was on the respondent to establish that some decision adverse to the appellant ought to be taken.  He referred to the decision of the Court of Appeal in Aldrich v. Boulton [2000]…