Belacho v Tolstoshev

[2003] HCATrans 316

[2003] HCATrans 316

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A141 of 2003

B e t w e e n -

LUZ BELACHO

Applicant

and

HELEN TOLSTOSHEV

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 15 AUGUST 2003, AT 10.45 AM

Copyright in the High Court of Australia

MS L. BELACHO appeared in person.

MR M.D. WALTER:   If the Court pleases, I appear with my learned friend, MS M. GUY, for the respondent.  (instructed by Crown Solicitor’s Office (SA))

KIRBY J:   Yes, Ms Belacho.

MS BELACHO:   My name is Luz Belacho.  I am the applicant of this matter.  I am a registered nurse trained from Royal Adelaide Hospital and further my training at Flinders University.  I commenced my Masters in Nursing at Flinders University, but I have withdrawn pending on the outcome of the ruling of this superior Court.

As a preliminary submission to this honourable Court, it is submitted that the matter had happened under the old Act of the Nurses Act 1984 and, therefore, I am seeking that this honourable Court will award me under that Act.  Having said that, I, the applicant in this matter, seek that this honourable Court grant relief in relation to this matter, namely that the matter has never, ever heard in its entirety in any Tribunal.

The background information of my unfair dismissal from the Royal Adelaide Hospital which has given rise for the matter to have been placed at the Nurses Board of South Australia pursuant to the advice given to me by the Commissioner Fairweather at the Industrial Relations Commission.  He said that because the Board is the only body that has got the power and authority to declare me incompetent, he told me to come back to the Industrial Court before Justice Stanley after the Board will declare me clear, but the Crown Solicitor had discontinued the matter without my approval and without consulting me.

Now, on the reference material pages 195 to 197, this material are the facts and are strong foundations of the matter.  It is submitted that:

My process of becoming a professional nurse has evolved within change and growth at various stages of my career.

Through educational and occupational experiences, I have developed attitudes, belief, knowledge and skills that when integrated with moral and legal standards, characterised competent and committed service to the hospital.

However, my professional status has been prejudiced and attacked by the effect of an appraisal which infers less than service or conduct.

In all fairness and equity, I challenge the right of the Clinical Nurse Consultant, Mrs J. Wood ‑ to appraise my “Nursing” abilities until it can be proved without any doubt that the appraisal was not motivated by:

*         Our cultural indifferences
*         Our differing views of Excelcare potentiality to nursing
           practice
*         Our different view to procedure adherence to ward operation
*         Conflict created clinical practice inabilities.

Appended to this document are various incidents, which I argue, may have elements of conflict, which should have removed C.N.C. Wood as the appraisal agent.

The issue here is that human rights and prejudice of professional values can not be outcomes of a collective opinion.  My ethical understanding of nonmaleficence is waived in this matter by my professional adherence to:

1.The onus of my role as a patient advocate

2.The belief that Nursing is not a haphazard profession, nor can it tolerate any lessened standards in duty of care conceptualism within the overall hospital non-delegable duty responsibility

3.The belief that inference can never be substituted for fact.

I seek from your administration the following:

1.An audit of my nursing practice on a first hand in the ward situation.

2.The investigation of matters raised in appended format of this document.

I have truly been displaced by this situation and have:

1.suffered great emotional ordeal

2.lessened in the eyes of my peers

3.been devalued firstly as a person and secondly as a faithful servant.

The sad aspect of this situation is that the origin of my troubles has never been produced to substantiate her accusations and every request for the hospital, the Australian Nursing Federation Union and the Nurses Board to do so has been met with useless meetings, with no clear terms of reference to deal with the matter within any sense of equity, fairness and reasonableness.  In the document volume 1, pages 1 to 4, are the documents of the origin of my problems.  She dated that on 22 September 1993, but the origin of my problems officially started mid year of 1991.

Your Honours, I firmly believe that my unfair dismissal was motivated on the following grounds.  Firstly, that my dismissal was consequential and ordered in the presence of others, including my nominated advocate, muted by the Director of Nursing, after I questioned the applied doctrine of equity employed by the Director of Nursing – reference material, pages 49 to 53 will detail the incident, that at that time with some of our meetings she threatened me that if I did not resign that I will be rendered unemployable as a nurse in Australia.

Secondly, that my dismissal on the original allegations of clinical incompetencies and plagiarism are to this date unresolved and unproved, yet still remain highly prejudicial due to the following:  firstly, to their effect on going legal…..to clear my name; secondly, to their effect on me earning an income as a nurse; and finally, to their effect on my ongoing studies in nursing in which I hope to complete my Masters Degree in Nursing.

Third ground, that the dismissal has had the real effect of my economic loss, specifically my pro rata was some months short of seven years service prior to my dismissal; that I have been unable to find meaningful employment whilst being unable to claim unemployment benefit, which has created an erosion of my savings.

Finally, that the dismissal has had a real effect on my health and relationships and my physician had indicated his concern about my emotional deterioration, not my mental deterioration, as what they had suggested at the time.  You can find the material pages 205 to 206, 230 to 241, volume 2, that I was referred to two psychiatrists at that time, but I refused because it was not under the Act of 1994.  One of the doctors, Dr Goldney, appeared the second time when in 2001 they asked me to be examined by a psychiatrist because that was then on the new Act of 1999 which I must oblige.

Your Honours, on the strength of the abovementioned argument, I seek the following remedies.  No 1, my total reinstatement at Royal Adelaide Hospital until such time that my employer’s agents can prove their allegations.  No 2 compensation for all economic losses. 

I would argue that my dismissal is both unreasonable and harsh when one considers:  No 1 by my employer’s agents request I was removed from a low dependency nursing area and placed to the high dependency area of intensive care unit for evaluation; No 2 that the original documents in my possession will prove within the balance of probabilities, and beyond doubt, that the allegations are unfounded.

Your Honours, if it would please this honourable Court, I have in my possession the following documents which will give you an insight into my professional character, they being, No 1 references gained from other and varied health care workers; No 2 my hospital appraisals both as a student and as a registered nurse; and finally, correspondence which supports my aforementioned points.

Your Honours, I have been a faithful and loyal servant to the Royal Adelaide Hospital and my acts have always considered what the courts define as my duty of care within the prescribed standard of care.  My acts as a nurse have always reflected that standard which the community expects and the courts demand.  Your Honours, let me cite one example of proficiency as a nurse ‑ ‑ ‑

KIRBY J:   You say these things, but they are contrary to what was found by the professional body established under the law of South Australia.  They found that you acted inappropriately in going to the hospital, contrary to instructions, in stepping over the bounds of professionalism in dealing with the family of patients and distressing the patients.  So that they have found that.  They went through all the evidence and we are not a trial court, we cannot decide these matters.

MS BELACHO:   I deny that because ‑ ‑ ‑

KIRBY J:   I know, but you have had your ‑ ‑ ‑

MS BELACHO:   ‑ ‑ ‑ if you refer on my original diary, the daily entries, I did not step the mark; and with the Flinders University, on the curriculum there is also a mandatory requirement there that we will apply what we have been trained.  I started my training to become a mental nurse specialist in 10 January and the problems was risen in 2 and 3 March.  That is my clinical placement.  That is the application of the theoretical component that we had collected and gathered with…..to intensive care program for two months.  Before that, your Honours, I was trained at Royal Adelaide Hospital.  I had the basic skills, knowledge and experiences to deal with people with mental illness, so what else you can do?

KIRBY J:   I know you say this, but these matters are matters of factual contention and they have been fought out in the Board, they were fought out before Justice Perry and they were fought out in the Full Court.  To get into this Court, you have to show that some error of principle or some serious injustice, or something of that kind, has been established.

MS BELACHO:   Okay, I will now relate the principles and the law under section of the Act.  Under the new Nurses Act 1999, the Board was in breach of employing section 19, stating that they are not bound by the rules of evidence because they have the authority and the power which they abused to use their own thriving culture of transparency to the matter to make me feel – their intention was my professional isolation and that is pretty clear.

KIRBY J:   They say – and they proved before the Board and Justice Perry went through it all for himself, though he probably did not have to, and he said that you overstepped the mark and you did so contrary to counselling and instruction, that that was not an appropriate thing for a nursing sister to do.

MS BELACHO:   No. What happened was these nurses, the senior nurses and lecturers, they were putting comments about my mental illness and they believed that my behaviour that I translated to them that they interpreted that I am overstepping the mark is translated to my mental incapacity. That is why I was examined by Dr Baigent according to the Act section 53.

Now, section 53, if the really true believer of that Act, section 53, the doctor will empower – Mr Walter, he said that, that that particular section will empower the Nurses Board decision. When, if you see on page 9 of the report of Dr Baigent, he said that I do not need to be monitored or supervised and I am okay, I am not suffering from any form of mental illness, and that he did not recommend that I will be supervised.

Yet, the Nurses Board go against what the doctor said on page 9 and if section 53 of the new Nurses Act – and that is the new section of the Act – previals, then the Board should have given me an automatic full registration without restriction, but they did not.  Justice Perry and the Full Court supported that and I am not happy about it.

KIRBY J:   I realise you are not happy about it, but many people are not happy about their decisions and they cannot just come into the Court because they are not happy.  We are not a happiness board.  We are a body that has to review all the cases of the nation and only deal with the very special cases.

MS BELACHO:   Okay, your Honour.  Please review it in a special way.  Make sure that you will review it in entirety, the ‑ ‑ ‑

KIRBY J:   Yes, we have read all the submissions and we have read the decision of Justice Perry in the Full Court ‑ ‑ ‑

MS BELACHO:   Because they never heard the origin of my problems, they refused to.

KIRBY J:   Yes.  Well, I hope that you can find a position because you have had some good marks in your academic training, but it is just the conclusion of your professional peers that you overstepped the mark and that you would not take advice and counselling and you acted inappropriately with patients.

MS BELACHO:   No, I did not.  I did not because I am –  no, I did not.  You can see that on my diary.

KIRBY J:   That is what you say, but that has all been litigated and fought out in the trial level.  We are only here to supervise matters of substantial principle.

MS BELACHO:   But they all lied to the – they were all in conspiracy.

KIRBY J:   Yes, I think we understand your arguments, Ms Belacho.  We have read all the documents.  Is there anything else you want to say?

MS BELACHO:   Well, yes please, your Honours.  Please let me appeal to the High Court.

KIRBY J:   Yes, we understand this is very important to you and we have read your case very carefully.  Is there anything else that you need to say that is not in the written documents?

MS BELACHO:   What else do I need to say?  I have lost my train of thoughts.  Well, I would like you to please make a ruling on this matter.

KIRBY J:   Yes, very well.  We understand your case.

MS BELACHO:   And please clarify the points of view.

KIRBY J:   I think you have concluded your argument now, have you not?

MS BELACHO:   I am sorry, your Honour?

KIRBY J:   You have completed your argument now?  I think you have run out of your argument.

MS BELACHO:   But we still have time.

KIRBY J:   You have put it all in writing and we have read it carefully.

MS BELACHO:   Well, I still have time, though.

KIRBY J:   Yes, but you do not have to fill in all the time.

MS BELACHO:   Okay.  Thank you.

KIRBY J:   Thank you very much, Ms Belacho.  The Court does not need your assistance, Mr Walter.

The applicant’s proceeding challenges a decision of the Full Court of the Supreme Court of South Australia.  That court, in turn, had confirmed a judgment of the primary judge in the Supreme Court, Justice Perry.  In a careful review of the evidence, Justice Perry had reviewed a decision of the Nurses Board of South Australia, holding that the applicant was guilty of professional misconduct.  His Honour found no error in that decision.

We have considered the applicant’s arguments.  However, we are not convinced that any error has been shown to warrant the intervention of this Court.  The applicant’s application was filed outside the 28 days after the judgment of the Full Court allowed by the Rules of the High Court.  No reason has been shown to explain this delay.

Accordingly, the appropriate order which we make is that the application be dismissed as incompetent.

AT 11.04 AM THE MATTER WAS CONCLUDED