Chan v The Nurses Board of Western Australia

[2007] WASCA 123

CHAN -v- THE NURSES BOARD OF WESTERN AUSTRALIA [2007] WASCA 123

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 123
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:94/2005	Heard:	20 FEBRUARY 2007
Coram:	WHEELER JA BUSS JA MILLER AJA	Delivered:	12/06/07
No of pages:	23	Judgment Part:	1 of 1
Result:	Application for an extension of time to apply for leave to appeal dismissed
Category:	B
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Parties:	FRANCES MARY CHAN THE NURSES BOARD OF WESTERN AUSTRALIA
Catchwords:	Nurses Act 1992 (WA) Application for an extension of time to apply for leave to appeal against a decision of the State Administrative Tribunal Tribunal affirmed the decision of the Nurses Board of Western Australia to refuse the appellant's application to renew her registration as a nurse Appellant previously convicted of stealing and fraud Construction of s 22(2)(a) of the Nurses Act Whether the Tribunal failed to consider what in the nature of the offences of which the appellant was convicted rendered her unfit to practise as a nurse Whether the Tribunal erred in equating the requirement in s 22(2)(a) of the Nurses Act to the requirement in other Acts that a person be "fit and proper" Whether the Tribunal erred in failing to take into account factors favourable to the appellant
Legislation:	Nurses Act 1992 (WA), s 3, s 22(2)(a) State Administrative Tribunal Act 2004 (WA), s 105, Sch 1
Case References:	Clyne v New South Wales Bar Association (1961) 104 CLR 186 Domburg v Nurses Board of Victoria [2000] VSC 369 Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 Gallo v Dawson (1990) 64 ALJR 458 Grljusich v Andrews [2003] WASCA 206 Jackamarra v Krakouer (1998) 195 CLR 516 Law Society of Tasmania v Turner (2001) 11 Tas R 1 Maxwell v Dixon [1965] WAR 167 New South Wales Bar Association v Evatt (1968) 117 CLR 177 Re a Barrister and Solicitor (1979) 40 FLR 1 Re a Barrister and Solicitor; Ex parte Attorney-General for the Commonwealth (1972) 20 FLR 234 Re a Practitioner; Ex parte The Legal Practitioners Disciplinary Tribunal [2001] WASCA 204 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 The Registrar, Real Estate and Business Agents Supervisory Board v Barnett, unreported; FCt SCt of WA; Library No 970426; 26 August 1997 Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CHAN -v- THE NURSES BOARD OF WESTERN AUSTRALIA [2007] WASCA 123 CORAM : WHEELER JA

BUSS JA
MILLER AJA

HEARD : 20 FEBRUARY 2007 DELIVERED : 12 JUNE 2007 FILE NO/S : CACV 94 of 2005 BETWEEN : FRANCES MARY CHAN

Appellant

AND

THE NURSES BOARD OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Coram : JUSTICE M L BARKER (PRESIDENT)

MS M CONNOR (MEMBER)
DR B JONES (SESSIONAL MEMBER)

Citation : CHAN and THE NURSES BOARD OF WESTERN AUSTRALIA [2005] WASAT 115

File No : VR 127 of 2005

(Page 2)

Catchwords:

Nurses Act 1992 (WA) - Application for an extension of time to apply for leave to appeal against a decision of the State Administrative Tribunal - Tribunal affirmed the decision of the Nurses Board of Western Australia to refuse the appellant's application to renew her registration as a nurse - Appellant previously convicted of stealing and fraud - Construction of s 22(2)(a) of the Nurses Act - Whether the Tribunal failed to consider what in the nature of the offences of which the appellant was convicted rendered her unfit to practise as a nurse - Whether the Tribunal erred in equating the requirement in s 22(2)(a) of the Nurses Act to the requirement in other Acts that a person be "fit and proper" - Whether the Tribunal erred in failing to take into account factors favourable to the appellant

Legislation:

Nurses Act 1992 (WA), s 3, s 22(2)(a)

State Administrative Tribunal Act 2004 (WA), s 105, Sch 1

Result:

Application for an extension of time to apply for leave to appeal dismissed

Category: B

Representation:

Counsel:

Appellant : In person
Respondent : Mr J D Allanson

Solicitors:

Appellant : In person
Respondent : Bowen Buchbinder Vilensky

(Page 3)

Case(s) referred to in judgment(s):

Clyne v New South Wales Bar Association (1961) 104 CLR 186
Domburg v Nurses Board of Victoria [2000] VSC 369
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Gallo v Dawson (1990) 64 ALJR 458
Grljusich v Andrews [2003] WASCA 206
Jackamarra v Krakouer (1998) 195 CLR 516
Law Society of Tasmania v Turner (2001) 11 Tas R 1
Maxwell v Dixon [1965] WAR 167
New South Wales Bar Association v Evatt (1968) 117 CLR 177
Re a Barrister and Solicitor (1979) 40 FLR 1
Re a Barrister and Solicitor; Ex parte Attorney-General for the Commonwealth (1972) 20 FLR 234
Re a Practitioner; Ex parte The Legal Practitioners Disciplinary Tribunal [2001] WASCA 204
Sobey v Commercial and Private Agents Board (1979) 22 SASR 70
The Registrar, Real Estate and Business Agents Supervisory Board v Barnett, unreported; FCt SCt of WA; Library No 970426; 26 August 1997
Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279


(Page 4)

1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Buss JA. I agree with those reasons and have nothing to add.

2 BUSS JA: By application dated 2 August 2004, the appellant applied to the respondent ("the Board"), in effect, to renew her registration as a nurse under the Nurses Act 1992 (WA) ("the Nurses Act"). The appellant had previously been registered as a nurse, but in 1987 her registration lapsed. She was first registered in November 1970.

3 On 20 October 2004, the Board informed the appellant in writing, in effect, that the Board had resolved to refuse the application. The Board's reasons were set out in a letter dated 18 November 2004 to the appellant.

4 The appellant sought a review of the Board's decision in the State Administrative Tribunal ("the Tribunal"). The Tribunal affirmed the Board's decision, and dismissed the appellant's application.

5 The appellant applies to this Court for an extension of time in which to make application for leave to appeal against the Tribunal's decision.

Application for leave to appeal: s 105 of the State Administrative Tribunal Act 2004 (WA)

6 Section 105(1) of the State Administrative Tribunal Act 2004 (WA) ("the SAT Act") provides that a party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal.

7 By s 105(2) of the SAT Act, the appeal can only be brought on a question of law. Section 105(13) provides, however, that:

"Despite subsection (2), if the Tribunal's decision -

(a) is made under a relevant Act or in a proceeding for the review of a decision made under a relevant Act; and

(b) has the effect of depriving a person of the person's capacity to lawfully pursue a vocation,

an appeal under this section may be brought on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact."

(Page 5)

The Nurses Act is a relevant Act for the purposes of s 105(13). See s 105(14) and the statutes enumerated in Sch 1 to the SAT Act.

8 The power to grant leave to appeal is conferred in general terms. It is not restricted or qualified. Leave should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave.

Application for an extension of time

9 Section 105(5) of the SAT Act provides that an application for leave to appeal must be made within 28 days after the Tribunal's decision is given. In the present case, the application should have been made by 19 July 2005. The appellant's notice of appeal was not filed until 1 August 2005. Section 105(7) provides that the court to which the appeal lies may extend a time limit fixed by s 105, and the extension may be given even though the time limit has passed.

10 On 1 August 2005, the appellant filed an affidavit in which she deposed, in effect, that she was self-represented, had been unaware of the time limitation, and had been unwell. On 2 August 2005, Pullin JA ordered the appellant to file an affidavit setting out her proposed grounds of appeal and explaining, with greater particularity, why the appeal notice was not filed within time. The appellant filed a further affidavit on 15 August 2005, in which she set out her proposed grounds of appeal, and stated that she had been ill between 23 June 2005 and 21 July 2005 (and annexed a medical certificate for those dates). The appellant also deposed that she had attempted, on 22 July 2005, to file her appeal notice at the Tribunal, she had not understood that it had to be filed at the Supreme Court of Western Australia, she had requested assistance to obtain the correct forms, and eventually, on 29 July 2005, she had lodged her appeal notice at the Supreme Court. It was formally filed on 1 August 2005.

11 On 25 August 2005, Pullin JA ordered that the application for an extension of time, the application for leave to appeal and the appeal be heard together by this Court.

Application for an extension of time: principles

12 In Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, Kennedy J said, at 198:

"In Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946; [1985] 2 All ER 517 at 520, the Court of Appeal accepted that, in relation to an application for an extension of time for appealing, there are four major factors to be considered

(Page 6)

in the exercise of the discretion which is conferred upon the court. They are, first, the length of the delay, secondly, the reasons for the delay, thirdly, whether there is an arguable case and, fourthly, the extent of any prejudice to the respondent. There may in a particular case be additional factors, but I accept that the foregoing are the major factors in the present case."

13 Where the failure to appeal within time is attributable to the act or default of the applicant's solicitor (and not the applicant), that is a material consideration in the exercise of the Court's discretion. See Esther Investments per Kennedy J at 199 and per Rowland J at 204.

14 In Gallo v Dawson (1990) 64 ALJR 458, McHugh J examined the applicable principles in relation to an application to extend time to appeal to the High Court. The relevant provision in the rules of the High Court empowered the Court to extend time upon such terms "as the justice of the case may require". His Honour said, at 459:

"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 194-195. 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 263-264); 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

(Page 7)

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.'"

Also see Jackamarra v Krakouer (1998) 195 CLR 516.

The appellant's convictions

15 On 1 December 2000, the appellant was found guilty, after a trial before a Judge and jury, on four counts of stealing and two counts of fraud, and sentenced, on 9 February 2001, to a total of 9 years' imprisonment with eligibility for parole (backdated to 1 December 2000). The offences occurred in 1991 - 1992, while the appellant was working as a real estate agent. In June 2004, the appellant was released into the community on a re-entry release order. She remains on parole in relation to this sentence.

Reasons of the Board

16 The Board's letter dated 18 November 2004, setting out the reasons for its decision to refuse the appellant's application to renew her registration, said, relevantly:

"The Board notes that in February 2001 you were convicted in the District Court of Western Australia of 4 charges of stealing and 2 charges of fraud for which you were sentenced to a total term of imprisonment of 9 years. The Board notes further that in approximately June 2004 you were released on Parole into the community.

Pursuant to Section 22 of the Nurses Act 1992 (requirements for Registration with the Board) the Board is required to be satisfied that you comply with the requirements of Section 22 (2) of the Nurses Act 1992. One such requirement is that you have not been convicted of an offence the nature of which renders you unfit to practice [sic] as a nurse.

(Page 8)

The Board notes the following matters:

1. You have been convicted of 4 charges of stealing and 2 charges of fraud which are serious offences of dishonesty and which warranted the imposition of a total term of imprisonment of 9 years;

2. You have been released on Parole but you still have 6 years of your sentence to serve;

3. The documentation provided by you to the Board reveals that you do not acknowledge that you have committed the offences for which you have been convicted and there is no evidence of remorse for the same; and

4. It is highly unlikely that you will obtain a police clearance which is a pre-requisite to gaining employment in the Public Health Sector.

The Board concluded that due to the nature and seriousness of the offences of which you stand convicted in the District Court of Western Australia and the obligation of the Board to protect the safety of the community of Western Australia, it is not appropriate that your Application for Registration be approved."

Section 22 of the Nurses Act

17 Section 22 of the Nurses Act provides, relevantly:

"(1) A natural person who applies to the Board and satisfies it that he or she complies with the requirements of subsection (2) shall, subject to this Act and on payment of the fee prescribed under section 31, be registered under this section as a nurse; and the Board shall cause the name of that person to be entered in the register.

(2) The requirements referred to in subsection (1) are that the person -


(a) has not been convicted of an offence the nature of which renders the person unfit to practise as a nurse;

(b) has a sound knowledge of the English language both written and oral;

(Page 9)

(c) has -

(i) practised as a nurse; or

(ii) completed a refresher course in nursing, approved by the Board,

within the 5 years preceding his or her application under this section; and


(d) holds an approved educational qualification.

…"

18 In my opinion, the reference in s 22(2)(a) to "the nature of" the offence in question requires the Board to evaluate whether, after having regard to all matters relevant to the applicant's personal qualities including his or her character and integrity, the elements of the offence and the circumstances of its commission make the person unfit to practise. The requisite evaluation must be carried out in the context of the nature of the work which a nurse is or may be required to perform, and the personal qualities that are necessary for the proper discharge of those functions.

19 Section 22(2)(a) does not expressly state a temporal aspect in relation to the process of evaluation which I have mentioned. It is implicit, however, that the Board must determine whether, as at the time it is deciding an application for registration, and after having regard to all matters relevant to the applicant's personal qualities, the elements of the offence and the circumstances of its commission make the applicant unfit to practise.

20 Accordingly, there may be scope, in a particular case, for an applicant, who was convicted of an offence many years ago, to satisfy the Board that he or she has been rehabilitated and that, as at the time the Board is deciding the application for registration, the nature of the offence does not render the applicant unfit to practise.

Grounds of appeal

21 The grounds of appeal are:

"(1) The … Tribunal erred in law in failing to consider what in the nature of the offences of which the appellant was convicted rendered her unfit to practise as a nurse pursuant to section 22(2)(a) of the Nurses Act ...

(Page 10)

(2) The … Tribunal erred in law in equating the provision in section 22 of the Nurses Act … with provision in other Acts requiring the person to be 'fit and proper' persons [sic].

(3) The … Tribunal erred in law in failing to take into account all of the conduct of the appellant prior to and after the conviction of the appellant and giving due weight to the appellant to rehabilitate herself [sic]."

22 Some of the appellant's submissions raise matters which are not within the grounds of appeal, but I will nevertheless deal with them.

Ground 1: Did the Tribunal fail to consider what in the nature of the offences of which the appellant was convicted rendered her unfit to practise as a nurse?

23 The Tribunal referred, in its reasons, to the evidence of two witnesses who were called by the Board to "emphasise and explain the reasons why trustworthiness, honesty and integrity are critical to the character of a nurse".

24 First, there was the evidence of Professor Robin Watts, Professor of Nursing at Curtin University of Technology. The Tribunal said, relevantly, at [20] - [24]:

"Professor Watts emphasised that:

'Trustworthiness is fundamental to nursing practise both with respect to the clinical care of patients and also the profession's reputation and integrity.

In my professional opinion, given the vulnerability of people when they are in need of nursing care, in general [a] necessary component of the relationship between patient and nurse is trust and honesty. This is the basis of public confidence in nurses.'


Professor Watts' opinion concerning the importance of trustworthiness and honesty was buttressed by her reference to international, national and state standards considered by the nursing profession to govern the conduct of all nurses. She referred to the ICN (International Council of Nurses) Code of Ethics for Nurses first published in 1953 and most recently in 2000. The ICN Code provides amongst other things that:

(Page 11)

'The nurse at all times maintains standards of personal conduct which reflect well on the profession and enhance public confidence.'

…

Professor Watts emphasised two elements of this code that she considered relevant to the issue before the Tribunal, namely:


'A nurse must not bring discredit upon the reputation of the nursing profession.

- The actions of a nurse in their personal life may have an adverse impact on their reputation, and on the profession, and may have adverse therapeutic outcomes.

- The conduct of a nurse must at all times maintain and build public trust and confidence in the profession.

A nurse must promote and preserve the trust that is inherent in the privileged relationship between a nurse and an individual and respect both the person and property of that individual.

- Within a professional relationship between an individual and a nurse, there exists a power imbalance which makes the individual vulnerable and open to exploitation.

- The individual trust that a nurse will cause no physical or psychological harm and will care for the possession[s] and property of that individual.'


The Nurses Board of Western Australia also maintains a Nurses Code of Practise [sic], last published in 2003, which includes a section headed 'Conduct Generally', to this effect:

'A nurse should conduct herself or himself -

(a) in a way which will maintain public trust and confidence in the nursing profession

(b) so as to show respect and care for people and property

(Page 12)

(c) so as not to discredit the reputation of the nursing profession, and

(d) in a way that is in the best interest of the client's health and welfare.'"

25 Secondly, there was Ms Roslyn Elmes, Co-Director of Nursing at Sir Charles Gairdner Hospital. The Tribunal said, relevantly, at [28] - [35]:

"Ms Elmes said that the duties undertaken by the registered nurse include the assessment of patients' physical and mental health state, clinical care for the patient including drug administration, emotional support for patients and significant other related persons, liaising with other health care providers in respect of particular patients and providing support and care for patients who are in a vulnerable position due to their physical and/or mental health status.

Ms Elmes expressed the opinion that, in her experience in the clinical nursing area, trust, integrity and honesty formed the basis of a working health care team and that the nurse is a key co-ordinator of patient care.

Ms Elmes emphasised that the nurse is not only in a position of authority when they co-ordinate and deliver nursing care to and for a patient, but is also in a position of influence as the patient's advocate. She said that this patient advocacy role is 'not limited to the nursing professional', although it is more likely to be undertaken by the nurse because of the 'nature of the relationship between nurses and patients'. Ms Elmes further explained this observation by saying that, in her experience, when a health care team is caring for a patient, the nurse will spend the most time with the patient. She said for example, that in major tertiary hospitals, medical physiotherapy and other health care team staff come and go from the ward areas; nurses, however, are 'always present and central to patient care' and so are more likely to advocate for the patient.

Ms Elmes further observed that in her experience the patient is often in a vulnerable position and must rely on the nurse to support, coach or advise them regarding issues relevant to their health.

(Page 13)

Ms Elmes also emphasised that nurses are responsible for administering medications to patients. This includes holding the keys for, and assessing Schedule 8 drugs (as they are referred to under the relevant legislation), being drugs of addiction. Ms Elmes said that, as a nurse, 'having trust that your colleague is administering the required medication to the right patient and is holding with integrity the keys that access the medications' is an essential element of the relationship between nursing colleagues.

Ms Elmes also explained that patients will talk to nurses regarding their finances, their home life and details about family members. She said that when a patient is confronted with information that they have been diagnosed with a terminal disease, they will initially require emotional support and often seek direction regarding wanting to put 'their life in order'. This includes issues of finances and wills. She said that having the confidence that the nurse you are sharing this information with is professional, and will direct you to the appropriate resources to work through these issues, is essential to ensure that you can disclose your concerns and affairs and seek the appropriate guidance to deal with such issues.

Ms Elmes further observed that nurses are privy to many details regarding a patient's lifestyle and health. This may be information regarding finances and/or it may be related to an awareness of jewellery, documents or other valuables that patients either bring with them in the hospital or talk to the nurse about owning. She expressed the opinion that it is imperative that nurses understand and act in an ethical manner when dealing with patients and their families when sensitive and private information regarding the patient is disclosed.

Ms Elmes finally emphasised that the nurse's assessment of a patient's physical condition is also important to the decision made by a health care team, in particular the medical staff, to determine a plan of care for each patient. In Ms Elmes' opinion a nurse's dishonesty 'cannot only undermine the care given to a patient and effect [sic] the outcome in respect of that patient but also it erodes public trust and confidence in the nursing profession as a whole'."

(Page 14)

26 The Tribunal also received into evidence the sentencing remarks of the District Court Judge who sentenced the appellant. The Tribunal said, at [36] - [39]:

"… [the sentencing Judge] recited the factual circumstances in which Ms Chan, who was at material times a real estate agent, dealt with a number of persons, including elderly persons with whom she had been friendly for some years, before noting that the jury had not accepted Ms Chan's account of events consistent with her innocence. His Honour finally observed:

'In fact, on your evidence Mrs Chan, one would be left to believe that where there was such conflict of evidence, all the other witnesses were lying, none of them were telling the truth, that in fact you were the only one who was telling the truth. Clearly the jury have rejected that, as they were entitled to do. The amount of money involved is, of necessity, an important factor in the question of determining the degree of criminality, for that provides an indication as to the extent to which you were prepared to be dishonest and to flout the law and advance whatever were your own purposes.'

The sentencing judge had received a pre-sentence report and referred to it in his sentencing remarks to this effect:

'I have received and make reference to the pre-sentence report which has been provided to the court and that indicates to me that there does not seem to be an acceptance on your part of the wrongdoing which has taken place insofar as these offences are concerned. It's indicated to the community corrections officer you felt 'regret for causing the hurt among all the parties involved'. It is said also that these offences had manifested a lot of shame as the result of the predicament which you presently find yourself in.'

In sentencing Ms Chan, His Honour went on to say that he had considered the character evidence and testimonials he had received emphasising that Ms Chan was 'a hardworking person, reliable and trustworthy'. He noted that Ms Chan had been an active member of the Reconciliation WA movement and had

(Page 15)

also been a representative of the Coalition of People's Organisations.

However, the sentencing judge also referred to a letter that Ms Chan had herself written, in which she had written:


'One of the things that saddens me immensely is the fact that the people who are now so against me are the very people I trusted and cared for. It was these very people that came to me for help as they believed I could help them build an empire.'

Of those words, his Honour said:

'Those words are almost as though you consider still that it is those people who have caused you to be in the position which you find yourself today. Seemingly, you don't understand or let alone accept that it is you, by your dishonest conduct, who has wronged them. It was they who reposed their trust in you and sadly that trust has been breached. That statement is not indicative to me of any remorse or contrition on your part.'"

27 The Tribunal made findings and reached conclusions, at [87] - [90], as follows:

"Although the Tribunal earlier in these reasons has raised the issue whether the length of time since conviction may be considered material to the question whether the s 22(2)(a) requirement is satisfied in a given case, in this case the convictions of Ms Chan in the District Court of Western Australia are relatively recent and she remains on parole in the community in relation to them. In those circumstances, it cannot be said that Ms Chan's sentence upon her convictions for various offences of stealing and fraud is, in any practical sense, spent. If Ms Chan were to be registered as a nurse under the Act, she would be entitled (subject to successfully undertaking any relevant refresher courses) to practise the profession of nursing during her release from prison on parole.

This latter consideration aside, the offences of which Ms Chan was convicted in 2000/2001 are extremely serious. They were considered by the sentencing judge in the District Court to be of such seriousness as to attract a sentence of 9 years, albeit with

(Page 16)

an entitlement of parole. Each conviction fundamentally undermines the applicant's entitlement to claim that she is possessed of a trustworthy and honest character or that she is a person of integrity. While there may be a time after which a person who has been convicted of such offences may be entitled to claim that their integrity has been restored and they may now be considered trustworthy and honest, the Tribunal does not believe that time has yet arrived in the case of Ms Chan.

A nurse registered under the Act, in the course of her or his profession, must be capable of establishing relationships of trust with patients, with other colleagues in the nursing profession, with employers operating hospitals and other institutions in which nurses work, and with a range of other professionals in the health and allied industries with whom a nurse necessarily must relate on a daily basis. It cannot be said with any degree of confidence that Ms Chan could presently enjoy the trust and confidence of any of these people falling in these classes in the light of her convictions in 2000.

In these circumstances, it is not currently appropriate for Ms Chan to be registered to practise as a nurse under the Act."

28 The critical issue before the Tribunal was whether, as at the time it was deciding the appellant's application for review, and having regard to all matters relevant to the appellant's personal qualities including her character and integrity, the elements of the offences in question and the circumstances of their commission made her unfit to practise as a nurse.

29 The Tribunal found, relevantly, that:

(a) the convictions were relatively recent, and the appellant remained on parole in the community in relation to them;

(b) the offences in question were extremely serious;

(c) the offences attracted a sentence of 9 years' imprisonment with eligibility for parole;

(d) each conviction fundamentally undermined the appellant's entitlement to claim that she was possessed of a trustworthy and honest character or that she was a person of integrity;

(e) nurses registered under the Nurses Act, in the course of their profession, must be capable of establishing

(Page 17)

relationships of trust with patients, colleagues, the institutions in which they work, and with a wide range of other professionals in the health and allied industries; and

(f) it could not be said with any confidence that the appellant could enjoy the trust and confidence of any of those people in light of her convictions.

30 It may be accepted that there are some convictions which will not render a person unfit to practise as a nurse. It was unnecessary, and undesirable, for the Tribunal to identify particular offences which may or may not render a person unfit to practise. Each case will turn on its own facts. It is plain, on the Tribunal's findings which I have summarised at [29] above, that the Tribunal properly considered what it was, in the nature of the offences of which the appellant was convicted, that rendered her unfit to practise. Those findings, and the decision of the Tribunal which was based upon them, were reasonably open.

31 The appellant submitted that the Tribunal erred in "going outside" the objects of s 3 of the Nurses Act in making its decision. Section 3 provides:

"The objects of this Act are -

(a) to promote suitable standards of knowledge and clinical skills among nurses for the purpose of protecting the health of the people of Western Australia;

(b) to establish and maintain suitable standards of education among nurses;

(c) to regulate the practice of nursing and ensure safe standards of nursing care."

The object set out in s 3(c) includes the regulation of the practice of nursing. That object has a broad connotation, and encompasses, amongst other things, regulating applications for registration as nurses by requiring a natural person who applies for registration to satisfy the Board that he or she complies with the requirements in s 22(2). Section 3 does not evince a Parliamentary intention that the requirement contained in s 22(2)(a) should be confined to offences which reflect upon an applicant's knowledge or clinical skills, or his or her capacity to provide a safe standard of nursing care.

32 The appellant also submitted that "[the Tribunal] was wrong in communicating and corresponding by email with the [Board's solicitor]
(Page 18)

with the intention to receiving and accepting the documents headed 'Final Submissions' on the 20 April 2005, 27 days after [the Tribunal] hearing". The appellant asserted that she was concerned that "[the Tribunal] encouraged and had knowledge that [the Board] was preparing and sending the 'Final Submissions' document to [the Tribunal] without affording the appellant her right to a reply". In my opinion, the Tribunal gave the appellant a proper opportunity to present her case and make submissions. It was fully apprised of her contentions. The appellant has not referred to any issue raised or submission made in the "Final Submissions' document" which she had not already dealt with in her submissions to the Tribunal or which, in fairness, required an opportunity to adduce additional evidence or make further submissions. The appellant has not established any basis for a reasonable apprehension of bias or that, in any other respect, she was denied procedural fairness.

33 The appellant also submitted that the Tribunal "misled itself" by relying on transcription errors in the transcript. In my opinion, the errors which the appellant has identified are not material to the Tribunal's decision, and would not have affected the outcome.

34 The appellant, in her submissions in relation to ground 1, raised some arguments which overlap with ground 2. It is convenient to deal with those arguments in the course of my consideration of ground 2.

35 Ground 1 fails.

Ground 2: Did the Tribunal err in equating the requirement in s 22(2)(a) of the Nurses Act to the requirement in other Acts that a person be "fit and proper"?

36 The Tribunal recognised, at [73], that many professional or vocational Acts have provisions similar in effect to s 22 of the Act, but not all are expressed in the same form. It continued:

"Many vocational Acts require that a person be 'fit and proper'. Under those vocational Acts where a person must be 'fit and proper' and later is convicted of an offence against the criminal law, it is usually said that the real issue is not whether the person has been convicted of an offence against the criminal law, but whether his or her conduct has been such as to show that he or she should not remain as a member of his or her professions [sic]: see Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; MacMillan v

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Pharmaceutical Council of Western Australia [1983] WAR 166 per Kennedy J at 173."

37 The character and purpose of disciplinary proceedings against a member of a profession have been examined on numerous occasions. The object of those proceedings is the protection of the public and the maintenance of proper professional standards. The maintenance of proper professional standards is conducive to the protection of the public. Disciplinary proceedings are not designed to punish the person who is disciplined. See, for example, Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 286; Clyne v New South Wales Bar Association (1961) 104 CLR 186 at 201 - 202; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183 - 184; Re a Barrister and Solicitor; Ex parte Attorney-General for the Commonwealth (1972) 20 FLR 234 at 244; Re a Barrister and Solicitor (1979) 40 FLR 1 at 24 - 25; Re a Practitioner; Ex parte The Legal Practitioners Disciplinary Tribunal [2001] WASCA 204 at [6] - [7]; Law Society of Tasmania v Turner (2001) 11 Tas R 1 at 24 [61].

38 In Maxwell v Dixon [1965] WAR 167, Hale J said, at 169:

"It is true that 'fit and proper' must be interpreted in the light of the subject-matter of the Act in which the expression appears. It, and the equivalent 'suitable', appears in a wide variety of licensing Acts, and it normally comprises the three characteristics of honesty, knowledge and ability: Hughes & Vale Pty Ltd v NSW (No 2) (1955) 93 CLR 127 at pp 156-157. Clearly different qualifications are needed by eg lawyers, transport operators, hotel keepers and land agents, but as is shown by the cases cited in the judgment referred to, it is not necessary to confine oneself to the special provisions of the Act in question in deciding whether a man is fit provided one gives weight only to matters which can fairly be seen to be relevant to the vocation in issue."

Also see Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 at 76, where Walters J said:

"The issue whether an appellant has shown himself to be 'a fit and proper person', within the meaning of s 16(1) of the [Commercial and Private Agents Act], is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant

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must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails (cf Ex parte Meagher (1919) 19 SR (NSW) 433, at 442)."

Further, see The Registrar, Real Estate and Business Agents Supervisory Board v Barnett, unreported; FCt SCt of WA; Library No 970426; 26 August 1997 at 4 - 5; Grljusich v Andrews [2003] WASCA 206 at [143] - [145].

39 The appellant submitted that the Tribunal "misled itself" in that it equated the requirement in s 22(2)(a) of the Nurses Act with the requirement in other Acts, of a professional or vocational nature, that a person be "fit and proper". The appellant also submitted that the Tribunal erred in relying on the decision in Domburg v Nurses Board of Victoria [2000] VSC 369.

40 The Tribunal referred to several authorities, including Domburg, which have considered whether a person is "fit and proper" to practise a particular profession or vocation. It said, at [86], that those authorities aided an understanding of s 22(2)(a) of the Nurses Act. It also suggested, at [86], that the authorities in question:

"No doubt … underpin Parliament's view that a person should not be registered as a nurse if he or she has been convicted of an offence 'the nature of which renders the person unfit to practise as a nurse'."

41 In my opinion, the Tribunal did not merely equate the criterion of "fit and proper" with the requirement in s 22(2)(a) of the Nurses Act. It found that registered nurses, in the course of their profession, must be capable of establishing relationships of trust with patients and others. In the circumstances, the relevant convictions demonstrated that the appellant could not, at the time the Tribunal was deciding her application for review, be trusted in the requisite sense and, as a result, it was not "currently appropriate" for her to be registered to practise.

42 Ground 2 fails.

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Ground 3: Did the Tribunal err in failing to take into account factors favourable to the appellant?

43 The appellant submitted that the Tribunal failed to take into account all of her conduct before and after her convictions, and failed to give due weight to her rehabilitation.

44 The sentencing remarks, which were before the Tribunal, referred to facts concerning the appellant before her conviction, namely, character evidence and testimonials to the effect that the appellant was a hardworking, reliable and trustworthy person, an active member of the Reconciliation WA movement, and a representative of the Coalition of People's Organisations (ts 1538; also noted by the Tribunal at [38]). There was also reference to the appellant's commitment to the community, and the central role she played within her family (ts 1538). Further, it was noted that the appellant had no prior convictions (ts 1540).

45 The Tribunal summarised the appellant's case in detail, at [48] - [68], including:

(a) The appellant's assertion that her convictions should be considered events of the past which were irrelevant to her present entitlement to be a nurse, and that she had sufficiently recovered her reputation. ([48])

(b) The appellant had previously been registered as a nurse, her first registration being in 1970, and her registration had lapsed before 1998 through non-renewal. ([49])

(c) The Board was prepared, before the appellant's registration lapsed in 1998 and before her convictions, to re-register her as a nurse. ([50])

(d) Character references from people in authority with whom the appellant had contact while in prison. ([51])

(e) Documents the appellant had written which showed her commitment to personal improvement. ([52])

(f) Evidence from two referees and two officers from the Department of Corrections. ([53]-[64])

(g) The appellant's opinion as to the degree of dishonesty involved in the offences for which she had been convicted. ([65])

(h) The appellant was currently undertaking university studies. ([66])

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(i) The appellant's belief that the nature of her convictions did not render her unfit to practise as a nurse, or that, at least, she had recovered her good reputation and, as a result, she should be registered. ([68])

46 In my opinion, the Tribunal had proper regard to factors favourable to the appellant. Ultimately, the Tribunal was satisfied that those factors were outweighed by matters adverse to the appellant. That conclusion was reasonably open to the Tribunal. In particular, the Tribunal's conclusion was supported by:

(a) the seriousness of the offences in question, which was reflected in the sentence of 9 years' imprisonment;

(b) the appellant's lack of insight and remorse at the time of sentencing; and

(c) the applicant's evidence that she did not believe she had acted dishonestly, which is inconsistent with her claim to have been rehabilitated.

The Tribunal's conclusion is not attended by any doubt as a result of the appellant's criminal conduct having occurred in 1991 - 1992, some eight to nine years before her convictions.

47 The appellant, in her submissions to this Court, complained that the Tribunal did not have before it the transcript of the preliminary hearing in the Court of Petty Sessions, or the complete transcript of the appellant's trial in the District Court. This submission is without merit. The Tribunal made its decision, as it was entitled to do, on the basis of the materials placed before it by each of the parties.

48 The appellant also submitted that the offences of which she had been convicted occurred while she was a real estate agent and not a nurse. For the reasons I have given at [28] - [31] above, there is no substance in this point.

49 The appellant repeated, in the context of this ground, her argument in relation to the Tribunal having relied on Domburg and other authorities which have construed the expression "fit and proper". For the reasons I have given at [36] - [41] above, there is no merit in this submission.

50 The appellant also submitted that the Tribunal "was swayed by consideration [sic] affecting the conduct of nurses … as impacting on the public … and misled itself and did not look at all the circumstances, in

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particular to the fact that the appellant has a Police Clearance Certificate". There is no merit in this submission. The appellant has a National Police Certificate (AB 149), which simply lists the appellant's criminal convictions, and does not otherwise have any bearing on her suitability for registration as a nurse. The Tribunal properly gave significant weight to the importance of public trust and confidence in the nursing profession. As I have mentioned, it also took into account factors favourable to the appellant.

51 Ground 3 fails.

Conclusion

52 The grounds of appeal do not have sufficient merit to justify a grant of leave. I would therefore refuse to grant the appellant an extension of time to apply for leave to appeal. Her application should be dismissed.

53 MILLER AJA: I agree with Buss JA.