Clarke v Nursing and Midwifery Council of New South Wales & Ors (No.3)

The applicant, Clarke, brought proceedings against the Nursing and Midwifery Council of New South Wales and two of its officers, seeking to challenge decisions made by the Council. The dispute concerned the Council's handling of a complaint against Clarke and the subsequent disciplinary proceedings. The matter came before Dowdy J in the Supreme Court of New South Wales.

The primary legal issues before the Court were whether the Council had breached its duty of procedural fairness towards Clarke in its investigation and determination of the complaint, and whether the Council's decision to impose conditions on Clarke's registration was affected by an error of law, specifically a failure to take relevant considerations into account and an improper exercise of power. Clarke also sought to argue that the Council's decision was unreasonable.

Dowdy J found that the Council had failed to afford Clarke procedural fairness. This failure stemmed from the Council's reliance on information and findings that were not disclosed to Clarke, and its failure to provide Clarke with an adequate opportunity to respond to adverse material. The Court held that the Council's decision-making process was therefore vitiated by this breach of natural justice. Furthermore, the Court determined that the Council had failed to take into account relevant considerations, namely the specific circumstances of the complaint and the evidence presented by Clarke, and had improperly exercised its power by imposing conditions that were not justified by the findings. The Court concluded that the decision to impose conditions on Clarke's registration was unreasonable.

Consequently, Dowdy J made orders quashing the decision of the Nursing and Midwifery Council of New South Wales to impose conditions on the applicant's registration and remitting the matter back to the Council for redetermination according to law.