Elekwachi v Nursing & Midwifery Board of Australia - [2019] SADC 177

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
ELEKWACHI v NURSING & MIDWIFERY BOARD OF AUSTRALIA
[2019] SADC 177
Decision of His Honour Judge O'Sullivan
27 November 2019
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - GENERALLY
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - EXTENSION OF TIME - GENERALLY
PROFESSIONS AND TRADES - MEDICAL AND RELATED PROFESSIONS - OTHER FIELDS OF PRACTICE - NURSES
The Appellant is a registered nurse. The Australian Health Practitioner Regulation Agency (‘AHPRA’) delivered a decision concerning the Appellant on 17 August 2018.
On 27 November 2018 the Appellant filed an appeal with the South Australia Health Practitioners Tribunal against AHPRA’s decision. The appeal was filed out of time and the Appellant applied to the Tribunal for an extension of time.
The Tribunal delivered its decision on 18 June 2019, refusing the Appellant’s application to extend time within which to institute the appeal.
The Appellant appeals to this Court from the decision of the Tribunal.
Held:
1. There are no cogent reasons to depart from the Tribunal’s decision.
2. The appeal is dismissed.
Health Practitioner Regulation National Law ss 23, 18(9), 199; South Australian Health Practitioner Tribunal Rules 2011 R 3(2), 9; District Court Act 1991 ss 42A, 42B, 42E, 42F, 42G, referred to.
The Registrar of Firearms v Marksman Training Systems Pty Ltd (No. 2) [2016] SASCFC 72; Commissioner of Consumer Affairs v McMurray [2017] SASCFC 16; Spurway v Police [2011] SASC 177, discussed.
House v the King (1936) 55 CLR 499, 505; Vakauta v Kelly (1989) 167 CLR 568, 575; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344, considered.

ELEKWACHI v NURSING & MIDWIFERY BOARD OF AUSTRALIA
[2019] SADC 177
Introduction

This is an appeal from a decision of the South Australia Health Practitioners Tribunal (‘Tribunal’) delivered on 18 June 2019 refusing the Appellant’s application to extend time within which to institute an appeal against a decision of the Australian Health Practitioners Regulation Agency (‘AHPRA’) dated 17 August 2018 (‘Decision’), made under the Health Practitioner Regulation National Law (‘National Law’).
The appeal to this court is brought pursuant to the now repealed s 23 of the National Law.
The Appellant is a registered nurse.
In the Decision, AHPRA cautioned the Appellant, imposed a series of conditions on her registration, required her to undertake further education and be under the guidance of a mentor for 12 months.
The Decision was communicated by letter dated 17 August 2018 from AHPRA to the Appellant care of the Nursing and Midwifery Federation of Australia (SA) Branch (‘NMFA’). The Appellant had been represented by Ms Patient, an Industrial Officer with NMFA during the period August 2017-October 2018.[1]
[1] Affidavit of Maria-Goretti Chioma Elekwachi sworn 16 September 2019, (‘Appellant’s affidavit’) exhibit MGE-1, p 15 of 21.
The Decision gave notice to the Appellant that if she wished to appeal against the Decision, she needed to apply to the Tribunal within 28 days of being given notice of the Decision.[2]
[2] The right to appeal is in s 199 of the National Law.
The Appellant filed an appeal with SAHPT against the Decision on 27 November 2018, some three months after the date of the Decision.
The Procedure before the Tribunal and before this Court
The Tribunal was constituted in Part 3 of the National Law comprising ss 8-25. Those sections have since been repealed.
Section 18(9) of the National Law which applied at the relevant time, provided that in proceedings before the Tribunal it is not bound by the rules of evidence, may inform itself on any matter as it thinks fit, must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
The Tribunal Rules (‘SAHPT Rules’)[3] govern the practice and procedure of the Tribunal. Under its rules, the Tribunal has the power to act at any time to give effect to the purpose of the Rules, and may do all or any acts to give any directions relating to the conduct of a proceeding as it thinks proper, to dispose of that proceeding expeditiously.[4]
[3] South Australian Health Practitioner Tribunal Rules 2011.
[4] SAHPT Rule 3(2).
SAHPT Rule 9 provides that the presiding member shall decide the manner and order of procedure in which the matter shall be conducted, so that the issues raised are resolved as expeditiously as possible.
An appeal from The Tribunal to this Court, is to the Court sitting in its Administrative and Disciplinary Division and is governed by ss 42A-42G of the District Court Act 1991 (DCA).
Section 42E provides:
42E—Conduct of appeal
(1) The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2) The Court, on an appeal—
(a) is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3) The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
Section 42E has been the subject of consideration by the Full Court of the Supreme Court of South Australia.
In Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2),[5] Stanley J considered the operation of DCA ss 42B, 42E and 42F.
[5] [2016] SASCFC 72.
His Honour observed:[6]
[312] …This construction brings into sharp relief the interrelationship between s 26C(2) of the Firearms Act and s 42E of the District Court Act. An important feature of the interrelationship is that while s 26C(1) of the Firearms Act confers the right of appeal to the District Court, following a decision made pursuant to that Act, it is the provisions of the District Court Act which establish the nature or character of that appeal. The Firearms Act is a special Act for the purposes of s 42B of the District Court Act. On an appeal brought pursuant to s 26C of the Firearms Act the dispositive powers of the Court are prescribed by s 42F of the District Court Act. The way in which the Court is to conduct the appeal is prescribed by s 42E. Sections 42B, 42E and 42F of the District Court Act prescribe the conditions which define the ambit of the jurisdiction and powers of the District Court in hearing and determining appeals such as this.
[314] … Pursuant to s 42E(3) of the District Court Act, the Court must on appeal give due weight to the decision being appealed against and the reasons for it. While in this case the decision is the same, the Court must also give due weight to the reasons for that decision. As I will explain shortly, the reasons for the decision are the reasons of both the Registrar and the Committee.
[315] … Section 42E(3) is a mandatory provision requiring the Court on appeal to give due weight to the decision being appealed against and the reasons for it, and not to depart from the decision except for cogent reasons. There are two critical features to the operation of s 42E(3). First, the nature of the appeal being conducted by the Court is limited. The Court is not to allow the appeal from the decision appealed against except for cogent reasons. I consider that the purpose of s 42E(3) is to indicate that the appeal, while it is to be conducted in accordance with the terms of s 42E(2), is not an ordinary merits review of the decision the subject of the appeal. The Court on appeal is not to merely substitute its view for that of the original decision-maker. It is only to depart from that decision where cogent reasons exist. “Cogent” means compelling, convincing, powerful. …
[6] Ibid at [312], [314], [315].
In Commissioner of Consumer Affairs v McMurray,[7] Blue J considered the same provisions. After referring to the passage from Stanley J’s judgment as set out above, his Honour continued:[8]
[44]The deference to be accorded to the underlying decision on an appeal governed by section 42E depends on the nature of the asserted error in the decision and reasons for the decision.
[45]Where the asserted error relates to the exercise of a discretion or the making of an evaluative judgment or policy decision, it will be necessary for the Appellant to establish a process or outcome error of the type identified by the High Court in House v The King, and the mere establishment of a process error will not avail the Appellant unless the Appellant also demonstrates that there should have been a different outcome.
[46]Where the asserted error relates to a finding on an ultimate factual issue determinative of the result, it will not be sufficient for an Appellant merely to demonstrate that the judge on appeal would not have made that factual finding. It will ordinarily be necessary for the Appellant to demonstrate that the finding made was not open on the material properly before the decision-maker. Particular appellate restraint will need to be exercised when the finding turns on credit. When the asserted error relates to a finding on a primary or intermediate factual issue but not an ultimate issue, but in addition the Appellant will also need to demonstrate that the correct factual finding would have led to a different outcome.
[7] [2017] SASCFC 16.
[8] Ibid at [44]-[46].
I approach this appeal with the requirements of s 42E in mind, and guided by the authorities referred to above.
Applicable Legal Principles – Discretion
The decision whether or not to extend time within which to file the Notice of Appeal against the Decision is discretionary. An appeal against the exercise of a discretion is governed by established principles, mainly that it must appear that some error has been made in exercising the discretion. Acting upon a wrong principle, being guided or affected by extraneous or irrelevant matters, mistakes as to the facts, and a failure to take into account some material consideration, are all grounds upon which an appellate court may exercise its own discretion in substitution for the decision. It is not the case however, that the exercise of the discretion should be disturbed by an appellate court if it considers that if it had been in the position of the primary Judge, it would have taken a different course.[9]
[9] House v The King (1936) 55 CLR 499, 505.
Principles - Extension of time and discretion
In Spurway v Police,[10] Blue J set out the principles that were applicable to an application for an extension of time. In the Tribunal’s Reasons, the President referred the principles at [18] of the Reasons. I do not set them out again.
[10] [2011] SASC 177.
The Tribunal’s Reasons
In its reasons for decision published 18 June 2019, the Tribunal observed that the credit of the Appellant was in issue in relation to when she received the Decision.[11]
[11] Reasons [19].
The Appellant deposed in her affidavit that she did not become aware of the Decision until after her solicitors had received her file from NMFA in or about mid-November 2018.[12]
[12] Appellant’s Affidavit.
The President found that the Appellant’s industrial advocate, Ms Patient, discussed the Decision letter with the Appellant on 21 August 2018 and found that the letter had been sent to the Appellant.[13]
[13] Reasons [30].
In so finding his Honour relied on a file note of a telephone call between Ms Patient[14] and the Appellant dated 21 August 2018 as well as an email from Ms Patient to the solicitors for the respondent sent 5 March 2019.[15]
[14] Appellant’s affidavit, exhibit MGE-1, p 7 of 21.
[15] Appellant’s affidavit, exhibit MGE-1, p 15 of 21.
It is evident from that finding that the Tribunal did not accept the Appellant’s evidence as to when she received the Decision.
His Honour also found that the proposed Notice of Appeal was misconceived and was without merit because it failed to address the actual Decision and would require significant amendment.[16]
[16] Reasons [28]-[29].
Finally, having considered the case law, his Honour was not satisfied about the explanation for the delay in instituting the appeal. His Honour referred to a letter from AHPRA’s Compliance Section to the Appellant dated 7 September 2018[17] which referred to the conditions imposed on the Appellant by the Decision, and noted that the Appellant had complied with one of those conditions despite asserting she had not received a copy of the Decision.[18]
[17] Appellant’s affidavit, exhibit MGE-2, p 16 of 35.
[18] Reasons [31]; Appellant’s affidavit, exhibit MGE-2 p 16 of 35; Transcript of hearing before SAHPT p 17.
Grounds of Appeal
The Appellant sets out six grounds of appeal as follows:
1The Presidential Member erred in law in that he reversed the onus of proof in the proceedings before him such that rather than the Appellant being first required to prove why extension of time (sic) should be granted, the respondent was first required to prove that extension of time (sic) should not be granted.
2The Presidential Member made his findings and orders on the basis of no evidence, or in the alternative, insufficient evidence, or in the alternative, contrary to the weight of the evidence, or in the alternative, inadmissible evidence.
3The Presidential Member refused to take evidence or otherwise excluded evidence which is material to the matter of extension of time, in that he categorically refused and or ruled out the calling of two witnesses namely, Ms Chinasom Elekwachi and Ms Franchesca Patient and refused to allow the examination of documents and the tender of documents into evidence.
4The Presidential Member misconstrued and misconceived facts in arriving at his reasons and findings in that he imputed and allowed the respondent to impute words and descriptions into alleged notes produced by a third party without calling the third party to give evidence.
5The findings of the Presidential Member were affected by bias.
The notice of appeal sets out 16 incidents of what is said to constitute bias. I do not set them out here and will deal with those allegations later in these reasons.
6The Presidential Member denied the Appellant a fair hearing and natural justice by reason of the matters set out in grounds 1-5 above.
I turn to the grounds of appeal.
Ground 1
The Presidential Member erred in law in that he reversed the onus of proof in the proceedings before him such that rather than the Appellant being first required to prove why extension of time (sic) should be granted, the respondent was first required to prove that extension of time (sic) should not be granted.
The Appellant relies on what is described as a reversal of the onus. I have considered the transcript of the hearing before the Tribunal. I am not satisfied the Tribunal did in fact reverse the onus but if it did, I cannot see how that is to the Appellant’s disadvantage nor how it would affect the ultimate outcome.
I dismiss this ground of appeal.
Ground 2
The Presidential Member made his findings and orders on the basis of no evidence, or in the alternative, insufficient evidence, or in the alternative, contrary to the weight of the evidence, or in the alternative, inadmissible evidence.
The President made a number of findings and identified the basis upon which he made those findings. His Honour had the advantage of observing the Appellant give evidence, and weighed that evidence against matters which were contrary to her version of events.
There was evidence upon which his Honour based his findings and to which his Honour referred in the Reasons.
This ground of appeal also refers to inadmissible evidence. As I have noted the rules of evidence do not apply to a hearing before the Tribunal.
I am not satisfied that his Honour made his findings on the basis of no evidence or insufficient evidence, or on matters contrary to the weight of the evidence.
I dismiss this ground of appeal.
Ground 3
The Presidential Member refused to take evidence or otherwise excluded evidence which is material to the matter of extension of time, in that he categorically refused and or ruled out the calling of two witnesses namely, Ms Chinasom Elekwachi and Ms Franchesca Patient and refused to allow the examination of documents and the tender of documents into evidence.
The Appellant refers to two witnesses. There is no doubt that Ms Patient was not called[19] nor the Appellant’s daughter, Ms Chinasom Elekwachi.[20]
[19] T13.36.
[20] T8.29-31.
Ms Elekwachi’s daughter was present at a meeting on 17 July 2018 with Ms Patient. There is no suggestion that she was involved in any of the events on or after the Decision (17 August 2018) and it is not readily apparent how she could contribute to the issue. The Appellant’s counsel at this appeal did not submit how Ms Chinasom Elekwachi’s evidence would have affected the outcome. Further, the Appellant’s counsel did not make any application to call Ms Chinasom Elekwachi, when he was before the President nor object when the President indicated he would not hear evidence from her.
As to the documents, it is not clear to what documents the Appellant refers. In relation to the tender of documents into evidence, as I have noted the rules of evidence do not apply to hearings before the Tribunal.
To the extent the examination of documents (or for that matter the tender of documents) refers to documents sought by the Appellant on subpoena and in particular the alleged failure by the respondent to make disclosure of a video recording (referred to by the Appellant as CCTV), by which it seems the Appellant is referring to her record of interview, his Honour observed that those documents had nothing to do with the application for an extension of time.[21]
[21] T43.30-44.20.
His Honour was clearly correct in that view. The issue before his Honour was a question of whether or not the Appellant had established an entitlement to an extension of time within which to file a Notice of Appeal.
The President was entitled to take the view he did in relation to those documents and whether it was necessary to hear evidence from the two witnesses.
I dismiss this ground of appeal.
Ground 4
The Presidential Member misconstrued and misconceived facts in arriving at his reasons and findings in that he imputed and allowed the respondent to impute words and descriptions into alleged notes produced by a third party without calling the third party to give evidence.
The facts said to be misconstrued and misconceived are referred to in the Appellants affidavit at [14] which repeats [4]-[13] of the same affidavit. Those paragraphs in turn form ground 2 of the appeal with which I have dealt.
As I have noted, the President had the advantage of seeing the Appellant, hearing her evidence and was able to weigh that evidence against other evidence. I have considered the transcript and the materials that were before the Tribunal and put before this court, specifically the Appellant’s affidavit and the exhibits thereto. It was open to the President to make the findings he did, referable to the bases he identified in the Reasons to support those findings.
I dismiss this ground of appeal.
Ground 5
The findings of the Presidential Member were affected by bias.
The Notice of Appeal sets out 16 grounds of alleged bias as follows:
1Repeatedly and consistently interrupting submissions of the Appellant’s counsel.
2Refused to hear submissions of the Appellant’s counsel at various intervals.
3Shut down the Appellant’s counsel from making submissions.
4Was discourteous and disrespectful to the Appellant’s counsel.
5Intimidated and threatened the Appellant by stating that he would shut down the hearing.
6Repeatedly interrupted and intimidated the Appellant.
7Was repeatedly complaining that he doesn’t have time to hear the arguments.
8Refused examination of the Appellant on the material documentary evidence.
9Refused the tender of documentary evidence.
10Refused the calling of two witnesses.
11Prejudged alleged notes without hearing from the creator of the notes and prior to hearing the arguments.
12Reversed onus of proof notwithstanding protests from the Appellant’s counsel.
13Allowed cross-examination of the Appellant before examination.
14Took over cross-examination of the Appellant from the respondent’s counsel.
15Cross-examined the Appellant on a document produced form the bench without showing the Appellant’s counsel what or which document he was referring to.
16Conducted proceedings as though he was at the bench as a second counsel for the respondent.

Shortly stated, the test for actual bias is whether the Judge is able to bring an impartial, unbiased mind to hear the question arising to be determined in the case.[22] Although framed in terms of actual bias, I have also considered this ground of appeal as apprehended bias, the test being whether a fair minded lay observer, fully informed of all relevant facts, might think that the Judge was unable to bring such an impartial and unbiased mind to bear on the issues to be determined in the case.[23]
[22] Vakauta v Kelly (1989) 167 CLR 568, 575 per Dawson J.
[23] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 at [6]-[8].
I have considered the transcript of the hearing before the President carefully. None of the matters set out in this ground of appeal are made out as providing a basis for concluding there was bias or apprehended bias on the part of the Presidential Member. It is apparent that his Honour took entirely proper steps to engage with the Appellant’s counsel so as to maintain the Appellant’s focus on the issue before the Tribunal and to ensure the orderly conduct of the hearing before him in relation to the central question of whether the Appellant was entitled to an extension of time.
I dismiss this ground of appeal.
Ground 6
The Presidential Member denied the Appellant a fair hearing and natural justice for the reasons set out in appeal grounds 1-5.
For the same reasons as set out in relation to appeal grounds 1-5, I dismiss this ground of appeal.
The proposed grounds of appeal
Although not the subject of a ground of appeal, I note that his Honour dealt with the proposed grounds of appeal in his Reasons[24] and found that the proposed Notice of Appeal was misconceived. Such a finding was open to his Honour and was a relevant consideration, in considering the exercise of his discretion.
[24] Reasons [28], [29].
Prejudice
On the question of prejudice to the Appellant if no extension of time was granted, his Honour dealt with that issue in his reasons and took that into consideration in the exercise of his discretion.[25]
[25] Reasons [26].
Principles in relation to extension of time
His Honour considered the matters referred to by Blue J in Spurway and was not satisfied that the Appellant had established a basis upon which she was entitled to an extension of time. Further, his Honour observed that the delay was substantial and that the applicant failed to give a detailed explanation for the delay.[26] Those findings were open to his Honour on the material before him.
[26] Reasons [30], [31], [32].
Conclusion
In my view, there are no cogent reasons to depart from the Tribunal’s decision.
The appeal is dismissed.