Fletcher v Queensland Nursing Council - [2009] QCA 364

SUPREME COURT OF QUEENSLAND

CITATION:

Fletcher v Queensland Nursing Council [2009] QCA 364

PARTIES:

QUEENSLAND NURSING COUNCIL
(respondent/applicant)
v
GLENNYS LAUREL FLETCHER
(appellant/respondent)

FILE NO/S:

Appeal No 6533 of 2009
DC No 3074 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

27 November 2009

DELIVERED AT:

Brisbane

HEARING DATE:

27 October 2009

JUDGES:

Chief Justice and Muir and Chesterman JJA
Separate reasons for judgment of each member of the Court, the Chief Justice and Chesterman JA concurring as to the orders made, Muir JA dissenting in part

ORDERS:

1.       Leave to appeal granted.

2.       Appeal allowed.

3.       Set aside the orders of the District Court made on 25 May 2009 and instead order that the appeal to that court be dismissed.

4.       The respondent should pay the applicant’s costs of the appeal to the District Court and the application for leave to appeal and the appeal to this Court.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the applicant preferred a charge against the respondent of unsatisfactory professional conduct to the Nursing Tribunal under s 104A of the Nursing Act 1992 (Qld) – where the respondent was found to have acted in a manner that was professionally unsatisfactory by the Tribunal and that the respondent be deregistered for two years along with other orders – where the findings and orders of the Tribunal were appealed to the District Court pursuant to s 137 of the Nursing Act – where the appeal was allowed by the District Court – where the applicant appeals the decision of the District Court under s 118 of the District Court of Queensland Act 1967 (Qld) – whether the learned District Court Judge erred in allowing the appeal – whether the charge against the respondent which involved an ‘abuse of position of trust and influence’ required an element of intent

District Court of Queensland Act 1967 (Qld), s 118
Nursing Act 1992 (Qld), s 6, s 84, s 96, s 104, s 104A, s 105, s 116, s 137

Bhattacharya v General Medical Council [1967] 2 AC 259, considered
Coleman v Kinbacher & Anor (Qld Police) [2003] QCA 575, applied
Fletcher v Queensland Nursing Council [2009] QDC 129, cited
Graham v Queensland Nursing Council[2009] QCA 280, distinguished
Johnson v Buttress (1936) 56 CLR 113; [1936] HCA 41, considered
Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61, considered
Medical Board of Qld v Thurling[2003] QCA 518, considered
Parfitt v Lawless (1872) LR 2 Probate & Divorce 462, cited
Union Bank of Australia Ltd v Whitelaw [1906] VLR 711, cited
Wingrove v Wingrove (1885) 11 PD 81, considered
Winter v Crichton (1991) 23 NSWLR 116, cited

COUNSEL:

P Davis SC, with S J Gallagher, for the applicant
J J Allen, with K E Forrester, for the respondent

SOLICITORS:

Rodgers Barnes & Green Lawyers…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] QCA 364
Decision Date: 27 November 2009

CaseChat Overview and Summary

The matter of Fletcher v Queensland Nursing Council came before the court with the applicant appealing against the decision of the District Court which had allowed an appeal brought by the respondent, the Queensland Nursing Council, against a finding of unsatisfactory professional conduct made by the Nursing Tribunal. The Tribunal had found the respondent nurse to have acted in a manner that was professionally unsatisfactory, resulting in a two-year deregistration and other orders. The District Court's decision to allow the appeal raised questions about the legal criteria applied in such disciplinary proceedings, particularly concerning the requirement for intent in charges of an ‘abuse of position of trust and influence’.

The court was tasked with determining whether the District Court Judge erred in allowing the appeal and, specifically, whether the charge against the respondent required an element of intent. The central issue was whether the statutory provision under which the charge was laid necessitated intent as a component of the ‘abuse of position of trust and influence’ or if the conduct alone was sufficient to constitute the offence. The court examined the statutory language and relevant precedent to ascertain the correct interpretation and application of the law.

In resolving the matter, the court concluded that the District Court Judge had erred in allowing the appeal. The statutory provision in question did not explicitly require intent, and the conduct alone was sufficient to constitute the offence. The court found that the charge against the respondent did not necessitate an element of intent, and therefore the District Court had misapplied the law in allowing the appeal. Consequently, the court set aside the orders of the District Court and dismissed the appeal to that court. The respondent was ordered to pay the applicant’s costs of the appeal to the District Court and the application for leave to appeal and the appeal to this Court.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. Set aside the orders of the District Court made on 25 May 2009 and instead order that the appeal to that court be dismissed.

4. The respondent should pay the applicant’s costs of the appeal to the District Court and the application for leave to appeal and the appeal to this Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Fletcher v Queensland Nursing Council [2009] QCA 364
PARTIES:	QUEENSLAND NURSING COUNCIL (respondent/applicant) v GLENNYS LAUREL FLETCHER (appellant/respondent)
FILE NO/S:	Appeal No 6533 of 2009 DC No 3074 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	27 November 2009
DELIVERED AT:	Brisbane
HEARING DATE:	27 October 2009
JUDGES:	Chief Justice and Muir and Chesterman JJA Separate reasons for judgment of each member of the Court, the Chief Justice and Chesterman JA concurring as to the orders made, Muir JA dissenting in part
ORDERS:	1. Leave to appeal granted. 2. Appeal allowed. 3. Set aside the orders of the District Court made on 25 May 2009 and instead order that the appeal to that court be dismissed. 4. The respondent should pay the applicant’s costs of the appeal to the District Court and the application for leave to appeal and the appeal to this Court.
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the applicant preferred a charge against the respondent of unsatisfactory professional conduct to the Nursing Tribunal under s 104A of the Nursing Act 1992 (Qld) – where the respondent was found to have acted in a manner that was professionally unsatisfactory by the Tribunal and that the respondent be deregistered for two years along with other orders – where the findings and orders of the Tribunal were appealed to the District Court pursuant to s 137 of the Nursing Act – where the appeal was allowed by the District Court – where the applicant appeals the decision of the District Court under s 118 of the District Court of Queensland Act 1967 (Qld) – whether the learned District Court Judge erred in allowing the appeal – whether the charge against the respondent which involved an ‘abuse of position of trust and influence’ required an element of intent District Court of Queensland Act 1967 (Qld), s 118 Nursing Act 1992 (Qld), s 6, s 84, s 96, s 104, s 104A, s 105, s 116, s 137 Bhattacharya v General Medical Council [1967] 2 AC 259, considered Coleman v Kinbacher & Anor (Qld Police) [2003] QCA 575, applied Fletcher v Queensland Nursing Council [2009] QDC 129, cited Graham v Queensland Nursing Council[2009] QCA 280, distinguished Johnson v Buttress (1936) 56 CLR 113; [1936] HCA 41, considered Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61, considered Medical Board of Qld v Thurling[2003] QCA 518, considered Parfitt v Lawless (1872) LR 2 Probate & Divorce 462, cited Union Bank of Australia Ltd v Whitelaw [1906] VLR 711, cited Wingrove v Wingrove (1885) 11 PD 81, considered Winter v Crichton (1991) 23 NSWLR 116, cited
COUNSEL:	P Davis SC, with S J Gallagher, for the applicant J J Allen, with K E Forrester, for the respondent
SOLICITORS:	Rodgers Barnes & Green Lawyers…