Gabrielsen v Nurses Board of South Australia
[2006] SASC 199
•4 July 2006
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Miscellaneous Appeal)
GABRIELSEN v NURSES BOARD OF SOUTH AUSTRALIA
[2006] SASC 199
Judgment of The Honourable Justice Duggan
4 July 2006
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - HEARING - NATURE OF HEARING
Appeal against decision of Nurses Board to refuse appellant's application for reinstatment as a registered nurse - appellant originally subject of disciplinary proceedings before Nurses Board, which found the allegations of unprofessional conduct were proved - appellant voluntarily removed himself from the Register of Nurses prior to the Nurses Board handing down its penalty - appellant applied for reinstatement shortly after penalty handed down - whether appellant given sufficient notice of grounds of objection by Registrar to reinstatement.
Held: appellant given sufficient notice that his previous conduct would be raised at reinstatement hearing - appellant not denied natural justice on this ground.
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - BIAS - APPREHENSION OF BIAS
Where in the course of handing down its penalty following the disciplinary proceedings, the Nurses Board made finding that appellant was not a fit and proper person to be registered as a nurse - finding not one that the Nurses Board was required to make as part of the disciplinary proceedings - where three of the four members of Nurses Board who sat on the disciplinary proceedings also sat on appellant's application for reinstatement - criteria for reinstatement includes requirement that applicant be a fit and proper person to be registered as a nurse - whether decision of Nurses Board to refuse appellant's application for reinstatement should be set aside for apprehended bias - consideration of what constitutes apprehended bias by reason of prejudgment of a relevant issue.
Held: in the particular circumstances, constitution of Board at reinstatement hearing gave rise to a reasonable apprehension of bias - appeal allowed.
Nurses Act 1999 ss 5, 13, 26, 31, 44, 52, referred to.
Livesy v New South Wales Bar Association (1983) 151 CLR 288, applied.
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Singh v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 440, discussed.
GABRIELSEN v NURSES BOARD OF SOUTH AUSTRALIA
[2006] SASC 199Civil
DUGGAN J. The appellant was a registered nurse who appeared before the Nurses Board of South Australia (“the Board”) in March 2005 charged with four counts of unprofessional conduct.
The first two counts alleged abusive conduct towards an elderly woman, Mrs Robertson. It was alleged that this conduct took place on 23 and 24 April 2003 at the Kimba Hospital (“the Hospital”) where the appellant was working as a nurse. Mrs Robertson was a patient at the Hospital.
The third allegation of unprofessional conduct related to Mrs Docking, another elderly patient at the Hospital. It was alleged that this conduct took place at the Hospital on 24 and 25 April 2003.
These allegations were reported by Ms Sully, an enrolled nurse employed at the Hospital. The report was made to Ms Churchett, the Director of Nursing. The fourth allegation of unprofessional conduct alleged abusive and offensive conduct towards Ms Sully and Ms Churchett by the appellant following the reporting of the allegations.
The reasons for decision of the Board were delivered on 27 April 2005. The allegations of unprofessional conduct were found proved and the Board intimated that it would proceed to hear submissions on the orders it should make consequent upon the finding of unprofessional conduct. The appellant did not attend on that date, but his wife was present.
The Board was advised that, earlier in the day, the appellant requested that his name be removed from the Register of Nurses. Section 31 of the Nurses Act 1999 (“the Act”) provides that the Registrar must remove the person’s name from the roll if such a request is made. Accordingly, the appellant’s name was removed on that day.
In the event of a finding of unprofessional conduct, the Board is authorised by s 44 of the Act to exercise one or more of the powers set out in that section. One of the powers is to cancel the registration of the nurse. However, a direction to this effect was not available to the Board by reason of the earlier removal of the appellant’s name by the Registrar at the request of the appellant.
The Board reconvened on 20 May 2005 following a request by the appellant. On this occasion, he was represented by Ms Sheppard. She made short submissions on penalty and the chairperson then announced that the appellant was reprimanded and fined $4000.
On 11 August 2005, the appellant applied to the Board for the reinstatement of his name on the register. Pursuant to ss 13 and 52 of the Act, the Board appointed a committee and delegated powers to it to hear the application for reinstatement. After hearing submissions, the committee refused the appellant’s application on 12 December 2005.
The appellant has appealed against the refusal of the committee to reinstate him. He was unrepresented in the proceedings before the Board, the committee and on the hearing of the appeal. No grounds of appeal were included in the Notice of Appeal. However, the appellant presented written submissions to the court in which he made a number of complaints about the proceedings before the committee on the reinstatement application. The written submissions were supplemented with oral submissions.
The appellant’s main complaint arises from the notification he received in respect of the hearing. He claimed that he was given notice by the Registrar of the Board (“the Registrar”) of the issue which was to be raised at the hearing for reinstatement, and that the committee wrongly permitted other issues to be raised at the hearing. He also complained of bias on the part of the committee and the Registrar. He claimed that he received insufficient information about the nature of the reinstatement proceedings.
The appellant stated in his submissions that there was no clear statement of the issues to be dealt with on the reinstatement application. He said he was denied access to guidelines, which he said were promulgated by the Board for the regulation of procedures for reinstatement.
The appellant complained that the committee did not consider the application sufficiently, in that its decision was given within a short time of the hearing. He accused the committee members of bias in that the three members who sat on the application for reinstatement also sat on the Board which found that he was not a fit and proper person to practise nursing. He made various criticisms of the reasons which the committee gave when refusing his application.
The reinstatement of a person on the Register of Nurses is regulated by s 26 of the Act, which provides as follows:
(1) A person whose name has been removed from the register or roll—
(a) at his or her request; or
(b) on account of a failure to renew the registration or enrolment or to pay the practice fee,
may apply to the Board at any time for the reinstatement of the person's name on the register or roll (as appropriate).
(2)A person whose registration or enrolment has been suspended may apply to the Board for the reinstatement of the person's name on the register or roll (as appropriate) after the period of suspension has expired.
(3)A person whose registration or enrolment has been cancelled for unprofessional conduct may not apply to the Board for reinstatement of the person's name on the register or roll before the expiration of 12 months after the cancellation.
(4) An application for reinstatement must—
(a) be made to the Board in the manner and form approved by the Board; and
(b) be accompanied by the fee fixed by regulation.
(5) The Board may require an applicant under this section—
(a) to provide the Board with any information required by the Board for the purposes of determining the application;
(b) to submit a medical report or other evidence acceptable to the Board to ensure that the applicant can practise effectively as a nurse;
(c) to obtain additional qualifications or experience specified by the Board before the Board determines the application.
(6)The Board should, subject to the operation of subsection (5), reinstate the name of a person who applies under this section if satisfied that the person—
(a) has sufficient competence and capacity to practise in the field of nursing to the standards required by the Board for the purposes of this Act; and
(b) is a fit and proper person to be registered or enrolled under this Act.
The argument to which the appellant attached most importance relates to the advice he was given concerning the issues to be ventilated at the reinstatement hearing. In particular, the appellant relied upon a letter sent to him by the Registrar prior to the hearing. The letter was dated 17 August 2004, but it is clear the date should have been 2005.
The letter stated:
I am writing to acknowledge receipt of your application to reinstate to the Register.
In order to reinstate you will be required to provide that you are fit and proper – that is, you will need to present evidence that you are physically and mentally fit and have the necessary skill and experience to provide nursing care as a Registered Nurse.
The Registrar will be referring your application for reinstatement to the Board for a formal hearing. After your application has been presented to the Board, you will be sent a letter inviting you to attend a Preliminary Conference at the offices of the Nurses Board. A member of the Board will preside over the conference which will also be attended by the Registrar and a solicitor to assist the Board member. You are entitled to be accompanied by a solicitor, advocate or companion at the conference for legal or moral support. The purpose of the conference is to ensure that the hearing proceeds efficiently and in accordance with the principles of natural justice. It will also be your opportunity to provide the evidence as mentioned above.
The appellant has drawn particular attention to the emphasised words. As no reference was made in the letter to the previous findings of the Board in respect of the abusive conduct towards the nursing home residents, the appellant has argued that this issue could not be raised at the reinstatement hearing.
If the terms of the letter gave the appellant a misleading impression as to the issues to be raised at the hearing and he was disadvantaged as a result, these circumstances would have been relevant to the question whether the appellant was denied a hearing in accordance with the rules of natural justice. However, as a result of events which occurred before the hearing, there is no possibility that the appellant was left in doubt as to what issues would be raised at the hearing.
On 27 September 2005, the chairperson of the committee constituted to hear the reinstatement application, Mr Bell, conducted a preliminary conference to discuss the hearing. The Registrar and counsel for the Registrar, Mr Grant, also attended. During the preliminary conference, the appellant raised the issue of the Registrar’s letter of 17 August. He was told on several occasions during the conference that the issues to be canvassed would include those relating to his conduct which was the subject of the allegations previously made against him. It is clear from his response that he understood what was said to him in this respect. Mr Bell also told him it would make it difficult for the appellant’s application if he did not address the issue of his prior conduct at the reinstatement hearing. However, the appellant was adamant that he would not do so. He continuously expressed the view that the Registrar’s letter defined the issues and that the committee was bound to restrict its enquiry accordingly.
At the preliminary conference, the appellant was advised that the hearing would commence on 11 October 2005.
On 30 September 2005, Mr Grant wrote to the appellant as follows:
I refer to the preliminary conference before Mr Bell of 27 September 2005. I advise you that the basis of the Registrar’s objection to you being reinstated on the register of nurses is that you are not a fit and proper person to be registered as a nurse, as evidenced by the findings of the Board in an inquiry into allegations of unprofessional conduct on your part.
I put you on notice that it will be put to the Board that the reason why you are not a fit and proper person is owing to the fact of your proven abuse of elderly patients in your care, followed by a campaign of harassment and vilification of two nurses who reported your patient abuse to the Board, and the subsequent finding of the Board that in that conduct you were guilty of disgraceful and dishonourable conduct. Put simply, the basis of the objection is that you are not a fit and proper person of your character, not because of any mental or physical infirmity.
The evidence I will submit to the Board will comprise of the book of documents tendered by the Registrar during the hearing and the transcript of all proceedings before the Board, including the Board’s findings and the remarks of the Board when imposing penalty. (emphasis added)
At the reinstatement hearing, the appellant and Mr Grant made submissions to the committee. The appellant also tendered a statutory declaration dated 4 October 2005. The declaration consists of both asserted facts and arguments.
The appellant stated in the statutory declaration that it was his understanding he did not have to establish that he was mentally or physically fit in order to be reinstated; nor did he have to establish that he had the necessary skill and experience to be reinstated. He said the previous “finding” of the Board that he was not a fit and proper person to be a registered nurse was not a finding which could be made under the Act. He said that he had the evidence necessary to establish that he was physically and mentally fit to practise nursing and that he had the necessary skills and experience to provide nursing care. However, he commented that the committee had “now sought to alter the goal posts” in relation to the requirements for reinstatement.
The appellant addressed the committee at length. He stated that he wished to confine himself to the issues raised in the Registrar’s letter of 17 August. The chairperson responded that, although the appellant’s competence was not a contested issue, the committee had to be satisfied that he was a fit and proper person to practise nursing.
The appellant then explained to the committee that on 5 May 2005 he was diagnosed as having a bipolar disorder. He said his psychiatrist had told him that it is likely he had been suffering from the condition for about 30 years. The psychiatrist discussed a treatment programme with him which included psychotherapy. He said that when he started work he had been placed on medication which exacerbated the condition which had now been diagnosed. He said he started to exhibit behavioural problems, but had no insight into them.
The appellant referred to his “emotional and mental instability” at the time of the actions which formed the basis of the charges laid against him. He said his behaviour was out of character and he acknowledged that this mental state did not excuse his conduct.
The question as to whether the appellant was going to call any psychiatric evidence was raised by the chairperson, but the appellant did not call any witnesses. However, he did tender a report dated 6 September 2005 from a psychiatrist, Dr Paterson. Dr Paterson stated in the report:
I am a psychiatrist practising General Adult Psychiatry in Gilberton, South Australia and was asked to see Mr. Gabrielsen at the end of 2004 and have been following his progress ever since.
Mr. Gabrielsen has bipolar affective disorder and earlier this year I commenced him on Sodium Valproate as a mood stabiliser in addition to Citalopram (an antidepressant).
Over the past three months Mr. Gabrielsen’s mood has been stable and I am not aware of any significant episodes of mood instability.
This stability is corroborated by other people including his wife.
More pleasing is the fact that when I met Mr Gabrielsen and his wife at the end of 2004 his mood instability had caused significant problems in their relationship and as a consequence, at that time, there was a brief separation.
With Mr Gabrielsen’s increased mood stability whilst taking prescribed mood stabiliser medication and with regular psychiatric reviews he, his wife and their children are once again living together and, pleasingly, on the 6th September 2005 Mrs. Gabrielsen attended Mr. Gabrielsen’s appointment with me.
In my opinion, providing Mr. Gabrielsen continues to take mood stabiliser treatment, attends his ongoing psychiatrist reviews and also engages in a number of psychotherapeutic interventions that he and I have been developing, I believe that his capacity to practice as a nurse should not be in question.
It is my understanding that prior to a diagnosis of bipolar affective disorder being made Mr. Gabrielsen had practised as a nurse and his competencies were not questioned.
In my opinion he is currently likely to be considered more fit from a psychiatric perspective than he has probably been in the preceding decade.
Mr Grant’s letter of 30 September 2005 advised the appellant that the Registrar would be objecting to his application on the basis that he was not a fit and proper person because of his character. No mention was made to objection because of any mental or physical infirmity. However, an application for reinstatement under s 26 of the Act is different from a disciplinary hearing in which the prosecutor is required to identify the particulars of the charge and prove the essential elements. Notification of any objection to be taken by the Registrar could not limit the matters which the committee was required to consider. On the other hand, the appellant was entitled to a fair reinstatement hearing. If he failed to put his case properly on the application because he was misled or not given proper notice of an allegation to be made against him, that consideration could result in an unfair hearing.
However, the appellant himself put material before the committee as to his mental state, which the committee was then entitled to take into account when assessing his application. He provided the information that he had been diagnosed as suffering from a bipolar disorder and that he was receiving treatment for it. Speaking generally, this is not something which would disqualify a person automatically from practising as a nurse. However, it is a factor which may be of relevance and, as the information was before the committee, it was entitled to have regard to it.
The appellant related the unprofessional conduct which was proved against him to his mental condition. He referred to the improvement he had made and the increased insight which he now had with respect to that conduct. Dr Paterson spoke of the improvements in the appellant’s condition and of the benefit of ongoing psychiatric reviews and psychotherapy.
Although these considerations suggested a favourable prognosis, the committee was entitled to take into account, as one of the factors relevant to the application, that the appellant remained in the recuperation stage.
For these reasons, I am of the view that the hearing was not unfair by reason of any failure to allow the appellant to make appropriate submissions on matters of which he either had notice or raised himself at the hearing.
The committee delivered ex tempore reasons which might have been more happily phrased in some respects. However, the chairperson stated that the issue for consideration was whether the applicant was a fit and proper person to be reinstated. There was no dispute that the appellant had sufficient competence and capacity to practise nursing.
As to the question whether the appellant was a fit and proper person to be reinstated, it was clearly necessary for the committee to consider the circumstances which led to the previous disciplinary hearing and the request by the appellant to have his name removed from the register. These circumstances could not be ignored.
Furthermore, as a result of the appellant acquainting the committee with his psychiatric condition for which he was receiving treatment, it also became necessary to have regard to this consideration in determining whether he should be reinstated. This was particularly so in the light of the appellant’s assertion that the psychiatric condition had a bearing on his conduct which was the subject of the disciplinary hearing.
The committee based its decision on the issues of character and whether the appellant was mentally and physically fit to practise. It is my view that, in so doing, the committee adopted a correct approach.
However, a further question remains. The Board which sat on the disciplinary hearing comprised the chairperson and three members. The committee which was constituted to hear the reinstatement application comprised those three members. Two of them had been Board members, but by the time of the reinstatement hearing, they were no longer on the Board. The third was not a member of the Board. The chairperson who presided over the disciplinary hearing did not sit on the reinstatement application; instead one of the three members who had sat on the earlier hearing presided as chairperson.
I have said that the chairperson for the reinstatement application held a preliminary conference before the hearing of that application. During the conference, the appellant objected to the proposed constitution of the committee for the hearing. He pointed out that the three committee members delegated to hear the reinstatement application had sat on the Board which conducted the disciplinary hearing. He said he objected “because of the perception that a reasonable person would find that there would be bias”. Mr Grant then expressed the view that the matter should proceed with the committee which had been appointed and the chairperson decided to proceed with the committee constituted in the manner previously described.
The appellant has argued on appeal that the decision of the committee should be set aside because of the perception of bias arising from the involvement of the committee members in the previous finding that he was not a fit and proper person to practise nursing.
In order to determine whether the decision should be set aside on the ground of apprehended bias, it is necessary to refer back to the disciplinary hearing. I have said that the appellant’s name was removed from the register prior to that hearing.
At the hearing before the Board on 27 April 2005, Mr Grant, for the Registrar, made the following submission:
He has removed himself from the roll, so the Board is left only with the options, in my submission, that I’ve outlined, but I would invite the Board, in taking what action it does, to make clear its thoughts; if the Board finds that Mr Gabrielsen’s conduct indicates that he is not a fit and proper person to be registered or enrolled as a nurse, that the Board make that finding, if it does so find, clear in its reasons when it hands down its decision as to what is the appropriate disciplinary action to be taken.
I have said that the Board reconvened on 20 May 2005 at the request of the appellant. This was the occasion on which Ms Sheppard represented him. Ms Sheppard made a submission which appears to have been in reference to the earlier request by Mr Grant that the Board indicate the appellant was not a fit and proper person to be registered or enrolled as a nurse. She said:
I certainly would try and resist the Board coming to any conclusions about whether or not, as of this time, my client is a fit and proper person. I hope that’s not the course that you envisage performing because, in my submission, that wouldn’t be appropriate because you’re really here to determine unprofessional conduct and how serious it was; that’s all. If we’re clear about that and you’re not going beyond that, then we don’t have anything to say about that.
There was no further reference to this topic at that hearing.
The Board delivered written reasons for its findings relevant to the disciplinary hearing on 6 June 2006. The appellant has submitted that, as this document was signed only by the chairperson, it is in some way unauthorised. However, it is clear on the face of the document that the chairperson was delivering reasons on behalf of the Board.
The following comments were made in the reasons concerning the request made on behalf of the Registrar that the Board make a finding on whether the appellant was a fit and proper person to be registered as a nurse:
The Crown submitted that, in light of the removal of the nurse’s name from the Register, the Board only had the options pursuant to section 44(2)(a) and (b) in respect of a penalty ie to reprimand the nurse and/or order the nurse to pay a fine not exceeding $5,000. The Board accepts this submission.
The Crown asked the Board to find that the nurse’s conduct indicated he was not a fit and proper person to be registered or enrolled as a nurse.
Although the initial complaint alleged unprofessional conduct, the Board does acknowledge that given its findings of fact, the nurse is not a fit and proper person to be registered as a nurse. If the nurse had not removed his name from the Register, the Board subject to hearing submissions would have given serious consideration to cancelling the nurse’s registration.
And later:
Ms Sheppard made submissions on behalf of Mr Gabrielsen. A particular submission related to the extent to which the Board would make some form of finding that Mr Gabrielsen was not a fit and proper person to be registered as a nurse. She asked the Board not to do so. Although she submitted that the respondent was unwell she has not instructed to ask for the matter to be adjourned in order to obtain a report.
The Board believes that if Mr Gabrielsen makes an application for reinstatement, it is appropriate that the members of the Board considering that application to have the benefit of the views of this Board as to whether Mr Gabrielsen is a fit and proper person to be registered as a nurse.
The Board believes that the conduct speaks for itself in large measure. However, to avoid any doubt, the Board concludes that Mr Gabrielsen is not a fit and proper person to be registered as a nurse. The Board finds that his conduct was dishonourable and disgraceful.
In the judgment of the court in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293, their Honours said:
It was common ground between the parties to the present appeal that the principle to be applied in a case such as the present is that laid down in the majority judgment in R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at pp 258-263. That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.
In the present case, the focus is on reasonable apprehension of bias by reason of prejudgment of the issue for determination in the proceedings. This was the issue in Livesey’s case and the following observations of the court in that case are also relevant for present purposes:
It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact.
The principle is based on considerations of fairness. As Mansfield J pointed out in Singh v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 440 at 451, the making of an earlier decision may provide reasonable grounds to apprehend that the decision-maker would not look critically at that decision, or treat the new information and the additional information which touched on the grounds for that earlier decision with the degree of objectivity required.
A further illustration of the principle is to be found in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70. Deane J noted that it was in the nature of the role of the Australian Broadcasting Tribunal to have an ongoing relationship with licensees under the Act and that, inevitably, all or some members of the tribunal would form general views about the licensees and the character and standards of some of the individuals engaged in broadcasting. This consideration, he said, would require some adjustment of the content of the requirements of procedural fairness. However, he went on to say at 91:
On the other hand, such preconceived general views about a licensee or an employee of a licensee must be distinguished from prejudgment of the very issue involved in an inquiry under the Act. Subject to the question of the operation of the rule or doctrine of necessity, there is nothing in the overall provisions of the Act or in the circumstances in which the Tribunal must function which would warrant the conclusion that prejudgment of the actual issue involved in any inquiry does not constitute disqualifying bias. That being so, the actuality or the appearance of prejudgment of the primary issue involved in the Tribunal’s proposed fresh inquiry is inconsistent with the requirements of procedural fairness which the Tribunal must observe. If the Tribunal as a whole is affected by the actuality or the appearance of such prejudgment, the Tribunal will, subject to the possible operation of the doctrine of necessity, be precluded from embarking upon that proposed inquiry. If the Tribunal as a whole is not so affected but some of its members are, those members will, subject again to the possible operation of the rule of necessity, be disqualified.
In the present case, the Board which conducted the disciplinary hearing accepted the invitation of counsel for the Registrar to make a finding on an issue which was unnecessary for the purposes of the matter before it, but which was central to any future application for reinstatement. The finding was made in anticipation of an application for reinstatement. The chairperson who presided over the disciplinary hearing noted that “it is appropriate that the members of the Board considering that application to have the benefit of the views of this Board as to whether Mr Gabrielsen is a fit and proper person to be registered as a nurse”.
In the circumstances, the fact that the three members of the committee who were constituted to determine the application for reinstatement were members of the Board which made the previous decision gives rise to a reasonable apprehension of bias. If the findings of the Board at the disciplinary hearing had not included the finding that the appellant was not a fit and proper person to practise as a nurse, there would have been no reason why they should not have sat as members of the committee on the application for reinstatement.
Furthermore, the members of a Board who have considered and decided an application for reinstatement would not be prevented, under any circumstances, from being members of a subsequent Board for the purpose of deciding whether the same person is a fit and proper person to practise as a nurse at the time a subsequent application is made.
I restrict my decision to the particular circumstances of this case where the members of the disciplinary Board expressed a firm opinion on what should be the outcome of an application which had not yet been made, but which they anticipated could be made in the near future. As I have said, the finding was made in anticipation that it would be of assistance in the event of an application for reinstatement.
This is not a case of necessity. Counsel for the respondent advised that, by the time of the reinstatement hearing, a new Board had been appointed pursuant to s 5 of the Act. It comprised four members who had been members of the previous Board and seven new members. According to counsel, the four members of the previous Board were disqualified from sitting on the reinstatement application and the remaining seven members had not received any instruction as to their duties as Board members.
This would not have prevented the matter being adjourned while such instruction was given. But, in any event, two of the members appointed pursuant to s 13 of the Act to hear the reinstatement application were not members of the current Board. If it is not necessary for members of the committee to be Board members, there would be nothing to prevent the appointment of persons with suitable qualifications who were not members of the Board which presided over the disciplinary hearing, to sit on the committee to determine the reinstatement application.
In my view, the decision of the committee which determined the application for reinstatement must be set aside and the application remitted for hearing before a differently constituted Board or committee.
There is some dispute as to when the appellant received notice of the decision of the committee. On the prosecution argument, the appeal is out of time, but only by approximately two weeks. In the circumstances, I grant leave for an extension of time within which to appeal to the extent necessary.
It is important to note that nothing which I have said in these reasons is to be taken as the expression of a view, one way or the other, on the merits of the application for reinstatement.
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