Graham v Queensland Nursing Council

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SUPREME COURT OF QUEENSLAND

CITATION:

Graham v Queensland Nursing Council [2009] QCA 280

PARTIES:

JUANITA GLORIA GRAHAM
(appellant/respondent)
v
QUEENSLAND NURSING COUNCIL
(respondent/applicant/appellant)

FILE NO/S:

Appeal No 5179 of 2009
BD No 1967 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)
General civil appeal

ORIGINATING COURT:


District Court at Brisbane

DELIVERED ON:

18 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

11 June 2009

JUDGES:

Chief Justice, McMurdo P and Fryberg J
Separate reasons for judgment of each member of the Court, Chief Justice and Fryberg J concurring as to the orders made, McMurdo P dissenting

ORDERS:

1.   Application for leave to appeal allowed.

2.   Appeal dismissed.

3.   The applicant to pay the respondent’s costs of the application and the appeal to be assessed.

CATCHWORDS:

Appeal and new trial – Appeal - General principles – Right of appeal – Nature of right – Appeals by way of rehearing – When rehearing does not involve hearing de novo – Appeal to District Court of Queensland from Nursing Tribunal

Appeal and new trial – Appeal - Practice and procedure – Queensland – When appeal lies – By leave of court – Generally – Relevant considerations

Profession and trades – Health care professionals – Nurses – Disciplinary proceedings – Appeals – Nature of appeal to District Court of Queensland

Profession and trades – Health care professionals – Nurses – Disciplinary proceedings – Conduct discreditable – Meaning

Statutes – Acts of parliament – Interpretation – Particular words and phrases – Specific interpretations – Interpretation Nursing Act 1976 (Qld) s 31(1)(e) – Meaning of “conduct discreditable to a registered nurse” – Excludes gross negligence

Acts Interpretation Act 1954 (Qld), s 20A
Justices Act 1886 (Qld), s 222, s 223
Medical Practitioners Act 1938 (NSW), s 27(1)(c)
Nursing Act 1976 (Qld), s 31(1)(e)
Nursing Act 1992 (Qld), s 4, s 84, s 85(1), s 87, s 88, s 96, s 104(1), s 104A, s 137, s 138(3)(c), s 158(3), s 159
Statutory Law Revision Act 1995 (Qld), s 5(3)

Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498, considered
Amos v Monsour Pty Ltd[2009] QCA 65, cited
Andrews v Director of Public Prosecutions [1937] AC 576, cited
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, considered
Campbell v Dental Board of Victoria [1999] VSC 113, cited
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47, cited
De Pardo v Legal Practitioners Complaints Committee [2003] WASCA 274, cited
Epstein v Medical Board of Victoria [1945] VLR 309, cited
Fishman v Waters (1983) 4 DLR (4th) 760, cited
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
Graham v Queensland Nursing Council[2009] QDC 121, related
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Legal Services Commissioner v Bradshaw [2009] QCA 126, cited
Loewy v Pharmacy Board…

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Details
Case
[2009] QCA 280
Decision Date

CaseChat Overview and Summary

In the case of Graham v Queensland Nursing Council, the applicant, a registered nurse, appealed against the decision of the Nursing Tribunal which found that their conduct was discreditable and ordered their name to be removed from the register of nurses. The District Court of Queensland was tasked with determining whether the appeal was valid and if it should be allowed. The legal issues before the court were whether the appeal was appropriately brought by leave of the court, and if the Tribunal's decision that the applicant's conduct was discreditable was correct. The court had to consider the nature of the right to appeal, the procedure for bringing an appeal, and the meaning of "conduct discreditable to a registered nurse" under the Nursing Act 1976 (Qld).

The court examined the grounds for the appeal and whether the applicant had a right to appeal by leave of the court. It considered the relevant principles of law and procedure applicable to such appeals, including the circumstances in which an appeal does not involve a hearing de novo. The court also interpreted the phrase "conduct discreditable to a registered nurse" in section 31(1)(e) of the Nursing Act 1976 (Qld), determining that it did not include gross negligence. The court found that the appeal was properly brought and considered the evidence and arguments presented. The court concluded that the Tribunal's decision was correct and that the appeal should be dismissed.

The court found that the application for leave to appeal was valid and that the appeal was properly before it. However, upon reviewing the evidence and the law, the court determined that the Tribunal's finding that the applicant's conduct was discreditable was justified. The court held that the applicant's actions did not amount to gross negligence, but were still discreditable. Therefore, the appeal was dismissed, and the applicant was ordered to pay the respondent's costs of the application and the appeal. This decision confirms the importance of the proper procedure for appeals and the scope of the term "conduct discreditable to a registered nurse" in disciplinary proceedings against nurses in Queensland.

Orders

Orders of the court

1. Application for leave to appeal allowed.

2. Appeal dismissed.

3. The applicant to pay the respondent’s costs of the application and the appeal to be assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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