Nurses Board Of Western Australia and Starrett - [2008] WASAT 156

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: NURSES ACT 1992 (WA)

CITATION: NURSES BOARD OF WESTERN AUSTRALIA and STARRETT [2008] WASAT 156

MEMBER: JUDGE J CHANEY (DEPUTY PRESIDENT)
MS F CHILD (MEMBER)
MS M KROEBER (SESSIONAL MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 2 JULY 2008

FILE NO/S: VR 285 of 2005

BETWEEN: NURSES BOARD OF WESTERN AUSTRALIA
Applicant
AND
EAMON ALBIN STARRETT
Respondent

Catchwords:

Professions - Nurse - Conviction for possession of child pornography - Interim restriction on practice continued throughout proceedings - Nurse ceasing to be registered by non-payment of annual registration fee - Whether fine should be imposed - Principles of penalties in vocational proceedings - Costs

Legislation:

Censorship Act 1996 (WA), s 60(4)
Interpretation Act 1984 (WA), s 37
Legal Practice Act 2003 (WA)
Legal Practitioners Act 1983 (WA)
Nurses and Midwives Act 2006 (WA), Sch 2, s 49, s 50, s 81
Nurses Act 1992 (WA), s 32, s 59B, s 59C, s 61, s 69

Result:

Tribunal declined to make order under Nurses and Midwives Act
Respondent ordered to pay costs assessed by Tribunal

Category: B

Representation:

Counsel:

Applicant: Mr L Buchbinder
Respondent: Self-represented

Solicitors:

Applicant: Bowen BuchbinderVilensky
Respondent: Self-represented

Case(s) referred to in decision(s):

J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)
Jemielita v Medical Board of Western Australia (unreported, WASC, Library No 920584, 13 November 1992)
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115
Motor Vehicle Industry Board and Dawson [2006] WASAT 8
NSW Bar Association v Evatt (1968) 117 CLR 177

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

In May 2005, the Nurses Board of Western Australia issued a notice of interim restriction on practice to Mr Eamon Starrett. The notice was based upon the fact that Mr Starrett had been charged with possession of child pornography.
Mr Starrett initially opposed the proceedings, but eventually agreed to a continuation of the interim restriction pending finalisation of the charges against him. In the meantime, he let his registration as a nurse lapse by non-payment of the annual registration fee.
Mr Starrett was eventually convicted of the charges against him. He indicated to the Tribunal that he had no intention of seeking registration as a nurse, and asserted that, because he was unregistered, the proceedings served no purpose. The Board, however, sought an order that Mr Starrett pay a significant fine and a significant amount of costs.
The Tribunal considered the proper purpose of vocational disciplinary proceedings. It concluded that the objectives of the protection of the public and maintenance of the standards of the profession had been achieved by the interim order that had been made and by Mr Starrett's voluntary deregistration. Having regard to the fact that Mr Starrett's offending conduct did not occur in the course of his duties as a nurse, the Tribunal considered that to impose a substantial fine would be simply to punish Mr Starrett a second time for the offences for which he had been convicted and imprisoned.
The Tribunal considered that Mr Starrett should pay an amount for the reasonable costs of the proceedings up until the point where he advised the Tribunal that he no longer sought to be registered as a nurse. The Tribunal assessed those costs by reference to the Tribunal's records as to the work involved in pursuing the matter.

Introduction

From 1999 until February 2006, Mr Eamon Starrett was a nurse registered under the Nurses Act 1992 (WA) (Nurses Act). He did not seek to renew his registration when his registration fees fell due in February 2006. By virtue of s 32 of the Nurses Act, upon his failure to pay the fee for renewal, he ceased to be registered and his name was removed from the register.
In May 2005, the Nurses Board of Western Australia (Board) placed an interim restriction on Mr Starrett's practice as a nurse by issuing a notice prohibiting him from nursing any person under the age of 18 years. The basis of that notice was twofold. First, the notice alleged a conviction on 10 March 2005 of allowing a property to be used for the taking of amphetamines. Secondly, it alleged Mr Starrett had been charged by the police with one count of possessing child pornography and another charge of possessing an indecent or obscene article. As required by the Nurses Act, the Board then commenced proceedings in the Tribunal for an extension of the interim order.
The proceedings against Mr Starrett in the Tribunal have been reviewed and amended by the Board over a long period of time. Resolution of the proceedings has been delayed, mostly because of an agreed position between the parties to await the ultimate outcome of Mr Starrett's trial in the District Court, and a foreshadowed appeal. Eventually Mr Starrett was convicted of certain offences, and the foreshadowed appeal was not pursued. In the meantime, the Nurses Act had been repealed and replaced by the Nurses and Midwives Act 2006 (WA) (Nurses and Midwives Act) which came into effect on 19 September 2007.
In light of those developments, the Board (which had become the Nurses and Midwives Board under the Nurses and Midwives Act) sought to again amend the application to the Tribunal. It sought such relief as was available under s 81 of the Nurses and Midwives Act against a person who was no longer registered as a nurse. The grounds upon which the relief was sought was the conviction on 10 March 2005 for permitting premises to be used for the purposes of a prohibited drug, and two convictions in the District Court on 6 July 2007 which had been entered against Mr Starrett for possession of child pornography. The grounds assert that "the above convictions individually and/or in combination are of such a nature as render Eamon Albin Starrett unfit to practise as a nurse".
Mr Starrett does not contest the fact of the convictions against him (although he apparently maintains he is innocent of the charges). He advised the Tribunal that he does not intend to seek re-registration as a nurse. The issue which falls for determination is as to the appropriate penalty, if any, to be imposed upon Mr Starrett. That issue involves a consideration of the question as to whether the current Act or the repealed Act determines the penalties available.

The history of the proceedings

It is necessary to retrace the history of the proceedings to understand the position that has now been reached.
As already observed, this matter had its genesis in a notice dated 27 May 2005 issued by the Nurses Board to Mr Starrett. The notice recited that the Board had formed the opinion that his "practise of nursing involves or will involve a risk of imminent injury or harm to the physical or mental health of any person under the age of 18 years and/or may lead to a contravention of a provision of the Nurses Act". The matters said to have given rise to the risk were a conviction of an offence on 10 March 2005 of allowing property to be used for taking amphetamines, and having been charged by the Western Australian Police with one count of possessing child pornography and one count of possessing an indecent or obscene article.
Having issued the notice under s 59B(1) of the Nurses Act, the Board was required under s 59C to "make an allegation to the State Administrative Tribunal about the matter in respect of which the order was made".
The Board lodged an application to the Tribunal on 8 June 2005. The application sought a decision to extend the restriction on the licence to practise that had been imposed by the notice. The Board utilised the form of application applicable for proceedings brought under s 59B(4), which provides a right of review to a person who receives a notice under s 59B(1). Not only was it the incorrect form, but the application failed to identify the substantive allegations to be made to the Tribunal under s 59C as required by the Act.
Accordingly, at the first directions hearing on 19 July 2005, the Tribunal ordered that the matter be adjourned to permit the Board to file and serve allegations as required by s 59C of the Nurses Act.
On 5 August 2005, the Board lodged two further applications. One was an application under s 59C of the Nurses Act seeking an order that the conviction on 10 March 2005 was an offence the nature of which renders the person unfit to practise as a nurse, thus giving rise to a disciplinary matter under s 61 of the Nurses Act.
The second application again purported to be brought under s 59B(4) of the Nurses Act. It relied on the conviction of 10 March 2005, and allegations of the charges of possession of child pornography and possession of an indecent or obscene article which had formed the basis of the s 59B(1) notice, a charge of possession of an implement for use in connection with smoking cannabis, a charge of possession of cannabis and a charge of possession of a pipe for use with smoking cannabis, as grounds for an extension of the restriction set out in the notice.
It is not clear why the Board chose to file two applications. The reference to s 59B(4) of the Nurses Act is misconceived. The proper course would have been to include both the conviction, and the fact of unresolved charges for offences relevant to fitness to perform nursing duties, as grounds for an extension of the period of the interim restriction, or alternatively for some sanction available to the Tribunal under s 69 of the Nurses Act.
It is apparent that the Tribunal treated the two applications as applications under s 59C of the Nurses Act. On 16 August 2005, the Tribunal granted leave to withdraw the original application of 8 June 2005 and dismissed that application. It made directions for the filing of affidavit submissions on the August applications, and listed the matter for hearing on 1 September 2005.
In accordance with the Tribunal's directions, the Board filed an affidavit in support of its application, and the parties filed a statement of agreed facts. Both parties filed written submissions. At that point, Mr Starrett was represented by a solicitor. The Board's submissions expressly did not seek to prevent Mr Starrett from practising nursing altogether. Rather, largely on the basis of the child pornography allegations, the Board sought to restrict Mr Starrett's practise by prohibiting him from caring for patients under the age of 18 years.
Mr Starrett, through his solicitors, sought to oppose the extension of the interim restriction. He did so by pointing to the fact that the only allegation made under s 59C of the Nurses Act was an allegation related to the conviction on 10 March 2005, which did not involve any allegation of use of drugs by him, and resulted in a small fine. It was argued that there was no risk of imminent injury or harm to the physical or mental health of any person resulting from the fact of that conviction. As to the allegations relating to child pornography, the respondent pointed out that they formed no part of an allegation under s 59C of the Act, and therefore could not form the basis of an order of the Tribunal. As to the additional charges relating to cannabis and drug paraphernalia, Mr Starrett's solicitor submitted that, as they form no part of the matters relied upon for the notice under s 59B of the Act, the Board could not rely on them in the proceedings under s 59C.
The hearing on 1 September 2005 was adjourned at the request of the parties to enable the applicant to serve a summons on the Commissioner of Police for the statement of material facts in relation to the charges relating to child pornography and the conviction of 10 March 2005. The hearing was adjourned to 6 September 2005 to enable that to occur, and the interim restriction was extended until that date.
On 6 September 2005, the parties advised the Tribunal that they had agreed that the matter should be adjourned until late March 2006 to enable the charges to be dealt with, on the basis that Mr Starrett agreed to the interim restriction on his practise being extended until further order of the Tribunal. The Tribunal made orders accordingly to that effect. Prior to the hearing, the Commissioner of Police had complied with the summons. The statement of material facts which had been produced in relation to the charges revealed that the possession of an indecent or obscene article was said to have occurred on 24 February 2005, when the police allegedly found an obscene article on a computer at Mr Starrett's residence. The possession of child pornography charge related to 17 images allegedly found on the same computer on the same date.
The matter was due to be heard for directions on 31 March 2006. On 30 March 2006, the solicitors to the Board wrote to the Tribunal with a minute of consent orders seeking a further adjournment of the proceedings on the basis that the criminal charges in the District Court had been remanded to 11 April 2006. The charges referred to were said to be "the same matters that are the subject of the allegations brought by the Nurses Board against Mr Starrett". In accordance with that request, the matter was further adjourned until 7 July 2006.
From July 2006, the matter was again adjourned until 3 November 2006, again because the trial in the District Court had not occurred. Just prior to that date, the Board's solicitors again wrote to the Tribunal advising that the criminal proceedings had been listed for a status conference on 27 February 2007, and seeking a re‑listing of the directions hearing sometime later "preferably closer to the middle of 2007". The matter was listed for 6 July 2007 in accordance with that request.
In June 2007, Mr Starrett's solicitor ceased to act for him. On 6 July 2007, the matter was again adjourned to 7 September 2007 to await finalisation of the criminal proceedings.
On 7 September 2007, the matter came on for directions. By that time, Mr Starrett had been convicted in the District Court, and had been sentenced to a term of imprisonment. He appeared at the directions hearing in person by videolink. In view of his convictions, counsel for the Board advised that the applicant wished to file and serve an amended application. It was directed to do so by 21 September 2007. The matter was then adjourned to 5 October 2007 for directions in order to enable Mr Starrett to obtain legal advice and to consider the further conduct of the matter.
In accordance with the directions, the Board filed an amended application. The application sought "such orders under s 69 of the Nurses Act as SAT shall deem appropriate". The grounds upon which the orders were sought were a conviction on 10 March 2005, and two convictions on 6 July 2007. The first of those convictions was that, on 14 September 2004, Mr Starrett possessed child pornography contrary to s 60(4) of the Censorship Act 1996 (WA). The second related to a similar charge relating to possession on 22 September 2004. It can be noted that the two District Court convictions are for different charges from those which provided the basis for the original s 59B(1) notice, and were not the subject of any allegations to the Tribunal at any time prior to the amendment in September 2007. No explanation has been provided to the Tribunal as to what happened to any of the charges referred to in the earlier application, save that, in his submissions on penalty, Mr Starrett asserts (and we accept) that the cannabis related charges were dropped by the police for lack of evidence. The disparity between the original charges referred to and the ultimate convictions was not drawn to the Tribunal's attention at any time prior to the filing of submissions on penalty. As a result, the Tribunal wrongly assumed that the District Court proceedings related to the charges upon which the Board's initial action was predicated.
In any event, when the matter came on for directions on 5 October 2007, Mr Starrett again appeared by videolink. He indicated that an appeal against convictions was being undertaken, and he identified a solicitor with the Legal Aid Commission in Western Australia who was dealing with the matter. At his request, the matter was adjourned to May 2008 to await the outcome of the appeal against convictions. However, in December 2007, the Board's solicitors wrote to the Tribunal advising that they had learnt that no appeal had been commenced, and sought re-listing of the matter for directions. That occurred on 1 February 2008.
At that directions hearing, Mr Starrett advised the Tribunal, for the first time, that, since he had not renewed his registration in February 2006, he was no longer a registered nurse, and understood (correctly) that his name had therefore been removed from the register. He indicated that he had no intention of ever returning to nursing and that the proceedings served no purpose.
In light of that advice, the Tribunal adjourned the matter for 14 days in order to enable the Board to consider the position and hopefully reach agreement with the respondent to finally dispose of the proceedings.
Shortly thereafter, the Tribunal received a letter from Mr Starrett advising that the Board's solicitors had requested that he sign a consent order agreeing to payment of a fine of $5000 pursuant to s 81(H) of the Nurses and Midwives Act, and to pay the Board's legal costs fixed in the sum of $22,628.40. Not surprisingly, Mr Starrett did not agree. In his letter to the Tribunal, Mr Starrett has confirmed that he had not paid his registration since it expired in February 2006. He said that he telephoned the Board in June 2005 and enquired as to how he could deregister himself and was informed that, by not paying his registration fees, his name would automatically be removed from the register. He said that he had not worked as a nurse in any capacity since May 2005. He asserted that, if the Board had ever asked him of his intentions, he would have told them he had no intention of continuing his nursing career regardless of the outcome of the trial. He considered that the Board had unduly prolonged the proceedings and he should not be called upon to pay its costs.
The matter came on again for directions on 15 February 2008. At that time, the Board indicated that it proposed to again amend its application so as to bring the matter under the Nurses and Midwives Act which had come into operation in September 2007.
The amended application sought "such orders under s 81(1)(a), (c), (d)(ii) and (iii) and (h) of the Nurses and Midwives Act 2006 as SAT shall deem appropriate". The grounds on which orders are sought are unchanged from those specified in the amended application filed on 13 September 2007.
The types of orders specified in s 81(1)(d) of the Nurses and Midwives Act concern provision of or payment for further services to be provided to a patient or reductions or refunds of fees paid by a patient. Orders of that type clearly are irrelevant to the issues before the Tribunal in this matter. The relevant powers for the Tribunal if jurisdiction is to be exercised under s 81(1) of the Nurses and Midwives Act is a jurisdiction to:
"(a)decline to make an order of requirement under this subsection;
…
(c)caution or reprimand the person;
…
(h)order the person to pay a penalty not exceeding $25,000."
If the matter were to be dealt with under s 69 of the Nurses Act, the powers available to the Tribunal (where the person is no longer registered as a nurse) were to decline to make an order, to order the name of the person be struck off the register, to suspend the person from practice for up to two years, to impose a fine not exceeding $5,000 or to censure the person.

The Tribunal's powers

The applicant submits that, the Nurses Act having been repealed, the respondent should now be dealt with in accordance with the penalties prescribed by s 81 of the Nurses and Midwives Act. In particular, the Board seeks the imposition of a fine, an amount having regard to the maximum fine of $25,000 provided in s 81(h) of the Nurses and Midwives Act. It makes that submission on the basis of a contention that "it was the intention of Parliament for the provisions of the Midwives Act to have retrospective effect and to apply to applications that had already been commenced before SAT under the Nurses Act when the Nurses and Midwives Act came into effect".

That submission appears to be based upon the transitional provisions found in Sch 2 to the Nurses and Midwives Act. The schedule provides that certain things done under the former Act, such as registrations granted, certificates issued, and interim orders made, should be treated as if they were done under the relevant provisions of the Nurses and Midwives Act. It also provides that investigations commenced, complaints being dealt with by the former Board, and matters referred to the Professional Standards Committee under the previous legislation, should be dealt with as though they were being dealt with under the relevant provisions of the Nurses and Midwives Act. None of the transitional provisions deals with the applicable penalty for conduct occurring whilst the Nurses Act was in force but ultimately dealt with by the Tribunal after its repeal.
Although conduct occurring prior to commencement of the Nurses and Midwives Act may be dealt with under that Act, we do not accept that the penalty provisions of the Nurses and Midwives Act have retrospective application. That question, in the context of the Legal Practice Act 2003 (WA) was recently comprehensively analysed by Beech AJA (with whom Martin CJ and Buss JA agreed) in Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115. Among the questions considered was whether conduct by a legal practitioner occurring at a time when the Legal Practitioners Act 1893 (WA) (1893 Act) was in force could be dealt with as "unsatisfactory conduct, under the Legal Practice Act 2003 (WA) (2003 Act). His Honour concluded that the conduct regulated by the 2003 Act included conduct which occurred prior to the date upon which that Act came into force. It therefore created a liability of a practitioner under the 2003 Act which is co‑extensive with the liability which would have existed under the 1893 Act (at [141]).
His Honour concluded that the preferable construction of the legislation is as follows:
"(a)The new Disciplinary Tribunal had (and, consequently, the State Administrative Tribunal has) jurisdiction under s 185 of the 2003 Act in respect of conduct occurring before or after 1 January 2004.
(b)In exercising that jurisdiction, the Tribunal must act consistently with the presumption against interpreting statutes as retrospectively altering substantive rights and obligations.
(c)In so acting, the Tribunal could deal with conduct occurring prior to 1 January 2004 as unsatisfactory conduct only if it were conduct of a species which rendered the practitioner liable to sanction under the 1893 Act (ie, illegal conduct, unprofessional conduct, or undue delay or neglect in the practice of the law) and then impose sanctions only to the extent permitted under the 1893 Act."
The disciplinary matters formally dealt with identified in s 61 of the Nurses Act are now reflected in s 49 and s 50 of the Nurses and Midwives Act. In particular, s 49(c) specifies that a conviction of an offence of a nature which renders a person unfit to practise as a nurse or midwife constitutes a disciplinary matter. Other than the reference to midwife, that provision is identical to s 61(b) of the Nurses Act, which identified matters in respect of which the former Board could deal with complaints.
Section 81(2) of the Nurses and Midwives Act specifies the powers which may be exercised by the Tribunal in respect of a person "who was a nurse or midwife when the disciplinary matter occurred but who is no longer a nurse or midwife". There is no temporal limitation on conduct which may be the subject of disciplinary action under the Nurses and Midwives Act. In our view, the situation in relation to disciplinary proceedings under the Nurses and Midwives Act is the same as explained by Beech AJA in the passage set out above. That is, the respondent must be dealt with under the provisions of the Nurses and Midwives Act, but the Tribunal must act consistently with the presumption against interpreting statutes as retrospectively altering substantive rights and obligations. The substantive obligation in this case relates to the convictions relied upon, and there is no difference between the two statutes in that respect. There is, however, a difference as to the available penalties, and the Tribunal is limited to the imposition of sanctions only to the extent permitted under the Nurses Act.
The effect of that conclusion is that, if the Tribunal were to impose a fine, it would be based upon the maximum fine of $5,000 provided for under the Nurses Act, the convictions, and the conduct upon which the convictions were based, all having occurred prior to the Nurses and Midwives Act coming into force.

What is the appropriate penalty?

These proceedings were commenced because charges were laid which, if proven, justified real concerns as to Mr Starrett's fitness to work as a nurse. The fact of the conviction on 10 March 2005 of permitting premises to be used for the purposes of a prohibited drug, would not, in our view, have justified the restriction on practise which the Board initially imposed. Given that there is no evidence of drug use by Mr Starrett himself, given the relatively small penalty that was imposed by the court, and given his untested explanation as to the circumstances in which another person came to use his premises for the injection of drugs, we have grave doubts that, taken by itself, the conviction warranted disciplinary action. If it did, a reprimand would be the appropriate disposition.
The two convictions for possession of child pornography are, of course, of a different class. We consider that convictions for offences of that nature, involving, as they did, two separate occasions and multiple child pornographic images, is sufficient to render a person unfit to practise as a nurse. Were Mr Starrett registered, we would take the view that the convictions recorded against him should result in his name being struck from the register. Surprisingly, the Board's submissions assert that it has not "at this time sought to prevent Mr Starrett from practising nursing altogether". Rather the Board has simply sought to restrict his employment as a nurse so as to avoid contact with patients under the age of 18 years.
It is certainly true that the interim restriction, continued by the Tribunal, was in those terms. It is also true that, Mr Starrett having ceased to be registered, an order for his name to be struck from the register is no longer available under the Nurses and Midwives Act. The present position is that, however, Mr Starrett's name having been removed from the register pursuant to s 32(2) of the Nurses Act, he might seek to renew registration on payment of all outstanding fees pursuant either to an accrued right to do so under s 32(3) of the Nurses Act (being arguably a right to be preserved by s 37 of the Interpretation Act 1984 (WA) or alternatively, under s 36(2) of the Nurses and Midwives Act. Each of those sections gives an entitlement "subject to this Act" to have a name restored to the register on payment of all outstanding fees. The proviso that the entitlement is "subject to this Act" brings to bear, however, the requirement to be a fit and proper person for registration. The Board would be entitled to decline registration if it formed the view that, by reason of the convictions, Mr Starrett was not fit and proper to be registered as a nurse.
The offences for which Mr Starrett has been convicted are serious. Despite what appears, from the sentencing judge's remarks, to have been a strong case against him, Mr Starrett apparently continues to deny his guilt and thus shows no remorse. We would expect that, if Mr Starrett were ever to seek re-registration, his application would be scrutinised closely to ascertain whether, in whatever circumstances may then prevail, he could meet the "fit and proper" test, and if so, whether registration should be subject to any appropriate conditions. In the present circumstances, we would not think it likely he would meet the "fit and proper" test.
It is against that background that the Board does not now seek orders from the Tribunal limiting or prohibiting Mr Starrett's right to registration.
The Board seeks a substantial fine and reprimand against Mr Starrett. It does so on the basis that, as the sentencing judge in the District Court observed, the offences which Mr Starrett were convicted are serious offences. That is clearly true. The Board noted that the judge imposed a sentence of imprisonment, and submitted that "given the sentencing options open included a non‑custodial sentence and the imposition of a fine, the applicable fine under the Nurses Act should reflect the same level of seriousness and should be not less than one‑third of the maximum".
In our view, that submission misconceives the role of professional disciplinary proceedings. It is well established that the object of sanctions in relation to vocational matters is the protection of the public interest, not the punishment of a practitioner (see NSW Bar Association v Evatt (1968) 117 CLR 177 at 183 ‑ 184. As well as the protection of the public, penalties in vocational matters serve to maintain the high standards and good reputation of a profession generally in the eyes of the community. It is also necessary to deter others who may be of a like mind to transgress in the future (see Jemielita v Medical Board of Western Australia (unreported, WASC, Library No 920584, 13 November 1992) per Owen J.
In this case, the Board moved to protect the public by restricting the mode of practise of nursing by Mr Starrett. Although, when the matter was first listed for hearing in late 2005, Mr Starrett filed submissions opposing that position, he did not ultimately pursue those arguments. From then on, he consented to the continuation of the interim restriction until the question of the criminal charges against him was resolved. To the extent that the public interest required Mr Starrett not to practise as a nurse, that objective was achieved by the interim restriction and by his failure to renew his registration in February 2006.
Mr Starrett was ultimately found guilty of serious offences ‑ although apparently not the offences which caused the initial concern on the part of the Board. Those findings of guilt occurred some 18 months after he had ceased to be entitled to practise as a nurse. He received a term of imprisonment by way of punishment for the conduct constituting the offence. It is no part of disciplinary proceedings to punish him again. A sanction is only necessary to the extent that it protects the public, or alternatively serves to maintain the public confidence in the profession, or deter others from like transgressions.
A fine in these proceedings would clearly serve no purpose in relation to the protection of the public. Nor do we consider that the imposition of a fine would be necessary to demonstrate to the public that conduct of this nature is considered serious by the Board and by the nursing profession. The Act contemplates that conviction gives rise to disciplinary action where the offence concerned is such as to render an offender not fit and proper to perform the duties of a nurse. If an offence is of that nature, and the offender is not fit and proper for the purposes of the Act, then their registration should be cancelled or suspended. It is by achieving the offender's removal from the profession that public confidence in the profession is retained. To impose a fine, but to allow a nurse to continue to practise where they have been convicted of an offence rendering them not fit to practise would not serve the stated objective.
That is not to suggest that a fine might never be appropriate where a person has ceased to be registered by the time their complaint is dealt with. Section 81(2), which preserves the power to impose a fine for a person who is no longer registered, clearly contemplates otherwise. One might readily imagine conduct involving carelessness, incompetence, impropriety or other conduct in the course of a nurse's practice, not punishable under the criminal law, which might properly attract a fine notwithstanding that the perpetrator is no longer practising nursing. Where, however, as here, the conduct giving rise to the convictions occurs completely independently of the offender's course of practice as a nurse, is severely punished under the criminal law and results in the offender ceasing practice as a nurse, it would be a rare occasion that the imposition of an additional penalty could be justified, having regard to the objectives of disciplinary proceedings. Similar considerations apply to the issue of a reprimand. It would simply serve no purpose. In our view, notwithstanding that a disciplinary matter exists, the appropriate outcome of these proceedings, given the particular circumstances of the case, is to decline to make any order or requirement under s 81 of the Nurses and Midwives Act.

Costs

The general approach to costs by the Tribunal in relation to vocational regulatory matters was explained by the President of the Tribunal in Motor Vehicle Industry Board and Dawson [2006] WASAT 8 at [44] – [48] where he said:
"Where proceedings are commenced by a vocational regulatory body (such as the Board) against a person affected by a vocational Act (such as Mr Dawson), the Tribunal will usually make an order for costs in favour of the vocational regulatory body where it is successful in obtaining an order in the proceedings. In Medical Board of Western Australia and Roberman [2005] WASAT 81(S) at [30] the Tribunal (Judge John A Chaney SC, Deputy President, presiding member) observed in relation to s 87(2) that:
'Where a regulatory authority successfully brings a complaint of conduct which, if proved, justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. That is because such bodies perform a function which promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application. The question of an award of costs is, of course, a matter of discretion to be exercised in the circumstances of each case.'
With those observations the Tribunal concurs.
In the Roberman case, however, the Medical Board of Western Australia was unsuccessful in relation to some of the allegations made against the medical practitioner. For that reason the Tribunal in its discretion considered it was appropriate that the practitioner only pay one-third of the costs of the Medical Board. In so doing the Tribunal implicitly recognised that a person affected by proceedings instituted by a vocational regulatory body should not have to bear the costs of the proceedings or contribute to the costs of those part[s] of the proceedings which were not successfully maintained.
The decision in the Roberman case does not support the view, however, that an affected person in such proceedings is entitled to an award of costs for the portion of the proceedings in which they were successful. If this approach were to be adopted, vocational regulatory bodies may well feel inhibited in commencing proceedings that should be commenced and maintained in the public interest even though 'success' cannot be guaranteed. Consequently, the Tribunal considers that, ordinarily, unless it can be demonstrated that an application made by a vocational regulatory body lacked any reasonable basis or was not made in good faith, costs should not be awarded against a vocational regulatory body simply because the application was not successful.
Of course, in every case the Tribunal retains the discretion under s 87(2) of the SAT Act to order costs in the circumstances of the case."
Although we have determined that the ultimate outcome of these proceedings should be to decline to make an order or requirement under s 81, that is not because of any lack of merit in the application. It was appropriate, in accordance with the proper regulation of the nursing profession, for the Board to have acted as it did in issuing an interim restriction on practice, and maintaining the proceedings, at least until it became evident that Mr Starrett did not intend to seek re-registration, and did not intend to oppose the proceedings.
Mr Starrett asserts, in his submissions on penalty, that the Board simply assumed that he wished to continue his career, and had he been asked, he would have informed it of his intention never to work again as a nurse. His conduct during the course of the proceedings is not, however, consistent with that assertion. When the interim restriction on practice was listed for hearing in September 2005, Mr Starrett, then represented by a lawyer, filed submissions and an affidavit opposing the interim restriction. Although the contested hearing did not proceed, and Mr Starrett did not resist the continuation of the interim restriction, it was clearly implicit in his conduct thereafter, up until February 2008, that he proposed to resist the proceedings. Various directions hearings throughout 2007 were adjourned on the basis that resolution of the matter should await the outcome of the criminal charges in the District Court, or latterly, a foreshadowed appeal against those convictions. The assumption underlying those adjournments was that, were Mr Starrett to be acquitted of the charges against him, he would argue that he should be entitled to continue to practise as a nurse. If, as he now suggests, he took a decision in February 2006 that, regardless of the outcome of the proceedings, he would not seek registration as a nurse, there would have been no point in deferring the proceedings in the Tribunal to await the outcome of the criminal charges. We do not accept Mr Starrett's contention that the Board should not have made the assumption which it did. The same assumption was made by the Tribunal, and it must have been obvious to Mr Starrett and his legal advisor, that that assumption underlay the Tribunal's agreement to defer final resolution of the proceedings. He could have, at any time, disabused the parties and the Tribunal of that assumption, but did not do so.
The first time Mr Starrett indicated that he had no intention of returning to nursing was at a directions hearing on 1 February 2008. It was apparent, at that point, that the proceedings had achieved their proper purpose, namely the continuation of the restrictions on Mr Starrett's work as a nurse. It was also apparent that, being unregistered, Mr Starrett could not return to work as a nurse until the Board considered he was fit and proper for registration.
In light of Mr Starrett's advice, the Board was invited to liaise with him with a view to finalising the proceedings. As earlier mentioned, the Board then pressed for a fine based on the increased maximum under the new legislation, and the payment of costs in excess of $22,000. We do not consider it reasonable that the Board should be entitled to costs after 1 February 2008, it having pursued payment of a fine on the basis of new legislation to which Mr Starrett had no liability. The Board was justified in seeking costs against Mr Starrett at that point, although on the information before us, we do not consider that the costs then claimed were reasonable.
Since 1 February 2008, the Board has attended a further directions hearing and filed written submissions in relation to the question of penalty and costs. In relation to costs, those submissions are brief, but seek payment of costs in the sum of $32,655.18. That amount is significantly in excess of the amount apparently sought from Mr Starrett in the proposal put following the directions hearing on 1 February 2008. How the additional $10,000 is said to have been incurred is not apparent.

The Board provided, with its submissions, a schedule of the "breakdown of legal fees and disbursements incurred to date". That schedule reads as follows:
"Telephone calls – a total sum of $5,996.20
Letters, emails and faxes – a total sum of $6,889.70
Filing fees, service fees and other disbursements - a total of $3,918.25
Court attendances, conferences and preparation of documents – a total of $15,851.03
Total $32,655.18."
In J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S), the Tribunal said at [38]:
"The procedures of the Tribunal are designed to achieve the objectives prescribed by s 9 of the SAT Act. The Tribunal strives to ensure that its procedures are proportionate to the nature of the matters in issue. On occasions, matters before the Tribunal are difficult and complex, sometimes involving lengthy hearings. This is not such a matter. In the unusual event that an order for costs is made by the Tribunal, the Tribunal's obligation to minimise the costs to parties will be reflected in the costs assessed by the Tribunal as recoverable. That approach reflects an expectation that representatives of parties before the Tribunal will approach a proceedings in a way that minimises costs to their clients. If clients choose to approach proceedings before the Tribunal in a way which substantially increases costs for them, it will be a rare case where that increase in costs will be recoverable through a favourable costs order."
Those comments are apposite to the present proceedings.
Where the Tribunal orders a party to pay costs, the amount payable should be referable to a reasonable allowance for the work reasonably done in the matter. In this case, it would have been necessary for the Board, having become alerted to Mr Starrett's conviction and pending charges, to undertake some investigations, and instruct its solicitors to prepare the notice of interim restriction, and the application to the Tribunal. We think the reasonable allowance for that work would be $1,500. After the proceedings were commenced, up until 1 February 2005, there were eight directions hearings. All of them were short, and simply involved adjournments to await the outcome of the District Court proceedings. We think a reasonable allowance for those directions hearing, including taking instructions and reporting to the client would be $200 each, amounting in total to $1,600. New applications were prepared in August 2005. We do not consider that the respondent should be called upon to pay the costs of preparation of those documents. They were necessary to cure defects in the form of the initial application, and should not be the responsibility of Mr Starrett.
It was initially anticipated that there was to be a defended hearing on 1 September 2005. It was necessary for the Board's solicitors to prepare an affidavit, agreed facts and submissions in relation to that hearing, and to prepare for oral argument. We think a reasonable allowance for that work is $3,000.
The hearing on 1 September 2005 involved conferral between the solicitors before the matter was ultimately adjourned. We think a reasonable allowance for the hearing on 1 September 2005 is $500.
On two occasions, directions hearings were adjourned by consent. That involved preparation of a minute of consent order and a letter to the Tribunal. We think on each of those occasions, an allowance of $100 is appropriate.
In September 2008, an amended application was filed. That was necessary by reason of the change in circumstances flowing from the applicant's conviction in the District Court. We consider an allowance of $250 is appropriate for the preparation of that document.
The amounts referred to above total $7,050. That amount does not include any disbursements. The schedule provided by the Board identifies $3,918.25 said to be "filing fees, service fees and other disbursements". No breakdown of those expenses is provided.
According to the Tribunal's records, no filing fees or other disbursements were paid to the Tribunal. No doubt some fees would have been required to serve the initial notice on Mr Starrett as reflected in an affidavit of service lodged with the Tribunal. It is not apparent how the first application to the Tribunal was served, but the solicitor filed an address for service before the first directions hearing. There was no suggestion that service on Mr Starrett was attended by any difficulty at any stage. It is reasonable to make some allowance for service of the initial notice and the initial application, but otherwise, in the absence of any explanation as to how disbursements are said to have been incurred, we would not be prepared to allow any greater amount. An appropriate allowance for disbursements by way of service is $250. That gives rise to a total amount of $7,300.
In our view, it is consistent with the Tribunal's objectives to resolve the assessment of costs in a way which minimises any further costs to the parties. It is preferable, therefore, to allow costs in a sum which represents the Tribunal's broad assessment of a reasonable allowance for the work done in relation to the matter for which the respondent should be held liable, rather than embark upon a detailed, lengthy and expensive process of analysing every item of costs said to have been incurred by the Board. We expect that, within the $32,655 claimed by the Board, costs may have been incurred in the Board's solicitors providing advice as to the operation of the legislative provisions giving jurisdiction to the Tribunal, which were relatively new at the time these proceedings were instituted. We also expect that the solicitors were required to confer with Board representatives and provide advice in relation to the effect on these proceedings of the repeal of the Nurses Act and its replacement by the Nurses and Midwives Act, an issue which was significant in the Board's position on penalty. We do not consider that Mr Starrett should be held responsible for costs involving those wider issues.
In the circumstances, we consider that Mr Starrett should be ordered to pay to the Board costs in the sum of $7,300.

Orders

1.Notwithstanding that a disciplinary matter exists, the Tribunal declines to make any order or requirement under s 81 of the Nurses and Midwives Act.
2.The respondent is ordered to pay costs in the sum of $7,300 to the Nurses Board of Western Australia.

I certify that this and the preceding [72] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER