NURSING AND MIDWIFERY BOARD OF AUSTRALIA and ALLISON
[2020] WASAT 136
•15 SEPTEMBER 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION: NURSING AND MIDWIFERY BOARD OF AUSTRALIA and ALLISON [2020] WASAT 136
MEMBER: PRESIDENT PRITCHARD
HEARD: 15 SEPTEMBER 2020
DELIVERED : 15 SEPTEMBER 2020
PUBLISHED : 2 NOVEMBER 2020
FILE NO/S: VR 25 of 2020
BETWEEN: NURSING AND MIDWIFERY BOARD OF AUSTRALIA
Applicant
AND
STEVEN ALLISON
Respondent
Catchwords:
Application for dispensation of requirement for service pursuant to s 45(3) of the State Administrative Tribunal Act 2004 (WA) - Where the absence of injustice is not a requirement for exercise of both limbs of s 45(3) of the SAT Act - Where applicant has made all reasonable attempts to give a copy of the application to the notifiable person but has been unsuccessful - Where applicant gave copy of application to respondent's last representative - Where it is unlikely that the application has been brought to the attention of the respondent - Where respondent not attempting to evade service - Where inability to proceed with the action has implications for the protection of the public which underlies regulatory proceedings
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010, s 222
Matrimonial Causes Act 1899 (NSW)
State Administrative Tribunal Act 2004 (WA), s 45, s 45(1), s 45(1)(a), s 45(3), s 45(3)(a), s 45(3)(b), s 84
State Administrative Tribunal Rules 2004 (WA), r 20, r 46
Result:
Application granted
Category: B
Representation:
Counsel:
| Applicant | : | Ms DM Charlesworth |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | Clayton Utz |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Abbott v Clark [2006] NSWSC 111
Esanda Finance Corporation and Potter [2007] WASAT 278
Grimaldi v Grimaldi (1941) 58 WN (NSW) 92
Legal Practitioners Complaints Committee and Richardson [2006] WASAT 251
Saeed v Minister for Immigration and Citizenship (2010) 241 CRL 252
REASONS FOR DECISION OF THE TRIBUNAL:
(These reasons were delivered orally at the conclusion of the hearing. They have been edited to correct matters of grammar and infelicity of expression.)
Introduction
In these proceedings the Nursing and Midwifery Board of Australia (Applicant) pursues disciplinary action against Mr Steven Allison (Respondent) under the Health Practitioner Regulation National Law (WA) Act 2010 (National Law), and alleges that he has behaved in a way that constitutes professional misconduct (Application). The Applicant alleges that the Respondent had photos and videos of a young person in states of undress, or naked, some of which were said to have been obtained by accessing her iPad without her consent, and others said to have been taken without her knowledge. Criminal proceedings were commenced against the Respondent, but ultimately those proceedings were not pursued.
The Applicant commenced this Application in March 2020 and since that time has been unable to serve the Respondent with notice of the Application, despite numerous attempts to do so. The Applicant now makes an application to overcome that difficulty and to progress the Application. The Applicant makes an application for an order, pursuant to s 45(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), to dispense with service, on the basis that the Applicant has made all reasonable attempts to effect service (Service Application). The order sought is set out in the Applicant's minute of proposed orders of 11 September 2020.
For the reasons which follow, I am persuaded that it is appropriate for the Tribunal to make an order dispensing with the requirement for service in this case. I have made that determination with some misgivings, given that the order sought involves a departure from fundamental requirements of natural justice. In the end, however, having regard to all of the circumstances of the case, I am persuaded that the appropriate exercise of the Tribunal's discretion is to make the order sought.
Efforts made to serve the Respondent
The evidence relied upon by the Applicant has been set out in the affidavit of Ms Matilda Kerryn Barton Stoneman, dated 10 August 2020, and a supplementary affidavit of Ms Stoneman, dated 11 September 2020. Those affidavits outline in some detail the very considerable efforts made by the Applicant to endeavour to serve the Respondent with a copy of the Application.
In summary, those efforts have been made by leaving a copy of the Application at the last known address of the Respondent; by providing a copy of the application to the Australian Nursing Federation (ANF), which previously represented the Respondent in the course of investigations which preceded the commencement of the Application (Investigation); and numerous attempts to locate the Respondent by other means, to which I will refer in a moment.
Despite those attempts, it seems to me that it is very unlikely that the proceedings have been drawn to the attention of the Respondent. It is appropriate to demonstrate the basis for that observation by reference to the fact that the Application was left at the Respondent's last known residential address. The reason why it is unlikely that the Application has been brought to the Respondent's attention by that means is that the residence was sold by the Respondent and his then partner some years ago, and there is nothing to suggest that there would be any basis on which leaving a copy of the Application at that residence would result in him receiving notice of it.
In relation to the position of the ANF, that organisation previously represented the Respondent in the Investigation. As at April 2019, it appears that the ANF was still in contact with the Respondent and was able to obtain instructions in relation to matters related to the investigation. However, sometime between April 2019 and April 2020 it appears that the ANF became unsure about whether it had a means to actually contact the Respondent.
At that point, the ANF advised the Applicant that it did not have instructions to represent the Respondent in the Application, nor did it have instructions to provide to the Applicant any contact information it may have had in relation to the Respondent. More importantly, as of 7 April 2020, the ANF was unable to confirm whether the Respondent had received notice of the Application as a result of attempts it had made to contact him.
As already mentioned, the Applicant has taken steps to endeavour to ascertain the whereabouts of the Respondent. Information provided by the ANF to the Applicant's solicitors in April 2019 indicated that the Respondent was at that stage living overseas; had no intention to return to Australia; had no intention to work as a nurse; was not currently registered as a nurse; had no intention to seek registration as a nurse; and offered an undertaking at that stage not to seek registration as a nurse.
The information provided by the ANF to suggest that the Respondent was overseas appears to be consistent with the lack of success that the Applicant has since had in locating the Respondent in Western Australia or, for that matter, in Australia. Searches made by process servers through the usual means on the Electoral Roll and otherwise have been fruitless.
The final means by which the Applicant has attempted to serve the Respondent has been by using the last known email address that it had for the Respondent, which had been used by him during the Investigation. However, the Applicant's attempt to serve the Respondent using that address was also unsuccessful. A message was received in response to the attempted email service, which indicated that the email was not deliverable because the address could not be found or was unable to receive email. The same reply was received in response to emails sent to that address by process servers engaged by the Applicant.
Section 45(3) of the SAT Act
Having outlined that factual background, I now turn to s 45(3) of the SAT Act, which provides that:
The Tribunal may make an order dispensing with the requirement to give a copy of an application to a notifiable person specified in the order if satisfied -
(a)that the applicant has made all reasonable attempts to give a copy of the application to the notifiable person, but has been unsuccessful; or
(b)that the making and hearing of the application without notice to the notifiable person would not cause injustice.
It is appropriate to see s 45(3) of the SAT Act in its context. The starting point for that context is s 45(1)(a) of the SAT Act, which provides that:
When an application is accepted by the executive officer the applicant is to give a copy of the application to -
(a)each other party[.]
That requirement in s 45(1) of the SAT Act for the service of an application on each other party reflects the fundamental principle of natural justice that a party who is at risk of having orders made against them is entitled to be put on notice of the allegations and given the opportunity to be heard in response.[1] But it is equally clear that Parliament is entitled to abrogate the requirements of natural justice if it so chooses, provided it does so unambiguously.[2]
[1] Esanda Finance Corporation and Potter [2007] WASAT 278 at [32].
[2] Saeed v Minister for Immigration and Citizenship (2010) 241 CRL 252.
In the present case it is clear that Parliament has abrogated that requirement of natural justice by s 45(3) of the SAT Act. The terms of s 45(3) establish that there are two limbs which constitute alternative threshold requirements to enliven the discretion that therein lies in the Tribunal to make an order dispensing with the requirement for service. The two alternative limbs are that the applicant has made all reasonable attempts to give a copy of the application to the notifiable person, but has been unsuccessful or, alternatively, that the making and hearing of the application without notice to the notifiable person would not cause injustice.
It is notable that the absence of injustice is not a requirement of each limb, nor is the unsuccessful attempt to serve an application a requirement in each of these threshold requirements. It appears, therefore, to be the case that for the purposes of s 45(3)(b), Parliament contemplated cases where making an application without any notice at all to the other party would not cause injustice and necessarily contemplated that in such cases there would be some good reason to proceed without even attempting service. Alternatively, it is possible for a party to seek an order under s 45(3)(a) after having attempted service without success, without having to demonstrate that there would not be any injustice to the notifiable person if the proceeding is determined without notice to them.
However, the satisfaction of either of the threshold requirements is not the end of the matter. A discretion then clearly lies in the Tribunal as to whether to make an order dispensing with the requirement for service.
The threshold requirement in s 45(3)(a) of the SAT Act is met in this case
The question of what constitutes 'all reasonable attempts' to give a copy of an application to a notifiable person must be informed by the requirements for service, as set out in the State Administrative Tribunal Rules 2004 (WA) (Rules). Those requirements for service contemplate a variety of ways in which service might be undertaken. It is not necessary to recount all of those here, but it suffices to say that the endeavours made by the Applicant to serve the Respondent have pursued all available means for service contemplated in the Rules.
Actual personal service has not been possible, but service at the Respondent's last known address has been pursued. Service by email has been pursued, and service through the Respondent's last known representative (the ANF) has been pursued, all without success.
I am satisfied that the Applicant has made all reasonable attempts to give a copy of the Application to the Respondent, but has been unsuccessful in bringing the Application to his attention.
The exercise of discretion under s 45(3)
I turn then to the question of the discretion that lies in the Tribunal as to whether to make an order dispensing with the requirement for service. There appears to be a surprising lack of authority in relation to the power in the Tribunal, or in analogous decision making bodies, to dispense with service.
Two authorities in particular, which are of relevance, have been drawn to my attention. The first is the decision of the New South Wales Supreme Court in Abbott v Clark.[3] In that case, Hamilton J observed that there was:[4]
[R]emarkably little authority, bearing in mind that orders dispensing with service are made in the Court from time to time, as to the principles upon which applications for dispensation with service can be dealt with.
[3] [2006] NSWSC 111.
[4] Abbott v Clark [2006] NSWSC 111 at [5].
Justice Hamilton observed:[5]
The onus is, of course, very squarely on the person seeking the dispensation and real grounds must be made out for the dispensation to occur.
[5] Abbott v Clark [2006] NSWSC 111 at [6].
His Honour referred to an early decision, Grimaldi v Grimaldi[6] which concerned an application under the Matrimonial Causes Act1899 (NSW). In that case, the Court noted that the consequence of being unable to serve, and of being unable to obtain a dispensation from the requirement for service, would be that the applicant for a divorce petition would be denied that form of relief, despite their best attempts to ensure that the respondent to the proceedings was able to be served.
[6] (1941) 58 WN (NSW) 92.
Another circumstance relevant to the exercise of discretion, is where the respondent has taken steps to evade service. Observations in relation to that circumstance were the subject of the decision of the Tribunal in Esanda Finance Corporation and Potter.[7] That decision is directly relevant to the present proceeding because it engages with s 45(3)(a) of the SAT Act. In that decision Member De Villiers noted that:[8]
It is clear to the Tribunal that Parliament aimed to achieve a balance of interests with the alternative provisions [in s 45(3) of the SAT Act] as to how service can be effected. Parliament recognised that circumstances may arise whereby a person moves away from his last known address without leaving a forwarding address or without making contact with the credit provider.
[7] [2007] WASAT 278.
[8] Esanda Finance Corporation and Potter [2007] WASAT 278 at [56].
As was the case there, the applicant, a credit provider:[9]
[C]ould be severely prejudiced by not knowing where to find such a person, and as a result, personal service could not be effected. It would be grossly unfair and unreasonable to place a burden on the credit provider to find such a person at all costs. There is also a duty on Mr Potter to inform Esanda of his whereabouts. The SAT Act therefore refers to "all reasonable" attempts that must be made to locate a person (s 45(3) of the SAT Act). It is for the Tribunal to be satisfied that all reasonable attempts have been made.
It is not in every instance where a person has moved from his last known address that the Tribunal will necessarily be satisfied that substituted service could be effected. It depends on the facts and circumstances of each case.
[9] Esanda Finance Corporation and Potter [2007] WASAT 278 at [56]-[57].
Member De Villiers went on to explain why he was satisfied in that case that Esanda had done all it reasonably could to effect service.
I digress to observe that the evasion of service situation was the subject of some observations by the Tribunal in Legal Practitioners Complaints Committee and Richardson,[10] where there appeared to be attempts by the practitioner to evade service. While that was not a case in respect of s 45(3) of the SAT Act, it nevertheless indicates the practical difficulties that may arise for regulatory bodies when respondents seek to evade service.
[10] [2006] WASAT 251.
What these authorities highlight is that, relevant to the exercise of the discretion whether to grant a dispensation in relation to service will be all the facts and circumstances of the case, including whether the applicant will suffer a prejudice by being unable to pursue relief sought in the proceedings because of an inability to serve the respondent, through no fault of its own. It will also be relevant if the inability to serve a respondent has been due to attempts by the respondent to evade service.
For completeness, I observe that there is nothing in the present case to indicate that the Respondent has sought to evade service in the way discussed in some of the cases to which I have referred. This is not a situation where the Respondent has failed to keep the Australian Health Practitioner Regulation Agency or the Applicant aware of his present location. He is under no obligation to do so, given the lapse of his registration.
There is nothing to suggest that at the conclusion of the Investigation the Respondent was obliged to keep the Applicant informed of his whereabouts. But given that the outcome of that Investigation may well have resulted in proceedings of a disciplinary nature, such as those now commenced by the Application, it must have been apparent to the Respondent that if he did not keep his representative, the ANF, apprised of his whereabouts and instructed to act on his behalf or, alternatively, if he did not keep the Applicant informed as to his whereabouts, there may be a risk that proceedings would take place in his absence.
Considerations of prejudice for applicants and respondents are not the end of the matter. There may be other relevant considerations pertaining to the Tribunal's discretion, such as the consequences for third parties. That is particularly relevant in the context of vocational regulatory proceedings such as the present Application, the purpose of which includes the protection of the public by maintaining proper standards of conduct for practitioners registered in the various professions.
In its submissions, the Applicant contended that the possible impact on the Respondent, if the Application proceeds to a determination without being drawn to his attention, was likely to be minimal. I am unable to accept that that is an accurate reflection of the likely position. If the Respondent does not have the proceedings drawn to his attention and does not participate in the proceedings as a result, the consequence may be that findings adverse to him may be made by the Tribunal. If that occurs, those findings may have consequences for his ability to work as a nurse again in this jurisdiction or in other Australian jurisdictions.
It is true that, under s 84 of the SAT Act, a person in respect of whom the Tribunal makes a decision may apply to the Tribunal for a review of the decision if the person did not appear and was not represented at a relevant hearing. Therefore, if the Respondent did not appear at the final hearing of the Application, at least in theory he would be entitled to pursue a reconsideration of any decision made by the Tribunal. However, the time limit in which a party would ordinarily be expected to make an application for a review would be within either two or seven days (see r 20 of the Rules). The Rules are able to be dispensed with at any time (see r 46 of the Rules) so an extension of time could be permitted. There would, however, be a greater difficulty for the Respondent in seeking to review any outcome of the Application, via s 84 of the SAT Act, if there was any delay in the proceedings coming to his attention and any such application being made.
On the other hand, if the Applicant does not obtain dispensation from the requirement for service in the present case, it may find itself in the position of suffering a similar kind of prejudice. If it locates the Respondent at some future stage and is able to serve him with the Application, it may find itself in a position where it is far more difficult to pursue the case, having regard to evidentiary considerations and difficulties arising from that delay.
As I have previously mentioned, at present the Respondent is not registered as a nurse. I am advised by counsel for the Applicant that if the Respondent sought to obtain registration again, he would not be entitled to a renewal, but would have to apply for registration.
I asked counsel for the Applicant about the implications if dispensation from the requirement to serve the Respondent is not granted, so that the proceedings cannot continue until he is served. Specifically, I asked counsel for the Applicant whether, in that case, it would be open to the Applicant to advise other Australian registration bodies of its attempt to pursue the present proceedings. The position seems to be that it may be possible for other registration bodies to be notified, but in the absence of a finding in this jurisdiction arising from the present proceedings, there would be nothing to preclude the registration of the Respondent in the future. That is because other registration bodies would be obliged to proceed with a decision on registration having regard to all of the information available before them at the relevant time.
The outcome of the Service Application thus has some implications for the consideration of the protection of the public from the risk of unprofessional conduct by health professionals, which underlies regulatory proceedings such as this one.
The outcome of the Service Application also has broader implications if the Respondent seeks to be registered to work as a nurse in any jurisdiction overseas. Under s 222 of the National Law a public national register is to be kept for relevant professions, including for nurses, and that information is able to be publicly searched. If the Respondent sought registration as a nurse overseas, it would be open to any overseas registration body to search the public register. In the absence of an indication of a finding as a result of proceedings in an Australian jurisdiction relevant to the registration of the nurse, there would be nothing on that register to indicate that the Respondent had a question mark over his continued fitness to work as a nurse as a result of the present proceedings.
The possibility of the Respondent securing registration in Australia or elsewhere, in circumstances where the registration body was not informed about the existence, or outcome, of the Application, is a not insignificant factor in the exercise of the Tribunal's discretion to dispense with the requirements for service of the Application.
Taking all of these considerations into account, I am satisfied that this is an appropriate case for the exercise of the Tribunal's discretion to dispense with the requirement for service of the Application on the Respondent, pursuant to s 45(3)(a) of the SAT Act.
Having said all of that, however, I am also of the view that there would be some merit in the Applicant advising the ANF of the order that I now propose to make so that it may take steps to send to the Respondent, at the last known contact address it had for him, some notification that the present proceedings will proceed without service of the Application on him. That may not result in any actual service of the Application on the Respondent, but if the contact details held by the ANF have any currency, that course may enable the proceedings to be drawn to the Respondent's attention.
Orders
The Tribunal orders that:
1.Pursuant to s 45(3)(a) of the State Administrative Tribunal Act 2004 (WA), the requirement to serve the Application on the Respondent is dispensed with as the Applicant has made all reasonable attempts to effect service on the Respondent.
2.By 24 November 2020 the Applicant must file with the Tribunal a bundle of documents for the determination of the matter, including any signed witness statements on which it wishes to rely.
3.By 18 December 2020 the Applicant must file with the Tribunal written submissions and any decided cases on which it relies and a list of decided cases on which it relies.
4.By 22 September 2020 the Applicant is to provide a copy of these Orders to the Respondent's former representative, the ANF.
5.The matter is listed for a directions hearing on Tuesday, 22 December 2020 at 9.30am in the State Administrative Tribunal building at 565 Hay Street, Perth.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
EH
Associate to the Honourable Justice Pritchard2 NOVEMBER 2020
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