NURSING AND MIDWIFERY BOARD OF AUSTRALIA and ALLISON

The Nursing and Midwifery Board of Australia filed an application against Allison, seeking dispensation from the requirement of service pursuant to section 45(3) of the State Administrative Tribunal Act 2004 (WA). The Board aimed to proceed with the application without serving Allison, who had been a registered nurse but had her registration cancelled due to misconduct. The primary concern was that Allison had not responded to any attempts to serve her with the application, raising concerns about the potential implications for public protection if the proceedings could not continue.

The court needed to determine whether the absence of injustice was a prerequisite for exercising either limb of section 45(3) of the SAT Act. Additionally, it had to assess whether the Board had made all reasonable attempts to serve Allison with the application and whether it would be unjust to proceed without her notice. The court also needed to consider whether Allison was attempting to evade service and the implications of not proceeding with the action for the protection of the public.

The court found that Parliament had clearly abrogated the requirement of natural justice for service by including alternative threshold requirements in section 45(3) of the SAT Act. The two limbs of section 45(3) allow for dispensation from the service requirement if either the applicant has made all reasonable attempts to serve the notifiable person without success or if proceeding without notice would not cause injustice. The absence of injustice is not a requirement for either limb. The court noted that the Board had made all reasonable attempts to serve Allison, including service at her last known address, by email, and through her last known representative, all without success. The court concluded that it was unlikely that the application had been brought to Allison's attention. Furthermore, there was no indication that Allison was attempting to evade service. The implications of not proceeding with the action for the protection of the public were significant, and the court exercised its discretion to make an order dispensing with the requirement for service.

The court made an order dispensing with the requirement for service pursuant to section 45(3) of the SAT Act, allowing the Nursing and Midwifery Board of Australia to proceed with the application against Allison without serving her directly.