Nursing and Midwifery Board of Australia v Linquist

In the case of Nursing and Midwifery Board of Australia v Linquist, the respondent, a registered nurse, faced disciplinary proceedings brought by the appellant, the Nursing and Midwifery Board of Australia, for misconduct. The matter was initially heard by the Civil and Administrative Tribunal (NCAT) in New South Wales, which was subsequently appealed to the Supreme Court. The central issues before the court were whether the NCAT's decision was made by a validly constituted tribunal and whether the successful party should be liable to pay the unsuccessful party's costs.

The court examined the composition and authority of the tribunal that heard the case. It found that the four-member tribunal was validly constituted for the hearing. However, it held that a principal member of the tribunal, who had separately and simultaneously constituted herself as the tribunal to decide certain legal questions, did not have the authority to do so. The court ruled that a single member of a multi-person tribunal, which has already been constituted, is not authorised to constitute themselves as the tribunal on an informal basis or to make a decision unilaterally without recourse to the balance of the tribunal. Consequently, the decision made by the principal member was deemed void.

The court also considered the issue of costs, determining that the successful party should bear the costs of the proceedings. Given that the respondent was not a neutral contradictor, the court held that costs follow the event. Additionally, the court granted an application for a certificate under the Suitors’ Fund Act 1965, as the respondent did not contribute to the error made by the tribunal. This certificate would allow the respondent to recover costs from the Suitors’ Fund.