Rudge v Nursing and Midwifery Board of Australia
[2014] QCAT 226
| CITATION: | Rudge v Nursing and Midwifery Board of Australia [2014] QCAT 226 |
| PARTIES: | Kathryn Rudge (Applicant) |
| v | |
| Nursing and Midwifery Board of Australia (Respondent) |
| APPLICATION NUMBER: | OCR141-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 14 May 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President Assisted by: Ms Fiona Petty; Ms Barbara Soong; Mr Andrew Urquhart |
| DELIVERED ON: | 14 May 2014 (ex tempore) |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for review of a Board decision is dismissed. 2. The application for costs is dismissed. |
| CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – LICENCES AND REGISTRATION – where the applicant applies for review of conditions imposed on her registration – where the registrant’s registration has lapsed – whether the Tribunal can determine a matter regarding conditions on registration where the registration no longer exists PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – CONDUCT OF THE PARTIES – CONDUCT TENDING TO LITIGATION – where the application was dismissed – where the respondent made an offer that parties pay their own costs if proceedings are withdrawn – where the offer was rejected – where the respondent took significant and expensive steps to prepare for litigation – where the applicant is an unrepresented litigant, who has not had a substantive hearing of her matter – where the respondent could have brought an application to dismiss the proceedings at the date of the offer – whether the respondent should be entitled to costs Health Practitioner Regulation National Law (Queensland), s 108(2), s 178, s 199(1)(e), s 202, s 269, Pearse v Medical Board of Australia [2013] QCAT 392 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms K Rudge |
| RESPONDENT: | Mr R Dickson instructed by Rodgers Barnes & Green Lawyers |
REASONS FOR DECISION
On 27 March 2013 the Nursing and Midwifery Board of Australia decided to impose conditions on the registration of Ms Kathryn Rudge pursuant to s 178 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’). At the time Ms Rudge held registration under the National Law as an endorsed, enrolled nurse.
Ms Rudge sought a review of the Board’s decision to impose the conditions in this Tribunal. Her application for review was filed on 27 May 2013. The final relief sort by Ms Rudge, in her application, was that she be registered as a nurse with no conditions attached to her registration. By amended application, filed on the same day, she also sought an order that the decision made against her on 27 March 2013, by the Nursing and Midwifery Board of Australia, ‘be overturned and dismissed and cleared from her record and registration.’
It is apparent from the material filed by both the applicant and the respondent in the proceedings that Ms Rudge’s registration under the National Law lapsed on 30 June 2013. Mr Rudge’s registration was due to expire on 31 May 2013. She did not apply to renew it. By operation of s 108(2) of the National Law her registration and endorsement continued in force for a period of one month from the date upon which it was due to expire. Ms Rudge did not apply for the renewal of her registration during that extended period. As a consequence, as and from 30 June 2013 Ms Rudge does not hold registration under the National Law. Unfortunately it seems that Ms Rudge’s reasons for not seeking renewal of her registration were based upon a misunderstanding of the National Law.
In an affidavit filed on 6 November 2013 she deposes, at [26], to not having applied for renewal of her registration:
Due to not being able to reregister, as per s 269 of the National Law, being registration full unconditional and without conditions and for the reason that to reregister I would have had to accept the Nursing and Midwifery Board’s decision against me and the conditions placed upon my registration. To do so would have been contradictory towards these proceedings of appeal.
Ms Rudge’s reference to s 269 of the National Law is misplaced. Section 269 is a transitional provision which had the effect of deeming persons who held registration in a health profession under a law in operation before the commencement of the National Law on the participation day, 1 July 2010, to hold registration under the National Law from that date in the profession. It in no way applied to, nor inhibited, the renewal of Ms Rudge’s registration in 2013. Had she applied for renewal, her registration could have been renewed subject to the conditions. However, those conditions would have been subject to the challenge to the decision to impose them which was made in these proceedings.
Although s 199(1)(e) of the National Law defines a decision to impose a condition on a person’s registration as an appellable decision, the appeal proceeds by way of a review of the decision pursuant to s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’): see s 9 of the Health Practitioner Regulation National Law Act 2009 (Qld) and Pearse v Medical Board of Australia [2013] QCAT 392. The Tribunal is required to hear and decide the review by way of a fresh hearing on the merits: see s 20(2) of the QCAT Act. The purpose of the review is to produce the correct or preferable decision. It is thus a de novo hearing in which the Tribunal must decide the matter on the law and facts as at the date of the hearing; see Pearse at [30] to [37] and Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [40] to [41] per Kirby J and [99] and [101] per Hayne and Heydon JJ.
In this case that means that the Tribunal must consider the fact that Ms Rudge no longer holds registration. By s 202 of the National Law, the Tribunal may confirm an appellable decision, amend the appellable decision or substitute another decision for the appellable decision. These are the limits of its power. In substituting another decision the Tribunal has the same powers as the Board that made the decision. The Board’s only powers under s 178 are in respect of a person who holds registration under the National Law. Ms Rudge is no longer such a person.
As a matter of jurisdiction the Tribunal is unable to grant the relief which Ms Rudge seeks in the form of granting unconditional registration. Even if there was jurisdiction to grant the relief sought by way of a clearance of her record and registration, a matter which I doubt, there is no utility in such an order. The conditions no longer form part of the register required to be kept by the Board. Any findings by the Tribunal would not bind either Ms Rudge or the Board in the Board’s consideration of any future application for registration which Ms Rudge might bring. Indeed, if the Board was to adopt such reasons or findings it would, itself, commit appellable error in respect of that decision.
In my view, the proceedings have become misconceived since the cessation of Ms Rudge’s registration because they seek relief which the Tribunal is unable to grant or, as a matter of discretion, should not grant because there is no utility in doing so. The proceedings also, for the same reasons, now lack substance. They should be dismissed pursuant to s 47(1) of the QCAT Act.
Costs
Having dismissed the proceedings pursuant to s 47(1) of the QCAT Act, the respondent, the Nursing and Midwifery Board of Australia, applies for its costs. In support of its application the Board reads Exhibit 1, which is an affidavit of Christopher Dan Templeton, a solicitor in the employ of the Board’s solicitors, sworn today. To that affidavit Mr Templeton exhibits a letter dated 6 September 2013 addressed by the firm Rodgers Barnes & Green, on behalf of the Board, to Ms Rudge.
In that letter of 6 September 2013, the solicitors on behalf of the Board pointed out that the relief which was sought by Ms Rudge in the proceedings was an order that she be registered as a nurse with no condition attached to her registration. At section 3 of that letter, the Board’s solicitors pointed out that the powers of the Tribunal in the proceedings were limited by s 202 of the National Law in the manner to which I have referred in the substantive reasons dismissing the application. It pointed out, correctly, that s 202 limited the powers of the Tribunal to confirming, amending or substituting the decision and that the powers in substitution were the same powers which the Board had in making the decision.
The solicitors also pointed out that:
Upon reviewing a decision of the Board made under s 178, the Tribunal only has power to interfere with the conditions imposed on your registration. It does not have power to grant you registration as a nurse when you have not applied to renew your registration.
It’s said that in those circumstances it was the Board’s view that the application had no utility.
At section 4 of the letter the solicitors for the Board then went on to make an offer to Ms Rudge, in light of the identified lack of utility in her application. The offer was said to be a formal offer made under r 86 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’) to settle the dispute, which was the subject of her application. The Board’s offer was that it would pay its own costs of the proceedings if Ms Rudge withdrew her application within 10 days from the date of this letter. That, of course, would have been by 16 September 2013. The Board’s solicitors went on to say that in the event that Ms Rudge did not accept the offer, and withdraw the application within the stated 10 day period and if the final decision of the Tribunal was no more favourable to her than the offer, they were instructed to seek an order pursuant to r 86(2) of the QCAT Rules that she pay the Board’s reasonable costs incurred by the Board in conducting the QCAT proceedings after the date of the letter. It also stated that the Board had instructed that an order be sought that Ms Rudge pay the Board’s costs of the whole proceedings on the standard basis in the event the Tribunal dismissed her application.
Ms Rudge, as is apparent from the matter proceeding to a hearing in the Tribunal today, 14 May 2014, did not accept the offer set out in the letter. Four days after the expiration of the 10 day period the solicitors on behalf of the Board filed the Board’s statement of reasons. The reasons were dated the same date, 20 September 2013. The Board also filed on that date a bundle of documents which ran to some 160 pages. I have not checked the file, but I presume that the solicitors filed numerous copies of the bundle of documents. The filing of the Statement of Reasons and bundle of documents was pursuant to directions made by the Tribunal on 16 August 2013.
Section 47 of the QCAT Act provides that the Tribunal may act under that provision on the application of a party to the proceeding or on the Tribunal’s own initiative. Subsequent to the filing of the Board’s statement of reasons and bundle of documents on the 20th of September 2013, the matter was before the Tribunal on the 26th of September 2013 by way of a compulsory conference, when certain directions were made by Mr Paratz, a member of the Tribunal. The matter was before me on the 15th of November 2013, wherein further directions were made, including for the provision or the filing by the Board of further material by the 20th of December 2013 and by Ms Rudge of material by 28 May 2014. The matter was then subject to a further order made by me on 1 April 2014, where the period of time for Ms Rudge’s material was extended to 1 May 2014. The matter was first listed for a hearing today, on 15 November 2013.
Ms Rudge filed material in the proceedings by way of a bundle of documents which ran to some 187 pages and an affidavit on 6 November 2013. Further documents were filed by Ms Rudge on 28 February 2014 and on 1 May 2014. The Board filed affidavit material, including expert evidence, on 24 February 2014. It is evident from the report and affidavit of Dr Adrian Morris filed by the Board on 24 February 2014 that Dr Morris was instructed on behalf of the Board to prepare a report by letter of instructions from the Board’s solicitors dated 10 December 2013. Dr Morris’ report, provided on 22 December 2013, runs to some 24 pages. Dr Morris was asked to consider a bundle of material, including the statement of reasons filed on behalf of the Board on 20 September 2013 (two pages); a bundle of documents filed on behalf of the Board on 20 September 2013 (160 pages); a bundle of documents filed by Ms Rudge on 6 November 2013 (187 pages); QCAT practice direction number 4 of 2009 (five pages); the background summary in the instructing letter; and questions in the instructing letter. Dr Morris’s 24 page report is, as one might expect, very detailed. It was prepared with an acknowledgement that he had read the expert witness code of conduct and agreed to be bound by it and prepared his report accordingly.
The affidavit of Mr Templeton does not disclose the date upon which the solicitors on behalf of the Board were instructed of the matters which are set out in his letter of 6 September 2013.
An affidavit by Ms Lauren van de Ven, the Manager, Notifications in the Queensland office of the Australian Health Practitioner Regulation Agency (‘AHPRA’) filed on 28 February 2014, deposes to the fact that the applicant’s registration, according to AHPRA’s file, expired on 31 May 2013 and that the applicant had not since lodged an application for registration. Ms van de Ven does not depose to the date that those matters came to her attention. However, the Board is obliged by operation of the National Law to keep a register of all registered practitioners. The Board had constructive knowledge, notwithstanding Ms Lauren van de Ven’s personal knowledge, of all matters in its register on 31 May 2013 and 1 June 2013 and all dates subsequent to that.
On the basis of the reasons delivered today dismissing Ms Rudge’s application on jurisdictional grounds, there is nothing factually beyond that which is contained in the Board’s letter of 6 September 2013 which further informed that decision. Had the matters been raised by the Board in the Tribunal subsequent to its letter of 6 September 2013 or the expiration of the 10 day period set in that letter, it seems inconceivable that any such application would have been other than successful for the very reasons which the Board raised in its submissions filed on 28 February 2014, and which have led to the decision which has been made today. Of course, there has been no determination at all made by the Tribunal in relation to the substantive issues raised by Ms Rudge in her application. No issue of fact has been resolved against her.
In my view, it is entirely inappropriate for the Board to have its costs in this matter. Costs in this matter are entirely in the discretion of the Tribunal. Had the Board acted in a timely way at any time after 6 September to bring the very application which has been successful today, nearly all of its costs would have been saved. To now ask an unrepresented litigant, who has not had a substantive hearing of her matter, to pay the costs of the Board, including, I am told, to have an expert witness sitting outside the hearing room today and counsel appearing, is entirely inappropriate and, in my view, would be an entirely inappropriate exercise of the power to award costs.
The application for costs is dismissed.
3
3
0