Smith v Nurses Board of South Australia - [2007] SASC 208

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
SMITH v NURSES BOARD OF SOUTH AUSTRALIA & ANOR
[2007] SASC 208
Judgment of The Honourable Justice Anderson
13 June 2007
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW
PROFESSIONS AND TRADES - MEDICAL AND RELATED PROFESSIONS - OTHER FIELDS OF PRACTICE - NURSES
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE
Application for judicial review of a disciplinary decision of the Nurses Board of South Australia - second defendant found not guilty of unprofessional conduct - whether the Board acted in breach of the relevant provisions of the Nurses Act 1999 - whether the Board erred by not allowing counsel to make closing submissions - whether the Board erred by curtailing cross-examination of second defendant - whether the Board erred in application of standard of proof - whether the matter should be remitted to the same Board or a newly constituted Board.
Held: the decision of the Board set aside; complaint remitted to a differently constituted Board for re-hearing.
Nurses Act 1999 (SA) s 3, s 11, s 19, s 41, s 44 and s 46; Medical Practitioners Act 1983 (SA) s 58, referred to.
The Queen v Medical Practitioners Professional Conduct Tribunal; ex parte Medical Board (1985) 40 SASR 84; Rajagopalan v Medical Board of South Australia Supreme Court of South Australia unreported judgment No S6667, 5 May 1988, applied.
Versteegh v Nurses Board (SA) (1992) 60 SASR 128; Briginshaw v Briginshaw (1938) 60 CLR 336; Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256, discussed.

SMITH v NURSES BOARD OF SOUTH AUSTRALIA & ANOR
[2007] SASC 208
Civil
ANDERSON J.
Introduction

This is an application for judicial review of a decision to dismiss a complaint of unprofessional conduct brought by the Registrar of the Nurses Board, against the second defendant, Meryl Eve Gay. The plaintiff is the Registrar of the Nurses Board of South Australia. She was appointed pursuant to s 11 of the Nurses Act 1999 (SA). (“the Act”). Ms Gay was a registered nurse employed in a hospital.
The first defendant, the Nurses Board of South Australia (“the Board”) is a statutory body, which is governed by the Act. As stated in the long title of the Act, its purpose is to “provide for the registration and enrolment of nurses; to regulate nursing for the purpose of maintaining high standards of competence and conduct by nurses in South Australia.” It determines complaints made by the Registrar pursuant to the relevant sections of Act. The second defendant appeared before the Nurses Board in relation to the complaint laid by the Registrar of the Nurses Board.
On 6 July 2006 the plaintiff laid a complaint before the Board. The complaint was in relation to the actions of the second defendant when working at a hospital outside of the Adelaide metropolitan area. The complaint consisted of four particularised allegations of negligence and unprofessional conduct. The first allegation alleges that the second defendant engaged in a shouted argument with a patient. The second allegation alleges that the second defendant failed to take steps to adequately identify residents and patients when administering medications. The third allegation alleges that the second defendant acted negligently and improperly by failing to ensure the security of the contents of the hospital’s “DDA” drug cupboard. This is a cupboard containing drugs of dependency. The final allegation alleged that the second defendant acted negligently and improperly by making an incorrect entry in the DDA Register and failed to take reasonable steps to correct the error.
The Board convened and heard the complaint against the second defendant on 16 November 2006. On 23 November 2006 the Board dismissed the complaint. Reasons for the decision were published on 2 February 2007.
This matter comes before the Court for judicial review of the decision by the Board to dismiss the complaint. The plaintiff seeks an order in the nature of certiorari setting aside the decision of the Board made on 23 November 2006. The plaintiff also seeks an order remitting the complaint to the Board for rehearing by a differently constituted Board.
Background
The Hearing
The hearing of the complaint took place over two days, 16 November and 23 November 2006. On the first day of the hearing, the plaintiff called a number of witnesses who gave evidence in relation to their knowledge of the relevant events and all of these witnesses were cross-examined. Documentary evidence was tendered during the plaintiff’s case.
The second defendant gave evidence in response to the allegations. At the conclusion of the examination in chief of the second defendant, the prosecution commenced cross-examination. The matter was adjourned during cross-examination on 16 November 2006 to 23 November 2006. However, at the end of that day, namely 16 November, the second defendant announced that she could not attend on 23 November and in fact said that she could never attend again.
On 17 November 2006 the solicitors for the second defendant formally informed the plaintiff that the second defendant would not be attending on 23 November 2006 as she had then taken up a contract for work in the Northern Territory. The solicitor suggested that that the second defendant would, however, be available by telephone or video link to give evidence at the resumed hearing.
When the hearing resumed on 23 November 2006 the second defendant did not appear, but was represented by counsel. Counsel sought an adjournment on the basis that the second defendant was working in an isolated and remote area. Counsel for the second defendant requested that the Board resume the hearing on a date to be fixed by teleconference to enable the matter to be finalised. Counsel for the plaintiff indicated that he was agreeable to that course of action and that he wished to cross-examine the second defendant about inconsistencies between her evidence and the contents of various letters that had been tendered. Counsel indicated that he believed that the matter could be concluded in half a day, including the further cross-examination, re-examination and final addresses.
The Chair of the Board then indicated that the Board would like to question the plaintiff about a number of matters regarding the timing of the complaint. The Director was not available on that day and the Board decided to adjourn the matter to a date to be fixed.
Later that same day the Board contacted the parties and reconvened the hearing. The transcript shows that the Board indicated that:
This may be an unusual course we’ve taken and it may be that it’s not appropriate; but the panel has used its time very constructively we feel since this morning in reviewing all of the paperwork and we believe we’re in a position to finalise the proceedings without taking further evidence or hearing submissions. (My emphasis)
Counsel for the plaintiff urged the Board not to do that on the basis that it would be contrary to s 46(5) of the Act.
Section 46(5) of the Act provides that:
Subject to this Act, the Board must give to all of the parties to proceedings under this Part, written notice of the time and place at which it intends to conduct the proceedings, and must afford to the parties a reasonable opportunity to call and give evidence, to examine or cross-examine witnesses, and to make submissions to the Board. (My emphasis)
The requirements of the section are clear. Counsel for the second defendant agreed with the plaintiff’s submission. In particular, Counsel for the plaintiff indicated that he had not had a chance to fully agitate the matters contained in the second and third allegations and had assumed that he would have the chance to do so in closing submissions.
The Board then adjourned for a few minutes before returning and announcing that it dismissed all of the complaints of unprofessional conduct. This decision was premised on s 46(10) and s 19 of the Act, which requires the Board to proceed as expeditiously as possible. The Board delivered some very brief findings, which were recorded on the transcript. Reasons were subsequently published by the Board on 2 February 2007 but were dated 12 January 2007.
A summons seeking judicial review of this decision was filed on 28 February 2007. I heard argument on 11 May 2007. Mr Stevens appeared on behalf of the plaintiff. He indicated that the first defendant had indicated to him that they would abide the decision of the court and there was no appearance on their behalf. Mr Heywood-Smith QC appeared on behalf of the second defendant. Both parties provided outlines of their submissions and two affidavits were admitted into evidence. At the close of argument I reserved my decision.
The Issues
The outlines provided by both parties were of great assistance and helped to narrow the issues. The plaintiff in her affidavit in support of her application for judicial review alleges 6 grounds where the Board had erred. They are as follows:
1.The Board acted in breach of the provisions of s 46(5) of the Act in that it failed to afford the plaintiff a reasonable opportunity to cross-examine witnesses and make submissions to the Board concerning the subject matter of the complaint.
2.The Board erred in holding that the relevant standard of proof to be applied to the inquiry was proof beyond reasonable doubt.
3.The Board erred in dismissing the complaint without first completing the inquiry and offering to the plaintiff a reasonable opportunity of presenting her case.
4.The Board erred in dismissing the complaint without first hearing submissions on the facts and law and without endeavouring to test and analyse the evidence and make findings where possible on material issues.
5.The Board erred in relying upon the provisions of sections 19 and 46(10) of the Act as justifying its failure to comply with section 46(5) and with appropriate procedure (in circumstances where adherence to such procedure was necessary to comply with the Act and with principles of natural justice).
6In dismissing the complaint, the Board had regard to irrelevant and extraneous considerations.
Those six grounds were narrowed to four broad issues in the written outlines provided by the parties. They are:
1.That the Board erred in dismissing the complaint before it had completed the inquiry in accordance with the provisions of s 44 and s 46 of the Act.
2.That Board erred by not using the appropriate standard of proof relevant to disciplinary proceedings.
3.The Board erred in relying upon the provisions of sections 19 and 46(10) of the Act as justifying its failure to comply with section 46(5) and with appropriate procedure (in circumstances where adherence to such procedure was necessary to comply with the Act and with principles of natural justice).
4.The Board considered irrelevant and extraneous considerations.
Counsel for the defendant conceded that the Board erred in relation to ground 2. I will deal with this later in my reasons.
The First Issue
The first issue relates to the Board’s failure to allow the cross-examination of the second defendant to be completed and also the failure to allow counsel to make closing submissions. Mr Stevens complains that this amounted to an error which vitiates the Board’s decision and which is in breach of s 44 and s 46 (5) of the Act.
The Act provides both for the creation and composition of the Board, the function of the Registrar and also for the manner in which inquiries conducted by the Board are to proceed. Part 5 of the Act contains the provisions relevant to proceedings conducted before the Board. Section 41(1) allows the Registrar to lay a complaint before the Board. The Board then conducts an inquiry into the alleged unprofessional conduct pursuant to s 44. The inquiry is to be conducted as provided for by s 46 of the Act. Within s 46 there are various sub-sections, which specify the process and procedure for hearing complaints made pursuant to the Act. I have set out s 46(5) earlier in the reasons at [13].
There is no dispute on the facts that the Board did not allow counsel for the plaintiff to finish his cross-examination of the second defendant and that neither party was given the opportunity to make closing submissions. The question is whether, pursuant to s 46(5) of the Act, reasonable opportunity was afforded by the Board. (My emphasis)
Mr Stevens relied on the somewhat analogous provisions contained in the then Medical Practitioners Act1983 (SA) and the Full Court decision of The Queen v Medical Practitioners Professional Conduct Tribunal; ex parte Medical Board (1985) 40 SASR 84. The facts of that case are very similar to the case at bar. When considering if the Medical Board had contravened the Medical Practitioners Act 1983 (SA) and its analogous provisions, King CJ stated at 88:
This inquiry was a disciplinary inquiry conducted under statutory provisions. I think that a reasonable opportunity to make submissions includes an opportunity to make submissions at the conclusion of the evidence in opposition to the dismissal of the complaint… If such an essential attribute is absent, in this case the reasonable opportunity to make submissions, the proceedings do not amount to the inquiry which the Tribunal is required by section 58 to hold into the complaint and which, by implication, it is required to hold before dismissing the complaint.
His Honour further stated at 88 that:
It may be a matter of degree as to whether a non-compliance with the section is so vital as to deprive the proceedings of their character as an inquiry under s 58. I am of opinion, however, that the total denial of the opportunity to make submissions at the conclusion of the evidence is such a departure from the duty placed on the Tribunal as to the conduct of the inquiry as to deprive the proceedings of the character of a completed inquiry under s 58.
Section 41 of the Act generally provides that if a complaint is laid under this section then the Board must inquire into the subject matter of the complaint pursuant to the relevant statutory provisions. Such provisions are those contained within s 46 of the Act. Those provisions specify the procedure, which must be followed for the purpose of an inquiry under s 41. They are express provisions. It is not necessary to imply the rights of the parties in relation to the conduct of the inquiry.
Mr Heywood-Smith submitted that the parties were provided with an opportunity to make opening submissions and that counsel for the Registrar had been equivocal about the second and third counts and that in any event, the Board had complied with s 46(5) because they had provided “reasonable opportunity”.
It is clear from the above statement of King CJ that where a statute provides for reasonable opportunity to make submissions it includes an opportunity to make submissions at the conclusion of the evidence. On the facts at hand, the mere fact that counsel was not able to make closing submissions and the fact that he did so intend, is in direct contravention of s 46(5) of the Act. Further, it is my opinion that counsel for the plaintiff, was not able to properly put his case, in particular in relation to the second and third count. This restriction has resulted in a breach of the Board’s statutory duties.
In relation, to the Board’s decision to not allow counsel for the plaintiff to finish his cross-examination of the second defendant, Mr Heywood-Smith submits that there is no irregularity that vitiates the proceedings. In particular Mr Heywood-Smith relies on the comments from counsel, which indicated that he only had a “few more questions about the correspondence”. In any event, Mr Heywood Smith submits that the Board chose to exercise its perceived powers under s 19 and s 46(10) of the Act.
The Board is expressly required by s 46(5) to allow the parties “reasonable” opportunity to cross-examine witnesses. While it is obvious that some cross-examination must be allowed, the use of the word “reasonable” by the legislature implies some limit on the extent of cross-examination to be allowed by the Board. What is a “reasonable” amount of cross-examination will obviously depend on the unique circumstances of each case. While it may be true that counsel only had a few remaining topics, it is also true that the Board’s mistaken belief as to the relevant standard of proof may have impacted on its premature termination of cross-examination. In other words it may have decided that there was no purpose in further cross-examination because it had formed the view that the plaintiff could not prove its case beyond reasonable doubt.
The remaining topic of cross-examination went essentially to the second defendant’s credit in deciding what weight the Board should give to competing versions of events. It cannot be said that this is not relevant to the issues which were before the Board. Counsel for the plaintiff informed the Board, once having been advised of the Board’s view as to the premature termination of the inquiry, that he did not believe the Board was taking an appropriate course. Counsel for the second defendant agreed. The Board then responded that:
We have noted the provision of section 46(5) also section (sic) 10, which requires us to proceed as expeditiously as possible, Mr Ahern. We have formed a view that is based on everything that has been presented to us so far. We believe it is highly unlikely to change, so we would choose to proceed forthwith believing that neither party is likely to benefit from any further postponement.
In my opinion, it can be inferred that the Board did not turn its mind to consider whether they had allowed a reasonable opportunity as required by the Act. It appears that the Board had formed a concluded view about the result without hearing any closing submissions or further cross-examination. It is my opinion that the Board’s decision to terminate cross-examination may well be related to its misunderstanding as to the correct standard of proof, which I deal with later in my reasons.
While s 46(5) provides for the procedural aspects of the inquiry, s 46(10) provides that proceedings conducted before the Board should proceed as expeditiously as possible. It is a balancing act, which must be undertaken by the Board. The use of the word “reasonable” in s 46(5) contemplates the need for an expeditious enquiry as well as certain procedural requirements. In determining if the Board has afforded a reasonable opportunity for the parties to give evidence, to examine or cross-examine witnesses, and to make closing submissions to the Board one must consider the nature of the inquiry and whether it has become unduly prolonged, amongst other things. The transcript of the proceedings indicates that the Board was “having trouble forming an opinion of the matters complained of in the second and third allegation”. In light of these comments and the Board’s failure to allow counsel to make closing submissions, I do not believe the Board gave the parties reasonable opportunity to be heard. I agree with counsel for the plaintiff that it appears that the Board formed a concluded view at a premature stage of the proceedings and decided to act upon it by unreasonably curtailing the inquiry. Further, it is my opinion that to deny counsel the opportunity to test potential inconsistencies was to deny a reasonable opportunity to cross-examine. The plaintiff was denied the opportunity of fully putting its case both in further cross-examination and in closing submissions.
The second issue

The second issue relates to whether the Board erred in holding that the relevant standard of proof to be applied to the inquiry was proof beyond reasonable doubt. In the reasons published following the decision of the Board, the Board stated at 6:
Immediately following the adjournment the panel thoroughly reviewed all the documentation and the transcript of Day 1 evidence and came to a view that a finding that Ms Gay was guilty of unprofessional conduct could not be supported beyond reasonable doubt on any of the four complaints.
The Board as a specialist body is empowered by the Act, to make a specialist determination, as to whether the alleged conduct amounts to unprofessional conduct. Such conduct is defined within s 3 of the Act and requires the Board as a specialist statutory body to determine if the alleged conduct falls within the definition. However, the Board must first determine whether the alleged acts are proved. It is at this stage that the standard of proof is relevant. At this stage the duty of the Board is not to decide whether the conduct is unprofessional, but rather, whether the acts alleged are found proved to the requisite standard of proof. (See Versteegh v Nurses Board (SA) (1992) 60 SASR 128.)
The standard of proof adopted by the Board in this case was proof beyond reasonable doubt. Mr Stevens relied on the judgment of Mullighan J in Rajagopalan v Medical Board of South Australia (Supreme Court of South Australia, unreported judgment No 6667 of 5 May 1998) for the proposition that the correct standard of proof was the standard in civil proceedings as explained in Briginshaw v Briginshaw (1938) 60 CLR 336. Mr Heywood-Smith counsel for the second defendant agreed and conceded that such an error in relation to the standard of proof clearly vitiated the proceedings.
The Board when determining if the facts alleged had been proved on the balance of probabilities, should have considered the seriousness of the allegation, the inherent unlikelihood of an occurrence of the particular type under consideration or the gravity of the consequences of a particular finding. (See Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at 362.) In my opinion, the failure of the Board to correctly identify and apply the correct standard of proof probably influenced the decisions that the Board made as to the further conduct of the inquiry. I think it is likely that this mistaken belief as to the standard of proof influenced the Board in its decision to disallow the parties to make closing submissions and also the decision to terminate the cross-examination of the second defendant by counsel for the plaintiff.
The third issue
The matters that I have raised in my consideration of the first issue are also relevant to this issue. The same considerations apply. The Board clearly erred in its consideration both of s 19 and s 46(10) in attempting to justify the failure to comply, as I have found, with the express provisions of s 46(5).
The fourth issue
This ground is covered by the other grounds and there is no need to separately consider it.
Conclusion – The proper course for re-hearing
Mr Heywood-Smith argued that the matter should go back to the same Board rather than to a differently constituted Board. It was submitted that as the Board had made no adverse findings as to the credibility of any of the witnesses, it was appropriate for the same Board to reconvene to re-hear the matter. Mr Heywood-Smith relied on the High Court decision of Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256.
I do not agree with that submission because the approach of the Board in this matter was fundamentally flawed.
I think that the matter should be remitted to a differently constituted Board for re-hearing. It is my view that the combination of the error in relation to the standard of proof and the denial of the rights of the parties to makes submissions, plus the premature cessation of the cross-examination, are good reasons why this is the only prudent course to follow.
Whilst the course I propose is probably inconvenient and expensive, I do not consider that the same Board can properly re-hear the matter because of the fundamental errors in its approach, which led it to pre-judge the issues.
For the reasons I have set out, I would quash the decision of the Board and I would order that the matter be remitted to a differently constituted Board to be determined in accordance with my reasons.