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Yelds v Nurses Tribunal

Yelds v Nurses Tribunal

Case [2000] NSWSC 755 2 August 2000

Appeal

Jurisdiction

Procedural Fairness

Rule in Browne v Dunne

Administrative Law

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Reported Decision: 49 NSWLR 491

New South Wales

Supreme Court

CITATION: YELDS v NURSES TRIBUNAL & ORS [2000] NSWSC 755

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 30047/99

HEARING DATE(S): 7 December 1999

JUDGMENT DATE: 2 August 2000

PARTIES :

Duncan Yelds (Plaintiff)
The Nurses Tribunal (First Defendant)
Health Care Complaints Commission (Second Defendant)

JUDGMENT OF: Adams J at 1

LOWER COURT
JURISDICTION : Nurses Tribunal

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER :

COUNSEL : Mr P Roberts SC (Plaintiff)
Mr P Neil SC (2nd Defendant)

SOLICITORS: Stewart Levitt & Company (Plaintiff)
I V Knight (1st Defendant)
Mr D Swain (2nd Defendant)

CATCHWORDS: Appeal from Nurses Tribunal - Section 4(2) Nurses Act 1991 - meaning of unsatisfactory professional conduct - nurse working as a counsellor - whether misconduct "in the practice of nursing" - procedural fairness - rule in Browne v Dunne

LEGISLATION CITED: Nurses Act 1991
Medical Practitioners Act 1938

CASES CITED: Briginshaw v Briginshaw (1938) CLR 336
Quidway v Brown 1984 NSWLR 100
Sherritt Gordon Mine Ltd v FCT (1976) 10 ALR 441
YZ Finance Co Pty Ltd v Cummings [1964] ALR 667
Lamond v Commissioner for Railways (1963) 80 WN (NSW) 1242
Re Gray; ex parte Marsh (1985) 62 ALR 17
Childs v Walton (unreported NSWCCA 13 November 1990, BC9001755)
Jacobsen v Nurses Tribinal & Anor (unreported Dunford J NSWSC 3 October 1997)
Oceanic Life Limited and Anor v Chief Commissioner of Stamp Duties [1999] NSWCA 416
Hope v Bathurst City Council (1980) 144 CLR 1
R v Deputy Industrial Injuries Commissioner; ex parte Moore 1965 1 QB 465
Browne v Dunne (1893) 6 R 67
Allied Pastoral Holdings Pty Limited v Commissioner of Taxation [1983] 1 NSWLR 1
Smith v NSW Bar Association (1992) 176 CLR 256
Pettit v Dunkley 1971 1 NSWLR 376

DECISION: Appeal upheld, with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

2 AUGUST 2000

30047/99

YELDS v THE NURSES TRIBUNAL & ORS

JUDGMENT

1 HIS HONOUR: This is an appeal under s 67 of the Nurses Act 1991 (the Act) from a decision of the Nurses Tribunal constituted under s 61 of the Act. The Health Care Complaints Commission had made a complaint under Part 5 of the Act that the appellant had been guilty of professional misconduct or, alternatively, unsatisfactory professional conduct within the meaning of s 4 of the Act. The particulars of the complaint were as follows -

“Between about 31 May 1996 and 16 October 1996, the nurse engaged in conduct which demonstrates a lack of adequate judgment and care in the practice of nursing and/or engaged in improper or unethical conduct relating to the practice of nursing, in that:

1. On or about 31 May 1996, during a professional consultation at the ‘Wayback Centre’ whilst employed as a locum counsellor, the nurse falsely informed a client, Ms MF, that he was a psychologist;

2. Between about 31 May 1996 and late July 1996, the nurse conducted counselling…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Yelds v Nurses Tribunal

Details

AGLC: Yelds v Nurses Tribunal [2000] NSWSC 755
Case: [2000] NSWSC 755
Decision Date: 2 August 2000

CaseChat Overview and Summary

The case of Yelds v Nurses Tribunal involves an appeal against a decision of the Nurses Tribunal, which was established under the Nurses Act 1991. The dispute centred around the professional conduct of a nurse, Yelds, who worked as a counsellor, and whether her conduct amounted to unsatisfactory professional conduct within the meaning of Section 4(2) of the Act. The Tribunal found that Yelds' conduct was unsatisfactory and imposed certain penalties. Yelds appealed this decision, arguing that her conduct, while perhaps improper, did not constitute misconduct in the practice of nursing as required by the Act.

The legal issues the court needed to address included the interpretation of "unsatisfactory professional conduct" under Section 4(2) of the Nurses Act 1991, and whether the Tribunal's findings were supported by the evidence. Additionally, the court considered whether the Tribunal had afforded Yelds procedural fairness in line with the rule in Browne v Dunne. The central question was whether the Tribunal was correct in finding that Yelds' misconduct occurred in the practice of nursing, as opposed to in a separate capacity, and whether the process followed by the Tribunal was fair and just.

The court found that the Tribunal's interpretation of "unsatisfactory professional conduct" was consistent with the legislative intent. It held that the Tribunal was entitled to consider Yelds' conduct in her capacity as a counsellor as it related to her nursing practice. The court also determined that the Tribunal had adhered to procedural fairness, ensuring that Yelds had an opportunity to respond to the allegations against her. The appeal was dismissed, and the Tribunal's decision was upheld. The court found that the Tribunal had acted within its jurisdiction and had followed a fair process, and that the penalties imposed were appropriate.

Orders