Nursing and Midwifery Board of Australia v Linquist

The plaintiff, the Nursing and Midwifery Board of Australia (the Board), appeals against a decision of the Civil and Administrative Tribunal (the Tribunal) in relation to an appeal brought by the defendant, Tara Linquist, against the Board’s refusal of her application for registration as a nurse.

The decision the subject of appeal was made on 9 November 2018. The summons was filed on 21 December 2018. Accordingly, the Board requires an extension of time under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 50.3(1)(c) of about a fortnight. The extension is opposed. By amended summons filed in Court on 30 July 2019, the Board sought to add two further decisions which it contended ought also be set aside. I granted leave to amend the summons.

Before summarising the relevant facts I propose to set out the legislative provisions relevant to the issues before the Tribunal as well as the provisions relevant to its constitution.

Section 5(ga) of the Health Practitioner Regulation National Law (NSW) (the National Law) defines “nursing” as a “health profession”. The term “responsible tribunal” is defined in s 5 of the National Law which, when read with s 6C of the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW), makes the Tribunal the “responsible tribunal” for the purposes of the National Law. The Board is the relevant national board for nursing by reason of regulation 4 of the Health Practitioner Regulation National Law Regulation 2018.

Part 7 of the National Law, entitled “Registration of health practitioners”, contains Division 1, entitled “General registration”, which contains the following provisions:

Division 6 of Part 7, entitled “Application for registration”, contains s 77, which relevantly provides that an individual may apply to the Board for registration.

Section 82 provides:

Within 30 days of making a decision under s 82, the Board must notify the applicant in writing of the decision and provide reasons. The Board is also required to notify the applicant of the right of appeal: s 84.

Division 14A, entitled “Appeals”, relevantly provides, in s 175, that a person who is the subject of a decision by the Board to refuse to register the person (which is, relevantly, an “appellable decision”), may appeal against the decision to the “appropriate responsible tribunal”. The effect of s 175(3) is that, as Ms Linquist lives in New South Wales, the “appropriate responsible tribunal” is the Tribunal.

Division 10 of the National Law makes provision in Subdivision 2 for the constitution of the Tribunal. Section 165B relevantly provides:

Section 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) relevantly provides:

Section 27(2) of the CAT Act provides:

Section 57 of the CAT Act provides:

An appeal lies to this Court on a question of law from a decision of the Tribunal following a “profession decision”: Sch 5, cll 29(2)(b) and (4)(b). The powers of this Court on such an appeal are set out in Sch 5, cl 29(8), which provides as follows:

Schedule 5 to the CAT Act also relevantly provides:

Ms Linquist holds a Bachelor Degree in Nursing, which was conferred by the University of Sydney in 1997. She worked as a nurse from 1997 until 2006 at which point she ceased practice and undertook family responsibilities. On 13 June 2017 she applied to the Board, pursuant to s 77 of the National Law, for general registration in the profession of nursing.

In a notice dated 4 December 2017 the Board informed Ms Linquist of its refusal of her application on the ground that she did not meet the “Registration standard: Recency of Practice” (the Standard). It informed her that she needed to requalify before she could be registered again and that it was not sufficient for her to undertake a refresher course. The notice said, of present relevance:

On 22 December 2017 Ms Linquist appealed to the Tribunal against the decision pursuant to s 175 of the National Law. There was a directions hearing in the Tribunal before Boland AJ, the List Manager (see Sch 5, cl 11 above), who set down the matter for final hearing on 21 and 22 June 2018. On 8 May 2018 Ms Linquist filed an amended notice of appeal.

On 21 June 2018 Ms Linquist’s appeal was heard by the Tribunal which was constituted by Principal Member Britton, Senior Members Clarke and O’Baugh and General Member Johnston. Both Principal Member Britton and General Member Johnston are Australian lawyers with a current practising certificate.

In the course of the hearing, the Board identified two decisions that were the subject of the appeal:

It was common ground that Ms Linquist did not meet the Standard for the purposes of ss 52(1)(e) and 82(1)(c)(i)(E).

Evidence was tendered before the Tribunal and submissions made as to the matters raised in the appeal. The issues raised by the appeal included a jurisdictional issue (whether the notice dated 4 December 2017 refusing Ms Linquist’s application could found an appeal under s 175), questions of statutory construction (including whether Ms Linquist could have been registered subject to conditions or whether the effect of s 52(1)(e), having regard to the terms of the Standard, meant that she could not be registered until she had completed a course as determined by the Board) and questions which related to the merits of her application.

As the transcript of the hearing records, all of these issues were canvassed at the hearing on 21 June 2018. The evidence included an affidavit of Mr Hillary and a report by Dr Heartfield (which were relied on by the Board) as well as an affidavit of Ms Linquist. A bundle of documents was tendered and Dr Heartfield was cross-examined on her report which went to the merits of the appeal and the question whether it was appropriate for there to be a departure from the Board’s policy.

Dr Heartfield deposed as to the difficulties she saw in Ms Linquist’s length of absence from the nursing profession. For example, she said in cross-examination:

Dr Heartfield was also cross-examined about the re-entry nursing program offered by Deakin University. This cross-examination was presumably undertaken in order that Ms Linquist would have evidence to support her submission that a conditional registration would be appropriate in her case, notwithstanding her lengthy absence from the profession.

The issue of Ms Linquist’s fitness for re-entry to the profession was squarely raised in evidence, written submissions and in the course of the oral hearing on 21 June 2018. It was plainly central to the merits of her appeal against the Board’s refusal to grant her application for registration.

Further, Principal Member Britton was not the only member of the Tribunal who is recorded on the transcript as having asked questions as Senior Member Baugh is also recorded as having done so. At the conclusion of the evidence, the parties made submissions on all issues, including the merits of the application.

At the conclusion of the hearing on 21 June 2018, Principal Member Britton, the presiding member of the Tribunal, said:

On 9 November 2018, the parties were notified by email of the publication of the Tribunal’s decision. The email contained a link to the Tribunal’s decision (the Original Decision). The published decision indicated that the orders made by the Tribunal as constituted by the four members referred to above was:

Later that day, when the link was again accessed, it led to an amended decision which named Principal Member Britton as the sole member of the Tribunal and made no reference to the circumstance that the hearing had been conducted before all four tribunal members (the Amended Decision). The Amended Decision was, in all other respects, indistinguishable from the Original Decision. The Original Decision has been removed from the internet and was no longer accessible. It was common ground in this Court that the Original Decision contained a “clerical error” and had not been made by the four members which constituted the Tribunal. The parties agreed that the Amended Decision was solely the decision of Principal Member Britton.

It is also plain from the terms of the Amended Decision that it was made by Principal Member Britton alone. So much appears from [18] which said as follows:

Mr Prince SC, who appeared with Ms Wong on behalf of Ms Linquist, accepted that s 165B(4) had no application to the present case and that Principal Member Britton’s Amended Decision could not be justified on that basis.

On 23 November 2018, the matter was listed before Boland AJ, as List Manager. The uncontroverted evidence of Clare Dixon, a Senior Legal Advisor employed by the Australian Health Practitioner Regulation Agency, was that, at the directions hearing on 23 November 2018, her Honour “could not provide any explanation as to what had occurred and ordered that the matter be listed for directions before Principal Member Britton.”

The matter was listed for further directions on 13 December 2018 before Principal Member Britton. An unauthorised, but unchallenged, transcript of that directions hearing recorded that Principal Member Britton believed (mistakenly) that it had been determined that the jurisdictional question would be decided by her alone before the four-member tribunal was constituted and that the matter had been heard by her alone and not by a four-member tribunal. The relevant passage is as follows:

At the conclusion of the directions hearing, Principal Member Britton said:

Although it is not entirely clear, I infer that this was a reference to the transcript of the hearing which had already taken place on 21 June 2018. In these circumstances, it would appear that Principal Member Britton had not received a copy of the transcript which formed part of the court book in this Court and may have been relying on her own notes of the hearing on 21 June 2018. Had she had access to the transcript of 21 June 2018 she would have been reminded, as was the case, that the hearing had proceeded on all issues before a four-member tribunal, constituted under s 165B(2). At the conclusion of the directions hearing on 13 December 2018, Principal Member Britton made the following directions:

These directions are consistent with Principal Member Britton’s mistaken belief (which was reflected in [18] of the Amended Decision extracted above) that she had, by herself, decided jurisdictional questions under s 165B(4) (which was accepted by the parties to be inapplicable) and that issues relating to the merits of the appeal were yet to be heard by a four-member tribunal constituted under s 165B(2).

The next meeting of the Board took place on 20 December 2018. At this meeting the Board authorised the commencement of these proceedings. The summons was filed and served on the following day, 21 December 2018.

Mr Loofs SC, who appeared with Ms Young on behalf of the Board, contended that the Original Decision (which was apparently issued in error) and the Amended Decision ought be set aside as they were not made by a validly constituted tribunal and that the matter should be remitted to the tribunal of the four members which had heard the matter on 21 June 2018 for that tribunal to determine the matter. Mr Loofs also contended that the directions and orders made by Boland AJ and Principal Member Britton ought be set aside because they proceeded from an illegal foundation.

Mr Prince submitted that what had occurred was in accordance with the National Law and the CAT Act. He relied on the decision of Brown v West (1990) 169 CLR 195 at 203; [1990] HCA 7 in support of the uncontroversial proposition that a decision-maker’s reference to an incorrect source of power does not affect the exercise of that power if it can be supported by another statutory provision to which reference is not made. He submitted that in so far as the Amended Decision determined that the Board (and therefore the Tribunal) had power to grant registration on conditions under s 52(2) in respect of an applicant who would otherwise be ineligible for registration by reason of s 52(1)(e) and whose application the Board (and the Tribunal) would otherwise be obliged to refuse by reason of s 82(1)(c)(i)(E), it was either an ancillary or interlocutory decision within the meaning of s 4 of the CAT Act because it related to the Tribunal’s power, and therefore its jurisdiction, to grant registration to the applicant. On this basis, Mr Prince contended that it was open to Principal Member Britton to decide these matters, which were the subject of the Amended Decision pursuant to s 165B(5A).

He submitted that there was no impediment to Principal Member Britton separately constituting herself as the tribunal pursuant to s 165B(5A) although a four-member tribunal had been constituted under s 165B(2) for the purposes of the hearing on 21 June 2018. Further, he contended that there was nothing untoward about a hearing before a tribunal constituted by four members also, at the same time, including a tribunal constituted by one of the four (Principal Member Britton). He submitted, in effect, that there was no need for this putative separate and simultaneous constitution to be disclosed to the parties to the proceedings either at the hearing or in the reasons.

In reply, Mr Loofs argued that the construction of s 165B(5A) for which Mr Prince contended would lead to an “anarchic” result which was, in any event, inconsistent with the terms of s 57 of the CAT Act.

It is important to state at the outset that the appeal to this Court is confined to the question of the validity of the Original Decision (if it was a decision at all) and the Amended Decision and consequential directions. The Board has not sought to appeal against what Principal Member Britton purported to decide. Rather, it contended that the Amended Decision was void. It was common ground that this Court has jurisdiction under Sch 5 of the CAT Act to grant the relief sought in the amended summons. In these circumstances, it is not necessary to address s 69 of the Supreme Court Act 1970 (NSW), which would have provided another source of jurisdiction for the orders sought by the Board. In effect, the Board is seeking orders in the nature of certiorari (to quash the Amended Decision and associated orders) and in the nature of mandamus (to require the four-member Tribunal to decide the appeal which was heard by it on 21 June 2018). However, the Court may also make orders to that effect under cl 29(8) of Sch 5.

I accept the Board’s submissions. The Tribunal was constituted under s 165B(2) for the hearing of Ms Linquist’s appeal under s 175. As referred to above, the hearing canvassed the question of statutory construction and the merits of the application. Evidence was adduced and submissions were made on all issues. If, as Mr Prince contended in this Court, there was a paucity of evidence as to the appropriate conditions for which Ms Linquist contended, this was the consequence of forensic decisions made on her behalf by her legal representatives by which she is bound and does not alter the ambit of the hearing on 21 June 2018.

It is plain from s 57 of the CAT Act that the legislature contemplated that questions of law would arise in the course of hearings before a tribunal which was constituted by more than one member and made provision for the resolution of such questions where there was a dispute between members on questions of law. As referred to above, two of the members who constituted the Tribunal on 21 June 2018 were Australian lawyers. While Principal Member Britton’s view could prevail in the event of a dispute, the process required that the four members take part in the decision and questions of law be decided by those of the four members who were Australian lawyers.

The analysis contended for on behalf of Ms Linquist, that it was open to Principal Member Britton to decide legal questions separately from the balance of the Tribunal which had heard the matter, having been constituted under s 165B(2) as a four-member tribunal, cannot be accepted. Section 165B(5A) requires a tribunal to be separately constituted for the purposes of making an ancillary or interlocutory decision. It does not authorise a single member of a multi-person tribunal which has already been constituted to make such a decision unilaterally without recourse to the balance of the tribunal or to constitute himself or herself as the Tribunal on some unstated informal basis.

In the present case, Principal Member Britton did not purport to constitute herself as the Tribunal for the purposes of s 165B(5A). There is no evidence that any step was taken by the President under s 21 of the CAT Act or the List Manager under cll 11 or 13 of Sch 5 of the CAT Act to constitute Principal Member Britton, sitting alone, as the Tribunal. What occurred was that the Tribunal was constituted under s 165B(2) with four members, of whom Principal Member Britton was one.

Moreover, there is no indication that Principal Member Britton would have considered that she was entitled to make the Amended Decision had she recalled that she had been sitting with others and had not been separately constituted to decide an ancillary question under s 165B(5A). Indeed, it was common ground that the provision to which she referred in [18] of the Amended Decision, s 165B(4), was inapplicable to the present case and could not provide a source of power for her to make the Amended Decision.

It is apparent from the transcript of the directions hearing Principal Member Britton conducted on 13 December 2018 that she was under a fundamental misapprehension as to what had occurred, including as to the way the Tribunal had been constituted for the hearing of the appeal on 21 June 2018. This misapprehension may be explained by the lapse of over four months between the hearing on 21 June 2018 and the publication of reasons on 9 November 2018 and the real possibility that Principal Member Britton was relying on her own notes when she wrote the Amended Decision because, at that time, no transcript had yet been prepared. I accept Mr Loofs’ submission that the overwhelming inference is that Principal Member Britton had simply forgotten that she had been sitting with three others on 21 June 2018 and had mistakenly believed that she had been sitting alone to decide a purely jurisdictional issue.

I am not persuaded that the question of statutory construction referred to above was either an ancillary or interlocutory decision. The better view is that it was a question of law which was within the Tribunal’s jurisdiction under s 175 to consider. I reject Mr Prince’s submission that because the question of statutory construction affected the Tribunal’s powers to grant registration, it necessarily affected the Tribunal’s jurisdiction. Although the words power and jurisdiction may, in some circumstances, be synonymous, they are not necessarily so. The Tribunal plainly had the jurisdiction to determine whether it had the power to make an order granting registration to Ms Linquist on conditions. The question of power was, in substance, a question of what remedies were open to the Tribunal to grant to Ms Linquist. In the event of a disagreement between the two members of the Tribunal who were Australian lawyers, the disagreement as to the ambit of the power fell to be resolved in accordance with s 57 of the CAT Act. Section 165B(5A) is a facultative provision designed to deal with decisions which are truly ancillary or interlocutory. To give it the broad construction for which Ms Linquist contended would substantially undermine the parties’ right to have an appeal under s 175 heard and determined by a Tribunal constituted in accordance with s 165B(2).

I note for completeness that the single jurisdictional issue that was raised before the Tribunal on 21 June 2018 was whether the Board’s letter of 4 December 2017 was capable of giving rise to rights of appeal under s 175. The Board’s argument that it did not was rejected in summary fashion at [14] of the Amended Decision. This issue occupied a relatively short time in the hearing on 21 June 2018.

On 21 June 2018 the Tribunal was constituted by all four members. Section 165B(5A) provides no warrant for a “subset” of a constituted Tribunal to separately determine matters in the context of a hearing before the Tribunal. There was, in any event, no formal reconstitution of the Tribunal for that purpose. What occurred did not comply with the law. The Original Decision has been accepted to have been published in error. The Amended Decision was beyond the jurisdiction of Principal Member Britton since she had no authority to make it: R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 606 (Latham CJ); [1945] HCA 53; Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [163] (Hayne J); and Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 92 ALJR 248 at [64] (Edelman J). The Original Decision is void as it was not made at all. The Amended Decision was void for want of jurisdiction and must be set aside, provided an extension of time is granted. The directions made subsequently rested on the incorrect assumption that the Amended Decision was validly made and was within power. They, too, must be set aside, if an extension is granted.

The merits of the appeal to this Court, which are set out above, are relevant to the question whether time ought be extended. UCPR, r 50.3(1) requires a party to file a notice of appeal within 28 days of the material date, which was, relevantly 9 November 2018. An extension in the order of a fortnight is required. I am persuaded, for the following reasons, that this Court ought extend the time for the filing of the summons.

First, although the Amended Decision was made on 9 November 2018, it was not immediately clear who had made the decision. The Original Decision indicated that the decision was that of the four-member Tribunal, whereas the Amended Decision indicated that the decision was solely that of Principal Member Britton. Secondly, the directions hearing before Boland AJ on 23 November 2018 did not shed further light on the matter. It was only when the matter came before Principal Member Britton on 13 December 2018 that it became relatively clear what had happened: namely, that Principal Member Britton had acted under a misapprehension as she had forgotten what had actually occurred on 21 June 2018. The Board moved as quickly as reasonably possible. The summons was drafted in readiness for the Board to consider at its meeting on 20 December 2018 and was filed the following day. In these circumstances, the Board has an overwhelming case for an extension of time under UCPR, r 50.3(1)(c).

There is a question whether Principal Member Britton ought continue on the Tribunal, having regard to the circumstance that she has already expressed her concluded view (in the form of the Amended Decision) on a topic about which the other members of the Tribunal might have a different view and might, as a consequence, persuade her to change her mind. Notwithstanding this potential issue, it was common ground that if the matter were to be remitted to the Tribunal by this Court, it ought be remitted to the same tribunal constituted by the same four members. Mr Loofs confirmed that the Board had no objection to Principal Member Britton’s continued participation. He also confirmed that the Board did not suggest that there would be any bias or apprehension of bias arising from Principal Member Britton’s continuing to participate in the hearing by the four-member Tribunal constituted for the hearing on 21 June 2018.

Further, although some time has passed since the hearing, the evidence was substantially documentary. It was not suggested that the acceptance or otherwise of Dr Heartfield’s evidence depended on any aspect of her demeanour which the four-member Tribunal may have forgotten in the interim. In these circumstances there does not appear to be any reason, as long as the four members remain available, for the Tribunal not to be reconstituted for the purposes of concluding the task they began in the hearing of 21 June 2018 but did not complete when they, for the reasons given above, having reserved their decision, did not actually make a decision or publish reasons.

The Board sought its costs of the proceedings on the basis of the general rule that costs follow the event: UCPR, r 42.1. Mr Prince submitted that Ms Linquist’s costs ought be paid by the Board as she acted as a contradictor in the proceedings in this Court and that the Court otherwise would have had no contradictor to the Board.

Although Ms Linquist, through Mr Prince, acted as a contradictor, she was not a neutral contradictor. Mr Prince’s arguments, if accepted, would have led to the Amended Decision standing. The Amended Decision reflected the construction for which Ms Linquist contended at the hearing on 21 June 2018 and provided her with a potentially significant forensic advantage since, if the Amended Decision and subsequent directions stand, she will be entitled to adduce further evidence as to the appropriate conditions, which Mr Prince accepted had not been adduced at the hearing on 21 June 2018.

I do not accept that the statements in Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 provide any sound basis for a costs order in Ms Linquist’s favour. The errors made by Principal Member Britton were both unfortunate and obvious. They required correction by this Court. Such correction could have occurred without the need for Ms Linquist to appear. Ms Linquist actively opposed the Board’s appeal. It was common ground that, by letter dated 14 March 2019, the Board invited Ms Linquist to file a submitting appearance. Had she done so, she would have incurred fewer, if any, costs. The hearing would have been substantially shorter but for the submissions put on her behalf, which I have rejected. Her involvement has caused the Board to expend considerably more in costs in order to respond to her submissions. In these circumstances, I consider it to be appropriate that Ms Linquist be ordered to pay the Board’s costs.

Mr Prince submitted that, if Ms Linquist was ordered to pay the Board’s costs of the proceedings, she ought be granted a certificate pursuant to s 6(1)(a) of the Suitors’ Fund Act 1951 (NSW). This application was not opposed by the Board. Although s 6 refers in terms to “an appeal against a decision of a court”, the word “court” has been construed to include “tribunal” to give effect to the purpose of the Suitors’ Fund Act: Qidwai v Brown [1984] 1 NSWLR 100 at 102 (Hutley JA). Whether a certificate ought be granted in the present case is a matter of discretion: s 6(5). In Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491, Kirby P and Samuels JA outlined the applicable principles that guide the interpretation of s 6. Their Honours identified the purpose of the statute as:

I am satisfied that Ms Linquist is entitled to a certificate under the Suitors’ Fund Act as she did not contribute to the error made by Principal Member Britton.

For the reasons set out above, I make the following orders: