Hunter v Nursing and Midwifery Board of Australia

• Jurisdiction: Northern Territory
• Judge: Blokland J
• Judgment Date: 17 August 2017
• Neutral Citation: [2017] NTSC 64
• Docket Number: FILE NO: 21711110
• Court: Supreme Court
• Date: 17 August 2017

[2017] NTSC 64

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment of:

Blokland J

FILE NO: 21711110

Between:

Keith Bunda Hunter

Appellant

and

Nursing and Midwifery Board Of Australia

Respondent

REPRESENTATION:

Counsel:

Appellant: A. Moses SC; D. Mahendra

Respondent: I. Freckelton QC; G. McMaster

BAE Systems Australia Ltd v Rothwell [2013] NTCA 3 ; Bernadt v Medical Board of Australia [2013] WASCA 259; Citigroup Pty Ltd v Mason (2008) 171 FCR 96; Colgate-Palmolive Company v Cussons Pty Ltd (1993) 36 FCR 225; Coppa v Medical Board of Australia (2014) 34 NTLR 74; George v Rockett (1990) 170 CLR 104; GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Kapser v Psychology Board of Australia [No 2] [2015] NTCAT 179; Keith Bunda Hunter v Nursing and Midwifery Board of Australia [2017] NTCAT 109; Martinez v Minister for Immigration and Citizenship (2009) 177 FCR 337; Politis v Trewin (2011) 30 NTLR 1; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64; referred to.

Health Practitioner Regulation National Law (NT) ss 171, 172, 173, 174, 175, 176, 178

Northern Territory Civil and Administrative Tribunal Act (NT) ss 45, 46, 141

Supreme Court Act (NT) s 20

Supreme Court Rules (NT) r 83.22

COSTS — Indemnity costs — Principles regarding award of indemnity costs — Little prospect of successfully defending one ground of appeal — Delay by respondent in making an offer to settle — Respondent to pay indemnity costs from 10 May 2017 — Respondent to pay earlier costs on the standard basis.

PRACTICE AND PROCEDURE — appeal from decision of NTCAT — circumstances in which consent orders may be made — appeal allowed by consent.

PRACTICE AND PROCEDURE — leave to appeal — time for filing application — application to dispense with compliance — order made.

REASONS FOR ALLOWING CONSENT ORDERS ON APPEAL AND DECISION ON COSTS

(Delivered 17 August 2017)

Background

1 On 16 May 2017 the applicant/appellant (the appellant) was granted leave to appeal a decision of the Northern Territory Civil and Administrative Appeal Tribunal (NTCAT) delivered on 16 February 2017. The appeal was allowed and the NTCAT decision was set aside. Further, the Court declared the relevant antecedent decision of the respondent Nursing and Midwifery Board of Australia (the Board) to impose conditions on the appellant's registration to practise as a nurse was invalid and ordered the decision be set aside. The question of costs was reserved.

2 The brief procedural history is that in July 2016, after a performance assessment, the Board imposed conditions on the appellant's registration to practise as a nurse. He appealed the Board's decision to NTCAT. NTCAT upheld the decision of the Board. On appeal to this Court, the parties sought to have the appeal allowed by consent. Given the argument on costs, some consideration of the questions raised in the appeal is required.

The questions of law raised

3 Prior to the appeal being settled, it was anticipated the principal questions of law to be considered were whether NTCAT erred as a matter of law by failing to take into account a relevant consideration, namely the illegality or invalidity of the performance assessment, by determining that illegality or invalidity was of no or limited relevance in the exercise of its functions. Further, whether NTCAT erred as a matter of law by taking into account an irrelevant consideration by relying on the performance assessment report when making its decision, in circumstances where the performance assessment report was invalid or contrary to law. More generally, whether the NTCAT decision was legally unreasonable because it relied on a performance assessment report that was invalid or contrary to law. Finally, whether NTCAT erred by finding as a matter of jurisdictional fact the Board had a “reasonable belief” in the terms required by s 178 of the HealthPractitioner Regulation National Law (NT) (the National Law) that the way the appellant practised the health profession is or may be unsatisfactory, given the asserted invalidity of the performance report said to support the finding of the jurisdictional fact.

4 In the alternative, the appellant anticipated arguing jurisdictional error on the proposed ground that the respondent Board's decision was made without jurisdiction due to its failure to comply with the National Law. Accordingly, it was to be argued the Board's decision was made without lawful jurisdiction.

5 The more particular arguments to be put by the appellant were a suggested failure by the Board to satisfy the requirements of s 171 of the National Law that provides for an assessor to be appointed by the National Agency and chosen by the Board to carry out the assessment. The appointed assessor must be a registered health practitioner and the National Law allows the registered health practitioner to obtain assistance from another health practitioner when conducting assessments. In this instance, the appellant raised the issue that two assessors carried out the assessment and a total of four assessors were ultimately engaged with the assessment. One was not a registered health practitioner. Further, it was to be argued that the Board did not satisfy s 172 of the National Law as it failed to identify two assessors it had purported to appoint to carry out the assessment and had failed to provide the applicant with written notice in accordance with s 173 of the National Law. Finally, as mentioned, it was to be argued that the Board fell into jurisdictional error as the Board did not possess the requisite “reasonable belief” under s 178(1)(a)(i) of the National Law that the appellant's practice is or may be unsatisfactory in the circumstances.

6 Before the consent resolution of the appeal, it was anticipated the Board would argue, inter alia, NTCAT was correct to apply Kapser v Psychology Board of Australia [No 2]1 to conclude that in the context of a merits review, the issue is the factors that constitute the “the correct or preferable decision” as set out in s 46(1) of the Northern Territory Civil and Administrative Tribunal Act (NT). Section 46(1) was described as the objective of the review jurisdiction. It was to be contended NTCAT had taken the correct approach by not embarking upon an analysis of the circumstances that lay behind being seized of the review.

7 Further, the Board would argue that NTCAT was correct to find the role of the additional persons who conducted the assessment “would not be likely, and did not, affect the outcome of the performance assessment”; 2 that the finding was reasonably open as a finding of fact; and that it was reasonable and open to the assessor to draw upon the assistance of others for the conduct of the assessment. The Board was to argue the requirements of s 176 of the National Law were satisfied and that NTCAT was correct to find this was so.

8 As indicated, on the morning of the hearing, senior counsel for both parties advised the Court that the matter had resolved in a particular way and the Court was asked to make consent orders allowing the appeal.

Application of principles on consent orders allowing appeals

9 The Court's jurisdiction to conduct an appeal from NTCAT is governed by s 141 of the Northern Territory Civil and Administrative Tribunal Act. Appeals from NTCAT are confined to questions of law and a party may only appeal with the leave of the Court. In terms of the application for judicial review to determine the question of jurisdictional error, the Court has power to make orders “in such terms as it thinks fit and to issue, or direct the issue of, writs in such terms as it thinks fit”. 3

10 If satisfied that jurisdiction is properly enlivened and that an error of the type contended is arguable, the relevant authorities confirm consent orders may be made. The principle of judicial restraint with respect to settlement by parties to litigation underpins the approach to be taken. I was referred to relevant Federal Court authorities. There is no reason or distinguishing feature that would suggest those principles should not apply in this instance. In Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy it was said: 4

The above observations do not mean that the Court is relieved of the obligation to ensure that a proposed consent order is both within

power and appropriate. There is long established authority that the Court cannot be given power, by consent of the parties, to make an order that it would not have the power to make without their consent: Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 163. That limitation and the requirement that the order be ‘appropriate’ do not mandate close scrutiny of the merits of the proposed order by the Court. There is a principle of judicial restraint in the scrutiny of settlements between legally represented parties of full capacity which applies to consent orders: Australian Competition and Consumer Commission v Real Estate Institute (WA) Inc (1999) 161 ALR 79.

11 In relation to the character of the power conferred by s 24 of the Federal Court of Australia Act 1976 (Cth) in Citigroup Pty Ltd v Mason5 the Full Federal Court stated:

The appellate jurisdiction of the Federal Court is conferred by s 24 of the Federal Court of Australia Act 1976 (Cth). Subsection (1) confers jurisdiction to “hear and determine” a range of appeals. We have little doubt that the observations in the joint judgment in Allesch v Maunz 203 CLR 172 quoted...