Bahonko v Nurses Board of Victoria (No 2) [2007] FCA 351

FEDERAL COURT OF AUSTRALIA

Bahonko v Nurses Board of Victoria (No 2) [2007] FCA 351 Bainton v Rajski (1992) 29 NSWLR 539 cited Barton v Walker [1979] 2 NSWLR 740 cited British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109 cited Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 231 ALR 663 cited Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 cited Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424 cited J Aron Corp v Newmont Yandal Operations Pty Ltd (2006) 58 ACSR 277 cited Kartinyeri v Commonwealth of Australia (No 2) (1998) 156 ALR 300 cited Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 cited R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 cited R v Lusink; Ex parte Shaw (1980) 32 ALR 47 cited Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 cited S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 cited Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 cited STANISLAWA BAHONKO v NURSES BOARD OF VICTORIA AND MINISTER FOR HEALTH BRONWYN PIKE VID 855 OF 2006

MIDDLETON J

14 MARCH 2007

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 855 OF 2006

BETWEEN: STANISLAWA BAHONKO

Applicant

AND: NURSES BOARD OF VICTORIA

First Respondent

MINISTER FOR HEALTH BRONWYN PIKE

Second Respondent

JUDGE: MIDDLETON J

DATE: 14 MARCH 2007

PLACE: MELBOURNE

REASONS FOR JUDGMENT

Background to proceedings 1 On 20 May 2004, the Nurses Board of Victoria ('the Nurses Board') received a complaint about the professional conduct of the applicant, who was then a registered nurse in Victoria. 2 On 24 May 2004, the Nurses Board decided to initiate a preliminary investigation into the applicant's professional conduct pursuant to s 22 of the Nurses Act 1993 (Vic) ('the Act') and suspend the applicant's registration pending the outcome of any investigation into her conduct, pursuant to s 25 of the Act. 3 The Nurses Board also decided on 24 May 2004 to initiate an investigation into the applicant pursuant to s 26 of the Act concerning the applicant's ability to practise nursing. 4 On 4 June 2004, the applicant filed an application at the Victorian Civil and Administrative Tribunal ('VCAT') for review of the Nurses Board's decisions made on 24 May 2004. On 24 June 2004, the Nurses Board filed an application in VCAT for an order striking out the applicant's application for review. On 19 August 2004, Judge Dove struck out the applicant's application for review: Bahonko v Nurses Board of Victoria [2004] VCAT 1663. 5 In August 2004, the Nurses Board decided to appoint a panel ('the Panel') to hold a formal hearing on 27 September 2004 into the professional conduct of the applicant as a registered nurse. 6 On 25 August 2004, the applicant filed and served a summons and originating motion in the Supreme Court of Victoria seeking, among other things, an injunction to restrain the Nurses Board from hearing the complaint against the applicant. On 6 September 2004 Cummins J of the Supreme Court of Victoria dismissed the application and proceeding: Bahonko v Nurses Board of Victoria [2004] VSC 368; Bahonko v Nurses Board of Victoria [2004] VSC 367. 7 The Panel's formal hearing was held on 27 September 2004 and was not attended by the applicant though she had been invited to attend. On 14 October 2004, the Panel found that the applicant had engaged in unprofessional conduct of a serious nature. The Panel determined to lift the suspension on the applicant's registration as a nurse and impose various restrictions and conditions on her registration. 8 The applicant's registration as a nurse lapsed on 31 December 2004. The applicant has not applied for re-registration, nor complied with any of the conditions imposed on her by the Nurses Board. 9 On 19 January 2006, the applicant made a complaint to the Human Rights and Equal Opportunity Commission ('HREOC') against the Nurses Board, the second respondent and the Victorian Government. The complaint stated, amongst other things, that the applicant believed she had been discriminated against and her human rights have been breached. 10 In the complaint, the applicant asserted that the above conduct had occurred when the Nurses Board suspended her nursing registration on 24 May 2004 and imposed "unlawful/criminal conditions upon my professional practice in October 2004". 11 On 1 June 2006, HREOC terminated the complaint pursuant to s 46PH of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('the HREOC Act') on the basis that it was lacking in substance.