Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DXA v Nursing and Midwifery Council of New South Wales [2018] NSWCATOD 143 Hearing dates: 27 June 2018 Date of orders: 27 June 2018 Decision date: 27 June 2018 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member A Currie, Senior Member S Moore, Senior Member S Lovrovich, General Member Decision: (1) The appeal is upheld. (2) The practice conditions imposed on the registration of the appellant by the respondent are revoked. (3) The respondent is to pay the costs of the appellant, assessed in default of agreement Catchwords: PROFESSIONS AND TRADES - health care professionals – nurses – practice conditions – material not of relevant probative value – denial of natural justice Legislation Cited: Health Practitioner Regulation National Law Category: Principal judgment Parties: DXA (Applicant) Nursing and Midwifery Council of New South Wales (Respondent) Representation: Counsel: P Griffin SC (Appellant) H Bennett (Respondent) Solicitors: Health Professionals Councils Authority (Respondent) File Number(s): 2018/00051188 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 an order is made prohibiting publication of the name of the appellant or any material that would identify her in the ex-tempore reasons for decision of the Tribunal made on 27 June 2018. REASONS FOR DECISION 1. This is an appeal brought by the appellant, DXA, from a decision of delegates of the Nursing and Midwifery Council of New South Wales, given on 22 January 2018, under s150 of the Health Practitioner Regulation National Law (the National Law), to practice conditions of her registration as a nurse. 2. In essence, as the proceedings evolved, the appellant challenged the decision of the delegates on two essential bases. The first was the absence of any material of relevant probative value upon which a decision could have been made by the delegates, that conditions should be imposed under s 150 of the National Law. That decision could only be made if the delegates were satisfied that it was appropriate to do so for the protection of the health or safety of any person or persons, or if satisfied that such action was otherwise appropriate in the public interest. 3. When the proceedings commenced today, it became obvious that, in essence, the delegates had proceeded to determine the matter on the basis of information or material available to them which was not, as we have said, of relevant probative value. As the respondent to the appeal, the Nursing and Midwifery Council of New South Wales, has properly conceded through its counsel, that the relevant probative value and effect, was lacking, it is not necessary that we consider the material in any detail. We agree that the appeal should succeed because of this fundamental and unfortunate defect, in the manner in which the delegates of the Council, considered the matter. 4. The second basis for appeal was a denial of natural justice because, in essence, the appellant was not given sufficient and adequate information concerning the factual matters upon which the delegates of the Council have sought to conduct their enquiry under s 150 of the National Law. Again, this is a matter which has been properly conceded on behalf of the respondent and we agree that it is appropriate that the appeal should succeed also on this basis. 5. For all these reasons, we are of the opinion that the appeal must succeed and that the conditions imposed by the respondent, on the registration of the appellant, should be revoked, and we so order accordingly. 6. The appellant has sought a costs order against the respondent which is not opposed and which, in the circumstances, it is appropriate to make. We propose to do so accordingly. Orders 1. We make the following orders: 1. The appeal is upheld. 2. The practice conditions imposed on the registration of the appellant by the respondent are revoked. 3. The respondent is to pay the costs of the appellant, assessed in default of agreement. On 21 June 2019 the tribunal made the following order : Pursuant to section 64 of the NSW Civil and Administrative Tribunal Act 2013 an order is made prohibiting publication of the name of the appellant or any material that would identify her in the ex-tempore reasons for decision of the Tribunal made on 27 June 2018. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 23 August 2018 - Formalised Respondent name 21 June 2019 - Anonymisation DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 June 2019