DPD v Nursing and Midwifery Council of New South Wales (No 2) [2018] NSWCATOD 144

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DPD v Nursing and Midwifery Council of New South Wales (No 2) [2018] NSWCATOD 144 Hearing dates: 3 August 2018 and 17 August 2018 Date of orders: 17 August 2018 Decision date: 23 August 2018 Jurisdiction: Occupational Division Before: Boland ADCJ, Deputy President Decision: 1. The External Appeal filed 16 July 2018 is dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. Each party is to pay their own costs of the proceedings. Catchwords: PROFESSIONS AND TRADES – Registered Health Practitioner – where practitioner seek to appeal direction she undergo a performance assessment – whether the Tribunal has jurisdiction to hear an appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law Cases Cited: Medical Council of New South Wales v Lee [2017] NSWCA 282 Category: Procedural and other rulings Parties: DPD (Applicant) Nursing and Midwifery Council of NSW (Respondent) Representation: Solicitors: Appellant (self-represented) Health Professionals Council Authority (Respondent) File Number(s): 2018/218386 Publication restriction: An order was made by consent on 21 September 2018 prohibiting the publication of the name of the applicant under Cl 7 of Schedule 5D of the National Law.

Civil and Administrative Tribunal New South Wales

REASONS FOR DECISION

Introduction 1. These reasons deal with whether or not the Tribunal has jurisdiction to hear an appeal against a decision of the Nursing and Midwifery Council of NSW (Council) that a registered nurse, Ms DPD ("the nurse") undergo a performance assessment on 27 August 2018. 2. The matter was first listed in a directions list before me on 3 August 2018. On that occasion the nurse was unrepresented and the Council was represented by Mr Iain Martin (Mr Martin), a solicitor. Mr Martin is the Assistant Director, Legal, Health Professional Councils Authority. He appears as the solicitor for the Council. 3. On 3 August 2018 Mr Martin handed up written submissions in support of his oral application that the nurse's appeal should be dismissed because the Tribunal does not have jurisdiction to hear and determine it. As the nurse was unrepresented, and only received the Council's submissions at the time of the directions hearing, I stood the matter over until 17 August 2018 and directed that the nurse may file any material in opposition to the Council's submissions by 16 August 2018. 4. A substantial submission was received from the nurse to demonstrate her clinical skills together with a considerable number of references. She did not address the provisions of the Health Practitioner Regulation National Law (the National Law) in this material. 5. At the conclusion of the hearing I made orders under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) dismissing the appeal and ordering that each party pay their own costs of the application. These are the reasons for those orders.