Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DPD v Nursing and Midwifery Council of NSW [2019] NSWCATOD 102 Hearing dates: 21 June 2019 Date of orders: 21 June 2019 Decision date: 21 June 2019 Jurisdiction: Occupational Division Before: Boland J, ADCJ, Deputy President Decision: 1. Under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting publication of the name of the appellant or any material which would identify her in the ex tempore reasons for decision of the Tribunal made on 27 June 2018. 2. The applicant's applications filed 21 and 22 May 2019 are otherwise dismissed. Catchwords: PROFESSIONS AND TRADES – registered health professional – where applicant seeks a non publication order. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Reid [2019] NSWCATOD 31 Category: Procedural and other rulings Parties: DPD (Applicant) Nursing and Midwifery Council of NSW (Respondent) Representation: Counsel: Solicitors: Harmers Workplace Lawyers (Applicant) Health Professionals Council Authority (Respondent) File Number(s): 2018/00218386 and 2018/51188 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 Health Practitioner Regulation National Law. ex-tempore REASONS FOR DECISION 1. The applications before me are applications by DPD for a non-publication order. DPD is a registered nurse. For convenience only, I will refer to her as "the practitioner". The practitioner names as the respondent to her application the Registrar of the Tribunal. However, the proceedings in respect of which she seeks a non-publication order were proceedings between herself and the Nursing and Midwifery Council of NSW (the Council). Mr I Martin appears on behalf of the Council today. The Council does not oppose the application. 2. The grounds for the practitioner's application are set out in para 2 of her applications. She states: I cannot find a Registered Nurse position in any other Nursing Agency, Hospital, Health Facilities due to my name was published under NCAT New South Wales Civil and Administrative Tribunal public space, website … 1. In support of her applications the practitioner annexes a letter, undated, addressed to the Principal Registrar of the Tribunal. The gist of her letter is that she had been adversely affected in job applications because there has been reporting of her name in social media associated with her appeal to this Tribunal. Procedural History 1. In 2018 the Council placed conditions on the practitioner's registration. The practitioner appealed against the Council's decision. Her appeal (the Hon F Marks presiding) was allowed. The practice conditions imposed were revoked and the Council was ordered to pay the practitioner's costs as agreed and in default of agreement as assessed. No order was sought by the practitioner at the time of hearing her appeal for a non-publication order. The Tribunal delivered ex-tempore (oral reasons). Those reasons were, at the practitioner's request, subsequently taken out and published on NSW Caselaw, as is generally the case in all decisions in matters under the Health Practitioner Regulation National Law (the National Law). 2. After the appeal was allowed, the Council requested that the practitioner undergo a performance assessment. The practitioner commenced proceedings in the Tribunal seeking to appeal the decision to require her to undergo a performance assessment. As the Tribunal had no jurisdiction to hear an appeal against a performance assessment, the practitioner's application was dismissed. (see DPD v Nursing and Midwifery Council of New South Wales (No 2) [2018] NSWCATOD 144) 3. The practitioner underwent the performance assessment, but again filed an application in the Tribunal objecting to the Council's requirement that she attend such an assessment. That application was also dismissed on 21 September 2018. At the time of hearing that application an oral application was made by the practitioner for a non-publication order under Cl 7 of Schedule 5D of the National Law. The Council consented to the non-publication order being made. The proceedings are reported as DPD v Nursing and Midwifery Council of New South Wales [2018] NSWCATOD 170. 4. A further application was filed by the practitioner on 2 October 2018. That appeal was dismissed but the published reasons did not contain the practitioner's name or any identifying material. The decision notes the earlier non-publication order. 5. The practitioner now seeks a non-publication order in respect of the appeal determined by the panel in respect of which the Hon F Marks presided on 27 June 2018. It is the only material published by the Tribunal in the Occupational Division which makes reference to the practitioner's name. Relevant legal principles and statutory provisions for making a non publication order 1. The principles to be applied in making a non-publication order are well established. Generally, the Tribunal operates on the principle of open justice and non-publication orders are only made in exceptional or special circumstances. 2. There are two possible heads of power to make a non-publication order in proceedings in this Tribunal. Generally, in proceedings conducted under the National Law, orders are made under Cl 7 of Schedule 5D of that Law. 3. Clause 7 of Schedule 5D provides as follows: 7 Release of information [NSW] (1) The person presiding in proceedings before a Committee or the Tribunal may, if the person presiding thinks it appropriate in the particular circumstances of the case (and whether or not on the request of a complainant, the registered health practitioner or student concerned or any other person)— (a) direct that the name of any witness is not to be disclosed in the proceedings; or (b) direct that all or any of the following matters are not to be published— (i) the name and address of any witness; (ii) the name and address of a complainant; (iii) the name and address of a registered health practitioner or student; (iv) any specified evidence; (v) the subject-matter of a complaint. (2) A direction may be amended or revoked at any time by the person presiding. (3) A direction may be given before or during proceedings, but must not be given before the proceedings unless notice is given of the time and place appointed by the person presiding for consideration of the matter to— (a) a person who requested the direction; and (b) the complainant or the registered health practitioner or student concerned, as appropriate; and (c) another person the person presiding thinks fit. (4) For the purposes of this clause, a reference to the name of any person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. (5) A person who contravenes a direction given under this clause is guilty of an offence. Maximum penalty— (a) in the case of a corporation, 150 penalty units; or (b) in any other case, 20 penalty units. 1. The other head of power is s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act). Section 64 is found in Division 4 of the CAT Act. It provides as follows: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 1. The subtle differences in these provisions, and their respective applications is subject of extensive discussion in my decision in Health Care Complaints Commission v Reid [2019] NSWCATOD 31. That decision makes it clear that an order under Cl 7 of Schedule 5D is to be made by the person presiding in proceedings before the Tribunal, may be amended or revoked at any time by the person presiding, and may be given before or during proceedings. There is no power for an order to be made retrospectively under this provision by the person who previously presided at the hearing, or the List Manager. 2. By contrast, the exercise of power under s 64 is not limited as to the person presiding at a hearing, nor is the making of such an order confined to when the proceedings are being heard. 3. In Health Care Complaints Commission v Reid I found that s 64 was available to empower the making of an order after proceedings had been finalised in the Tribunal. 4. As noted in my decision of 21 September 2018 between these parties, I accepted that the practitioner has been upset by fact she had to bring an appeal against conditions wrongly imposed on her registration. I also gave considerable weight to the fact that the Council supported her application, made in the September proceedings, for a non-publication order. That order has been in place and been effective in respect of subsequent applications made by the practitioner in the Health List. The order could not, however, have been made retrospective because of the terms of Cl 7. 5. Although the ex tempore reasons given by the Tribunal on 27 June 2018 were taken out at the practitioner's request, and do not on their face contain anything of detriment to her, I accept there is a possibility that the media, including social media, may have published her name in association with the appeal in which she was entirely successful. That occurrence may have impacted on any employment applications she had made. 6. Accordingly, I am satisfied that it is appropriate that under s 64 of the CAT Act that a non-publication order should be made in respect of the decision made on 27 June 2018. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 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: 28 June 2019