Nursing and Midwifery Board of Australia v Linquist [2019] NSWSC 978

Supreme Court New South Wales

Medium Neutral Citation: Nursing and Midwifery Board of Australia v Linquist [2019] NSWSC 978 Hearing dates: 30 July 2019 Decision date: 02 August 2019 Jurisdiction: Common Law Before: Adamson J Decision: See paragraph [62] Catchwords: ADMINISTRATIVE LAW – appeal from Civil and Administrative Tribunal – whether decision made by validly constituted tribunal – four-member tribunal was constituted for the purposes of the hearing – whether principal member could separately and simultaneously constitute herself as the tribunal to decide legal questions – single member of a multi-person tribunal which has already been constituted not authorised to constitute himself or herself as the tribunal on unstated informal basis or to make a decision unilaterally without recourse to the balance of the tribunal – decision void

COSTS – whether successful plaintiff ought pay defendant's costs of proceedings – defendant invited to file submitting appearance – defendant not neutral contradictor – costs follow the event

COSTS – suitors' fund – application for suitors' fund certificate – appropriate to grant certificate where defendant did not contribute to error made by tribunal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 4, 27, 57, Sch 5, cll 11, 13, 29 Health Practitioner Regulation National Law (NSW), ss 5, 52, 55, 77, 82, 84, 165B, 175 Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW), s 6C Suitors' Fund Act 1951 (NSW), s 6 Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 42.1, 50.3 Cases Cited: Brown v West (1990) 169 CLR 195; [1990] HCA 7 Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 92 ALJR 248 Qidwai v Brown [1984] 1 NSWLR 100 Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598; [1945] HCA 53 Category: Principal judgment Parties: Nursing and Midwifery Board of Australia (Plaintiff) Tara-Louise Linquist (Defendant) Representation: Counsel: JJ Loofs SC/K Young (Plaintiff) S Prince SC/T Wong (Defendant)