McLean v Queensland Nursing Council
[2000] QCA 437
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- Appeal Determined (QCA)
- McLean v Queensland Nursing Council[2000] QCA 437
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McLean v Queensland Nursing Council[2000] QCA 437
Reported at [2001] 2 Qd R 403
McLean v Queensland Nursing Council[2000] QCA 437
Reported at [2001] 2 Qd R 403
COURT OF APPEAL
DAVIES JA
MACKENZIE J
HELMAN J
| Appeal No 7766 of 2000 | |
| HEATHER VIOLET McLEAN | Respondent |
| v. | |
| QUEENSLAND NURSING COUNCIL | Applicant/Appellant |
BRISBANE
DATE 20/10/2000
JUDGMENT
HELMAN J: This is an application by the Queensland Nursing Council under s.118 of the District Court Act 1967 for leave to appeal against an order for costs made against it by a District Court judge who had determined an appeal by the respondent under s.137 of the Nursing Act 1992. The appeal was from a decision of the Professional Conduct Committee established under the latter Act.
The respondent is a registered nurse. A charge of conduct discreditable to a registered nurse was preferred against her by the applicant. Three particulars were given. All concerned the respondent's treatment of residents at the Lower Burdekin Home for the Aged in Chippendale Street, Ayr, Queensland. The first particular was of refusing on various occasions to allow named residents to go to the lavatory or to be assisted to it. Each of the second and third particulars was an allegation of mistreating a named resident. After a hearing that took five days the Committee was satisfied of the respondent's guilt of the charge and of the truth of each of the particulars. I have indicated that there was one charge with three particulars. His Honour treated the allegation against the respondent as of three charges. That discrepancy between the way the charge was framed and the way it was treated is not material to the decision we must make.
The Professional Conduct Committee imposed penalties on the respondent: a limitation of her registration, a pecuniary penalty, and an order for costs set at $50,000 payable by instalments. The Committee made certain ancillary orders as well. The order for costs was made pursuant to s.116(4) of the Nursing Act which provides that all costs in relation to a hearing before the committee "are payable by the council [i.e., the applicant] unless the committee orders, on finding the charge proved, that the costs of the proceeding be paid by the person against whom the charge was made". It is the construction put upon that subsection by his Honour which has given rise to this application.
His Honour found that the Professional Conduct Committee had erred in its consideration of the first particular and allowed that part of the respondent's appeal. He set aside the Committee's finding on that particular. Having detected no error of principle and no reason to overturn the factual findings on the second and third particulars of the charge, his Honour dismissed that part of the respondent's appeal.
He then set aside the penalties and the costs order made by the Committee and imposed a less severe penalty concerning registration and reduced the pecuniary penalty. There was a cross-appeal which he dismissed.
After deliberating on the question of costs his Honour concluded that s.116(4) would have permitted the Committee to make an order for costs in favour of the respondent against the applicant and he made such an order. He ordered that the respondent have her costs of the hearing before the Committee "on the higher scale of the District Court on a four day basis without a discount, to include conferences, 80% of travelling expenses for herself, solicitor and counsel, four nights meals and accommodation, 80% of her costs relating to pre-hearing conferences, and 80% of her costs of the directions hearings". His Honour then made an order for costs in favour of the applicant in relation to the second and third particulars. The respondent was ordered to pay those costs "on highest scale of the District Court", but limited to one fee on a one-day basis, but to include costs of travel and accommodation and witness fees for the witnesses relevant to the second and third particulars and any necessary conferences relating to those particulars. The applicant was ordered to pay eighty per cent. of the respondent's costs of the appeal before his Honour, and his Honour made no order as to the costs of the cross-appeal. The applicant seeks leave to appeal only against the first order for costs made by his Honour.
Section 137(8) of the Nursing Act provides that on an appeal the judge may make such orders as the judge considers just, but his Honour's decision proceeded on the premiss, which is clearly correct, that his power to make an award of the costs of proceedings before the Committee was no greater than the Committee's. No argument to the contrary of that proposition was advanced before us.
The Committee's power to award costs is to be found in s.116(4) of the Nursing Act. That subsection makes it the general rule that all costs in relation to a hearing before the Committee are payable by the applicant. To that general rule there is the exception provided for in the subsection. The exception applies only when, as in this case, the charge is found to have been proved. When that condition is satisfied the Committee has the power to make an order that the costs of the proceeding be paid by the person charged.
Section 116(5)(b) then provides, so far as it is relevant, that "an amount of costs" ordered by the Committee to be paid under s.116 is to be paid to the applicant. Nowhere in s.116, or in any other section of the Nursing Act, is there any power conferred on the Committee to make any other order for costs: the only order it is empowered to make is an order against the person charged that he or she pay the costs of the proceeding.
His Honour therefore had power to make an order that the costs of the proceeding be paid by the respondent. Whether the Committee or his Honour had the power to make an order that the respondent pay part only of the costs of the proceeding may be open to doubt but we are not called upon to consider that question. The costs regime provided for in subs.(4) appears to contemplate only two possibilities: either all costs in relation to the hearing be payable by the applicant, or an order that the person found to have been guilty pay to the applicant the costs of the proceeding. No half-and-half or other modification of the award of costs appears to be contemplated.
Section 96(1) of the Nursing Act provides that the Committee is to be constituted "for the purpose of the hearing and determination of a proceeding" in a certain way. Are then the costs in relation to a hearing referred to in s.116(4) costs in a different category from the costs of the proceeding referred to in the same subsection? While the hearing of a proceeding is an event which occurs in the course of a proceeding so that the proceeding is the larger phenomenon, things in relation to the hearing would encompass most, if not all, of what constitutes the proceeding.
It seems therefore that the costs in relation to the hearing before the committee and the costs of the proceeding will be largely the same, although it may perhaps be accepted that it is not inconceivable that the costs in relation to the hearing could be greater than those of the proceeding. It is not necessary for us to consider that question, but I mention it because it has been considered by the Committee and was considered by his Honour.
In the result, I conclude that the construction that should be put upon s.116(4) so far as it applies to this application is quite clear: it gives the Committee the power to make an order for costs only against a person against whom it finds a charge proved. There is no other power to make an order for costs, and hence no power to make an order against the applicant.
The discretion to grant leave to appeal from a decision of the District Court sitting in its appellate jurisdiction is a broad one and, in my view, it should be granted in this case. The question of the construction which should be put upon s.116(4) has arisen more than once in proceedings under the Nursing Act and is likely to arise again. Furthermore, in my view it is plain that his Honour was, with respect to him, in error in making the order the subject of the application. Since we have heard full argument on this matter, I should grant leave to appeal and allow the appeal and order that the order for costs made by his Honour against the applicant be set aside.
DAVIES JA: I agree.
MACKENZIE J: I agree.
...
DAVIES JA: The Court will not make any order as to costs.