Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2020
  4. Nursing and Midwifery Board of Australia v Laughlan (No.3) - [2020] QCAT 361

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Nursing and Midwifery Board of Australia v Laughlan (No.3)[2020] QCAT 361

Nursing and Midwifery Board of Australia v Laughlan (No.3)[2020] QCAT 361

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Nursing and Midwifery Board of Australia v Laughlan (No.3) [2020] QCAT 361

PARTIES:

NURSING AND MIDWIFERY BOARD OF AUSTRALIA

(applicant)

v

JODI LAUGhLaN

(respondent)

APPLICATION NO:

OCR278-14

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

1 October 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

ORDERS:

  1. Pursuant to s 61(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal waives compliance with the requirement under r 89(b) of the Queensland Civil and Administrative Tribunal Rules 2009 that an application under s 133 of the Queensland Civil and Administrative Tribunal Act 2009 for a renewal of the Tribunal’s final decision in a proceeding be made within 28 days after the day the applicant was given notice of the decision.
  2. Pursuant to s 134(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal sets aside the decision and orders of the Tribunal made on 4 September 2019 and substitutes the following final decision and order.
  3. The respondent pay the applicant’s costs of the proceeding fixed at $15,000.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the tribunal ordered that the respondent pay the applicant’s costs of the proceeding in a fixed amount – where the tribunal further ordered that, in default of agreement of the parties as to a payment plan, the tribunal would determine a payment plan – where the parties did not reach agreement as to a payment plan – where the respondent failed to engage with the applicant or tribunal to permit the tribunal’s determination of a payment plan – where the applicant applied for a renewal of the decision of the tribunal to dispense with the determination of a payment plan and permit enforcement of the order that the respondent pay the applicant’s costs of the proceeding.

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – costs – application for renewal of final decision.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61, s 133, s 134

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 89

Nursing and Midwifery Board of Australia v Laughlan [2017] QCAT 388

Nursing and Midwifery Board of Australia v Laughlan (No.2) [2019] QCAT 250

REPRESENTATION:

 

Applicant:

Moray & Agnew Lawyers

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

  1. [1]
    The Tribunal gave its substantive decision in these disciplinary proceedings on 20 November 2017.[1]
  2. [2]
    On 4 September 2019 the Tribunal made the following orders in relation to the costs of the proceeding (the costs decision) [2]:
  1. The respondent pay the applicant’s costs of the proceeding fixed at $15,000.
  1. The parties must file in the Tribunal a payment plan by 4pm on 4 October 2019, and in default of agreement, each party must file in the Tribunal a draft payment plan with supporting evidence, if any, by 4pm on 18 October 2019.
  1. The Tribunal will proceed to determine the payment plan on the papers.
  1. Each party has liberty to apply.
  1. [3]
    It is evident from the reasons of the Tribunal that the fixing of costs in the amount of $15,000 and orders directed towards a payment plan were in consideration of the limited financial circumstances of the respondent.
  2. [4]
    The parties did not reach agreement as to a payment plan. 
  3. [5]
    The respondent failed to engage with the applicant or the Tribunal to assist the determination by the Tribunal of the payment plan.  The respondent did not file any draft payment plan or supporting evidence as required by order 2.  The respondent failed to comply with a direction of the Tribunal on 15 November 2019 that she provide to the applicant documents and information relevant to her financial situation.
  4. [6]
    Section 131 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) provides:

“131 Monetary decisions

  1. (1)
    This section applies to a final decision of the tribunal in a proceeding that is a monetary decision, to the extent the decision requires payment of an amount to a person.
  1. (2)
    A person may enforce the final decision by filing a copy of the decision in the registry of a court of competent jurisdiction.
  1. (3)
    On filing a copy of the final decision under subsection (2), the decision is taken to be a money order of the court in which it is filed and may be enforced accordingly.”
  1. [7]
    The costs decision is a monetary decision in that it requires payment of the amount of $15,000 by the respondent to the applicant.  Enforcement of that part of the decision is problematic given the associated orders for determination of a payment plan.  For that reason, the applicant has applied pursuant to s 133 of the QCAT Act for a renewal of the decision. 
  2. [8]
    The provisions of Chapter 2, Division 5 of the QCAT Act are as follows:

“Division 5 – Renewal of Final Decision

133 Application for renewal

  1. (1)
    This section applies if—
  1. (a)
    it is not possible for the tribunal’s final decision in a proceeding to be complied with; or
  1. (b)
    there are problems with interpreting, implementing or enforcing the tribunal’s final decision in a proceeding.
  1. (2)
    A party to the proceeding may apply to the tribunal for a renewal of the final decision.
  1. (3)
    The application must—
  1. (a)
    be in a form substantially complying with rules; and
  1. (b)
    state the reason for the application; and
  1. (c)
    be made—
  1. (i)
    within the period stated in the rules; and
  1. (ii)
    by filing it in the registry.
  1. (4)
    The party must give a copy of the application to—
  1. (a)
    each other party to the proceeding; and
  1. (b)
    each other person to whom notice of the application or referral for the proceeding was given under section 37 and
  1. (c)
    any person the tribunal directs to be given notice of the application.
  1. (5)
    Subsection (4) does not require the party to give a copy of the application to a person if the principal registrar has given or undertaken to give the copy to the person.
  1. (6)
    A party can not make an application under this section in relation to a final decision the subject of an appeal, or an application for leave to appeal, under part 8.
  1. (7)
    Subsection (6) applies whether or not the appeal or application has been decided.

134 Renewed final decision

  1. (1)
    This section applies if, under section 133, a person applies for a renewal of the tribunal’s final decision in a proceeding.
  1. (2)
    The tribunal may make—
  1. (a)
    the same final decision it made when the proceeding was originally decided; or
  1. (b)
    any other appropriate final decision that it could have made, under this Act or an enabling Act, when the proceeding was originally decided.
  1. (3)
    For this Act or an enabling Act, the final decision of the tribunal under subsection (2) is the tribunal’s final decision in the proceeding.
  1. (4)
    The tribunal’s final decision can not be renewed again under this division.”
  1. [9]
    Section 133 of the QCAT Act applies here as it is not possible for the Tribunal’s final decision in the proceeding to be complied with and/or there is a problem in enforcing the Tribunal’s final decision in the proceeding. 
  2. [10]
    The applicant has complied with the procedural requirements of s 133 of the QCAT Act except for the requirement in s 133(3)(c)(i) that the application be made within the period stated in the Rules.  Rule 89 of the Queensland Civil and Administrative Tribunal Rules 2009 provides that an application under s 133 of the Act for a renewal of the Tribunal’s final decision in a proceeding must be made within 28 days after the day that the applicant was notified of the Tribunal’s decision as to costs. The delay in making the application is explicable given the terms of the costs decision, the applicant’s efforts to comply with such terms and the respondent’s failure to do so. In the circumstances, the Tribunal orders, pursuant to s 61(1)(c) of the QCAT Act, that compliance with such procedural requirement be waived.
  3. [11]
    The respondent has been provided by the Tribunal with the copy of the application and supporting evidence filed by the applicant.  The respondent has not responded to an invitation to file written submissions or make oral submissions in response.
  4. [12]
    The respondent has failed to avail herself of the opportunity to agree a payment plan or facilitate the determination of a payment plan by the Tribunal. Given the respondent’s intransigence, the Tribunal is not in any position to make an informed determination of a payment plan. The applicant should not be further delayed in its recovery of the costs ordered by the Tribunal.  
  5. [13]
    In the circumstances, it is appropriate that the Tribunal, pursuant to s 134(2)(b) of the QCAT Act, set aside the costs decision and substitute the following decision:

The respondent pay the applicant’s costs of the proceeding fixed at $15,000.

Footnotes

[1]Nursing and Midwifery Board of Australia v Laughlan [2017] QCAT 388.

[2]Nursing and Midwifery Board of Australia v Laughlan (No.2) [2019] QCAT 250.

Close

Editorial Notes

  • Published Case Name:

    Nursing and Midwifery Board of Australia v Laughlan (No.3)

  • Shortened Case Name:

    Nursing and Midwifery Board of Australia v Laughlan (No.3)

  • MNC:

    [2020] QCAT 361

  • Court:

    QCAT

  • Judge(s):

    Allen QC

  • Date:

    01 Oct 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Nursing and Midwifery Board of Australia v Laughlan [2017] QCAT 388
2 citations
Jump To
Cite 1 - [2017] QCAT 388
Cite 2 - [2017] QCAT 388
Nursing and Midwifery Board of Australia v Laughlan (No.2) [2019] QCAT 250
2 citations
Jump To
Cite 1 - [2019] QCAT 250
Cite 2 - [2019] QCAT 250

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.