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Nursing and Midwifery Board of Australia v YBF[2023] QCAT 460

Nursing and Midwifery Board of Australia v YBF[2023] QCAT 460

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Nursing and Midwifery Board of Australia v YBF [2023] QCAT 460

PARTIES:

nursing and midwifery board of australia

(applicant)

v

YBF

(respondent)

APPLICATION NO/S:

OCR104-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

14 December 2023

HEARING DATE:

On-Papers Hearing

HEARD AT:

Brisbane

DECISION OF:

Judge Dann, Acting President

ORDERS:

  1. 1.
    Pursuant to section 37(4)(a) of the Queensland Civil and Administrative Tribunal Act 2009, (QCAT Act) the Board is exempted from the requirement under section 37(2)(a) of the QCAT Act to give a copy of the Form 22 Referral to the respondent.
  1. 2.
    The Application pursuant to s 93(2) of the QCAT Act that the substantive proceeding be determined in the absence of the Respondent be adjourned to a date to be fixed.
  1. 3.
    The Tribunal directs that:
  1. (a)
    The Board is to provide all materials filed by it in the Tribunal to the respondent by email to the email address the Board has;
  1. (b)
    at the time of sending the email to the respondent, the Board’s solicitor is to send an SMS to the mobile phone number of the respondent, informing the respondent that material has been sent by email to the email address and that if she wishes to be involved in the proceeding, she should respond by contacting the Board’s solicitors;
  1. (c)
    when the Board has taken all steps to prepare the proceeding for hearing, it file an affidavit deposing to the steps it has taken in accordance with these directions and any response received from the respondent;
  1. (d)
    the Board is to file draft directions to progress the matter with seven days of receiving these reasons.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – PROCEDURE – where the applicant Board has referred the respondent practitioner to the Tribunal seeking disciplinary findings and orders and alleging impairment – where the applicant seeks a declaration that service has been effected or alternatively an order that the applicant be exempted from the requirement to give a copy of the referral to the respondent – where the applicant further seeks an order that the substantive proceeding be determined in the absence of the respondent – where the applicant has provided evidence of its efforts to locate and attempts to serve the respondent – whether the Tribunal should declare that the respondent has been served with the referral – whether the Tribunal should order that the applicant be exempted from giving the respondent a copy of the referral – whether the Tribunal should order that the substantive proceeding be determined in the absence of the respondent

Health Practitioner Regulation National Law (Queensland) ss 159, 231

Queensland Civil and Administrative Tribunal Act 2009 ss 37, 93

Queensland Civil and Administrative Tribunal Rules 2009 r 39

Ainsworth v Redd (1990) 19 NSWLR 78

Nursing and Midwifery Board of Australia v Allison [2020] WASAT 136

APPEARANCES & REPRESENTATION:

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]
    In this disciplinary referral, the Nursing and Midwifery Board of Australia (Board) seeks orders:
    1. That the Tribunal declare that service was duly effected on the respondent by 20 April 2023; or alternatively
    2. Pursuant to s 37(4)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) the Board be exempted from the requirement under s 37(2)(a) of the QCAT Act to give a copy of the Form 22 referral to the respondent; and
  2. [2]
    The Board seeks further orders:
    1. pursuant to s 93(2) of the QCAT Act this application and the substantive proceeding be determined in the absence of the respondent, because the Board has made reasonable inquiries to attempt to find the respondent and the Tribunal can be satisfied the respondent cannot be found;
    2. This application be determined on the papers.

What is the proceeding about ?

  1. [3]
    The underlying allegations contained in the referral are, in summary that the respondent, a registered nurse:
    1. was working as such at an aged care facility and during her employment there she misappropriated large quantities of oxycodone, which is a schedule 8 substance, and she falsified records whilst performing her duties on a number of days in April and May 2021;
    2. suffers from a health impairment that detrimentally affects, or is likely to detrimentally affect her capacity to practice as a registered nurse;
    3. diverted medications from her workplace for the purpose of self-administration;
    4. pleaded guilty to one count of stealing by clerks and servants in the Southport Magistrates Court and was convicted with no conviction recorded for that (arising from the misappropriation of medications at work);
    5. failed to notify the Board of being charged and being convicted of the offence;
    6. made false entries in the nursing home’s register for the purpose of misappropriating schedule 8 controlled drugs and schedule 4 restricted drugs.
  2. [4]
    The referral was filed on 13 April 2023. The Board’s solicitor has deposed to a number of steps the Board has taken to serve the referral on the respondent.
  1. [5]
    They include:
  1. (a)
    Obtaining the details in the register the Board maintains for the purposes of s 231 of the Health Practitioner Regulation National Law (Queensland) (National Law) of the respondent’s mobile phone, email address and residential address;
  1. (b)
    That an AHRPA staff member spoke with the respondent by telephone on 5 January 2022 on the mobile number contained in AHPRA’s records. The note of that discussion records, in part, the respondent indicated an intention to return to practice;
  1. (c)
    That the respondent used the email address contained in AHPRA’s records to send an email to the AHPRA representative on 9 February 2022;
  1. (d)
    On 13 April 2023 the Board’s solicitors sent copies of the referral and an application for a non-publication order in respect of the identification of patients named in materials in the Tribunal before the referral by email and post to the email address and residential address in the register;
  1. (e)
    Leaving telephone messages for the respondent to call them about the referral on 20 April 2023, 12 June 2023, 14 July 2023 and 13 September 2023. The voice mail message deposed to in the call of 13 September 2023 is “Hello, this is [YBF’s first name], please leave a message”. A message was left asking the respondent to contact the partner responsible for the matter, with land line and mobile telephone numbers. Again, on 10 November 2023 a representative of the solicitors contacted the mobile telephone number, and the call went through to a voice mail which stated to the effect “this is [YBF’s first name], leave a message”. A message was left asking her to contact the solicitors so they could provide relevant documents to her. There has been no reply to those voicemail messages and the respondent has not telephoned the Board’s solicitors;
  1. (f)
    Engaging skip tracers to try to locate the respondent. They advised in their report dated 19 May 2023 that:
  1. (i)
    The respondent had vacated the residential property, though she had been renting it. There were no forwarding details;
  1. (ii)
    The mobile telephone number appeared to be current. Unanswered telephone calls went through to a voicemail message for [YBF’s first name];
  1. (g)
    Emailing the respondent on 14 July 2023 and 13 September 2023 to the email address noted in the register. “Bounce back” or “undeliverable” receipts were not received in response to either email. The respondent did not reply to the emails; 
  1. (h)
    Texting the respondent to the mobile phone number contained in the register on 13 September 2023 with the name, and telephone contact numbers of the partner responsible immediately after the telephone call of 13 September 2023. The respondent did not reply to the text messages;
  1. (i)
    Australian Border Force records do not contain international movement records in the period from 1 January – 22 September 2023 and the respondent is noted as being onshore as of 10 January 2018; and
  1. (j)
    Further engaging skip tracers to try to locate the respondent. Those skip tracers advised that an attempt to effect personal service on the respondent at the residential address in the register produced the result that on 7 November 2023 when a process server attended the address, the female occupant there told them she had lived there for 2 months and had no knowledge of the respondent.

When is a referral served and when can the Tribunal grant an exemption from the requirements under s 37(2)(a) of the QCAT Act

  1. [6]
    Section 37(2)(a) of the QCAT Act requires the applicant to:

…within the period stated by the rules, give a copy of the application or referral to—

each party to the proceeding;,,,

  1. [7]
    The Board’s first submission is that the referral has been served as required by s 37(2)(a) of the QCAT Act because it has been given to the respondent by posting it to the respondent’s residential address in the AHPRA register.  This is, the Board submits, because:
    1. Rule 39(1) of the QCAT Rules, provides relevantly that a document required to be given to a person may be sent by post to the person’s ‘relevant address’;
    2. In this case, by reading s 39(2)(b)(i) of the Rules with Practice Direction 8/2009 and the requirements of s 231 of the National Law, the respondent’s ‘relevant address’ is the one at [redacted] in [redacted], which is contained in the register; and
    3. A copy of the referral was sent there by post under cover of a letter dated 13 April 2023.
  2. [8]
    The Board’s alternative submission is that if the Tribunal does not accept service has been effected as it so contends, then it should be exempted from effecting service in the circumstances.
  3. [9]
    Section 37(4) of the QCAT Act provides the Tribunal with the power to exempt the Board from the requirement under s 37(2)(a) if it is satisfied that:
    1. the applicant has made all reasonable attempts to give the copy to the person but has been unsuccessful; or
    2. the making and deciding of the application or referral without notice to the person will not cause injustice.

Has service been effected as the Board contends ?

  1. [10]
    The Board’s referral is an originating process.
  2. [11]
    The purpose of service of a proceeding is to ensure the party to the proceeding knows the proceeding has been instituted and has a chance to participate in the proceeding or, if no participation occurs, that that fact may be fairly attributable to a decision that party has made[1].
  3. [12]
    The construction of the statutory provisions contended for by the Board in its argument that service has been effected is strong.
  4. [13]
    However, on the evidence in this particular case, the Tribunal is not satisfied that the respondent has been served by the posting of the material to the residential address in the register. This is because as early as mid-May 2023, a scant month after the Board’s argument would have the respondent having received the material, the evidence is that the respondent was no longer at the residence. It is unknown when she left the address and the evidence of the absence of a forwarding address leads to an inference that the mail may well have gone astray.

Should the Board be exempt from service of the referral ?

  1. [14]
    In this particular case, however, that is not the end of the matter.
  2. [15]
    The Tribunal is grateful to the Board for its helpful written submissions on the operation of s 37(4) of the QCAT Act.
  1. [16]
    Relevantly the Tribunal accepts[2]:
  1. (a)
    That the power to act under s 37(4) is discretionary;
  1. (b)
    ‘all reasonable steps’ is informed by the content of QCAT’s rules about how to effect service;
  1. (c)
    Relevant considerations on the exercise of the discretion include:
  1. (i)
    The potential consequences of the proceeding to each party;
  1. (ii)
    Whether the respondent has attempted to evade service;
  1. (iii)
    Whether the Board might suffer prejudice if it is unable to pursue relief; and
  1. (iv)
    Consequences to third parties, particularly in the context of vocational regulatory proceedings, the purpose of which includes the protection of the public by maintaining proper standards of conduct of practitioners registered in the various professions. 
  1. [17]
    The Tribunal is satisfied that the Board has made all reasonable attempts to serve the respondent in accordance with s 37(4)(a) of the QCAT Act in the particular circumstances because:
    1. The evidence suggests the respondent has not left Australia;
    2. The Board’s solicitors have used an email address (from which there was no bounce back to it) to send the respondent a copy of the referral. There is evidence that the respondent had been using that email address during the investigation process. This cannot in fact constitute service in accordance with s 39(1)(d) of the QCAT Act, because the email address is not included in the respondent’s ‘address for service”;
    3. The Board has left a number of voicemail messages on the mobile telephone number of the respondent. As recently as 10 November 2023 that voicemail message identified the owner of the number was someone called “[YBF’s first name]” which is the respondent’s first name. It is a compelling inference that the “[YBF’s first name]” in the voicemail is the same person as the respondent, who has provided this number to the Board in part satisfaction of the requirement to provide it with her contact details[3]. As such, the respondent should be taken to be aware that the Board is seeking to take further steps concerning her registration;
    4. The Board’s solicitor sent an SMS message to that mobile telephone number. The contents of that message[4] put the respondent on notice that the Board had documents filed in this tribunal which it sought to provide to her. It was not responded to;
    5. The Board has hired location agents to make inquiries of the respondent’s whereabouts on more than one occasion.
  2. [18]
    As to relevant discretionary considerations:
    1. Given the attempts to effect service, the prospects of successfully serving the respondent with the referral seem negligible;
    2. It may be accepted that to proceed in the absence of the respondent may be to her prejudice. The respondent’s registration is currently suspended as a consequence of immediate action taken against her over two years ago in July 2021.  The Board has the power to revoke that suspension[5] but obviously that requires the respondent to engage with the Board so the Board may be satisfied that is an appropriate course. The material shows that the respondent was communicating with AHPRA personnel in February 2022, at which time she must have been aware of the suspension of her registration. As such, her failure to remain contactable by the Board (if that is truly the position), should not impede the Board from pursuing steps to bring the matter to ultimate finalisation; 
    3. The Tribunal has a strong sense that the respondent has not been forthright in her dealings with the Board. That is reflected in the failure to return any of the four messages left on a voicemail for a phone number she has previously advised was her own, and which has a voicemail informing the listener to leave a message for [YBF’s first name] as recently as 10 November 2023. Further, she failed to respond to the SMS message to the same number asking her to contact the Board’s solicitor; and
    4. The nature of the allegations include a conviction of a criminal offence related to the respondent’s work as a nurse. The respondent must have been present in court to plead guilty to the criminal charge. Given that, the respondent could be expected, in a general sense, to anticipate that the Board may well take disciplinary action against her in respect of that conduct. Further, it appears that the respondent was expressly told in a meeting on 3 February 2022 with a representative of the Board that the Board may decide to refer the matter to the Tribunal[6].
  3. [19]
    The Tribunal is persuaded that the discretionary factors in this case weigh in favour of making an order pursuant to s 37(4) of the QCAT Act.

Should orders issue now that the substantive proceeding be determined in the absence of the respondent ?

  1. [20]
    At this time, the referral is only in its initial stage. It is possible that the respondent will engage with the proceeding, once it is apparent to her that the Board is proceeding with the referral. In those circumstances, the Tribunal will adjourn the question of whether the substantive proceeding be determined in the absence of the respondent to a date to be fixed.
  2. [21]
    The Board should take steps to provide the Tribunal with directions for the preparation of submissions and a hearing book containing the material on which the Board intends to rely.  At this time, the Tribunal will not make directions requiring the respondent to file a response or otherwise participate in the proceeding. However, it will require the Board to provide its filed material by email to the email address for the respondent and to send an SMS to the respondent advising of the filing and emailing of that material, so that, at any time, the respondent can indicate a willingness to be involved. If there is such an indication from the respondent, further directions can be made.

Orders

  1. [22]
    The Tribunal orders:
    1. Pursuant to section 37(4)(a) of the Queensland Civil and Administrative Tribunal Act 2009, (QCAT Act) the Board is exempted from the requirement under section 37(2)(a) of the QCAT Act to give a copy of the Form 22 Referral to the respondent.
    2. The Application pursuant to s 93(2) of the QCAT Act that the substantive proceeding be determined in the absence of the Respondent be adjourned to a date to be fixed.
  2. [23]
    The Tribunal directs:
    1. The Board is to provide all materials filed by it in the Tribunal to the respondent by email to the email address the Board has;
    2. at the time of sending an email to the Respondent, the Board’s solicitor is to send an SMS to the mobile phone number of the respondent, informing the respondent that material has been sent by email to the email address and that if she wishes to be involved in the proceeding, she should respond by contacting the Board’s solicitors;
    3. when the Board has taken all steps to prepare the proceeding for hearing, it file an affidavit deposing to the steps it has taken in accordance with these directions and any response received from the respondent;
    4. the Board is to file draft directions to progress the matter with seven days of receiving these reasons.

Footnotes

[1] Ainsworth v Redd (1990) 19 NSWLR 78 at 85 per Kirby ACJ.

[2]  Paragraph [15] of the Board’s submissions; Nursing and Midwifery Board of Australia v Allison [2020] WASAT 136 [24], [25], [29], [32].

[3]  Section 231(b) National Law.

[4]  Set out at [21] of the affidavit of Nicholas John Burkett filed 29 November 2023 and exhibited as NB-16.

[5]  Section 159(2)(b) National Law.

[6]  Page 2 of Exhibit NB4 to the affidavit of Nicholas John Burkett sworn 24 November 2023.

Close

Editorial Notes

  • Published Case Name:

    Nursing and Midwifery Board of Australia v YBF

  • Shortened Case Name:

    Nursing and Midwifery Board of Australia v YBF

  • MNC:

    [2023] QCAT 460

  • Court:

    QCAT

  • Judge(s):

    Judge Dann, Acting President

  • Date:

    14 Dec 2023

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
Ainsworth v Redd (1990) 19 NSW LR 78
2 citations
Jump To
Cite 1 - (1990) 19 NSW LR 78
Cite 2 - (1990) 19 NSW LR 78

Cases Citing

Case NameFull CitationFrequency
Nursing and Midwifery Board of Australia v YBF [2024] QCAT 5362 citations
1

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