Nursing and Midwifery Board of Australia v AMS
[2024] QCAT 330
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- Nursing and Midwifery Board of Australia v AMS[2024] QCAT 330
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Nursing and Midwifery Board of Australia v AMS[2024] QCAT 330
Nursing and Midwifery Board of Australia v AMS[2024] QCAT 330
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Nursing and Midwifery Board of Australia v AMS [2024] QCAT 330 |
PARTIES: | Nursing and Midwifery Board of Australia (applicant) v AMS (respondent) |
APPLICATION NO/S: | OCR 166 of 2023 OCR 137 of 2024 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 23 August 2024 (ex tempore) |
HEARING DATE: | 23 August 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Judge Dann, Deputy President |
ORDERS: | Pursuant to s 54 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), proceeding number OCR 137 of 2024 be consolidated into proceeding number OCR 166 of 2023. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – procedure – consolidation of proceedings – disciplinary referrals against health practitioners – whether it is appropriate for the proceedings to be consolidated Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 54 HAR v Metro North Hospital and Health Service [2021] QCATA 115 |
APPEARANCES & REPRESENTATION: | |
Applicant: | M J Lucey, solicitor of McCullough Robertson |
Respondent: | No appearance |
REASONS FOR DECISION
- [1]There are two referrals presently before the Tribunal, brought by the Nursing and Midwifery Board of Australia (Board) against the respondent, who at the relevant times, was registered as an enrolled nurse.
- [2]One of them, OCR 166 of 2023, filed on 29 June 2023, involves allegations that the respondent:
- (a)was convicted of a number of offences, including:
- (i)drug offences;
- (ii)breaches of bail;
- (iii)driving under the influence; and
- (iv)three contraventions of a domestic violence order (DVO) to which he was a respondent, contrary to s 177(2)(b) of the Domestic and Family Violence Protection Act 2012 (Qld) (DVFPA);
- (b)has an impairment; and
- (c)has failed to comply with his obligations to notify of the charges in breach of s 130 of the Health Practitioner Regulation National Law (Queensland) (National Law).
- [3]Whilst responding initially to a timetabling email, the respondent has not provided a response or otherwise participated in any substantive way in this proceeding. In response to one request from the Board’s solicitors, he emailed on 3 November 2023 with simply the response, “Cease and desist”.
- [4]This matter has reached the stage where the Board has filed material in readiness for the matter to be listed for a hearing on liability as to whether it can satisfy the Tribunal that the allegations in this referral are established.
- [5]The other referral, OCR 137 of 2024, was filed on 7 June 2024. It alleges one conviction for contravening a DVO contrary to s 177(2)(b) of the DFVPA. That offence constitutes a contravention of effectively the same DVO as the earlier referral. It involves the same aggrieved and the same nominated children. There is perhaps a variation to some aspects of its conditions from 5 July 2021. In this later referral, the Board also alleges the respondent has failed to comply with the obligation to notify of the charge or of his conviction in breach of s 130 of the National Law.
Application for consolidation of proceedings
- [6]On 15 August 2024, the Board filed an application for interim orders, seeking that the two referrals before the Tribunal be consolidated, pursuant to s 54 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). In support of its application, the Board points to the fact that the parties to the two referrals are the same and that the subject conduct is largely the same, in that it involves contraventions of the domestic violence orders and failures to notify pursuant to s 130 of the National Law. The Board submits it would have included the conduct contained in the second referral in the first referral if that criminal process had been resolved in time.
Non-appearance by the respondent
- [7]The respondent did not appear at the directions hearing this morning. I am satisfied on the material before me that he has been served.
- [8]The Tribunal attempted to contact him on the telephone number which is on the file, and the matter simply went through to a recorded message. In light of the fact that he has previously sent a “cease and desist” email, the Tribunal moves today on the basis that he does not presently evince an intention to be involved in the proceeding.
Should the proceedings be consolidated?
- [9]The Board submits consolidation should occur because totality considerations have a bearing on the Tribunal’s discretion as to sanction and the referrals involve related facts and circumstances. The Tribunal accepts that submission, which is plainly correct. The Tribunal also accepts that consolidation is to be preferred over sequencing in the particular facts of this matter, because it will enable the Tribunal to deal more readily with totality considerations.
- [10]Section 54(1) of the QCAT Act provides the Tribunal may direct that two or more proceedings concerning the same or related facts and circumstances be consolidated into one proceeding.
- [11]Judicial Member McGill SC in HAR v Metro North Hospital and Health Service,[1] made these observations (at [6]–[7]):
- … consolidation has the effect of merging the two proceedings into one proceeding, but if proceedings are heard together, they remain separate, so that they give rise to separate relief.
- Consolidation may be appropriate if the whole of the matters in issue can be dealt with in the one grant of relief, and is useful if it would be inappropriate to grant relief in one proceeding without also accommodating the relief appropriate in the other proceeding.
- [12]These proceedings are each a disciplinary referral and, as such, the Tribunal must be constituted by a judicial member assisted by two professional and one public assessor on questions of fact.[2] Bearing in mind the obligations under the QCAT Act in ss 3(b) and 28(2), the Tribunal moves on the basis that it is appropriate that the later referral, for which, in a criminal sense, the respondent was convicted, with no conviction recorded and not further punished, should properly be dealt with as part of the single factual narrative.
- [13]The Tribunal also notes that on 23 April 2024, a non-publication order was made protecting the identification of persons who are parties or witnesses to, or a child concerned in proceedings under the DFVPA, and, by consolidating the referral in OCR 137 of 2024 into OCR 166 of 2023, that non-publication order will extend appropriately for the matters the subject of what is currently the second referral.
- [14]The Tribunal orders that pursuant to s 54(1) of the QCAT Act, proceeding number OCR 137 of 2024 be consolidated into proceeding number OCR 166 of 2023.