Shafston Nursing Pty Ltd v Queensland Nursing Council
[2008] QSC 40
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- Unreported Judgment
- Shafston Nursing Pty Ltd v Queensland Nursing Council[2008] QSC 40
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Shafston Nursing Pty Ltd v Queensland Nursing Council[2008] QSC 40
Shafston Nursing Pty Ltd v Queensland Nursing Council[2008] QSC 40
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 12 March 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 February 2008 |
JUDGE: | McMurdo J |
ORDER: | 1. The application for review is dismissed. 2. I will hear the parties as to costs. |
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW –PROCEDURAL FAIRNESS – Existence of obligation to afford procedural fairness – Decisions affecting a class of persons – Whether affected in a direct and immediate way ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURAL FAIRNESS - Bias ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURAL FAIRNESS – Hearing – Notice to persons affected – Nature of hearing – Opportunity to present case s 12, s 13 Judicial Review Act 1991 (Qld) s 137, s 63, s 65, s 54, s 58 Nursing Act 1992 (Qld) Castle v Director‑General, State Emergency Services [2007] NSWSC 1110, cited Comptroller‑General of Customs v Kawasaki Motors Pty Ltd (No 1) (1991) 32 FCR 219, cited Haoucher v Minister for Immigration & Ethnic Affairs (1990) 169 CLR 648 at 652, cited Kioa v West (1985) 159 CLR 550, cited |
COUNSEL: | Mr S Keim SC with Mr A Musgrave for the applicant Mr P J Davis SC with Mr G Beacham for the respondent |
SOLICITORS: | DLA Phillips Fox for the applicant Rodgers Barnes & Green for the respondent |
[1] The applicant, which I will call Shafston, has carried on a business in the training of nurses. Graduates of its course have received what is called a Diploma of Nursing (Pre‑Enrolment), which until recently, has been a sufficient academic qualification for enrolment as a nurse in Queensland.
[2] The practice of nursing is regulated by the Nursing Act 1992 (Qld) (“the Act”). By s 77H of the Act, a person must not practise nursing if not a registered nurse, an enrolled nurse or authorised under the Act to practise in an area of nursing. The respondent Council, which is established under the Act, is responsible for the enrolment and registration of nurses and the accreditation of courses for their training.
[3] In late 2007 the Council was concerned by the standard of training provided by Shafston. It sought advice about that and exchanged correspondence with the applicant. The Council concluded that the training which had been provided in 2007 was unsatisfactory. A particular concern was what it should do with Shafston’s students who were shortly to graduate and who would be expected to seek enrolment. Ultimately, on 7 December 2007, the Council decided that each of them, numbering 62 applicants for enrolment, would be given what the Act describes as limited enrolment. Within a few days the Council so advised Shaftson and each of the graduates. The effect of the limited enrolment in these cases was that the graduate could work only under the specific supervision of a registered nurse nominated by the graduate’s employer and could not work as an enrolled nurse through a nursing agency. The enrolment was subject also the conditions which required the nurse to notify the Council of his or her employment or any change to it, required the nurse to authorise his or her employer to report to the Council about the nurse at three monthly intervals or more often as requested by the Council, and required the nurse to notify the Council of any change to his or her residential address.
[4] Two of those 62 graduates sought judicial review of the decisions in their cases but their proceedings have been settled. Shafston also claims to be a person aggrieved by the decision or decisions and has brought these proceedings for judicial review, seeking the reconsideration of each of the 60 applications for enrolment. But ultimately Shafston did not seek an order quashing the Council’s decision because that would take from the graduates their status as enrolled nurses. None of them is a party to these proceedings and nor is there evidence of the consent of any of them to the relief which is sought.
[5] Section 137 of the Act provides a right of appeal against certain decisions of the Council, including a decision to limit an enrolment. The appeal lies to the District Court and is by way of re‑hearing[1]. An appeal must be instituted within 28 days[2]. Any person who is aggrieved by a decision to which the section applies may appeal[3]. It is common ground that Shafston is a person aggrieved by the decision or decisions which are challenged here, and that it had a right of appeal. But Shafston has not appealed and nor has any of the graduates. The Council argues that the existence of a right of appeal exercisable by Shafston is of itself sufficient to warrant the dismissal of these proceedings, relying upon s 12 and s 13 of the Judicial Review Act 1991 (Qld), which provide as follows:
“12.When application for statutory order of review may be dismissed
Despite section 10, but without limiting section 48, the court may dismiss an application under section 20 to 22 or 43 that was made to the court in relation to a reviewable matter because –
(a)the applicant has sought a review of the matter by the court or another court, otherwise than under this Act; or
(b)adequate provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by the court or another court.
13.When application for statutory order of review must be dismissed
Despite section 10, but without limiting section 48, if –
(a)an application under section 20 to 22 or 43 is made to the court in relation to a reviewable matter; and
(b)provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by another court or a tribunal, authority or person;
the court must dismiss the application if it is satisfied, having regard to the interests of justice, that it should do so”.
Shafston accepts that these sections are engaged but says that the discretion under s 12 should be exercised in its favour, and that under s 13, the Court should not be satisfied that the interest of justice favour a dismissal of these proceedings.
[6] It is necessary then to consider Shafston’s case.
The Nursing Act
[7] The expressed object of the Act is to ensure safe and competent nursing practice.[4] The Council is established by s 6, with the functions prescribed by s 7 which include the accreditation of nursing courses and the determination of standards for that accreditation[5], the determination of examinations, qualifications, experience and other requirements to be fulfilled by persons applying for and maintaining registration, enrolment or authority to practise, including the monitoring of standards of student assessment in schools of nursing[6], and the establishment and maintenance of a register and a roll of nurses[7]. The Council has 13 members of whom 10 are to be nurses, one a representative of persons using the services of the nursing profession, one a lawyer and one the Council’s executive officer[8]. By s 42A, the Minister may give to the Council a written direction about a matter relevant to the Council’s functions if necessary in the public interest, but a direction cannot be given in relation to, amongst other things, the registration or enrolment of a nurse or a decision as to the accreditation of a nursing course[9].
[8] The Council keeps the Register of Registered Nurses[10] and the Roll of Enrolled Nurses[11]. The qualifications for registration for enrolment are expressed within s 54 as follows:
“54.Qualifications for registration or enrolment
(1)A person qualified to be a registered nurse, or an enrolled nurse, if the person complies with the requirements of this section in relation to registration or enrolment.
(2)The person must satisfy the council that the person meets either of the following educational requirements -
(a)that the person has successfully completed an appropriate accredited nursing course in Queensland (including the passing of any further examinations, and undertaking any additional supervised practice, required by the council) within such period before the making of the application for registration or enrolment as the council determines;
(b) that the person –
(i)has successfully completed an appropriate nursing course conducted outside Queensland for the purposes of registration or enrolment as a nurse that, in the council’s opinion, is based on, and would enable achievement of, competencies similar to those in, and acquired by, accredited nursing courses conducted in Queensland; and
(ii)has gained registration or enrolment as a nurse in a place outside Queensland.
(2A)The person must also satisfy the council that the person is competent and fit to practice nursing.
(3)Without limiting subsection (2A), the person must satisfy the council -
(a)that the person’s state of health is such that the person is capable of carrying out the person’s duties as a registered or enrolled nurse without endangering any patient the person may attend; and
(b)that the person has a sufficient command of the English language, both oral and written, to ensure that the safety and wellbeing of patients is maintained.
(3A)…
(3B)…
(3C)…
(3D)…
(4)If the council is not satisfied that a person has successfully completed an appropriate nursing course mentioned in subsection (2)(a) or (b), the council may permit the person to comply with subsection (2) by undertaking any or all of the following to the council’s satisfaction -
(a)a written examination approved by the council relating to the practice in Queensland of registered or enrolled nurses;
(b)an assessment approved by the council on the clinical practice of registered or enrolled nurses;
(c) a period of nursing practice (whether or not supervised by a registered nurse) determined by the council;
(d) a re‑entry course approved by the council.”
Two points may be noted about this section. The first is that in s 54(2)(a), the word “appropriate” before “accredited nursing course” does not describe the quality of the course and whether its accreditation was appropriate but rather its subject matter and whether that is appropriate for the particular registration or enrolment as the case may be. The second is that the word “competent” in s 54(2A) refers to professional competence (as the Council argues) rather than mental competence (as Shafston argues). But if it did mean “mentally competent”, then “fit” would have to be interpreted to encompass professional competence, for otherwise professional competence would not be an expressed qualification. On either view then, s 54(2A) requires the Council to be satisfied as to an applicant’s professional competence before that person is qualified for enrolment. The successful completion of an appropriate nursing course is a requirement but professional competence is a distinct and further requirement. And where an applicant has completed an accredited nursing course, the Council might yet have such a concern as to the quality of his or her training in that course as to leave the Council unsatisfied as to the applicant’s professional competence.
[9] Section 58(2) provides that the Council must enrol a person as an enrolled nurse if a person applies for enrolment, the application complies with the Act and “the person is qualified to be an enrolled nurse”[12], referring to the qualifications required by s 54. If an application for enrolment is refused, the Council must advise the applicant in writing of the refusal and give reasons[13].
[10] Section 63 provides for provisional registration or enrolment. By s 63(3) the Council may provisionally register or enrol a person, subject to such conditions (including conditions of practice) as the Council determines[14]. Provisional registration or enrolment must be for a stipulated period no longer than six months[15].
[11] Section 65 provides for limited registration or enrolment. It relevantly provides:
“65Limited registration or enrolment
(1)If -
(a) …
(b) …
(c) …
(d) the council is satisfied, on reasonable grounds, that limited registration or enrolment should be imposed on a person;
then -
(e) if the person is an applicant for registration or enrolment – the council may grant limited registration or enrolment to the person; or
(f) if the person is a registered or enrolled nurse – the council may, and, if paragraph (b) applies, must, cancel the nurse’s current registration or enrolment and grant limited registration or enrolment to the person.
(2) The council must –
(a)in a case to which subsection (1)(a), (c) or (d) applies -
(i)determine the extent to which the person’s registration or enrolment is to be limited; and
(ii)impose such conditions on the practice of nursing by the person as will ensure, in the council’s opinion, that the person is capable of carrying out in a professional way such functions as the limited registration or limited enrolment allows the person to carry out; and
(b)in a case to which subsection (1)(b) applies – take such action as is necessary to give effect to the tribunal’s order.
(3) The conditions that the council may impose include conditions relating to 1 or more of the following –
(a)the times and places at which the person may provide nursing care;
(b)the fields of nursing in which the person may provide nursing care;
(c)the supervision of the person by an appropriately qualified registered nurse, or an otherwise appropriately qualified person, when providing nursing care.
(4) Limited registration or enrolment may be granted or renewed for such period (not longer than 2 years) as the council determines.
(5) The council may cancel limited registration or enrolment.
(6) …”
[12] So the power to grant limited registration or enrolment is exercisable only where the person is an applicant for registration or enrolment[16] or is already registered or enrolled[17]. Each of the 62 graduates who was granted limited enrolment was by then an applicant for enrolment. Shafston argues that each was denied natural justice because he or she was denied an opportunity to put a particular case for (unlimited) enrolment, notwithstanding the Council’s opinion about the quality of the training which he or she had received. But the Council denies that it was obliged to provide natural justice to the graduates upon this basis. It argues that it could decide to grant limited enrolment in relation to a class of persons without first receiving applications from each member of the class and that the graduates here were not entitled to procedural fairness because they were affected not as individuals but merely as members of a class, citing the judgments of Deane J in Kioav West[18], Haoucher v Minister for Immigration & Ethnic Affairs[19], Comptroller‑General of Customs v Kawasaki Motors Pty Ltd (No 1)[20] and Castlev Director‑General, State Emergency Services[21]. But what happened here was that the Council has decided upon an outcome for several applications for enrolment for a common reason. Because the power under s 65 was exercisable (relevantly) only in the context of an individual’s application for enrolment, each applicant was affected in his or her capacity as an individual and not merely as a member of a class. Accordingly the Council’s argument that each of the 62 graduates was not entitled to procedural fairness should not be accepted.
[13] Part 4 provides for the accreditation of nursing courses. The Council may grant accreditation only if satisfied that the standard of education offered by the course is sufficient to enable persons undertaking the course to gain the skills and knowledge necessary to competently and safely practise in the area of nursing to which the course relates[22]. Accreditation is granted for a stated period, which is not to exceed five years[23]. The Council is empowered to renew an accreditation[24] or to cancel an accreditation[25]. Before cancelling an accreditation the Council must give the holder a show cause notice by which the holder of the accreditation is informed of the proposed cancellation, the ground for it and the facts and circumstances which are the bases for that ground, and which invites the holder to show why the accreditation should not be cancelled[26]. The holder may make written submissions in response to the show cause notice, which the Council must consider[27].
The Council’s decision
[14] There is no dispute as to the relevant facts. In January 2003 the Council granted to Shafston conditional accreditation for its course until 31 December 2005. On 1 July 2005 the Council extended that period so as to expire on 31 December 2007. In May 2007 the executive officer of the Council appointed Professor David Price to conduct an investigation of the course. He reported in July 2007 and his report was considered by the Council at its meeting on 7 September 2007, when the Council formed the view, on the basis of the report, that there were grounds for cancellation of the accreditation.
[15] The Council issued a show cause notice to Shafston. The Council informed Shafston that it proposed to cancel the accreditation upon a number of stated grounds for which the facts and circumstances were set out. Its notice alleged that the number of students in the course was excessive, resulting in at least the potential compromise of teaching and learning standards, that Shafston had allowed incompetent students to graduate, that the standards of the course had been compromised by allowing students with poor English skills to graduate, that the standards had been further compromised by an alleged directive to teaching staff that no student was to fail, that Shafston had failed to provide a personal counsellor for students and that it had allowed a particular student to graduate when she was unsafe to practise as an enrolled nurse. Professor Price’s report was attached to the notice.
[16] On 4 October 2007 Shafston made a written submission in response. That submission was considered by the Council’s Education Committee, which recommended to the Council that Shafston’s accreditation should be cancelled immediately. When the Council met on 2 November 2007, it decided not to cancel the accreditation at that point but to look at alternatives, such as the Council determining the individual competence of graduates or the placing of limitations and conditions upon enrolments. On 5 November 2007 the Council wrote to Shafston to inform it of this decision, in terms including the following:
“Council determined not to cancel the accreditation of the Diploma of Nursing (Pre-Enrolment) at this time.
Council noted that accreditation for the current course expires on 31 December 2007.
Notwithstanding Council’s decision not to cancel the course’s accreditation, there were a number of concerns expressed about some aspects of the delivery and assessment methodology for the course. At its meeting in December 2007, Council will be considering whether graduates from the current cohort will be required to undertake monitoring or further assessment in order to satisfy Council of the educational requirements necessary to gain enrolment as a nurse in Queensland. You will be notified of this decision”.
Shafston was asked to provide information as to the numbers of students currently enrolled, the names of all students due to complete the course by 31 December 2007 and what was Shafston’s proposal for students who had not completed the course by that date (when the accreditation was to lapse). Then followed further correspondence between Shafston and the Council, in which Shafston continued to argue its case for accreditation. On 27 November 2007, the Council wrote that its Education Committee had recommended that the accreditation be revoked. The Committee’s recommendations were copied to Shafston. The response was a letter from Shafston’s solicitors (dated 3 December 2007) complaining that Shafston had not had an opportunity to be heard and that, so it was claimed, Shafston did not understand all of the Council’s concerns and therefore had not been given an opportunity to respond to them. On the same day Shafston itself sent a further submission to the Council of more than 30 pages. This was further to its 210 page submission which had been considered by the Education Committee a week or so earlier.
[17] On 6 December Shafston filed an originating application in this Court, returnable the next day, seeking an injunction to restrain the cancellation of its accreditation. On 7 December the parties agreed that it should be adjourned to a date to be fixed. On the same day the Council met and considered the recommendations of its Education Committee. It considered whether the most recent graduates from the course should be required to undergo monitoring or further assessment in order to satisfy the Council of their qualifications under s 54. The Council then resolved to exercise its power under s 65 to impose limitations and conditions on the enrolment of those graduates. It further decided not to cancel the accreditation having regard to the imminent expiry of that accreditation.
[18] According to its statement of reasons dated 4 February 2008, the Council largely remained of the views set out in its show cause notice, and therefore the Council was not satisfied that the course had enabled its graduates to gain the skills and knowledge necessary to competently and safely practise as enrolled nurses. Again, according to the statement of reasons, the Council had considered four alternatives. The first was the cancellation of accreditation of the course. The second was to require applicants who were graduates from the course “to submit their examinations and assignments from the course for assessment by Council”. The third was to require them to pass further examinations. The fourth was to require them to “undertake additional supervised practice by way of monitoring”. Having determined that cancellation was not appropriate because of the imminent expiry of the accreditation, the Council considered the second, third and fourth alternatives. Again according to the statement of reasons, the second alternative was inappropriate because the Council believed that it lacked the resources to undertake its own assessment and the third was inappropriate because further examinations would be costly to applicants, would involve considerable delay and were not an adequate measure of clinical competence because they would involve “one‑off testing”. It was thereby determined that the fourth alternative was appropriate.
[19] On 10 December 2007 the Council wrote to Shafston informing it that the Council had determined “to impose limitations and conditions on the licences of all persons who graduated from the course in the last trimester in 2007”. On 11 December 2007 the Council wrote to each graduate to advise of the outcome of his or her application for enrolment. Each was advised that as a result of the Council’s concerns about the course, the Council had conducted an investigation and invited submissions from Shafston and had decided to impose limitations and conditions on the licences of all those who had graduated from the course most recently. The 62 graduates were thus granted limited enrolment. As already mentioned, none appealed the decision, and although two graduates applied for judicial review, their cases have been settled. Shafston did not appeal but sought the statement of reasons which was given on 4 February 2008. It filed the present proceedings for judicial review on 21 December 2007.
[20] At its meeting on 1 February last, the Council determined to refuse an application by Shafston for accreditation of a new nursing course to be offered in 2008. At present then, there is no accredited nursing course which can be conducted by Shafston.
Theapplication for judicial review
[21] Shafston claims to be a person aggrieved by the Council’s decision (or decisions) to impose limitations and conditions on students graduating from its course because the decision “calls into question [Shafston’s] reputation and good standing as a provider of vocational education and training programmes within the education industry”, with the consequence that the decision will have adverse consequences for its ability to provide education and programmes in the future. The Council concedes that in this way Shafston is a person aggrieved by its decision. It is also common ground that, in the same way, Shafston was a person aggrieved by the decision for the purposes of s 137, so that Shafston had been entitled to appeal that decision.
[22] The first of Shafston’s grounds is that it was denied natural justice because it was not given notice that the Council was intending to impose limitations or conditions on its graduates, the basis for doing that, or the types of conditions or limitations that it intended to be impose, and nor was it given an opportunity to make submissions about those things. Secondly, it complains that the graduates were denied natural justice in the same respects. Thirdly, it alleges bias in that the decision to grant limited enrolment for each of the 62 graduates involved a pre‑judgment of each of those cases. Fourthly, it says that the decision was not authorised by the Act because, again, the decision was made without reference to the circumstances of each individual graduate. Further, it is said that certain of the conditions fell outside the type of conditions which may be imposed. Next it is said that there was an improper exercise of the power under s 65 in that necessary considerations were not brought into account which were the “characteristics of individual applicants for enrolment”. It is also said that this was an improper use of the power under s 65 “as an alternative way of carrying out course accreditation functions”.
[23] Shafston says it was denied natural justice, because although it made lengthy submissions as to the quality of its course and the case for its ongoing accreditation, it did not have the opportunity to say anything about whether graduates should have limited enrolment. It is true that its submissions did not address that matter. But that is not because it was denied the opportunity to do so. By the Council’s letter of 5 November 2007, Shafston was advised that the Council had determined not to cancel the accreditation of the course “at this time”, but that the Council would be considering “whether graduates from the current cohort will be required to undertake monitoring or further assessment in order to satisfy Council of the educational requirements necessary to gain enrolment”. Shafston was thereby told of the possibility that graduates’ enrolments would be affected and that one alternative was that they would be required to undertake monitoring. To the extent that the Council was obliged to tell Shafston of the alternatives it was considering for graduates, it far from appears that it was denied natural justice.
[24] As already discussed, the Council was obliged to provide natural justice to each graduate in relation to his or her application for enrolment. If the Council was obliged to inform graduates that it was considering the options set out in its letter of 5 November 2007, that obligation was not discharged by its writing to Shafston and not also to graduates in those terms. And the fact that the contents of that letter were passed on to the graduates would not mean that there had been no denial of natural justice. In any case, it seems from an affidavit sworn by one of the graduates (in her proceedings but read in this hearing) that Shafston did not pass this on to them. This ground then has apparent substance. But it is another matter to say that the duty to provide natural justice ultimately required the Council to assess the competence of each applicant by, for example the second or third alternatives referred to at [18].
[25] The next ground is that the decision or decisions were not permitted by s 65. There appear to be two distinct points here. The first is that the Council did not consider “matters personal to any of the applicants for enrolment”. Instead the Council has limited the enrolment in each case because of the Council’s opinion of the inadequacy of his or her training. In effect the argument is that the Council should have enquired in each case to determine whether, despite inadequate training, the applicant for enrolment was competent. As already mentioned, the Council considered whether to assess each graduate’s examination papers and assignments or to require the graduates to sit for a further examination (the second and third alternatives), but decided that it lacked the resources for the second alternative and that the third alternative would be expensive, delaying and possibly unfair. In my view there was no reviewable error in reaching those opinions. Section 65 does not require the Council to be satisfied that an applicant for enrolment is incompetent, or would be incompetent without the limitations and conditions which the Council proposes to impose, if it is to grant limited enrolment. What it requires is satisfaction, on reasonable grounds, that limited enrolment should be imposed. The Council is entitled to impose limited enrolment where, on reasonable grounds, it is not satisfied of an applicant’s competence to be enrolled unconditionally. That is what occurred here. The second point within this ground is that, it is said, the conditions imposed were outside the type of conditions which may be imposed. They are the conditions referred to earlier at [3]. Section 65(2)(a)(ii) requires the Council to “impose such conditions on the practice of nursing by the person as will ensure, in the Council’s opinion, that the person is capable of carrying out in a professional way such functions as the limited … enrolment allows the person to carry out”. Although the argument was not developed, its effect would appear to be that these are not conditions “on the practice of nursing”, in that they do not prescribe what nursing can or cannot be done. All but one of these conditions, in my view, are clearly connected with the practice of nursing. They are intended to ensure that the nurse’s performance is properly monitored, with regard to the safety of the public. The other condition, that the nurse must notify the Council of a change of residential address, is not so clearly a condition within s 65(2). However it might be thought that this condition is relevant because it enhances the prospects of properly monitoring the nurse’s professional performance and compliance with the limitations. In any case there is no apparent utility in the point, given that judicial review on that ground alone would not assist Shafston.
[26] The next ground is that this involved an improper exercise of the power under s 65. Again there are two distinct arguments made under this ground. The first is that the Council has not considered the personal facts and circumstances of each graduate, and what I have said at [12] equally applies here. The second is, it is said, that the Council has used this power as “an alternative way of carrying out course accreditation functions”. That cannot be accepted. The Council has not mistaken this power for the accreditation power.
[27] Accordingly, of the various arguments for judicial review, only two have apparent substance. One is that individual graduates were denied natural justice, although the content of the Council’s obligation in that respect is another matter. The second is the relatively unimportant matter of the condition as to notification of a change of address.
[28] Shafston is aggrieved by this decision (or decisions) because of the impact upon its business reputation. Yet it seeks relief to the end that the Council would consider the circumstances of each graduate to endeavour to determine whether, regardless of the shortcomings of Shafston’s course, that graduate is sufficiently competent. It does not seek relief which would have the Council reconsider its opinion of Shafston’s training. Its argument tacitly accepts that there will be some who are not sufficiently competent for the unlimited enrolment which ought to follow from the completion of an accredited course. That is hardly relief which is likely to vindicate Shafston’s position. If Shafston’s objective is to prove that its course was of the required standard, the more appropriate forum would have been in the District Court upon a full merits review. Shafston had the opportunity to appeal the decision, and also the decision to refuse accreditation in 2008. Counsel for Shafston said that the proposed 2008 course was a different course, so that a successful challenge about that would not vindicate its position about the 2007 course. But in the circumstances, that distinction seems irrelevant, because the proposed 2008 course must have been judged on the basis of the 2007 course.
[29] A serious difficulty with the relief sought is its potential to adversely affect the position of one or more of these nurses. Shafston’s argument deliberately refrains from seeking a quashing of the Council’s decisions. But if the Council is required to inquire further about individual nurses, it is not impossible that in one or more cases at least, the Council might reach a view which warrants a less favourable outcome for the nurse than he or she presently enjoys. There is no evidence that any of these 60 nurses agree to the relief which is sought.
[30] In essence, Shafston seeks to disturb the result of an administrative decision made, in each case, in response to an individual’s application for enrolment. The relief sought has the potential to adversely affect graduates. Accepting that these decisions have affected Shafston’s reputation, the present proceedings are not apt to vindicate Shafston’s stance. The obvious course for Shafston in that respect was to appeal the decision or the Council’s more recent refusal to accredit Shafston’s 2008 course. Nor are the merits of the present application apparently strong, in that only some grounds have substance, and it is far from clear that they would require the relief which is sought. In all the circumstances the interests of justice do not favour Shafston being allowed to pursue relief in these proceedings, and they should be dismissed under s 12 or s 13.
[31] The application for review is dismissed. I will hear the parties as to costs.
Footnotes
[1] s 137(3)(c).
[2] s 137(3).
[3] s 137(2).
[4] s 3.
[5] s 7(c), (d).
[6] s 7(h).
[7] s 7(i).
[8] s 11.
[9] s 42A(3).
[10] s 48.
[11] s 49.
[12] s 58(2)(d).
[13] s 59.
[14] s 63(4).
[15] s 63(5).
[16] s 65(1)(e).
[17] s 65(1)(f).
[18] (1985) 159 CLR 550 at 632.
[19] (1990) 169 CLR 648 at 652.
[20] (1991) 32 FCR 219 at 238-9.
[21] [2007] NSWSC 1110 at [32] – [35].
[22] s 81(1).
[23] s 83C.
[24] s 83L – s 83O.
[25] s 83Q – s 83V.
[26] s 83R.
[27] s 83S.