In an earlier edition of Pulse, we reported on disciplinary proceedings in VCAT brought by the Nursing and Midwifery Board of Australia (Board) against a registered nurse. 

The proceedings related to three offences concerning child pornography to which the nurse had pleaded guilty. VCAT found that the nurse had engaged in professional misconduct and unprofessional conduct and issued a reprimand, a suspension and conditions on the nurse’s registration.1

The Supreme Court of Victoria recently upheld an application by the nurse challenging VCAT’s decision on the grounds that it had denied him natural justice and procedural fairness.2  The nurse’s complaint was that although the presiding member of VCAT indicated that the Tribunal would disseminate its findings and then invite submissions on appropriate penalties, the Tribunal proceeded to deliver its findings and make final penalty determinations without providing the promised opportunity to make submissions.

The parties agreed that this was a denial of natural justice and procedural fairness and that the case should go back to a differently constituted Tribunal. The real question was whether that Tribunal should conduct a full rehearing or just determine an appropriate penalty based on the findings of the original Tribunal.

The Supreme Court decided that the interests of fairness required that there be a complete re-hearing. It ordered the Board to pay the nurse’s costs, however granted it an indemnity certificate under the Appeal Costs Act 1998 (Vic). A fund set up under that Act is designed to at least partially compensate litigants who incur legal costs arising from judicial error or other special circumstances for which they are not responsible.