Raumati v Nursing Council of New Zealand DC Wellington CIV 2006-085-508 [2007] NZDC 1102; [2010] DCR 79 (15 February 2007)

Last Updated: 28 November 2019

IN THE DISTRICT COURT AT WELLINGTON

CIV 2006-085-000508

	BETWEEN	ELLEN RAUMATI AND OTHERS Appellants
	AND	NURSING COUNCIL OF NEW ZEALAND Respondent

Hearing: 4 September 2006

Appearances: Ms J-M Trotman for Appellants

Ms E J Horner for Respondent Judgment: 15 February 2007

JUDGMENT OF JUDGE T J BROADMORE

Introduction

[1] The appellants in this appeal are concerned about decisions made by the Nursing Council in 2004 and 2006 concerning the scope of their practice and the professional name by which they were to be described. Formerly persons in their position were called Enrolled Nurses; from 2004, and as confirmed in 2006, they are to be called Nurse Assistants. In the appeal, the appellants seek to reverse the decisions of the Nursing Council and to require the scope of practice and name for enrolled nurses who qualified after 2000 to be the same as that prescribed for such nurses who became qualified prior to 2000.

[2] This hearing was, however, concerned with two preliminary issues – the appellant’s application for leave to appeal out of time and (on the footing, which

ELLEN RAUMATI AND OTHERS V NURSING COUNCIL OF NEW ZEALAND DC WN CIV 2006-085-

000508 15 February 2007

they contest, that their appeal was in fact out of time); and the Nursing Council’s application to strike out the appeal.

A brief history

[3] The Nurses Act 1977, now repealed, recognised the profession of enrolled nurses. They were second-level nurses, less qualified than registered nurses. They were trained under what might loosely be called an apprenticeship system in hospitals. Upon completion of their training they were admitted to a roll and awarded a badge.

[4] For reasons not explained in the papers before me, the training of enrolled nurses ceased in 1993.

[5] In 2001, however, the Government decided to recommence the training of second-level nurses. That was in line with a promise in the Labour Party’s election platform in 1999. In place of the apprenticeship approach to training, it was decided to offer a one-year certificate programme at a tertiary institution. Two polytechnics, in Whangarei and Christchurch, developed programmes and offered courses. The early graduates of these programmes, including a number of the present appellants, became enrolled nurses and received a badge, as had been the practice earlier.

[6] In 2003, the Nurses Act 1977 was replaced by the Health Practitioners Competence Assurance Act (HPCA Act) of that year. Under that Act (which covers health practitioners generally), the Nursing Council was required to develop scopes of practice for various branches of the nursing profession. In the case of enrolled nurses the scope of practice to be developed would replace a set of standards for the enrolment of nurses which the Nursing Council had issued in September 1992. Following a process of consultation, the nature of which is subject to criticism by the appellants, the Council issued scopes of practice for, inter alia, “nurse assistants” and “enrolled nurses” on 18 August 2004, the formal notice of such scopes of practice being published in “The New Zealand Gazette” on 15 September 2004. The wording of the scopes of practice for the two categories mentioned differs. The significance of the differences is one of the matters at issue between the parties. Primarily,

however, the Notice made it clear that enrolled nurses under that name consisted solely of persons who had completed appropriate courses before 2000. Second-level nurses qualifying subsequently would be registered as “nurse assistants”.

[7] One consequence of the change was that persons who had qualified after 2000 and who had been employed under the title “enrolled nurse”, and those who were undergoing training at the time in the expectation that they would upon qualifying be called “enrolled nurses”, would thereafter be called “nurse assistants”.

[8] Once those affected learned of the Council’s decision and realised its implications, they became extremely concerned. A number of them, including the present appellants, pursued their concern through their union, the New Zealand Nurses Organisation (NZNO), through the Polytechnics at which they were undergoing training, through the news media, and through Members of Parliament. As appears from the affidavit of the first-named appellant, Ms Raumati, and the 26th appellant, Ms Reihana-Ruka, they considered that the changes to the scope of practice and the title adversely affected the value of the qualification that had obtained or were in the process of obtaining. The changes carried implications for their perceived status, employability, and rates of pay. They felt that the change in title, in particular, gave the impression to colleagues, patients and the general public that they were inferior to those persons who had qualified prior to 2000 and remained entitled to be called enrolled nurses.

[9] The initial outcome of protests mounted by those concerned was positive for the protesters. A petition was addressed to the Health Committee of the New Zealand Parliament under the name of Lianne Dalziel MP. The report of the Committee, apparently issued in late November or early December 2004, was strongly supportive of the protesters’ position. After recording the petitioners’ concerns, the Committee said:

We also believe that patients deserve clarity and assurance that they are being cared for by a regulated professional.

We consider that the title should reflect the fact that these health care professionals are nurses. We do not consider “nurse assistant” does this.

We agree with the petitioner that the title of “nurse assistant” creates a perception that no formal training has been undertaken by the person. We consider that this diminishes the achievements of the graduates, and does not recognise their professional standing.

[10] In its conclusion, the Committee “strongly recommended” that the Council revise the title in consultation with the affected party.

[11] It is quite clear that the Committee considered the title “nurse assistant” to be inappropriate and misleading.

[12] It is, however, important to note that the petition (the text of which I have not seen) reportedly emphasised title as the main issue; and that the Committee also emphasised that it saw the issue as one of title alone. It is not clear to me how much, if any, argument was addressed to the Committee concerning the differences in the substantive scope of practice for enrolled nurses and nurse assistants; but the Committee’s report expressly stated that it had no concerns with the scope of practice for the second-level nursing qualification.

[13] The Committee outlined the consultation process as described by the Council, including the Council’s observation that there were “strong views about the appropriate title for second-level nurses”. It is clear, however, that the Committee was not impressed with the outcome. It said:

... we do not think that the title decision reflects the consultation.

[14] As a result of the Health Committee’s report, the Nursing Council engaged in further rounds of consultation. It is apparent from the material placed before me that such consultation was exhaustive and comprehensive. The outcome was, however, again unfavourable to the protestors. In April 2006 the Council reaffirmed its decision to continue with the title “nurse assistant”.

Pleadings

[15] From that decision, if decision it was, Ms Raumati and 35 other affected nurses brought an appeal, filed on 2 May 2006. The appeal was expressly made with reference to s 106 of the HCPA. It refers both to alleged changes in the scope of

practice, and to the title. Drawing attention to the distinction made both as to scope of practice and as to title between persons qualifying before and after 2000, the appellants assert that the changes were arbitrary, discriminatory and inequitable. They also assert that the name change resulted in loss to their reputation in the eyes of the medical profession and the public. They further assert that the changes both to the scope of practice and to the name was not necessary to protect the health and safety of members of the public. They seek to recover the title of enrolled nurse, and to practice under the same scope of practice as that prescribed in the Gazette Notice to which I have referred for enrolled nurses who became qualified prior to 2000.

[16] Curiously, the notice of appeal, whilst listing 36 appellants, does not name the Nursing Council or any other party as a respondent. However, the notice was served on the Council, which gave prompt notice of its intention to appear and be heard. By the time of the first judicial conference on 15 June, preliminary arguments had been identified as to the party status of the Council in relation to the appeal, whether the appeal had been brought in time, and whether the appeal should in any event be struck out.

[17] Subsequently, the appellants applied for an extension of time to appeal, on the footing (which they did not accept) that the appeal was out of time. Their position was that there was an appeal period of 20 working days prescribed in s106(4) of the HPCA Act, that the final decision of which they complained was released on 13 April 2006, and that their appeal, brought on 2 May 2006, was therefore within time.

[18] However, if they are wrong about that, they argue that the delay is excusable in the light of the reviews and further consultation which followed the initial decision of September 2004; that they will suffer prejudice and hardship if leave is not granted; that there is no prejudice to the Nursing Council if leave is granted; and that their appeal has substantial merit.

[19] The notice of opposition filed by the Council argues that the matters complained of do not give rise to a right of appeal under the HPCA Act; and that in

any event the appellants were aware of the initial decision of September 2004 and did not observe the specific time limits for appeals set out in the HPCA Act. The Council further maintains that it will suffer prejudice by virtue of the delay; that the appeal is an abuse of process; and that an extension of time is an indulgence which should not be granted in the circumstances.

[20] The Council’s application to strike out the appeal substantially overlaps the notice of opposition, but adds that the appeal is an abuse of process; and that the decision of April 2006 confirming the change in title was not truly a decision, but merely a confirmation of the decision of September 2004 which does not give rise to a ground of appeal under the Act.

[21] The appellants filed a notice of opposition to the Council’s strike out application, but it adds nothing to the matters previously raised.

Issues

[22] The pleadings and submissions of the parties identify the following issues:

• (1) The standing of the Council in respect of the appeal;
  
• (2) Whether the appeal be struck out on the basis that the appellants have no right of appeal to this court and therefore do not have a reasonable cause of action;
  
• (3) If the appeal is not struck out, is it out of time?
  
• (4) If the appeal is not struck out but is out of time, is there an excusable reason for the delay and should the issues of prejudice to the appellants and prejudice to the Council be resolved in favour of the appellants so that time should be extended?
  
• (5) If time is extended, should the appeal be struck out on the basis that the appellants are guilty of abuse of process?

Standing of Nursing Council

[23] As noted earlier, it is a curious feature of the pleadings that the appellants have not cited the Council as a respondent to the appeal. On the face of it, as submitted by counsel for the Council, that is a nonsense. However, the point cannot be dismissed so easily.

[24] The District Courts Act 1947 is completely silent as to the powers and functions of the District Court on the hearing of appeals to it from other bodies or persons. In those circumstances, the jurisdiction of the Court in respect of such appeals can arise only from the statute establishing the right of appeal. Section 106 of the HCPA Act clearly establishes the jurisdiction of the District Court in relation to appeals under s 106(1).

[25] Section 106(1) is in turn silent as to the procedure to be followed on appeals. I infer that procedural matters were intended to be governed by the District Courts Act and Rules.

[26] Section 122 of the District Courts Act governs the making of rules regulating the practice and procedure of the Court. Section 122(1) authorises rules in respect of the exercise of jurisdiction conferred by the District Courts Act itself. Section 122(1A), enacted as recently as 1999, authorises the making of rules concerning the exercise of jurisdiction conferred by other Acts.

[27] So far as appeals to the District Court are concerned, such rules are to be found in Part 9 of the District Courts Rules. Whatever the position may have been before 1999, it seems to me that Part 9 of the District Court Rules is authorised under s 122(1A). Rule 554(1), which is in Part 9, specifies that the part is to apply to all appeals to the Court under any enactment.

[28] Rule 546 provides for appeals to be brought by filing a notice of appeal in the Court and by serving a copy of the notice on the appropriate officer of the Tribunal by which the decision was made. However, service of a copy of the notice of appeal

on the Tribunal does not of itself constitute the Tribunal a respondent. That question must be resolved by reference to several other rules in Part 9.

[29] Rule 549(3) and (4) expressly state:

• (3) The notice of appeal must not name as a respondent the tribunal that, or person who, made the decision appealed from.
  
• (4) Nothing in subclause (3) limits or affects rule 560(9) (which relates to the entitlement of a decision-maker to be represented and heard).
  

[30] Rule 560(9) gives only limited rights to a decision maker to be represented and heard on the hearing of any appeal. Those rights relevantly relate to issues as to the procedure followed in reaching the decision appealed from and the members of the Tribunal making the decision.

[31] It is true that Rule 546A(2)(b) authorises a Judge at a preliminary conference to direct who is to be cited as respondents to the appeal; but in my opinion that provision does not authorise the Judge to override the express provisions of Rules 549 and 560 to which I have referred.

[32] I should finally refer to Rule 551, cited by counsel for the Council. That provides for service of a copy of the notice of appeal on “every other party to the matter in which the decision was given”.

[33] However, service on such parties does not constitute them parties to the appeal. By virtue of subclauses (2) and (3) of Rule 551, decision makers are deemed to be parties to the matter in which the decision was given only if it involved the hearing of a charge against any person under any Act. That clearly does not include the Council in this instance.

[34] The consequence appears to me that there is nothing in either the HCPA or Part 9 of the District Court Rules which gives the Council standing as a respondent in the appeal.

[35] If the Rules fail to cover any particular circumstances, then the question arises as to whether the Judge has power to “fill the gap”.

[36] Although the District Court has no inherent jurisdiction, it has:

... the right to do what is necessary to enable it to exercise the functions, powers and duties conferred on it by Statute. This is implied as a matter of statutory construction.

(See Somers J in McMenamin v Attorney-General [1985] 2 NZLR 274, 276.)

[37] In this case, it seems that the Court is driven to deploy these back up rights. That is in order to avoid the absurdity of the Council being unable to appear as a respondent to the appeal.

[38] As counsel for the Council pointed out, there are many instances to be found in the law reports of decision making entities being named as respondent, including Housing New Zealand, the Commerce Commission, and the Nursing Council itself.

[39] However, at least as far as appeals under the HCPA Act are concerned, the only basis I can find for permitting the Council to appear and defend its position on the appeal is by direction of the Court under the inherent rights described by Somers J in McMenamin. This is an obvious case in which those rights should be exercised, and I direct that the Council is to be treated for all purposes as a respondent to the appeal.

[40] I add that the source of these difficulties seems to be the focus of Part 9 on appeals from bodies exercising a quasi-judicial function in the sense of reaching an impartial decision between competing protagonists. Part 10 of the High Court Rules appears to have a similar focus. High Court rule 709(2) is to the same effect as rule 549(3), and High Court rule 709(3)(b) is to the same effect as rule 549(4). The High Court rules exclude the Commerce Commission from rule 709(2). The Rules of both Courts are not designed to deal with the situation where the decision-maker is itself, in effect, a protagonist.

[41] In those circumstances, the stance taken by the appellants’ advisers in identifying the parties to the appeal was understandable.

Strike out – no reasonable cause of action as no right of appeal to the District Court in the circumstances?

Approach and introduction

[42] I adopt the approach distilled from the well-known authorities and summarised in Brookers District Court Commentary at DCR 209.06(2) as follows:

• (a) Under r 209 District Courts Rules the Court has jurisdiction to strike out all or part of a statement of claim (or a counterclaim) if no arguable cause of action is disclosed.
  
• (b) The pleading should be struck out if the Court is satisfied that, even on the most favourable interpretation of the facts pleaded or available, the plaintiff could not succeed in law.
  
• (c) For this purpose, the facts asserted in the pleading may be supplemented by affidavit so long as the material relied on is incontrovertible. The Court will not attempt to resolve genuinely disputed issues of fact or consider evidence inconsistent with the pleading.
  
• (d) The jurisdiction is to be exercised sparingly, and only in clear cases where the Court is satisfied that it has both the material and the assistance from the parties required for a definite conclusion. A claim should be struck out only if it is so clearly untenable that it could not possibly succeed.
  
• (e) It follows that the jurisdiction should not be exercised if the pleading could be sustained by appropriate amendment, or if there remains the realistic possibility that at trial evidence could emerge to overcome what appears to be a gap or flaw in the plaintiff’s case.
  
• (f) However, where the claim depends on a question of law capable of decision on the material before it, the Court should determine the question even if extensive argument may be required.
  

[43] These principles are taken from the summary given by Fisher J in Telecom NZ Limited v Clear Communications Limited [1997] 6 NZBLC 102,325.

[44] The Council argues that the Court has no jurisdiction to hear the appeal because the Council’s decisions are not within the categories specified in s 106 of the HPCA Act. The Council argues that this is a matter of interpretation which can be resolved by the Court at the strike-out stage. The Council contends that the absence of jurisdiction means that the appellants’ appeal is so clearly untenable that it cannot succeed. In terms of the authorities, I accept that this is a question of law which I may resolve now. If I hold in favour of the Council, the appeal must be dismissed.

[45] Section 106(1) of the HPCA Act provides a right of appeal to the District Court against any decision of the Council (as an authority responsible for the registration and oversight of nurses) to:

• (a) Decline to register the person as a health practitioner with the authority; or
  
• (b) Decline to authorise a change to the existing scope of practice of the person; or
  
• (c) Decline to issue a practising certificate to the person; or
  
• (d) Suspend his or her practising certificate or registration; or
  
• (e) Cancel his or her registration with the authority; or
  
• (f) Include conditions in the person's scope of practice or the person's proposed scope of practice; or
  
• (g) Vary any conditions in the person's scope of practice.
  

[46] Paragraph (f) and (g) are the only possible kinds of decision which could give rise to this appeal.

Council’s argument

[47] The Council submits that neither the decision concerning the appellants’ scope of practice nor the decision as to title amount to “conditions” within the meaning of s 106. It argues that, in context, the word “conditions” refers to additional restrictions put on an individual’s practice.

[48] There are therefore two stages to the Council’s argument:

1. Whether s 106 is intended to apply to issues such as those raised by the appeal affecting a significant number of people rather than an individual.
   
2. Whether the Council’s decisions relate to “conditions” within the meaning of s 106.

Scope of s 106

[49] The Council submits that s 106 is directed at decisions made by the appropriate authority, or the Health Practitioners Disciplinary Tribunal, in respect of decisions concerning individuals.

[50] It is necessary to locate s 106 in its context.

[51] Section 3 of the HPCA Act, announces that the principal purpose of the Act is to protect the health and safety of members of the public by providing for mechanisms to ensure that health practitioners are competent and fit to practice their professions. In order to attain that purpose, the Act provides for, inter alia, the determination for each health practitioner of the scope of practice within which he or she is competent to practice, and for systems to ensure that no health practitioner practises in that capacity outside his or her scope of practice.

[52] Section 4 of the Act helpfully outlines the provisions of the Act in summary terms. It can be seen that s 106 is located in a series of provisions starting in Part 1 and ending with Part 5. Part 1 deals with prohibitions against practice by unqualified persons; Part 2 with the conditions that a health professional must meet in order to practice; and Part 3 with mechanisms for improving the competence of health practitioners and for protecting the public from practitioners who practice below the required standard of competence. This includes provision for the inclusion in a health practitioner’s scope of practice of conditions considered appropriate.

[53] Part 4 of the Act deals with complaints and discipline. Its focus is solely on complaints about individual practitioners. It includes provision for complaints to professional conduct committees established by the body responsible for oversight of practitioners of the particular health profession involved, and for the hearing of charges by the Health Practitioners Disciplinary Tribunal. Part 5, in which s 106 is located, deals with appeals. Appeals from authorities are directed to the District Court under s 106(1), and appeals from the Health Practitioners Disciplinary Tribunal are directed to the High Court under s 106(2). Part 5 also contains a provision for further appeals on questions of law.

[54] Parts 1 to 5 of the Act therefore seem to me to follow a logical progression dealing with individual practitioners, moving at the outset from preventing unqualified persons from practising and providing for the registration of practitioners, and ending with the final disposition of appeals relating to the practice and conduct of practitioners. It is only then that one reaches, in Part 6, provisions dealing with the functions of authorities such as the Council. These include prescribing qualifications, reviewing and maintaining the competence of practitioners, and setting standards of clinical and cultural competence and ethical conduct.

[55] It is clear to me, therefore, that s 106 is in that portion of the HPCA Act, the major portion, which deals with matters relating to individual practitioners. It is not intended to cover matters of policy or disputes over the manner in which an authority such as the Council exercises its functions. It is intended to deal only with disciplinary and quasi-disciplinary matters.

[56] It follows that I accept the Council’s submission that s 106 was not intended to give individuals a right of appeal to the District Court in respect of a scope of practice adopted by an authority such as the Council.

[57] Moreover, the appellants’ grounds of appeal, set out in paragraph [15] above, raise issues which are essentially ones of administrative law, ill-suited to an appellate approach. It follows that I agree with the Council’s submission that any challenge to that kind of decision falls more properly to be determined by the High Court in judicial review proceedings.

“Conditions” in s 106

[58] I agree with the Council’s submissions that the word “conditions”, as used in s 106, applies to any additional restrictions put on an individual’s practice by an authority pursuant to the provisions of s 48 or s 80 of the HPCA for health or disciplinary reasons. It does not apply to aspects of a scope of practice intended to apply generally to an entire class of health practitioners.

[59] I would add two further references: first, to s 22, covering conditions imposed on the initial registration of individual practitioners; and secondly to s 190, which is in the section of the Act dealing with transitional registration arrangements. That section provides for the continuation of practitioners’ scopes of practice as prevailing at the commencement of the Act. Section 190(3) makes it clear that such continued scopes of practice may be varied or made subject to conditions as if they had been authorised under the new Act; and in my opinion is not intended to apply to the scope of practice of an entire class of health professionals.

[60] By s 5 of the Act, the phrase “scope of practice” :

• (a) means any health service that forms part of a health profession and that is for the time being described under section 11; and
  
• (b) in relation to a health practitioner of that profession, means 1 or more of such health services that the practitioner is, under an authorisation granted under section 21, permitted to perform, subject to any conditions for the time being imposed by the responsible authority
  

[61] I understand (a) to refer to the generic description of the work of that particular profession formulated as described in s 11(2), which provides as follows:

A scope of practice may be described in any way the authority thinks fit, including, without limitation, in any 1 or more of the following ways:

(a) By reference to a name or form of words that is commonly understood by persons who work in the health sector:

• (b) By reference to an area of science or learning:
  
• (c) By reference to tasks commonly performed:
  
• (d) By reference to illnesses or conditions to be diagnosed, treated, or managed.
  

[62] I do not consider the word “conditions” in the definition of “scope of practice” or in s 106 can relate either to the title or to the scope of practice of health professionals practising a particular discipline. That is because the title is one of the matters referred to in s 11(2) as part of the ordinary content of a scope of practice.

Similarly, the content of a scope of practice is to include “reference to tasks commonly performed”. Again, it is a stretch of language to say that any such description is a “condition” of the scope of practice.

[63] The further definition of “scope of practice” in s 5 refers only to individual practitioners upon whom the responsible authority imposes conditions on their practices of the kind described in s 22. These conditions appear to amount to limitations on the practice of an individual practitioner which are not generally applicable to the ordinary practitioner of that discipline, and which may be removed when the need for them has passed. They are plainly not “conditions” of the scope of practice generally applicable to any particular discipline.

Conclusion

[64] The conclusion I have reached, therefore, is that the decisions by the Council complained of by the appellants did not impose conditions within the meaning of s 106(1) of the HCPA Act on the scope of practice of those in the appellants’ position. They are therefore not capable of appeal to the District Court.

[65] This is a conclusion on a question of law. It is a conclusion which can be reached on the material before the Court. In terms of the approach outlined in paragraph [15] above, there is no impediment to my determining the question as I have done.

[66] It follows that the appeal has no reasonable basis and should be struck out.

[67] It may be helpful, however, if I traverse the other issues identified in paragraph [22] above.

Is the appeal out of time?

[68] As already discussed, there are two decisions in question, first as to the content of the relevant scope of practice, and secondly as to the title.

Decision as to scope of practice

[69] The decision as to the content of the relevant scope of practice became generally known in July or August 2004, but was not gazetted until 15 September 2004. Various dates within that period constitute possible starting dates for calculating the time for appeal, but I do not need to analyse which of such dates is the correct starting point, because on any view an appeal in respect of the content of the scope of practice is out of time - if I am wrong in concluding that there is no right of appeal.

[70] However, the appellants contend that the Council’s decision as to the content of the relevant scope of practice was subject to review following the Health Select Committee’s decision on Ms Dalziel’s petition; that the Council then engaged in further consultation on the content on the scope of practice but resolved to retain the content in the same terms as it had determined in 2004; and that it notified its decision on or about 13 April 2006.

[71] The question is, was the Council’s decision on the content of the relevant scope of practice subject to review and further decision following the recommendations of the Health Select Committee?

[72] As I have already noted in paragraph [12], the Health Select Committee’s report expressly stated that it had no concerns with the wording of the relevant scope of practice.

[73] In the interval between the recommendations of the Health Select Committee and the release of the Council’s decision on the title issue in April 2006, there was ongoing consultation and debate between NZNO, representing the appellants and enrolled nurses generally, and the Council. As early as 22 December 2004, Mr Annals, the Chief Executive Officer of NZNO, wrote to the Council making it clear that NZNO considered the scope of practice to be too restrictive and emphasised that its concern was not just about the title. I consider, as an opening gambit, that the letter signalled an expectation of consultation about the content of the scope of practice as well as about the title issue.

[74] It is clear that there followed ongoing debate between NZNO and the Council as to the title issue, and that the Council conducted consultation extensively on the title issue late in 2005. But it is unclear from the material before me whether there was any parallel debate about the scope of practice issue.

[75] Ms Raumati gave evidence of having attended a meeting in December 2005 at which a representative from NZNO gave a Powerpoint presentation concerning negotiations with the Council. She said that –

During this meeting we were advised that negotiations were under way between NZNC and NZNO regarding the change in name and scope of practice.

Ms Raumati produced a hard copy of the relevant part of the Powerpoint presentation. One slide summarised the recommendation of the Health Select Committee concerning the title issue. The next slide referred not only to the title issue, but also to the scope of practice issue and to a further issue concerning the level of education. The slide appears to show NZNO as willing, in January 2005, to discuss the title issue with the Council, as long as the discussions included the scope and education issues. It also indicated that, in April 2005, NZNO had agreed to “park” the scope and education issues in the interests of solving the title issue, but with the important reservation that there would remain -

... a commitment to resolving scope and education.

[76] A further slide reported that the NZNO and the Council had approved a process of attempted negotiated settlement concerning title, scope and education, with a first meeting to be in June.

[77] Although, as noted above, Ms Raumati dated this meeting at December 2005, it is apparent from the last slide just referred to that it must have taken place between April and June 2005.

[78] Significantly, in her affidavit of 14 July 2006, in opposition to the application for an extension of time to appeal, Ms Clarke described the power point presentation as –

a good summary of the first meeting

[79] It is however, fair to say that Ms Clarke then refers to a series of meetings culminating in an agreement to consult on just one title as an alternative.

[80] It seems to be the case, therefore, that in the early part of 2005 there was some discussion between the Council and NZNO concerning possible problems with the scope of practice for second level nurses, but by April 2005 those two parties appear to have agreed to “park” that issue. There was no evidence before me as to what has happened with the issue since then, or since the Council’s decision on the title issue.

[81] What is clear on the evidence, however, is that the Council has made no further decision on the scope issue. The only decision it has made was the decision in 2004 to adopt the revised scope of practice for second level nurses. Assuming contrary to the views I have expressed above that there is a right of appeal against that decision, time for the appeal started running in the latter part of 2004 and has long since expired. An appeal against that decision can therefore proceed, if at all, only if leave is granted.

Decision as to title

[82] The position about decisions as to title is different because of the events which followed the recommendations of the Health Select Committee. Ms Clarke, on behalf of the Council, has sought to argue that the Council’s reaffirmation in April 2006 of the title “Nurse Assistant” did not amount to a decision, presumably because it involved nothing more than retaining the status quo.

[83] I do not agree with that. Following the recommendations of the Health Select Committee, the issue of title for second level nurses was thrown open for review and further consultation and debate occurred. I cannot categorise the steps taken by the Council in April 2006 as anything other than a decision. It is no less of a decision because it was a decision to reaffirm the previous title. In the period between the report of the Health Select Committee and April 2006, all interested parties knew that the question of title was being reviewed. After April 2006, the situation

changed; and, from the perspective of the Council at any rate, the matter was concluded. Just because the decision made was the same as the decision made the best part of two years earlier does not mean that it is not a decision. The Council itself regarded it as a decision: in its letter of 13 April to NZNO it said:

... Council has decided that the title ... will remain as Nurse Assistant.

[84] In my view, therefore, if, contrary to the views I have already expressed, an appeal lies to this Court under s 106 of the HPCA Act, the appeal in respect of title was lodged in time as it was lodged within 20 working days of the date of communication of the Council’s decision.

Extension of Time for Appeal

[85] On the conclusions reached thus far, the appellants do not require an extension of time in order to pursue an appeal in respect of the title issue, but they do require an extension of time in respect of the scope issue – if, of course, I am wrong in concluding that there is no right of appeal.

[86] Section 106(4) of the HPCA Act opens the door for an appeal after the expiry of the specified appeal time of 20 working days. It provides for the District Court to allow an application for an extension of time, whether the application is made before or after the expiry of the nominal period.

[87] The procedural vehicle for consideration of an application for extension of time is provided by Rule 538 District Court Rules. This rule gives wide discretionary power to the Court to extend the time prescribed for an appeal provided that the enactment conferring the right of appeal permits the extension, which is the case here.

Delay excusable?

[88] The appellants submit that the delay is excusable. The appellants refer to the consultation process undertaken after the report of the Health Select Committee. It is necessary to distinguish between the appellants and the NZNO. The NZNO is not a

party to this appeal, so that any knowledge possessed by NZNO is not necessarily to be attributed to the appellants.

[89] So far as the appellants were personally aware, the issue of scope was on the table in discussions between NZNO and the Council, but had been parked by agreement pending resolution of the title issue. During the latter part of 2005, extending into early 2006, Ms Raumati was in regular if not constant touch with NZNO to check on progress with consultations, but it is not clear from her affidavits whether there was any distinction made in those contacts between progress with the title issue and progress with the scope issue.

[90] Mr Annals of NZNO refers in his first affidavit (paragraph 11) to meetings between December 2004 and October 2005 with the Council concerning the title issue and to the consultation process it undertook concerning what Mr Annals describes as the “nurse assistant” issue. (But that seems to be the same as the title issue.)

[91] So far as the evidence extends, I consider that the appellants were entitled to assume that the scope issue was still live, and would be taken up again in due course.

[92] In those circumstances, I consider that the appellants were entitled to take the view that there was no immediate need to commence legal proceedings in respect of the scope issue.

[93] Another way of looking at the question is to ask what would have happened had the appellants lodged an appeal concerning the scope issue immediately after the 2004 decision came to their attention. In those circumstances, I have little doubt but that the Council and the NZNO would have advised the appellants that the issue was being discussed at a political level and at Council/NZNO level; and that there was no point in proceeding with an appeal until those discussions had run their course. That approach would have been entirely appropriate.

[94] I therefore consider that the appellants have a reasonable excuse for the delay.

Prejudice to Council?

[95] The Council has asserted through Ms Clarke that prejudice would arise if an appeal were allowed to proceed on the scope issue, but gives no reason for this view. In her written submissions, counsel for the Council asserts that granting an extension of time would create uncertainty regarding the scopes of practice for all nurses where the scopes were all gazetted as one notice. I am afraid that I do not understand that submission, as the appellants are not seeking to impeach anything other than the scope applicable to second level nurses.

[96] Counsel also submits that a retrospective reversal of the decision as to scope reached in 2004 would lead to “a vacuum in terms of the regulation of second level nurses”; and if that decision is reversed only prospectively, there would be a significant period of uncertainty as to the precise scope of practice relevant to second level nurses.

[97] Those are issues which are relevant to the exercise of the Court’s discretion in considering the merits of an appeal. I do not see that they have any particular relevance to the issue of prejudice in granting leave to appeal. Court proceedings challenging the validity of any administrative decision may give rise to some uncertainty until the result is known, but that does not mean that there should not be an appeal.

[98] By contrast, on the face of the affidavits, the appellants will suffer prejudice if they are not permitted to appeal. In relation to the scope issue (which is the only one relevant at this point) the appellants would be deprived of an opportunity to challenge the requirement that they work under a scope of practice with subtle but nevertheless important differences from the scope of practice applicable to enrolled nurses. The financial and social discrimination and disadvantage reported by Ms Raumati in her affidavit may or may not be technically justified, but there is no reason to doubt its reality and its impact on the appellants generally.

[99] I therefore consider that there is prejudice to the appellants if they are not permitted to pursue their appeal in respect of the scope issue; but no prejudice to the

Council other than the prejudice normally encountered in having to deal with a challenge to an administrative decision if the appeal is allowed to proceed.

[100] Had I held that in the circumstances an appeal lay under s 106, I would have granted the appellants leave to appeal out of time on the scope issue, which, on the basis of my earlier conclusions, would have been the only issue for which such leave was required.

No reasonable cause of action – abuse of process

[101] The Council submits that the appeal amounts to an abuse of process because of political initiatives by NZNO proposed or in prospect. These include a further petition to Parliament and an application to the Regulations Review Committee.

[102] Counsel for the Council did not discuss this topic in any detail. Neither will I.

[103] It appears that it is NZNO rather than the appellants which is pursuing the political initiatives. NZNO’s actions should not be imputed to the appellants, granted that they may endorse them. Moreover, I doubt whether political lobbying and invoking the political process amounts to “collateral proceedings” so as to amount to an abuse of process. The Regulations Review Committee cannot make a decision: all it can do is make a recommendation to the Government or propose disallowance of a regulation in the House. Likewise even a successful petition gives rise to no more than a recommendation the Government. The steps taken by NZNO do not therefore raise the prospect of inconsistent decisions.

[104] In the absence of detailed analysis, my view is that the appeal does not amount to an abuse of process.

Conclusion

[105] I have concluded that the Council has standing to appear as a respondent to the appeal. I have further concluded that the appeal discloses no reasonable cause of action and that it should therefore be dismissed. That is sufficient to dispose of the

appeal. My further conclusions on the time issues, whilst in the appellants’ favour, are therefore irrelevant.

[106] Neither counsel addressed me as to costs. Counsel for the appellants sought them in her written submissions.

[107] Although the appellants have failed, that is not because I consider that they do not have substantive grounds for complaint about the decisions. To the contrary, I have considerable sympathy for their concerns. Whether those concerns can be substantively addressed, or the decisions of which they complain reversed, through legal process is not for me to say. It is inappropriate for me to say anything further about the merits, save that my views are such that I do not consider it appropriate to award costs to the Council.

[108] I bear in mind also that a substantial part of the argument was taken up with issues on which the appellants have succeeded.

[109] I therefore make no order as to costs.

T J Broadmore

District Court Judge