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- Unreported Judgment
QUEENSLAND CIVIL AND
The Practitioner v Pharmacy Board of Australia (No. 2)  QCAT 251
pharmacy board of australia
OCR016 of 2017
Occupational regulation matters
5 September 2019
On the papers
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – OTHER MATTERS – where the Pharmacy Board of Australia imposed conditions on the registration of the registrant – where the registrant sought a review of the conditions imposed – where the registrant sought a stay of certain conditions imposed – where the application for review was withdrawn – whether a costs order should be made.
Health Ombudsman Act 2013 (Qld) s
Health Practitioner Regulation National Law (Queensland) s 156, s 178
Queensland Civil and Administrative Tribunal Act 2009 s 32, s 102
Health Ombudsman v Antley  QCAT 472, cited
Medical Board of Australia v Wong  QCA 42, cited
Ralocom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2)  QCAT 412, cited
Tamawood Ltd & Anor v Paans  QCA 111, cited
D M Favell, instructed by Plastiras Lawyers
AD Scott, instructed by Moray & Agnew Lawyers
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
- On 13 January 2017, the applicant pharmacist filed an application to review a decision of the Pharmacy Board of Australia (Board) made on 16 December 2016:
- (a)pursuant to s 156 of the Health Practitioner Regulation National Law (Queensland) (National Law), to take immediate action against the applicant by way of the imposition of conditions on the applicant’s registration on the basis that it had formed a reasonable belief that the applicant posed a serious risk to the public and immediate action was necessary; and
- (b)pursuant to s 178 of the National Law, that the applicant had or may have an impairment, the Board having formed a reasonable belief, and to require the applicant to undergo a health assessment pursuant to the National Law.
- In accordance with the conditions imposed, the applicant underwent health assessments by Dr Steinberg and a report from Dr Steinberg dated 22 February 2017 was provided to the Board. Reports were obtained by the applicant from Dr Bailey dated 16 February 2017.
- As part of the assessment process undertaken by Dr Steinberg, Dr Steinberg required the practitioner to attend for pathology testing, including urine drug screening, hair drug screening and blood testing for alcohol use. On behalf of the applicant, the Board were notified that the applicant did not accept the Board had power to require her to undergo testing of that type and the applicant refused to undergo the further testing.
- A further decision was made by the Board on 21 April 2017 and confirmed on 26 April 2017. The Board had before it the reports of Dr Steinberg and Dr Bailey. At the time of the Board’s decision, the applicant had still not undergone the pathology testing requested by Dr Steinberg. The Board decided to remove the conditions imposed under the Board’s immediate action power and decided under s 178 and s 179 of the National Law to impose conditions, having formed a reasonable belief that the practitioner has an impairment that detrimentally affects, or is likely to detrimentally affect, the practitioner’s capacity to practise the profession. The conditions were intended to implement a formal process of engagement and monitoring of the practitioner’s health impairment.
- The conditions included condition 7, namely a requirement that, within 7 days of the notice of the imposition of the conditions the practitioner commence blood testing by way of carbohydrate deficit transfer, liver function testing and mean corpuscular volume testing on a fortnightly basis. The conditions restricted the taking of other than prescribed substances and required pharmacists working with the practitioner to have sighted the conditions.
- Notice was given by the solicitors for the applicant of an intention to seek a review before the Tribunal of the imposition of the conditions generally. In the letter giving notice, a request was made for an extension of time for compliance with condition 7. When that request was refused an urgent application was made for the grant of a stay with respect to condition 7 and a number of other conditions.
- The application for a stay was heard by the Tribunal on 8 May 2017. The applicant argued that the condition relating to testing were not for the public benefit but to enable the Board to use the evidence to build a case against the practitioner, that the Board did not have power to impose the testing condition and that it was unreasonable to require the practitioner to disclose the conditions to the practitioner’s employees.
- On 11 May 2017, the Tribunal gave its substantive decision in relation to the application for a stay and refused it. The Tribunal was not persuaded that the conditions were so clearly for an improper purpose as to justify a stay and held that the submission as to power was not so compelling as to warrant a conclusion that the condition as to testing was unlawful and that the condition as to disclosure was not so unreasonable to justify the granting of a stay.
- At the hearing of the application for a stay, directions were made to progress the application for review. The directions provided for the filing of a further review application in relation to the decision of the Board on 21 April 2017, the filing of sworn evidence by each party, including any medical reports, and the listing of the application for an experts’ conclave.
- The further application for review was filed on 17 May 2017. Subsequent directions resulted in an extension of time being granted for the completion of steps in the preparation of the matter, including a delay in the expert conclave to a date not before 24 August 2017.
- The applicant failed to provide her affidavit material in accordance with the varied timetable. An application was made by the Board for a directions hearing before the Tribunal. The application for directions was listed for 17 August 2017.
- On 15 August 2017, in an email from the applicant’s solicitors to the solicitors for the Board, the Board’s solicitors were advised that a Notice of Withdrawal would be filed that afternoon. The effect of the filing of a Notice of Withdrawal was that the conditions imposed by the Board by its decision on 21 April 2017 remained in place.
- Directions were made by the Tribunal on 21 August 2017 permitting the parties to file submissions as to costs as a result of the filing of the Notice of Withdrawal.
- By its submissions, the Board seeks its costs of the applications for review, both the original application filed 17 January 2017 and the amended application filed 3 May 2017, and the application for a stay determined on 8 May 2017. The applicant submits that the appropriate order is that each party bear their own costs of this proceeding.
Approach to costs
- The applications before the Tribunal were matters to be determined in the Tribunal’s review jurisdiction.
- Following the introduction of the Health Ombudsman Act 2013 (Qld) (HO Act) and the consequential change to the National Law, the express and unfettered power given to the Tribunal to award costs was removed.
- The effect of the change meant that the parties must each pay their own costs unless the “interests of justice require” the Tribunal to make a costs order against a party. This is the approach which had been laid down for the Tribunal from its inception, and the consequence of the amendment to the National Law was to make that approach applicable to health disciplinary matters, including reviews of decisions made by a National Board.
- Section 102(3) of the QCAT Act gives the Tribunal guidance as to the matters that it may have regard to in considering whether the interests of justice requires a costs order including necessarily disadvantaging another party, the nature and complexity of the dispute, the relative strengths of the claims made by each party, whether the applicant in a review proceeding generally attempted to enable and help the decision maker, the financial circumstances of the parties and anything else the Tribunal considers relevant.
- The Tribunal is given a broad discretion and in the exercise of that discretion, the question for the Tribunal has been formulated as:
… Whether the circumstances relevant to the discretion inherent in the phrase “the interests of justice” points so compellingly to a costs award that they overcome the strong contraindication against a costs order in s 100.
- Judicial Member Thomas in Health Ombudsman v Antley, referring to previous decisions of the Tribunal, described the considerations for the Tribunal as being whether there are “countervailing considerations”. The Court of Appeal in Medical Board of Australia v Wong, described s 102(3) as “a basis for departing from the default position” that there be no order as to costs.
- In its submissions, the Board referred to the complex nature of the case and the extent of material filed, including the right of each party to legal representation, the applicant’s poor prospects of successfully appealing the Board’s decision, the applicant having been at all times afforded natural justice by the Board, the conditions having been imposed due to a health impairment and the applicant’s failure to undergo the pathology testing which was relevant to the health assessment required by the Board and finally the financial circumstances of the parties including the fact that the Board was funded by its registrants and its funds were limited and the financial circumstances of the parties. The Board relies upon authorities where the Board was awarded its costs in circumstances where the applications for review were withdrawn.
- The right to legal representation, it was submitted, brings into play some of the factors mentioned by Keane JA in Tamawood Ltd & Anor v Paans, especially his observation that justification for engaging legal representatives for a complex case could be a sufficient basis for awarding costs in the absence of countervailing considerations.
- In the submissions, it was noted that the applicant owned the pharmacy and the freehold building where the pharmacy was located and that it was necessary for the Board to respond to the applications to review the Board decisions and that the Board had at all times acted responsibly and complied with directions.
- In the submissions on behalf of the applicant practitioner, reference was made to the circumstances which resulted in the withdrawal of the review proceedings. It was submitted that the applicant had withdrawn her challenge to the decision not because of a concession that the Board’s decision was right, but rather because events had overtaken the proceedings.
- It was said that given the applicant had recently sold her pharmacy and is unlikely to practice as a pharmacist in the future, it was “entirely appropriate for [the applicant] to withdraw this proceeding.” It was submitted that if the applicant had proceeded, notwithstanding the lack of utility, she may well have attracted criticism for wasting the resources of the Tribunal.
- It was further said that that the discontinuance of the review of the immediate action decision was because that decision was overtaken by the decision to impose conditions pursuant to the impairment provisions of the National Law. The parties agreed there was no utility in continuing to argue the merits of the immediate action conditions. The argument then became one with respect to the final conditions and became one as to the nature and extent of the applicant’s impairment.
- By the time of the withdrawal of the proceedings, the challenge to the validity of the Board’s final decision had not been the subject of judicial determination.
- The nature of the proceedings are appropriately characterised as disciplinary and, as such, comprise one of the few areas within the tribunal’s jurisdiction in which a party has a right to legal representation. In cases involving registered health practitioners, legal representation is the norm.
- Given the approach taken by the Court of Appeal in Wong, it is difficult to regard the fact of legal representation alone as a basis for departing from the default position. Indeed, it was the complexity of the proceedings, rather than merely the existence of legal representation, that led the Court of Appeal in Tamawood to conclude that an order for costs was justified. That the Commercial and Consumer Tribunal Act 2003 (Qld), which was the Act under consideration in Tamawood, specifically allowed the Tribunal to have regard to the outcome of the proceeding in deciding the question of costs was a further consideration. Neither of these considerations apply here.
- In the authorities referred to on behalf of the Board, no explanation is apparent as to the reasons for withdrawal. Here, the applicant has explained the change in circumstances which led to her notice of withdrawal. In her affidavit sworn 22 September 2017, she explains the basis for her decision to sell the pharmacy, including the unsatisfactory financial performance of the pharmacy as a result of her extended absence and the fact that it was getting worse and the medical and legal costs already incurred in the proceedings and the need to obtain additional expert evidence with the associated added expense. The applicant explains the fact that the settlement was conditional and her reluctance to inform the Board, the Tribunal or anyone else until the sale was settled.
- In her affidavit, the applicant states:
Whilst I would have liked to have proved the Board’s decision to have been incorrect, the practical reality of my situation moving forward coupled with the costs associated with challenging the decision meant that the prudent course was to discontinue this proceeding. The sale of the pharmacy makes it unlikely that I will work as a pharmacist again. In those circumstances, I believe there is no practical utility in continuing with these proceedings or maintaining my registration and I have acted accordingly.
- The dispute between the applicant and the Board initially focussed on the question of whether the applicant was suffering from a cognitive impairment but, after the Board’s further decision, it became a question regarding an alcohol impairment. The practitioner recognised that she would be required to obtain additional expert evidence. The fact of the recognition by the practitioner of a problem does not mean there is acceptance of the conditions imposed by the Board.
- The requirement that the experts attend an expert conclave was an indication that there may be competing opinions.
- The Tribunal does not accept that the conduct of the practitioner in continuing to challenge the decision of the Board was improper.
- The impairment program of the Board is a critical function performed by the Board. It is important that a practitioner engage. The maintenance of respect by practitioners in the process is vital. Maintaining respect by practitioners in the process and the ability to commence review proceedings is an important part of that process. It would not be consistent with this process and the goals designed to be achieved from it if an order for costs were made against a practitioner merely because they were unsuccessful.
- In addition, parties should not be discouraged from desisting with proceedings which lack utility.
- In all the circumstances, and having regard to the unique circumstances which led to the withdrawal of the proceedings, the Tribunal considers that the interests of justice do not require the making of a general order for the practitioner to pay the Board’s costs of the applications.
- However, different considerations arise in relation to the costs of the application for a stay. The applicant did not have a strong basis for any of the arguments made in favour of a stay and was unsuccessful in relation to each of them. The attempt to prevent blood testing was particularly unhelpful to the resolution of the dispute as to the practitioner’s condition.
- In the circumstances, the Tribunal considers that it is appropriate that the practitioner pay the Board’s costs of and incidental to that application as agreed or in default of agreement assessed on the District Court scale of costs.
 The Practitioner v Pharmacy Board of Australia  QCAT 131.
Queensland Civil and Administrative Act 2009 (QCAT Act), s 100 - s 107.
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)  QCAT 412,  per Wilson J.
  QCAT 472 (Antley) referring to Keane JA in Tamawood Ltd & Anor v Paans 2 Qd R 101,  (Tamawood).
  QCA 42 (Wong).
 Dey v Medical Board of Australia  QCAT 546; Whittaker v Medical Board of Australia  310; Moeinalsadat v Medical Board of Australia  QCAT 544.
  QCA 111;  2 Qd R 101, .
 Schedule 1 to HO Act: “Disciplinary proceeding means a proceeding for which QCAT has jurisdiction under section 94(1) or (2).”
  2 Qd R 101, .
 See QCAT Act, s 102(3)(c).
 See QCAT Act, s 102(3)(d)(ii).
- Published Case Name:
The Practitioner v Pharmacy Board of Australia (No. 2)
- Shortened Case Name:
The Practitioner v Pharmacy Board of Australia (No. 2)
 QCAT 251
05 Sep 2019