Health Ombudsman v Antley (No 2)
[2018] QCAT 147
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- Unreported Judgment
- Health Ombudsman v Antley (No 2)[2018] QCAT 147
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Health Ombudsman v Antley (No 2)[2018] QCAT 147
Health Ombudsman v Antley (No 2)[2018] QCAT 147
CITATION: | Health Ombudsman v Antley (No. 2) [2018] QCAT 147 |
PARTIES: | Health Ombudsman (Applicant) v Lara Joanne Antley (Respondent) |
APPLICATION NUMBER: | OCR230-15 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Hon J B Thomas, Judicial Member Assisted by: Dr Jane Truscott Mr Andrew Ian Urquhart Mr Trevor Leslie Jordan |
DELIVERED ON: | 2 May 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | APPLICATION FOR EXTENSION OF TIME – APPLICATION TO CORRECT DECISION – where application to correct a decision is made out of time – whether application to correct reasons is permitted under s 135 of the QCAT Act Queensland Civil and Administrative Tribunal Act 2009, s 135 Queensland Civil and Administrative Tribunal Rules 2009, r 90 Health Ombudsman v Antley [2016] QCAT 472 Health Ombudsman v Morey [2017] QCAT 249 Links & anor v McMahon (No 2) [2017] QCATA 140 Pettitt v Dunkley [1971] 1 NSWLR 376 Public Service Board (NSW) v Osmond (1985) 159 CLR 656 |
APPEARANCES: |
|
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REPRESENTATIVES: |
|
APPLICANT: | Office of the Health Ombudsman for the applicant |
RESPONDENT: | Respondent in person |
REASONS FOR DECISION
- [1]The determination of this disciplinary proceeding against a nurse was made and published to the parties on 19 December 2016 and in due course it was published on the Supreme Court Library website.[1]
- [2]The present matter is an application by the Health Ombudsman "to correct" that decision, accompanied by an application for extension of time for making it.
- [3]In reality, the application is to amend alleged errors in the Reasons for Decision.
- [4]Any application for correction should have been filed within 28 days, that is to say by 16 January 2017.[2]
- [5]The present application was not filed until 12 September 2017.
- [6]The reason for this fairly substantial delay is said to be "an administrative oversight on the part of the applicant". Apparently, no cause for concern was felt by anyone on behalf of the Health Ombudsman until someone reviewed another case ("Morey")[3] which cited Antley as a relevant precedent. It was then noticed that there was an inaccuracy in one of the statements of fact in Antley, to the effect that Antley had stolen "10" prescriptions which she presented at three different pharmacies, whereas on the admitted facts she had only stolen "2" prescriptions which she presented at the three different pharmacies.
- [7]A further period of approximately 6 weeks then elapsed before the present applications were filed by the Health Ombudsman.
- [8]The applicant's main point of concern is that unless the error in the number of prescriptions is corrected, Antley will be an unreliable precedent for reference in future cases.
- [9]The delay was not short, and it would be difficult to say that a reasonable explanation has been provided. However, there are more fundamental reasons why the present application must be refused.
- [10]The only relevant power enabling this Tribunal to correct an error of this kind is that which is given by s 135 of the Queensland Civil and Administrative Tribunal Act ("QCAT Act"). It is QCAT's equivalent of the "slip rule". Unlike superior courts, QCAT lacks inherent jurisdiction. Its power in this behalf is entirely statutory.
- [11]The only power given by s 135 is to correct, "a decision made by it in a proceeding".[4]
- [12]The term "decision" is relevantly defined as follows:
"decision, of the tribunal -
- (a)means -
- (i)an order made or direction given by the tribunal; or
- (ii)the tribunal's final decision in a proceeding; ...".[5]
- [13]Reasons for a judgment or decision are neither an order, direction nor final decision. Neither are they a part of any order, direction or decision. They are a normal but not universal incident of the judicial process,[6] although they are regarded as necessary whenever a decision is subject to appeal.[7] Once published, they must stand or fall on their own merits, and, generally speaking, they are not to be improved on or tinkered with, even by their authors. The statutory regime under the QCAT Act does not authorise such interference. The only way I can conceive of such an alteration being made would be by a reconvening of the Tribunal and an agreed amendment being made with the consent of all parties and the Tribunal. No such request has been made, and in the circumstances such a procedure would in my view be a pointless waste of resources and costs.
- [14]The lack of power to amend reasons for decision was the basis of the decision in Links & anor v McMahon (No 2).[8] It concerned an application to correct allegedly incorrect statements in the reasons for decision of an appeal tribunal. Senior Member Howard, to whom the application was made for correction under s 135, referred to the definition of "decision" and dismissed the application, stating:
"The types of mistake that may be corrected under s 135 are limited to those types of mistake set out earlier, that is, accidental slips and omissions in the decision. Mr Links and Ms Nuttall do not contend that the Appeal Tribunal made an error of that type. What they seek our alterations to the reasons for decision given by the Appeal Tribunal for its decision."[9]
- [15]In the present matter two additional further corrections were sought to be made to other passages in the Reasons for Decision, one seeking to change the description of the person who happened to make the mandatory notification to the Office of the Health Ombudsman under s 141-142 of the National Law, and the other to replace a reference in the text to the "director" of the Health Ombudsman with "Director of Proceedings" of the Health Ombudsman.
- [16]Quite apart from the inapplicability of s 135 to reasons for a decision, these points have no bearing whatever on the decision. There are no doubt situations where such points could matter, but in the present case they are entirely inconsequential.
- [17]Similarly, with respect to the main concern expressed by the applicant, the number of prescriptions stolen by Antley was an erroneous detail in the description of a course of Antley’s conduct, which was designed to obtain the drug Endone by stealing, forging and presenting prescriptions, and which was nipped in the bud when a suspicious pharmacist promptly reported her. The reasons for decision say little about the more significant details such as the quantity of the drug obtained, but it must be acknowledged that the error in question overstates the forgery activity. The relevant details in the Statement of Agreed and Disputed Facts reveal that Antley presented a prescription for 20 x 5mg Endone tablets to the first pharmacist who duly dispensed them; that she presented a similar prescription to the second pharmacist who queried it, upon which she left without the medication; that on the same day she presented a similar prescription to a third pharmacist who duly dispensed the tablets; and that a complaint to the police was made on the following day. In short, in all she obtained 40 x 5 mg tablets of Endone.
- [18]At this time I have no recollection of the origin of the error in paragraph [18], although it seems highly likely that a "10" was simply typed instead of a "2", and that this was a simple "typo".
- [19]In the circumstances the most I can do for the applicant is to acknowledge there is an error in paragraph [18] of the published reasons in [2016] QCAT 472, para [18], in that "forged 10 prescriptions" should be read as "forged 2 prescriptions".
- [20]I do not think that the reasons in Antley contain sufficient data to enable it to be used effectively as a precedent on sanction. If I am wrong, these present reasons will enable the correct position to be brought to the attention of any future tribunal that might think the Antley case to be of significance on that issue. But no amendments to the reasons can be made.
- [21]The present application misconceives both the scope of QCAT's "slip rule” (s 135) and the function of Reasons for Decision. Further, the application for extension of time is unpersuasive.
- [22]The application for extension of time to file the application for correction is dismissed.
Footnotes
[1] Health Ombudsman v Antley [2016] QCAT 472.
[2] Queensland Civil and Administrative Tribunal Rules 2009, r 90.
[3] Health Ombudsman v Morey [2017] QCAT 249.
[4] QCAT Act s 135(1).
[5] QCAT Act, Schedule 3 (immaterial further definition not included).
[6] Public Service Board (NSW) v Osmond (1985) 159 CLR 656, 667.
[7] Pettitt v Dunkley [1971] 1 NSWLR 376.
[8] [2017] QCATA 140.
[9] Ibid [11].