Porteous v Pharmacy Board of Australia (No. 2)
[2021] QCAT 390
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Porteous v Pharmacy Board of Australia (No. 2)[2021] QCAT 390
- Add to List
Porteous v Pharmacy Board of Australia (No. 2)[2021] QCAT 390
Porteous v Pharmacy Board of Australia (No. 2)[2021] QCAT 390
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Porteous v Pharmacy Board of Australia (No. 2) [2021] QCAT 390 |
PARTIES: | REGINA PORTEOUS (applicant) |
v | |
PHARMACY BOARD OF AUSTRALIA (respondent) | |
APPLICATION NO/S: | OCR246-20 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 23 November 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member J Robertson Assisted by: Ms H Uren Ms G Neilson Mr K Murphy |
ORDERS: | Each party bears its own costs. |
CATCHWORDS: | COSTS – where applicant successfully challenged an immediate action decision by the Board to suspend her registration – where the Tribunal had a different reasonable belief to that of the Board on the basis of evidence given orally before the Tribunal by two witnesses which oral testimony was not available to the Board at the time of its decision – where the Tribunal made no findings of bad faith and a ground of failure to provide natural justice was not proceeded with on the substantive application yet is relied upon on the costs issue – whether the proceedings were of such complexity as to depart from the usual order in the interests of justice – where there are no findings that the Board acted in a way that unnecessarily disadvantaged the applicant Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 77 Marzini v Health Ombudsman (No 4) [2020] QCAT 365 Medical Board of Australia v Wong [2017] QCA 42 Porteous v Pharmacy Board of Australia [2021] QCAT 286 Tamawood Ltd v Paans [2005] QCA 111 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Australian Law Partners |
Respondent: | Minter Ellison |
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
- [1]On 27 September 2021, I ordered that the immediate action decision made by the respondent (Board) on 13 July 2020 be set aside. By order I permitted the parties leave to file submissions including in relation to costs. Each party has filed a costs submission. The applicant seeks costs, and the Board submits the usual order be made, that is that each party pay its own cost.
The relevant principles
- [2]Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) provides as follows:
100 Each party usually bears own costs
Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.
- [3]Section 102 of the QCAT Act relevantly provides:
102 Costs against party in interests of justice
- (1)The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.
…
- (3)In deciding whether to award costs under subsection (1) … the tribunal may have regard to the following –
- (a)whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);
- (b)the nature and complexity of the dispute the subject of the proceeding;
- (c)the relative strengths of the claims made by each of the parties to the proceeding;
- (d)for a proceeding for the review of a reviewable decision –
- (i)whether the applicant was afforded natural justice by the decision-maker for the decision; and
- (ii)whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
- (e)the financial circumstances of the parties to the proceeding;
- (f)anything else the tribunal considers relevant.
The applicant’s arguments
- [4]By reference to section 102(3)(b) of the QCAT Act, the applicant argues that the dispute the subject of the proceeding was of such complexity as to persuade the Tribunal, in the exercise of its discretion, to conclude that the interests of justice require a departure from the general statutory position encapsulated in section 100.
- [5]In aid of its submission in this regard, the applicant refers to some observations of Keane JA (as his Honour then was) in Tamawood Ltd v Paans [2005] QCA 111. The paragraphs from his Honour’s judgment ([30], [32] – [33]) referred to in the submission are not complete. The statutory scheme governing costs there being considered were governed by the now repealed Commercial and Consumer Tribunal Act 2003 (Qld), and although having some similarities to the Scheme in the QCAT Act, there are important differences.
- [6]Contrary to what appears to be a summary of paragraph [30] in Tamawood in the applicant’s submission, his Honour actually said at [30]:
First, the Tribunal found that each party was justified in engaging the services of legal representatives to assist them in the conduct and defence of what the Tribunal recognized to be complex proceedings. That finding alone could be, in my view, a sufficient basis to conclude that the interests of justice warranted the exercise of the discretion to award costs in favour of the successful party, at least in the absence of any countervailing consideration. The Tribunal erred in failing to appreciate the implication of this finding for an understanding of where the interests of justice lay in relation to the costs of the proceedings.
- [7]In other words, the Tribunal, and the District Court, from where the appeal to the Court of Appeal emanated, proceeded on the basis that the Tribunal had there concluded that the proceedings were “complex”.
- [8]The applicant’s submission also ignores an important provision in the equivalent of section 102 there being considered which is not in section 102, namely:
- (5)A party to a proceeding is not entitled to costs merely because –
- (a)the party was the beneficiary of an order of the tribunal; or
- (b)the party was legally represented at the proceeding.[1]
- [9]I agree with the Board that although the Tribunal file has approximately 1000 pages, there are many duplicates, and the matter was not complex at all.
- [10]Ms AZ, who was then employed at the pharmacy owned effectively by the applicant through a corporate structure, on 4 June 2020 notified the Office of the Health Ombudsman that she had received a call from Ms BD, a customer of the pharmacy, to the effect that the applicant had provided to her a quantity of schedule 8 medications including syringes containing morphine, and prescriptions of other consumers to dispose of or destroy. As my judgment reveals,[2] the Office of the Health Ombudsman (OHO) referred the matter to the Australian Health Practitioner Regulation Agency (AHPRA) and health investigators interviewed both Ms AZ and Ms BD on tape, and took photographs including of photographs on Ms AZ’s phone of the medications and prescriptions alleged to be at the home of Ms BD. Ms BD had been a part time employee of the pharmacy at all relevant times, as well as being a consumer.
- [11]On 13 July 2020, the Board decided to take immediate action against the applicant by suspending her registration because of its reasonable belief (pursuant to section 156 of the Health Practitioner Regulation National Law (Queensland) (National Law) that the applicant then posed a serious risk to persons because of her conduct and that it was necessary to take immediate action to protect public health or safety.
- [12]On 7 July 2020, the applicant had received notice of the Board’s intention to take immediate action and invited her to respond to the allegations if she wished. In fact, she did so on two occasions prior to the 13 July 2020 decision and the Board in its decision took in to account her denials of misconduct.
- [13]As my judgment reveals, by the time of the Tribunal hearing, both Ms AZ and Ms BD had been further interviewed by AHPRA and although some inconsistency emerged, their accounts remain basically the same as those which informed the Board’s 13 July decision.
- [14]As the Board’s submission correctly observes, the Tribunal’s decision largely turned upon the Tribunal’s assessment of the credit of witness Ms AZ and Ms BD, who were called to give evidence at the request of the Tribunal. The Board did not have the benefit of the oral testimony of either witness prior to the Tribunal hearing. As noted in the reasons, the witness BD’s “reckless indifference to the truth” could not have been known “until the afternoon of 20 August 2021”.[3]
- [15]The second argument by the applicant on the costs issue is that the Board, in making its decision, “failed to accord natural justice to the applicant.” This, I assume, is a reference to section 102(3)(d)(i) of the QCAT Act. The various grounds set out at 1(a) to (t) of the applicant’s costs submission are very similar to those advanced in ground two of her application to review the Board’s decision filed in the Tribunal on 10 August 2020, which she did not pursue in the substantive application.[4]
- [16]I observed in passing that, in my opinion, that ground was not pursued “for good reason”. Necessarily, this relates to the Board’s actions prior to making its decision, and the applicant was given the opportunity of responding to the Board’s proposed immediate action and she did so on two occasions.
- [17]The applicant also complains that the Board’s “conduct” should come into account against it on the issue of costs which I assume (although it is not stated), in the submission, is a reference to section 102(3)(a) of the QCAT Act.
- [18]The applicant’s written submission on this point at 1-5 completely misconceives the Board’s statutory role under the National Law: that the Board is to have regard to the paramount principle, and that is the health and safety of the public in exercising its functions.
- [19]The reasons expose a number of areas that may require further investigation pursuant to section 160(1) of the National Law, which investigation is continuing. The reasons do not contain any findings that the Board acted unreasonably, or in bad faith, and that, in itself, is a good reason not to depart, in the circumstances of the case, from the default position set out in section 100 of the QCAT Act.
- [20]Further, the factors that arise in the circumstances of this case by reference to section 102(3) of the QCAT Act do not suggest any reason to depart from the usual position as to costs set out in section 100:
- (a)The Board did not act in a manner that unnecessarily disadvantaged the applicant and did not engage in the conduct described in sections 48(1)(a) to (g) of the QCAT Act.
- (b)The matter was not particularly complex, and although the proceeding was one in which both parties were entitled to be legal represented, that does not of itself establish that the proceedings are so complex as to justify an award for costs.[5]
- (c)The Board progressed the matter expeditiously and efficiently and accommodated several requests for extensions of time from the applicant regarding the filing of her material.
- (d)The Board accorded the applicant natural justice in making the decision, and genuinely attempted to enable the Tribunal to make a decision on the merits; and
- (e)Although there is no evidence as to the impact of a decision on the applicant’s financial position, any such impact must, in any event, be balanced against the fact that the Board’s costs are funded from the registration fees paid by the members of its profession.[6]
- (a)
- [21]In the absence of a finding that the Board acted unreasonably, or in bad faith, the default position should not be readily departed from. As stated by the Court of Appeal in Medical Board of Australia v Wong [2017] QCA 42:[7]
Absent a finding, which this Court was not asked to make, that the Board’s characterisation of Dr Wong’s conduct as professional misconduct was unreasonable, there can be no proper criticism of the Board for bringing and prosecuting this proceeding as it did. No finding was sought here that the Board acted in bad faith. It must be kept in mind that the Board has a statutory responsibility for the protection of the public in this context and the fact that the outcome was not that which was sought should not of itself burden the Board with an order for costs, especially in a proceeding in QCAT where the starting position is that prescribed by s 100. I would add that the Board’s concern for the protection of the public in the present case was clearly reasonable from Dr Wong’s very serious misconduct in 2012.
- [22]Wong was a case which at first instance resulted in a costs order (including some indemnity costs) being made against the relevant Board. It was a case that involved unresolved but very serious allegations of professional misconduct which were not pursued inferentially because of the impairment of the practitioner. It was clearly a much more complex case than this, but the costs order made by the Tribunal was set aside by the Court of Appeal.
- [23]The only other authority cited in the applicant’s submission is Marzini v Health Ombudsman (No. 4) [2020] QCAT 365, which it is submitted, by reference to paragraph [90] of the reasons, is similar factually to this case. That was a decision of Judicial Member McGill SC and at [10], he quoted the full text of what Keane JA said in Tamawood, contrary to what the applicant’s lawyer has done in its written submissions. It was an immediate action case involving a registered Chinese medical practitioner, where an immediate action decision was subsequently revoked by the Health Ombudsman, and the practitioner was advised that no disciplinary action would be taken against him. The conclusions of the Judicial Member in that case are completely different to the circumstances here.
- [24]In this case, I have found positively that, in making its decision on 13 July, the Board did afford natural justice to the applicant; and there are many comments in the reasons (some of which may require further investigation) that do not justify a conclusion that the Board’s case was “weak from the start”.
- [25]Although the applicant accused the Board of not disclosing documents to her during the review process i.e., after the filing of her application, it was not necessary for her to apply to the Tribunal to enforce disclosure as occurred in Marzini on two occasions.
- [26]Indeed, a fair assessment of the Board’s actions during the review process supports the conclusion that it genuinely attempted to enable the Tribunal to make a decision on the merits and progress the matter expeditiously and efficiently and accommodated several requests for extension of time from the applicant regarding the filing of her material. This is a completely different case, factually, to Marzini.
Conclusion
- [27]I have not dealt specifically to all the points made by the applicant in her costs submission, as many are repeat submissions made in the written outline on the review application, which were not pursued. Of the four grounds pleaded in the review application, only one was pursued.
- [28]It was only after the witness Ms BD was cross examined that the Tribunal, for the reasons set out, came to a different conclusion to that of the Board the year before. There are no reasons here why the default position in section 100 of the QCAT Act should be displaced in the interests of justice.
- [29]The order of the Tribunal is that each party bear its own costs.
Footnotes
[1] Commercial and Consumer Tribunal Act 2003 (Qld) (Repealed), s 71(5).
[2] Porteous v Pharmacy Board of Australia [2021] QCAT 286.
[3] Porteous v Pharmacy Board of Australia [2021] QCAT 286, para [57].
[4] Porteous v Pharmacy Board of Australia [2021] QCAT 286, para [28].
[5] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 77 at [6].
[6] Kehl, Ibid at [9].
[7] Medical Board of Australia v Wong [2017] QCA 42 at [37], per McMurdo JA (with whom Morrison JA and Mullins agreed).