Armstrong v Pharmacy Board of Tasmania
[1989] TASSC 78
•22 December 1989
Serial No 78/1989
List "A"
CITATION: Armstrong v Pharmacy Board of Tasmania [1989] TASSC 78; A78/1989
PARTIES: ARMSTRONG, Daniel Christopher
v
PHARMACY BOARD OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 124/1987
DELIVERED ON: 22 December 1989
JUDGMENT OF: Neasey J
Judgment Number: A78/1989
Number of paragraphs: 14
Serial No 78/1989
List "A"
File No LCA 124/1987
DANIEL CHRISTOPHER ARMSTRONG v PHARMACY BOARD OF TASMANIA
REASONS FOR JUDGMENT NEASEY J
22 December 1989
The appellant, a registered pharmaceutical chemist, appeals pursuant to s17B of the Pharmacy Act 1908 ("the Act") against certain determinations made by the Pharmacy Board under s17A. The determinations involved findings by the Board that the appellant had been guilty of improper conduct in a professional respect in relation to the making or placing of advertisements which the Board found to be in breach of r3 of the Pharmaceutical Chemists (Advertising) Rules 1966, Statutory Rule No 205 of 1966 (hereinafter the "Advertising Rules") made under the Act. I need not set out in detail the nature of the determinations. I shall deal first with grounds 11 and 12 of the appeal.
Grounds 11 and 12 read:—
"11That the Chairman of the Pharmacy Board [Dr A E P] demonstrated bias towards the Appellant during the course of those proceedings held before The Pharmacy Board and failed to disqualify himself from further hearing the charges against the Appellant during the course of those proceedings when requested to do so and thereby denied the Appellant natural justice.
12That a member of the Pharmacy Board [Mrs W] demonstrated bias towards the Appellant during the course of [the] proceedings held before The Pharmacy Board and failed to disqualify herself from further hearing the charges against the Appellant during the course of those proceedings when requested to do so and thereby denied the Appellant natural justice."
Section 17A of the Act provides:—
"17A–(1) Where, on an inquiry under this section, the Board is satisfied that a registered pharmaceutical chemist has been guilty of infamous conduct in a professional respect or of improper conduct in a professional respect it may exercise the powers conferred by subsection (2).
(2) In a case where the Board may exercise the powers conferred by this subsection in relation to a registered pharmaceutical chemist it may, as it considers the circumstances of the case require—
(a) reprimand him;
(b) order that he pay a fine of such amount, not exceeding $400 as it thinks proper; or
(c) suspend his registration for such period as it may determine,
or, where it is satisfied that he has been guilty of infamous conduct in a professional respect, may, instead of exercising the powers specified in the foregoing provisions of this subsection, erase his name from the register.
(3) Where the Board, on an inquiry under this section, is satisfied that a registered pharmaceutical chemist is unfit to practise as a pharmaceutical chemist by reason of—
(a) his habitual taking of intoxicating liquors or drugs to excess; or
(b) his suffering from mental disorder within the meaning of the Mental Health Act,
it may suspend his registration for such period as it may determine or may erase his name from the register.
(4) Where it appears to the Board that grounds may exist for the exercise of the powers conferred on it by this section in relation to a registered pharmaceutical chemist, or it receives information from any person from which it appears that any such grounds may exist, it shall serve notice on the registered pharmaceutical chemist—
(a) specifying those grounds and the reasons for which they are believed to exist; and
(b) summoning him to appear before the Board to show cause why its powers under this section should not be exercised in relation to the matters specified therein.
(5) Where notice has been served on a registered pharmaceutical chemist under this section the Board shall inquire into the matters specified therein and shall determine whether, in relation to those matters, he has been guilty of infamous conduct in a professional respect, or of improper conduct in a professional respect, or is unfit to practise as a pharmaceutical chemist for any of the reasons specified in subsection (3), and, if it finds that he has been so guilty, or is so unfit, whether and in what manner it shall exercise the powers conferred by this section in relation to that finding.
(6) In conducting an inquiry under this section the Board shall not sit to hear any evidence or any representations unless it has given the registered pharmaceutical chemist reasonable notice of the time and place at which it will so sit.
(7) At an inquiry under this section in relation to a pharmaceutical chemist he is entitled, either by himself or some person acting in his behalf, to appear and to cross–examine witnesses appearing before the Board and to give or adduce evidence.
(8) At an inquiry under this section the Board may take evidence in such manner as it may determine, but where the registered pharmaceutical chemist requests that any evidence to be given before the Board be given on oath, the Board shall not hear that evidence otherwise than on oath.
(9) Before making a determination under this section in relation to a registered pharmaceutical chemist on the grounds referred to in paragraph (b) of subsection (3) the Board shall serve notice of its intention so to do on the Director of Psychiatric Services and, subject to the Mental Health Act 1963, the Director may take such steps as he considers necessary or desirable to protect the interests of that registered pharmaceutical chemist.
(10) For the purpose of the exercise of the powers conferred on him by subsection (9) the Director of Psychiatric Services has a right to appear before the Board, either by himself or by some other person acting in his behalf.
(11) The Governor may make regulations with respect to the institution and conduct of inquiries under this section, and those inquiries shall, subject to this section, be brought and heard in the manner so prescribed."
Three notices had been served on the appellant, pursuant to s17A(4). The matters alleged in all three had been heard together by the Board on 11 August 1987, and 30 September 1987. Notice "A" informed the appellant that grounds may exist for the exercise of the powers conferred on the Board by s17A, and that he may be guilty of improper conduct in a professional respect. The notice then set out three grounds, which had to do with alleged advertisements published in the Southern Star newspaper during March 1987, and other alleged advertisements published on radio station 7HT during February and March 1987, all in connection with a pharmaceutical practice conducted by the appellant in Sandy Bay; and a further allegation that he had advertised in a manner likely to bring discredit on the pharmaceutical profession, contrary to r.5 of the Advertising Rules. Particulars were given of those allegations, and the notice further informed the appellant that the Board intended to inquire on a certain day into the matters specified, and summoned him to attend at that inquiry. Notice "A" was dated 27 April 1987.
Notice "B" informed the appellant that grounds may exist for the exercise of the powers conferred on the Board by s17A in that he might be guilty of "infamous conduct in a professional respect or of improper conduct in a professional respect" on three grounds. The grounds related to a television programme shown by the Australian Broadcasting Corporation on a particular evening, known as the "7.30 Report"; and also certain statements or comments allegedly made by the appellant to the Sunday Tasmanian newspaper, when the appellant allegedly knew that such statements or comments could be published in that newspaper. The appellant was summoned by Notice "B" to attend the inquiry which, as the notice informed him, the Board intended to hold into those allegations. Notice "B" was dated 16 July 1987. Notice "C", also dated 16 July 1987, informed the appellant that grounds may exist for the exercise of the Board's powers in relation to an allegation of improper conduct in a professional respect, referring to the same 7.30 Report shown on ABC television, and the same issue of the Sunday Tasmanian newspaper, and also a certain newsletter referred to as the "ARN Newsletter, Issue No 13", which were alleged to demonstrate advertising by the appellant in breach of the Advertising Rules.
The allegations of bias against the Board members referred to in grounds 11 and 12 arise out of exchanges which occurred during the hearing of the inquiry by the Pharmacy Board on 12 August 1987, and the adjourned hearing of that inquiry on 30 September 1987. These exchanges are exemplified by the following passages from the transcript (Mrs W being the only female member of the Board):—
12 August 1987
"MR DAN ARMSTRONG WAS DULY SWORN
CHAIRMAN: Any questions from the Board members?
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MEMBER: Can I ask you Mr Armstrong, regarding the 7.30 Report. Can you tell us how the approach from 7.30 Report was made? In other words, did you approach the 7.30 Report in any way, prior to their interviewing you?
APPELLANT: No, I got a phone call.. .. .. .. (P 78) .
P82–
CHAIRMAN: .............. I am putting to you that under rule 3 you cannot advertise in any way your professional services other than by using those words which appear in 3(2) bearing in mind the content of 3(3), and the Board is specifically on about the fact that you have published other than under that specific direction, advertising other than under those specific directions. Now, what we are asking you is, why do you contend that that is not a breach.
APPELLANT: My contention is that it has nothing to do with my professional services. I am a pharmacist, I dispense medication, and as such, these products are all available without prescription. I don't need a prescription to supply these drugs and I didn't consider this as part of the ambit of the particular law, or regulation.
MEMBER: (FEMALE) Just hold on. Antihistamines are a schedules product sold only by pharmacists, so therefore they do come under your professional ambit.
APPELLANT: That's right, but in my experience of what is happening in Tasmania I was under the impression that there's nothing to stop me from mentioning antihistamine because [continues with long answer].
.....................................................
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MEMBER: (FEMALE) So you are saying that antihistamines and cough mixtures and all this, they should be sold at supermarkets, service stations, vending machines and the like. They are not a professional—
APPELLANT: No, I didn't quite say that. I said there should be a distinction made between the supply of these drugs, whether they are sold through pharmacies or not, that's not the issue. One can bake a distinction –
MEMBER: (FEMALE) Well, surely it is, because if they are sold through pharmacies, they then become part of your professional responsibility.
APPELLANT: [long answer—my summary].
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P86—
APPELLANT: That's not what I meant by the answer, that I would give what the doctor would prescribe for them, except that they wouldn't pay for it.
MEMBER: (FEMALE) So therefore, they are Schedule III products. Because if the doctor had ordered 50 Polaramine tablets, or 50 tablets, are as far as I know though Schedule III not Schedule II.
APPELLANT: Well I was under the impression it was Schedule II.
MEMBER: (FEMALE) You had better read your rules again. And then also you talk about you being victimised. You don't think that you have victimised the whole of your profession by making the inference that they are saying that you are giving out of date drugs and what have you. Have you got any evidence of that?
APPELLANT: Yes I have evidence. I wouldn't like to embarrass one of the Board members here by calling his name, so I don't know whether I should stop and I would like to discuss it with my legal adviser.
.......................................................
P89—
APPELLANT: In most peoples mind, old and out of date are purely technicalities. There isn't that much distinction between the two.
CHAIRMAN: I put it to you there is Mr Armstrong, especially when you are broadcasting it over the airways. I think there is quite a serious distinction, in terms of specifically rule—Advertising Rule 12—
APPELLANT: Well I wasn't advertising at the time.
MEMBER: (FEMALE) No, you were slighting your profession.
P 94—
MEMBER: Mr Armstrong, on that line, could I go back to this reference about out of date medication. Now perhaps if you would be prepared to name the Board member you alluded to, it may–
MR GUNSON (Counsel for the appellant): Could I just make an observation about that, again you may need some guidance from Mr Bessell. I would have thought that once a Board member becomes named in the course of these proceedings, that Board member would have to consider very carefully his or her position and may have to retire from this Board considering the matter, in the interests of natural justice, as they apply between the Board and Mr Armstrong. Now, it's a matter entirely for the Board, but I would have thought that once that occurs, that member would be placed in the most invidious position, in further continuing to determine these matters. It could not be said on the face of it, having been named as it were as a party of one of these matters, essentially a matter of complaint, to be able then to continue to hear the proceedings against Mr Armstrong with a clear conscience towards Mr Armstrong.
MR BESSELL (Counsel assisting the Board): My advice would have to be to the Board that even though that member may honestly believe that he could reach an independent judgment on the matters before him, from the public point of view, it would seem as if he could not, and that is really a matter that the Board could be concerned about and my advice would be that that member ought not really continue in the determination of the dispute.
MEMBER: (FEMALE) I think perhaps what we may be wanting to get at it whether it is another red herring like we had with the original summons and the reason why we adjourned it two months ago because there was going to be somebody who was going to be biased in that area, that—are we getting another hearsay that now we have got somebody else on the Board that's being challenged for this reason. I mean, we've wasted two months on it because of some pedantic carry on.
P95—
MR GUNSON: Well, through you Mr Chairman, could I make this observation that whatever was done two months ago was based on legal advice that was given on a factual basis that was believed to exist at the time. To describe that as a red herring, I particularly find offensive.
P109—
MEMBER: Are you familiar with the syndrome called the 'milk alkaline syndrome'?
APPELLANT: Not in great detail.
MEMBER: Well that is a syndrome which is produced by excessive use of antacids and it is fairly common?
APPELLANT: Yeh, but they can buy Quick–eze over the counter in any little shop so I don't see why Mylanta is any different. That is just my opinion on that score.
MEMBER: (FEMALE) Well while we are on sort of open slather of advertising, perhaps we should have open slather of shop trading hours and the whole bit. We shouldn't be pertaining to the government to restrict anything like that. Is this what you also agree with, that, you know, in this open society everything should be fair go?
MR GUNSON: Well I think with the greatest of respect to the member of the Board, that's really going beyond the confines or bounds of the complaints that have been made against my client, and beyond the bounds of this inquiry, and I feel obliged to bring that to your attention. No doubt if there is any quarrel about that you'll get advice but it seems to me that really does go beyond the bounds of where we are going.
P 111—
CHAIRMAN: Did you or did you not receive those circulars?
APPELLANT: I really can't remember, but even if I did receive them at the time, I was a new immigrant to the country. They had lots of pressures on people that come from another country, and it is definitely wasn't my first priority to start turning the local pharmacists out of their set–up, what laws to have and what not to have. I was still finding my feet, so I don't think that is a fair question.
MEMBER: Mr Armstrong, you've found your feet now, and you are now telling the locals how to run their country – – –
APPELLANT: Well I think that as an individual Australian I am allowed to do that. This is a country where free speech reigns supreme, and I am very happy for it, that's one of the reasons why I have come here.
MEMBER: And you think the way you've gone about getting this message across is O.K.?
APPELLANT: I didn't get the message across like that. I freely informed people of something they could get from me. The way if we analyse this advertisement as far as I am concerned is a highly ethically correct antonyms. We didn't encourage any drug abuse. We made it very pertinent to people that they wouldn't just give drugs because they've come to ask for it, that they would have to comply with certain stipulations and the fact that it contained antihistamines is merely nit picking or hair splitting, because as far as I am concerned those drugs were being advertised, tagged by individual pharmacists, so whether you name a product Benadryl or whether your name has a generic antihistamine, to my way of thinking it really made no difference.
MEMBER: (FEMALE) So you are disputing all the things that were said by—in the Sunday Tasmanian under this 'Chemist defy' and Judy Tierney in the 7.30 Report?
P 113—
APPELLANT: But those are opinions that I gave to people. I'm surely entitled to tell people how I feel about things, whether they print it or not it's not in my power. I didn't do it to get advertising mileage out of it.
MEMBER: (FEMALE) Well if you've read the Pharmacy Act at all since you've arrived, it says here at 17E (2), that to make an issue or publication (Inaudible due to noise) information or other matter, etc., etc., etc.
APPELLANT: You aren't gagged, we're not allowed to talk to people. We have to live in the confounds (sic) of our profession and I can only talk to you about my problems, and I cannot tell the outside world if I think things are not right. How are things going to get changed in this country if we don't let the outside world know what's wrong with our profession.
MEMBER: As far as running a pharmacy in Tasmania is concerned Mr Armstrong, if you wish to change the Rules or have the Advertising Regulations altered or get 17E (2) rescinded or whatever, you either have to get on the Board yourself or lobby members of the Board such as that will be changed, that's the basis of the democratic process in this country.
APPELLANT: Yes, well fortunately there are other ways of getting it changed, so it's not the only way one can get it changed, but we're not here to discuss how to get the laws and rules changed, we're here to discuss whether I was unethical in the way that I dissimulated (Inaudible due to coughing) in motion.
CHAIRMAN: No, that isn't what we're here to discuss. What we are here to talk about is we're inquiring into whether you breached the Advertising Rules or not specifically as we—as we put in these summons. And what we're trying to establish is whether you, by this particular behaviour, or what we're trying to establish right now, as I hear it about this particular behaviour, is whether you have or have not brought discredit upon the profession.
APPELLANT: Well you can't have—I couldn't have started bringing discredit to the information, discredit to the profession if the profession didn't behave in such a way as to warrant such things. If the public outside perceive that the profession is—there's something wrong with the profession then it's about—to them that there is something wrong. It's not for me to tell them to form an opinion, I can only dissimulate facts, and they can decide whether there's something wrong with the profession. If they've gleaned from what I've said and feeling there are such things wrong with the profession, then surely the profession should look at itself.
MEMBER: So you are conducting some kind of public campaign to get the Advertising Rules in the pharmacy changed".
APPELLANT: No, I 'm not doing that.
MEMBER: Well I'm sorry, I think that's in conflict with your previous statement, but that's my opinion.
MEMBER (FEMALE) Well obviously members of the public are reasonably happy with the way the profession has conducted it, because we didn't get from your Seven Thirty Report on this, we didn't get members of the public screaming in with letters and complaints about the pharmacy profession, so the members of the public must be reasonably happy with the pharmacists per se."
Hearing 30 September 1987, pp9 and following—
"MR GUNSON: I certainly appreciate that but it must be emphasised, at least as I understand the position, there's no specific allegation or charge or complaint that Mr Armstrong has breached any rule of being interviewed without permission of the Board per se. The allegations against him are that he was interviewed and the interviews caused things to be said which it is said are contrary to the act and so forth and that as a result of those interviews was engaged in advertising. Now we're getting into the question as to who gave permission and who didn't give permission and whether permission was sought. It seems to me we're going off on a tangential course and that's to be avoided, I'm sure as you'll appreciate. The object that I was trying—the point I was trying to establish a moment ago is that that letter at this stage is not a piece of evidence before this Board, and to be merely marked for identification which means that when it needs to be located and produced at a later time, we all know what we're talking about. It has no evidentiary basis or status at this stage.
CHAIRMAN: Well are you acknowledging or prepared to acknowledge that the Board did not give any permission to either the 'Sunday Tasmanian' or the ABC for these interviews to take place? If we get an acknowledgement of that or if there's acknowledgement of that fact then I believe I would seek advice but I believe that it would be appropriate then to stop pursuing this matter and we could proceed to other matters.
MR GUNSON: Well I don't think there is any quarrel about that, as I understand it. I don't think anybody is quarrelling with the proposition that the Board did not give permission per se, what we're quarrelling about is the state of mind Mr Armstrong had as a result of something that may have been said to him by Mrs Tierney, that's the real question for this Board.
CHAIRMAN: Well I'm sure, again I'd have to take advice, if there's an admission which there appears to be that the Board did not give any permission for all these interviews to take place then I believe it's appropriate that we could move on from this matter.
MEMBER: Yes. The only thing I would say Mr Chairman, is that Mr Armstrong was aware that Mrs Tierney was interviewing him, and therefore would have to be prepared with any state of mind Mrs Tierney would promote (Inaudible), so I really think the state of mind influenced on Mrs Tierney is fairly irrelevant.
MR GUNSON: Well I would quarrel with that, and I'll certainly seek to address you at the end because it's very very important, very important, if Mr Armstrong had a state of mind that was caused or created as a result of something Mrs Tierney said that led him to believe it was all right for the interview and it's a very important matter for you to consider.
MEMBER: I don't think we've got a quarrel Mr Chairman with Mr Armstrong being interviewed, I think it's what he said that we've got the quarrel with, so it really doesn't matter whether – – –
MR GUNSON: Precisely, the proposition, yes,
MEMBER: – – – what he said not the fact that he got permission to.
MR GUNSON: Well this is the point I made a moment ago, that he's not as it were charged with having been interviewed without the permission of the Board, the point—the quarrel is with basically what he said, the content of what he said, and what context it could be taken in; this is what I said a moment ago, which you avoid doing going off on tangents because by going off on a tangent such as the question of permission we're getting away from the fundamental point of what this hearing is all about. The fundamental hearing—the fundamental point of the hearing is to determine whether, or first of all say inquiry not a hearing, is to inquire into the matters that are contained in complaints A, B, C.
MEMBER: But on the other hand it's a justification for saying whatever Mr Armstrong wishes to say, and the interview was on the basis that he had the full Board's permission, that's a completely different matter.
MR GUNSON: No, with respect, that is wrong. What Mr Armstrong said in general terms on the last occasion was he thought he was all right, effectively having spoken to Mrs Tierney, and it may well be that the belief was ill–founded, but it's a matter ultimately for you.
P16 to P28
MR GUNSON: The proceedings should be conducted with Mr Armstrong present, you shouldn't go into little huddles and get private legal advice and make up your mind based on that because I might want to make some submissions to you that may alter your mind. See, you can't take legal advice privately and then say, 'Well we'll do that', and ignore Mr Armstrong's counsel's submissions. I mean you either conduct it all openly in the presence of Mr Armstrong or you don't. Now Mr Armstrong under the Act, has a right to be present during the course of these proceedings. Mr Adams is not a member of your Board. If the Board wants to retire and make a decision on a matter after having heard submissions by myself and Mr Armstrong—I'm sorry, by myself and Mr Adams, then there's no objection to that, but you can't, as it were, take submissions in private from Mr Adams.
CHAIRMAN: Well that's where – – –
MR GUNSON: And the Rules or Natural Justice tell us that, the cases on this point are legion.
CHAIRMAN: Well what you are essentially saying, if I'm hearing you correctly, is that we now have to adjourn the hearing or call Mrs Tierney, and since Mrs Tierney apparently is not available today, we will have to – – –
MR GUNSON: No one has told me that.
CHAIRMAN: I understand that she is not available.
MEMBER: – – – enquiries as to where she might be.
MEMBER: (FEMALE) Mr Chairman, may I say, I really think that whether or not the Board had given Mr, Armstrong permission to talk to Mrs Tierney, I don't think they're expecting to unprofessionally slate the other members of his profession, whether he was given permission or not. I mean you don't rush out and slate other members of your profession without the Board first hearing what they were going to do, therefore it really is erroneous, this whole – – –
MR GUNSON: Well may I address my comments to you please, Madam, because it is your decision already, without having heard the balance of Mr Armstrong's evidence and the balance of the evidence to be called in this matter, and without hearing submissions, that, to use your expression, Mr Armstrong has, and I quote, 'unprofessionally slated other members of his profession'. Is that your decision?
MEMBER: (FEMALE) That's in the evidence here.
MR GUNSON: No, I'm sorry. Is that your decision at this point in time, without having heard the evidence and submissions to be made on Mr Armstrong's behalf in these proceedings, because if it is then again I would have to ask you to consider your position as a continuing member of this Board, because you see you said on the evidence already made a determination.
CHAIRMAN: Well before we get into that I think we'll have to call en adjournment to just so the Board can consider its position because what's happening now is each member of the Board is being—making a mistake asking questions then being specifically attacked.
MEMBER: That's nonsense, of course we can ask you questions like individuals with intelligent minds. You can make up your own decisions on matters.
CHAIRMAN: – – – I think that is my ruling. We'll now have a short adjournment.
UPON RESUMPTION:
MR CHAIRMAN: I'm sorry, this is probably a bit unorthodox but we were coming to a position where we were going to in fact leave these matters and proceed on to other matters, but if Mrs Tierney is coming, I 'm not sure. That doesn't—I suppose our position is still the same. We were in fact going to, just once again,— sorry, perhaps we could re–open the hearing and all that is considered the problem situation which had arisen when the adjournment was called, and we've decided to just seek once more from Mr Gunson to confirm once again, he said it before but we just want to get reassurance on this, that there is no dispute providing the fact that the Board did not give permission for the interviews to take place, both with the ABC and The Mercury.
MR GUNSON: I think I've said that three times already Mr Chairman for the—as you've asked, I will repeat what I said, and that is that my client does not dispute the fact that the Board was apparently not asked to give any form of permission, and that the Board did not give any permission. However, I repeat what I said earlier, and that is, the matter can't be left there because the state of Mr Armstrong's mind, as to the question of permission, is an important one in this case, because it emerged from the last occasion and indeed today, that something was said by Mrs Tierney that was critical to that issue. Now she may have misled, even deliberately or inadvertently Mr Armstrong. That doesn't really matter, it's the state of his mind that is critical. You, as I pointed out a little while ago, seem to be of the view that is an irrelevant consideration. As I said a moment ago, one of your members of the Board has already predetermined the issue against Mr Armstrong by her comments, and I quote, 'Unprofessionally slated other members of the profession', and I make the point, as indeed I must as counsel for Mr Armstrong, that it seems to me that a very real element of bias in the course of these proceedings is emerging against my client. That's all very well, with the greatest of respect for members of the Board, to form some opinion against a person to whom you're enquiring or whose activities you're enquiring, during the course of the hearing of evidence, but it should never be the case, as has occurred here today, where people who are judging my client and in a position to do so, are making comments that are adverse to him during the course of the proceedings before those proceedings have concluded and before all the evidence has been given and before any closing submissions have been made to you on the facts and on the law, as to what constitutes the allegations against him, and I just simply draw to your attention the fact that under the Act under which he's been charged, the expression such as 'improper conduct in a professional sense' have been used. Infamous conduct in a professional sense is another charge. All of these were mean expressions, have very clear and concise meanings in law, yet without the benefit of submissions as to what constitutes the elements of those charges, it seems to me, having heard what's been said here this morning, that at least two members of this Board have made up their minds already. Now that saddens me because these proceedings shouldn't be conducted in such a way where that final determination should not have occurred until the end of the proceedings, and I don't have the case here but I can readily obtain it, the High Court in recent years has had a lot to say on the question of bias emerging during the course of proceedings such as this, and indeed in court and the steps that persons in your position should take to avoid showing bias. I'm sure that Mr Adams is familiar of what was said by the High Court, re Armstrong ex parte Watson about 7 or 8 years ago on that very point. Now it's clear to me that at least two members of the Board have manifested and clearly demonstrated their bias today as a result of statements they've made during the course of these proceedings. Mr Chairman, that is you and it is [Mrs W], particularly concerned about the statement that came from [Mrs W] when she described Mr Armstrong as having made some – – –
CHAIRMAN: Mr Gunson, I'm sorry, I must interrupt you. I believe you have gone a long way further than answering the question which was put to you. Are you making your final submission?
MR GUNSON: No, I'm not making my final submission, I'm making submission that you and [Mrs W], for the reasons that I'm putting to you now, should disqualify yourself from these proceedings at this point in time on the ground of demonstrated bias.
CHAIRMAN: Well that's—that is appropriate that we have to hear a submission and take advice on it. I don't believe that their bias has been shown. I mean the summons sets out that the Board is enquiring into conduct which may be improper or may be infamous on the basis of the words that have been said. The Board has previously considered those words and has made the decision that they may be improper or infamous conduct, and this inquiry is continuing it on that line. It's – it's – this – the whole purpose of the inquiry is to provide Mr Armstrong, at least as I understand it, with the opportunity to prove to us that those suggestions of improper or infamous conduct are in fact incorrect. I believe that's the whole purpose of the inquiry.
MR GUNSON: – – – I am correctly understanding that on a previous occasion, which Mr Armstrong was not present, the Board decided that the words were 'improper conduct in a professional respect'. That he behaved in an improper conduct in a professional respect as set out in A, B, and C. Am I correct in that? That on a previous occasion the Board's made that determination that he behaved as alleged in complaints A, B and C.
MEMBER: No.
MR GUNSON: The Chairman just said – – –
CHAIRMAN: The Board—the Board has to take a decision as to whether there appears to be evidence to proceed to have an inquiry. I believe you wrote to Mr Bessell at some point asking for the Minutes of such a meeting.
MR GUNSON: Let's come back to the point I raised Mr Chairman, because it's critical because the words emanated from you a moment ago, and if you wish to retract them I've got no objection if you've overstated the position. As I understand it you just said that the Board on a previous occasion had determined that Mr Armstrong was guilty of – – –
CHAIRMAN: I did not say that Mr Gunson. You're putting words into my mouth.
MR GUNSON: Can I just conclude my submission please Mr Chairman. If you don't want to hear me at all on the matter, tell me and Mr Armstrong and I are content to go, but if I'm here as his representative I will make the submissions that are appropriate, with the greatest of respect, without being stopped midway through because you personally don't like what's being said. Now my understanding of the matter is that you said, 'That on a previous occasion it had been determined by the Board that Mr Armstrong was guilty of infamous conduct and the other matters and that the opportunity—these proceedings were an opportunity for Mr Armstrong to provide evidence that he was not guilty'. Is that the substance of it?
MEMBER: No.
MR GUNSON: Well can you just, so that we do know exactly where we stand, the Board should then state its position. What is the purpose of these proceedings then?
CHAIRMAN: You know very well what the purpose of the proceedings is.
MR GUNSON: No, I'm sorry.
CHAIRMAN: You're trying to catch us all out with legalities and – – –
MR GUNSON: Forgive me Mr Chairman, I'm not trying to catch you out.
CHAIRMAN: You know very well Mr Gunson, I don't want to have an argument about the legalities with you, and we're getting down to the very semantics of words which have legal connotations. You know very well none of us has any legal background, legal training. We came in an entirely voluntary capacity, elected to the Board to do what profession – or elected here under the terms of the Pharmacy Act to start having semantic arguments about this word or that word seems to me to be irrelevant. What I said was that before the Board can make a decision whether an inquiry has to be held or has not to be held, it obviously has to see the data, and on the basis of the data which is before it makes a decision whether there should or should not be an inquiry. An inquiry provides the opportunity for the Pharmacist involved to provide any evidence – provide evidence or documentation or whatever, witness, whatever is necessary to persuade the Board or take the – or put the Board in a position or to convince the Board or whatever, that the Board's suggestion that there may be reasons for, or that there are reasons for holding an inquiry are not correct. Now I can see you writing that down there word for word. I don't claim any capacity to make legally correct statements, I'm expressing it in what I consider to be lay English not legalistic English.
MR GUNSON: Well, so you actively say that the Pharmacist must come along before you and establish his innocence, is that – – –
CHAIRMAN: No, I'm not saying that at all. Whether you you don't—whether you like it or not you are trying to trap us in the legalities of this, and I don't want to get into that nor does any other member of the Board, and the atmosphere in this room is becoming increasingly aggressive and increasingly unpleasant, and I think if I might say so, it's been generated from your side of the room.
MR GUNSON: Well let me ask you this question, let me make a statement to you. It should not be lost sight of that this Board has available to it very very substantial powers of punishment if it was to find the complaints are proved.
CHAIRMAN: Is that a question?
MR GUNSON: That is a fact. The Act establishes the range of punishments available for all of that or remedies that the Board may impose on a Pharmacist. Mr Armstrong is here, has come along because he has been summoned to answer the charges that have been brought against him. The concern that I have expressed on his behalf has been manifested because of the comments that you have made this morning, about the state of his mind, about what happened between he and Mrs Tierney is irrelevant, and as a result of what [Mrs W] said about the unprofessional slating and other members of his profession. The point I was endeavouring to make, and which I will continue to make, is that this expression by [Mrs W] and the comments by you can only lead, to an observer such as myself, to conclude the Board has predetermined – I'm sorry, I withdraw that, that at least two members of the Board have predetermined the issues. Now you may lock those thoughts into your mind, the problem arises is when you publicly utter them. My client could be forgiven for thinking, 'Well what hope have I got of trying to convince the Board that I'm not guilty of these offences'. All the Board should take a certain approach to them when two members of the Board publicly state their views of the evidence before it has concluded; there lies my problem. Now I'm not trying to trap you in legalities Mr Chairman. My job is to point out the legalities to you as they go along, because like it or not, you are governed in this Board by the legalities, there are a whole series of legalities. You cannot say to yourself, 'We're a Board of Pharmacist we're not qualified lawyers, we can ignore all the legalities'. I accept you're not bound by the Rules of Evidence as a court is in a strict sense, but it doesn't go beyond that, you are bound by legalities, you are bound not to express certain views that might show that you're biased. You're bound to conduct yourselves properly vis–a–vis my client. You're bound to accept the correct onus of proof and so forth, and the onus of proof is on those who accuse in these proceedings on the balance of probabilities, as expressed by the High Court in the case of – I'm sure Mr Adams has told you about it, called Brigenshaw v Brigenshaw, and you can sit there and say, 'We're not governed by legalities', but you are, and throughout these proceedings you must conduct yourself as the law says you must conduct yourself. If you go outside those confines then your courts may ultimately criticise you. So when I make my suggestions that elements of bias have crept in and are being expressed, those suggestions are not made lightly and made in all seriousness, because I am very concerned about where this inquiry is going, and where you gentlemen and lady believe the onus of proof lies. The onus of proof lies on the accuser, and these proceedings may have the format of an inquiry but those who seek to establish those allegations against my client must prove them to the required degree. Now I repeat the submission that I have made, that there is evidence, as I see it, has clearly emerged this morning particularly from the utterances of [Mrs W] that leave me and my client to conclude that there is an element of bias on the part of you, Mr Chairman, as expressed here this morning, and you, [Mrs W ]. I repeat also, on the last occasion the comments were made by [Mrs W] about steps that were contemplated to prevent the proceedings taking place and her comments about that. For those reasons I ask that both of you retire from this Board, hearing these proceedings on the ground of bias, and it's not necessary there be actual bias, all that is necessary is that there be a perception of bias to a person listening to and hearing what was said this morning. It's irrelevant that you can sit there with a clear conscience and say, 'Well I haven't made my mind up'. The test is not that. The test is, whether to a person hearing what you said, that person could conclude there was bias. That's a matter entirely for you and [Mrs W] to consider, it's not a matter for the rest of the Board.
CHAIRMAN: Well in my own mind I don't believe I have any bias. so I'm not prepared to withdraw.
MR GUNSON: That's—all right. In your mind you have no bias.
CHAIRMAN: Well we'll get to the point where we were some time ago, and . . .
MR GUNSON: I'm sorry, the matter hasn't concluded yet. [Mrs W] has not made her position clear as to whether she is going to remain as a member of the Board on the basis of the matters I have put to you.
[MRS W]: Mr Chairman, I have not got any bias in this matter, all I was purely referring to was the statement Mr Armstrong made on page 4 of his 7.30 Report about another member of the profession.
MR GUNSON: Well I take it from that then, [Mrs W] declines to withdraw on the ground that she demonstrated bias. Is that so [Mrs W]?
[MRS W]: Yes.
MR GUNSON. Thank you. Can I just take some brief instructions. I'd like to have the opportunity for a brief adjournment so I can discuss the position with my client.
CHAIRMAN: All right.
MR GUNSON: Are you all content if we have 2 or 3 minutes.
CHAIRMAN: Yes.
MR GUNSON: Thank you."
From the above passages, it appears to be clear that counsel for the appellant arrived at the stage where he was submitting to the Board that two of its members, namely the Chairman and Mrs W had shown demonstrated bias against the appellant, in that they had made remarks indicating that they had already made up their minds against the appellant about the subject matters of the inquiry.
In my opinion ground 11 cannot be sustained. It appears from a study of the transcript, and in particular the passages which have been set out earlier, that counsel for the appellant misheard or misunderstood what the Chairman said in relation to what the Board had already decided about the possible effect of the allegations against the appellant concerning the television interview during the 7.30 Report segment referred to. On p.21 of the transcript of the hearing on 30 September 1987, the Chairman is recorded as saying, after he and Mrs W had been accused of having made up their minds about relevant issues, that:–
"… the summons sets out that the Board is enquiring into conduct which may be improper or may be infamous on the basis of the words that have been said. The Board has previously considered those words and has made the decision that they may be improper or infamous conduct, and this enquiry (sic) is continuing it on that line."
On p 22, counsel is recorded as saying:—
"Now my understanding of the matter is that you said, 'That on a previous occasion it had been determined by the Board that Mr Armstrong was guilty of infamous conduct and the other matters and that the opportunity – these proceedings were an opportunity for Mr Armstrong to provide evidence that he was not guilty'. Is that the substance of it?"
The Chairman answered, "No." It seems to me that, though the immediately preceding passages may have shown that the Chairman did not at that stage properly understand where the onus of proof lay, nevertheless he had correctly said, in substance, that the Board had previously decided that the appellant may be guilty of improper or infamous conduct on the basis of the evidence before it, whereas counsel understood his words to be that the Board had earlier decided that the appellant was in fact guilty of such conduct. The fact that the Chairman apparently misunderstood at that stage of the inquiry where the onus of proof lay does not vitiate the proceedings, and it is not claimed that it does. The fact is that he was correct in his statement that evidence in the Board's possession had earlier moved it to decide that the appellant might be guilty of such conduct, whereas counsel misunderstood and thought the Chairman had said that the Board had already decided that he was so guilty. This in my view disposes of the allegation of bias against the Chairman.
However, regrettably I am persuaded that the substance of ground 12 has been established. It appears from the transcript that the appellant had claimed that when he took part in the interview with the compere of the 7.30 Report on the night in question, he believed that he was doing so with the permission of the Board, that belief having been induced by what he had been told by the compere. It appeared also that the Board had given no such permission, but counsel for the appellant was arguing that the appellant's belief that it had was relevant to the question whether he had been guilty of infamous or improper conduct. The Chairman had expressed the view that he did not understand how it was relevant whether or not the appellant had believed the Board had given permission, but Mrs W made the statements recorded on p. 17 of the transcript of the proceedings on 30 September, to the following effect:–
"Mr Chairman, may I say, I really think that whether or not the Board had given Mr Armstrong permission to talk to Mrs Tierney (the compere), I don't think they were expecting to unprofessionally slate the other members of his profession, whether he was given permission or not. I mean you don't rush out and slate other members of your profession without the Board first hearing what they were going do (sic), therefore it really is erroneous, this whole – – –"
Upon counsel taking immediate objection, and quoting back to this member of the Board the words "unprofessionally slated other members of his profession", and asking "Is that your decision?", the Board member replied "That's in the evidence here". In my view those remarks by that Board member, considered in conjunction with earlier remarks made by that member from time to time, as shown in the cited passages, must have left in the mind of any reasonable observer hearing them the firm impression that the Board member had made up her mind, long before the end of the evidence and hearing submissions from counsel, that the appellant had engaged in conduct which, as she described it, was very likely to be characterised at least by that Board member as being either infamous or improper conduct in a professional respect. That is enough to vitiate the proceedings, in my opinion—see The Queen v Watson; Ex Parte Armstrong (1976) 136 CLR 248.
The Board in this case was acting as a professional disciplinary body under the Pharmacy Act, and since all of its members were skilled pharmaceutical professionals themselves, they were entitled to use their professional knowledge in the course of carrying out their inquiries. However, they were clearly bound to act in a judicial manner, and in respect of the matter argued against them, it was their duty to give a fair hearing to the appellant, and in the course of doing so to keep their minds open until he had been heard in his defence, in the sense of being ready and willing to be persuaded by him—see for example, Hall v New South Wales Trotting Club Ltd. [1977] 1 NSWLR 378 at p.388; and Kalil v Bray & Anor [1977] 1 NSWLR 256. If the mind of one member of the Board was made up against the appellant well before he had completed his evidence and submissions had been made on his behalf, and all the other evidence was in, that is enough to require that the Board's determinations should be set aside. That will be the effect of the order made here, but I understand that in the circumstances applying to this case, it will not be sought by either side that any further hearing of the allegations should be ordered.
That which has been said about grounds 11 and 12 is sufficient to dispose of the matter, but before parting with it I think I should express an opinion upon two procedural matters which were urged by the appellant as being substantial errors on the part of the Board. It may help to clarify procedural aspects of inquiries under the Pharmacy Act if I say why the appellant's arguments are in my view unsustained.
The first matter concerns one of the claims made by the appellant under ground 13, which reads as follows:—
"That the Pharmacy Board erred in law in conducting the proceedings in the manner in which they were conducted."
One matter argued under this ground is based upon alleged duplicity in the notice given by the Board to the appellant pursuant to s17A(4), in which it informed him that it appeared to the Board that grounds may exist for the exercise of the powers conferred on the Board by s17A in that "you may be guilty of infamous conduct in a professional respect or of improper conduct in a professional respect", on certain grounds set out in the notice. It was argued at the appeal by learned counsel for the appellant that this allegation was duplicitous, and the Board should not have proceeded with its inquiry under s17A before it had amended the notice by choosing between the allegations of infamous conduct in a professional respect and improper conduct in a professional respect, and proceeding upon that one alone. The submission was supported by references to the case of Johnson v Miller (1937) 59 CLR 467, and to an earlier decision of mine, In re Hayward, 84/77. The latter was a case in which the Pharmacy Board had held an inquiry in respect of certain alleged conduct of a registered pharmaceutical chemist, and as a result of the inquiry had found that the chemist had advertised in a manner calculated or likely to bring discredit on the profession of pharmaceutical chemists, contrary to the Advertising Rules. The Board had thereupon determined that it was entitled to exercise its disciplinary powers pursuant to s17A of the Pharmacy Act, and the question was whether the Board's determination was a valid one under s17A. I held that it was not, because the only basis set out in s17A for exercise of the powers conferred on the Board under that section were the two grounds set out under subs.17A(1), namely that the registered pharmaceutical chemist had been guilty of infamous conduct in a professional respect or had been guilty of improper conduct in a professional respect. The Board had not in fact alleged either of these grounds in the notice and summons it had served upon the chemist. In the course of my judgment I said:—
"Before the Board can exercise its powers it has to be satisfied, after an inquiry under the section, that the chemist has been guilty of one or other of those offences against the subsection. The notice therefore, in my opinion, is required to specify which of the two grounds the Board believes may exist or has information may exist, and the reasons why the ground is believed to exist.
The Board, however, gave the appellant no notice that either ground was believed to exist. It summoned him to show cause why it should not exercise its disciplinary powers pursuant to section 17A of the Pharmacy Act in relation to the alleged breach of regulation 3(1) of the Advertising Regulations."
Learned counsel for the appellant in the present case has relied upon that statement in particular, on the basis that it means that a notice given pursuant to s17A in order to be valid must allege one ground or the other, but not both. I agree that what I said is open to that interpretation, but it was not what I intended to say. It would have been clear if I had said, "at least one ground or the other which", instead of "which of the two grounds". Then the implication relied upon would not have been there. I do not think the notice is invalid because it alleges the two grounds in the alternative. Infamous conduct in a professional respect would include, I should think, improper conduct in a professional respect, the first type of conduct being more serious than the second. But there would be cases in which the Board was unsure whether the evidence if true would show conduct sufficiently grave to be characterised as "infamous", rather than amounting only to "improper". In such a case, I see no reason why the allegation should not cover both charges in the alternative.
The second matter is that it was submitted for the appellant that the Board erred in refusing to hear a submission that the appellant had no case to answer, and therefore should not be called upon to give evidence and to submit to questioning by the Board. In my opinion, that view is erroneous. A submission of no case to answer may of course be appropriate in the trial of a criminal case, or the hearing of a complaint or other proceeding alleging an offence against the law, or in committal proceedings; but it is not appropriate in the case of a hearing under specific statutory provisions applying to a professional disciplinary body, which proceedings are described in the Act as an "inquiry"—s17A(6). The Board is entitled under s17A(4)(b) to summon the registered pharmaceutical chemist to appear before it to show cause why its powers under the section should not be exercised in relation to the matters specified in the notice; and by s12 of the Act, the Board is entitled to question any person who may attend before the Board. Such power to question includes in my view power to question the person summoned; though the person summoned is not placed by the Act under any statutory obligation to answer.
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