Kozanoglu v Pharmacy Board of Australia

[2012] VSCA 295

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCI 2011 0191

ALI KOZANOGLU	Appellant
	V
THE PHARMACY BOARD OF AUSTRALIA	Respondent

---

JUDGES	WEINBERG and HARPER JJA and HARGRAVE AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	20 November 2012
DATE OF JUDGMENT	12 December 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 295
JUDGMENT APPEALED FROM	Kozanoglu v The Pharmacy Board Of Australia (Occupational And Business Regulation List) [2011] VCAT 2085 (Judge Lacava)

---

ADMINISTRATIVE LAW — Health Practitioner Regulation National Law (Victoria) (‘National Law’) — Pharmacy owned and operated by appellant raided by police— Notification by police to Pharmacy Board of Australia that 25 kilograms of dextromethorphan hydrobromide (‘DXM’) found during raid — Records showed that pharmacy had imported 350.5 kilograms of DXM in preceding 12 months — Largest single importer of DXM in Australia — Immediate Action Committee as delegate of Board took immediate action to prevent appellant from working as pharmacist — Victorian Civil and Administrative Tribunal (‘VCAT’) exercising review jurisdiction amended Board’s decision — Condition imposed that appellant not practise unless under supervision — Appeal on questions of law — Whether VCAT entitled to receive further evidence on appeal from immediate action decision — Whether further evidence restricted to matters bearing upon decision at time taken by Immediate Action Committee — VCAT’s power to receive such evidence not restricted on review under National Law —Whether VCAT’s refusal to take into account appellant’s prior good record gave rise to error — Appeal dismissed as no material error demonstrated — McDonald v Guardianship and Administration Board [1993] 1 VR 521; Shi v Migration Agents Registration Authority (2008) 235 CLR 286, applied.

---

APPEARANCES:	Counsel	Solicitors
For The Appellant	Mr V A Morfuni SC	F Butera & Co
For The Respondent	Mr J L Bourke SC with Dr S L Keeling	O’Donnell Salzano Lawyers

WEINBERG JA
HARPER JA
HARGRAVE AJA:

1. This is an appeal from a decision of the Victorian Civil and Administrative Tribunal (‘VCAT’). The appeal, pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (the ‘VCAT Act’), is confined to a question or questions of law.

The background facts

1. On 24 June 2011, the Australian Health Practitioner Regulation Agency (‘AHPRA’) received a verbal notification from a member of Victoria Police in relation to the appellant’s conduct.  That same day, AHPRA received a written notification from a second member of Victoria Police, Detective Senior Constable Dale Lapham.  Those notifications were made pursuant to s 144 of the Health Practitioner Regulation National Law (Victoria) (the ‘National Law’).[1] 

   [1]Section 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009 provides that the schedule to the Health Practitioner Regulation National Law Act 2009 (Qld), as in force from time to time, applies as a law of Victoria.

1. AHPRA provides ‘administrative assistance and support to the Pharmacy Board of Australia’[2] (‘the Board’). 

   [2]National Law s 25.

1. Detective Senior Constable Lapham’s notification raised a series of concerns regarding the appellant’s conduct.  It alleged that his practice as a pharmacist posed a ‘significant risk to [the] community’ in that:

·on 23 June 2011, police conducted a raid at his pharmacy at 54-56 Sydney Road, Coburg (‘the Pharmacy’);

·commercial quantities of dextromethorphan hydrobromide (‘DXM’) (which is a schedule 4 drug known to be used in the manufacture of ecstasy) were seized; and

·three unlicensed firearms were also seized.

1. The written notification comprised a three page memorandum headed: ‘Notification of Improper Conduct – Farmacologica Compounding Pharmacy’.  That written notification recounted, in some detail, the background to what was described as a ‘multi-jurisdictional major crime joint agency investigation’ by Victoria Police, the Australian Crime Commission, Customs and the Australian Federal Police (‘AFP’) to collectively target the criminal activities of Mohammed Oueida and his associates.  The investigation was known as ‘Taskforce Rossa’.

1. Detective Senior Constable Lapham asserted that the investigation had established that Oueida was supplying chemicals for illicit drug manufacture to one Rodney Weightman.  He further said that Oueida and Weightman were involved in the joint manufacture of these illicit drugs, which included ecstasy tablets. 

1. Detective Senior Constable Lapham went on to say that investigators suspected that Oueida was obtaining some of the raw materials (namely DXM) required for the manufacture of ecstasy pills from the Pharmacy.  Investigators believed that the DXM was being used as a substitute for the more commonly used Methylenedioxymethamphetamine (‘MDMA’). 

1. Detective Senior Constable Lapham said next that the Pharmacy was operated by the appellant, Ali  Kozanoglu, and his brother, Riza.  It was said that the appellant was the head pharmacist, and that his brother assisted in the store, as well as handling the financial side of the business. 

1. Detective Senior Constable Lapham observed that DXM was listed more simply as Methorphan in pt 1 of sch 11 of the Drugs, Poisons and Controlled Substances Act 1981.  He noted that a trafficable quantity of DXM was two grams pure.  DXM was also listed as a schedule 4 poison under the Poisons Code.[3]  It was a compound commonly found in cough medication, and believed to have hallucinogenic effects when used in certain dosages. 

   [3]As prepared by the Minister under s 12 of the Drugs, Poisons and Controlled Substances Act 1981. 

1. Detective Senior Constable Lapham said that, based on intelligence received, police had began to monitor the Pharmacy and its importation of DXM.  In the period between 5 July 2010 and 31 May 2011, a total of just over 350 kilograms of DXM had been imported, in four separate shipments brought in by air.  Intelligence indicated that the Pharmacy had paid for these importations.  In total, these shipments made the Pharmacy the largest single importer of DXM in Australia in the preceding 12 months. 

1. Detective Senior Constable Lapham went on to say that, as part of the investigation, an undercover police officer had been deployed.  During the course of the operation, that officer had purchased over 14,000 ecstasy tablets from Oueida.  One such transaction (involving the purchase of five capsules containing powder) took place within 50 metres of the Pharmacy.  The 14,000 tablets had been examined and had been found to contain DXM.  They were all impressed with an ‘M’ stamp. 

1. In October 2010, Victoria Police had executed a search warrant in the Ballarat area.  They had located and seized a commercial pill press with an ‘M’ shaped marking stamp, as well as a large quantity of tablets and powders.  These contained DXM.  The pill press, and the location at which it was found, were linked to Weightman. 

1. Detective Senior Constable Lapham suggested that there was evidence linking Oueida to the Pharmacy, and to the appellant and his brother.  Their interaction with Oueida appeared to fall outside the normal pattern of behaviour that might be expected in a pharmacist-customer relationship.  This unusual pattern of behaviour was said to be ‘heightened’ at the time of the four importations of DXM. 

1. On 7 April 2011, some 25 search warrants were executed.  Those targeted were Oueida, Weightman and their associates.  As a result, Oueida and Weightman had been charged with numerous offences involving trafficking of DXM and methylamphetamine. 

1. According to Detective Senior Constable Lapham, search warrants were executed at the Pharmacy, and at the home address of the two brothers, on 23 June 2011.  A number of items were seized from each location.  Among those found at the Pharmacy were a sawn-off shotgun with ammunition (which was located in a rear storage area), two handguns with ammunition (found in a large safe used for the storage of various drugs), approximately 25 kilograms of DXM, numerous empty drums labelled as containing DXM, a customer file relating to Oueida, invoices relating to the purchase and receipt of the four DXM shipments, two flick-knives, and the sum of $16,900 in cash.  In addition, a number of empty barrels labelled as having once contained DXM were located at the brothers’ home address in Templestowe. 

1. Both the appellant and his brother were arrested on the day the warrants were executed and interviewed in relation to these matters.  Each of them made a no comment interview.  They were released pending further investigation.  Detective Senior Constable Lapham stated that the investigators believed that charges would be laid against the brothers once the records that had been seized were fully examined. 

The IAC’s actions

1. It should be noted that the Board had delegated its decision-making power in relation to the taking of immediate action on a health practitioner’s registration to the Immediate Action Committee (‘IAC’).  Actions taken by the IAC were, for all practical purposes, to be regarded as having been taken by the Board.  Following receipt of the notification by telephone, and prior to receipt of the written memorandum, the IAC, at its meeting on 24 June 2011, proposed to take immediate action under s 156 of the National Law to suspend the appellant’s registration, or to impose conditions and/or accept an undertaking in relation to it.   

1. The IAC wrote to the appellant on that same day, notifying him of its proposal to take immediate action, and invited him, if he wished to do so, to address specifically any concerns raised in the notification.  The letter went on to inform the appellant that he could ‘provide the IAC with evidence, where it exists, to confirm [his] suitability to practise’.  Moreover, the IAC went further, and invited the appellant to provide evidence to it as to why he did not pose a serious risk to persons in his practice as a health practitioner, and why immediate action was not necessary.

1. In response to that letter, the appellant’s legal representatives wrote to the IAC on 26 June 2011, indicating that the appellant wished to make oral submissions in response to the invitation contained in the IAC’s letter, and to address the concerns raised in the notification.  The appellant’s letter foreshadowed that he would ‘provide … evidence to confirm his suitability to practise without posing any risk to the public’. 

1. On 29 June 2011, the IAC conducted what might loosely be described as a ‘hearing’.  The appellant was represented by Mr Morfuni SC who made oral submissions, over the telephone, on his behalf.  In the course of those submissions, Mr Morfuni contended that, when determining whether immediate action was required, the IAC should have regard to the appellant’s background and previous good character.  He submitted that the IAC should also have regard to the large number of customers that the appellant had served over many years. 

1. In addition, Mr Morfuni informed the IAC that the reason why such a large amount of DXM had been imported was because an unspecified portion had been spoiled, and could not therefore be used.  He said that the appellant was unable to provide records, or other evidence, as to what had become of the DXM because the police had seized his files during the course of the raid. 

1. Mr Morfuni submitted that the IAC should disregard entirely the material contained in the notification regarding Oueida, and any suggestion implicit in the notification that the DXM which the appellant had imported had somehow been supplied to him.  He next submitted that immediate action of the kind contemplated would have drastic consequences for the appellant and deprive him of his income.  Finally, he submitted that if the Board considered that immediate action was necessary, a condition that the appellant not procure DXM would be sufficient to address any risk to the public. 

1. Notwithstanding Mr Morfuni’s submissions, the IAC determined that immediate action was necessary to protect public safety. 

1. In its reasons for decision, the IAC stated that it had taken into account both the material contained in Detective Senior Constable Lapham’s notification, as well as Mr Morfuni’s oral submissions made on behalf of the appellant on 29 June 2011.  It noted that 350.5 kilograms of DXM was an unusually large amount of the drug considering that the usual dosage was between ten and 20 milligrams.  It further noted that the appellant had in his possession enough DXM to dispense between 17.5 million and 35 million individual doses.  Even allowing for some significant spoilage, that was an extraordinary quantity of DXM. 

1. The IAC went on to say that DXM was a known drug of abuse, and was therefore strictly regulated.  It found that the appellant had not provided a clear account of, or any evidence in relation to, what had become of the drug.  The IAC also referred, in the course of its reasons, to the finding of unlicensed firearms at the Pharmacy. 

1. Somewhat controversially, the IAC castigated the appellant for having kept his pharmacy operating between 24 June 2011 and 29 June 2011, in circumstances where the pharmacist left in charge had not had access to computer records of the kind necessary to ensure safety to customers.  Of course, the reason why those records were not available was that the police had seized the relevant files.  

1. Specifically, the IAC determined to impose a ‘condition’ on the appellant’s registration that he not work as a pharmacist, not hold the keys to any pharmacy, and not attend the premises of the Pharmacy (unless in circumstances where he was required to attend in order to comply with legislation regulating his ownership thereof).

1. Plainly, this ‘condition’ was devastating so far as the appellant was concerned.  In the normal course, it would have operated only temporarily, pending a reference by the Board to either a panel, or the responsible tribunal, under the National Law, depending upon the seriousness with which his conduct was viewed.[4]  Either body would then conduct a full hearing into the allegations made against him, at which he would be accorded full procedural fairness. 

   [4]National Law pt 8 divs 11-12.

1. Regrettably, in this case, the course contemplated by the National Law was not followed.  The Board did not refer the allegations made against the appellant to either a panel, or the responsible tribunal.  Its reason for not doing so was that those allegations were the subject of an ongoing police investigation.  The Board considered it appropriate to await the completion of that investigation before taking any further action.  In the interim, of course, the ‘condition’ attached to the appellant’s registration as a consequence of the decision to take immediate action had seriously compromised the appellant’s business. 

1. It was scarcely surprising, in these circumstances, that the appellant, unable to bring the matter to finality in any other way, elected to challenge the IAC’s decision to take immediate action before VCAT.  In doing so, he of course invoked VCAT’s review jurisdiction. 

The proceeding before VCAT

1. The appellant’s appeal to VCAT was brought pursuant to s 199(1)(e) of the National Law.  That section provides:

(1)       A person who is the subject of any of the following decisions (an appellable decision) may appeal against the decision to the appropriate responsible tribunal for the appellable decision

…

(e)a decision by a National Board to impose or change a condition on a person’s registration or the endorsement of the person’s registration, other than—

(i)a condition relating to the person’s qualification for general registration in the health profession; and

(ii)a condition imposed by section 112(3)(a);

1. Section 6 of the Health Practitioner Regulation National Law (Victoria) Act 2009 provides that VCAT is the ‘responsible tribunal’ for Victoria. 

1. It should be noted that the National Law does not provide any clear indication of the nature of an appeal under s 199(1)(e).  In particular, it says nothing about whether the appeal is to be an appeal in the strict sense, based upon error, or a rehearing of some kind.  If it is to be a rehearing, is it to be confined to the material that was before the original decision-maker (i.e. the Board), or can that material be supplemented?  Alternatively, is it a rehearing de novo, with no restrictions of any kind upon the material that can be placed before VCAT? The appeal to this Court turns primarily upon that question. 

1. As he had been before the IAC, the appellant was represented before VCAT by Mr Morfuni.  His appeal was heard by Judge Lacava (a Vice-Presidential Member), and two additional Members, both of whom were qualified pharmacists. 

1. Right at the outset, Judge Lacava raised with both parties the nature of the appeal.  He postulated that it was a ‘review on the merits’, which it plainly was.  That was accepted by both sides.  Of course, that description does not answer the question as to what limits, if any, there are upon the process of review once the matter is before VCAT. 

1. Dr Keeling, who appeared as counsel on behalf of the Board, assumed the carriage of the appeal.  Having opened the case, and noted that there were six ‘grounds of appeal’ (including error of law and jurisdictional error of various kinds), Judge Lacava interrupted, and observed that this was all ‘irrelevant’.  Presumably, he meant by that comment that the hearing was, in his view, a rehearing de novo.  If so, there was no point in dealing with specific grounds of appeal, all of which alleged error. 

1. Dr Keeling then observed that Mr Morfuni seemed to be approaching the case as though it involved an application for judicial review. She submitted that if that were so, the challenge to the IAC decision ought to have been brought in the Supreme Court, by way of judicial review under O 56 of the Supreme Court (General Civil Procedure) Rules2005, rather than by way of appeal under s 199(1)(e) of the National Law. 

1. Judge Lacava, perfectly sensibly, said that Dr Keeling need not concern herself with matters of that kind.  Mr Morfuni had accepted that the application to VCAT involved merits review, and, by implication, had also accepted that the appeal should be conducted as a rehearing de novo. 

1. At about this stage, Mr Morfuni interjected.  He noted that his submissions before the IAC had been made orally, over the telephone, and from his chambers.  He observed that there was no transcript of his submissions before the IAC, or what had been said in response to them.  He submitted that the IAC’s summary of his submissions, as set out in its reasons for decision, was incomplete. 

1. Judge Lacava then made it clear that if there were matters upon which Mr Morfuni wished to rely, in addition to those placed before the IAC, he could advance those before VCAT.  Indeed, his Honour shortly thereafter made VCAT’s position perfectly clear.  He said: ‘we’re starting again’. 

1. Dr Keeling then intimated that the Board would be seeking to supplement the material led before the IAC by calling evidence from Mr Mark Feldschuh, a qualified pharmacist with expertise in relation to the work done by compounding pharmacies.  Mr Morfuni immediately objected to the tender of that evidence.  In doing so, he readily acknowledged that VCAT was not bound by the rules of evidence.  He nevertheless submitted that Mr Feldschuh’s evidence should not be received.

1. Mr Morfuni’s objection had several distinct bases.  First, he complained of short service of Mr Feldschuh’s report.  The orders that had been made in relation to the conduct of the matter before VCAT had stipulated that the Board had to serve upon the appellant all material upon which it would seek to rely, including statements of evidence of each witness to be called at the hearing, by 4pm on 21 September 2011.  In fact, Mr Feldschuh’s statement of evidence was not served until 5 October 2011, some 14 days late. 

1. The hearing before VCAT commenced on 19 October 2011.  Thus, although Mr Feldschuh’s statement had been served late, Mr Morfuni had still had some two weeks to consider it.  There was an affidavit explaining the delay, essentially relying upon the fact that the appellant had not served any material upon the respondent.  That seems to have taken the respondent completely by surprise. 

1. Mr Morfuni submitted that this was an entirely inadequate explanation for the late service of Mr Feldschuh’s report. 

1. When asked by Judge Lacava whether the appellant had suffered prejudice by reason of the delay, Mr Morfuni replied that he could not point to any. 

1. A second basis upon which Mr Morfuni objected to this evidence was that Mr Feldschuh himself had acknowledged that there were a number of matters upon which he had commented which involved expressions of opinion that went beyond his expertise.  For example, Mr Feldschuh said, in his statement: ‘I cannot see any legitimate reason for a pharmacy to acquire 350.5 kilograms of DXM within a 12 month period’.  It was submitted that a conclusion of that nature was a matter entirely for VCAT, and not for a pharmacist, even one well qualified to speak about compounding pharmacies. 

1. As a further alternative, Mr Morfuni submitted that if Mr Feldschuh’s report were to be received, he should be made available to be cross-examined. 

1. After hearing full argument on this matter, Judge Lacava ruled that Mr Feldschuh’s evidence should be received, but that he should be made available for cross-examination.

1. The matter was then adjourned so that Mr Feldschuh could be called.  In the course of his evidence, he explained the nature of a compounding pharmacist (i.e. one who makes drugs from raw active material). 

1. It should be noted that Mr Feldschuh had himself been a compounding pharmacist for many years.  He had also been an advisor to various committees, including those constituted under the Therapeutic Goods Act 1989 (Cth). In his evidence in chief he described the use of DXM as a cough suppressant, and spoke about its various qualities.

1. Under cross-examination, Mr Feldschuh pointed out that he was the President of the Victorian branch of the Pharmaceutical Society of Australia.  He was also a shareholder in a company of compounding pharmacists, which supplied retail pharmacists with a number of different chemicals.  These included DXM. 

1. Mr Morfuni put to Mr Feldschuh that the commercial cost of DXM in Australia was about $2,000/kg.  He replied that he could not say.  It was then put to him that DXM could be purchased in China for about $200/kg.  Once again, he indicated that he could not say.  He accepted that a pharmacist could lawfully purchase any quantity of DXM, and that it was perfectly legal to import that drug into Australia.  It was then put to him that DXM could be used by a compounding pharmacist to produce a cough suppressant such as Robitussin, a schedule 2 drug which could be sold over the counter.  He agreed that that was so, and that a pharmacist would not be required to keep any record of the sales of that drug. 

1. Mr Morfuni suggested to Mr Feldschuh that because DXM was not designated as a precursor chemical, it could not be used in the manufacture of MDMA.  He rejected that suggestion.  He said that DXM could be used for that purpose, and that it had ‘similar characteristics’ to MDMA. 

1. Later in his cross-examination, Mr Morfuni put to Mr Feldschuh that DXM could become contaminated.  He agreed.  He also agreed that, in that event, a pharmacist should destroy the product, and that there was no particular statutory obligation to keep a record of any uncompounded DXM that had been destroyed. 

1. In addition to the evidence of Mr Feldschuh, the only other material that was before VCAT that had not been before the IAC was the instrument of delegation. 

1. After Dr Keeling had closed the Board’s case, Mr Morfuni announced that he would call no evidence.  The matter then proceeded to submissions. 

1. On 3 November 2011, VCAT determined, pursuant to s 202 of the National Law, to ‘amend’ the Board’s original decision, and to substitute for it a decision in the following terms:

Unless permitted otherwise by the Board in writing or, until further order, the following conditions are imposed upon the applicant’s registration as a pharmacist:

1.The applicant is not permitted to practise as a pharmacist unless he is at all times supervised by another registered pharmacist who shall be approved in writing by the respondent and who will report weekly in writing to the respondent as to the pharmacy work carried out by the applicant (the supervising pharmacist).

2.The supervising pharmacist shall be employed at the cost of the applicant.

3.The applicant is only permitted to practise as a pharmacist, under the supervision of the supervising pharmacist, at Farmacologica Compounding Pharmacy, 54-56 Sydney Road, Coburg Victoria (‘the Pharmacy’)

4.The applicant is only permitted to attend at the pharmacy when the supervising pharmacist is present including when he is required to attend the pharmacy to comply with legislation regulating his ownership of the pharmacy.

5.The applicant is prohibited from holding the keys to the pharmacy or the drug safe at the pharmacy.

6.The applicant is prohibited from importing into Australia any drug or chemical listed as a scheduled drug in the Drugs Poisons and Controlled Substances Act 1981.

7.The applicant is prohibited from employing his brother Riza Kozanoglu at the pharmacy

The application for leave to appeal

1. On 9 February 2012, the appellant was granted leave to appeal against the VCAT decision.  On that occasion, order 7 of the VCAT orders was set aside.  It was properly conceded by the respondent that the order preventing the appellant from employing his brother at the Pharmacy could not stand.  Plainly, VCAT had no justification for making that order, and certainly none for doing so without having first afforded the appellant the opportunity to be heard in relation to it. 

The relevant legislative regime

1. Section 155 of the National Law defines ‘immediate action’ in the following terms:

155     Definition

In this Division—

immediate action, in relation to a registered health practitioner or student, means—

(a)the suspension, or imposition of a condition on, the health practitioner’s or student’s registration; or

(b)accepting an undertaking from the health practitioner or student; or

(c)accepting the surrender of the health practitioner’s or student’s registration.

1. Section 156(1)(a) relevantly provides that the Board may take immediate action in relation to a health practitioner registered by the Board if it reasonably believes that:

(i)because of the registered health practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons; and

(ii)it is necessary to take immediate action to protect public health or safety; or…

1. Section 157(1) provides that if the Board is proposing to take immediate action that consists of suspending, or imposing a condition on, a practitioner’s registration pursuant to s 156, it must:

(a)give the practitioner or student notice of the proposed immediate action; and

(b)invite the practitioner or student to make a submission to the Board, within the time stated in the notice about the proposed immediate action.

1. We have previously set out s 199(1)(e) of the National Law which confers upon a party aggrieved the right of appeal. 

1. For the sake of completeness, it should be noted that VCAT has its own legislative regime governing appeals brought within its review jurisdiction. Section 51(1) of the VCAT Act provides that, in carrying out its review function, VCAT:

(a)       has all the functions of the decision-maker; and

(b)has any other functions conferred on the Tribunal by or under the enabling enactment; and

(c)has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.

1. Section 98(1) of the VCAT Act provides that VCAT:

(a)       is bound by the rules of natural justice;

(b)is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;

(c)may inform itself on any matter as it sees fit;

(d)must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.

1. Plainly, a proceeding before VCAT, in its review jurisdiction, is normally dealt with as a rehearing de novo.[5]  In conducting the review, the ‘normal rule’ – unless excluded by the legislation under which the decision is made – is that VCAT has ‘regard to the facts as they exist at the time of the hearing’.[6]That is consistent with the approach usually taken to merits review by bodies of that type.[7]

   [5]The precise form of the review will depend upon the ‘character and form’ of the administrative decision under review, and the terms of the enactment under which the decision is made: McDonald v Guardianship and Administration Board [1993] 1 VR 521, 529 (Fullagar, Tadgell and JD Phillips JJ).

   [6]Jason Pizer, Pizer’s Annotated VCAT Act (JNL Nominees, 4^th ed, 2012) 125 [42.80].

   [7]It has been held, for example, that proceedings before the Administrative Appeals Tribunal involve hearings de novo.  It is the law in force at the time the Tribunal considers the matter that applies, not the law that was in force when the decision under review was made.  The same is true of the facts that the Tribunal is to consider: see generally Dennis Pearce, Administrative Appeals Tribunal (Butterworths, 2003) 139-41; Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589 (Bowen CJ and Deane J); Comcare v Fiedler (2001) 115 FCR 328.

1. By his appeal, the appellant contends that the National Law changes the position under the ‘normal rule’ so that the appeal to VCAT, under that law, should be regarded as confined to a rehearing based upon the material before the original decision-maker, and nothing more.  It should be noted, in that regard, that the provisions of the National Law relating to appeals apply ‘despite any provision to the contrary of the Act that establishes the responsible tribunal, but [do] not otherwise limit that Act’.[8]

   [8]National Law s 203.

The grounds of appeal

1. Originally, on the application for leave to appeal, the proposed Notice of Appeal contained 11 grounds.  The applicant identified eight questions of law that were said to arise from those grounds.  

1. However, by Notice of Appeal dated 20 February 2012, the appellant now relies upon the following nine grounds of appeal:

1.The Tribunal erred in Law in holding that the power to take immediate action was enlivened in this case;

2. The Tribunal erred in law in holding that the conduct of the Appellant posed a serious risk to persons;

3. The Tribunal erred in law in holding that it was necessary to take immediate action in order to protect public health and safety;

4. The Tribunal applied the wrong test in that it held that it did not have to consider whether the conduct of the Appellant constituted misconduct in order to determine that immediate action should be taken and that the appeal from the Immediate Action Committee was a full hearing on the merits rather than one limited to determining whether, on the evidence before it, the decision of the IAC was correct;

5. The Tribunal erred in-law in holding that the Appellant supplied DXM to “others” when the evidence disclosed that:

[a] There was no direct evidence of supply;

[b] Although Quieda and Weightman had been charged with offences they had not been so charged in relation to any drugs allegedly supplied by the Appellant;

[c] The Notification did not allege any supply to “others” by the Appellant;

[d] The Notification did not allege a supply to Oueida and Weightman;

[e] The Appellant had not been charged with any offence.

6. The Tribunal erred in law in accepting and acting on evidence that was not evidence of the conduct of the Appellant and which evidence was inadmissible against him for the purpose of determining whether his conduct breached the Act.

7. The Tribunal denied the Appellant procedural fairness:

[a] By permitting the Respondent to call and rely on evidence that was not before the IAC;

[b] By holding that the failure of the Appellant to call evidence on the appeal enabled it to make the findings that it did;

[c] In acting on evidence that was not evidence of the conduct of the Appellant;

[d]In failing to take into account the prior good record of the Appellant in determining whether his conduct posed a risk such that it warranted the taking of immediate action;

[e] In holding that the Appellant supplied DXM “to others” when the case relied upon by the Respondent was that there had been a supply to Ouida thereby deciding the case on a basis different to, that which the Respondent relied upon.

8. In holding that, notwithstanding that it adduced further evidence, the failure of the Respondent to tender any instrument of delegation could be excused because the point was not taken before the IAC;

9. The Tribunal erred in law in holding that there was a need to take immediate action in circumstances where the evidence disclosed that:

[a] The Notification was made on 24 June 2011;

[b] No charge had been laid against the Appellant;

[c] The Respondent had notified the Appellant that it did not propose to investigate the conduct of the Appellant the subject of the Notification;

[d] It was not known when, if ever, the Appellant would be charged with any offence resulting in adverse orders made against him without any determination that he was guilty of misconduct under the Act.

The appellant’s submissions

1. The appellant contends that, on the proper construction of s 156 of the National Law, the facts as found by the IAC and, by implication, by VCAT as well, did not justify the taking of immediate action (grounds 1, 2, 3 and 9).  

1. He further contends that VCAT erred in law by approaching its task as though it involved a rehearing de novo, rather than confining its attention to the material that had been before the IAC (grounds 4, 7(a) and 8). 

1. In addition, the appellant raises a series of specific points regarding VCAT’s findings which he contends were not supported by any evidence, or which involved VCAT having supposedly taken into account irrelevant considerations (grounds 5, 6, 7(b), (c) and (e)). 

1. Finally, the appellant complains of VCAT having failed to take into account his prior good record (ground 7(d)).[9] 

   [9]This point is also implicit in grounds 1, 2, 3 and 9.

1. The appellant identifies what he submits are various ‘jurisdictional errors’ on the part of VCAT.  He groups these in a way that differs from the summary set out in the preceding paragraphs, but nothing of any real consequence turns upon that. 

1. The starting point must be grounds 4, 7(a) and 8.  The appellant contends that the nature of an appeal from the IAC to VCAT, under the provisions of the National Law, is not a rehearing de novo, but rather a rehearing confined to the material that was before the IAC.  In other words, VCAT’s role, in matters of this kind, is to determine whether, on the basis of that material alone, the Board’s decision can be justified. 

1. In essence, the appellant’s submission boils down to a complaint that VCAT should not have received the evidence of Mr Feldschuh, or permitted the tender of the instrument of delegation from the Board to the IAC.

1. In his oral submissions before this Court, Mr Morfuni argued that, on its proper construction, the National Law did not permit the IAC to receive anything other than a ‘submission’ on behalf of the appellant.  He further contended that the term ‘submission’ should be narrowly construed, and that it did not extend to the tender of evidence.  Thus, so it was said, the appellant could challenge the account of his conduct contained in Detective Senior Constable Lapham’s notification before the IAC, but only by assertion and argument. 

1. There are obvious difficulties with a submission of that kind.  Section 157(1)(b) of the National Law, which confers upon a person the right to make a submission in response to a notification that triggers the ‘immediate action’ process, is intended to afford a measure of procedural fairness.[10]  It is hard to imagine why the legislature would have permitted argument by assertion, but precluded proof of the truth of that assertion. 

   [10]The ‘purpose of the show cause process is to afford the practitioner or student natural justice prior to a National Board deciding whether to take immediate action.  It is not intended that this process delay or impede a National Board from taking immediate action, when it is warranted’: Explanatory Memorandum, Health Practitioner Regulation National Law Bill 2009 (Qld) 92. 

1. To take this case, the appellant, who is said to have imported vast quantities of DXM, might, conceivably, have been able to demonstrate, before the IAC, that he had destroyed almost all of that substance because it had been found to be defective.  Can it seriously be contended that the IAC would have been acting beyond power if it permitted proof of that fact to be led as part of any submission put forward in answer to the notification?

1. Certainly, neither party appears to have approached the matter in that way before the IAC. 

1. The position was no different before VCAT.  As we have noted above, Dr Keeling foreshadowed an intention to rely upon the additional evidence of Mr Feldschuh to support the Board’s case that the decision to take immediate action had been correct, on the merits.  Mr Morfuni did not object to that course as such.  He did not submit that VCAT had no power to receive any such evidence.  Rather, he complained only that he had not been given sufficient notice of Mr Feldschuh’s report, and argued that some of the opinions expressed therein should not be received. 

1. Now, before this Court, and for the first time, Mr Morfuni submits that VCAT lacked power, under the appeal provisions of the National Law, to receive Mr Feldschuh’s evidence. 

1. As regards ground 1, 2, 3 and 9, it must be said that these are drafted in a manner that is scarcely conducive to clarity.  Doing the best we can, Mr Morfuni seems to be contending, in effect, that both the IAC and VCAT misconstrued the relevant provisions of the National Law by finding that the allegations raised in the notification gave rise to a reasonable belief that the appellant posed a risk to the public.  In some respects, these grounds fall short of identifying with the necessary precision the question of law to which they are said to give rise. 

1. It is possible that the grounds in question are intended to do no more than raise for consideration whether both the IAC and VCAT erred in law in failing to balance the risk to the public, in permitting the appellant to continue practising as a pharmacist without direct supervision, against his past history which suggested that he posed no such threat.  We shall return to that question in due course. 

1. The next point raised by Mr Morfuni concerned ground 5, a ‘no evidence’ ground.  In support of that ground, Mr Morfuni submitted that there was no basis whatsoever for the IAC, or VCAT, to have taken into account, to the extent that they did, that the appellant may have supplied DXM to Oueida or Weightman.  It was submitted that this was mere speculation, and should not have formed any part of either decision. 

1. Closely related to ground 5 are grounds 6, 7(b), 7(c) and 7(e).  These grounds are couched in terms of irrelevant considerations and procedural fairness, rather than ‘no evidence’, but they reflect essentially the same point. 

1. Ground 7(d) is a standalone ground which asserts a failure to take into account a relevant consideration.  It complains that both the IAC and VCAT failed to have regard to the appellant’s previous history, and good record, when they were legally bound to do so.

The respondent’s submissions

1. In relation to grounds 4, 7(a) and 8, the respondent put forward three submissions in reply.  It argued first that this Court should not entertain Mr Morfuni’s challenge to the procedure followed below, at VCAT, because he did not take the point at that stage.  Secondly, it contended that VCAT was perfectly entitled to receive the evidence of Mr Feldschuh, and the instrument of delegation.  Thirdly, it argued that even if VCAT erred in allowing that evidence to be led, the error was harmless because the evidence did not influence the result. 

1. In response to grounds 1, 2, 3 and 9, the respondent submitted that VCAT did not err in its approach to the relevant provisions of the National Law, and that it was not required to balance the perceived risk to the public against the appellant’s previous history. Moreover, even if such a balancing exercise had been required, it could only have resulted in a decision to take immediate action. The matters set out in the notification were of such gravity as to require the appellant to be supervised by a licensed pharmacist if he was to continue practising pending any future determination by a panel or tribunal. In any event, these grounds raised questions of fact, and not of law, and should not be entertained by this Court in the exercise of the powers invoked under s 148 of the VCAT Act. 

1. Turning then to ground 5, the respondent submitted that there was ample evidence upon which both the IAC and VCAT were entitled to form a ‘reasonable belief’, under s 156(1) of the National Law, that it was necessary, for the purpose of protecting the public, to impose conditions of the type that it did. 

1. The material upon which both bodies acted included the fact that the appellant imported 350.5 kilograms of DXM, a drug that was capable of being used in the manufacture of ecstasy, over a period of just under a year, and that only 25 kilograms remained as at 23 June 2011 when the Pharmacy was raided.  Therefore, 325.5 kilograms of DXM had not been accounted for.  It was open, on the relevant material, for both the IAC and VCAT to find that the appellant had supplied the DXM to others, and that the purpose of such supply was to enable it to be used in the manufacture of illicit drugs. 

1. In relation to grounds 6 and 7(c), the respondent submitted that the complaints contained therein did not involve questions of law, but rather issues of fact.  They could not therefore be raised on appeal to this Court. 

1. In relation to ground 7(d), as a standalone ground, the respondent submitted that there was a paucity of material before VCAT as to the appellant’s previous history, particularly since he chose not to go into evidence.  In any event, that history could not have affected the decision ultimately taken to require him to be supervised if he were to be permitted to continue operating his business. 

Conclusions

1. In our opinion, the respondent’s submissions regarding VCAT’s power to receive Mr Feldschuh’s evidence, and to permit the tender of the instrument of delegation, should be accepted.[11]  We are not persuaded that the IAC’s powers were limited to receiving ‘submissions’,[12] on behalf of the appellant, without any capacity to receive ‘evidence’ to support them.  To interpret its powers so narrowly would be to do manifest injustice in circumstances where a person subject to allegations in a notification can, swiftly and persuasively, put paid to those allegations. 

   [11]Save for the submission that the point, not having been argued before VCAT, should not be permitted to be raised for the first time in this Court.  The point is one of construction, and the facts relevant to it are uncontroversial.  Further, the point of law raised is an important one.    This is therefore a case where it is ‘expedient’ and ‘in the interests of justice’ for this Court to entertain the point, though it was not raised below: see Medical Practitioners Board of Victoria v Lal (2009) 23 VR 702, 713-4 (Maxwell P, Weinberg JA and Kyrou AJA).

   [12]The term ‘submission’ in the National Law is not, in our opinion, to be construed in the strict, and narrow, legal sense in which a court would distinguish between submissions and evidence.  It is sufficiently flexible to include supporting material, filed or relied upon with the written or oral argument, in order to make good that argument.  

1. Even if the IAC’s powers were so circumscribed, we would not accept that VCAT could not receive evidence of the kind led in this case. 

1. In our opinion, the appeal to VCAT, under the National Law, was not, as Senior Counsel for the respondent at one point submitted, a rehearing de novo in the widest sense of that term.  It would not have been permissible, for example, for the respondent to adduce evidence of facts and matters that had occurred after the notification had been provided to the IAC to justify, retrospectively, the decision to take immediate action. 

1. Nonetheless, VCAT was entitled, in our view, to receive any evidence that bore upon the decision that was actually taken by the IAC at the time that decision was taken. 

1. There are authorities that bear upon this point. 

1. It may be helpful to begin with the classic analysis of the distinction between various types of appeal put forward by Mason J in v Builders LicensingBoard v SperwayConstructions (Syd) Pty Ltd,[13] and cited with approval by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy.[14]  Their Honours summarised Mason J’s remarks in Sperway as a ‘fourfold distinction’, in the following terms:

(i)an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of a hearing de novo.[15]

[13](1976) 135 CLR 616, 619-22 (‘Sperway’)

[14](2003) 214 CLR 118.

[15]Ibid 124.

1. In Dwyer v Calco Timbers Pty Ltd,[16] a unanimous decision of the High Court, the joint judgment of Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said of this passage:

   [16](2008) 234 CLR 124.

But these categories cannot represent a closed class and particular legislative measures, such as those with which this appeal is concerned, may use the term "appeal" to identify a wholly novel procedure or one which is a variant of one or more of those just described.

It was in that vein that McHugh J pointed out in Eastman v The Queen:

Which of these meanings the term 'appeal' has depends on the context of the term, the history of the legislation, the surrounding circumstances, and sometimes an express direction as to what the nature of the appeal is to be.

In short, it is the proper construction of the terms of any particular statutory grant of a right of appeal which determines its nature. [17]

[17]Ibid 128-9.

1. An appeal from a decision to take immediate action by the IAC to the responsible tribunal, under the National Law, is clearly not an appeal stricto sensu.  VCAT is not a court, and would not be the type of body expected to consider legal error, still less jurisdictional error, although, of course, it is not precluded from doing so. 

1. In Shi v Migration Agents Registration Authority,[18] the High Court dealt with an appeal by a migration agent who had had his registration cancelled by the Migration Agents Registration Authority.  On appeal to the AAT, the Senior Member decided to merely caution the appellant in place of the Authority’s decision.  Before the High Court, the issue was whether the AAT had erred by failing to limit its review to the facts and circumstances prevailing at the time of the Authority’s decision.

[18](2008) 235 CLR 286 (‘Shi’).

1. The High Court unanimously held that the AAT’s approach on this point had been correct.  Kirby J said that:

When making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available. This rule of practice is no more than a feature of good public administration. When, therefore, the Tribunal elects to make "a decision in substitution for the decision so set aside", as the Act permits, it would be surprising in the extreme if the substituted decision did not have to conform to such a standard.[19]

…

There is … a general approach deriving in particular from the statutory function of substituting one administrative decision for another. Nevertheless, the particular nature of the "decision" in question may sometimes, exceptionally, confine the Tribunal's attention to the state of the evidence as at a particular time[20]

[19]Ibid 299.

[20]Ibid 301 (citations omitted).

1. To similar effect, Hayne and Heydon JJ said that:

Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would provide such a limitation.

…

Nothing in the provisions of the Migration Act fixed a particular time as the point at which a migration agent's fitness to provide immigration assistance was to be assessed. Unlike some legislation providing for pension entitlements, in which the critical statutory question is whether a criterion was met or not met at a particular date, such as the date of cancellation of entitlements, the provisions of s 303 of the Migration Act contained no temporal element. It follows that when the Tribunal reviews a decision made under s 303, the question which the Tribunal must consider (is the Tribunal satisfied that the person concerned is not a fit and proper person to give immigration assistance?) is a question which invites attention to the state of affairs as they exist at the time the Tribunal makes its decision. [21]

[21]Ibid 315-6 (citations omitted).

1. Kiefel J, with whom Crennan J relevantly agreed, said:

Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself. Cases which state that the Tribunal is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light. It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time.[22]

[22]Ibid 328 (citations omitted).

1. Shi establishes that, ordinarily, an administrative tribunal is entitled to have regard to events which occur in the intervening time between the original decision and the review process, unless that position is altered by the terms of the decision-making power.

1. Turning to a consideration of the relevant legislation in this case, it would be unlikely that the legislature, in enacting the National Law, contemplated that an appeal from a decision to take immediate action would involve a rehearing de novo, in the fullest sense of that term.  The IAC (as delegate of the Board) is expected to act, as the name of the ‘immediate action’ regime suggests, immediately. That suggests a temporal limitation, and also a certain standard of speediness on the Board’s part.  There must be a certain point in time to which the decision to act is ‘immediate’.  It is the circumstances existing at that time that are relevant, and the belief spoken of in s 156 must be formed on the basis of those circumstances.

1. While the purpose of the immediate action provisions is the protection of the public – which would ordinarily strongly argue in favour of the relevant tribunal taking into account the most up to date material[23] – only interim protection is envisaged.  The practitioner’s suitability to practise is then revisited, on all the material, before the panel or responsible tribunal.

   [23]Ibid 302 (Kirby J).

1. There is some attraction in the notion that the appeal should be viewed as a rehearing on the evidence before the original decision-maker, and nothing more.  On the other hand, the better view seems to be, as we have previously indicated, that the decision should be considered in the light of not only that evidence, but also any additional evidence that bears directly upon the position as it was when the original decision was made. 

1. The reason is simple.  As we have indicated at paras [106]-[107], the IAC is expected to act immediately.  Necessarily, therefore, the material contained in a notification is likely to be incomplete.  It may contain assertions that cannot, upon mature reflection, be justified.  Likewise, there may be deficiencies, or gaps, in the material provided which, given a little extra time, can easily be remedied. 

1. A further reason why VCAT should be permitted to receive further material when reviewing an IAC decision is because it would be contrary to the objects of the National Law, and the rights which it expressly confers upon an affected party, to prevent that party from adducing exculpatory material, on appeal, which sheds a different light upon the allegations made in the notification.  Of course, if evidence of that kind can be adduced on behalf an affected party, so too, it must follow, can evidence that points in a different direction. 

1. There are several tribunal decisions that have considered the nature of an appeal under the National Law. 

1. In I v Medical Board of Australia,[24] the South Australian Health Practitioners Tribunal asserted that an appeal under s 199 of the National Law against a decision to take immediate action was one to be heard ‘de novo’.  There was no contrary argument on the point, and this was said to be ‘a settled issue’.[25] In Liddell v Medical Board of Australia,[26] the State Administrative Tribunal of Western Australia took a similar approach.  It held that an appeal under s 199 of the National Law contemplated:

review by way of a hearing de novo…. The hearing is not confined to matters that were before the original decision-maker, in this case the Board, but may involve consideration of new material - s 27(1) of the SAT Act. The hearing of the review may, therefore, as it has in this case, involve a more thorough consideration of evidence adduced by the parties than occurred before the Board.[27]

[24][2011] SAHPT 18.

[25]Ibid [1]. It is not clear, from the reasons for decision, whether the Tribunal in this case meant, by the term ‘de novo’, a rehearing de novo in the widest sense, or whether it meant something more akin to what Mason J described in Sperway as a rehearing in the course of which supplementary evidence could be led. 

[26][2012] WASAT 120.

[27]Ibid [26].

1. In Bernadt v Medical Board of Australia,[28] that same Western Australian Tribunal cited Liddell with approval, but also emphasised that ‘immediate action review proceedings should not be conducted as though they involved a referral under s 193 of the National Law…’.[29]

   [28][2012] WASAT 185.

   [29]Ibid [27].

1. On the other hand, in The Tasmanian Board of the Pharmacy Board of Australia v Balzary,[30] the responsible tribunal rejected a submission that its task was to produce ‘the correct and preferable result’, in the course of ‘a fresh hearing on the merits of the matter to which the decision relates’.[31]

   [30][2011] TASHPT 2.

   [31]Ibid [3] citing Health Practitioners Tribunal Act 2010 (Tas); Crime and Misconduct Commission v Barnett [2011] QCAT 161 where the Queensland Civil and Administrative Tribunal, considering statutory provisions said to be similar those enacting the ‘immediate action’ procedure, held that the appeal was to be a full hearing de novo: at [18].

1. The Tasmanian Health Practitioners Tribunal noted the respondent’s submission that the appeal followed an interim determination made in urgent circumstances, and not one based upon a detailed investigation.  That, of itself, suggested that the appeal should be limited to the material that had been before the original decision-maker which had been considering whether or not to take immediate action.  To widen the material that could be provided to the tribunal would change the nature of the appeal.  It would mean that the responsible tribunal would be considering the wider issue of the professional competence of the pharmacist based upon material gained in an investigation undertaken subsequent to the immediate action determination.[32] 

   [32][2011] TASHPT 2, [4]-[5].

1. The Tribunal concluded, in respect of this matter:

The legislation does not specify the nature and scope of such an appeal and this must be governed by the terms of the legislation itself. I believe that there is little doubt that where there is an appeal from some form of conclusive action taken by a Board following a full investigation then the Tribunal would look at all the evidence available to it at the time of hearing and conduct a “fresh hearing” in order to produce the “correct and preferable result”. The issue in such a case would concern the overall merits of the “matter to which the decision relates” which would relate to such things as the professional conduct of the practitioner.

In my view the “matter to which the decision relates” in the present case is the decision by the Board to take immediate action. This is a review of urgent action taken perhaps on limited material. The issue is not a final determination concerning an allegation of professional misconduct but rather it relates to action taken to protect the public. Given the timeliness of any such action and the prejudice that would be likely to flow to the practitioner, an appeal in my view must be conducted in a timely manner. It follows that the “matter to which the decision relates” in my view is whether or not the Board were justified in taking the action they did at the time at which they took that action. To find otherwise would create circumstances that could not possibly have been intended, for example;

1) Although considering the justification of the Board’s decision, evidence could be adduced at appeal that did not exist until after the appealed decision was made, or

2) A Board could take immediate action on minimal information and then in the period following gather other evidence in order to be in a position to bolster its case upon appeal.[33]

[33]Ibid [8]-[9] (emphasis in original).

1. In dealing with the argument that such an approach could be prejudicial to the rights of a pharmacist who might be able to present cogent and relevant facts and material not considered by the IAC, the Tasmanian tribunal said that any such prejudice ‘could be addressed by making an application for a stay’.[34] 

   [34]Ibid [10].

1. Finally, it held that an appeal from an immediate action decision should therefore be viewed as an appeal in the strict sense. 

1. In our respectful opinion, both the approach taken in South Australia, and that taken in Tasmania, are erroneous.  The appeal to a responsible tribunal under the National Law is neither an appeal in the strict sense, nor a rehearing de novo.  It is rather a hybrid, whereby the material to be considered is confined to that placed before the initial decision-maker, but with the opportunity available to both parties to present additional evidence which bears directly upon that decision as originally taken.  It is not ‘open slather’, but nor is it an appeal confined to error. 

1. It follows that we would reject the appellant’s primary submission that VCAT erred in receiving the evidence of Mr Feldschuh, or in permitting the tender of the instrument of delegation. 

1. If we are wrong about that, and the appeal was in fact an appeal in the strict sense, we would say that the evidence in question did not materially influence the outcome of VCAT’s determination.  Accordingly, any such error on its part does not vitiate its decision, and should not lead this Court to set that decision aside.  In that regard, we would note that it is ‘well established that, in the context of appeals from the AAT, the court may decline to set aside a decision even where an error of law has been demonstrated provided that it considers that the AAT arrived at a decision that was clearly correct on the material before it’.[35]  That approach is similarly applicable to appeals from decisions of VCAT.[36]

   [35]Hill v Repatriation Commission (2005) 218 ALR 251, 267 (Wilcox, French and Weinberg JJ). See also Paddon v Repatriation Commission [2010] FCA 1147, [38] citing Repatriation Commission v Stoddart (2003) 134 FCR 392.

   [36]See generally the Court’s broad powers under s 148(7) of the Victorian Civil and Administrative Tribunal Act 1998 to make orders as the case requires; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353 (Mason CJ). See also Jetstar Airways v Free [2008] VSC 539, [122] in which Cavanough J said that the ‘real question’ is whether, had VCAT applied the correct test, ‘its ultimate decision might have been different’.

1. The remaining grounds of appeal can be dealt with briefly.  Insofar as the appellant contends that there is no evidence to support the finding that immediate action was necessary to protect public safety, that argument must be rejected.  The material before VCAT (as well as that before the IAC) created far more than mere suspicion that the appellant was engaged in supplying DXM to others for illegitimate purposes.  It amply justified a reasonable belief that this was so.  The sheer quantity of the drug imported, its value, and the absence of any reasonable explanation as to what had been done with the 325 kilograms no longer in the appellant’s possession, all contributed powerfully to an inference that the drug had been supplied to others, almost certainly to be used in the manufacture of ecstasy. 

1. There is perhaps more substance in Mr Morfuni’s point that both the IAC and VCAT ought to have taken into account the appellant’s previous good record when considering whether to take immediate action, and, if so, the nature of any conditions that ought to be imposed.  VCAT, in its reasons, declined to do so.  In approaching the matter in that way, it seems to us that it erred. 

1. Nonetheless, as we have indicated, not every error on the part of a tribunal will vitiate its decision.  In our view, had VCAT taken into account the appellant’s previous good record, it would have made no difference to the decision ultimately taken.  The balance would still have fallen heavily in favour of protection of the public, and conditions of the kind that were imposed would still have been required. 

1. To the extent that VCAT gave weight to the allegations contained in the notification involving Oueida and Weightman, it was entitled to do so.  In any event, we doubt that the complaint made, as formulated, can properly be regarded as involving a question or questions of law.  

Some final observations

1. The IAC will generally be required to make quick decisions on the basis of limited information.  When full information is later obtained, a belief which, on the limited information was reasonably based, may be shown to have been in error.  Accordingly,  the IAC and the Board must always be conscious of the possibility of error.  The consequences of that error may be serious.  Two safeguards against such consequences should therefore be kept to the forefront.  The first is the importance of a timely referral to a panel, or to VCAT.  The second is that, while the safety of the public must necessarily be the prime concern, that safety should be secured with as little damage to the practitioner as is consistent with its maintenance. 

1. It is arguable that neither of the two precepts mentioned above were fully observed in this case.  Indeed, the real problem here lies in the fact that the Board did not, immediately after the IAC finding, refer the appellant’s matter to a panel, or to VCAT as the responsible tribunal.  Instead, it elected to await the completion of a police investigation.  That investigation could well have been extremely protracted.  In our opinion, there was no justification for the Board to have delayed referring this matter.  Its failure to act in a timely fashion was unfairly prejudicial to the appellant and meant that he had little choice but to appeal against the immediate action decision.  That in turn meant that he had to argue his case in a somewhat constrained manner, and did not confront the real issues of substance.  It should be clearly understood that the entire scheme, under the National Law, contemplates that once it has been determined to take immediate action, the matter should ordinarily proceed, forthwith, to a panel or tribunal.[37]  The entire legislative scheme breaks down if there is a lengthy delay between an IAC decision and a complete hearing on the merits. 

   [37]Section 243(1)(a) of the National Law provides that ‘proceedings for an offence’ under ‘another Act’ which involves behaviour that would constitute ‘professional misconduct, unsatisfactory professional performance or unprofessional conduct’ under the National Law do not ‘prevent proceedings being taken before an adjudication body under this Law for the same behaviour’.  See also Philippine Airlines v Goldair (Aust) Pty Ltd [1990] VR 385; De Simone v Bevnol Constructions & Developments Pty Ltd (2010) 30 VR 200; Re AWB Ltd (No 1) (2008) 21 VR 252.

1. As to the second of these two precepts, the danger to the public was not the continued operation of the appellant’s pharmaceutical business, save to the extent that it employed the drug DXM as part of its operations as a compounding pharmacy.  Seen in this light, the requirement that the appellant not practise as a pharmacist might not have been necessary.

1. For the reasons set out above we would dismiss the appeal. 

- - - - -