LEE and PHARMACY BOARD OF AUSTRALIA

[2021] WASAT 132

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 (WA)

CITATION:   LEE and PHARMACY BOARD OF AUSTRALIA [2021] WASAT 132

MEMBER:   MR D AITKEN, SENIOR MEMBER

MS V HAIGH, MEMBER

MS E PERRELLA, SESSIONAL MEMBER

HEARD:   21 AND 28 JULY 2021

DELIVERED          :   13 AUGUST 2021

PUBLISHED           :   28 SEPTEMBER 2021

FILE NO/S:   VR 76 of 2020

BETWEEN:   JEFFREY STEWART LEE

Applicant

AND

PHARMACY BOARD OF AUSTRALIA

Respondent

Catchwords:

Renewal of registration to practice as pharmacist - Recency of practice requirements - Imposition of conditions by Board, correct and preferable decision

Legislation:

Health Practitioner Regulation National Law (WA) Act 2019 (WA) s 107, s 107(4), s 109
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 29(3)

Result:

The application is allowed

Category:    B

Representation:

Counsel:

Applicant	:	Mr TO Coyle
Respondent	:	Ms J McKenzie

Solicitors:

Applicant	:	Bayview Legal
Respondent	:	Minter Ellison

Case(s) referred to in decision(s):

LS v The Department of Health Mental Health Review Board [2013] WASCA 128

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. Mr Jeffrey Stewart Lee (Mr Lee) is a very experienced pharmacist.

2. He graduated with a Bachelor of Pharmacy over 40 years ago, has done over 100,000 prescriptions in the ensuing years, trained a lot of pharmacists and has owned three pharmacies, the last of which was the Rottnest Island Pharmacy (Rottnest Pharmacy).

3. Mr Lee says that in all his years of practice he has never had a complaint against him, not one.[1]

   [1] ts 55, 21 July 2021.

4. Every year practising pharmacists, like Mr Lee, are required to renew their registration.  One of the requirements that must be satisfied relates to recency of practice.  In order to satisfy the recency of practice requirements a pharmacist must have either completed 150 hours of practice in the previous 12 months or 450 hours of practice in the past three years.[2]

   [2] Exhibit A, pages 102-105.

5. The Registration and Examinations Committee of the Pharmacy Board of Australia (Board) has determined that Mr Lee did not satisfy the recency of practice requirements when he applied to renew his registration on 24 October 2019.  As a consequence, the Board has imposed conditions on his practice as a pharmacist.  

6. Mr Lee is seeking a review of the Board's decision.  He contends that he satisfies the recency of practice requirements.  He says that he does not need any conditions on him, which he does not understand at all.[3]   He wants his registration to be renewed without conditions.

   [3] ts 55, 21 July 2021.

7. This case turns on Mr Lee's practice at the Rottnest Island pharmacy, and the disclosure he made when he applied for renewal of his registration on 24 October 2019, and reiterated subsequently, which he now claims was an honest mistake.

Background

1. For many years Mr Lee owned and practised as a pharmacist at the Rottnest Pharmacy.  He also owned other businesses on Rottnest Island:  a cafe, a hairdressing salon and a massage and beauty parlour all co­located with the Rottnest Pharmacy at the Wellness Centre.

2. Mr Lee is also a lawyer having graduated from law school in 1987 whereupon he completed a year as an articled clerk and a year as a restricted legal practitioner.  He subsequently established two of his own legal practices, the first Avedon Lee in 2003 and the second in 2017.

3. The following events and correspondence are not in dispute and we find the following material facts:

   (a)on 20 November 2018 Mr Lee applied for renewal of his registration to practise as a pharmacist.  In his application he disclosed that he had not completed 150 hours of practice within the previous 12 months.  He added the comment that he had 'worked full-time in pharmacy until May 2016'.  Further, he disclosed that he had completed 450 hours of practice in the past three years (Emphasis added);[4]

   [4] Exhibit A, page 111.

   (b)on 24 October 2019 Mr Lee applied for renewal of his registration to practise as a pharmacist.  In his application he disclosed that he had not met the Board's recency of practice requirements in that he had neither completed 150 hours of practice in the previous 12 months, nor 450 hours of practice in the past three years.  He added the comment that 'I have been focused on other matters but kept up to date with education requirements' (Emphasis added);[5]

   [5] Exhibit A, pages 112-113.

   (c)on 18 December 2019 the Australian Health Practitioner Regulation Agency (AHPRA) wrote to Mr Lee asking for further information regarding his recency of practice including:

   •a statement of service from his last employer;

   •a Curriculum Vitae (CV) describing his full practice history detailing any gaps in his practice history of more than three months, signed and with the declaration that his CV is true and correct; and

   •an explanation for the shortfall of recency of practice for the 2019 period.[6]

   [6] Exhibit A, pages 114-115.

   (d)on 30 December 2019 Mr Lee responded providing an unsigned CV, which stated that he owned and operated the Rottnest Pharmacy from 2006 to May 2016 and had 'not worked in pharmacy from May 2016';[7]

   (e)in March 2020 Mr Lee provided a signed CV[8] to AHPRA which replicated the information in the unsigned CV provided on 30 December 2019.  He also advised that he did not have a last employer because he was self­employed;[9]

   (f)on 28 May 2020 AHPRA responded notifying Mr Lee that the Board proposed imposing conditions requiring him to complete 152 hours of supervised practice, an oral examination, and to desist from practising unsupervised until these conditions are met.  The Board's reasons included inter alia that he had not met the Board's recency of practice requirements namely he had not completed, prior to his application for renewal or registration,  more than 450 hours within the previous three years or 150 hours in the previous 12 months and had last practised as a pharmacist in May 2016.  AHPRA invited Mr Lee to make submissions in relation to this proposal;[10]

   (g)on 28 June 2020 Mr Lee advised AHPRA that since 28 May 2020 he had completed 100 hours of supervised pharmacy work at the Boddington Pharmacy with Mr Hsu as supervisor and that he would complete 152 hours in approximately a week.[11]  It is not in dispute that the Board had not approved Mr Lee's supervision by Mr Hsu.  We therefore find that it was not in accordance with the Board's Supervised Practice Arrangements;[12]

   (h)Mr Hsu provided a statement that between 1 June 2020 and 4 July 2020 Mr Lee had undertaken 152.5 hours of service at the Boddington Pharmacy;[13]

   (i)on 21 Sept 2020 AHPRA notified Mr Lee of the Board's decision on 8 September 2020 to grant renewal of his registration as a pharmacist, subject to conditions.  Those conditions required him to complete 152 hours of supervised practice, an oral examination, and to desist from practising unsupervised until these conditions are met.  The Board's reasons included amongst other things that Mr Lee had been unable to demonstrate that he had practised for at least 450 hours within the previous three years, or 150 hours within the 12 months prior to his application for renewal of registration [on 24 October 2019] and that he had last practised as a pharmacist in May 2016;[14]

   (j)on 21 September 2020 Mr Lee filed an application at this Tribunal seeking review of the Board's decision;[15] and

   (k)on 1 October 2020 Mr Lee informed AHPRA that he had stopped practising as a pharmacist at the Rottnest Pharmacy in May 2017 (not May 2016 as previously advised) and that he had completed '450 hrs in the last three years', having worked more than 800 hours in 2017.[16]

   [7] Exhibit A, page 117.

   [8] Exhibit A, page 47.

   [9] Exhibit A, page 122.

   [10] Exhibit A, pages 124-127.

   [11] Exhibit A, pages 128-131.

   [12] Exhibit A, pages 106-110.

   [13] Exhibit A, page 135.

   [14] Exhibit A, pages 137-141.

   [15] Exhibit A, pages 2-8.

   [16] Exhibit A, pages 182-187.

4. We pause here to ponder this last factual finding.  The Board has made much of the fact that it was not until 1 October 2020 (after these Tribunal proceedings were commenced) that Mr Lee informed AHPRA that he had stopped practising as a pharmacist at the Rottnest Pharmacy in May 2017 (not May 2016 as previously advised) and that he had worked as a pharmacist for 450 hrs in the three years prior to his application for renewal on 24 October 2019, having worked more than 800 hours in 2017.

5. Mr Lee now says that his advice to the contrary, prior to 1 October 2020, was in error.

6. The truth of this claim, not made until a year after Mr Lee sought to renew his registration on 24 October 2019, is at the heart of this dispute.

Hearings and evidence

1. This matter was heard on 21 and 28 July 2021.  Both parties were represented.

2. The evidence comprised a hearing book of 626 pages[17] and an affidavit made by Mr Lee dated 21 July 2021.[18]

   [17] Exhibit A.

   [18] Exhibit B.

3. Oral evidence was taken from Mr Lee, his (romantic) partner Ms Howard and Mr Hsu.

The issue for determination

1. The issue to be determined by us is whether Mr Lee satisfied the recency of practice requirements as of the date of the Board's decision on 8 September 2020.

2. That is, had he practised pharmacy for 450 hours within the previous three years prior to his application for renewal on 24 October 2019?

3. It is not contended by Mr Lee that he had practised pharmacy for 150 hours in the 12 months prior to his application on 24 October 2019.

4. Section 27(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) requires us to conduct this review of the Board's decision by way of a hearing 'de novo', that is anew.  Thus, in determining this issue we are not confined to the evidence that was before the Board at that time (8 September 2020), rather we must have regard to all of the evidence that is now before us.

5. Section 27(2) of the SAT Act requires us to produce the correct and preferable decision at the time of the decision upon the review.

6. Thus, we are required to give attention to the state of affairs existing at the date of our decision.  We are not confined to the circumstances existing at the date of the decision under review.  (see LS v The Department of Health Mental Health Review Board [2013] WASCA 128 at [93]).

7. We must therefore determine what is the correct and preferable decision in respect of Mr Lee's 2019 application for renewal of his registration as a pharmacist, on the basis of all of the evidence that is now before us. 

8. Mr Lee contends that the correct and preferable decision is that his renewal application be granted without conditions.

9. Essentially this comes down to whether we are satisfied that Mr Lee practised pharmacy for 450 hours within the previous three years prior to his application for renewal on 24 October 2019.  In particular, whether he worked as a pharmacist at the Rottnest Pharmacy from October 2016 to May 2017 (being the date upon which he now says he last worked as a pharmacist).  Whether Mr Lee practised as a pharmacist during that period is the crux of this dispute, and it was the focus of much of the evidence in these proceedings.  

10. Given that this is the issue to be determined by the Tribunal, the evidence taken in relation to periods of supervised practice undertaken by Mr Lee both at the Boddington Pharmacy (in 2020) and more recently at Pearsall Pharmacy (in 2021) are irrelevant to the issue to be determined in these proceedings.

11. For the reasons given below we conclude that Mr Lee satisfied the recency of practice requirements as of the date of the Board's decision on 8 September 2020.

Legislative framework

1. Section 107 of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law) requires registered health practitioners to apply for renewal of their registration.

2. In particular, s 107(4) of the National Law requires that the application for renewal must, amongst other things, be accompanied by the annual statement required under s 109 of the National Law.

3. The annual statement required by s 109 of the National Law must include, amongst other things, a declaration that an applicant has met any recency of practice requirements stated in an approved registration standard for the health profession.

4. The Registration Standard:  Recency of Practice published by the Board dated 1 December 2015 requires that in order to meet the requirements for recency of practice a pharmacist must have practised a minimum of:

   450 hours in the three-year period prior to applying for general registration or renewal of general registration; or

   150 hours in the 12 month period prior to applying for general registration or renewal of general registration.[19]

   [19] Exhibit A, pages 102-110.

5. We now return to the issue for our consideration, that is whether Mr Lee satisfied the recency of practice requirements as of the date of the Board's decision on 8 September 2020.

6. As discussed, the subsidiary question to be answered, and the crux of this dispute, is whether Mr Lee worked as a pharmacist at the Rottnest Pharmacy from October 2016 to May 2017.   We turn to consider that now.

Did Mr Lee practice as a pharmacist at the Rottnest Pharmacy from October 2016 to May 2017?

The evidence consistent with Mr Lee not practising as a pharmacist during this period

1. The evidence that is consistent with Mr Lee not practising as a pharmacist during this period comprises:

   (a)the Australian Securities and Investments Commission (ASIC) cancellation of the business name 'Rottnest Island Pharmacy' dated 27 May 2016;[20]

   (b)a letter dated 3 March 2017 from the Pharmacy Registration Board of WA to Mr Lee stating that it had recently inspected the premises at the Rottnest Pharmacy and at the time of inspection there had been no pharmacist on duty at the Rottnest Pharmacy;[21]

   (c)Mr Lee's application for renewal of his registration on 24 October 2019 declaring that he had not completed 450 hours of practice in the past three years;

   (d)Mr Lee's provision on 30 December 2019 of his unsigned CV stating that he has not worked in pharmacy from May 2016 and that he owned and operated the Rottnest Island Pharmacy until May 2016;[22]

   (e)Mr Lee's provision, on 24 March 2020, of a signed CV stating that he has not worked in pharmacy from May 2016 and that he owned and operated the Rottnest Island Pharmacy until May 2016.[23]

   (Emphasis Added)

   [20] Exhibit A, pages 213 and 215.

   [21] Exhibit A, page 93.

   [22] Exhibit A, page 117.

   [23] Exhibit A, page 47.

2. Further, his involvement in other businesses on Rottnest Island and the commencement of his legal practice in 2017 suggest that Mr Lee may not have practised as a pharmacist during this period, or at least may not have met the recency of practice requirements.

The evidence consistent with Mr Lee practising as a pharmacist during this period

1. The evidence that Mr Lee relies on to support his contention that he practised as a pharmacist during this period includes:

   (a)the lease for the Wellness Centre showing a six-month renewal commencing on 15 November 2016;[24]

   [24] Exhibit A, page 556.

   (b)Commonwealth bank statements for the period 8 October 2016 to 7 May 2017 in the name of the Rottnest Pharmacy indicating credits to that account almost daily through that time;[25]

   (c)a statement from a pharmaceutical supplier listing invoices issued to the Rottnest Pharmacy for the period September 2016 to 28 April 2017 to the total value of $10,886.56[26] and copies of those invoices;[27]

   (d)a sample of over 40 scripts dated between 3 October 2016 and 16 April 2017;[28]

   (e)Rottnest Island Ferry (Ferry) invoices for the period 15 March 2017 to 30 April 2017;[29]

   (f)an email dated 4 May 2017 from the Department of Health to Mr Lee dated 4 May 2017 informing him that the Medicines and Poisons Regulation Branch had been advised by the Pharmacy Registration Board of  WA that the Rottnest Pharmacy closed with effect from 3 May 2017;[30]

   (g)an email dated 18 May 2017 to the WA Poisons Information Centre from Mr Lee advising that the Rottnest Pharmacy closed from 2 May 2017;[31]

   (h)an email to the Wellness Centre dated 21 April 2017 attaching a delivery docket of the same date.  The delivery docket relates to a delivery from a pharmaceutical supplier;[32]

   (i)Mr Lee's written and oral evidence; and

   (j)Ms Howard's written and oral evidence.

Analysis of the evidence

[25] Exhibit A, pages 426 to 450.

[26] Exhibit A, pages 569-571.

[27] Exhibit A, pages 55-84.

[28] Exhibit A, pages 366 to 412.

[29] Exhibit A, pages 317-322.

[30] Exhibit A, page 574.

[31] Exhibit A, page 577.

[32] Exhibit A, pages 566 and 567.

1. As we now know, it is Mr Lee's position, and has been since 1 October 2020, that he stopped practising as a pharmacist at the Rottnest Pharmacy in May 2017 (not May 2016 as previously advised) and that he had worked as a pharmacist for 450 hrs in the three years prior to 24 October 2019.

2. On Mr Lee's own admission, he is a person who overlooks things, forgets things, and does not keep records.  It is apparent from Mr Lee's evidence that he lacks attention to detail.  Further he is non-compliant with instructions.  There are numerous examples of this in the evidence before us.

3. For example, in the letter from AHPRA dated 18 December 2019, it requested a signed copy of Mr Lee's CV detailing any gaps in his practice history of more than three months (Emphasis Added).

4. In response Mr Lee provided an unsigned CV containing gaps in his practice history of more than three months.  By way of explanation he says that he was in a rush to provide it and did not think about signing it.  Further, he says that he did not look at the requirement to sign carefully, that he did not think about signing it, that he did not think it was necessary to do so, and that he did not think about doing it.

5. Some of the gaps in his CV were significant.  For example, his CV shows a gap in his practice as a pharmacist between 1987 to 2002.  In oral evidence he explained that he had 'forgotten' that during that period he owned the East Fremantle Pharmacy from 1996 to 2000 and that he had 'overlooked' that in his CV.  Further, there is no reference in his CV that he worked as a pharmacist between 2000 and 2002.  In oral evidence he said he could not remember what he did in the years 2000 to 2002.

6. Mr Lee did not know when he established his first legal practice however when referred to the extract regarding the registration of his business named 'Avedon Lee' from ASIC[33] he agreed that it must have been in 2003.  In his oral evidence he stated that Avedon Lee ceased trading in 2017 'something like that'. 

   [33] Exhibit A, page 214.

7. His CV states that he established a legal practice in 2017, however he omitted to refer to his earlier legal practice of Avedon Lee.

8. When asked about these omissions in his CV he conceded that there were some omissions but explained that 'these things can happen'.

9. These gaps and omissions are not addressed, but rather replicated, when he resubmitted his signed CV to AHPRA several months later.

10. In submitting his CV to AHPRA it was put to Mr Lee in cross­examination that this was an important document that the Board would rely on in making a decision about his application to renew his registration.  He responded, somewhat surprisingly in our view, that he did not know the Board would rely on it and he did not think the Board has relied on it.[34]

    [34] ts 68, 21 July 2021.

11. Another example is when AHPRA informed him, in its letter dated 28 May 2020, of the proposed conditions and that in respect of the 152 hours of supervised practice only hours spent practising under a Board approved supervised practice arrangement may be counted towards the supervised practice hours.  Nevertheless, within days of receiving that letter Mr Lee proceeded to commence work at the Boddington Pharmacy without the Board's approval.

1. As we have already stated, Mr Lee has given contradictory evidence regarding when he ceased his practice as a pharmacist at the Rottnest Pharmacy.

2. In these circumstances we are cautious in our assessment of his evidence.

3. We found Ms Howard to be a reliable witness, and whilst she was sometimes unable to be specific in her answers to questions, they were consistent, and we have no reason to doubt the truthfulness of her answers. 

4. In Mr Lee's statement[35] filed in these proceedings in April 2021, he stated that he owned and operated the Pharmacy from November 2006 to May 2017.  He says that he worked full-time at the Rottnest Pharmacy, generally seven days a week from 8 am to 4 pm although the Rottnest Pharmacy could be open to 6pm or later in the busy season.

   [35] Exhibit A, pages 288 to 293.

5. In corroboration of his claims he has produced samples of nearly 50 prescriptions he completed at the Rottnest Pharmacy between 3 October 2016 and 16 April 2017, Commonwealth Bank statements for the period 8 October 2016 to 7 May 2017 in the name of the Rottnest Pharmacy, and records of purchases from a pharmaceutical supplier listing invoices issued to the Rottnest Pharmacy for the period 21 September 2016 to 28 April 2017.

6. Mr Lee gave evidence, which we accept, that the lease for the Wellness Centre was due to expire on 15 November 2016 but that a six month extension of the lease was agreed and this is supported by the documentary evidence regarding the renewal of the lease.

7. Mr Lee's evidence that the Rottnest Pharmacy closed in May 2017 is corroborated by the evidence of Ms Howard, who we accept worked there until it closed in May 2017, the business records (including the bank statements and records of purchases from a pharmaceutical supplier),  the prescriptions, the contemporaneous email dated 4 May 2017 from the Department of Health to Mr Lee dated 4 May 2017, the contemporaneous email dated 18 May 2017 to the WPIC from Mr Lee, and the email to the Wellness Centre dated 21 April 2017.

8. In relation to ASIC's cancellation of the business name 'Rottnest Island Pharmacy' on 27 May 2016 Mr Lee was unable to explain why the business name ceased to be registered on 27 May 2016.  He suggested that it could have been 'overlooked' and that it was probably through non­payment required to register the business name.[36]  We accept his evidence as it is consistent with his propensity to overlook things. 

   [36] ts 87, 21 July 2021.

9. For these reasons we find that the Rottnest Pharmacy was owned and operated by Mr Lee until its closure in May 2017. 

10. Therefore, we find that Mr Lee's representations in his CV, that he owned and operated the Rottnest Pharmacy until May 2016 were in error.

11. Before we consider Mr Lee's claim to have worked in the Rottnest Pharmacy in the relevant period (October 2016 - May 2017) we turn to consider his other activities during this period.  It was implicit in the presentation of the Board's case, that Mr Lee's involvement in other activities during this period may have diminished the time he had to practise pharmacy.

Mr Lee's other activities in the relevant period

1. Mr Lee's evidence is that during the period October 2016 to May 2017 he spent very little time on his legal practice, probably less than 15 hours per month and had no meetings with clients during this period.  He says he also spent some time on personal legal matters.

2. Ms Howard's evidence was that during this period Mr Lee did not have a legal practice as such but rather did personal legal work.  She gave evidence that he did not have any employees in that legal practice.

3. On balance and given Ms Howard's corroboration of Mr Lee's evidence, we find that he spent very little time on his legal practice during this period.

4. Mr Lee gave evidence that the hairdressing salon was managed by his partner, Ms Howard, and that he occasionally answered queries from potential clients but that this took up a negligible amount of time.

5. Ms Howard gave evidence that the hairdressing salon had no clients after November 2016.

6. On balance, and given Ms Howard's corroboration of Mr Lee's evidence, we find that the hairdressing salon was managed by her, that it took up a negligible amount of Mr Lee's time, and that it had no clients after November 2016.

7. Mr Lee gave evidence that during the period October 2016 to May 2017 there were no clients at the massage and beauty spa, which was managed by Ms Howard.  Again, he says that he occasionally answered queries from potential customers, but this took up very little time.

8. Ms Howard's evidence regarding the massage and beauty parlour was that there were very few clients after November 2016, and that she accepted bookings for massages in the period January to May 2017 in the pharmacy, engaging a masseur to provide the massages as required. Ms Howard's evidence was that she worked hardly any hours in the massage business after October 2016.  The Ferry invoices indicate trips made by the massage therapist on various occasions in March 2017.

9. We accept Ms Howard's evidence regarding the beauty and massage business and find that in the period November 2016 to May 2017 it had very few clients in this period, was managed by her, and that a massage therapist was booked to give massages as required.

10. Mr Lee gave evidence that the cafe ceased operating on or around 15 November 2016 at the commencement of the extension of the lease.  He stated that most of the equipment had been sold by then and the business had largely ceased to trade around two to three weeks prior to 15 November 2016.  Ms Howard's evidence is consistent with Mr Lee's evidence regarding the operations of the café, adding that the café was mostly managed by the staff.  Her involvement entailed being there at the end of the day when the takings were accounted for, and to discuss the café's operations.  She also attended to hiring and firing and payment of staff, ensuring that orders were done, and this was often after hours.

11. We accept the evidence of Mr Lee and Ms Howard regarding the operations of the café.

12. Ms Howard gave credible evidence, which we accept, that in relation to the closure of the other businesses they had at the Wellness Centre, she dealt with contractors who came over to make good the premises at the end of the lease, although sometimes Mr Lee was there and dealt with them as well.

13. On the basis of this evidence, we are not able to make any findings as to how much time Mr Lee may have devoted to the closure of the other businesses.

14. In respect of how much of Mr Lee's time may have been taken up with preparations for the closure of the Pharmacy at the end of the lease we are unable to make any findings.  There are only passing references to this in the evidence.  For example, in the Ferry evidence Mr Lee gave evidence that some of the trips made in his name in the period 15 March 2017 to 30 April 2017 were made by persons removing items pending closure of the Pharmacy.  Ms Howard also gave evidence that ferry trips during that period were also made by contractors who came over to the island to make good the premises, and that sometimes Mr Lee 'dealt with them'.

Consideration of Mr Lee's claim to have practised as a pharmacist in the period October 2016 to May 2017

1. Our preliminary observation in relation to this evidence is that, in the end, it comes down to the credibility of Mr Lee and Ms Howard.

2. There is an absence of comprehensive documentary evidence to support the number of hours Mr Lee claims he worked at the Rottnest Pharmacy.

3. Under cross-examination Mr Lee's attention was drawn to the requirement for him to maintain records of practice undertaken during the previous three full registration periods (see the Registration Standard: Recency of Practice 1 December 2015).[37]  When asked what he kept by way of practice records he responded that he did not keep anything by way of practice records.  He just opened and closed the Rottnest Pharmacy when it was appropriate.[38]

   [37] Exhibit A, page 103.

   [38] ts 87-88, 21 July 2021.

4. In support of his contention that he practised as a pharmacist until the Rottnest Pharmacy closed in May 2017, Mr Lee produced a random sample of almost 50 prescriptions as evidence that the work he did in the Rottnest Pharmacy involved dispensing prescriptions.  There is no suggestion by the Board that these prescriptions were not issued by Mr Lee, their only criticism being that he did not produce all of the prescriptions but merely a sample.

5. In respect of the ferry trips to and from Rottnest Island the evidence was inconsistent and patchy. 

6. Mr Lee's evidence is that during the period 1 January 2017 to early May 2017, when he says he worked fulltime in the Rottnest Pharmacy, he mostly stayed on the island.  He stated that he would return to the mainland infrequently, usually once or twice a fortnight, to obtain pharmacy products which he did not have in stock and to attend to any personal matters.  On these occasions he generally caught the last ferry which was at 4:30 pm or later to Fremantle.  When there was extra work at the Rottnest Pharmacy, he caught a later ferry.  When he returned the next day, he would catch the earliest ferry which left at 7:30 am and arrived at 8 am or a later ferry if this was not possible.[39]

   [39] Exhibit A, page 314.

7. Under cross-examination he said that he travelled 'very rarely' to and from Rottnest during the period October 2016 to May 2017.[40]

   [40] ts 73, 21 July 2021.

8. Ms Howard's evidence in relation to their travel to and from Rottnest Island in the period October 2016 to May 2017 was that she travelled more often than Mr Lee and that Mr Lee stayed over more regularly than she did.

9. In contrast to Mr Lee's claims that during the period 1 January 2017 to early May 2017 when he 'mostly stayed on the island' and travelled 'very rarely' the ferry invoices paint a somewhat different picture. 

10. The invoices provided by Mr Lee in relation to his ferry travel to and from Fremantle in the period from 15 March 2017 to 30 April 2017 show that 10 tickets were booked in his name.

11. However, under cross-examination when asked whether each of these 10 trips related to him Mr Lee conceded that some of those tickets may not have been in relation to travel he undertook.

12. His responses varied from being 'not sure' that the travel was in relation to him, that it 'could' have been in relation to him, that he did not think this was travel by him, that it was 'probably' him, 'not necessarily' him or that he doubted it could be travel by him.[41]

    [41] ts 68-71, 21 July 2021.

13. By way of explanation for the notations on the Ferry invoices attributing travel to him, he said that others would book their travel to 'Jeff' for example people removing items pending closure of the Rottnest Pharmacy, as he would tell people who were coming over to Rottnest Island to use his name.[42]

    [42] ts 68, 21 July 2021.

14. The 'ferry evidence' is not particularly helpful and tangential at best.  On the basis of the ferry evidence, we are unable to make any findings as to the hours that Mr Lee may have worked at the Rottnest Pharmacy between October 2016 to May 2017. 

15. We now turn to Mr Lee's evidence about his pharmacy practice during the relevant period. 

16. Mr Lee's evidence is that during this period he spent approximately 1,250 hours in pharmacy practice at Rottnest Island.  He says that this is based on at least 50 hours per week in January 2017 to May 2017 and 50 hours a week in October, November and December 2016, less the time he spent arranging for removal of items at the Rottnest Pharmacy prior to the renewal of the lease and then subsequently for the reorganising of the Rottnest Pharmacy.  There is no evidence before us as to how much time he may have spent on removing items /reorganising the Rottnest Pharmacy.

17. Ms Howard's evidence corroborates Mr Lee's evidence.  Ms Howard gave evidence that she worked almost every day in the Rottnest Pharmacy from 1 January 2017 until it closed in May 2017.  Ms Howard's evidence is that Mr Lee was present at the Rottnest Pharmacy for most of its opening hours from 1 October 2016 to May 2017, seven days a week with the usual opening hours from 8 am to 4 pm.  She recalled the Rottnest Pharmacy being particularly busy during the 2016/2017 summer season and over Easter in 2017 and that it was open beyond the normal trading hours. Ms Howard's evidence is that it was just Mr Lee and herself working in the Rottnest Pharmacy during the period October 2016 to May 2017.  She was able to say very definitely that the Rottnest Pharmacy closed in early May 2017, when she handed back the keys, took a photo of the empty Rottnest Pharmacy and sent a message to her son about her last trip off Rottnest Island which she said was 'a bit emotional'.[43]

    [43] ts 105, 21 July 2021.

18. Ms Howard's evidence is that she observed Mr Lee working at the Rottnest Pharmacy on average for at least 50 hours a week from 1 October 2016 until 2 May 2017.

19. As we have said, we found Ms Howard to be a credible witness and we have no reason to doubt her evidence.

20. On the basis of the evidence of Mr Lee and Ms Howard, we find that Mr Lee worked at the Rottnest Pharmacy on average for at least 50 hours a week from 1 October 2016 until 2 May 2017.

21. On our calculation this is approximately 1,750 hours (seven months being roughly 35 weeks multiplied by 50 hours per week).

22. Mr Lee calculated it to be 1,250 hours, although there is no evidence as to how he arrived at this figure. 

23. In any event, on our calculation, he worked well in excess of the 450 hours in the previous three years prior to the application for renewal of his registration on 24 October 2019, and we so find. 

24. We find that Mr Lee's disclosure in his application for renewal of registration in 2019 that he had not completed 450 hours of practice in the past three years, and his statements in his CV that he had not worked in pharmacy from May 2016 to be in error.  We accept Mr Lee's evidence that when completing the application form, he relied on his memory without checking any documents.

25. Further in making this finding we have taken account of the letter from the Board dated 3 March 2017[44] regarding a recent inspection of the Rottnest Pharmacy when it was unattended, and we accept the contents of the letter.  Mr Lee explained that the Rottnest Pharmacy could have been locked, as at that time there were people coming over to the island to remove things from different parts of the businesses and so he would lock the door and go out and talk to them.  On the basis of this evidence, we find that at the time of the inspection, the Rottnest Pharmacy was unattended.  However, this evidence is nothing more than evidence of it being unattended at a moment in time.

Conclusions

[44] Exhibit A, page 93.

1. For the reasons we have set out we conclude that Mr Lee satisfied the recency of practice requirements as of the date of the Board's decision on 8 September 2020. 

2. As we understand the Board's submission, on reaching this conclusion, we may nevertheless consider whether it is necessary and desirable for conditions to be imposed.[45]

   [45] ts 42-42, 119-122, 21 July 2021.

3. In considering whether it is necessary and desirable for conditions to be imposed the Board has submitted that we ought have regard to a number of circumstances including the lapse of time between the 2019 renewal application being made and when Mr Lee advised them that he had in fact met the recency of practice standards, and his failure to keep records of practice.

4. We do not accept this submission.

5. The recency of practice standard stipulates that to meet the standard a pharmacist applying for renewal must have practised a minimum of either 450 hours in the three year period or 150 hours in the 12 month period prior to applying for renewal.

6. There is no proviso to the effect that notwithstanding that an applicant might meet these requirements, some other criterion may be imposed.

7. In our view the recency of practice requirements are, that a pharmacist have either practised for a minimum of either 450 hours in the three year period or 150 hours in the 12 month period prior to applying for renewal, and nothing more.

8. In so far as the registration standard stipulates that a pharmacist should maintain records of practice undertaken during the previous three full registration periods, this is, as the standard indicates, merely (although importantly) an evidentiary requirement and in our view not part of the recency of practice requirement.  

9. We do not consider that Mr Lee's own admission that he failed to keep records of practice is determinative of the question of whether he practised for the requisite number of hours to meet the recency of practice requirements.  Further his failure to keep records of practice does not mean that his registration ought not be renewed without conditions.

10. All that is required for renewal of registration is a disclosure in respect of the number of hours of practice in the preceding 12 months or three years.

11. The Board has also taken issue with Mr Lee's proposition[46] that the recency of practice requirements are not directly concerned with competency in relation to the provision of pharmacy services to members of the public.[47]  The Board refers to the Recency of Practice Standard which states 'This registration standard sets out the Pharmacy Board of Australia's (the Board's) minimum requirements for recency of practice for pharmacists to competently and safely provide services to the public'. [48]  

    [47] Paragraph 24, p 261, Exhibit A

    [48] Paragraph 41, p 24, Exhibit A

12. In our view, the need to ensure competency and the safe provision of services to the public underpins the requirements that a pharmacist have undertaken the requisite hours in the previous 12 months or three years.  If those hours have been satisfied, as they have in Mr Lee's case, they suffice to deem him competent and able to safely provide pharmacy services to the public, and we so find.  There is therefore no need to require Mr Lee to sit an exam to demonstrate this.     

13. Pursuant to s 29(3) of the SAT Act the Tribunal may:

    …

    (a)affirm the decision that is being reviewed;

    (b)vary the decision that is being reviewed; or

    (c)set aside the decision that is being reviewed and –

    (i)substitute its own decision; or

    (ii)send the matter back to the decision-maker for reconsideration in accordance with any directions or recommendations that we consider appropriate.

14. The correct and preferable decision in this case is to set aside the decision of the Board dated 8 September 2020 and substitute our decision that Mr Lee met the recency of practice requirements in respect of his application dated 24 October 2019. His application for renewal of his registration dated 24 October 2019 ought to be granted without conditions.

Orders:

The Tribunal orders:

1.The application is allowed.

2.The decision of the Pharmacy Board of Australia dated 8 September 2020 is set aside.

2.Mr Lee's application for renewal of his registration dated 24 October 2019 is granted without conditions.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS V Haigh, MEMBER

28 SEPTEMBER 2021

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 (WA)

CITATION: LEE and PHARMACY BOARD OF AUSTRALIA [2021] WASAT 132 (S)

MEMBER:   MS V HAIGH, MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   4 MAY 2022

FILE NO/S:   VR 76 of 2020

BETWEEN:   JEFFREY STEWART LEE

Applicant

AND

PHARMACY BOARD OF AUSTRALIA

Respondent

Catchwords:

Applicable principles to exercise of discretion to grant extension of time - Costs in review proceedings - Costs of costs application - Applicable principles to exercising discretion to award costs

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010 (WA)
Legal Profession (State Administrative Tribunal) Determination 2020 (WA)

State Administrative Tribunal Act 2004 (WA), s 9, s 48, s 48(1)(d), s 48(2), s60(2), s 87, s87(1), s 87(2), s 87(4), s 87(4)(b), s 88, s 88(2), s 92(1)
State Administrative Tribunal Rules 2004 (WA), r 22, r 42A

Result:

The applicant's application for an extension of time to make a costs application is dismissed
The respondent's costs applications are allowed

Category:    B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	Bayview Legal
Respondent	:	Minter Ellison

Case(s) referred to in decision(s):

Aydogan and Town of Cambridge & Anor [2007] WASAT 19

Chew and Director-General of the Department of Education and Training [2006] WASAT 248

Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53

Di Virgilio v McCleary [2012] WASC 437

Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2021] WASC 289

Lee and Pharmacy Board of Australia [2021] WASAT 132.

Medical Board of Australia and Costley [2013] WASAT 2

Medical Board of Australia and Panegyres [2017] WASAT 146 (S)

Motor Vehicle Industry Board and Dawson [2006] WASAT 8

The Owners of Strata Plan 41133 and Lendlease Project Management and Construction (Australia) Pty Ltd [2014] WASAT 6 (S)

Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

REASONS FOR DECISION OF THE TRIBUNAL

Introduction

1. This matter concerns three applications for costs that were made by the parties following the Tribunal's determination of the substantive application in the applicant's favour on 28 September 2021 in Lee and Pharmacy Board of Australia [2021] WASAT 132 (the Tribunal's decision).

The substantive application

1. In the substantive application Mr Jeffrey Stewart Lee (Mr Lee) sought review of a decision of the Pharmacy Board of Australia (the Board) on 8 September 2020, to grant renewal of his registration as a pharmacist, subject to conditions.  Those conditions required him to complete 152 hours of supervised practice, an oral examination, and to desist from practising unsupervised until these conditions were met.  The Board's reasons included, amongst other things, that Mr Lee had been unable to demonstrate that he had practised for at least 450 hours within the previous three years, or 150 hours within the 12 months prior to his application for renewal of registration on 24 October 2019 and that he had last practised as a pharmacist in May 2016. 

2. The substantive application was heard on 21 and 28 July 2021.  Both parties were represented at the hearing.  In particular Mr Lee was represented by his own law firm, Bayview Legal and counsel, Mr Coyle.

3. The issue to be determined by the Tribunal was whether Mr Lee satisfied the recency of practice requirements as of the date of the Board's decision on 8 September 2020.  That is, whether he had practised pharmacy for 450 hours within the previous three years prior to his application for renewal on 24 October 2019.  It was not contended by Mr Lee that he had practised pharmacy for 150 hours in the 12 months prior to his application on 24 October 2019.

4. On 28 September 2021 the Tribunal published its decision that Mr Lee satisfied the recency of practice requirements as of the date of the decision of the Board on 8 September 2020.

5. Further on 28 September 2021 consequential orders were made allowing Mr Lee's application, setting aside the Board's decision, and granting Mr Lee's application for renewal of his registration dated 24 October 2019 without conditions.

The parties' costs applications

1. Subsequently, on 9 November 2021, Mr Lee wrote to the Tribunal seeking that the Board pay his costs pursuant to s 87 and s 88 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) (costs application). 

2. Rule 42A of State Administrative Tribunal Rules 2004 (WA) (the Rules) provides that an application for costs can be made within 21 days of the orders being made by the Tribunal to which the application relates.

3. Mr Lee's costs application was made 42 days after the Tribunal's orders were made on 28 September 2021. 

4. Section 92(1) of the SAT Act relevantly provides that the Rules may provide for the Tribunal to extend a time limit for doing anything in connection with a proceeding.

5. Rule 22 relevantly provides that the Tribunal may exercise any of the powers referred to in s 92(1) of the SAT Act in connection with any proceeding.

6. The Tribunal therefore has the discretion to allow Mr Lee an extension of time within which to make his costs application. 

7. On 22 December 2021, Mr Lee lodged an interim application seeking an order that Ms Karen Banks, the State Manager of the Australian Health Practitioner Regulation Agency (AHPRA) file an affidavit setting out her involvement in the proceeding and provide copies of any communications that she or AHPRA had with the Western Australian Department of Health (WADOH) (Mr Lee's interim application).

8. On 21 January 2022, Mr Lee's interim application was dismissed by the Tribunal. 

9. On 14 February 2022, the Board filed an application seeking:

   i)its costs of Mr Lee's interim application; and

   ii)its costs of Mr Lee's costs application.

   (the Board's costs applications)

10. The Tribunal made programming orders on 13 December 2021 and 21 January 2022 in relation to Mr Lee's costs applications and the Board's costs applications.

11. Mr Lee says, and the Board's agrees, that he was not served with the Board's submissions, or the Board's costs applications until 15 February 2022 (rather than on 14 February 2022 as ordered).

12. Mr Lee submits that the Board did not seek an extension of time nor was there any conferral with him seeking an extension of time for service.

13. Mr Lee refers to s 48 of the SAT Act and submits that as a result of the breach of the Tribunal's orders, where no reasonable excuse has been provided, the Board's submissions in opposition to his costs application, together with the Board's costs applications should be struck out or dismissed.

14. Section 48 provides that in circumstances where the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by failing to comply with an order of the Tribunal without reasonable excuse, the Tribunal may if the party causing the disadvantage is the applicant, order that the proceeding be dismissed or struck out or if the party causing the disadvantage is not the applicant, determine the proceeding in favour of the applicant or order that the party causing the disadvantage be struck out of the proceeding.

15. I observe that whilst Mr Lee was served with the Board's submissions/costs applications a day late, Mr Lee's submissions in reply were also filed a day late, on 22 February 2022 not 21 February 2022 as ordered.

16. Mr Lee does not contend that the filing of the Board's submissions/costs applications a day late has unnecessarily disadvantaged him.  Given Mr Lee filed his submissions in reply a day late he cannot claim to have had a day less to attend to their preparation.

17. In the circumstances I am not persuaded that Mr Lee has been unnecessarily disadvantaged by the Board's late service of its submissions/costs applications.

18. For these reasons I decline to strike out/dismiss the Board's submissions/costs applications as requested by Mr Lee. 

19. I have therefore taken into consideration all of the submissions of the parties in relation to Mr Lee's costs applications and the Board's applications.

Issues to be determined

1. The issues to be determined by the Tribunal in this decision are:

   1)Should the Tribunal grant Mr Lee an extension of time within which to make his costs application?

   2)If the first issue is answered in the affirmative, should Mr Lee be awarded costs, and if so, what should those costs be?

   3)Should the Board be awarded the costs of Mr Lee's costs application?

   4)If the third issue is answered in the affirmative, what should those costs be?

   5)Should the Board be awarded the costs of Mr Lee's interim application?

   6)If the fifth issue is answered in the affirmative, what should those costs be?

2. This decision is determined entirely on the documents (pursuant to s 60(2) of the SAT Act).

3. For the reasons that follow I have reached the following conclusions:

   1)Mr Lee ought not be granted an extension of time within which to make his costs application.

   2)The Board is awarded its costs of having to defend Mr Lee's costs application in the sum of $3,762.

   3)The Board is awarded its costs of having to defend Mr Lee's interim application in the sum of $2,926.

Issue 1:  Should the Tribunal grant Mr Lee an extension of time within which to make his costs application?

1. The general principles which apply to the exercise of the discretion to grant an extension of time are set out by Hall J in Di Virgilio v McCleary [2012] WASC 437 (Di Virgilio), at [38]-[41] as follows:

   38The power to grant an extension of time to commence proceedings is generally discretionary in nature.  The use of the word 'may' in r 9 confirms the existence of a discretion here.  Whether the discretion should be exercised in favour of the appellant in any case depends on an assessment of the particular facts and circumstances.

   39The discretion exists for the sole purpose of enabling a court or tribunal to do justice between the parties.  It can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant.  In order to determine whether there would be an injustice it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for an extension of time:  Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479, 459 (McHugh J).

   40In a passage quoted with approval and applied by Malcolm CJ with whom Kennedy and Franklyn JJ agreed in Gerando v Gerando (1997) 18 WAR 450, 454 Kennedy J held in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 198 as follows:

   In Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946; [1985] 2 All ER 517 at 520, the Court of Appeal accepted that, in relation to an application for an extension of time for appealing, there are four major factors to be considered in the exercise of the discretion which is conferred upon the court.  They are, first, the length of the delay, secondly, the reasons for the delay, thirdly, whether there is an arguable case and, fourthly, the extent of any prejudice to the respondent.  There may in a particular case be additional factors, but I accept that the foregoing are the major factors in the present case.

   41In O'Connor and The Town of Victoria Park Barker J noted that the four factors identified by Kennedy J in Esther Investments had been referred to in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 by Brennan CJ and McHugh J. The correctness of those four factors had not been questioned by the High Court. Barker J applied those factors in determining whether an extension of time for a review of a decision of the Town Planning Appeal Tribunal should be granted in O'Connor.

   (Emphasis added)

2. Hall J notes at [45] in Di Virgilio, that those general principles are not exhaustive, nor do they limit the possible relevance of other factors.  Rather they are a useful guide to the exercise of the discretion, not a set of strict rules.

3. In respect of the first of the four major factors referred to by Hall J in Di Virgilio, namely the length of the delay, Mr Lee accepts that his costs application was made on 9 November 2021, that is 21 days after the time prescribed by r 42A. In my view this is a significant delay. Effectively, Mr Lee took double the period of time provided for in r 42A of the Rules. In these circumstances the length of the delay is not favourable to the Tribunal exercising its discretion in his favour.

4. In respect of the second of the four major factors, namely the reasons for the delay, Mr Lee says that at about the time of the Tribunal's decision, he advised Mr Coyle of counsel that he wished to seek costs, and that Mr Coyle was unfamiliar with the Tribunal's procedures and advised Mr Lee that there may be a formal handing down of the decision and that Mr Lee should wait until that time to make an application.

5. In the Tribunal's letter to Mr Lee dated 29 September 2021 enclosing a copy of the Tribunal's reasons for decision and orders, he was advised that he may have a right to have the Tribunal's decision reviewed by the Tribunal or the Supreme Court.  The letter invited Mr Lee to contact the Tribunal if he had any enquiries.

6. It was not until 3 November 2021 that the Tribunal received an enquiry from Mr Lee 'please let me know if an application can be made for costs in this matter'.

7. On 5 November 2021 the Tribunal referred Mr Lee to the information relevant to costs on the Tribunal's website.

8. On 9 November 2021 Mr Lee wrote to the Tribunal seeking that the Board pay his costs.

9. In my view, given that Mr Lee is a legal practitioner, represented by his own law firm and counsel, any claimed unfamiliarity with the Tribunal's procedures is not a satisfactory reason for the delay which would support the Tribunal exercising its discretion to extend time. 

10. In respect of the third of the four major factors, namely whether there is an arguable case for costs, or put another way, the merits of Mr Lee's costs application, s 87 of the SAT Act is relevant and I set it out in full.

    Costs of parties and others

    (1)Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.

    (2)Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.

    (3)The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.

    (4)Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to -

    (a)whether the party (in bringing or conducting the proceeding before the decision-maker in which the decision under review was made) genuinely attempted to enable and assist the decision-maker to make a decision on its merits;

    (b)whether the party (being the decision-maker) genuinely attempted to make a decision on its merits.

    (Emphasis added)

11. I interpolate here that Mr Lee has made his application for costs pursuant to both s 87 and s 88 of the SAT Act. In so far as his application is made pursuant to s 88, it is misconceived. As subsection (1) makes plain, s 88 is concerned with 'costs of, or incidental to, a proceeding of the Tribunal, other than costs of a party' (Emphasis added). Section 88(2) confers power on the Tribunal to order that a party pay all or any of these costs. In other words, s 88 enables the Tribunal to make an order requiring a party to pay the Tribunal's costs of the proceeding, not another party's costs of the proceeding.

12. The relationship between s 87(1) and s 87(2) of the SAT Act, and the approach of the Tribunal to the award of costs, was considered by the Court of Appeal in Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 (Questdale), which held that:

    a)the starting point under s 87(1) is that the Tribunal is a 'no costs' jurisdiction, and that each party will bear its own costs;

    b)the discretion of the Tribunal to award costs under s 87(2):

    i)is to be exercised 'judicially', not arbitrarily, capriciously or so as to frustrate the legislative intent;

    ii)is directed to the question of whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred (the legal rationale is not to punish the person against whom the order is made but to provide compensation); and

    iii)is broad so that considerations relevant to its exercise are unconfined, except that the Tribunal is bound to take account of the matters specified in s 87(4) and should have regard to 'the subject matter and the scope and purpose' of the SAT Act.

    c)factors that may be considered in the exercise of the Tribunal's discretion include (non-exhaustively):

    i)the nature of the dispute, and the legislative scheme under which it arises; and

    ii)whether a party has conducted itself in a manner that has impaired the attainment of the Tribunal's objectives under s 9 of the SAT Act;

    d)the fact that a party ultimately fails on its contentions does not of itself signify that it has acted inconsistently with the objectives in s 9 of the SAT Act; and

    e)the party seeking costs bears the onus of satisfying the Tribunal in relation to the exercise of its discretion.

13. Firstly, Mr Lee contends that the Board did not genuinely attempt to make a decision on its merits as referred to in s 87(4)(b) as to whether he had 'satisfied the 450 hour requirement'. Mr Lee contends that the Board acted unreasonably in prolonging the matter causing him to incur costs. In so far as these comments relate to the Board's conduct following its decision on 8 September 2020, I have dealt with this below.

14. In their commentary on s 87(4) of the SAT Act in the text Guide to Proceedings in the WA State Administrative Tribunal (Lawbook Co Thomson Reuters, 2012), Parry and De Villiers at paragraph 1702 state 'Costs orders are only generally made in review proceedings where a party has acted unreasonably including where a party has failed to meet the expectation expressed in s 87(4) of the SAT Act'.

15. The Board's decision, on 8 September 2020, was based on Mr Lee's repeated statements that he had not practised pharmacy for 450 hours in the three years prior to his application for renewal on 24 October 2019, and that he had last practised as a pharmacist in May 2016.

16. It was not until after this proceeding was commenced at the Tribunal on 21 September 2020, that Mr Lee disclosed, on 1 October 2020, that he had last practised as a pharmacist in May 2017 (not May 2016 as previously advised) and that he had in fact practised pharmacy for 450 hours in the three years prior to his application for renewal on 24 October 2019.  He claimed that his earlier statements to the contrary were in error.  As stated in the Tribunal's decision, the truth of this claim, not made until a year after he sought to renew his registration on 24 October 2019, was at the heart of the dispute to be determined by the Tribunal. 

17. For this reason, I consider that in making its decision on 8 September 2020, the Board genuinely attempted to make a decision on the merits.  In fact, on the basis of the information available to it at that time the Board made the correct decision, and I find that it did not act unreasonably.

18. Secondly, the Tribunal has a well-established practice in review proceedings that normally, each party should bear its own costs of the proceedings.

19. I refer again to the commentary on s 87 in the text Guide to Proceedings in the WA State Administrative Tribunal wherein the authors state at paragraph 1702:

    The Tribunal's established practice in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act in review proceedings (including vocational review proceedings and valuation of land review proceedings) is that normally each party should bear its own costs of the proceedings. As Barker J observed, SAT was established with its review jurisdiction as part of the system of public administration of the State to ensure that citizens and other entities may seek administrative justice in relation to decisions that affect their personal, proprietary and financial interests. An applicant should not be discouraged from seeking administrative justice by the prospect of having to pay the decision­makers cost's if they do not succeed. Conversely, an applicant is not entitled to an award of costs if they succeed.

    (Emphasis added)

1. In Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53 at [31], Senior Member Parry, as His Honour then was, said that there are sound policy reasons which support an approach to costs in review proceedings under which each party usually bears its own costs, including:

   … First, it ensures that individuals who have had an application rejected or not considered by an original decision-maker or who have been given a direction or notice to do or cease doing something, have an opportunity for the decision to be reviewed without the fear of being ordered to pay costs if they do not succeed.  Second, the review tribunal essentially 'sits in the shoes' of the original decision-maker before whom the applicant was only responsible for its own costs.  Third, although the review tribunal will usually ultimately prefer one party's position over another's, reasonable minds might well differ about an appropriate result as to merit.

2. In Motor Vehicle Industry Board and Dawson [2006] WASAT 8 at [44]-[48] the Tribunal (Justice Barker, Senior Member Allen and Sessional Member Townsend) considered that in proceedings commenced by a vocational regulatory body, ordinarily, unless it can be demonstrated that an application made by a vocational regulatory body lacked any reasonable basis or was not made in good faith, costs should not be awarded against a vocational regulatory body simply because the application was not successful. The basis for this decision is that such bodies perform a function that promotes the public interest.

3. The Board submits, and I agree, that it has an important statutory duty to ensure that registered pharmacists comply with their obligations under the Health Practitioner Regulation National Law (WA) Act 2010 (WA), including the obligations to comply with any practice standards approved by the Board and to submit accurate renewal applications. The Board submits, and I agree, that it should not be discouraged from fulfilling its statutory duties by the imposition of an adverse costs order.

4. Thirdly, Mr Lee complains about the conduct of the Board, and AHPRA and the WADOH.

5. In brief, Mr Lee alleges that Ms Banks the State Manager at AHPRA, 'must have' provided instructions to the Board and conducted this matter on behalf of the Board.  Mr Lee contends therefore that AHPRA's conduct should be imputed to the Board and throughout his submissions his complaints about the Board's conduct are attributed to the Board and/or AHPRA.

6. Mr Lee submits that during the course of, and prior to, this proceeding, he was a party to Supreme Court litigation involving the WADOH which involved allegations of fraud by the WADOH, where he claims Ms Banks was also a manager.

7. Mr Lee makes a number of complaints about the Board's conduct, which he variously describes as disingenuous and vexatious, in bad faith and unreasonable.

8. He contends that the Board/AHPRA sought and obtained summonses (for the production of irrelevant documents) in this proceeding and that the only purpose of these documents was for their use in other Supreme Court proceedings involving the WADOH.  In so doing he alleges that the Board acted in bad faith.

9. The Board categorically denies these submissions which it says are baseless and scandalous.

10. The Board submits that the gravitas of Mr Lee's submission appears to be that the Board or its legal representatives breached, or intended to breach, the implied undertaking that they would only use documents obtained under compulsion for the purpose of this proceeding and gave the documents to the WADOH for the purpose of unspecified Supreme Court proceedings in which WADOH (but not the Board) was involved.

11. Mr Lee's allegation that any documents produced under summonses in this proceeding were given to a third party (WADOH) is unsubstantiated.

12. Further the Tribunal observes that the documents produced under summonses are documents that the Tribunal listed in [36] of the Tribunal's decision as among the documents identified by Mr Lee himself as being relevant to the determination of the matter.

13. For this reason, I do not accept Mr Lee's claims that the documents produced under summons were irrelevant to this proceeding and consider that the Board's conduct in seeking the summons was not unreasonable.  Further I do not consider that the Board obtained these documents in bad faith or for an improper purpose as alleged by Mr Lee.

14. I now turn to consider Mr Lee's other complaints about the Board's conduct.

15. Mr Lee submits that the Board should have accepted that he had completed 450 hours work as a pharmacist in the three years prior to the 2019 application for renewal because of his statutory declarations, his affidavit and the documents set out in the Tribunal's decision at [36]. He submits that the Board was aware early in the Tribunal proceeding that he had made an innocent error.

16. In my view the Board was entitled to test the evidence presented by Mr Lee at a hearing, particularly in circumstances where he had provided contradictory information regarding his practice as a pharmacist in the relevant period.

17. Mr Lee contends that the Board should have made enquiries about his practice hours with visitors or residents to Rottnest Island.  In my view, the onus was on Mr Lee, not the Board, to adduce any evidence that may have supported his claims to have practised for 450 hours in the three years prior to making his application for renewal on 24 October 2019.

18. Mr Lee contends that it was not put to him during cross-examination whether he had completed 450 hours work as a pharmacist in the three years prior to the 2019 application for renewal.  In my view this is not relevant to the exercise of the Tribunal's discretion to allow Mr Lee an extension of time within which to make his costs application, nor to the merits of his costs application.

19. Mr Lee contends that the Board did not make enquiries with respect to the hours he completed at the Boddington Pharmacy.

20. As stated in the Tribunal's decision at [25] and [26] the crux of this dispute was whether Mr Lee practised pharmacy for 450 hours within the previous three years prior to his application for renewal on 24 October 2019.  Therefore, the evidence taken in relation to Mr Lee's period of supervised practice at the Boddington Pharmacy (in 2020) was irrelevant to the issue to be determined in this proceeding.

21. For these reasons Mr Lee's contention that the Board did not make enquiries with respect to the hours he completed at the Boddington Pharmacy is not relevant to the exercise of the Tribunal's discretion to allow Mr Lee an extension of time within which to make his costs application, nor to the merits of his costs application.

22. Mr Lee complains that the Board made no genuine attempt to resolve the matter at an early stage of the Tribunal proceeding notwithstanding it had all the evidence necessary to make a decision on its merits and this continued by way of three mediations.

23. This submission and the remaining aspects of Mr Lee's submissions regarding the Board's conduct, in essence, is that the Board should have reached the same conclusion on the merits that the Tribunal did.

24. This falls well short of establishing that the Board acted in a manner that was 'disingenuous and vexatious' or unreasonable.  As was said by Senior Member Parry as His Honour then was, in Citygate at [31], reasonable minds might well differ about an appropriate result as to merit.  That is what occurred in this instance.

25. Mr Lee submits that there was no attempt by the Board to minimise costs.  Mr Lee's submission is not supported by any evidence and I am unable to place any weight on this submission in my deliberations as to the merits of his costs application, and hence my deliberations whether to extend the time for the filing of his costs application.

Conclusion on merits of Mr Lee's costs application

1. In conclusion, I am not persuaded that the Board's conduct was 'disengenous and vexatious' or unreasonable as alleged by Mr Lee.  

2. Further, in so far as Mr Lee relies on the decision in Chew and Director-General of the Department of Education and Training [2006] WASAT 248 wherein her Honour Justice Eckert at [85] said that the Tribunal should not generally make an award of costs unless a party has conducted itself in such a way as to unnecessarily prolong the hearing; has acted unreasonably or inappropriately in its conduct of the proceeding, has been capricious; or the proceeding in some other way constitute an abuse of process, I am not persuaded that the Board's conduct in this case can be so characterised.

3. Consequently, there would be no reason to depart from the Tribunal's usual practice in review proceedings under which, normally, each party is to pay its own costs.

4. For these reasons I find that Mr Lee's costs application is without merit.

5. In respect of the fourth of the four major factors referred to above, namely, the extent of any prejudice to the Board by an extension of time, no explicit submissions have been made by the Board.  In any event 'the mere absence of prejudice is not enough to justify the grant of an extension' (Di Virgilio at [42]).

Conclusion on Issue 1

1. In conclusion, in the exercise of my discretion and in consideration of the principles outlined in Di Virgilio, I am not persuaded that to do justice between the parties, Mr Lee ought to be granted an extension of time within which to make his costs application.

2. Accordingly, Mr Lee's application for an extension of time within which to make his costs application is dismissed.

Issue 2:  If the first issue is answered in the affirmative, should Mr Lee be awarded costs, and if so, what should those costs be?

1. Given that the first issue was not determined in the affirmative, this issue falls away.

Issue 3:  Should the Board be awarded the costs of Mr Lee's costs application?

1. On 13 December 2021 at the directions hearing in relation to Mr Lee's costs application:

   i)I drew Mr Lee's attention to the fact that his costs application was out of time and that he would need to be granted an extension of time within which to make his costs application;

   ii)I drew the parties' attention to Questdale and Di Virgilio; and

   iii)the Board put Mr Lee on notice that it would be seeking its costs of Mr Lee's costs application.

2. In Aydogan and Town of Cambridge & Anor [2007] WASAT 19 (24 January 2007), the Tribunal made the following observations regarding the costs of a costs application made in review proceedings:

   47… both the starting proposition in the Tribunal under s 87(1) of the SAT Act and the established practice of the Tribunal in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act is that, normally, each party in review proceedings should bear its own costs. The Tribunal, in its review jurisdiction, is a generally costs free forum.

   48The making of a costs application in relation to review proceedings which concern a genuine dispute as to planning merit normally involves unreasonable conduct warranting an order that the applicants for costs compensate the other party or parties for having had to defend the application.  The applicants were advised of the Tribunal's practice in relation to costs, but nevertheless persisted with their application, thereby putting the Council to expense in defending it.  The applicants' conduct in making and pursuing the costs application was unreasonable in a generally costs-free jurisdiction.

3. In this case, Mr Lee's conduct in making and pursuing the costs application was unreasonable.  He was represented, albeit by his own law firm, in the matter of his costs application, in circumstances where I had drawn to his attention the cases of Di Virgilio and Questdale for his consideration, and the Board had put him on notice that it would be seeking the cost of his costs application.  In so doing Mr Lee has put the Board to the expense of defending his costs application.    

4. In the circumstances I am persuaded to exercise my discretion under s 87(2) to award the Board its costs of having to defend Mr Lee's costs application.

Issue 4:  If the third issue is answered in the affirmative, what should those costs be?

1. In fixing costs, I have taken a robust and broad brush approach in considering what reasonable allowance for costs should be made, having regard to the work necessarily undertaken in order to bring the proceeding to a conclusion.[49]

   [49] Medical Board of Australia and Costley [2013] WASAT 2 at [66]; The Owners of Strata Plan 41133 and Lendlease Project Management and Construction (Australia) Pty Ltd [2014] WASAT 6 (S) at [5], Medical Board of Australia and Panegyres [2017] WASAT 146 (S).

2. The Board has sought to have its costs determined having regard to the Legal Profession (State Administrative Tribunal) Determination 2020 (WA) (Determination).

3. The Board has provided an itemised account of the work done in responding to Mr Lee's costs application.

4. The Board spent one hour preparing for and attending the directions hearing in relation to the costs application.  Applying the senior practitioner rate the Board calculates the amount sought at $418.

5. The Board spent two hours reviewing Mr Lee's submissions and material filed in support of the costs application.  Applying the senior practitioner rate the Board calculates the amount at $836.

6. The Board spent six hours drafting its submissions in opposition to the costs application.  Applying the senior practitioner rate the Board calculates the amount at $2,508.

7. I consider that the time spent by the Board is reasonable and the application of the hourly rate for a senior practitioner under the Determination is reasonable in relation to a contested costs application.

8. I therefore consider that Mr Lee should be ordered to pay the Board's costs of the costs application in the sum of $3,762 and that a reasonable period within which to pay these costs is 28 days from the date of this decision.

Issue 5:  Should the Board be awarded the costs of Mr Lee's interim application?

1. The Board seeks an order that Mr Lee pay the costs of the interim application on the basis that his interim application was conducted frivolously, in the sense that it was manifestly groundless and untenable. 

2. Mr Lee's interim application sought from Ms Banks:

   a)an affidavit setting out her involvement in this matter; and

   b)production of any communications between her/AHPRA and the WADOH concerning this matter.

3. The basis for the interim application was in brief, that AHPRA were effectively conducting this matter, notwithstanding that it was not the respondent, and that Ms Banks of AHPRA was also employed by or had a contract with the WADOH (with whom Mr Lee was involved in litigation in the Supreme Court).

4. Mr Lee's interim application was dismissed for the reason that it was misconceived. 

5. The Board submits that Mr Lee's submissions regarding Ms Banks (which I have outlined above) were baseless, scandalous and were categorically denied by the Board. 

6. The Board submits, correctly, that neither Mr Lee's interim application nor the material filed in support of that application identified the Supreme Court proceeding to which Mr Lee was referring.

7. The Board submits and I agree that the relevance of the Supreme Court proceeding to Mr Lee's costs application is unclear.

8. Further, as I understand Mr Lee's submissions, he contends that the Tribunal ought dismiss the Board's application, seeking orders that he pay its costs of his interim application as the Board has breached s 48(1)(d) of the SAT Act.

9. Section 48(1)(d) applies if the Tribunal believes that a party is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct including attempting to deceive another party or the Tribunal. In those circumstances pursuant to s 48(2) the Tribunal may determine the proceeding in favour of the applicant and make any appropriate orders.

10. Mr Lee's submissions in relation to s 48(1)(d) are predicated on Ms Banks' conflict of interest arising from being the State Manager of AHPRA and being contracted with the WADOH and having the conduct of this matter on behalf of the Board, the Board obtaining summonses unrelated to recency of practice, and the Board failing to declare the involvement of AHPRA in this proceeding. It is implicit in Mr Lee's submissions that this alleged conduct is conduct amounting to an attempt to deceive him/the Tribunal as set out in s 48(1)(d).

11. In my view these submissions by Mr Lee are a further attempt by him to reagitate the matters that formed the basis of his interim application, which was dismissed.  As I have already stated, I do not accept that the summonses issued in this proceeding were irrelevant to this proceeding, nor that they were obtained in bad faith.  In so far as AHPRA, Ms Banks, and the WADOH are concerned, they were not parties to these proceedings. I am not persuaded that the Board has attempted to deceive Mr Lee or the Tribunal.  In conclusion, I am not persuaded that the Board's conduct of this proceeding has unnecessarily disadvantaged Mr Lee.

12. In so far as the Board contends that Mr Lee's interim application was conducted frivolously it relies on s 88 of the SAT Act. For the reasons I have outlined above, the application of s 88 is misconceived in these circumstances and I have disregarded both parties' submissions in so far as they refer to s 88.

13. In seeking to persuade me to award costs, the Board has also referred to Justice Allanson's rationale for ordering that Mr Lee (the same Mr Lee involved in this Tribunal proceeding) pay indemnity costs in Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2021] WASC 289, on grounds that the case had no prospect of success and on proper consideration should have been seen as hopeless at the outset. Further Justice Allanson observed that Mr Lee was himself a legal practitioner.

14. The Board submits that in the present proceeding Mr Lee is represented by a law firm, albeit one in which he is the sole director, and that he should have appreciated that his interim application was manifestly groundless and so obviously untenable that it could not possibly succeed.

15. In considering whether to award the Board its costs of defending Mr Lee's interim application I return to the propositions I have outlined earlier in respect of the relationship between s 87(1) and s 87(2) and the approach to costs outlined in Questdale.

16. In all of the circumstances, I am satisfied that having regard to the objectives of the Tribunal in dealing with this matter, and in the exercise of my discretion it is fair and reasonable that Mr Lee pay the Board's cost of defending his interim application.  Mr Lee's interim application sought the provision of an affidavit and production of documents by a third party, that is Ms Banks, on grounds that she 'must have' been involved. Mr Lee's interim application was without merit and could not possibly have succeeded.  Mr Lee, as a legal practitioner should have appreciated that. 

17. For these reasons I am persuaded to award the Board its cost of defending Mr Lee's interim application. 

18. The Board has provided an itemised account of the work done in responding to Mr Lee's interim application.

19. The Board spent five hours reviewing the interim application, the documents filed by Mr Lee in support, undertaking research, and preparing the Board's oral submissions.  Applying the senior practitioner rate the Board calculates the amount sought at $2,090.

20. The Board spent two hours preparing for and attending the hearing of the interim application.  Applying the senior practitioner rate the Board calculates the amount at $836.

21. I consider that the time spent by the Board is reasonable and the application of the hourly rate for a senior practitioner under the Determination is reasonable.

22. I consider that Mr Lee should be ordered to pay the Board's costs of Mr Lee's interim application in the total sum of $2,926, and that a reasonable period within which to pay these costs is 28 days from the date of this decision.

Orders

The Tribunal orders:

1.Mr Lee's application for an extension of time to make a costs application is dismissed.

2.Within 28 days Mr Lee pay the Pharmacy Board of Australia's costs of his costs application fixed in the total sum of $3,762.

3.Within 28 days Mr Lee pay the Pharmacy Board of Australia's costs of his interim application fixed in the total sum of $2,926. 

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS V Haigh, MEMBER

4 MAY 2022