Pharmacy Board of Queensland v Stinson

[1993] QCA 433

IN THE COURT OF APPEAL	[1993] QCA 433
QUEENSLAND

Appeal No. 189 of 1993

Brisbane

Before The Chief Justice Mr Justice Pincus Mr Justice Williams

[Stinson v. The Pharmacy Board of Queensland]

BETWEEN:

BRUCE JAMES STINSON

(Appellant) Respondent

- and -

THE PHARMACY BOARD OF QUEENSLAND

(Respondent) Appellant

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 14/12/93

I agree with the reasons and conclusion stated by Williams J. and the order which he proposes.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 189 of 1993.

Brisbane

[Stinson v. Pharmacy Board]

BETWEEN

BRUCE JAMES STINSON

(Appellant) Respondent

- and -

THE PHARMACY BOARD OF QUEENSLAND

(Respondent) Appellant

____________________________________________________________

_____

The Chief Justice
Pincus J.A.

Williams J.

____________________________________________________________

_____

Judgment delivered 14/12/93.

Separate reasons for judgment of The Chief Justice, Pincus
J.A. and Williams J, all concurring as to the order made.
____________________________________________________________

_____

APPLICATION FOR LEAVE TO APPEAL DISMISSED WITH COSTS

____________________________________________________________

_____

CATCHWORDS:	APPEAL - s. 29(1) Pharmacy Act 1976 - appeal to judge of District Court from decision of Board shall be "final" - held no appeal therefrom to Court of Appeal by law pursuant to s. 92 of District Courts Act 1967.
Counsel:	Mr P A Keane Q.C. with him Mr G H Brandis for the appellant. Mr R V Hanson Q.C. with him Mr M J Griffin for the respondent.
Solicitors:	Feez Ruthning for applicant. Gabriel Ruddy & Jarrett for respondent.
Date of Hearing:	16 November 1993.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 189 of 1993.

Brisbane

Before The Chief Justice

Pincus J.A. Williams J.

[Stinson v. Pharmacy Board]

BETWEEN

BRUCE JAMES STINSON

(Appellant) Respondent

- and -

THE PHARMACY BOARD OF QUEENSLAND

(Respondent) Appellant

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 14/12/93

I have had the advantage of reading in draft the reasons of Mr Justice Williams. I agree with his Honour's view that the relevant statute gives the Board no right of appeal to this Court, in the circumstances, and with the reasons given for that view. I also agree that the application for leave to appeal should be dismissed with costs.

IN THE COURT OF APPEAL	[1993] QCA
SUPREME COURT OF QUEENSLAND

Appeal No. 189 of 1993

Before The Chief Justice

Mr Justice Pincus

Mr Justice Williams

BETWEEN:

BRUCE JAMES STINSON

(Appellant) Respondent

AND:

THE PHARMACY BOARD OF QUEENSLAND

(Respondent) Appellant

JUDGMENT - WILLIAMS J.

Judgment delivered 14th December, 1993

During the period from about 1984 until April 1990 the respondent, Bruce James Stinson, was registered as a pharmacist in Queensland pursuant to the provisions of the Pharmacy Act 1976 (or the legislation repealed thereby). Registration is a matter within the jurisdiction of The Pharmacy Board of Queensland constituted under that Act. From about April 1990 he did not seek to renew his registration, for reasons which will be discussed later, but he made such an application in about February 1992. By virtue of s. 19(1) the onus was on him of satisfying the Board, inter alia, that he was "of good fame and character". On 27th May 1992 the Board resolved that it was not satisfied that the respondent was "of good fame and character"; in so holding the Board was largely influenced by the factors which caused the respondent to refrain from seeking renewal of his application from about April 1990. From that decision the respondent appealed to a Judge of the District Court at Brisbane pursuant to s. 29(1) of the Act, which so far as is relevant provides:-

"A person . . . aggrieved by -

(a)

a refusal by the Board of his application to be registered as a . . .

may appeal therefrom to a Judge of the District Court at Brisbane who shall have jurisdiction to hear and determine the same and whose decision thereon shall be final and be given effect to by the Board".

The appeal came on for hearing in the District Court on 10th September 1993, and the learned District Court Judge, for reasons which he published, declared that the respondent was "entitled to be registered as a pharmacist upon his paying (if he has not already done so) the prescribed fee for registration and it is ordered and directed that the . . . Board after seven days from this date do all things within its powers which are necessary to cause the [respondent] to be registered as a pharmacist in accordance with the provisions of the Act". From that decision the Board seeks to appeal to this court. Counsel for the Board conceded that there was no appeal as of right either pursuant to s. 92 of the District Courts Act 1967 or any other statutory provision. However it was argued that such an appeal could be had by leave of the Court of Appeal pursuant to s. 92(2). When the matter was mentioned on 6th October 1993 the court intimated that it would hear argument on the merits on the application for leave. On that occasion mention was also made of the possibility of the appellant seeking prerogative relief, but nothing has been done in that regard and nothing was said about that during argument.

The respondent contends that because s. 29(1) of the Pharmacy Act stipulates that the determination by the Judge of District Courts "shall be final" there can be no appeal to this court notwithstanding anything contained in s. 92 of the District Courts Act. It is convenient to deal with that issue first.

It should be noted that a number of statutes confer jurisdiction on a Judge of the District Court with respect to what have been colloquially called "vocational appeals". The statutory provisions in question are conveniently collected behind the guide card bearing that title in Wylie District Courts Practice. Not all the statutory provisions are identical, but some (e.g. s. 28 of the Chiropractors and Osteopaths Act 1979 and s. 33 of the Nursing Act 1976) are in identical terms to s. 29 of the Pharmacy Act. In all but two instances the appeal to the District Court is said to be final; the exceptions are s. 67 of the Professional Engineers Act 1988 which is silent on the point, and the Surveyors Act 1967 which, pursuant to s. 65, gives a right of appeal to this court on a question of law. Most of the statutory provisions referred to use the expression, as in the Pharmacy Act, that the decision of the District Court "shall be final and be given effect to by the Board". But that is not universal; e.g. s. 21 of the Architects Act 1985 provides that the Judge of the District Court "shall have jurisdiction to hear and determine the appeal and whose decision thereon shall be final and conclusive".

Given the argument of the appellant it is necessary to refer to some further provisions of s.
29. The appeal to the District Court is "by way of rehearing", and the appellant is required to
comply "with any rules of court made with respect thereto" (subsection 2). It is then provided by
subsection (4) that rules of court may be made "with respect to the institution, conduct and disposal
of an appeal" and until such rules are made the judge hearing the appeal may "give such directions as
he may think fit". According to the argument of the appellant subsection (5) is important; it provides:
"The proceeding on appeal under this section shall be deemed to be a proceeding before a District
Court". Further subsection (6) entitles the judge to sit with assessors if that is deemed necessary.
Finally, subsection (7) should also be noted; it provides that if the District Court orders a penalty to
be paid then, for purposes of enforcement, that order "shall be deemed to be an order made by the

Board".

The legislation clearly grants a right of appeal from the Board to an existing court, namely the
District Court. The general principle applicable in such a situation is that stated by the High Court in
Electric Light and Power Supply Corporation Ltd. v. Electricity Commission of New South Wales
(1956) 94 C.L.R. 554 at 559:-

"When such a course is adopted it is taken to mean, unless and except in so far as the contrary intention appears, that it is to the court as such that the matter is referred exercising its known authority according to the rules of procedure by which it is governed and subject to the incidents by which it is affected."

That judgment went on to cite with approval a statement by Viscount Haldane L.C. in National Telephone Co. Ltd. v. Postmaster General (1913) A.C. 546 at 552 to the effect that the ordinary incidents of the procedure of the court include "any general right of appeal from its decisions". The question in this case therefore becomes whether or not the use of the term "final" in s. 29(1) of the Pharmacy Act evidences a "contrary intention", so that the normal incidents of appeal established by s. 92 of the District Courts Act do not apply.

The closest authority to the present situation is the decision of the Full Court in Exton v. White (1976) Qd.R. 126. Section 222 of The Justices Act 1886-1968 (as amended by s. 96 of the District Courts Act) provided for an appeal from a magistrate exercising jurisdiction under The Justices Act to a Judge of District Courts, and it stated that such "determination shall be final between the parties to the appeal". Section 92 of the District Courts Act was enacted subsequently. It was argued that notwithstanding the wording of s. 222 an aggrieved party could appeal, with leave, to the Full Court. It was held that there was no appeal, by leave or otherwise, to the Full Court from the determination of a District Court Judge made on appeal pursuant to s. 222. In so holding the court followed two earlier decisions of the Full Court: White v. White (No. 2) (1923) St.R. Qd. 69 and Schwartz v. Strutt (1948) St.R. Qd. 129. The former involved a consideration of s. 237 of The Justices Act, that section being the forerunner of s. 222. In 1923 the appeal was to a single judge of the Supreme Court whose decision was to be "final between the parties". Lukin J. at 76 said "the word `final' . . . means, I think, what it says, that both in law and in fact it is the final and unalterable judgment of the State Courts on the matter.". McCawley C.J. and O'Sullivan J. reached the same conclusion; the court rejected an argument that s. 10 of The Judicature Act of 1867 enabled such an appeal to be brought. The latter case was also concerned with a provision of The Justices Act 1886. After conviction in the Magistrates Court, the defendant appealed by way of case stated under s. 226, and the matter was heard by a Supreme Court judge sitting in chambers and exercising jurisdiction pursuant to s. 233. Section 231 provided that on such a hearing the "orders shall be final and conclusive on all parties". The Full Court (Macrossan C.J., Philp and Stanley J.J.) held that no appeal lay from a judge in chambers exercising the jurisdiction provided for in those sections.

The consequences of the use of the term "final" in such a context has been considered in
other jurisdictions. Isaacs and Rich JJ. considered the meaning to be given to the word "final" in s.
39(2)(a) of the Judiciary Act in The Commonwealth v. Limerick Steamship Co. Ltd. (1924) 35
C.L.R. 69 at 88-9. They said, relevantly:-

"The arguments included decisions on the word `conclusive' alone, the word `final' alone, and the complete phrase `final and conclusive'. The word `conclusive' alone would not exclude an appeal unless the context clearly required it. Primarily `conclusive' means unchallengeable by the parties as long as it stands. . . . But primarily the word does not import finality in the sense of precluding an appeal. . . . `Final', on the other hand, has a distinct meaning of being `the last'. But the context must determine to what in contradistinction the decision is to be `the last'. If in contradistinction to `interlocutory', the word `final' has one application; if in contradistinction to further examination or review by a superior Court of any of the matters it determines, it imports that there is to be no appeal, though in certain circumstances this may not preclude a prerogative appeal. . . . But, as the word `final' alone may as applied to a judgment be used `in the sense that it cannot be made the subject of appeal to a higher court', so the compound and more emphatic expression `final and conclusive' may and generally does mean finality as to a litigation."

The High Court in Watson v. Federal Commissioner of Taxation (153) 87 C.L.R. 353 was concerned with the question whether or not there could be an appeal from the decision of a single justice of the High Court hearing an appeal from a Board of Review pursuant to s. 196(1) of the Income Tax and Social Services Contribution Assessment Act 1936. The section in question provided that the decision of the single justice "shall be final and conclusive". The Court at 371 said that when "s. 196(3) provides that the decision shall be final and conclusive, it appears to us to mean that there shall be no further appeals".

Similar reasoning is to be found in the judgment of Shorland J. in Re McCosh's Application (1958) N.Z.L.R. 731 at 734. The court was there concerned with a statutory provision providing that the determination of a Board should be "final and binding" on all persons interested therein. Shorland J. said: "The words here are `final and binding', but I am unable to foresee any material difference between those words and the words `final and conclusive'. In my view the important word for present purposes is `final', and I think it is intended to mean, and should be construed as meaning, final in the sense of admitting of no further disputation."

A similar question was considered by the Full Court of New South Wales in Farrant v. Water Conservation and Irrigation Commission (1959) 59 S.R. (N.S.W.) 283. The Land and Valuation Court Act 1921 constituted the Land and Valuation Court, and generally provided for certain rights of appeal from decisions of that Court to the Supreme Court. Then the Water Act 1912-1955 conferred certain jurisdiction on the Land and Valuation Court, but provided by s. 14 that the decision of the Land and Valuation Court on such matters "shall be final". Walsh J. commenced his reasoning with a citation of the passage from Electric Light and Power Supply Corporation Ltd. v. Electricity Commission of New South Wales quoted above. At 289 he concluded that the "inclusion of those words displaces, in my opinion, the inference which, in accordance with the statement of the High Court, otherwise may safely be made that the legislature had taken the Court as it found it, with all its incidents". Else-Mitchell J. also concluded that the use of the word "final" precluded any appeal to the Supreme Court. He said at 301: "The express declaration in s. 14(2) of the Water Act, if it is to have any effect at all, must be taken as a clear manifestation of an intention to deprive parties before the Court of the right to have a case stated for the decision of the Supreme Court." Further at 303 he cited several authorities to support this proposition: "To say that the decision of the Land and Valuation Court is `final' could mean only one thing: namely that the proceedings shall end at the Land and Valuation Court".

I need refer only briefly to the English authorities to which he referred. Section 33 of The Summary Jurisdiction Act 1879 provides that any aggrieved person who contends that, inter alia, a conviction is erroneous in point of law or is in excess of jurisdiction may apply to have a special case stated for the consideration of the High Court of Justice. There are a number of cases in which it has been held that the use of the word "final" in conferring specific jurisdiction by statute upon a magistrate has the effect of precluding such an appeal by way of case stated. Section 33(2) of The Public Health (London) Act 1891 empowered a magistrate to determine any dispute between an occupier and the sanitary authority as to what was to be considered trade refuse, and went on to say that "the decision of that Court shall be final". The Court of Appeal and the House of Lords held that there could be no appeal from the magistrate either by way of case stated or otherwise. Obviously from the various reasons all considered they were giving the word "its natural meaning": Mayor of Westminster v. Gordon Hotels Ltd. (1907) 1 K.B. 910, (1908) A.C. 142. That decision was followed and applied in Wills and Sons v. McSherry (1914) 1 K.B. 616; there s. 164 of The Merchant Shipping Act 1894 provided that the decision of the Court of Summary Jurisdiction "shall be final". Channell J. said that he took the word "to mean not merely final in the sense that the matter having been litigated is not to be brought in question again, but final in the sense that no appeal lies from it." (619). Another case dealing with s. 33 of The Summary Jurisdiction Act was Hall v. Arnold (1950) 2 K.B. 543 where the Court of Appeal had to consider s. 55(2) of The Friendly Society Act 1896 which provided that in a specified type of proceeding the decision of the Court "shall be final and conclusive". Again following Mayor of Westminster v. Gordon Hotels Limited it was held that that provision precluded an appeal by way of case stated. In the course of his reasons Morris J. said at 548: "In my opinion they must be given there normal and full meaning, and the decision of the justices was accordingly final and conclusive. I therefore agree that it cannot be questioned in these proceedings".

The House of Lords in Kydd v. Watch Committee of City of Liverpool (1908) A.C. 327
had to consider s. 11 of The Police Act 1890 which conferred a special jurisdiction on the Court of
Quarter Sessions and provided that the order of that court "shall be final". It was held that there
could be no appeal from such an order. The Judicial Committee in Cushing v. Dupuy (1880) 5
App. Cas. 409 considered the use of the word "final" in The Canadian Insolvent Act. The
discussion at 416 confirms that in general the term should not be given a limited meaning, and that in
its ordinary meaning it would preclude the granting of leave to appeal. There is also a relevant
passage in the judgment of Denning L.J. in R. v. Medical Appeal Tribunal ex parte Gilmore (1957)
1 Q.B. 574 at 583. The court was there concerned with s. 36(3) of The National Insurance
(Industrial Injuries) Act 1946 which provided that certain decisions "shall be final". At 583 he said:
"The word `final' is not enough. That only means `without appeal'. It does not mean `without
recourse to certiorari.' It makes the decision final on the facts, but not final on the law.
Notwithstanding that the decision is by statute made `final', certiorari can still issue for excess of
jurisdiction or for error of law on the face of the record." It was recognised, particularly by Lord
Reid at 967, in Jones v. Secretary of State for Social Services (1972) A.C. 944 that the word
"final" is a "word with many meanings"; it is the context which will ultimately determine the precise
meaning and effect of the term.

Mr Keane Q.C. for the Board argued that s. 29(5) of The Pharmacy Act required the court to read down or limit the effect of the word "final" in subsection (1). I cannot accept that submission. It seems to me that subsection (5) was inserted to make it clear that the judge hearing the appeal could exercise all of the powers of a District Court Judge; e.g. witnesses could be compelled to attend the hearing and persons could be dealt with for contempt of court associated with the proceeding. Subsection (5) can be read together with subsection (1) quite comfortably, and without requiring the word "final" to be read down in any way.

The argument advanced by Mr Keane which has most force is that which draws a distinction between "a decisive adjudication of the rights of the parties on the merits, so as to create an issue estoppel and thus prevent duplication of enquiry" and an adjudication which is, in a temporal and procedural sense the final stage of the litigation. He contended that the word "final" here should be given the first of those meanings, and that such a construction would not preclude an appeal. That to my mind is straining the language of the sub-section. There is no justification based on the context for concluding that "final" gives rise to issue estoppel and prevents any further enquiry on the merits, yet permits either party to appeal and have those findings set aside.

As the cases to which I have referred establish, there is little, if anything, added to the force and effect of the term "final" by using the word "conclusive". If the context does not otherwise require the attribution of a different meaning the term "final" will carry its normal meaning of "the last"; that will generally mean the last step in the litigation. It would, in my opinion, be tautological to add the words "and without appeal", though one does find from time to time that extended expression used in statutes.

In the circumstances I do not consider that s. 29(1) of The Pharmacy Act is ambiguous or
obscure so that one may have regard to extrinsic material such as the Minister's Second Reading
Speech. But, in any event, that speech is not helpful in the present circumstances. The Pharmacy
Act 1917-1967 provided for appeals from the Board constituted under that Act to the Supreme
Court; there were a number of sections in the legislation dealing with such an appeal. There could
be an appeal from a single judge of the Supreme Court to the Full Court on questions of law. In his
Second Reading Speech on the 1976 Act the Minister merely said:-

"The appeal provisions of the previous legislation have been consolidated, and procedures whereby an appeal can be instituted are established. Provision is also made for the judge hearing an appeal to appoint one or more experts to assist him if he considers that the particular case involves a question of special knowledge or skill on which he is not competent to render a decision without such expert evidence."

Certainly the new Act did consolidate the appeal provisions, but significantly the Minister did not expressly advert to the fact that the appeal was to be to a Judge of District Courts and not to the Supreme Court. Given the failure to advert to that critical alteration, the omission of any reference to the fact that there was no longer to be an appeal to the Full Court cannot be regarded as in any way decisive.

In all the circumstances I am of the view that, consistently with the authorities to which I have referred "final" must in this context mean "without any appeal". There is no justification for reading the word down so that it merely prevents any further collateral enquiry on the facts.

I have reached that conclusion with reluctance because of the important nature of the questions which would require consideration by this court if the appeal was heard on the merits. Because the matter was also argued on the merits it is desirable that some brief observations be made thereon.

If there was an appeal by leave pursuant to s. 92(2) of The District Courts Act, I am of the view that leave would be granted because there was an important question of law or justice involved. The fitness of the respondent to be registered as a pharmacist, given his previous convictions and his admitted misconduct, raise important questions of justice. The legislation is designed for the protection of the public, and the test which should be applied in determining fitness, particularly in the light of the prior convictions, raises an important question of justice which has not been authoritatively established by a decision of an appellate court in Queensland.

If this court was entitled to adjudicate upon the merits of the proceeding before the District Court Judge a number of important questions would have to be addressed. On 25th March 1991 the respondent was convicted in the Magistrates Court at Caboolture of 29 offences alleging contraventions of The Poisons Regulations 1973. It would appear that 30 other charges alleging such offences were withdrawn. The respondent had pleaded "not guilty" to all charges. On one charge he was convicted and fined the sum of $100 and on each of the other 28 charges he was convicted and fined the sum of $50. Obviously all of those offences related to the respondent's conduct as a pharmacist. In its reasons for refusing to register the respondent the Board relied on only ten of those convictions.

On 18th January 1991 the respondent pleaded "guilty" in the District Court at Brisbane to 30 charges of fraudulent misappropriation, and on being sentenced asked that a further 135 like allegations be taken into account. The offences were committed between 20th July 1988 and 15th May 1989. In all some $128,000 was involved, but it would appear that in the long run no one was out of pocket in consequence of the misappropriations. When committing those offences the respondent was not purporting to act as a pharmacist. In the course of this sentencing remarks the learned District Court Judge who dealt with that matter said that the respondent here had been "engaged in very intense criminal activity over quite a lengthy period of time". He regarded it as a mitigating factor that after a period, usually not exceeding about 8 days, the misappropriated monies were returned. Against that the respondent was "in a position of trust". He also noted: "You have been deregistered, or will be deregistered by the Pharmacy Board"; and he took into account the fact that the respondent would not have the benefit of practicing that profession in the future. The respondent was convicted and released upon a security of $1,000 to be of good behaviour for 3 years and was further ordered to perform 240 hours of community service.

It is not accurate to say that the respondent was deregistered by the Board. As indicated above the respondent did not apply to renew his application from 1990, undoubtedly because he was aware it would then be refused. Relying on his asserted good character by February 1992 he applied for re-registration. The Board in resolving that he was not "of good fame and character" referred specifically to the various convictions particularised above and also to alleged dealing by the respondent with the drug Ephedrine during the period 1988 to 1990.

When the appeal was heard by the District Court Judge all of those matters were canvassed by the Board. That included leading evidence as to the respondent's alleged dealing with Ephedrine from 1988 to 1990. The credit of the witness who gave that evidence was severely attacked by counsel for the respondent primarily on the basis that the witness had a "grudge" against the respondent. The learned Judge rejected the evidence as being unreliable on that ground, notwithstanding that the respondent did not give any evidence at all, either on that matter or on any other issue of relevance.

Indeed it was submitted by counsel for the Board that the District Court Judge, if anything, appeared to draw favourable conclusions from the fact that the respondent did not enter the witness box. Speaking for myself I find it difficult, if not impossible, to see how a court could be satisfied, given the criminal record this respondent had, that the applicant was "of good fame and character" without his going into the witness box and subjecting himself to cross-examination.

Without going further into the merits that would be sufficient, in my view, to establish that there was serious error in the reasoning of the District Court Judge such as would lead, if this court had jurisdiction, to setting aside the order.

But for the reasons already given I have, albeit reluctantly, concluded that the legislation prevents there being any appeal to this court. The application for leave to appeal should be dismissed with costs.