Pharmacy Board of Australia v Fitzpatrick (No 2)

CITATION:

Pharmacy Board of Australia v Fitzpatrick (No 2) [2012] QCAT 613

PARTIES:	Pharmacy Board of Australia
v
Timothy Fitzpatrick t/as Landsborough Chemist

APPLICATION NUMBER:

OCR003-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Kerrie O'Callaghan, Acting Deputy President
Assisted by:
Karen Allen
Ken MacDougall
Dr Karin Walduck

DELIVERED ON:

29 November 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Mr Fitzpatrick must pay the Board’s costs of and incidental to these proceedings as agreed or assessed on the standard basis against the District Court of Queensland scale.

CATCHWORDS:

HEALTH PRACTITIONER – DISCIPLINARY – PHARMACIST – where Board established its case – where the parties agreed – costs

Queensland Civil and Administrative Tribunal Act 2009, s 32

Pharmacy Board of Australia v Booy [2011] QCAT 522

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

On 31 October 2012 the Tribunal delivered its decision on this disciplinary referral. In its submissions on sanction the Board submitted that Mr Fitzpatrick should pay the costs of and incidental to the proceedings. Mr Fitzpatrick in his submissions on sanction agreed this was appropriate. The Tribunal did not address this in its reasons for decision or final orders made on 31 October 2012.
The Board brought this to the attention of the Tribunal. The failure to address orders was an oversight and the failure to order costs was not a decision that the Board was not entitled to costs, subsequently the Tribunal is addressing the issue in these reasons.
Ordinarily where the Board has established its case it is appropriate that the Tribunal award costs in its favour.[1] As concluded in the reasons given on 31 October 2012 the Board has established its case. Accordingly the Tribunal agrees with the parties' submissions and orders Mr Fitzpatrick pay the Board’s costs of and incidental to these proceedings as agreed or as assessed on the standard basis as against the District Court scale of fees.
[1] Pharmacy Board of Australia v Booy [2011] QCAT 522.

CaseChat Overview and Summary

The Pharmacy Board of Australia brought a disciplinary action against Timothy Fitzpatrick, a pharmacist trading as Landsborough Chemist, before the Queensland Civil and Administrative Tribunal. The dispute pertained to the disciplinary regulation of a health practitioner, specifically a pharmacist, and was heard on the papers, without a formal hearing, under the Queensland Civil and Administrative Tribunal Act 2009. The tribunal, led by Acting Deputy President Kerrie O'Callaghan, issued its decision on 29 November 2012.

The primary legal issue before the tribunal was whether the Board was entitled to an order for costs against Mr Fitzpatrick, given that the tribunal had previously ruled in favour of the Board but had not addressed the issue of costs. The tribunal needed to determine whether it was appropriate to award costs to the Board, as it typically does when it has established its case against a practitioner. The tribunal also had to consider the submissions made by both parties on the matter of costs.

The tribunal found that it was appropriate to award costs to the Board, as it had established its case against Mr Fitzpatrick. This conclusion was in line with the tribunal's previous reasons for decision, where it found the Board's case to be established. The tribunal, therefore, ordered Mr Fitzpatrick to pay the Board’s costs of and incidental to the proceedings as agreed or assessed on the standard basis against the District Court of Queensland scale. This decision was based on the principle that costs are generally awarded to the prevailing party in disciplinary proceedings when the Board has successfully established its case.

In addition to the costs order, the tribunal reiterated that its failure to address the costs issue in its initial decision was an oversight, and not a decision on the merits of the Board's entitlement to costs. The tribunal's final order was that Mr Fitzpatrick must pay the Board’s costs of and incidental to these proceedings as agreed or assessed on the standard basis against the District Court of Queensland scale.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established