Arulogun v Queensland Health [2011] QCAT 573

CITATION: Arulogun v Queensland Health [2011] QCAT 573 PARTIES: Stephen Arulogun (Applicant) v Chief Executive of Queensland Health (Respondent) APPLICATION NUMBER: GAR165-11 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Fleur Kingham, Deputy President DELIVERED ON: 17 November 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The application by the Chief Executive of Queensland Health to dismiss Mr Arulogun’s application is refused. CATCHWORDS: REVIEW – HEALTH – PHARMACIST – Where the Chief Executive, through his delegate, removed a pharmacist’s endorsement to supply certain drugs – where the effect of the decision is to prevent him from working as a pharmacist – where the delegate has not provided a statement of reasons – where there is substantial evidence against the pharmacist – whether the application to review the decision should be dismissed Queensland Civil and Administrative Tribunal Act 2009, ss 20, 21(2)(a), 47(1) General Steel Industries Inc v Commissioner for Railways (NSW) and Ord (1964) 112 CLR 125 applied Walton v Gardiner (1993) 177 CLR 378 applied REASONS FOR DECISION [1] Dr Young, the delegate of the Chief Executive of Queensland Health for this purpose, cancelled Mr Arulogun’s endorsements to obtain, dispense, -- 1 of 4 -- 2 sell, possess or otherwise deal with all and any controlled medicines, restricted medicines and specified poisons (Schedule 2, 3 and 7 poisons). Effectively, this prevents Mr Arulogun from practising as a pharmacist. [2] He applied to review that decision, arguing that the evidence did not support the conclusions reached by Dr Young, nor did they amount to grounds to support her decision. The Chief Executive applied to dismiss the proceedings as misconceived or lacking in substance.1 [3] The Chief Executive has not identified any particular defect in the proceeding or relevant limitation on the Tribunal’s jurisdiction, as might be expected to succeed in an argument that Mr Arulogun’s application is misconceived. [4] Instead, the substance of the submissions relies on the alternative ground that the evidence against Mr Arulogun is so compelling there is no prospect of his application succeeding. In effect, the Chief Executive has asked the Tribunal to make a summary determination on the merits. [5] In order to make a different decision to the one made by Dr Young, it is not necessary for the Tribunal to find any error in her decision. This does not mean Dr Young’s assessment of the evidence, as it then stood, is not relevant on a merits review. To the contrary, the Chief Executive is obliged to assist the Tribunal by providing a written statement of the reasons for the decision.2 It will assist the Tribunal, as well as inform Mr Arulogun, if Dr Young explains the conclusions she drew by reference to the evidence available to her and the process of reasoning she used in reaching the conclusions. [6] Despite the Tribunal’s directions that he do so by 23 September 2011, the Chief Executive has not provided a written statement by Dr Young of her reasons for the decision. He was not relieved of that obligation when the Tribunal made directions about his application to dismiss the proceedings. His representatives have not explained his failure to provide the statement of reasons. [7] At the time the decision was made, Dr Young was provided with substantial evidence against Mr Arulogun, including admissions he made during an interview. After the decision, departmental officers amassed further significant evidence against him. [8] The function of the Tribunal is merits review.3 It must proceed by way of a fresh hearing on the merits. The Tribunal must consider all relevant evidence available at the time of hearing. Unless Mr Arulogun can mount a wide-ranging attack that discredits multiple sources of information, his prospects of succeeding are poor. 1 Queensland Civil and Administrative Tribunal Act 2009, s 47(1). 2 Queensland Civil and Administrative Tribunal Act 2009, s 21(2)(a). 3 Queensland Civil and Administrative Tribunal Act 2009, s 20. -- 2 of 4 -- 3 [9] Nevertheless, the Tribunal may not accept all the evidence relied upon by Dr Young or subsequently obtained against Mr Arulogun. Further the Tribunal might make a different decision than the one made by Dr Young to remove Mr Arulogun’s endorsement for all controlled medicines, restricted medicines and schedule 2, 3 and 7 poisons. Depending on the view the Tribunal takes of the material, it might decide some limited endorsement might be appropriate. [10] There must be something more than limited prospects of success to constitute proceedings that are misconceived or lacking in substance. It must be demonstrably clear that a party has no cause of action.4 They must be clearly seen to be foredoomed to fail.5 [11] It is not appropriate for the Tribunal to make that assessment before Mr Arulogun has had the opportunity to consider the decision maker’s assessment of the original evidence and to respond to the further evidence since obtained. The Tribunal ought not summarily determine the proceedings, until Mr Arulogun’s position on the evidence has been clarified. The application to dismiss the proceedings is, therefore, refused. [12] If the Chief Executive is required to lead all the evidence gathered in these proceedings, this could entail a hearing lasting a number of days. Even if Mr Arulogun’s application fails and the Chief Executive secures an order for costs in his favour, he is unlikely to be able to recover all the costs borne by the department. [13] The matter is listed for a compulsory conference next week. That seems premature given the state of the material. It is imperative that Mr Arulogun clarifies what evidence he disputes and what evidence, if any, he intends to call before an attempt is made to resolve or determine the matter. [14] Dr Young’s reasons must be provided promptly. The Tribunal will regard any further non-compliance with the statutory obligation to provide a statement of reasons most seriously. [15] The Tribunal directs that: 1. The listing for a compulsory conference on 25 November 2011 is cancelled. 2. The Chief Executive must file two (2) copies in the Tribunal and give one (1) copy to Mr Arulogun of: a. The written statement of reasons for the decision; and b. A bundle (indexed and page numbered) of any document in the decision maker’s possession or control that may be relevant to the Tribunal’s review of the decision (the evidence) by 3 December 2011. 4 General Steel Industries Inc v Commissioner for Railways (NSW) and Ord (1964) 112 CLR 125. 5 Walton v Gardiner (1993) 177 CLR 378, 393. -- 3 of 4 -- 4 3. Mr Arulogun must file two (2) copies in the Tribunal and give one (1) copy to the Chief Executive of: a. His response which must state: i. Which aspects of the evidence he admits; ii. Which aspects of the evidence he disputes and why; and b. Any affidavits or statements of evidence on which he intends to rely, including his own by 31 January 2012. 4. The matter is listed for a directions hearing on 24 February 2012. -- 4 of 4 --