Appeal and New Trial - Appeal - General principles - Right of appeal - Nature of right - Appeals in the strict sense and appeals by way of rehearing - Appeals by way of rehearing - When rehearing does not involve hearing de novo - Nature of appeal from Pharmacy Board of Tasmania.

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors [2000] HCA 47; (2000) 203 CLR 194; A & Another v The Law Society of Tasmania [2001] TASSC 55; (2001) 10 Tas R 152; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd & Anor [1976] HCA 62; (1976) 135 CLR 616; Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139, referred to.

Pharmacists Registration Act 2001 (Tas), ss60(1), 61.

Professions and Trades - Medical and related professions - Pharmaceutical Chemists - Discipline and removal from Register - Procedure and other matters - Appeal from Pharmacy Board of Tasmania - Nature of.

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors [2000] HCA 47; (2000) 203 CLR 194; A & Another v The Law Society of Tasmania [2001] TASSC 55; (2001) 10 Tas R 152; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd & Anor [1976] HCA 62; (1976) 135 CLR 616; Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139, referred to.

Pharmacists Registration Act 2001 (Tas), ss60(1), 61.

Judgment Number: [2004] TASSC 32

THOMAS DIXON ADAMSON v THE P****HARMACY BOARD OF TASMANIA

1 The appellant, Thomas Adamson, appeared before the respondent, acting in its capacity as a disciplinary tribunal, to answer a complaint in relation to his practice as a pharmacist. The respondent found the appellant guilty of professional misconduct and made a number of consequential orders. The appellant has appealed to this Court challenging that finding and those orders.

2 The provisions of the Pharmacists Registration Act 2001 ("the Act") referable to appeals are:

"60 (1) A person may appeal to the Supreme Court if the person is aggrieved by a decision of the Board to -

(b) impose a condition on the person's registration under section 27(2), whether or not the condition has been modified under section 29; or

(c) remove the person's name from the register other than under section 38(1)(b)(ii), (iii) or (iv); or

(d) refuse to restore the person's name to the register under section 40; or

(e) suspend the person's registration under section 56; or

(f) refuse to issue the person with a new certificate of registration under section 37(6) or (7); or

(g) take, as a disciplinary tribunal, an action against the person under section 53(1).

(2)The appeal is to be instituted within 30 days after notice of the Board's decision is given to the person.

61 (1) On hearing an appeal against a decision of the Board, the Supreme Court may -

(2) If the Court quashes the decision it may, according to the circumstances of the case -

(a) substitute for the decision it has quashed any decision that the Board would have had jurisdiction to make in those circumstances; or

(b) remit the matter to the Board, with or without directions, for further hearing or consideration or for rehearing or reconsideration.

(3) The Court may make any further order that it considers just in the circumstances of the case and, without limiting the generality of this, may order the Board to take or refrain from taking any action in relation to the appellant."

3 A preliminary issue has been raised as to the nature of the right of appeal conferred by the Act, s60(1)(g). Counsel for the appellant contends that the appeal is a hearing de novo, which involves a fresh hearing and determination of the matter, unfettered by the proceedings before the respondent. Alternatively, counsel for the appellant contends that the appeal is one in which the Court should rely on the evidence before the respondent, together with such additional evidence as it thinks fit to receive and make a determination on the law as it then exists. Counsel for the respondent contends that the appeal is one by way of rehearing which involves this Court in rehearing the issues raised by the appeal as at the date of the hearing of the appeal, relying upon the material that was before the respondent.

4 The nature of the appeal is to be determined by establishing the intention of Parliament from the statutory provisions concerning the constitution, functions, procedures and powers of the respondent, and the words used to create the right of appeal to this Court.

"In every case where the issue is that of the duty and function of an appellate court or tribunal, the only safe starting point is a careful examination of the language and context of the statutory provisions affording the appellate right, together with a consideration of the powers enjoyed by, and duties imposed on, the body to which the appeal lies. (Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors [2000] HCA 47; (2000) 203 CLR 194 per Kirby J at 223 [69].)

6 As observed in A & Another v The Law Society of Tasmania [2001] TASSC 55; (2001) 10 Tas R 152 [8] by Underwood J:

"It is trite law that an appeal is not a common law proceeding. Its existence, nature and scope are all dependent upon the terms of the statute that confers the right of appeal. See Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73 at 108; Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; (1935) 53 CLR 220 at 225. Commonly, an appeal will take one of three forms:

* An appeal stricto sensu in which case appellate jurisdiction is limited to a consideration of whether the order was right, at the time it was made, upon the material before the court or tribunal at first instance. See Ponnamma v Arumogam & Ors [1905] AC 383 at 388.

* An appeal by way of rehearing in which case the appellate court redetermines the issues raised upon the hearing of the appeal as at the date of the rehearing but upon the material before the court or tribunal at first instance, although there is often a discretionary power to receive fresh material.

* An appeal by way of rehearing de novo in which case all of the evidence is heard afresh and the matter is determined by the appellate court unfettered by the proceedings and determination in the court or tribunal at first instance."

Whilst the three most common forms of appeal are those referred to by Underwood J, it must be borne in mind that:

"Appeal is a term loosely employed to denote a number of different litigious processes which have few unifying characteristics. They vary greatly in the extent to which the appellate court may interfere with the result below." (Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 per Glass JA at 297_._)

7 The range and variety of the decisions that may be the subject of an appeal under the Act, s60(1), is such to suggest that generalities may be dangerous. It remains for the appellate court in every case to discharge its functions in a way apt for all of the statutory provisions that are brought into play. This is not to say that the nature of the appeal under the Act, s60(1), will differ according to the nature of the decision under appeal: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors (supra), Kirby J at 223 [70] and Gleeson CJ, Gaudron and Hayne JJ at 204 [18].

8 Pursuant to the Act, s5, the respondent board is comprised of five registered pharmacists nominated by the Minister responsible for the administration of the Act and two non-pharmacists nominated by that Minister to represent the interests of consumers. The functions of the respondent are detailed in the Act, s8, which provides:

(a) to administer the scheme of registration under Part 3;

(b) to supervise the practice of pharmacists in this State;

(c) to investigate complaints and, as necessary, undertake disciplinary action against registered pharmacists;

(e) to monitor the standard and provision of the services that pharmacists provide in this State;

(f) to monitor standards of education and training in pharmacy;

(g) to advise the Minister on matters relating to this Act;

(h) such other functions as are imposed on the Board by this or any other Act or as may be prescribed."

Counsel for the appellant submits that, as the respondent has administrative functions, and there is no requirement for a member of the respondent to be a legal practitioner, it should be concluded that Parliament intended to confer a right to appeal a decision of the respondent by way of a hearing de novo. As to this submission, reliance was placed on the following passage from Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd & Anor [1976] HCA 62; (1976) 135 CLR 616, per Mason J at 621 - 622:

"Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect. Despite some suggestion in argument to the contrary, I do not read Ex parte Australian Sporting Club Ltd.; Re Dash (1947) 47 SR (NSW) 283 as enunciating such an absolute rule. There are, of course, sound reasons for thinking that in many cases an appeal to a court from an administrative authority will necessarily entail a hearing de novo and I exclude for present purposes the case of an appeal to a federal court exercising the judicial power of the Commonwealth under Ch III of the Commonwealth Constitution. The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo.

On the other hand the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed. The authority may be required to determine justiciable issues formulated in advance; to conduct a hearing, at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination. In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance.

But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are too general to be of decisive assistance."

9 Whilst many of the respondent's functions are administrative, it is pertinent that the right of appeal conferred by the Act, s60(1) , is confined to the matters detailed in pars(a) to (g) of that section. I turn to those matters.

(a) A decision to refuse to register the person. Should the respondent so decide, s27(6) obliges it to give the person the reasons for its refusal and notice of the right to appeal.

(b) A decision to impose a condition on the person's registration under s27(2), whether or not the condition has been modified under s29. In that event, s27(3) obliges the respondent to give the person notice of the condition and notice of the person's right of review and appeal in relation to the condition.

(c) A decision to remove the person's name from the register other than under s38(1)(b)(ii), (iii) or (iv). For relevant purposes, before doing so, the respondent must afford the person a reasonable opportunity to be heard,; and the respondent must specify the reasons for the removal and give notice of the right to appeal; s38(2) and (3).

(d) A decision to refuse to restore the person's name to the register under s40. In that event, the respondent must provide reasons for its refusal and notice of the right to appeal; s40(4).

(e) A decision to suspend the person's registration under s56. Before doing so, the respondent may afford the person an opportunity to be heard and it must provide reasons for the suspension and give notice of the right to appeal; s56(6) and (7).

(f) A decision to refuse to issue the person with a new certificate of registration under s37(6) or (7). In that event, the respondent must give the person notice of the reasons for the refusal and the right to appeal; ss37(9) and 38(4).

(g) A decision to take, as a disciplinary tribunal, an action against the person under s53(1). These are actions that can be taken following a disciplinary hearing and include taking away or suspending a person's registration as a pharmacist and the imposition of a fine. The provisions of the Act in relation to disciplinary hearings:

(i) envisage that the defendant will be served with a summons containing particulars of the matter of complaint; ss44(1)(c) and 51(3) and (4);

(ii) give the disciplinary tribunal the power to summon any person before it to give evidence, require any person appearing before it to produce any document, and require any person appearing before it to give evidence on oath or affirmation; Sch3, s2(1);

(iii) provide for a hearing before the disciplinary tribunal during which evidence is taken, oral submissions made, and findings announced, and which is conducted in public unless otherwise ordered; Sch3, ss1 and 5;

(iv) provide that the defendant is entitled to attend the hearing and be represented at the hearing by a legal practitioner; Sch3, s6(2);

(v) require the disciplinary tribunal to observe the rules of natural justice; Sch3, s3(d);

(vi) require the disciplinary tribunal to prepare a written report setting out its findings and reasons; Sch3, s7.

10 It can be seen from the above that the right of appeal conferred by s60(1) is in broad terms confined to decisions of the respondent on registering, deregistering, suspending and disciplining pharmacists; and that as to these decisions, with the exception of the imposition of a condition on a pharmacist's registration, the respondent is required to provide reasons. Decisions of this nature are, in my view, eminently suited to being dealt with on appeal by way of rehearing based on the material before the respondent. Nothing in the Act suggests to me that the appeal contemplated by s60(1) is an appeal by way of a hearing de novo.

11 Counsel for the appellant submits that the Act, s61(3), which subsection is set out at the end of par3 above, indicates that an appeal by way of a hearing de novo is contemplated. I do not agree. That subsection is consistent with the appeal being by way of rehearing. A broadly similar provision in the Workplace Relations Act 1996 (Cth), s45(7), did not influence the members of the High Court who decided Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors (supra) against concluding that an appeal pursuant to that section was by way of rehearing.

12 A further reason for concluding that the appeal is not by way of a hearing de novo is the provisions of the Supreme Court Civil Procedure Act 1932 and the Supreme Court Rules 2000 which relate to appeals from statutory tribunals; accepting that those provisions apply to the subject appeal. Counsel for the appellant submits that they do not.

13 The Supreme Court Rules, Div4, Pt27, which is comprised of rr701 to 711, relates to appeals from statutory tribunals. Rule 701 provides that:

'tribunal' means any statutory tribunal or statutory office, other than a court, established or constituted by or under any Act."

The respondent - a statutory entity, the Act, s6, acting as a disciplinary tribunal, the Act, s52(1) - comes within the definition of tribunal in r701.

"This Division applies to any appeal or case stated from a tribunal which is subject to the provisions of the Act."

(The reference in the rule to 'the Act' is a reference to the Supreme Court Civil Procedure Act, see r3.)

In a written submission provided to the Court, counsel for the appellant submits that in the absence of a provision of the Supreme Court Civil Procedure Act that makes the respondent either generally or specifically "a tribunal which is subject to" its provisions, the rules relating to appeals from statutory tribunals contained in the Supreme Court Rules do not apply to appeals under the Pharmacists Registration Act 2001. I am unable to follow this submission. The Supreme Court Civil Procedure Act, s6(3), relevantly provides that:

"(3) Any jurisdiction, whether original or appellate, which is conferred on or vested in the Court, ... by, under, or by virtue of any statute passed after the commencement of this Act, shall (except as otherwise provided by any such statute) be exercised (so far as regards procedure and practice) in the manner provided by this Act and the Rules of Court; ... ."

The Act, s60(1), provides that any person aggrieved by a decision of the respondent "may appeal to the Supreme Court". It expressly confers appellate jurisdiction over the specified decisions of the respondent on the Supreme Court and accordingly, pursuant to the Supreme Court Civil Procedure Act, s6(3), that jurisdiction "shall be exercised (so far as regards procedure and practice) in the manner provided by this Act". An appeal from the respondent is hence expressly subject to the provisions of the Supreme Court Civil Procedure Act, and is an appeal governed by the applicable Supreme Court Rules pursuant to r702.

15 The impact of the relevant provisions of the Supreme Court Rules is dealt with in Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139. In that case, Blow J considered the right of appeal conferred by the Medical Practitioners Registration Act 1996, s61(1)(h), which provides that:

"A person may appeal to the Supreme Court against any of the following:

16 The parties before Blow J were agreed that the nature of the appeal under consideration was not an appeal by way of hearing de novo but an appeal by way of rehearing, relying upon the material that was before the tribunal. As to the Court's powers in relation to appeals from statutory tribunals, Blow J said:

"5 The Supreme Court Rules 2000, rr701 - 711, apply to appeals from statutory tribunals. None of those rules states or indicates whether such an appeal should be treated as an appeal in the strict sense, an appeal by way of rehearing, or an appeal by way of hearing de novo . However, r704 makes rr689 - 694 applicable as if the tribunal appealed from were an inferior court, its proceedings were a trial, and its determination were a judgment. Rule 689 requires the Registrar, upon the filing of a notice of appeal, to obtain from the inferior court any pleadings, a transcript or the judge's notes, and any affidavit or documentary evidence filed in the inferior court. Rule 693 contains the following provisions:

'693 - (1) The Court or a judge hearing an appeal has all the powers conferred on the Full Court by rule 672.

(2) If any document required to be delivered under rule 689 has not been delivered, the Court or a judge may -

(a) require a party to supply a copy of any affidavit or other documentary evidence filed in the inferior court; or

(b) order a witness examined at the trial in the inferior court to be produced and examined on the hearing of the appeal.

(3) The Court or judge has the power to draw any inference of fact that might have been drawn by the inferior court.

(4) Any new trial ordered by the Court or judge may be ordered to be heard before a judge of the Court or in the inferior court.

(6) An appeal is not to succeed merely on the ground of misdirection or the improper reception or rejection of evidence unless some substantial wrong or miscarriage has been occasioned by the misdirection, reception or rejection.

(7) The Court or judge may make any order with respect to an appeal from an inferior court which may be just for the purpose of ensuring the determination of the merits of the real question in controversy between the parties.

(8) Subject to section 47(1) of the Act, the Court or judge, on hearing an appeal from an inferior court, may -

(a) give or make any judgment the Court or judge considers should have been given or made by the inferior court; and

(b) set aside, reverse, alter or vary any judgment given or made by the inferior court; and

(c) make any other order the Court or judge considers appropriate.'

6 It is common ground that these provisions compel the conclusion that an appeal pursuant to s61 is an appeal by way of rehearing. ... "

17 For my part, the view that an appeal from a statutory tribunal is not by way of a hearing de novo, but is by way of rehearing, is reinforced by:

* r709(2) and (3) which provide that any evidence given before a tribunal may be brought before the Court by affidavit or, if so directed, by oral evidence; and that the Court may ascertain the evidence given, and the proceedings had, before the tribunal from any material, including counsel's notes, and that material may be used to determine the appeal;

* r705 which requires the appellant to file a notice of appeal stating what part of the determination is complained of and stating the grounds of appeal; and

* r693(6) which provides that an appeal is not to succeed merely on the ground of misdirection or the improper receipt or rejection of evidence unless some substantial wrong or miscarriage has thereby been occasioned.

18 These provisions show that an appeal to which they relate is not intended to involve a fresh hearing and a determination of the matter, unfettered by the proceeding in the tribunal appealed from. The attention the provisions give to the means of placing before the Court the evidence given in the proceedings before the tribunal, and the requirement they impose on stating grounds of appeal, show that an appellant must demonstrate error on the part of the tribunal on the basis of the material that was before the tribunal.

19 In my view, the applicable provisions of the Supreme Court Rules compel the conclusion that an appeal pursuant to the Act, s60(1), is an appeal by way of rehearing based on the material before the respondent.

20 The matter in issue in Fernando was whether, upon the hearing of the appeal, the Court had power to receive evidence which was not before the tribunal. Blow J noted that there was no provision in the Medical Practitioners Registration Act, the Supreme Court Civil Procedure Act or the Supreme Court Rules that expressly empowered the Court to receive additional evidence upon the hearing of the appeal. After canvassing the differing views that had been expressed by judges of this Court as to the existence of a power to receive additional evidence upon the hearing of similar statutory appeals, Blow J concluded, at pars14 and 15, that additional evidence can and should be received in appropriate situations.

21 There is no provision in the legislation which bears on an appeal pursuant to the Act, s60(1), that expressly empowers the Court to receive additional evidence or implies that the Court has no such power. In these circumstances, consistent with the conclusion of Blow J in Fernando, I conclude that evidence that was not before the respondent may be received in appropriate situations. My expectation is that such situations will be rare indeed. Ordinarily, a court entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. This is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors (supra), Gleeson CJ, Gaudron and Hayne JJ, 203 [14], see also Kirby J, 224 [75]. Error is not demonstrated by putting before the appellate court additional evidence which shows that a primary decision-maker made a decision in ignorance of relevant evidence which was not before that decision-maker; Cleaver v Powell [1979] Tas SR 134, Green v Fletcher [1988] TASSC 4; [1988] Tas R 59 and Webster v White A58/1991.

22 My determination is that the subject appeal is a rehearing of the issues raised by the appeal at the date of the hearing of the appeal, relying upon the material that was before the respondent. As no application has been made for the receipt of any additional evidence, I am not in a position to say whether any additional evidence may be received.