State Administrative Tribunal (WA)|2019-07-29

The applicant submits that it ought to recover all of the costs incurred in the proceeding given that it has performed its functions in the public interest and it is in the public interest that if the allegations are made out that the regulator will recover costs in respect of the application. The applicant notes that it was wholly successful in the proceeding and therefore costs should follow the event.
The total costs incurred by the applicant in the proceeding was $18,250.88 comprising of $11,927.90 in solicitor's fees and $6,689.98 as disbursements which includes counsel's fees of $6,172.50.

It is important in the public interest that if a regulatory body is successful in bringing professional disciplinary proceedings against a practitioner, that it is able to recover at the very least a significant proportion of the costs incurred in the proceeding. Regulatory bodies undertake a task of utmost significance in ensuring that professional and ethical standards are maintained and met within professions so that the public can have confidence in the quality of the services provided to them. Regulatory bodies could not undertake this important task if there was no prospect of recovering costs from practitioners who have been found to have engaged in unprofessional or unsatisfactory conduct.
Mr Nyoni was found by the Tribunal to have engaged in unprofessional conduct of a most serious kind. He failed to participate at all in the proceeding and put the applicant to the costs of proof. The applicant was wholly successful in all of the contentions made and clearly, in the Tribunal's view, ought to recover costs against Mr Nyoni.

Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) Emson Clever Nyoni shall pay to the Pharmacy Board of Australia its costs fixed in the amount of $13,000 within 28 days of the date of this order.

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

Administrative Tribunal Act 2004

PHARMACY BOARD OF AUSTRALIA and NYONI [2018] WASAT 134 (29 July 2019)

Chen v Health Care Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334

Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545

Khosa v Legal Profession Complaints Committee [2017] WASCA 192

Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S)

Legal Profession Complaints Committee v Detata [2012] WASCA 214

Legal Profession Complaints Committee v Love [2014] WASC 389

Medical Board of Australia and Lal [2019] WASAT 13

Singh v Medical Board of Australia [2019] WASCA 51

Stirling v Legal Services Commissioner [2013] VSCA 37

Veterinary Surgeons' Board of Western Australia and Alexander [2014] WASAT 105 (S)

In the case of a professional disciplinary tribunal, an obvious type of order protective of the public is an order cancelling the registration or recognition of a person as a member of a profession. Such an order removes the right to practise in the profession, thereby protecting the public against a person found unfit to be a practitioner. And, as Evatt [NSW Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183] shows, such an order will be made even though, if punishment of the practitioner were the only consideration, considerations of mercy might lead to a less severe order.

Legal Profession Complaints Committee v Detata [2012] WASCA 2014

Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)

Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)

Paradis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008] WASAT 302

Quinlivan v Legal Profession Complaints Committee [2012] WASCA 263 (S)

Chen v Health Care Complaints Commission

At a glance

Court

Decision date

Source

Judgment (4 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (22)

PHARMACY BOARD OF AUSTRALIA and NYONI [2018] WASAT 134 (29 July 2019)