Pharmacy Board of Australia v Cindy Maree Strachan [2025] TASCAT 107

Pharmacy Board of Australia v Cindy Maree Strachan [2025] TASCAT 107 | Case summary | Zoe

Cases Cited (3)

The Board submits that the reasoning of the President of the Northern Territory Civil and Administrative Tribunal (NTCAT) in Nursing and Midwifery Board of Australia v Finau [2021] NTCAT 1 (Finau) is sound, and should be adopted by this Tribunal in this case to find that it has jurisdiction to consider the Board's referral.
The Board also referred to a number of cases where responsible Tribunals in other states and territories have dealt with matters referred pursuant to s 193 of the National Law even though the health practitioners in question have departed the jurisdiction.
The Board submits that although decisions made by responsible Tribunals of other states and territories are not binding on this Tribunal, and acknowledges that in part the decisions turn on the rules and procedures of each Tribunal, the cases support the proposition that a responsible Tribunal has jurisdiction to deal with the matter referred to pursuant to s 193 of the National Law, whether or not:
- The respondent is present in the jurisdiction at the commencement of and/or during the proceedings; and
- The respondent is provided with a copy of the application while they are within Australia.

This was a decision of the President of the NTCAT in relation to a proceeding regarding a health practitioner under the National Law where the respondent health practitioner had not been served with an initiating application within Australia. The question was whether the respondent was answerable to NTCAT's jurisdiction.
When the applicant, the Nursing and Midwifery Board, commenced proceedings in the Tribunal, it was aware that the respondent was residing in New Zealand. The Tribunal made orders providing for the applicant to serve the initiating application under the Service and Execution of Process Act 1992 (Commonwealth). The respondent was served by email, and personally served, in accordance with the Tribunal's order. The respondent subsequently contacted the Board's solicitor and indicated he did not wish to participate in the proceedings before the Tribunal.
Bruxner P noted that the Board's submissions emphasised the nature of the proceedings before the Tribunal under the National Law, as being administrative rather than judicial. The Board referred to a decision of the Victorian Court of Appeal, Medical Board of Australia v Kemp [2018] VSCA 168, involving a referral to VCAT under s 193 of the National Law, where the court observed:

In Nursing and Midwifery Board of Australia and Allison [2020] WASAT 136 Pritchard P was dealing with an application for an order dispensing with the requirement to give a copy of an application to the respondent health practitioner. Pritchard P noted that s 45(1)(a) of the State Administrative Tribunal Act 2004 (WA) (SAT Act (WA)) provided that when an application is accepted by the executive officer the applicant is to give a copy of the application to each other party. The respondent practitioner was living overseas with no intention of returning to Australia. The applicant board sought an order dispensing with the requirement of giving a copy of the application to the respondent under s 45(3) of the SAT Act (WA).
In Health Ombudsman and Mekingrailas [2021] QCAT 199 and Medical Board of Australia v Belich [2023] QCAT 475 the Tribunal in both cases was considering whether it ought to make an order exempting the applicant in each case from giving a copy of the referral to the respondent. Section 37(2)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Queensland) (the QCAT Act) was similar in its terms to s 45(1)(a) of the SAT Act (WA), requiring the applicant to give a copy of the application or referral to each party to the proceeding. Similarly also, s 37(4)(a) of the QCAT Act provided the Tribunal with the power to exempt the applicant from that requirement in certain circumstances.
In Osteopathy Board of Australia v Caminiti [2024] ACAT 72 the Australian Capital Territory Civil and Administrative Tribunal (ACAT) was dealing with an application by the applicant Board for orders permitting it to serve its application on the respondent who was residing overseas, by sending it to him by post and email. The Tribunal's decision discloses that rule 134(3) of the (the ACAT Rules) provides that an applicant for disciplinary action must personally serve a sealed copy of the application on each respondent, and Rule 134(4) provides that the application must not be served by post. However, Rules 25(1) and (2) of the rules read together provide that if a document is required to be served in a particular way the Tribunal may order that the document is to be served in another way. The decision also discloses that pursuant to Rule 25(6) of the ACAT Rules the Tribunal may make an order for substituted service even though the person to be served is not in the ACT or Australia or was not in the ACT or Australia when the proceedings started.

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Cases Cited (3)