Health Care Complaints Commission v Beck [1999] NSWCA 236

New South Wales Court of Appeal CITATION : Health Care Complaints Commission v Beck [1999] NSWCA 236 FILE NUMBER(S) : CA 40789/98 HEARING DATE(S) : 15/04/99 JUDGMENT DATE : 15 July 1999

PARTIES : Health Care Complaints Commission v Harry Herbert Beck JUDGMENT OF : Sheller JA at 1; Stein JA at 2; Fitzgerald JA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 8715/97 LOWER COURT JUDICIAL OFFICER : Solomon DCJ

COUNSEL : M J Joseph SC (Appellant) A C Bennett SC/M G Lynch (Respondent) SOLICITORS : D M Swain (Appellant) Ebsworth & Ebsworth (Respondent) CATCHWORDS : Certiorari and mandamus; error of law; failure to give adequate reasons; failure to accord procedural fairness; professional misconduct of pharmacist; weight to be accorded to the decision of the Pharmacy Board by District Court; nature of appeal to District Court DECISION : Appeal allowed.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40789/98 DC 8715/97 SHELLER JA STEIN JA FITZGERALD JA

Thursday, 15 July 1999

HEALTH CARE COMPLAINTS COMMISSION v Harry Herbert BECK

JUDGMENT

1 SHELLER JA: I agree with Fitzgerald JA. 2 STEIN JA: I agree with Fitzgerald JA. 3 FITZGERALD JA: The Health Care Complaints Commission has applied to this Court under s69 of the Supreme Court Act 1970 for an order quashing orders made by the District Court on an appeal under s22 of the Pharmacy Act 1964 and an order that the District Court determine that appeal according to law. 4 The appeal to the District Court was brought from a decision of the Pharmacy Board on a complaint made by the Commission against Harry Herbert Beck. The Board's decision, in which the complaint is recorded, is annexure 1 to these reasons. The District Court allowed the appeal, set aside the Board's order that Beck's name be removed from the Register of Pharmacists for NSW, and instead suspended him for three months from 1 May 1998, fined him $5000, and ordered him to pay the Commission's costs. 5 The District Court appeal was "in the nature of a new hearing at which new evidence may be given", Pharmacy Act 1964, subs22(2). and Beck gave additional evidence and called witnesses. In addition, the evidence before the Board and its decision were tendered by consent in the District Court, initially by Beck and later, at the Judge's insistence, by the Commission. 6 Further, admissions were made to the District Court by Beck by his counsel. Those admissions included a matter which Beck had denied on oath before the Board. On that occasion, Beck admitted complaint 1, complaint 2 other than particulars 2,6 and 23 but including the allegation that he had been guilty of professional misconduct, and the particulars of complaint 3 but not the allegation that he is not of good character. In the District Court, Beck made the same admissions, together with admissions of particulars 2 and 6 of complaint 2. 7 Beck's admission of particulars 2 and 6 of complaint 2 implicitly accepted that he had had knowledge of certain matters at the times material to the allegations which were the subject of those particulars contrary to his sworn evidence before the Board. Beck did not give evidence in the District Court that his material evidence to the Board had been mistaken, e.g., because he had on that occasion forgotten what he had known at the relevant times. The Commission argued in this Court that, although not included in the particulars of complaint 3, the District Court should have held that Beck's material evidence to the Board was false, and taken those falsehoods into account in considering complaint 3, which alleged that Beck is not of good character. Whether or not that is so, Smith v NSW Bar Association (No.2) 91992) 176 CLR 256; McBride v Walton (unreported), NSWCA, 15 July 1994; Uranerz (Aust) Ltd v Hale (1980) 30 ALR 193. Beck's change of position, and the absence of any explanation for that course, was plainly relevant to the proper assessment of the credibility and reliability of his evidence. 8 It is possible to summarise the District Court's reasons for judgment briefly. 9 Complaint 2, particular 23(a), (b) and (c)