QCAT says joint submissions still possible in disciplinary proceedings

Sep 9

Written by: newseditor
Friday, August 28, 2015  RssIcon

A recent decision by the Queensland Civil & Administrative Tribunal (QCAT) has confirmed that it remains possible for the parties involved in disciplinary proceedings to make joint submissions on the final orders to be made in relation to sanction.1

The longstanding practice of parties making joint submissions to a court or tribunal seeking an agreed penalty has been in doubt, following the Full Federal Court decision in Director Fair Work Building Industry Inspectorate v CFMEU, in which the Court ruled that joint submissions on penalties were inadmissible. The Full Federal Court's decision is proving highly contentious, as it found that criminal and civil matters should not be treated differently.

CFMEU has been appealed to the High Court and is scheduled to be heard in October. In the interim, however, the QCAT decision has clarified that CFMEU has not altered how health practitioner disciplinary proceedings are determined before QCAT.

The matter before QCAT involved the conduct of a pharmacist referred by the Pharmacy Board of Australia for disciplinary action. On the basis of extensive admissions made by the pharmacist, Rimal Jattan, and consistent with accepted case law in this area, the Board and Mr Jattan made joint submissions to QCAT about appropriate orders on sanction.

Following the CFMEU decision, QCAT needed to determine whether it was bound by CFMEU and could no longer accept joint submissions on sanction. In considering its position, QCAT heard submissions from the parties and then analysed the regulatory regime applicable to health practitioners. QCAT concluded that it was able to distinguish CFMEU because the Board has a positive obligation to form an opinion on sanction when referring a matter for disciplinary action. As a result of the analysis undertaken, QCAT decided CFMEU did not apply and that it could accept the Board and Mr Jattan's joint submission on the final orders to be made.

Partner in Lander & Rogers' Dispute Resolution practice, Andrew Forbes, said, "This is great outcome for both health practitioner regulators and health practitioners in Queensland, as it gives them certainty that, where consensus has been reached, the Tribunal is in a position to accept the parties' joint submissions on the appropriate disciplinary action.

"If the High Court confirms the approach in CFMEU is correct and that it extends to all regulators, QCAT may again have to revisit this issue."

Click here for a more detailed summary of the Jattan decision.

1 Pharmacy Board of Australia v Rimal Jattan [2015] QCAT 294.

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