Health Care Complaints Commission v Attia

Regulation of therapeutic goods in NSW

1. Viagra® is a "restricted substance" for the purpose of the Poisons and Therapeutic Goods Act 1966 (NSW). Wholesale supply of a "restricted substance" may be made only by persons licensed or authorised to do so under the Poisons and Therapeutic Goods Regulation. It is an offence for a person who supplies by wholesale any restricted substance for therapeutic use, except under and in accordance with the conditions of their licence.
2. At all relevant times Hillmear was licenced under the Poisons and Therapeutic Goods Regulation to supply restricted substances by wholesale for therapeutic purposes. One of the conditions of its licence was that restricted substances could only be obtained from the holder of a licence or authority issued under a Commonwealth or State law.
3. The Therapeutic Goods Administration (TGA) is part of the Commonwealth Department of Health and is responsible for, among other things, regulating the supply of therapeutic goods in Australia.

Background to Complaints made by Commission about Mr Attia

1. On 11 June 2010, after having been notified by Pfizer that the tablets reported by Sydney Children's Hospital were not genuine, Symbion issued a voluntary recall of all Viagra® it had distributed between 12 March 2010 and 9 June 2010. During this period, Wholesaler XXX sold over 5,000 units of Viagra® to four hospitals and 264 retail premises.
2. On 15 June 2010, the TGA commenced an investigation into the supply of counterfeit Viagra® . The following day, TGA officers, Brett Irwin and John Coloe, interviewed Mr Attia at his offices in Glendenning, NSW. In a statement dated 17 April 2012, Mr Coloe wrote that during that interview Mr Attia stated he had purchased Viagra® from a "travelling agent he had very limited dealings with" and gave the following details of the purchase: 1. 55 units of Viagra® (100mg x 4) on 3 March 2010, for the sum of $2,985.71, and; 2. 1,000 units of Viagra® (100mg x 4) and a shipment of Pantene shampoo also in early March 2010, for a total cost of $83,000.00.
3. During that interview, Mr Attia gave investigators a copy of an invoice purportedly relating to the first purchase of Viagra® (the first invoice). That invoice was stated to be issued by Tamer Distributors Pty Limited to Hillmear Pty Limited. It bore the date, 3 March 2010. At the bottom of the invoice, written in hand, was the name "Michael", a phone number and "cheque 1612".
4. Mr Attia told the investigators that the paperwork for the second purchase was not on the premises but gave an undertaking to provide it as soon as possible.
5. Following that interview, TGA investigators discovered that Tamer Distributors was a non-existent entity and that the mobile phone number written on the bottom of the first invoice had expired in February 2010.
6. On 18 June 2010, the TGA sent an email to Mr Attia requesting further information. On 21 June 2010, Mr Attia emailed the TGA advising that the sum relating to the first invoice had been paid into an account belonging to CD3 Investments. He wrote that "he had no idea about the number plates" of Michael's van or where he operated from.
7. On 24 June 2010, Mr Attia contacted Mr Coloe and gave him the phone number of a person "Sanjay…who worked with Michael". During this conversation, Mr Attia informed Mr Coloe that he had located the invoice relating to the second purchase (the second invoice). That invoice was stated to have been issued by Tamer Distributors to Hillmear for 1,000 units of Viagra® (100mg x 4) at a cost of $57,000.00 and Pantene Shampoo (4,834 units) at a cost of $26,538.66; a total cost $83,538.66.
8. According to Mr Coloe, during that conversation Mr Attia advised Mr Coloe that Sanjay had instructed him to pay for the second purchase by money transfer to a nominated Commonwealth Bank account which Mr Attia said he understood to belong to CD3 Investments. TGA enquiries revealed that CD3 Investments was a non-existent entity.
9. On 1 July 2010, the TGA obtained a search warrant and searched the business premises used by Mr Rai.
10. It was not until April 2011, after obtaining Hillmear's bank records, that the TGA discovered that cheque 1612 had been paid into the bank account of one of Mr Attia's employees, pharmacist, Mr Jamil El-Khoury.

Investigation by Pfizer

1. Pfizer concurrently conducted its own investigation into the supply of counterfeit Viagra®. A Pfizer investigator interviewed Mr Attia on 23 June 2010. In a summary of that interview the Pfizer investigator wrote: 1. Mr Attia admitted to selling the following quantities of Viagra® to Wholesaler XXX:

• 288 units on 12 March 2010;
• 288 units on 29 March 2010; and
• 200 units on 31 May 2010. 1. Mr Attia said he purchased 1,000 units of Viagra® on 9 March 2010 from "Michael" who works for Tamer Distributors Pty Ltd. 2. At the interview, Mr Attia produced two invoices said to have been provided by Michael. [The invoices corresponded to those provided to TGA investigators on 16 June 2010 (the first invoice) and 24 June 2010 (the second invoice)]. 3. Mr Attia stated he did not pay for the Viagra® by cheque but by bank transfer to CB3 Investments. The investigator noted that Mr Attia could not explain why the words "paid by cheque 1612" appeared at the bottom of the first invoice with a signature resembling the name Michael (the first invoice). 4. After being asked about that invoice, Mr Attia mentioned the name of a second person involved with Tamer Distributors, known to him as "Saj" or "Sarj". He left the room and returned with Saj's number on a post-it note. 5. Mr Attia maintained he dealt with Michael and Saj in buying the Viagra® and did not know that the Viagra® was counterfeit. 6. Mr Attia was emphatic he "was not in any way suspicious of any part of the purchase of Viagra® ". 7. Mr Attia said he had not seen Michael since 3 or 9 March and spoke to Saj around 10 June 2010.

1. Under the heading "Interview inconsistency/contradictions", the Pfizer interviewer wrote that Mr Attia "was guarded and evasive with his responses". The investigator wrote that despite initially agreeing to do so, he refused to provide copies of the invoices and only permitted him to view the invoices. In addition, Mr Attia declined his request to provide a printout of his bank transactions for May 2010.
2. The investigator recorded that the two invoices provided by Mr Attia were "completely different": the second invoice was computer generated on A4 paper, the other was handwritten on "a manual invoice of the type that could be purchased at a newsagency".

Statement prepared by Mr Attia 7 July 2010

1. In a statement prepared at the request of the TGA dated 7 July 2010, Mr Attia wrote that in late February 2010 Mr Rai came to his business premises and showed him a sample of Viagra® which he guaranteed was "the genuine article". Mr Attia claimed that he asked Mr Rai if it was "the Australian product etc and it all checked out". He wrote that while his business stocked Viagra® at various times, he did not have any stock at the time to compare it with. Mr Attia wrote that although in the past Mr Rai had shown him pharmaceutical products, such as Panadol and Nurofen, he had never purchased such goods from him.
2. Mr Attia wrote that when he became aware there were problems with Viagra® he rang Mr Rai and was assured that the product was genuine: "he had sold it all over the country and had no complaints". In addition, Mr Rai stated he had some new batches coming on line which he could supply.
3. Mr Attia wrote that "the next thing" he had a call from Wholesaler XXX and he was interviewed by the TGA. He wrote he had not spoken to Mr Rai since that time.
4. Mr Attia stated that when first approached by Mr Rai, he was interested in the deal because he would normally have to pay between $60 and $63 for a unit of Viagra® (a blister pack of four tablets) and Mr Rai was offering it at $54.27.
5. He wrote that when Mr Rai came to his premises to pick up the sample on 3 March 2010, he purchased 55 units of Viagra® for $2,985.21 and paid by cheque to either CB3 Investments or Tamer Distributors, "whichever Mr Rai asked for". He stated the cheque would have been written out by "the business accountant". Mr Attia wrote that on 3 March 2010, Mr Rai only had 55 units of Viagra® available and he agreed to buy another 1000 units together with some Pantene shampoo. He wrote that Mr Rai dropped off the second order on 9 March and "I don't think I ever saw him on that day". He wrote that on the same day he arranged for a bank transfer of $83,583.50 being for the purchase price of the Viagra® and the shampoo.
6. Mr Attia claimed that on 10 June 2010 he was contacted by Symbion and informed of the report made by the Sydney Children's Hospital pharmacist. He wrote he has since been made aware that one of the pharmacists employed in a Mount Druitt pharmacy had returned two units of Viagra® to Pfizer because of problems.

Statement prepared by Mr Attia 4 April 2012

1. In a statement prepared at the request of the TGA dated 4 April 2012 (the second statement), Mr Attia repeated the claim made in his original statement that he purchased 55 units and a further 1000 units of Viagra® from Mr Rai on 3 and 9 March 2010, respectively.
2. In the second statement, Mr Attia wrote that these "are the only occasions I have purchased Viagra® and distributed Viagra® ". He wrote he had never purchased or wholesaled Viagra® prior to these occasions.
3. In a letter addressed to the Commission dated 5 June 2015, Mr Attia wrote that the second statement contained a number of errors, including the statement "[3 March and 9 March 2010] are the only occasions I have purchased Viagra® and distributed Viagra®". He said he had intended to convey the meaning that these were the only times he had purchased Viagra® from Mr Rai. He explained that the statement was taken by Mr Coloe and he did not read it carefully before signing.

Commission interviews Mr Attia

1. HCCC investigators interviewed Mr Attia on 3 February 2015. In that interview Mr Attia stated:

• He first came to know Sanjay Rai in 2010 and he supplied "general products": confectionary, coffee and the like.
• Prior to being offered Viagra® in early 2010 he only purchased "general products" and over the counter medication such as Panadol from Mr Rai. "As far as we knew [Mr Rai] dealt in sort of oversupply and end lines and that type of nature".
• He could not recall having purchased scheduled medication from Mr Rai before March 2010.
• Mr Rai "left a sample of Viagra®, one or two with us." He was not "100% sure" whether he was there when Mr Rai dropped off the sample.
• He did not test the sample of Viagra® provided by Mr Rai but did check its expiry date, batch number "and all that". The sample "looked exactly like the normal Viagra® . The tablets were stamped the back of it I think, I can even remember the Pfizer symbol on the pack…the only thing that was different was price."
• He did not contact Pfizer to confirm the authenticity of the Viagra® : "whether we purchase direct from the manufacturer or another wholesaler that's not our normal process". He claimed "I wasn't even aware [there was] counterfeit medication on the market".
• Mr Rai said to him, "I've got this shipment of Viagra® and it was a lot cheaper than going direct to Pfizer." Mr Attia stated that this was not uncommon and he had come across discounted scheduled medication from other sources.
• When he purchased the subject Viagra® , other pharmacy chains, "I can't remember who exactly," were selling the Viagra® at cost or less than cost.
• Prior to purchasing the subject Viagra® , Mr Rai had offered "various products, scheduled and unscheduled." When asked about the scheduled products offered by Mr Rai, Mr Attia stated, "Like cold and flu products … Panadol, Nurofen, Nicabate, schedule, unscheduled… like [Nicabate] S2s and S3s". He said it was on this basis he concluded that Mr Rai, "must have been licensed to deal in Viagra® ".
• Mr Attia said he probably dealt with half a dozen licensed wholesalers. None operated like Mr Rai. They would send a product list "not come and knock on the door like Mr Rai". Mr Rai always travelled in a van with stock in it. Mr Rai did not have "a product list or anything".
• Previously he had purchased Viagra® from licensed wholesaler, Independent Pharmacy Services (IPS) and the reason he changed from IPS to Mr Rai was price. When taken to the apparent discrepancy between that claim and that made in the second statement that Viagra® was not a product he dealt in, he stated he would obtain it on request from customers - "it was not a continuous supply".
• At no time was he aware that Mr Rai was not a licenced wholesaler.

1. In answer to questions about the price of the subject Viagra® , Mr Attia agreed that he told the TGA investigators that he purchased the Viagra® from Mr Rai at a price of $54.27 for one lot and $57.00 for the other. He agreed that price was lower than what Pfizer usually charged, then $60 to $63. He stated that in wholesaling terms a price difference of $54.00, $57.00 as compared to $60 to $63, was "huge".
2. In answer to a question as to why he supplied Viagra® to Wholesaler XXX at a lower price than he paid Mr Rai, Mr Attia stated, "It's not an uncommon thing … a loss leader - part of an ongoing relationship."
3. When asked about the discrepancy between Mr Rai's bank records which revealed a deposit of $83,583.50 made on 9 March 2010, and the total purchase price recorded on the second invoice of $85,538, Mr Attia said this was the first time he noticed the discrepancy and could not offer an explanation.
4. In the course of the interview, Mr Attia was questioned for the first time about a deposit of $86,362.50 made by Hillmear Trading on 7 June 2010 into Mr Rai's account. He explained it was probably for "another buy of Viagra® ". He stated, however, that as soon as he was notified on 10 June 2010 of the problem, he told Mr Rai that he "did not want anything further to do with this counterfeit product". He denied, as claimed by Mr Rai, receiving a further supply of Viagra® in May 2010. He claimed he told Mr Rai, "I don't want any of that product and asked for a refund." He stated he thought that he did receive a refund.
5. When asked about the reference on the first invoice to payment being made by cheque, Mr Attia said he could no longer recall how the payment was made. When taken to the evidence that cheque no 1612 was paid into the account of one of his employees, Mr Attia stated he could not offer an explanation. Later in the interview he suggested that he may have paid for the first invoice in cash, but "to reconcile our books, we have written a cheque 1612, with this amount". He could not offer an explanation for the amount said to be for the first purchase corresponding exactly to the amount of the cheque paid to Mr El-Khoury for wages.

Mr Attia's 26 May 2016 statement

1. In a statement dated 26 May 2016, prepared for these proceedings, Mr Attia repeated the claim made in his first statement that he was confident that on 3 March 2010 he purchased "50 to 60 units" of Viagra® from Mr Rai, although not the exact figure.
2. He said when he was contacted by the TGA and Pfizer in June 2010, he realised he did not have a tax invoice for the 3 June 2010 purchase and asked Mr Rai to raise an invoice. Mr Attia wrote that he was concerned the cash payment might be regarded as "inappropriate" and for that reason asked Mr Rai to raise an invoice for the first invoice purchase. He conceded that he had he asked Mr Rai to write on the invoice the cheque number corresponding to a cheque issued to one of his employees. He stated the amount of that cheque, $2985.20, "approximated the cash amount" he gave to Mr Rai on 3 March 2010.

Evidence given by Mr Attia in NCAT proceedings

1. In cross-examination, Mr Attia claimed that when he was first interviewed by the TGA he was "in a state of shock" and this was the reason he did not give Mr Rai's name to investigators until 24 June 2010. He admitted that Mr Rai's phone number was stored on his mobile phone. He claimed that Mr Rai had people working for him and conceded he had never met "Michael". He later said he had seen Mr Rai with another person who could have been Michael.
2. According to Mr Attia, Mr Rai did business in cash and sometimes by cheque. He denied paying for the first transaction in cash because he wanted to hide it and claimed that a cash transaction would be recorded in system as a cash transfer. He said if he had sought to conceal the transaction he would not have recorded it as a point of sale. He said the reason he made the untruthful claim of having paid for the first purchase by cheque was because he was concerned "about the transactional aspects of the deal".
3. He agreed that he asked Mr Rai to prepare the first invoice after he was contacted by Wholesaler XXX and had instructed Mr Rai to include on it the reference to cheque 1612. He denied knowing that neither Tamer Distributors nor CD3 Investments existed.
4. Mr Attia denied lying to TGA investigators on 15 June 2010 when he said that the second invoice was not on the premises. He stated he could not recall when he found the second invoice and denied telling Mr Rai what to write on that invoice. When asked about the reason for the discrepancy between the amount recorded on that invoice and the amount deposited, respectively $85,538 and $83,583.50, he said it was because the invoice had not been received when the payment was made. He agreed that when he was interviewed by the HCCC he said he could not explain the discrepancy.
5. Mr Attia claimed that in wholesaling terms, the amount of Viagra® he purchased from Mr Rai was not large. He did not agree with the description of the price offered by Mr Rai as "a very low price"; he described it as "slightly lower" [than the market price]. He agreed with the proposition that it was unusual for a wholesaler to give discounts on prescribed medication. He admitted that when he purchased the Viagra® from Mr Rai he knew that there was only one manufacturer of Viagra® in Australia.
6. In January 2011, Mr Attai provided the Chief Pharmacist with two tables purporting to list the dates and amounts of Viagra® received and distributed by Hillmear during the period 1 January 2009 and 14 December 2010, and the names of suppliers and customers. The table shows that between 3 March 2010 and 15 June 2010, Hillmear supplied just over 1200 units of Viagra® to Wholesaler XXX and various Shopsmart pharmacies, and Hillmear received from Tamer, 1000 and 55 units of Viagra® on 9 March 2010 and 3 August 2010, respectively. When asked to explain the apparent discrepancy between the record of 1055 units of Viagra® being received and just over 1200 units being distributed by Hillmear, Mr Attia claimed for the first time that during this period he had also purchased Viagra® from IPS. There is no record of Hillmear receiving Viagra® from IPS in that period in the table. The table records Hillmear receiving from IPS, 450 units on 1 January 2010 and 200 units on 15 June 2010.
7. When questioned about the entry for 55 units of Viagra® received from Tamer on 3 August 2010, Mr Attia stated the practice of Hillmear when entering the transaction on the system, was to record the date that the invoice, not the product, is received. He also repeated the claim that he made to HCCC investigators in 2015 that he thought the entry for 3 August 2010 was probably a mistake made by the warehouse manager who prepared the table.
8. When asked why he had not disclosed to the TGA the $86,000 paid to Mr Rai on 10 June 2010, he said he had never been asked about that payment or "any further transaction that was not completed". He strenuously denied receiving any Viagra® from Mr Rai after 9 March 2010. He claimed that Mr Rai had not repaid him for that proposed transaction and said he wanted nothing more to do with him.

Complaints by customers

1. Records produced to the Commission by Pfizer reveal that between 5 May 2010 and 3 June 2010, pharmacists employed at Shopsmart pharmacies, which were owned by Mr Attia, received three complaints from customers about Viagra®. The pharmacists forwarded each of the complaints to Pfizer.
2. On 5 May 2010 and 3 June 2010, Mr El-Khoury, who it will be recalled is the pharmacist employed by Mr Attia and who was the recipient of cheque 1612, notified Pfizer of two complaints received from customers. The first complaint was made by a "regular user" of Viagra® who claimed the tablets "did not work" and, in addition that the foil packaging was different and the tablets a darker shade of blue than usual. The second complaint involved the return of a full box of Viagra® by a customer who reported that the tablets were broken and their blister packaging appeared to be heat affected.
3. On 10 May 2010, Ms Reem Jan, then the manager of Mr Attia's Shopsmart Pharmacy at Mt Druitt, reported to Pfizer that a customer complained that the packaging of the Viagra® which he had purchased appeared to have changed and, when cut in half, the enclosed tablets crumbled. In these proceedings, Ms Jan testified that she notified Mr Attia of this report. On her account, complaints of this type were not uncommon and her practice was to immediately forward the complaint to the manufacturer.
4. In a letter to the Chief Pharmacist, Pharmaceutical Services Unit, NSW Ministry of Health, dated 28 February 2012, Mr Attia wrote that the subject Viagra® "was a brilliant counterfeit" and as soon as retail customers complained about the product he logged such complaints with Pfizer "fearing a bad batch had been produced". He wrote that even at this stage he did not entertain the idea that the product might have been counterfeit.

Statement prepared by Sajay Rai

1. As noted above, in November 2013 Mr Rai was convicted by the Local Court of two counts of supplying counterfeit Viagra® after entering a guilty plea. Tendered in those proceedings was a statement of facts dated 25 July 2013, signed by the Director of Public Prosecutions and Mr Rai. In broad terms that statement reflected the accounts given by Mr Attia in his statements to the TGA dated 7 July 2010 and 4 April 2012. It stated:

• In February 2010 Mr Rai provided Mr Attia with samples of Viagra® and assured him they were genuine.
• The first transaction occurred on 3 March 2010 and involved the sale of 55 units at $54.27 per unit.
• The second and final transaction occurred on 9 March 2010 and involved the sale of 1,000 units at $57.00 per unit.
• Mr Rai issued Mr Attia with two invoices dated 3 and 9 March 2010 respectively.

1. After being sentenced by the Local Court, Mr Rai provided a further statement at the request of Mr Coloe, dated 2 April 2014. Its contents differ markedly from the statement of facts tendered in the Local Court. In the statement Mr Rai claimed:

• the first transaction occurred on 9 March 2010 and involved the sale of 2,200, not 1,000 units, as previously claimed.
• the second transaction occurred in May 2010 not March 2010, as previously claimed, and involved 5,000 units for which Mr Attia paid only half.
• he repaid the money for the second sale "some by cash and the rest by electronic transfer".
• three or four days after delivering 5000 units of Viagra® to Mr Attia, a "very panicked and angry" Mr Attia contacted him and told him that the Viagra® was counterfeit and the TGA were coming to see him. When they met, Mr Attia demanded he prepare two "fake invoices", which he did. He said he prepared the first invoice at that meeting and Mr Attia told him what to write. With respect to the second invoice, he claimed Mr Attia told him to make it out for around 1000 units at $57 each because that was "a legitimate price". Mr Attia said "he could make [the balance] out for whatever I liked" as long as the total matched the money transfer on 9 March 2010. He asked Mr Attia why he had requested that the invoice be not only for Viagra®, Mr Attia replied "to cover my arse". Mr Rai wrote that he prepared the second invoice at home and dropped it off at Mr Attia's offices a few days later.

1. In his April 2014 statement, Mr Rai also claimed that Mr Attia was aware that he was not licensed to supply restricted substances. He claims he told Mr Attia, "[Y]ou know I don't have a licence to sell prescription medicine" and Mr Attia replied he knew because he had known Mr Rai for years. Mr Rai also claimed that Mr Attia told him he was getting Viagra® and other medicines from another person who did not hold a licence.
2. Mr Rai gave evidence in these proceedings. He claimed that the Statement of Facts tendered in the Local Court and his more recent statement of 2 April 2014, were both true. Under cross-examination he was unable to explain the reason for the difference between the Statement of Facts and his 2 April 2014 statement. He claimed he understood that the subject Viagra® was genuine until told by Mr Attia that he had been informed by the TGA it was not.

Onus of proof

1. The Commission bears the burden of proving the Complaints on the balance of probabilities. The evidence necessary in cases such as this, where the allegations, if found proven, carry potentially serious consequences such as the practitioner's loss of livelihood, was identified by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, by exclusion that is, not "slender and exiguous proofs" (per Rich J at p 350), nor "inexact proofs, indefinite testimony, or indirect inferences" (per Dixon J at p 362).

Is particular 1 of Complaint 1 established?

1. Particular 1 of Complaint 1 reads: On two occasions in 2010 the practitioner purchased a substance purporting to be Viagra tablets by wholesale from a person without a wholesale licence, namely Mr Rai, in breach of condition three of the practitioner's wholesale licence.
2. Mr Attia admits particular 1 of Complaint 1. The evidence reveals that when Mr Attia purchased Viagra® from Mr Rai in 2010, Mr Rai did not hold a licence to supply restricted substances or act on behalf of an entity which held such a licence. Indeed, the evidence reveals that Mr Rai has never been licensed to supply restricted substances for therapeutic purposes. It follows that by purchasing a substance purporting to be Viagra® from Mr Rai, Mr Attia acted in breach of Condition 3 of his wholesaler's licence.
3. We are satisfied the conduct particularised in Complaint 1 occurred.

Are particulars 2 and 3 of Complaint 1 established?

1. It is convenient to address Particulars 2 and 3 of Complaint 1 together. They read: 2. On two occasions in 2010 the practitioner purchased a substance purporting to be Viagra, now known to be counterfeit, and failed to ensure that it was genuine by contacting the manufacturer to confirm the batch number and expiry date, when he knew or ought to have known the Viagra was not genuine, in that: (a) Mr Rai offered to supply the Viagra at a price per unit which was significantly cheaper than the normal market price; (b) The practitioner was not aware as to whether Mr Rai held a wholesale licence authorising him to supply Viagra; (c) The practitioner had not purchased restricted substances from Mr Rai in the past, and this was the first time Mr Rai had offered to supply him with a restricted substance; (d) The packaging and appearance of the substance purporting to be Viagra which the practitioner purchased from Mr Rai was different from the genuine product, including the blister pack being a different shape and appearance from the genuine product. 3. The practitioner distributed the substance purporting to be Viagra which he had purchased from Mr Rai, now known to be counterfeit, when he knew or ought to have known that the product was not genuine, in the circumstances particularised in particulars 1 and 2.
2. There is no argument that: (i) the purported Viagra purchased by Mr Attia from Mr R was counterfeit, (ii) Mr Attia failed to ensure that the purported Viagra® was genuine by contacting Pfizer to confirm the batch number and expiry date, (iii) the price Mr Rai offered to supply the Viagra® was significantly below the market rate, (iv) prior to March 2010 Mr Attia had not purchased restricted substances from Mr Rai, this was the first occasion Mr Rai had offered to supply a restricted substance, and (v) Mr Attia ought to have contacted Pfizer to confirm the batch number and expiry date on the basis of the matters listed in paragraphs (a), (b) and (c) of Particular 2 of Complaint 1.
3. The key issues in dispute are whether Mr Attia knew that the Viagra® supplied by Mr Rai was not genuine because of the matters listed in paragraphs (a), (b), (c) and /or (d) and whether he knew, or ought to have known, that the purchased Viagra® was not genuine because of the packaging and appearance of the Viagra® purchased from Mr Rai.

Reliability of Mr Attia's evidence

1. Since first questioned by the TGA in June 2010, Mr Attia has given conflicting accounts about a number of material factual issues. These include the method of payment for the first purchase of Viagra® and whether he inspected the samples of Viagra® supplied by Mr Rai. (We will return to consider the contested issue of when Mr Attia purchased Viagra® from Mr Rai and the amount purchased.)
2. Mr Attia admits to giving investigators untruthful accounts about some matters and failing to disclose material facts. He admits, for example, telling investigators he paid for the first purchase of Viagra® by cheque and that his dealings with the supplier of the subject Viagra® were through the fictitious "Michael". It will be recalled that it was some 10 days after being asked for the contact details of the "travelling agent he had very limited dealings with", that Mr Attia supplied Mr Rai's details to TGA investigators. It took a further four and a half years for Mr Attia to admit to the $86,000 bank transfer made to Mr Rai in June 2010 and he did so only when confronted with Mr Rai's bank records. In these proceedings he cited "transactional issues" as the reason for his original claim that the first payment was made in cash. In addition, he claims that when first interviewed by the TGA and Pfizer he was in a state of shock and he was not "thinking straight".
3. Mr Rai's evidence is also internally inconsistent. Not only could he not provide an explanation for the inconsistencies between the statement of facts tendered in the Local Court and his April 2014 statement, but in evidence given in these proceedings he refused to acknowledge those inconsistencies.
4. Given these inconsistencies, determining where the truth lies is not an easy task, especially in relation to those claims not supported by independent evidence.

Packaging and appearance of the purported Viagra®

1. We are unable to accept the claim made by Mr Attia in these proceedings that he did not look inside the sample boxes of Viagra® left by Mr Rai. That claim is inconsistent with the account he gave HCCC investigators in February 2015 of having sighted the information leaflet and observing that the tablets were stamped. In these proceedings he claimed he had been referring in that account to what he had been told by his employees. That claim cannot be accepted. There is nothing in the transcript of the interview of Mr Attia by HCCC investigators to indicate that Mr Attia was referring to the reported observations made by others.
2. The counterfeit product was in circulation for 12 weeks and handled by numerous pharmacists and consumers before Pfizer received the report from the Sydney Children's Hospital pharmacist. Her report was triggered not by the appearance of the tablets or their packaging, but her observation that the tablets crushed more easily and were quite gritty compared with previous batches she had worked with. It was only then that she examined the packaging and concluded that it was different to previous batches of Viagra® she had worked with.
3. Also of significance is that few customers reported concerns over the appearance of the packaging and the tablets. Of the three customers who complained to Mr Attia's pharmacies, only two reported misgivings about the packaging and then apparently only when they concluded the tablets did not work. The concerns raised by the third customer related to the tablets appearing to be damaged and heat affected.
4. While the evidence establishes that the appearance and packaging of the Viagra® supplied to, and distributed by, Mr Attia differed from the genuine product, in our opinion the differences were not so marked as to be readily apparent, even to members of the pharmacy profession.
5. Mr Attia's uncontradicted claim is that when he inspected the samples provided by Mr Rai he had no stock on hand to compare the sample product. Arguably, the absence of a comparator to enable a proper inspection to be conducted, alone ought to have caused Mr Attia to place little weight on the reliability of his observations and prompted him to contact Pfizer. However, that does not establish that the appearance and packaging of the sample was so different from the genuine product that the inference can be drawn that Mr Attia knew or ought to have known that the supplied Viagra® was not genuine.
6. We are not satisfied on the basis of the packaging and appearance of the product supplied by Mr Rai that it can be inferred that Mr Attia knew or ought to have known that the supplied product was not genuine.

Did Mr Attia know or ought to have known the Viagra® was not genuine because of the factors listed in paragraphs (a), (b), (c) of particular 2 of Complaint 1?

1. The Commission submits that the evidence supports a finding that Mr Attia knew that the product purchased from Mr Rai was counterfeit. In the alternative, the Commission submits that a finding that he ought to have known the product purchased from Mr Rai was counterfeit can be made. Mr Attia concedes that on the basis of the factual matters outlined in paragraph (a), (b) and (c) he ought to have contacted Pfizer to confirm the batch number and expiry date of the purchased Viagra®, but not that he knew, or ought to have known that the product was not genuine.
2. As formulated, Complaint 2 requires us to be satisfied on the basis of the matters outlined in paragraph (a), (b) and /or (c) of particular 2, that Mr Attia knew or ought to have known that the purchased Viagra® was not genuine.
3. There is no argument that Mr Rai offered to supply Viagra® at a significantly cheaper price than the normal market price (par (a)). Even if Mr Attia's challenged claim of paying $54.27 for the first and $57.00 for the second purchase is accepted, those prices were significantly below the then market price of $60 to $63.
4. With respect to Mr Attia's knowledge about Mr Rai's licence status (par (b)), there is no argument that Mr Attia did not ask for nor was he provided with a copy of Mr Rai's licence. Nor did he make any independent enquiries about whether Mr Rai held or acted on behalf of an entity that held a licence to supply Viagra® .
5. On the issue of whether Mr Attia knew Mr Rai was unlicensed, we have before us two irreconcilable claims. In his April 2014 statement, Mr Rai claimed he expressly told Mr Attia he did not have a licence to sell prescribed substances. Mr Attia denies that claim but concedes he should have made enquiries about Mr Rai's licence status and was naive not to do so.
6. Paragraph (b) as formulated does not require us to make a positive finding that Mr Attia was aware that Mr Rai was unlicensed but rather that he was not aware whether he held a wholesaler's licences, a subtle but significant distinction. While possible, we are not satisfied to the Briginshaw standard that Mr Attia was aware that Mr Rai was unlicensed. However, we are satisfied that he was not aware whether Mr Rai was licensed.
7. With respect to paragraph (c), there is no argument that prior to purchasing the subject Viagra® , Mr Atta had neither purchased a restricted substance from Mr Rai nor had he been offered a restricted substance from Mr Rai.
8. Both Messrs Attia and Rai have at all times disavowed knowing that the subject Viagra® was not genuine.
9. In our view, the factors listed in paragraphs (a), (b) and (c) of particular 2 ought to have alerted Mr Attia to the real and material risk that the product was counterfeit. While there was a thin basis for the assumption that the product was genuine, we are not satisfied, on the basis of the matters particularised in paragraphs (a), (b) and (c), separately or in combination that the inference can be drawn, that he knew that the product was not genuine. However, we are satisfied on the basis of those factors, separately and in combination, Mr Attia ought to have known that the supplied Viagra® was not genuine.

Is particular 3 of Complaint 1 established?

1. The Commission contends that in determining whether when he distributed the Viagra® , Mr Attia knew or ought to have known that the product was counterfeit. It is relevant that some of the product was distributed after being he had been notified of complaints from retail customers. On his account, this led him to conclude "it might have been a bad batch" (see Mr Attia's letter to Chief Pharmacist, 28 Februray 2012).
2. However, as formulated, particular 3 of Complaint 1 requires us to decide whether when he distributed the product, Mr Attia knew or ought to have known that the product was counterfeit on the basis of the "circumstances particularised in particulars 1 and 2 [of Complaint 2]". Those particulars do not include the complaints made by customers. In any event, Mr Attia's claim that he found the complaints to be unremarkable, given Pfizer simply replaced the tablets after being notified of the complaints, is not implausible.
3. For the reasons outlined above, we are satisfied that when he distributed the subject Viagra®, Mr A ought to have known it was not genuine. We are not satisfied, however, that he had actual knowledge that the product was genuine.

Is Complaint 2 established?

1. Complaint 2 reads: 1. The practitioner provided false or misleading information to the Therapeutic Goods Administration by providing them with false invoices purporting to relate to the purchase of Viagra from Mr Rai, namely: (a) The invoice, numbered 537269, purporting to record the purchase of 55 units of Viagra 100 mg at $54.27 per unit by Hillmear Trading Pty Ltd from Tamer Distribution Pty Ltd on 3 March 2010, which transaction did not occur. (b) The invoice, numbered 000138, purporting to record the purchase of 1000 units of Viagra 100mg at $57 per unit by Hillmear Trading Pty Ltd from Tamer Distribution Pty Ltd on 9 March 2010, which was false in that the quantity and price per unit of Viagra supplied on that occasion was 2,200 units for a unit price of approximately $34.52 (excluding GST).
2. There can be no argument that Mr Attia provided false or misleading information to the TGA throughout the course of its investigation. Among other things, Mr Attia took some 10 days to supply the TGA with Mr Rai's name and contact details, claimed the first payment was made by cash, and never disclosed the $86,000 bank transfer made to Mr Rai in June 2010.
3. However, while it is clear that Mr Attia did not fully cooperate with the TGA, as framed, whether the particulars of Complaint 2 are established turns on whether the transaction described in the first invoice occurred and whether on 9 March 2010 Mr Attia purchased 2,200 units at a price of approximately $34.52 per unit, not 1,000 units at approximately $57, as he has at all times claimed.
4. In relation to paragraph (a) of Complaint 2, there is no doubt that the transaction purportedly described in the invoice did not take place. Indeed, it could not have taken place because, as the TGA investigators discovered, Tamer Distribution did not exist. Moreover, payment was not made to anyone involved in the transaction by cheque, much less cheque no 1612. Nor was there a person called "Michael" involved in the transaction. And, if he existed at all, the mobile phone number purporting to be his had expired. In providing a document purporting to be a regular business record evidencing a transaction between Hillmear Trading and Tamer Distribution, of which the relevant particulars were set out in the "invoice", Mr Attia clearly provided false information to the TGA.
5. Was this information provided by Mr Attia with knowledge that it was false? For the following reasons, we have concluded that the only rational inference from the evidence was that, in providing this invoice, Mr Attia sought to conceal critical details and the true nature of the transaction.
6. First, when he was initially interviewed, Mr Attia concealed the true identity of the supplier of the subject Viagra®. He knew Mr Rai. Despite this, by giving the invoice to the investigators he laid down a false trail. It must be said that Mr Attia is no criminal mastermind. Had he given any thought to what he was doing in providing that information, he would have realised that it was likely that the investigators would check the particulars on the invoice because one of the objectives of their investigation was to find the source of the counterfeit drugs. The supplier of the drugs to Mr Attia was bound to be the target or part of the targeted supply chain. Mr Attia, had he thought this through, would have realised that the investigators would seek to identify "Michael" and "Tamer Distribution", and would probably obtain bank and telephone records relating to the transaction on the "invoice".
7. Second, although Mr Rai has obvious credibility issues as a witness, he gave evidence that all the details on the invoice were false. Much of what he says about that is corroborated both by objective evidence, such as the non-existence of Tamer Distributions, the fact that cheque no 1612 was paid into an account of one of Mr Attia's associates, not to Mr Rai, and Mr Attia's own belated admission that he did not pay Mr Rai by cheque but by cash.
8. Third, because of the fact that Mr Rai's account is corroborated by objective evidence to a significant extent, whereas, except where his account coincides with Mr Rai's, Mr Attia's is not, our assessment is that where their accounts conflict, Mr Rai's account is more likely to be reliable than Mr Attia's. This is not to say that we accept Mr Rai's evidence without reservation. But our impression is that throughout this hearing, Mr Attia has been at pains to minimise his own and to maximise Mr Rai's culpability in relation to the transaction.
9. Fourth, when cross-examined about the invoice, Mr Attia admitted that the document was false but, despite admitting that he had paid in cash not by cheque, he denied attempting to mislead by representing that he had paid by cheque. He claimed that he was providing "information" and the problem was not the "financial aspect" but the harm or potential harm that was caused by the drug. This was entirely unresponsive to the question and appears to have been an attempt to evade the issue. The very point is that he had not paid by cheque yet made that representation. The only rational inference to be drawn from that was that he had hoped that, because he had made it look like one with details such as cheque numbers and other details, the invoice would be accepted by the investigators as a genuine business record, whereas it was not. When further pressed on this during the cross-examination, he admitted that he had "in that light", deliberately sought to mislead the investigators.
10. In relation to paragraph (b) of the particulars of the complaint, the situation is more difficult. While the rules of evidence do not apply in these proceedings, certain principles that apply in criminal trial are useful guides on to how to approach evidence in disciplinary proceedings such as these. Section 165(1) of the Evidence Act 1995 (NSW) provides that certain types of evidence are commonly to be regarded as unreliable and that, in certain circumstances, warnings should be given to juries concerning the dangers of relying on that evidence.
11. One of those categories is evidence given by a witness "who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding": s165(1)(d) The main reason why the uncorroborated evidence of such witnesses is regarded as unreliable is that the witnesses may try to exculpate themselves or minimise their part by fabricating evidence against a co-offender or by exaggerating the role of the co-offender. They may also act out of hope of improving their own position regarding sentence. Or they may give false evidence because they dislike the accused person or seek revenge against them for some reason. (See Odgers, S, Uniform Evidence Law (11th ed, 2014), Sydney, Thomson Reuters, 2014 p 975.)
12. The Commission contends that Mr Attia gave false information by telling the TGA investigators that he had purchased only 1055 units of Viagra® , whereas the true quantity was 2200 (as at 9 March 2010). The difficulty for the Commission is that on this point, it relies entirely on Mr Rai's uncorroborated evidence.
13. As the sample of cross-examination referred to above shows, Mr Attia was a poor witness. Except where he could be corroborated by objective evidence or plausible evidence given by Mr Rai, he could not be accepted as a truthful witness. Equally we have misgivings about the reliability of Mr Rai's uncorroborated evidence. In our view, where his evidence was not corroborated, Mr Rai's testimony should be treated with considerable caution. His motivation for coming forward after his conviction and sentence with a fresh statement is not clear. What is clear is that he gave inconsistent accounts of the quantity of Viagra® supplied to Mr Attia but denied that inconsistency. This may indicate that, by the time he gave the second statement, his memory was faulty or that he had a hidden motivation for supplying the fresh information. It may also be true, in which case he gave false information in the first place, as did Mr Attia.
14. This is a case in which the Briginshaw standard of proof must be applied. Although there is a high level of suspicion that Mr Attia has not told the truth concerning the quantity of Viagra® which he purchased on 9 March 2010, without independent, objective evidence to support Mr Rai's evidence on that issue, we cannot be comfortably satisfied that para (b) of Complaint 2 is made out.

Summary

1. Particular 1 of Complaint 1 is admitted. We find proven the conduct described in: particular 2(a), (b) and (c) of Complaint 1; particular 3 of Complaint 1 and particular 1(a) of Complaint 2.

Does the impugned conduct amount to "unsatisfactory professional conduct"?

1. The Commission contends that the impugned conduct amounts to unsatisfactory professional conduct within the meaning of ss 139B(1)(a) and 139B(1)(l) of the National Law. Sections 139B(1)(a) and 139B(1)(l) of the National Law state: (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following- (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. …

Does the conduct described in each established particular demonstrate that the judgment possessed, or care exercised by Mr Attia fell significantly below the relevant standard?

1. To answer this question we must (i) identify the standard "reasonably expected" of a pharmacist of an equivalent level of training or experience to Mr Attia (the relevant standard), and (ii) evaluate whether the conduct particularised demonstrates that the knowledge, skill or judgment possessed, or care exercised, by Mr A in the practice of his profession, fell "significantly below" the relevant standard.
2. When the conduct which is the subject of the Complaints occurred, Mr Attia had been working as a pharmacist for over two decades. He had significant experience in both wholesale and retail pharmacy.

Expert opinion

1. In support of its contention that the judgment possessed, or care exercised, by Mr Attia fell short of the relevant standard, the Commission relies upon the opinion expressed by registered pharmacist, Jack Leigh, in a report dated 12 April 2015. Mr Leigh has over 40 years' experience in the retail and wholesale pharmacy industry in both Australia and the UK.
2. The Commission requested Mr Leigh to provide an opinion about Mr Attia's conduct, including that particularised in the Complaints. Specifically, Mr Leigh was requested to provide an opinion about whether that conduct fell below the relevant standard, and if so, whether the departure was "significantly below" that standard. In addition, the Commission requested Mr Leigh to comment on whether that conduct invited his "strong criticism".

Does the conduct described in particular 1 of Complaint 1 fall significantly below the relevant standard?

1. One of the conditions of his wholesaler dealer's licence was that Mr Attia could only purchase Viagra®, or indeed any restricted substance, from a licensed wholesaler.
2. As pointed out by Mr Leigh, Mr Attia could have verified Mr Rai's licence status by making a simple enquiry to the Pharmaceutical Services Unit. Such enquiry was especially necessary given that Mr Attia had never sighted a copy of Mr Rai's licence nor had he any history of purchasing restricted substances from Mr Rai.
3. As explained by Mr Leigh in his report of 12 April 2015, licensed suppliers of prescribed substances fall into two categories: holders of wholesaler dealers licence (WDL): full-line national wholesalers who carry, among other things, all PBS-listed medications and meet the "community service obligation", and smaller short-line wholesalers who carry a restricted range of PBS medications. In his opinion, a pharmacist wishing to deal with a smaller wholesaler should confirm that their licence is current and that they are authorised by their licence to supply the goods offered, especially where they had no previous dealings with that wholesaler.
4. In determining the extent to which the judgement possessed and care exercised by Mr Attia fell below the relevant standard, the manner in which Mr Rai operated his business is relevant. As Mr Attia concedes, Mr Rai operated in a manner markedly different to the six other licensed wholesalers with whom he dealt. He did not have a website or product list and operated out of an unmarked van. His unorthodox manner of operation ought to have alerted a pharmacist of Mr Attia's training and experience of the need to verify Mr Rai's licence status. But even if it were not for Mr Rai's manner of operation, the relevant standard required that a purchaser of Mr Attia's level of experience would verify that a supplier held the necessary licence.
5. We find that failing to make even a cursory attempt to satisfy himself that Mr Rai held the appropriate licence demonstrates that the judgment possessed, and care exercised by Mr Attia in respect of the purchase of the subject Viagra® fell significantly below the relevant standard.

Does the conduct described in particulars 2 and 3 of Complaint 1 fall significantly below the relevant standard?

1. In a statement dated 27 June 2012, Dr Gary Williams, a senior staff specialist at the Sydney Children's Hospital, explained that Sildenafil, the active ingredient of Viagra® , is used to treat pulmonary hypertension in infants and children. In his opinion, a paediatric patient with pulmonary hypertension being treated with Sildenafil would be placed at significant risk if inadvertently not given the prescribed dose or administered an "understrength counterfeit variety".
2. The available evidence does not support a finding that a pharmacist with an equivalent level of training or experience to Mr Attia would necessarily be aware of the specific risks paediatric patients might face if administered counterfeit Viagra®. However the available evidence supports a finding that a pharmacist with a comparable level of training and experience to Mr Attia, would be aware that patients are likely to be placed at real and material risk if supplied with counterfeit prescribed substances.
3. There can be little argument that in purchasing and distributing the subject Viagra® in circumstances where he ought to have known that the product was not genuine, demonstrated that the judgment possessed, and care exercised, by Mr Attia fell significantly below the relevant standard.

Does the conduct described in particulars 1(a) of Complaint 2 fall significantly below the relevant standard?

1. It almost goes without saying that giving false and misleading information to the TGA, in circumstances where it was conducting an investigation into the supply of counterfeit Viagra® to the Australian pharmaceutical market, falls significantly below the relevant standard.

Summary

1. We are satisfied that the conduct described in each of particulars 1, 2 and 3 of Complaint 1 and particular 1(a) of Complaint 2, constitutes unsatisfactory professional conduct within the meaning of s 139B(1)(a).
2. Given this finding, it is not necessary to also consider whether that conduct is unsatisfactory professional conduct within the meaning of s 139B(1)(l).

Does some or all of the conduct found to constitute unsatisfactory professional conduct amount to "professional misconduct"?

1. The Commission contends that the impugned conduct amounts to "professional misconduct", which is defined by s 139E of the National Law to mean: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, "professional misconduct" of a registered health practitioner means- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.

Is the conduct of a sufficiently serious nature to justify suspension or cancellation of Mr Attia's registration?

1. In evaluating whether the conduct found to constitute unsatisfactory professional conduct is "sufficiently serious" to justify the sanction of suspension or cancellation, circumstances that bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the impugned conduct, the existence of any mitigating factors and an assessment of where the offending conduct falls on the spectrum of unsatisfactory professional conduct. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]. In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases, but by reference to the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638.
2. We are satisfied that the conduct described in each of particulars 2 and 3 of Complaint 1, and particular 1(a) of Complaint 2 is sufficiently serious to justify the suspension or cancellation of Mr Attia's registration. In addition, we are satisfied that the conduct described in Particular 1 of Complaint 1, when considered together with the balance of the particulars found to constitute unsatisfactory professional misconduct, is sufficiently serious to justify the suspension or cancellation of Mr Attia's registration.

What, if any, protective orders should be made?

1. Part 8, Division 3, Sub Division 6 of the National Law sets out the disciplinary powers available to the Tribunal where a complaint is found proven. They include the power to caution, reprimand and counsel a practitioner and to impose conditions on the practitioner's registration. Where, as in this case, the practitioner is found guilty of professional misconduct, the Tribunal may suspend or cancel the practitioner's registration or decide that it would have cancelled the practitioner's registration had they been registered.
2. In exercising its functions under the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration (s 3A of the National Law).
3. In Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD Wright J 31 at [88] summarised the principles underlying the purpose of orders made under Part 8, Division 3, Sub Division 6. (1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. (2) Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637. (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83].

Orders sought by the Commission

1. The Commission urges the Tribunal to order the cancellation of Mr Attia's registration and order that he be disqualified from being registered for a period of 12 to 18 months. In the alternative, the Commission seeks the suspension of Mr Attia's registration for period of three to six months and the imposition of a number of conditions.
2. The Commission argues that even if it is found that Mr Attia ought to have known that the Viagra® was counterfeit, as opposed to having actual knowledge of that fact, this warrants the making of a cancellation order. In support, the Commission cites the following passage from Lee v Health Care Complaints Commission [2012] NSWCA 80. 67. …Cases of dishonesty are very serious. Cases of recklessness are also serious. This is particularly so where the protection of the public is at stake and the default is one that leaves patients exposed to a risk against which the practitioner is required by law to provide protection. 68. It is the failure to provide the required protection that constitutes the wrongdoing, not the fact that the failure is (or, as the case may be, is not) attended by dishonesty or a guilty mind. The more pertinent consideration in the formulation of an order is the practitioner's attitude to the wrongdoing and what it indicates about the risk that the misconduct might be repeated. ….
3. While the Commission acknowledges that close to six years have passed since Mr Attia's involvement in the supply and distribution of counterfeit Viagra® , it argues that, of itself, that does not establish that Mr Attia is reformed, citing in support the comment made by Barrett JA in Lee at [73]: "A finding of reformation thus cannot be made by reference merely to the passage of time without renewed misconduct".
4. The Commission submits that it is highly relevant that despite claiming to have reformed since 2010, Mr Attia had continued to conceal the full extent of his involvement with Mr Rai, as illustrated by his failure to volunteer information about the transfer of over $86,000 to Mr Rai. It contends that his lack of candour in his dealings with the TGA provides further support for its submission that the protection of the public requires cancellation, or at the very least the suspension of Mr Rai's registration order.
5. Mr Attia submits reprimand is the more appropriate order but concedes that if it is found he ought to have known that the product was counterfeit, suspension may be appropriate.
6. In support of his submission that cancellation is unwarranted, Mr Attia says the following factors are relevant. First, over six years have now passed since the conduct the subject of the Complaints has occurred. Second, the subject conduct did not relate to his conduct as a pharmacist but rather to the operation of his wholesale pharmacy business, which he has now sold and has no intention of returning to wholesale pharmacy. Third, his career is unblemished apart from the matters which are the subject of the Complaints. Fourth, he acknowledges that his decision to purchase Viagra® from Mr Rai was a serious error of judgement and he is genuinely contrite for his actions. Fifth, he is a person of good repute within the community.

Conduct since Mr Attia's involvement in the supply and distribution of Viagra®

1. Mr Attia claims not to have any involvement with the wholesale pharmacy sector and to have sold the six retail pharmacy outlets which he owned in July 2011. He now works on an occasional basis as a locum pharmacist. Mr Attia is currently involved in Christian missionary work for a Christian television station, "the Vine".
2. Mr Attia tendered a number of character references in these proceedings. Richard Botta, a senior pastor with the C3 Church in Carlingford, stated that he has known Mr Attia since mid-2011, and since that time he and Mr Attia meet frequently to discuss matters of faith, church and ministry life. He stated that in "all their dealings", Mr Attia has acted with honesty and integrity. Mr laith Fraj has been a friend of Mr Attia and his family for the past five years. In his opinion, Mr Attia enjoys a good reputation within the community in which he is well known. In his opinion, Mr Attia is honest, reliable and trust worthy. Ms Jam shares these opinions. She states that in his dealings with colleagues, staff, health professions and customers, Mr Attia always acts with honesty and respect. In her opinion, he is genuinely remorseful for the conduct which resulted in the Complaint referred by the Commission. In her opinion, the conduct is a one-off and "definitely an out of conduct event". Solicitor Raymond Mawad attested that in his opinion Mr Attia has many fine qualities, chief among them "trustworthiness, honesty, integrity, loyalty and reliability". In his opinion, Mr Attia enjoys a good reputation among his community, business colleagues and partners. Each character referee, attested to having read the Complaint made by the Commission against Mr Attia.

Consideration

1. Notwithstanding our finding that the conduct found proven was sufficiently serious to justify the suspension or cancellation of Mr Attia's registration, it does not follow that such order must be made. (See, HCCC v Jamieson [2014] NSWCATOD 56 at [100].) Cancellation and suspension are but some of the orders available where a health practitioner has been found guilty of professional misconduct. While the safety of the public is the paramount consideration, any protective order must nonetheless be commensurate with the seriousness of the impugned conduct. In determining the appropriate order, consideration must also be given to the probability of recurrence of that conduct and the nature and extent of any justifiably apprehended harm.
2. We accept as argued for Mr Attia that it is unlikely he would again deal with a supplier of pharmaceutical products unless first taking steps to satisfy himself that they held the appropriate licence or authority. We also think it unlikely that in any future dealings with a supplier that he would fail to make enquiries even if there was a hint that the offered pharmaceutical goods might be counterfeit. As Mr Attia points out, his dealings with Mr Rai has been a very expensive error of judgement and cost him a multi-million dollar wholesaling business.
3. We are less confident, however, that Mr Attia will act with complete candour and make full disclosure in future dealings with those charged with the responsibility of overseeing the regulation of the pharmaceutical sector. Pharmacists work in a heavily regulated sector. Parliament has decided that the regulation of the sector is necessary to protect the public. The health and safety of the public demands that health practitioners fully cooperate with those charged with responsibility for overseeing and regulating the health sector, especially where, as in this case, it involves a matter which has the potential to put at risk the health and safety of consumers.
4. As found by us, Mr Attia gave false and misleading information to the TGA in respect of the first invoice. In addition, while not the subject of the referred Complaints, on a number of occasions throughout the investigations conducted by the TGA and the HCCC, not only did Mr Attia knowingly mislead investigators but he failed to disclose information relevant to the investigation. His failure to disclose that he paid over $86,000 to Mr Rai in June 2010 is but one example. The explanation he gave for not making that disclosure before being presented with Mr Rai's bank records in 2015 - that he was not asked about that transaction - is unimpressive.
5. While possible that concern that his registration might be jeopardised will be sufficient to ensure that in all future dealings with regulators, Mr Attia will act with candour and make all necessary disclosures, we are not confident at this stage that this will occur. In reaching that conclusion we note that our misgivings about Mr Attia's honesty is at odds with those people who have provided character references and had the advantage of knowing Mr Attia over a long period in various capacities. We also have taken into account that apart from the conduct relating to the investigation of the supply of the counterfeit Viagra®, there is no evidence to suggest that Mr Attia has not been frank and open in his dealings with the authorities charged with the oversight of the pharmaceutical sector.
6. We have decided nonetheless that cancellation, not suspension, reprimand or a fine is the appropriate order. In reaching that decision we have taken into account that some of the matters discussed above, relating to Mr Attia's dealings with authorities, were not the subject of the Complaints referred by the Commission. That conduct is nonetheless relevant to the probability of the recurrence of the conduct of the type found proven, described in particular 1(a) of Complaint 2.
7. In addition, we have decided to exercise the discretionary power conferred by the National Law, to order that Mr Attia not apply for review of the cancellation order for a period of 12 months from the date of this decision. We consider a period of 12 months to be appropriate given the seriousness of the conduct found proven together with our concerns about whether at this stage Mr Attia will act with candour in future dealings with authorities charged with the oversight of pharmacists and the pharmaceutical sector.

Order for costs

1. The Commission seeks an order that Mr Attia pay its costs in these proceedings. Mr Attia does not oppose that application. We see no reason not to exercise the discretionary power to award costs under cl 13 of Schedule 5D to the National Law and order accordingly.

Orders 1. Mr Attia's registration as a pharmacist is cancelled under s 149C(1)(b) of the National Law. 2. Pursuant to s 149C(7) of the National Law, Mr Attia must not apply for review of Order 1, within 12 months from the date of this decision. 3. Mr Attia must pay the Commission's costs of the proceedings, as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2017