Health Care Complaints Commission v Saweris

1. This is the "Stage 2" decision in the proceeding commenced by the Health Care Complaints Commission (HCCC) and the subject of the Stage 1 decision delivered on 1 April 2025. That decision is reported as Health Care Complaints Commission v Saweris [2025] NSWCATOD 30. In that judgment the Tribunal made the following orders:

(1) The Respondent is guilty of unsatisfactory professional conduct pursuant to s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW) (National Law).

(2) The Respondent is guilty of professional misconduct pursuant to s 139E of the National Law.

(3) The matter is to be listed for the Stage Two hearing on 23 July 2025 or otherwise directed by the Tribunal.

1. In opening the hearing of this Stage 2 portion of the proceeding, the HCCC informed the Tribunal that the order which was originally sought in the instrument which initiated this proceeding was no longer sought however, the protective order now sought is as follows:

Under section 149C(1)(b) of the Health Practitioner Regulation National Law, the Tribunal suspends the Respondent for a period of 1 to 3 months.

In the alternative to order 1:

Under section 149B(1) of the Health Practitioner Regulation National Law, the Tribunal imposes a fine on the Respondent for an amount of $20,000.

1. The HCCC did not file any further evidence in support of its case. It relied upon the judgment delivered by the Tribunal for the Stage 1 decision and provided both written and oral submission. The written submission was marked as MFI 1.
2. Although the hearing conducted on 23 July 2025 was conducted as a joint hearing of the three separate proceedings which were initiated against the joint proprietors of the West Gosford Pharmacy, each proceeding requires a separate judgment. The other two proprietors are Baher Prince Shaker Derias and Samer Morcos.
3. The Respondent tendered the following further evidence in the Stage 2 hearing.

Exhibit X1: A folder of documents relating to the Respondent.

Exhibit X2: Affidavit of the Respondent sworn 22 July 2025.

1. The Respondent provided submissions both written and oral. The written submission was marked as MFI 2
2. Before considering the further evidence provided by the Respondent or the submissions of the parties' we here set out our finding on Complaint Five (that the Respondent was guilty of professional misconduct) in the Stage 1 hearing:

587. We have considered all the evidence in support of Complaint One and our findings in relation to same. We conclude that the conduct of the Respondent as established by the HCCC in Complaint One was of itself so serious as to amount to professional misconduct. The quantities and the strengths of the Sch 8 and Sch 4D drugs that he dispensed were such, that on many of the occasions the expert's opinion was that the dispensing was, without further evidence, contrary to recommended therapeutic standards.

588. The dispensing identified in Complaint One was for nine different patients. There are some 53 occasions of dispensing identified in Schedule 2 to the Complaint document, with the Respondent's initials noted. The identified dispensing mainly arose in a circumstance where the prescribing doctor (who was practising improperly and unethically), provided some explanation, after being questioned by the pharmacist. The Respondent believed in such circumstances he was required to dispense the prescription in question.

589. The HCCC set out in the Complaint One that "Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified."

590. We have set out earlier our finding in relation to Complaint One Particulars 1(c) and 2(c), where the Respondent agreed he was guilty of unsatisfactory professional conduct based upon his failure to have regard to the patients' dispensing history. In his oral evidence, the Respondent agreed on many occasions, that his dispensing under examination was inappropriate. He expressed remorse and professional embarrassment for his conduct.

591. Without having to consider his separate responsibility as a proprietor of the pharmacy as it related to the identified dispensing by Mr Azzer, we are satisfied the Respondent is guilty of professional misconduct. The findings we made in relation to Complaint One relating to the Respondent's failures as a pharmacy proprietor add weight to the decision we have already made that he is guilty of professional misconduct as defined in s 139E of the National Law.

1. The Respondent affirmed his affidavit on 22 July 2025 (exhibit X2). In that affidavit we particularly noted the following:

(a) The Respondent referred to his Stage 1 affidavit where he recited that the Pharmacy Council had on 11 November 2019 suspended his registration. The suspension was lifted after three months. The suspension removed the Respondent's ability to work and he suffered financial hardship resulting from that loss.

(b) In April 2020 the Respondent disposed of his interest in the West Gosford Pharmacy. We note that it was ownership and engagement in the running of that pharmacy which was the focus of the Complaint and the Stage 1 hearing.

(c) The Respondent experienced difficulty obtaining employment following the lifting of the suspension order. He found that having to advise potential employers of his recent suspension and the ongoing legal proceeding led to failure to secure employment.

(d) The Respondent set out detail of the extensive remedial action he has taken through further education, training and mentoring.

(e) The process of having to prepare for the hearings in the Tribunal has involved many days of preparing written responses to the Complaint, reviewing documents, considering the issues raised by the Complaint and attending mentoring sessions and required legal conferences. That has impacted upon the time he could apply to employment.

(f) The cost of the litigation has exceeded the cover the Respondent had with insurance. He has had to contribute an additional $8,000 towards the legal costs. Further, he has been told he may be required to pay part or all of the costs of the HCCC if the Tribunal so orders.

(g) With the finding of professional misconduct the Respondent has been told he can no longer be appointed as a Justice of the Peace.

(h) The Respondent set out in significant detail the impact upon himself and his dependants of the proceeding, the finding of professional misconduct and the consequent loss of employment. He also set out detail of the shame and humiliation he has suffered.

1. In exhibit X1 the Respondent included an affidavit dated 10 June 2025. In that affidavit he set out in great detail the remedial action he has taken as a pharmacist since the notification was received from the Pharmacy Council detailing alleged contravention of legal and practice standards applicable to the practice of pharmacy. He also provided the following further evidence:

(i) Having divested himself of the proprietorship of the Kogarah Pharmacy and the West Gosford Pharmacy, his only proprietor interest remaining is in a regional NSW pharmacy.

(ii) The first notice of the regulatory intervention in the operation of the West Gosford Pharmacy was received on 10 January 2019. The Respondent has therefore been attending to the proceedings which have followed that notice for six and a half years.

(iii) Since July 2023 the Respondent has worked an average of 2 days per week at the regional NSW pharmacy he has a financial interest in. He has also found employment in another pharmacy in the greater Sydney area. He has also found work as a locum pharmacist through an agency which arranges employment with pharmacies seeking locum pharmacists.

(iv) The Respondent set out detail of circumstances he has met, since returning to practice after his suspension, where he has been able to share his remedial acquired knowledge for the benefit of pharmacists he has worked with and for the patients they dispense to.

(v) The Respondent has undertaken the Department of health "Covid-19 Vaccination Training Program" and worked in a "vaccination hub" for 4 days a week for 3 months commencing in August 2021. He has also engaged in charity work through his church connections. He has become a member of SES Service NSW in March 2025.

(vi) Following the receipt of notification from the Pharmacy Regulatory Unit (the PRU) in January 2019, the Respondent together with his co-proprietors in the West Gosford Pharmacy, undertook an urgent review of their dispensing practices and protocols. The Respondent set out all that had been done in response to the notification. That action was responsive and extensive.

(vii) The Respondent set out the extensive action he personally undertook to repair the damage which he knew would impact upon his reputation as a pharmacist and community member.

(viii) The Respondent, having been restored to practice at the conclusion of his period of suspension set about putting in practice all that he had worked on with his mentor and that which he had learnt through his intensive study. He chose to work in a busy pharmacy as a locum pharmacist to test himself under the type of practice which had existed at the West Gosford Pharmacy. He set out how he implemented protocols and procedures which he then knew were a necessary part of the pharmacist's role in dispensing medicine.

(ix) At page 178 of exhibit X1 the Respondent includes a reference from a pharmacist of 13 years who is managing a Sydney suburban pharmacy and who had also worked in the pharmacy business owned by the Respondent in regional NSW. The referee had been provided with detail of the Complaint against the Respondent. The reference dated 27 March 2023, details observation of working with the Respondent in a pharmacy business. It details his advice in relation to matters of practice and pharmacy protocol. It is a very supportive reference. There are further references from pharmacists, a doctor and associates, both professional and community based, known to the Respondent which are very supportive.

1. The Respondent gave oral evidence in the hearing before us. We noted the following from that evidence in particular.
2. The Respondent affirmed that the content of his affidavits, tendered in the hearing were true and correct. He was then cross-examined by the HCCC counsel.

1. The Respondent was cross-examined about the stated income he has earned since the suspension he suffered in 2020. He explained how his income was structured. He also explained that his wife did have an income.

The HCCC submission in writing dated 21 July 2025

1. The written submission of the HCCC was provided to the Tribunal shortly before the hearing on 23 July 2025. We noted the following in particular from that submission.
2. The HCCC submitted on the particular protective order it was seeking. It stated:

"In circumstances where the Tribunal has found each Respondent guilty of professional misconduct, the available protective orders include the cancellation or suspension of their registration as a pharmacist. (see National Law s 149C(1) (b)) Other available protective orders include a reprimand, a caution, the imposition of conditions on each Respondent's registration, and a requirement that each Respondent undertakes an educational course or mentoring. (see National Law s 149A(1)) The Tribunal also has the power to fine a Respondent up to 250 penalty units ($27,500) if 'the Tribunal is satisfied there is no other order, or combination of orders, that is appropriate in the public interest'.(see National Law s 149B)

The Tribunal must observe the objectives and guiding principles of the National Law in exercising its disciplinary powers. The paramount consideration must be the protection of the health and safety of the public." (see National Law s 3A (1)).

1. The submission then set out relevant considerations in formulating appropriate protective orders. It submitted:

7. In determining what protective orders accord with these objectives, it is relevant for the Tribunal to consider:

(a) whether the misconduct could be satisfactorily explained as an error of judgment rather than a defect of character;

(b) the intrinsic seriousness of the misconduct in terms of fitness to practise;

(c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities or character;

(d) the motivation which may have given rise to the proven episode of misconduct;

(e) the underlying qualities of character shown by previous and other conduct; and

(f) whether the practitioner's conduct post the proven episode of misconduct demonstrates the public and professional confidence may be reposed in them to uphold and observe the high standards of moral rectitude required of a health practitioner. (see Health Care Complaints Commission v Marsh [2016] NSWCATOD 155 at [17]; Health Care Complaints Commission v Gupta [2019] NSWCATOD 29 at [75]; Health Care Complaints Commission v Richards [2023] NSWCATOD 19 at [111].

It cannot be assumed that a practitioner has been reformed. Reformation is the exception rather than the norm and requires 'clear proof', demonstrated by more than the passage of time without misconduct. That is, the mere passage of time is not a mitigating factor.

A practitioner is not automatically entitled to a credit for any period of suspension they have served or any period for which their registration has been subject to conditions. The question is whether cancelling their registration, or a further period of suspension, is appropriate to protect the public and maintain professional standards. (see Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [73]

1. The HCCC then conceded the following in relation to each of the joint proprietors of the West Gosford Pharmacy:

"The Commission accepts that there is no identifiable need for specific deterrence of the Respondents. Their misconduct occurred more than six years ago. They have each been practising without conditions since early 2020 (for Mr Saweris and Mr Morcos) or mid-2020 (for Mr Derias). No subsequent issues with their practice have been brought to the Commission's attention. They appear to have developed insight into the deficiencies that led to their misconduct and made changes to their practices to address them. While they did not formally admit many aspects of the Commission's complaints, the Tribunal was impressed with their candour in the witness box and found that they had expressed remorse.[1] In those circumstances, the Commission accepts that the Respondents' failure to make early admissions just means that a mitigating factor which might otherwise have been available to them is not, rather than counting against them.

However, there is a significant need for general deterrence and denunciation of the Respondents' conduct."

1. The submission stressed the seriousness of the conduct found against the Respondent by the Tribunal in the stage 1 hearing.
2. In the submission which collectively addressed the three Respondents, the HCCC submitted:

(1) The Respondents failed to have regard to several patients' dispensing histories when dispensing Schedule 8 and Schedule 4D drugs, in circumstances where they must have realised the importance of having regard to a patient's dispensing history, and that there was a real potential for harm to have been caused to their patients if they failed to do so.[2]

(2) Each Respondent personally dispensed Schedule 8 and Schedule 4D drugs to several patients contrary to the recognised therapeutic standard of what was appropriate in the circumstances, in circumstances where he understood that the quantity he was dispensing was contrary to that standard and should have refused supply or take other action to ensure the safety of the patient and the public.[3] It was uncontroversial that the inappropriate dispensing of Schedule 8 and Schedule 4D drugs has the potential to harm the safety or health of patients.[4]

(3) In relation to the Respondents' responsibilities as proprietors: 'This was not an isolated and difficult to detect occasion of inappropriate dispensing by an employed pharmacist, it was a very extensive and long standing (12 months) history of inappropriate dispensing of Sch 8 and Sch 4D drugs.'[5]

(4) The personal dispensing the subject of complaint 1 against each Respondent was serious enough by itself to justify a finding of professional misconduct.[6] Each Respondent's failings as a pharmacy proprietor added weight to that conclusion.[7]

1. The HCCC then submitted: "The seriousness of the Respondents' conduct is such that a reprimand would not send a sufficiently strong message to the profession and the community that conduct of this kind is wholly unacceptable." That submission was made in particular as the Respondent's case is that a Reprimand alone would, in combination with the adverse consequences of the action already taken against each of the three Respondents, be a sufficient general deterrent.
2. The HCCC then referred to the decision of the Tribunal in the case of Health Care Complaints Commission v Azzer [2024] NSWCATOD 70 (Azzer). That decision was made on 5 June 2024 following a hearing on 8 and 9 April 2024. The HCCC set out some of the conclusions in that judgment in the submission and specifically referred us to the protective order made, namely a suspension for three months. While quick to point out that such a decision should not be seen to bind this Tribunal and also acknowledging that each case needs to be determined on its own facts, the HCCC submitted a suspension for each of the three Respondents, in this case, of between one and three months would send a strong message to the profession.
3. In the alternate to a period of suspension the HCCC submitted the Tribunal could impose a fine. The HCCC submitted a fine of $20,000 would be an appropriate amount to set.
4. The HCCC concluded its written submission by attaching extracts from the submission it made for the Stage 1 hearing. Those addressed matters relating to the seriousness and extent of the Respondent's misconduct. It also set out extracts from decisions of the Tribunal which addressed specific aspects of the practice of pharmacy and the obligations at law and to the community of registered pharmacists.

1. The three Respondents whose cases we heard concurrently were all represented by the same solicitor and senior counsel. The written submission which was marked as MFI 2 addressed collectively the cases of each Respondent. The submission is lengthy and we have particularly noted the following matters which it addressed.
2. The Respondents submit that a Reprimand is the appropriate protective order for the Tribunal to impose on each of the three Respondents. In the submission the Respondents state:

"The Commission's proposed conditions completely fail to pay due regard to the context in which the proven failures occurred namely, as "victims" to the proven professional misconduct of Dr Sriskanda as so found by the Tribunal: Decision [418],[419],[506],[507]. Further, the Commission's position fails to place proper weight upon the six years of extensive reflection, self-education, and reform in the respondents' conduct, demonstrating their present and ongoing capacity to engage in their roles to the highest standards of safety and care and where they have positively demonstrated that they no longer pose a risk to the public. Lastly, it this case the respondent's decision to not admit all aspects of the Complaint cannot be seen as a reflection of a lack of insight, given there was never any dispute as to the act of dispensing. Rather, the areas not admitted were matters for the Commission to prove to the requisite standard regarding the degree of the failure of the admitted conduct.

The Commission's orders further fail to engage with the express terms of Section 3 and section 3A of the National Law which outline the objectives and guiding principles relevant to all aspects of the operation of the National Law, including Subdivision 6, sections 149-149A, namely the disciplinary powers of the Tribunal. The common law principle of general deterrence, which the Commission relies upon in seeking suspension or a fine, is neither determinative of the appropriate order nor does it trump the balance of relevant common law principles or legislative considerations outlined in section 3 and section 3A."

1. The submission then addressed specific findings of the Tribunal in relation to Mr Saweris. It referred to our findings in relation to Mr Saweris' candour as a witness and his stated remorse. It drew attention to our findings that Mr Saweris had been a victim of the practices of a since disqualified medical practitioner. It addressed the findings in relation to the mistaken belief of Mr Saweris as to his ability to refuse to dispense a drug where the medical practitioner had been contacted and confirmed the drug was to be dispensed as prescribed. The submission then set out the following:

"Applying the requirements, as above set out by us, we conclude that in this case the Respondent, by his own admission, did dispense Sch 8 and/or Sch 4D drugs contrary to the recognised therapeutic standard, even having regard to what is appropriate in the circumstances. That arose primarily because his understanding of his professional obligations at the time of the dispensing of a prescription of a Sch 8 and/or Sch 4D drug, was that having contacted the prescribing medical practitioner and having raised a question as to the appropriateness of the dispensing required, he could not refuse the dispensing where the practitioner directed or supported it. That is no longer the case today. He told the Tribunal he now has a different understanding of his professional obligations, and he understands that if the circumstances require, he can decline to dispense."

1. The submission pointed to the finding that the Respondents' had acted promptly and appropriately when notified by the PRU of the irregular dispensing which ultimately gave rise to the Complaint.
2. The submission then concludes by proffering that each of the findings made by the Tribunal at stage 1 and particularly referred to in the submission, "strongly argues in favour of the appropriate order being a reprimand."
3. The submission then addressed each of the Respondents individual character, evidence of remorse, statements of shame and the insight which has been developed and is now evident. In relation to those matters we have set out in the stage 1 decision certain of our findings. We have set out in this judgment the evidence of Mr Saweris in relation to the action he took immediately upon being notified by the PRU of the pharmacy failings, the action he has taken to educated himself further, the action he has taken to be mentored and the action of taking employment in a busy pharmacy to work alongside an experienced pharmacist following his being able to resume his profession upon the expiration of his period of suspension. We accept that action provides evidence of the obtaining of insight into the faults in his practice both as a pharmacist and as a proprietor of a pharmacy business.
4. The submission concludes addressing factual aspects of the cases of each of the Respondents with the following:

"Each Respondent's Stage Two Affidavit is exceptional for the simple reason that each Respondent particularises in short form (despite the length of each Affidavit), the extensive training and education they have undertaken to demonstrate their commitment to excellence in the practise of pharmacy. The extent of their learnings is not what was required to fill a gap in knowledge, as the Complaint is in fact extremely narrow regarding any established gap in knowledge or skill in that it was limited largely to the context of a specific relationship with the prescriber Dr Sriskanda and the dispenser. Again, it is the response of each respondent over a sustained period of more than 6 years, that makes this case exceptional and unique and supports a protective order of a reprimand."

1. The submission then addresses matters of legal principle applicable to this determination. In paragraph 48 of the submission the Respondents say:

"The provisions of the National Law relevant to determining the appropriate protective order can be summarised as follows -the health and safety of the public will be protected if the public has access to the service of health practitioners, the health workforce is flexible, responsive and sustainable, and the scheme of registration and regulation of health practitioners operates in a transparent, accountable, effective and fair way. Most importantly, the health and safety of the public will be protected if restrictions on the practice of a health professional are imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality."

1. The final portion of the above extract from the submission is a direct reference to a sub-section of section 3A of the National Law (see s 3A (2)(c)).

"Restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality."

"The Respondent acknowledges in his submission that "there are other considerations, not included in the express terms of the statute, which underlie the purpose for which orders may be made in disciplinary matters, such as the maintenance of the good repute of the profession, and public confidence in the provision of health services. These are not phrases found in the National Law in NSW but rather arise, by implication, from the nature of the protective jurisdiction and expressed in the context of judicial or quasi-judicial decisions, as indirect protective concepts which, when explained in published decisions, have an educative 'public interest' purpose, by informing the profession and the public at large, of the manner in which the proposed orders are to benefit the community."

1. The Respondent submits the role of protective orders is not to punish rather it is to affect a mode of continuing public protection. (see Health Care Complaints Commission v Aref [2018] NSWCATOD 133 at [25]).
2. In relation to the aspect of preserving public confidence in the profession the Respondent refers the Tribunal to the decision in Medical Practitioners Board of Victoria v Lal [2009] VSCA 109 at [59]. In particular the words in that decision:

"Like the goodwill which attaches to a business, however, public confidence in the medical profession is not turned on and off like a switch. Public confidence is won - or lost - gradually, as the cumulative effect of the experiences of thousands of individuals in their dealings with medical practitioners over many years. The decision to register a particular person to practise medicine is unlikely, in our view, to have any material or lasting effect on the established reputation of the medical profession as a whole. It is not irrelevant that the standing of the medical profession in this community is very high."

The submission then states: "The Respondents' failures were not ethical failures or matters of impropriety. No moral culpability underpins their conduct. Although the absence of 'moral turpitude'[8] is not determinative of the appropriate protective order, it argues strongly in favour of a reprimand as the only appropriate protective order.

As pointed out by Barrett JA in Lee v Health Care Complaints Commission [2012] NSWCA 80 at [31], elements of [general] deterrence are subsidiary to other protective elements in the exercise of a protective jurisdiction. The actual deterrent effect that disciplinary proceedings have on the profession is very hard to ascertain, and the Commission has led no empirical evidence so support a submission that general deterrence is only met by a period of suspension, or imposition of a significant fine."

The Respondent addressed the appropriateness of a reprimand

1. The issue really to be addressed here is the impact as a general deterrent of a reprimand. The Respondent referred us to a number of decisions of the NSW Court of Appeal and the Tribunal which speak to the appropriateness of a reprimand. It is submitted:

"In NSW it has been said in a number of cases that a reprimand in itself acts as a deterrent both directly and indirectly: NSW Bar Association v Meakes [2006] NSWCA 340 (per Basten JA) and further, upholds and reinforces the standards of and confidence in the profession: Riley v Health Care Complaints Commission [2019] NSWCATOD 54 at [155]; Health Care Complaints Commission v Perera [2018] NSWCATOD 112; Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156.

A reprimand may be all that is necessary to indicate there is no further need for deterrence: Health Care Complaints Commission v Dunstan [2018] NSWCATOD 102; Health Care Complaints Commission v Lord [2019] NSWCATOD 182.4. As Marks J said in Peeke v Medical Board of Victoria (Unreported, Supreme Court of Victoria, No 10170 of 1993, 19 January 1993, at p6) a reprimand, "certainly does not trivialise a serious lapse of professional standards". It may be inappropriate or inadequate in many circumstances, but a reprimand, to a professional person, has a potential for serious adverse implications".

In Psychologists Registration Board of Australia v Coleman (Review and Regulation) [2013] VCAT 738 (13 May 2013) the Tribunal considered the effect of a caution on the one hand and a reprimand on the other. It was held that "[t]he ordinary meaning of the words leads to the conclusion that a reprimand is an official rebuke for past wrongful conduct whereas a caution is a reminder to take care in the future and avoid repetition. Of the two, we consider a reprimand provokes more serious consequences." It does represent denunciation.

A finding of professional misconduct self-evidently represents the serious nature of the conduct proven against the respondents. That the National Law provides for the availability of any protective order (even no protective order) after a finding of professional misconduct is made, reinforces the evaluative judgement that this Tribunal must bring to the task at hand. General deterrence and the good repute of the profession is and can be reflected in a protective order that results in a reprimand."

1. The HCCC emphasised the importance of general deterrence. It supported the maintaining of high standards required of pharmacists. General deterrents are important even where the practitioners in this proceeding are no longer a concern in relation to the protection of the public.
2. The HCCC referred to the submission of the Respondent and submitted that the provisions of s 3A of the National Law cannot be support for the proposition that general deterrence is not important.
3. The HCCC referred to the quantities of dangerous drugs which were wrongly dispensed by the Respondents and submitted the quantity was very large. It was not an isolated event and the dispensing could have caused harm.
4. Although the Respondent was a victim of Dr. Sriskanda he did have a responsibility of his own as a pharmacist which was not exercised due to a mistaken belief.
5. If the Tribunal imposed a period of suspension on the Respondent of between 1 and 3 months it would not require him to divest himself of ownership of his remaining pharmacy in regional NSW.
6. The HCCC conceded the financial circumstances of the Respondent would be relevant to the consideration of imposing a fine as a protective order.
7. In reply to the oral submission of the Respondent (see below), the HCCC submitted that:
   • General deterrence is not achieved if protective orders are not imposed.
   • Action taken by the Pharmacy Council are not sufficient to be general deterrence by the time the case is before the Tribunal.
   • The principles set out in s 3A (s) of the National Law were in place when the decision in Do, referred to in MFI1, was decided in 2014.
   • In answer to the Respondent's submission on costs, the HCCC submitted that it not pressing parts of its' Complaints which it abandoned was a responsible action which should not be reflected in an adverse costs order.

1. The Respondent submitted the decision in the Azzer judgment is not binding on this Tribunal in terms of requiring this Tribunal to deliver a similar protective order to that which was visited on Mr Azzer. The respondent in that case faced 7 complaints including that he acted unethically and that complaint was established. The overwhelming majority of the dispensing which was set out in Schedule 2 to the Complaint against this Respondent was actioned by Mr Azzer.
2. The Respondent pointed out that the contest between the HCCC and this Respondent was not the disputing of the actual dispensing specified in the schedules to the Complaints, rather it was a case of the Respondent "not admitting" the Complaints Two, Three and Four.
3. The Respondent argued that the concept of General Deterrence is evident in the outcomes for the Respondent of the conduct which occurred the years prior to November 2019. Those outcomes include:
   • Three months of suspension from practice.
   • The loss of income arising from not being able to work in a pharmacy during the suspension period.
   • The decision for Stage 1 is a decision setting out in detail, for the public to see, of each of the Complaints made against the Respondent. There is a finding of professional misconduct.
4. In relation to the gravity of the offending, which was the subject of the HCCC submission, the Respondent submitted the matters set out in detail in his written submission at paragraph 5. The Respondent submitted he was accepted as an honest and remorseful litigant whose misconduct was a product of misunderstanding the role of a prescribing doctor and the power he had as a pharmacist to refuse to dispense a prescription in the face of a direction or insistence of the prescriber.
5. The submission addressed the circumstance of the Respondent being a victim of the professional misconduct of a medical practitioner who clearly took advantage of the respondent's misunderstanding of his ability to decline to dispense to her patients where that dispensing was inappropriate.
6. The Respondent pointed to the immediate action he took when confronted with the report from the PRU. It is submitted that was a responsible conduct.
7. Section 149 of the National Law makes clear that any of the powers specified in subdivision 6 Disciplinary powers of Tribunals [NSW] are available to the Tribunal. Those powers include the power to impose a reprimand (s 149A) and the power to suspend or cancel a health practitioner's registration (s 149C).
8. The Respondent submitted that the power to impose a fine pursuant to section 149B is caveated by the provision in s 149B (2)(b), namely:

"A fine is not to be imposed unless:

(a) the Tribunal finds the registered health practitioner to have been guilty of unsatisfactory professional conduct or professional misconduct; and

(b) the Tribunal is satisfied there is no other order, or combination of orders, that is appropriate in the public interest."

1. The Respondent submits the Tribunal will be satisfied the imposition of a reprimand in this case, is appropriate.

1. The Respondent submitted the costs order should be framed so that the Respondent is required to meet 70% of the costs of the HCCC.
2. In support of an order which represents a percentage of the costs incurred by the HCCC, the Respondent submitted the following:

(a) The failure of the HCCC to establish Complaints Two, Three and Four, against the Respondent represented a substantial portion of the hearing time in Stage 1.

(b) The Complaints Two Three and Four were based upon alleged conduct of the Respondent which was said to be unethical and improper and was not based upon the conduct being significantly below the standard expected of the Respondent. As such, the importance of defending the Complaints numbered two, three and four is self-evident.

1. We have closely considered the evidence in this hearing. We have again reflected upon our findings and determinations in the Stage 1 decision. We have accepted the submission of the Respondent as to the appropriateness in this case of a Reprimand being imposed. We conclude that the imposition of a fine, as submitted by the HCCC, in the sum of $20,000 or in any sum, is unnecessary and in the circumstance of this case could reasonably be seen by the public at large as punitive and beyond that necessary to be a deterrent to the profession.
2. We are satisfied that the public will be safe and well served by the Respondent continuing to practice pharmacy rather than being suspended for between one and three months, or fined.
3. In reaching the conclusion that a Reprimand alone is sufficient to be a general deterrent and to achieve the protection of the reputation of the profession and public trust in those who practice as registered pharmacists. The general deterrent created by the publication of this judgment will emerge in the reading of the judgment and all that has befallen the Respondent since January 2019 when the PRU first notified him of the irregularities detected in an audit of the pharmacy business at West Gosford. It will further disclose all of the remedial action taken by the Respondent to ensure he is never again found wanting in his compliance with the law and the codes of conduct required of a registered pharmacist.
4. The list of actions taken by the Respondent since January 2019 includes the following:

(a) Responsive and timely changes to the practices and protocols utilised in the West Gosford Pharmacy.

(b) Attending with a mentor to address his practice concerns.

(c) Further formal education in relation to regulatory provisions applicable to the practice of pharmacy if NSW and Australia.

(d) Undertaking and obtaining qualification in relation to vaccine administering.

(e) Seeking work as an employed pharmacist where there is a busy practice and an experienced pharmacist to provide further guidance and direction.

1. The adverse consequences of the Respondent's conduct are as follows:

(1) Suspension for three months.

(2) Disposition of the West Gosford Pharmacy.

(3) Loss of income whilst suspended from practice and pending obtaining other employment.

(4) Shame and disgrace experienced by having had action brought against him by the Pharmacy Council.

(5) The humiliation of having to approach colleagues and personal associates to explain what had happened to him in facing this proceeding and seeking a reference from those persons to place before the Tribunal.

(6) The publication of the Stage 1 decision which finds him guilty of professional misconduct. The consequent expected publication in practice journals and like publications circulating to the Pharmacists of NSW and further.

1. Before concluding this part of the determination, we address the submission which was raised by the HCCC in relation to the Azzer case.
2. The point made by the HCCC about the Azzer judgment is that Mr Azzer, who was the employee of the Respondents' in the West Gosford Pharmacy was visited with a suspension for three months as a protective order by the Tribunal constituted differently from this Tribunal.
3. Whilst it is not appropriate to try and establish a yard stick for the making of a particular type of protective order as opposed to a different form of order, the HCCC has clearly raised the decision in Azzer to serve such a purpose, although building caution around the approach.
4. The facts found by the Tribunal against Mr Azzer were different to those established against each of the Respondents' in this case. In the Azzer decision the Tribunal stated in its conclusion:

"140 The Commission argued that the Respondent's conduct in this case was very serious.

141 The conduct that is the subject of Complaint 1 involved the Respondent dispensing large quantities of dangerous drugs to numerous patients repeatedly and over an extended period of time. These were drugs of a kind known to be liable to generate dependence and therefore prone to misuse, or abuse, by patients themselves, or illicit redirection into the community. Some of the quantities supplied to these patients were extraordinary - in some cases several times the highest recommended dose for serious cancer pain. More than one patient either had been, or subsequently had to be, treated for opioid dependence. It should have been obvious, even to the most junior practitioner, that this dispensing was manifestly excessive and liable to cause serious harm, either to the patients or others in the community. Indeed, as a junior pharmacist, the Respondent had only recently completed his intern training which he acknowledged included training about requirements for practising as a pharmacist in NSW."

1. Mr Azzer was found guilty of four of six Complaints of unsatisfactory professional conduct. One of those complaints alone was found to amount to professional misconduct.
2. The suspension imposed upon Mr Azzer by the Pharmacy Council in 2019 was for one month only followed by the imposition of conditions which were also removed in March 2020.

1. We are not clear how the HCCC is proposing to frame its costs in the sense of dividing the costs between the three respondents. It could seek an order that the Respondent pay one third of the costs of the HCCC incurred in the proceeding. It could also issue three separate costs assessments, being one for each of the Respondents. Although the hearing of each of the respondents separate proceedings have been heard by the Tribunal concurrently, the parties have required that each respondent's case also be considered separately and be delivered of a separate decision. That is what happened with the Stage 1 decisions and that same process will be adopted for this stage 2 hearing. In order to seek further input from the HCCC as to the wording of a costs order, the Tribunal had the Registrar enquire of the parties, on its behalf, as to such wording. The HCCC responded as follows:

"Should the Tribunal determine that each of the respondents pay a percentage of the costs incurred by the Commission, we request that in each of the three proceedings any costs order be expressed as a specified percentage of the costs of the Commission as agreed or assessed, acknowledging that any costs relating to preparing for and attending the hearings will be apportioned between the 3 pharmacist matters."

1. The HCCC provided oral submission in relation to the contest between the parties in relation to costs. It submitted the Tribunal can award costs. It confirmed the legal position that costs follow the outcome in a proceeding such as this. It submitted the HCCC was successful in the Stage 1 determination.
2. The HCCC conceded the non-establishment of Complaints 2, 3 and 4 is a relevant consideration for the Tribunal. It referred the Tribunal to the decision in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42] and Health Care Complaints Commission v Abdallah [2025] NSWCATOD 76 at [168].
3. The HCCC submitted the hearing of Complaints 2, 3 and 4 added minimal time to the hearing and preparation of the Respondent's case compared to the balance of the Complaints. If the Tribunal was to consider a departure from an order that the Respondent pay the whole of the HCCC costs of the proceeding, it should express that in an order which requires the Respondent to pay a percentage of the HCCC's costs. The HCCC should not be ordered to pay the costs of the Respondent or any part thereof.

1. We conclude that this case does call for an order that the Respondent pay a share of the HCCC costs attributable to his proceeding. The Respondent has submitted that an order requiring the Respondent to pay 70% of the costs of the HCCC, either as agreed as to quantum or as assessed would be an appropriate costs order to make in the circumstances of this case. We agree that such a percentage payment is appropriate. We conclude that although the outcome of the Stage 1 hearing could be described as the HCCC having been successful in obtaining the findings it was seeking in the proceeding, it was not successful in each of the Complaints it prosecuted against the Respondent in the hearing.
2. It was a significant part of the action/Complaint litigated before us in the Stage 1 hearing, that the Respondent had failed in his capacity as a proprietor of the West Gosford Pharmacy to oversee, manage, supervise and intervene in the conduct of his employed pharmacist Mr Azzer. Complaints 2, 3 and 4 sought findings against the Respondent in his capacity as a proprietor. The cross-examination of the expert by each of the Respondent's senior counsel was lengthy and largely addressed the complaint directed at the action of this Respondent and his co-defendants, as the proprietors of the West Gosford Pharmacy. The detail of that cross-examination and our conclusions are set out in the Stage 1 decision. Ultimately the Respondent was successful in relation to his defence of Complaints 2, 3 and 4. That success arose in the circumstance of the Tribunal not having been satisfied to the requisite level by the evidence and argument advanced by HCCC. We conclude the successful defence of Complaints 2, 3 and 4 by the Respondent does warrant the exercise of discretion on the part of the Tribunal in the determination of this costs application and we find an order which requires the Respondent to pay 70% of the costs incurred by the HCCC in this proceeding is reflective of the successful defence.

(1) Pursuant to s 149A(1)(a) of the Health Practitioner National Law (NSW), the Respondent is reprimanded.

(2) This Respondent, Nader Saweris, is to pay 70% of one third of the costs incurred by the Health Care Complaints Commission in the combined proceedings of suit numbers 2022/00317605; 2022/00317607; and 2022/00317611. Such costs to be as agreed or as 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.

[1] Saweris at [59], [409]; Derias at [399]; Morcos at [389].

[2] Saweris at [398], [402]; Derias at [385], [392]; Morcos at [375], [382].

[3] Saweris at [471]-[472]; Derias at [499]; Morcos at [489].

[4] Saweris at [407]; Derias at [397]; Morcos at [387].

[5] Saweris at [508]; Derias at [499]; Morcos at [489].

[6] Saweris at [587]-[588]; Derias at [579]-[580]; Morcos at [570]-[571].

[7] Saweris at [591]; Derias at [583]; Morcos at [574].

[8] Qidwai v Brown (1984) 1 NSWLR 100 at p104 referring to what was said by Sugerman J in Ex Parte Meehan; Re