Reimers v Medical Council of NSW

Background factual material

1. Before dealing with the complaints and the decision of the Medical Tribunal, it is appropriate to set out some brief background material. This material is based on a large volume of documentation tendered in the proceedings on behalf of both the applicant and the respondent Medical Council of NSW. We should add that in addition to this documentation, the applicant gave oral evidence and was cross-examined, and oral evidence was given by Dr Robert Fisher a consultant psychiatrist retained by the respondent.
2. The applicant was born in 1964. He graduated in medicine in 1989 and completed an internship at Royal Newcastle Hospital. He also worked as a resident medical officer on a part-time basis at Nepean Hospital. He was registered as a medical practitioner in New South Wales on 19 December 1988. He became a medical officer in the Royal Australian Air Force. In 1993 he was appointed as a senior resident medical officer in trauma and anaesthetics and during the period 1993 to 1996 trained as an anaesthetist, filling positions at a number of hospitals. By 1998 he had completed his formal training and provisional fellowship year as a specialist anaesthetist and commenced practice as a Consultant at Hawkesbury Private Hospital, Ryde Hospital and Hills Private Hospital.
3. In circumstances which we shall shortly describe he was suspended from medical practice on 7 April 2000. Towards the end of 1995, while under stress, he decided to take some pethidine, which he had in his doctor's bag. He said in evidence that at the time he was feeling "destructive and wanting to lash out." After this, the "addict part of my brain" looked for other opportunities to use this substance again. He said that when he started to practice he had access to pethidine and looked for it. He became addicted even though he was cognitively intact. He made the decision to continue to use it early on thinking that he could manage it. Between 1995 and August 1997 he said that he was at all times impaired in the practice of medicine by continuing use of pethidine. In addition to this substance, he also used fentanyl. He took these drugs from the hospitals at which he was working. He also took some other drugs. In January 1997 he was confronted by some colleagues at Hornsby Hospital who suggested that he was abusing narcotics. He denied this telling them, untruthfully, that he had been using benzodiazepines. He consulted a psychiatrist but was untruthful in the information given to her about his drug use. He was also confronted by colleagues a short time later at Liverpool Hospital about the same issues.
4. The applicant's situation was brought before the New South Wales Medical Board which conducted an inquiry on 8 August 1997. The applicant gave a history to the Board of having become depressed following the birth of a child the previous year and having received treatment from a psychiatrist, Dr Stella Dalton. He started using benzodiazepines to relieve stress and sleeplessness and used these drugs whilst at work. He denied any involvement in any irregularities reported at a number of hospitals at which he had worked concerning the drug register. In its report the Board said, inter-alia, "Dr Reimers presented quite defensively with little acknowledgement that there had been a problem of any significance and an unwillingness to access the role that the Board might play regarding this drug problem. He also was unaware of the significance of using drugs whilst being responsible for the patients care in the operating theatre. He did not appear to share the Panellists concerns when this was raised with him." It will be remembered that at that time the applicant had not attained registration as a specialist. He was concerned that any conditions imposed by the Board on his registration might impact upon his future career.
5. At the end of the hearing the applicant agreed in writing to a number of conditions on registration, including a prohibition against self administering of any Schedule 4 drugs or narcotic derivatives and a prohibition against self medication. He agreed to attend for thrice weekly urine analysis, to advise his employer/supervisor of the conditions, to work only in a supervised position, to undertake treatment by a psychiatrist and to attend for regular review by a psychiatrist nominated by the Board and to attend a further review with the Board in six months. Importantly, the applicant did not disclose to the Board at this hearing the fact that he had been consuming pethidine and fentanyl. Later, evidence emerged that the applicant's competency and capabilities as an anaesthetist were impaired and a number of allegations were made that the applicant had been involved in a breach of the protocols concerning the drug register at a number of hospitals. Furthermore, a serious incident occurred involving the death of a patient of the applicant. These incidents culminated in a hearing of the NSW Medical Board on 7 April 2000. The report of the Board does not contain any list of complaints against the applicant formulated in any formal sense. However there is reference to allegations that there were inconsistencies in the drug register at one particular hospital, that there were concerns of possible drug abuse, and there were concerns about an incident which occurred during the course of an operation after which the patient had died. The Board suspended the applicant's registration, initially for 30 days, but subsequently the suspension was extended for varying periods until a formal Complaint to the Medical Tribunal was made by the Health Care Complaints Commission on 4 May 2002. This Complaint initiated the proceedings before that Tribunal and the decision which is the subject of review in these proceedings.

The Complaints before the Medical Tribunal

1. The Notice of Complaint by which the several complaints came before the Tribunal alleged that the applicant, being a medical practitioner registered under the then Medical Practice Act 1992;

COMPLAINT 1 Is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 of the Act in that he has demonstrated a lack of adequate knowledge, skill, judgement and/or care in the practice of medicine and/or is guilty of unethical or improper conduct relating to the practice of medicine. PARTICULARS OF COMPLAINT 1 On 4 February 2000 the practitioner was employed as an anaesthetist at Ryde Hospital. Patient SB was hospitalised for a right hemicolectomy. The practitioner was the anaesthetist for the operation. In the operating theatre the practitioner: (1) failed to record the use of a muscle relaxant on the patient's anaesthetic chart. (2) failed to recognise that the patient was not breathing when he proceeded to extubate her. (3) failed to ensure that spontaneous respiration had been established before the patient was extubated and taken from the operating theatre. (4) failed to take effective action to improve the patient's circulation. (5) failed to undertake appropriate resuscitation of the patient. (6) left the operating theatre at a time when the patient was hypotensive and inadequately perfused. (7) (a) ordered and administered an excessive quantity of Pethidine to the patient having regard to the patient's age, weight and clinical condition or in the alternative, 2 (b) diverted the Pethidine ordered for the patient for his own use. In recovery the practitioner: (8) inappropriately delayed starting active resuscitation when the patient had no pulse and was without spontaneous respiration. (9) rejected the use of an ECG monitor at a time when the patient was in a poor condition. (10) failed to properly assess and manage the patient adequately after transfer from the operating theatre to the recovery ward. (11) inappropriately failed to call for further assistance. (12) inappropriately refused assistance when the patient was in a critical condition. Self-administration of Pethidine and Fentanyl (13) the practitioner provided anaesthetic services within 24 hours of self-administration of Pethidine and/or Fentanyl Record keeping: (14) the practitioner failed to make adequate, accurate and/or complete notation in the patient's medical records with respect to : (a) timing of events; (b) intravenous infusion; (c) blood loss; (d) urine output; (e) the grade of laryngoscopy; (f) bradycardia; (g) blood pressure; (h) drugs administered. Contrary to proper practice and in breach of the requirements of Schedule 2 of the Medical Practice Regulation 1998.

COMPLAINT 2 Is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 of the Act in that he has demonstrated a lack of adequate knowledge, skill, judgement and/or care in the practice of medicine and/or is guilty of unethical or improper conduct relating to the practice of medicine. PARTICULARS OF COMPLAINT 2 On 4 February 2000 at Ryde Hospital, when the practitioner had the management and care of anaesthetic services for Patient MS he inappropriately: (1) prescribed 100mcg of Fentanyl; and (2) administrated to the patient 50mcg of Fentanyl; and (3) did not record the discard of 50mcg of Fentanyl; and (4) retained the remaining 50mcg of Fentanyl for his own use or alternatively, (5) wilfully destroyed or allowed to be destroyed the remaining 50mcg of Fentanyl contrary to Regulation 123 of the Poisons and Therapeutic Goods Regulations 1994.

COMPLAINT 3 Is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 of the Act in that he has demonstrated a lack of adequate knowledge, skill, judgement and/ or care in the practice of medicine and/or is guilty of unethical or improper conduct relating to the practice of medicine. PARTICULARS OF COMPLAINT 3 On 4 February 2000 at Ryde Hospital, when the practitioner had the management and care of anaesthetic services for Patient BS, the practitioner inappropriately: (1) prescribed 100mg of pethidine; and (2) administered an epidural containing 100mcg of Fentanyl and 75 of Pethidine and lignocaine; and (3) did not record the discard of 25mg of Pethidine; and (4) retained the remaining 25mg of pethidine for his own use or alternatively, (5) wilfully destroyed or allowed to be destroyed the remaining 50 mcg of Pethidine contrary to Regulation 123 of the Poisons and Therapeutic Good Regulations 1994.

COMPLAINT 4 Is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 of the Act in that he has demonstrated a lack of adequate knowledge, skill, judgement and/ or care in the practice of medicine and/or is guilty of unethical or improper conduct relating to the practice of medicine. PARTICULARS OF COMPLAINT 4 On 4 February at Ryde Hospital, when he had the management and care of anaesthetic services for Patient JP the practitioner inappropriately: 1)Prescribed 100 mcg of Fentanyl; and 2) Administered 50mcg of Fentanyl; and 3) Did not record the discard of 50mcg of Fentanyl; and 4) Retained the remaining 50mcg of Fentanyl for his own use or alternatively, 5) Wilfully destroyed or allowed to be destroyed the remaining 50mcg of Fentanyl contrary to Regulation 123 of the poisons and Therapeutic Good Regulations 1994.

COMPLAINT 5 Is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 of the Act in that he has demonstrated a lack of adequate knowledge, skill, judgement and/ or care in the practice of medicine and/or is guilty of unethical or improper conduct relating to the practice of medicine. PARTICULARS OF COMPLAINT 5 On 4 February 2000 at Ryde hospital, when he had the management and care of anaesthetic services for Patient EC the practitioner inappropriately: 1) prescribed 100mcg of Fentanyl; and 2) administered 75mcg of Fentanyl; and 3) did not record the discard of 25mcg of Fentanyl; and 4) retained the remaining 25mcg of Fentanyl for his own use or alternatively 5) wilfully destroyed the remaining 25mcg of Fentanyl contrary to Regulation 123 of the Poisons and therapeutic Good Regulations 1994.

COMPLAINT 6 Is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 of the Act in that he has demonstrated a lack of adequate knowledge, skill, judgement and/ or care in the practice of medicine and/or is guilty of unethical or improper conduct relating to the practice of medicine. PARTICULARS OF COMPLAINT 6 On 24 January 2000 whilst working as an anaesthetist at Hawkesbury District Hospital, the practitioner: a) failed to complete the anaesthetic record chart for Patient CR; b) failed to make any other record of what drugs or intravenous fluids were given in the operating theatre. Contrary to proper practice and in breach of the requirements of Schedule 2 of the Medical Practice Regulation 1998.

COMPLAINT 7 Is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 of the Act in that he has demonstrated a lack of adequate knowledge, skill, judgement and/ or care in the practice of medicine. PARTICULARS OF COMPLAINT 7 On 25 November 1996 at Hornsby Ku-Ring-Gai Hospital when the practitioner was a 4th year anaesthetic Registrar, during the provision of anaesthetic services to JL, who was admitted for laparotomy and right hemicolectomy, the Practitioner: (1) not pressed at hearing;) (2) failed to pass a central venous catheter into the patient's heart or large vein to measure the pressure and allow circulation supporting drugs to be given effectively; (3) not pressed at hearing.)

COMPLAINT 9 Is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 of the Act in that he has demonstrated a lack of adequate knowledge, skill, judgement and/ or care in the practice of medicine and/or is guilty of unethical or improper conduct relating to the practice of medicine. PARTICULARS OF COMPLAINT 9 On 9 October 1996 at Hornsby Ku-Ring-Gai Hospital when the practitioner was a 4th year anaesthetic registrar, he: 1) took possession of 100mg of Pethidine for Patient ES; and 2) recorded administering 75mg of Pethidine to the patient; and 3) did not record the discard of the remaining 25mg of Pethidine; and 4) retained the remaining 25 mg of Pethidine for his own use or alternatively, 5) wilfully destroyed or allowed to be destroyed the remaining 25mg of Pethidine contrary to Regulation 123 of the Poisons and Therapeutic Goods Regulations 1994.

COMPLAINT 10 Is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 of the Act in that he has demonstrated a lack of adequate knowledge, skill, judgement and/ or care in the practice of medicine and/or is guilty of unethical or improper conduct relating to the practice of medicine. PARTICULARS OF COMPLAINT 10 On 4 February 1997 at Liverpool Hospital when the practitioner was working as an anaesthetist, he: 1) prescribed 100mg of Pethidine for Patient SB at 1100 hours; and 2) prescribed an additional 100mg of Pethidine for the patient at 1130 hours; and 3) administered or caused to be administered 100mg of pethidine in addition to 100mcg of Fentanyl to the patient; and 4) retained the remaining 100mg of Pethidine for his own use or alternatively, he wilfully destroyed or allowed to be destroyed the remaining 100mg of Pethidine contrary to Regulation 123 of the Poisons and Therapeutic Good Regulations 1994.

COMPLAINT 11 Is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 of the Act in that he has demonstrated a lack of adequate knowledge, skill, judgement and/ or care in the practice of medicine and/or is guilty of unethical or improper conduct relating to the practice of medicine. PARTICULARS OF COMPLAINT 11 On various occasions between 1996 and 2000 the practitioner: 1) self-administered drugs of addiction, viz. Pethidine, Fentanyl and benzodiazepines, contrary to s 12 of the Drug Misuse and Trafficking Act 1985 and Clause 101 of the Poisons and Therapeutic Goods Regulation 1994; 2) misappropriated drugs from hospital stocks; 3) used drugs intended for patient use, 4) provided anaesthetic services whilst under the influence of narcotic drugs and benzodiazepines.

COMPLAINT 12 Is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 of the Act in that he has demonstrated a lack of adequate knowledge, skill, judgement and/ or care in the practice of medicine and/or is guilty of unethical or improper conduct relating to the practice of medicine. PARTICULARS OF COMPLAINT 12 The practitioner deliberately misled the New South Wales Medical Board (the Board) on each of the following occasions: 1) On 6 May 1997 during a meeting with Dr Murray Wright, a Psychiatrist appointed by the Board to examine the practitioner, he denied the use of narcotics and self-administration of any substance parenterally. 2) On 8 August 1997 at an inquiry held under s 182 of the Medical Practice Act 1992 the practitioner did not disclose to the inquiry that he had been placed in an administrative job at Liverpool Hospital in 1997 pending an investigation by the Pharmaceutical Services Branch of the Department of health into his conduct while at Liverpool Hospital. 3) In letter to the Board dated 13 August 1997, 1 September 1997, 3 September 1997, 22 October 1997 and 10 November 1997 the practitioner denied that he had a substance abuse problem. 4) On 7 April 2000 at an inquiry held under s 66 of the Medical Practice Act 1992, the practitioner told the inquiry that he had taken Fentanyl and Pethidine orally but denied injecting these substances.

COMPLAINT 13 Suffers from an impairment within the meaning of clause 3 of the Dictionary to the Act. PARTICULARS OF COMPLAINT 13 He suffers from a physical or mental disorder, to wit, addiction to (a) deleterious drug (s), viz. Fentanyl and/or Pethidine and/or benzodiazepines which detrimentally affects and is likely to detrimentally affect his physical or mental capacity to practise medicine.

Decision of the Medical Tribunal

1. In its decision, the Tribunal found the applicant guilty of professional misconduct and removed his name from the Register of Medical Practitioners. It ordered that there be no application for review for 10 years.
2. In the course of its Reasons for Decision, the Tribunal said inter-alia; "Mr Byrne submitted that, notwithstanding a finding of professional misconduct, it would be appropriate to permit Dr Reimers to continue to practise, subject to strict conditions. He referred to the decision of a differently constituted Tribunal in the matter of Dr M I Davies, handed down on 6 September 2002. However, in the interest of the community, the Tribunal is of the opinion that only an order for the removal of Dr Reimers' name from the register will meet the circumstances of what the Tribunal would categorise as his gross departures from appropriate standards of conduct. He demonstrated, in the Tribunal's view, extremely significant deficiencies both of character and of skill in the practice of medicine. He was shown to be willing on many occasions to put his own interest above those of patients, probably in the case of SB, at least contributing to her tragic death. It is difficult to conceive that a more serious finding could be made against a medical practitioner. Nor, in light of what is earlier said in these reasons, has Dr Reimers, in the opinion of the Tribunal, come even close to proving a reformation of his character to the standard referred to by Walsh JA in ex parte Tzinolis re Medical Practitioners Act (1966) 67 SR 448. As to whether the Tribunal should fix a time before which an application for review of the order which the Tribunal intends to make, may not be made, the Tribunal feels bound to observe that in its opinion, on the evidence before it, the deficits of skill and character of Dr Reimers are so great as to cast doubt upon whether he will ever be regarded as a fit and proper person to practice medicine. However for the purposes of section 29 (3) of the Act, the Tribunal will fix a period of 10 years."
3. We observe that the Tribunal expressed strong views concerning the conduct, skills and character of the applicant. We shall return to this aspect later in these Reasons for Decision.

Further proceedings

1. On 25 February 2009 the applicant applied to the Medical Practitioners Board of Victoria for registration as a medical practitioner in that state. By decision dated 14 May 2009 that application was refused. In part, that Board relied on a report of Dr Anthony Samuels dated 23 April 2009. Dr Samuels is a psychiatrist who had been retained by that Board. In his report, Dr Samuels had said inter-alia; "I have already explained to Mr Reimers that it would be in his interest to begin a process of engaging with a drug and alcohol specialist and begin a process of regular urine drug screening so that any registration authority would more confidently form a view that his substance problem was indeed in remission. It would be helpful as well if he were in a prolonged therapeutic relationship with either a drug and alcohol specialist or psychiatrist with expertise in the area of drug and alcohol abuse as they would be better placed to comment on his current risk of prolapse, his personality functioning style and to give a more definitive opinion in relation to whether or not there is an underlying anxiety or mood component to his presentation."
2. On 10 December 2009 the applicant again applied to the Medical Practitioners Board of Victoria for registration as a medical practitioner. This application was also refused, in a decision dated 11 March 2010. That decision was in turn the subject of an appeal to the Victorian Civil and Administrative Tribunal, which appeal was dismissed.
3. The applicant applied to the Medical Board of Queensland for registration as a medical practitioner in that state on 7 December 2009. This was refused on 25 January 2010.
4. In 2012 and again in 2013 the applicant applied to the New South Wales Court of Appeal for certain relief, which was denied on both occasions.

The factual evidence

1. In addition to the factual matters previously set out, there is some additional evidence, predominantly given by the applicant which we need to address. [redacted] The applicant said that his first wife left him shortly after he was suspended from practice. After completing his law degree he married again, but this marriage also ended in divorce. He has a child from his first marriage from whom he is estranged, and two children from his second marriage whom he sees frequently. The applicant said that although he had completed a law degree in 2003 he had not been permitted to practice law. Furthermore, a number of other positions for which he has applied over the years have been denied him, and he presumes this is the result of the cancellation of his registration as a medical practitioner and the reasons therefor. Some of these positions have been research positions, consequent upon the awarding of his PhD. based on research conducted in the field of cardiovascular medicine. He thought that if he gains registration as a medical practitioner this may assist him in obtaining a research position. The applicant said that [redacted] he felt that he had "hit another rock bottom", and needed to take some positive steps to assist his recovery, although, as he said, he had not taken any drugs of any kind since 2003. He commenced attending a support group called Doctors in Recovery in early 2007 and became secretary of that group in 2010 for one year. He also began attending meetings held by Narcotics Anonymous. It was about this time that he decided to seek reregistration as a medical practitioner. After unsuccessfully attempting registration in Victoria and Queensland he realised that the findings of the Medical Tribunal in 2003 created a stumbling block for him. He said that this is why he attempted on two occasions to have that decision overturned in the New South Wales Court of Appeal.
2. In 2011 the applicant gained permanent employment in an Australian Government Department.
3. In addition to the completion of the research leading to his PhD, the applicant has lectured in medicine at an alternative medicine College between 2004 and 2006, has worked as a medical typist, has read two medical textbooks, subscribed to a medical newsletter and completed CME on a website. He said that he has encountered many obstacles in keeping current with medical knowledge. In 2010 he attempted to enroll in a local CME program, but was refused, and he made contact to seek enrolment in the CME program of the Australian and New Zealand College of Anaesthetists but received no reply.
4. The applicant maintains that he has never returned to drug use since 2003 "despite the extremely difficult years since then." He said that he now has a total insight into his drug addiction condition, and the need to ensure that he no longer succumbs to drug use. Furthermore, he professes insight into and remorse for the adverse impact that his drug addiction has had on his ability to practice medicine, and the tragic consequences for one of his patients.
5. There was evidence that the applicant had undertaken urine analysis in 2009 and 2010. There is no evidence of any urine analysis after this.

The medical evidence

1. The applicant was the subject of a report from consultant psychiatrist Dr Nigel Prior dated 4 June 2010. This report was created at the request of the Medical Board of Queensland in conjunction with the applicant's application for registration in that State. Dr Prior was dissatisfied with the level and extent of urine testing which the applicant had undergone and felt that his treatment was also inadequate, in that it should have been more intensive and over a longer period of time.
2. Dr Prior was of the opinion that the applicant was not a fit and proper person to practice medicine in Queensland. He referred to the applicant's abuse and dependency disorder and a "likely Personality Disorder." He thought that there was insufficient evidence to support the applicant's assertion that he had abstained from drugs fully over a period of 10 years. He thought that the applicant required further treatment for his addiction and that an underlying Personality Dysfunction should be adequately addressed.
3. Dr Prior concluded; "Finally I consider that he has, for many years, not accepted the seriousness of these conditions and actions and the big impact it has had on others. He has only belatedly begun to express remorse. It appears that he has been motivated to change following strong direction and guidance from Dr Samuels and the Medical Board of Victoria. This has not occurred of his own insight or understanding of his behaviour, these conditions and the impact it has had on others. On balance I consider that he remains at risk for similar such behaviour in the future without the appropriate treatment having been conducted."
4. Dr S Dalton, a consultant psychiatrist had treated the applicant periodically commencing in January 1997. She provided a report dated 17 August 2010. It appears that he consulted Dr Dalton on a number of occasions throughout most of 1997. However he did not disclose to her that he had been using pethidine and fentanyl. He again consulted her in April 2000 after the death of the patient. At that stage he informed her about his drug dependency problem. The applicant attended "regularly" a Doctor in Recovery group during 2000. Dr Dalton said that he "did not collapse into depression and remained drug free as was evidenced by urine testing which he ceased in July 2001." The applicant continued to see Dr Dalton at six weekly intervals since mid-2009. As at the date of her report Dr Dalton said "I believe he is now adequately treated as evidenced by his achievements and long periods of documented remission. He was drug free from April 2009 when he commenced random urine drug testing as per the NSW Medical Board protocol. He commenced thrice weekly urine testing in June 2010. He reports that he had had hair drug tests performed in February of 2009 which indicates that he was drug free for much of 2008. All testing has been negative. I am satisfied that at present he is in sustained remission. His achievements, which include his Law Degree, his PhD. and his ability to look after two small children on his own, serve to reinforce my impression." Dr Dalton said that in her opinion the applicant "should remain in remission and practice safely with conditional registration which would involve appropriate restrictions on his practice together with supervision and monitoring."
5. The applicant consulted Gerard McShane and Eva Wong, clinical psychologists. Mr MacShane reported on 24 February 2010. The applicant appears to have attended 12 sessions between the period 2 November 2009 and 7 March 2011. The report of 24 February 2010 obviously predates the later consultations. In that report Mr MacShane said that the applicant "demonstrated that he has identified the personal and professional issues behind his previous drug use, which impaired his medical ability to act appropriately and led to the death of the patient in his care. Mr Reimers is in a very different place where he was 10 years ago when he was impaired. Since that time Mr Reimers has remained drug-free, completed a law degree and become a responsible and involved father. Until recently Mr Reimers was in some way blocked from fully accept (sic) responsibility for his behaviour as a medical practitioner and had poor acceptance of the NSW Medical Board's decisions." Mr McShane then related 2 events which he said demonstrated the applicant's understanding of his own behaviour. He concluded that the applicant; "….. has gained insight into his previous behaviour before the Victorian Medical Tribunal and has insight into his developmental, relational and workplace conflict issues that precipitated his initial experimentation and drug dependency. Mr Reimers is now in a far better place personally to use his considerable skills to benefit the community with appropriate support and supervision."
6. The respondent tendered into evidence a report of Dr Robert Fisher a consultant psychiatrist dated 17 July 2014 and Dr Fisher gave oral evidence in the proceedings. Dr Fisher had had access to all of the relevant documentation in the proceedings and examined the applicant on 6 May 2014.
7. After reviewing the applicant's history and his consultation with the applicant, Dr Fisher expressed the opinion that the applicant did have insight into the conduct as described in the 2003 decision of the Medical Tribunal and which was the basis for the cancellation of his registration. He also accepted expressions of remorse by the applicant for the self administration of drugs and for his contribution to the death of the patient. He was asked to comment whether the applicant had overcome the defects in his character that had led to his deregistration. Dr Fisher said; "in my experience, it is often the case that ostensible defects of character are driven by drug-seeking behaviour once a pattern of abuse or dependence has been established. I suspect that this is a more likely explanation for Dr Reimer's duplicitous behaviour which, combined with his abrogation of responsibility to his patients, endangering their lives, lead to his de- registration in 2003.
8. Having referred to the qualifications which the applicant had obtained in both law and cardiology Dr Fisher said that he thought that it was most likely that Dr Reimers is a reformed individual, who does have insight into the inappropriateness of his previous behaviour. He thought that there was a chance that the applicant remained at greater risk of drug abuse or dependence in the future but that there was no inevitability that this might occur. He thought that abstinence for a period of 14 years was; "….. a credit to his self discipline and the seriousness with which he has committed himself to abstinence." Accordingly, Dr Fisher concluded that the applicant was now unimpaired and that it would be reasonable for him to apply for reregistration "on the condition that he enters the Impaired Registrant's Programme, with the Medical Council of New South Wales, and that he is fully compliant with all conditions, commencing with thrice-weekly urine drug screening, attendance upon a treating Psychiatrist with expertise in Drug and Alcohol treatment, provision of appropriate supervision and reports, and notification of his employer of his conditional registration and the reasons for it."
9. Dr Fisher was present in the hearing room when the applicant gave his evidence and was cross-examined. As a result of doing so, and before giving evidence in the proceedings Dr Fisher prepared a memorandum which became evidence in the proceedings and which was referred to during the course of his oral evidence. The memorandum was intended to serve as an aide memoir in considering the circumstances of the applicant in the context of these proceedings. We will not set out in detail the areas of concern and relevance which are referred to in the memorandum, because they were addressed in the oral evidence given by Dr Fisher. In terms of impairment, Dr Fisher in his oral evidence said that the applicant had a continuing vulnerability. He had made an initial decision to take the drugs and this created an entrenched driver in the need to continue to take drugs to avoid withdrawal symptoms. Notwithstanding this continuing vulnerability Dr Fisher thought that the applicant was not currently impaired but had the capacity to be impaired. The risk of impairment could be mitigated by imposing conditions such as thrice weekly supervised urine testing and participation in the Impaired Registrant's program for at least three years. He thought that it was most likely that the applicant was insightful and remorseful and not just saying it in order to gain registration from the Tribunal. As to the applicant's character Dr Fisher thought that as a result of the [redacted], the applicant felt humiliated and didn't want to talk about this. He thought that this may have affected his attempt to conceal his drug taking, having concealed the [redacted]. He thought that with good psychotherapy the applicant would seek out help and become truthful. An absence of drug taking for a period of 14 years indicated that the applicant had reformed. However he should have psychotherapy but there was no indication that he should have had this prior to the present time. This was because the applicant had seen two experts who had said to him that he needed no further treatment. It was put to Dr Fisher that the applicant had undertaken forum shopping after five years and that this illustrated a lack of his insight into the reasons for the decision of the Tribunal. Dr Fisher thought that maybe the applicant was tilting at windmills with a lack of insight. This had been brought about because he had been to the Doctors in Recovery program and had seen people undertaking that program and exiting it before 10 years of exclusion.

The course of the proceedings

1. The proceedings were set down for hearing on 27 and 28 August 2014. After all of the evidence had been adduced on 28 August, it became clear that the applicant was faced inter-alia with what was an arguably insurmountable problem in gaining registration because he had not practised medicine since 2000, a gap of 14 years. As he readily admitted, such CME and other work that he had undertaken would not qualify him in any way for registration as a medical practitioner with the right to examine patients and prescribe medication, albeit with conditions as to the monitoring of his abstention from drug taking, supervision of practice etc. Indeed, the applicant had not given careful thought to what career prospects might reasonably be available to him if he were to be reregistered to practice medicine with appropriate conditions. There was discussion as to whether he might be permitted to practice medicine in a hospital position at internship level or post internship level. However, although he was aware that the demand for such positions far exceeded their availability, he was not aware of the likelihood of him obtaining such a position given his circumstances. There was also a discussion about whether the applicant might seek registration on the condition that he did not practice medicine nor prescribe.
2. The applicant sought an adjournment to consider his position and to allow him to commence a regime of drug testing which he could put before the Tribunal to confirm that he was, in fact, drug-free. The adjournment would also enable him to consider carefully what orders he might ultimately seek from the Tribunal and to discuss those with the Council in advance of any further hearing.
3. It seemed to us that no prejudice would attach to the Council if the applicant's adjournment application was granted, and that the interests of justice would be served if this were to occur. We made orders requiring the applicant to file and serve details of his plan for return to practice and any evidence relied upon in support of that plan by 27 November 2014 and requiring the Council to file and serve evidence in reply by 30 January 2015. The matter was adjourned until 19 February 2015.

The proceedings on 19 February 2015.

1. On this occasion, the parties tendered additional documentary evidence and the Tribunal received submissions.
2. The evidence tendered on behalf of the applicant was directed to the possibility of him taking certain steps leading to registration as a medical practitioner. The respondent tendered into evidence documentation covering the same area, but also tendered a copy of correspondence between its solicitor and the applicant. We have found this documentation instructive in elucidating the wishes of the applicant in seeking to return to work as a medical practitioner.
3. In a letter of 5 January 2015 addressed to the solicitor for the respondent, the applicant said that he intended to return to practice "as soon as possible and I intend to work as a hospitalist initially and then as an Intensive Care Medicine trainee." He said that enquiries made by him indicated that he could apply for a training position in intensive care once he had six months of experience as a Resident Medical Officer in an ICU. He then said that he intended to work as a pre - vocational PGY2 resident medical officer because this was a well defined and highly supervised position. However he then went on to refer to certain applications that he had made and to a perceived difficulty in obtaining any such position. He also referred to ad hoc and informal mentoring which he had obtained from a named general practitioner who did not, however, work within the hospital system. There was also a reference to some basic ongoing self-administered clinical education.
4. We observe that there was no evidence tendered by the applicant concerning any continuing drug testing, and certainly none since 2011. The applicant tendered some character references, which do not appear to have been provided by anyone who has had any form of enduring and lasting relationship with him, and with one exception are not of recent date.
5. The totality of the information available to us concerning any return to work proposal put forward by the applicant is in most general terms, and there is no clear indication that it is feasible that the applicant will have any tangible opportunity to seek retraining and to work in the medical profession under supervision leading to some form of return to gainful work as a medical practitioner. Given the nature of these proceedings, the ultimate prospects of the applicant succeeding in obtaining and participating in some form of career path leading to the practice of medicine is something which we need not consider in detail, because market forces will dictate whether he is successful. In any event, any order for reinstatement is subject to the applicant ultimately being registered by the National Board as provided for in section 163B (3).

Consideration

1. The application for reinstatement was resisted by the respondent. Its primary position was that it should be refused. The secondary position was that if reinstatement was ordered, it would be subject to conditions, which the respondent incorporated in documentary form. The applicant said that he would be content to be reinstated subject to all of the conditions nominated by the respondent. Nevertheless, we must first determine whether it is appropriate to make a reinstatement order.
2. Having regard to the statutory context in which this application is brought we are required to consider whether the applicant is now a fit and proper person to be registered as a medical practitioner. As the applicant has conceded that certain conditions should attach to any reinstatement order, it is appropriate that we consider this matter in the context of the application of those conditions. For reasons which we shall shortly advance, it is not necessary that we consider the nature and extent of those conditions in any detail.
3. As is well established by authority, the applicant bears the onus of proving that a reinstatement order should be made in his favour. The standard of proof to be applied in considering any factual matters is the civil standard, namely the balance of probabilities. However, because of the protective nature of the jurisdiction which we are exercising, as is equally well recognised, we must be comfortably satisfied that the matters are so proven.
4. In approaching this matter we shall also have regard to the relevant objects which are found in Sec 3 of the Act and the need to protect the public "by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered."
5. The applicant sought to rely substantially on an earlier decision of the Tribunal in Litchfield v Medical Council of New South Wales [2012] NSWMT8. There is a discussion of relevant principles in that Decision, which are pertinent to our consideration of these proceedings. At [12] and following the tribunal said; 12. The starting point is that this Tribunal should not assume that a medical practitioner who was de-registered has become a reformed person. As Walsh JA said in Ex parte Tziniolis; Re Medical Practitioners Act(1966) 67 SR (NSW) 448 at 461: "... Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man." 13. Both counsel accepted that the principles found in Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42] which were originally set out in In the Matter of Mansour Hassad Zaidi and The Medical Practice Act 1992 as amended (29 August 1996, unreported) and approved by the Court of Appeal, in Zaidi v Health Care Complaints Commission [1998] NSWSC 335; (1998) 44 NSWLR 82 were the appropriate principles to be applied. The principles are: "[1]The purpose of the jurisdiction which is exercised by the Tribunal is not for punishment or further punishment of the former practitioner. Instead the Tribunal's jurisdiction is for the protection of the public which deals with medical practitioners on the basis that they are members of an honourable profession who can be expected without reservation to conduct the affairs of their patients with honour and in whom the patients can place unbounded confidence. What is in question in an application for reinstatement to the Medical Register is whether an applicant is fit and proper to be held out to the rest of the profession, to patients and to the whole of the community as a person worthy of their confidence. [2]An applicant who seeks to establish fitness to have his name restored to the Register having been earlier removed from it bears the onus of proving the case. It is a heavy onus and the question whether the applicant is a fit and proper person, is one to be trusted to exercise the high responsibilities of the profession is one to be determined on solid and substantial grounds and as an applicant for reinstatement to the Medical Register he is in a more disadvantageous position than an original applicant. He must in effect displace the decision for deregistration which has been made. That decision involves the judgment that the applicant is probably permanently unfit to have his name on the Register. As a consequence, presumptions of fitness which might arise otherwise than from an absence of contrary suggestions can no longer advantage him, precisely because of the removal of his name from the Register on the basis of unfitness. [3]The ultimate issue is whether the Tribunal can conclude on the basis of all the evidence that an applicant is now a fit and proper person to join other members of an honourable profession in the responsible and trusted activities which are involved in the work of the medical profession, what is at stake is not so much the reputation of the applicant but the Tribunal's assessment of his character, uprightness, honour and trustworthiness. In the case of some offences committed over an extended period with deliberate intent and resulting in serious distress to patients it will be very difficult to contemplate any circumstances in which the name of the offender will be restored to the Register. [4]It is not a question of what an applicant has suffered in the past. It is a question of his worthiness and his reliability for the future. What in this respect the Tribunal must determine is whether it is satisfied that for the future the applicant will act in accordance with the high standards and responsibilities of the profession. It is difficult to decide what a man will do in the future and the decision in a particular case is to a greater or lesser extent dependant upon the Tribunal's assessment of the applicant. In making that assessment, it may draw inferences from what he has done in the past, and in particular, what led to his being removed from the Register. An understanding of that may assist the Tribunal to determine what are his standards and his understanding of a practitioner's responsibility, and from this, what he is apt to do in the future. Where what has been done in the past has been sufficient to indicate his probably permanent unfitness the Tribunal will require solid and substantial grounds for the conclusion that his standards have changed, his character has been reformed and that he will act honourably." 14. We would only add in respect of character the observations of Mahoney JA in Council of Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at [449]: "Character involves, inter alia, two things: the acceptance of high standards of conduct; and acting in accordance with those standards under pressure."
6. Litchfield provides a good example of the matters which we need to take into account in determining this application. Litchfield had been removed from the register of medical practitioners in 1997. The application before the Tribunal upon which the applicant in these proceedings relies represented the third occasion on which he had sought a finding that he was a fit and proper person to practice as a registered health practitioner. The decision was delivered in 2012. Accordingly, Litchfield had not practised medicine for 15 years. He had previously practised substantially as a general practitioner. In 2011 he had completed a degree in Pharmaceutical Science. There was evidence that Litchfield had undertaken intensive and extensive treatment from psychiatrists and a psychologist. He said that as a result of this treatment he acknowledged the misconduct in which he had engaged, expressed insight into his misconduct but acknowledged that he would require supervision and mentoring and in certain cases chaperoning if he were to recommence practice.
7. Litchfield had gained continuing professional development points for the last five triennium and was "close to fulfilling the criteria" for the current triennium. He had continued to attend seminars and to regularly read certain medical publications. He had also undertaken a number of clinical attachments with named medical practitioners over the prior 12 months. He said that he would prefer to take up a salaried position in a medical centre where there were at least three or four other doctors practising so he could gain access to mentoring and advice. He produced evidence that if he were reregistered he would provisionally be offered a position in a medical practice in a regional area. There was also evidence of the possibility of employment in other medical centres.
8. Litchfield produced character references from eight persons. Furthermore he had recently written to a number of former patients and provided them with a copy of a court decision setting out the reasons for his deregistration.
9. The Tribunal found Mr Litchfield to be a "honest and reliable witness." Two psychiatrists and one psychologist also gave evidence in his case. Between 2006 and 2012 Litchfield had seen one psychiatrist on approximately 50 occasions, another on approximately 175 occasions and the psychologist on approximately 35 occasions.
10. Additional evidence was adduced on behalf of the respondent. Ultimately, the Tribunal determined that Litchfield was a fit and proper person to practice as a registered health practitioner subject to the imposition of certain practice conditions.
11. We should state immediately that the misconduct which led to the deregistration of Litchfield, inappropriate sexual conduct towards three female patients, is quite different from the applicant's misconduct which has its genesis in his drug addiction. There are, however, certain similarities in that both Litchfield and this applicant refrained from acknowledging their misconduct for some time and failed for some time to demonstrate any significant insight into their behaviour.
12. It is instructive to compare the meticulous and detailed preparation undertaken by Litchfield in support of his application for reregistration with that of this applicant. On 6 February 2014 the solicitor for the respondent wrote to the applicant concerning the "current state" of his evidence. Whilst she indicated that she was "not in a position to give you advice on the conduct of your matter" she noted that ordinarily an applicant in similar circumstances would put on evidence including that of the steps taken to reform his character, insight into the matters that led to deregistration, contrition, "whether you continue to pose any risk to the public, including medical evidence that you are now drug-free", and steps taken to update medical knowledge. When the proceedings were adjourned on 28 August 2014 we had specifically suggested to the applicant that he undertake at that stage a regime of drug testing to demonstrate that he was, in fact, drug-free. No such evidence has been produced by the applicant, and the last evidence of drug testing seems to be in 2010. We have previously set out in summary form advice given to the applicant by medical practitioners that he should undertake regular drug testing to demonstrate that he is free of drugs.
13. Drug addiction is a serious matter for any person, and is especially so for medical practitioners for reasons which are so obvious that it is not necessary to state them. The New South Wales Court of Appeal had occasion to comment on heroin drug addiction suffered by a solicitor in Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320. In delivering the judgment of the Court, Young CJ in Eq (Meagher and Tobias JJA agreeing) said, relevantly; "28 A key issue is to what extent the opponent is currently affected by her previous drug addiction. Unfortunately, the experience of courts is that it is only too easy for people to relapse into drug culture if the pressure of life becomes too great. Accordingly, it is necessary to look very closely into this aspect of the case. The maxim "once an addict, always an addict" is unfortunately true. Once a person has been an addict, the best that could be expected is to look to see a person with the willpower to know when to see the red light, when to seek appropriate professional help in time of great stress and pressure, and to seek that help and abide by the advice that is given. 29 In the instant case, the evidence shows that the opponent has been under quite considerable pressure in recent years, particularly with the traumatic death of her mother, yet despite these pressures she has not used cocaine or heroin for some forty four months. The opponent was consuming drugs for ten years, relatively heavily for six years. She has shown an almost four years drug free lifestyle and that to my mind, especially in view of the pressure she has withstood, shows a sufficient probability that her rehabilitation is likely to be permanent. Although she still has some association with Mr Wheeler, it would appear that he too has undergone a successful drug rehabilitation program and that association with him is not likely to cause her to relapse into the drug habit."
14. The approach taken by the applicant in these proceedings has consisted of stating that "I have been drug-free for 12 years" and expecting the Tribunal to accept this statement without reservation. It may well be that the applicant has remained drug-free for many years, despite encountering stress and adversity along the way. There will be many circumstances where it will be perfectly acceptable to take such a statement from such a person at face value. However, the circumstances that face the applicant in these proceedings are somewhat different. As we have been at pains to point out, based on relevant authorities, the applicant bears a heavy burden of demonstrating that he is in fact drug-free and unlikely to succumb again. That burden can only be discharged if there is some evidence which corroborates the assertions of the applicant. He has been informed from a variety of sources on a number of occasions, dating back to at least 2009, from Dr Samuels, that he should undertake regular urine analysis over a period of time to provide corroborative evidence, but has failed to do so.
15. We set out part of an exchange which occurred with the applicant during the course of the last hearing on 19 February, 2015; HIS HONOUR: Just remind me, why is it that you say that you should be given an opportunity of being reinstated on conditions? Because you've read the submissions of the Medical Council which say that in view of everything that's happened and the severity and your lack of recent attempts to undertake a certain number of steps, they're all set out there, you know you haven't satisfied or discharged the burden of demonstrating that it's appropriate that you be reinstated. ……………………………………………………………………….. APPLICANT: Okay, so I'll tell you candidly where I'm coming from. I believe I can practice safely, I believe I've understood my mistakes of the past and absolutely committed to not-- HIS HONOUR: I understand but you keep saying "I believe, I believe" you have your own self confidence but we have to be comfortable that in the interest of protecting the public that we can take that step and the concern of some of us is that there's no evidence of recent testing for drugs which has been put before us. There's been sort of no concrete attempt to sort out a career path other than the one that you've now produced in response to some concerns which we raised with you. And a lot of this is nebulous as opposed to concrete stuff. I'm not saying that it is possible to set out everything in concrete terms but there's a lot of hope and anticipation and self-confidence but we need some evidence. APPLICANT: All right, can I now be quite frank? I said this to you back in August that I don't understand the 2003 decision. It appears to me to have alluded two things, (1) impairment and (2) is character defects. I'm reading that decision knowing the law, having read the other decisions in the jurisdiction, knowing that as I read that decision I was not struck off for impairment because it doesn't say that and also you don't strike doctors off for impairment. Dr Bella first was struck off not for impairment but because he wouldn't abide by the conditions on his registration. And, of course, he was struck off for two years and what he had to do was demonstrate that he would abide by conditions on his registration. Now, as I read that decision I was struck off for these character defects. HIS HONOUR: No, you were struck off, as I read the decision - I haven't looked at it recently, for professional misconduct. APPLICANT: But in setting the period, the Tribunal said, because of these character defects he can never again practice safely. If the Tribunal had said, All right we're striking off for professional misconduct but because you were impaired, we're going to set a period of two years and I would use that period to gather evidence of - it would abide by conditions but. So I'm coming into these proceedings not actually knowing what - like why ten years. I mean normally if somebody has been impaired it will be two years. I was struck off for ten and I don't understand what - why the Tribunal in 2003 thought I was so much more of a risk to the public than any other impaired doctor. I'm just not understanding that. I mean yes impaired doctors pose a risk. ………………………………………………………………………………… APPLICANT: I'm trying to understand, why the ten years was necessary? HIS HONOUR: Because the individual members of that Tribunal in their wisdom thought that 10 years was an appropriate time. It's a long time for a doctor but they thought in the circumstances or in your circumstances that was an appropriate time for the reasons which are set out when you read the decision and there's no point in going through all of the seven complaints that were found to have been established because in the aggregate they don't make very pretty reading. APPLICANT: I'm just saying, I mean I have been treated as you say very much differently to other impaired doctors, but is the hurdle that I face now the same hurdle as I have been - impaired doctors do I have to demonstrate. I mean am I like Dr Ballacrass(?) do I come here having prepared a case for reinstatement like his or is it a different kind of case-- ………………………………………………………………………………………………………….. HIS HONOUR: Every case is judged on its own merits, if you had had a lawyer representing you independently you would have come along here having had some testing, drug testing and with an appropriate program much more advanced than the one you've got now and some up to date character references and also I would have thought a psychiatric opinion.
16. The above exchange indicates that the applicant has still not come to terms with the conclusion of the Tribunal concerning the very serious misconduct in which he engaged, and the unfavourable impression he created. Lacking insight into the nature and extent of his then circumstances will create difficulties in fully addressing and dealing with what needs to be done to redress the situation and give us sufficient comfort to allow him to seek re-registration.
17. The submission proffered by the applicant comprised an emphasis on his having, in the past, suffered from an impairment, being the disease of addiction, which he submitted, explained his misconduct and medical errors (causing a death by his dereliction of his duty of care for his patient). At no time did he, in this Tribunal, or in any previous attempts to overturn the original Tribunal decision, ever consider in any meaningful way, what it was, in the nature of his character or personality structure, that caused him to risk his career and everything else in his life and to behave knowingly and persistently over a long period of time, in the deviant, deceptive and ultimately dangerous manner that he did. He has effectively dismissed the strong recommendation of an experienced psychiatrist that he engage in, and sincerely embrace, what was necessarily a long term and intensive psychotherapy, and then demonstrate an understanding and insight to this Tribunal, as to his defects of character and what reformation has occurred to deal with them. He has failed to satisfy this Tribunal that he has achieved either of these.
18. If the applicant is to regain registration it is imperative that the Tribunal be comfortably satisfied that he is drug-free and, to the extent possible, likely to remain drug-free even in stressful circumstances. Without this evidence we cannot be satisfied that he is a fit and proper person to be registered as a medical practitioner. There is no supporting corroborative evidence that he is drug- free, and there is no supporting psychiatric or other evidence that he has gained insight into his drug-dependant character and has developed mechanisms to assist him in dealing with his drug dependency.
19. Unlike the circumstances pertaining to Litchfield, there is limited evidence available to us that the applicant has endeavoured to remain up-to-date with his medical knowledge over the 14 years during which he has not practised medicine. Apart from his demonstrated in-depth knowledge in the area of cardiovascular medicine upon which his PhD thesis was based, the remainder of his attempts to master the undoubted advances which have been made in medicine over this period appear, on the evidence, to be superficial and spasmodic. We are not persuaded that there is sufficient evidence upon which we could be satisfied that the applicant could safely practice medicine if he were reregistered.
20. The character references which he has provided are, in the aggregate, inadequate. There appear to be no references from persons who have known him for a long time, and who are, in general terms, familiar with the unfortunate history which led to his de-registration. We cannot be satisfied on the basis of this evidence that the applicant is a fit and proper person to be reregistered as a medical practitioner.
21. The evidence proffered by the applicant as to his return to work plans is inconclusive and, in its terms, creates some doubt about whether the applicant will in fact be able to obtain a hospital position attended by close supervision. Furthermore, the respondent has sensibly suggested that it is more appropriate that the applicant initially undertake a position in an appropriate facility as an observer, before seeking paid employment. Because of the conclusions which we have previously reached that we cannot be relevantly satisfied that the applicant is an appropriate person to be registered as a medical practitioner, it is not necessary that we deal with this discrete issue further.

Conclusion

1. We are not relevantly satisfied that the applicant is a fit and proper person to be reregistered as a medical practitioner. The application is dismissed.

Costs

1. The respondent sought an order for costs. The applicant resisted such an order based on impecuniosity. This is a costs jurisdiction. Accordingly, costs will normally follow the event unless there are compelling reasons which would dictate otherwise. It was necessary that the respondent act as a contradictor in these proceedings. Despite the protestations of the applicant that he is impecunious, there is no good reason why a costs order should not be made in favour of the respondent. We order that the applicant pay the costs of the respondent incurred in and about these proceedings save for those conducted on 23 October, 2014 to consider a jurisdictional issue raised by a recent decision of the NSW Court of Appeal.

Orders We make the following orders; 1. The application is dismissed 2. The applicant is to pay the costs of the respondent save for those relating to the hearing on 23 October, 2014. 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

Amendments 27 April 2015 - Coversheet 27 October 2021 - Redactions have been made pursuant to an order made under s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) on 27 October 2021 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: 27 October 2021