Sayar v Health Care Complaints Commission

Supreme Court of NSW|2023-11-01|Before: Campbell J

ion and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 Toth v the State of New South Wales [2022] NSWCA 185 Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Category: Principal judgment Parties: Ahmad Sayar (Plaintiff) Health Care Complaints Commission (Defendant) Representation: Counsel: E Vuu (Plaintiff) I Chatterjee (Defendant)

Solicitors: McGirr & Associates (Plaintiff) Health Care Complaints Commission (Defendant) File Number(s): 2023/190225 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Occupational Division Citation: [2023] NSWCATOD 85 Date of Decision: 16 May 2023 Before: R C Titterton OAM, Senior Member Dr A Bennett, Senior Member B Scott, Senior Member M Maher, General Member File Number(s): 2022/00223106

JUDGMENT

These proceedings are an appeal brought from a decision of the NSW Civil and Administrative Tribunal ("the Tribunal") in its Occupational Division cancelling the registration of the plaintiff, Mr Sayar, to practise as a pharmacist pursuant to s 149C(1)(a),(b) and (c) Health Practitioner Regulation National Law (NSW) ("National Law") and making a prohibition order pursuant to s 149C(7) of the National Law for a period of 3 years and 6 months from the date of the orders, namely 16 May 2023.
The proceedings before the Tribunal were brought by the Health Care Complaints Commission ("the Commission") and consisted of seven complaints. Of these complaints: four were of contravention of various provisions of the National Law (complaints 1-4); complaint 5 was based upon the first four complaints amounting together or, in some respects, individually, to professional misconduct under s 139E of the National Law; complaint 6 was that Mr Sayar suffered an impairment that detrimentally affects or is likely to detrimentally affect his capacity to practise the profession of pharmacy pursuant to s 144(d) of the National Law; and complaint 7 was that Mr Sayar (due to his impairment) was not competent within the meaning of s 144(c) of the National Law to practise as a pharmacist.
The Tribunal was satisfied that each complaint had been established to the required standard of proof and that the cancellation order and prohibition order to which I have referred were the minimum measures necessary for the protection of the public.

The grounds of appeal

By amended summons filed pursuant to a grant of leave made on 17 July 2023, Mr Sayar, in substance, advances the following grounds of appeal: Ground 1: the Tribunal erred in failing to apply the correct standard of proof in that it reversed the identity of the party which bore the onus when determining complaint 7, relating to Mr Sayar's competence to practise. Ground 2: the Tribunal erred by failing to require sufficient evidence to discharge the onus of proof having regard to the gravity of the matters alleged in complaint 7. Ground 3: the Tribunal erred by failing to give adequate reasons for finding that complaint 7 had been established by [the Commission]. Ground 4: the Tribunal erred in failing to give genuine and realistic consideration to the merits of the plaintiff's case on complaint 7, namely, that he remained competent to practise on conditions that could be imposed under the National Law.
By his written submissions dated 27 September 2023, Mr Sayar sought to further amend the summons by adding the following additional grounds: Ground 5A: the Tribunal's reasoning process was illogical, irrational or unreasonable in that when considering the liability stage of the hearing (after positively finding incompetence, which is denied), the Tribunal failed to lawfully consider the proposed conditions and when it reached the disciplinary or protective orders stage, it considered that the proposed conditions spoke against the plaintiff's insight (at [170]); and/or Proposed Ground 5B: in finding that the proposed conditions demonstrated the plaintiff's "considerable lack of insight" (at [170]), the Tribunal failed to disclose its intention to treat the conditions in a way adverse to the plaintiff, amounting to a denial of procedural fairness.
By the written submissions, Mr Sayar also sought to re-fashion the orders sought by the amended summons in the event his appeal was successful as follows (as renumbered by me): 1. To the extent necessary, grant leave to the plaintiff to rely on further proposed Grounds 5A and 5B in a further amended summons. 2. Appeal against the decision of the Tribunal of 16 May 2023 allowed. 3. Set aside the Tribunal's orders numbered 7, 8, 9 and 10 and instead order that complaint 7 of the amended complaint dated 27 February 2023 is dismissed. 4. Remit the matter to a differently constituted Tribunal for the determination of the appropriate protective orders in respect of complaints 1 to 6 of the amended complaint dated 27 February 2023. 5. The Commission to pay Mr Sayar's costs of the first hearing before the Tribunal and of the appeal.
I did not understand the Commission to object to these further proposed amendments and I grant leave for the amended summons to be further amended accordingly. Upon the pronouncement of my final orders, I will direct that Mr Sayar file a further amended summons incorporating these additional amendments.

The appellate powers of the Court

Notwithstanding the broad internal appeal jurisdiction conferred on the Tribunal by s 32 Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act"), an appeal from certain "profession decisions" is not internally appealable but lies directly, in this case, to this Court by force of Schedule 5, Part 6, cl 29 CAT Act. By cl 29(1)(d), Mr Sayar's appeal is not covered by s 32.
By cl 29(2), a profession decision under the National Law may be appealed by a party to the proceedings in the Tribunal to this Court.
By cl 29(4), appeals under the Legal Profession Uniform Law (NSW) are re-hearings under s 75A Supreme Court Act 1970 (NSW) rather than a hearing de novo. An appeal relating to a profession other than the legal profession, referred to as "a non-lawyer appeal", are treated differently. Clause 29(4)(b) stipulates: "In the case of any other appeal (a non-lawyer appeal) - may be brought as of right on any question of law, or with the leave of the court, on any other ground." In his written submissions, Mr Sayar seeks leave under this provision, "if the Court finds that [his] grounds do not raise questions of law".
Subject to leave, the scope of a non-lawyer appeal is potentially broader than "a lawyer appeal", (my expression). Clauses 29(7) and (8) provide: (7) Non-lawyer appeals The court in a non-lawyer appeal may - (a) decide to deal with the appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. (8) In determining a non-lawyer appeal, the court may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following - (a) the decision under appeal to be confirmed, affirmed or varied, (b) the decision under appeal to be quashed or set aside, (c) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (d) the whole or any part of the case to be reconsidered by the Tribunal at first instance, either with or without further evidence, in accordance with the directions of the court.
It is obvious that, subject to the leave requirement, the scope of the appeal in this case is not limited to an appeal by way of rehearing which would be subject to the more restrictive limitations upon the receipt of additional, further or fresh evidence found in s 75A Supreme Court Act. Clause 29(8) confers a wide range of powers on the Court for the disposition of a non-lawyer appeal including the power to make its own, different decision from that made by the Tribunal after a hearing de novo if the Court considers that procedure appropriate to the grounds: cl 29(7)(a); cf. ss 19(2) and 75A(4) Supreme Court Act.
I observe in passing, given the potentially broad scope of the appeal, the width of the Court's powers of disposition, and the consideration that professional conduct matters are not only concerned with the main guiding principle under the National Law that the protection of the health and safety of the public must be the paramount consideration (s 3A National Law), but also with the entitlement of a qualified professional to pursue his or her livelihood, the principles established in respect of the leave requirements in s 127(2)(c) District Court Act 1973 (NSW) and s 101 (2) Supreme Court Act as discussed in authorities such as Carolan v AMF Bowling Pty Ltd (T/as Bennetts Green Bowl) [1995] NSWCA 69 at [3]-[5] and Toth v State of New South Wales [2022] NSWCA 185 at [12]-[14], contrary to the submission advanced by the Commission, are unlikely to be wholly apposite given the entirely different statutory context in which the leave requirement arises.
Having made that observation, I point out that Mr Sayar did not apply for the Court to deal with his appeal by way of a new hearing or seek to lead any fresh, additional or substituted evidence. Rather, the appeal proceeded before me as an appeal on questions of law. To the extent to which factual matters were addressed, for instance on Ground 2, this was done by reference to the transcript before the Tribunal as on an appeal by way of rehearing. Leave was not separately sought on any ground, Mr Sayar's assumption seemed to be that, if leave were necessary, the hearing of the appeal and the application for leave was concurrent. The Commission, on the other hand, argued leave, if required, should be refused by application of the principles discussed in Carolan and Toth.

The issues

As is clear from the aforegoing, Mr Sayar purports (or seeks leave) to appeal from part of the Tribunal's decision only. He challenges the finding that complaint 7 was made good on his various grounds as set out above and argues if his appeal is successful that the cancellation and prohibition orders should be set aside. This is consistent with the way Mr Sayar's case was presented to the Tribunal. Complaints 1 to 6 were admitted and were the subject of agreed facts. Only complaint 7 was in issue. It was also the subject of disputed expert psychiatric evidence from Dr Susan Messner, consultant psychiatrist, who gave oral evidence by audio visual link and was cross-examined concerning her opinion.
While for the purpose of complaint 6, Mr Sayar admitted that he had an impairment as defined in the National Law consisting of an alcohol misuse disorder ("AMD") in accordance with the Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2022, American Psychiatric Association) ("DSM V"), Mr Sayar's case in relation to Complaint 7 was that the existence of the impairment - without more - did not constitute incompetence, and in any event questions of competence should be addressed by taking into consideration the conditions that could be imposed upon Mr Sayar's registration to ensure his sobriety when practising his profession. It was argued that the conditions proposed were very stringent.
This remains Mr Sayar's case. He does not resile in any way from the admissions in relation to complaints 1 to 6 and does not challenge the Tribunal's findings that those complaints were established. Rather Mr Sayar maintains that the Tribunal's decision is vitiated by the errors he has identified and that subject to the stringent conditions I have referred to, he is competent to practise and the preferable and correct decision is that the cancellation and prohibition orders should be set aside and the matter remitted to the tribunal for re-determination at which time he will seek protective orders in the nature of the imposition of conditions upon his registration. He has not in terms asked this Court to make that determination, unless I am of the view that no other decision is legally open on the established facts.
I wish to say at this juncture that there is, in my opinion, a legal and logical fallacy in Mr Sayar's approach. At least leaving aside Ground 5B, which purports to raise a natural justice point, the asserted errors (including errors which may in truth be errors of fact, which require leave) were not material to the Tribunal's determination that cancellation and prohibition orders were required to give effect to the paramount consideration established by s 3A National Law.
Where an appeal is limited to a "point of law", and indeed where there is established factual error requiring a new trial, or even the substitution of the order that in the opinion of the appellate court should have been made, the appellant will have failed to make the appeal good, unless he or she can also demonstrate that the error is material: Fisher v Nonconformist Pty Ltd [2024] NSWCA 32 at [50] (Kirk JA; Meagher JA and Simpson AJA agreeing).
This principle is not a new one. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33, a case arising under the Administrative Decisions (Judicial Review) Act 1977 (Cth) raising, inter alia, the question whether a decision under review "involved an error of law", Mason CJ said (at 353): "A decision does not "involve" an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different. The critical question on this aspect of the case is whether, but for the alleged error of law on which the respondent's rely, the decision might have been different by reason of the possibility that the Tribunal would not have made the finding of fact relating to [the central issue] in the terms in which they were made". In the related field of discourse of the exercise of the Court's supervisory jurisdiction by judicial review, materiality is essential to a finding of jurisdictional error: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 (at 133 [24], 143[62]). Infringement of the bias rule of natural justice vitiates a decision regardless of materiality; and materiality is taken as inherent in a finding of legal unreasonableness: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at 506 at [33] and [182]; Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [98]-[102].
In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2024] HCA 12, Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ restated the test for materiality in the judicial review context which, it seems to me, should also be taken as applying also in relation to point, or error, of law appeals. (Beech-Jones J agreed with their Honours restatement, but wrote separately about other aspects of the case (at [38]). The plurality said the following at [6], [7], [14]-[15]: [6] In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. An example of the latter is unreasonableness in the final result. In such cases, the error necessarily satisfies the requirement of materiality. [7] In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision-making process is ordinarily to be interpreted as incorporating such a "threshold of materiality" in the event of non-compliance. …. [14] The question in these cases is whether the decision that was in fact made could , not would , "realistically" have been different had there been no error. "Realistic" is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous. [15] What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is "no easy task" for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example."
As Kirk JA pointed out in Fisher (at [35]) the scope of a point of law appeal will usually extend to jurisdictional errors (and errors of law on the face of the record), "for such errors will necessarily be on points of law". In my judgment, the LPDT plurality's adjuration (at [15]) against assuming the function of the decision-maker, it is not applicable where the appeal involves factual review by leave given the width of the powers conferred on the Court by Sch 5, cl 29(8) CAT Act.

The central findings supporting the protective orders

The Tribunal's judgment is comprehensive, thorough and runs to 179 paragraphs. The hearing before the Tribunal ran over 3 consecutive days in February and March 2023. It was conducted "as a combined stage 1 and 2 proceeding" (Tribunal Judgment ("TJ") at [2]). Stage 1 refers to the determination of whether the complaints brought against the practitioner by the Commission have been established. Stage 2 refers to the determination of the appropriate protective orders, if any. Frequently, Stage 1 and Stage 2 involve separate hearings, often some time apart. Although Mr Sayar focuses upon Tribunal's decision that complaint 7 had been established, his real complaint relates to the protective orders cancelling his registration and prohibiting him from re-applying for an extended period. Given what I have already said about the materiality issue in this appeal, it is apposite to set out the Tribunal's central finding justifying the protective orders made. It may be necessary to deal with this matter in more detail when considering Mr Sayar's grounds. It should be observed that while Mr Sayar's primary position was that he should be permitted to return to practice on stringent conditions, he accepted, in the alternative, that cancellation of his registration was within the available range of appropriate orders but the prohibition period should not exceed 6 to 12 months (TJ [161]).
The Tribunal's central reasoning is found in the following paragraphs: (TJ [167] - [170], [174] - [175]: "[167] To paraphrase the Tribunal in Health Care Complaints Commission v Azzam [2021] NSWCATOD 106 : (1)the public interest is served by protective orders which maintain the standing of the profession and the maintenance of public confidence in the high standards of practitioners: Azzam at [92]; Prakash at [91]. (2)protective orders also involve an element of encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Azzam at [93]; Prakash at [91]; (3)although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order: Azzam at [94]; Lee v Health Care Complaints [2012] NSWCA 80 at [20] citing Director‐General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83] ; (4)there are important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order: Azzam at [94]; Health Care Complaints Commission v Livermore [2021] NSWCATOD 48 at [69]. These include: (a)the reminder to other members of the profession of the public interest in maintaining high professional standards, the deterrent aspect to the protective nature of the jurisdiction; (b)the unacceptability of certain kinds of conduct; and (c)the maintenance of confidence in the high standards of the profession. [168] We have considered the practitioner's two statements, reflected on his evidence in cross examination, noted his two character references and carefully considered the detailed submissions of his counsel. Notwithstanding all this material, we consider that there must be an order cancelling the practitioner's registration. In our view, the practitioner's professional misconduct is of such a serious nature that the only appropriate disciplinary order is the cancellation of his registration. His conduct includes driving with a high range PCA; driving while disqualified; failing to notify the National Board that he was charged with driving with a high range PCA and driving while disqualified; failing to disclose changes in his criminal history while renewing his registration; working while under the influence of alcohol; providing Persons A and B from Raven Recruitment with forged Discharge and Summary Results; giving false and misleading evidence to the Council and giving false and misleading evidence to the Commission. During these events, which were not isolated events, the practitioner took elaborate steps to avoid detection and deceived the relevant authorities. [169] These are matters when considered cumulatively warrant an order of cancellation of the practitioner's registration. Any order short of deregistration would be an inappropriate and inadequate response to the seriousness of his misconduct. [170] We have come to that conclusion given the objective seriousness of the conduct, because of the necessity to emphasise to other practitioners that such serious professional misconduct is unacceptable and will not be tolerated, and to maintain public confidence in the profession. In addition, in our view seeking a protective order that he be permitted to practise subject to conditions demonstrates a considerable lack of insight. …. [174] Balancing all the evidence before us, we consider that the practitioner's registration should be cancelled, and that he should not be permitted to apply for re‐registration for a period of three years and six months from the date of these reasons. [175] Finally, we note that we would have come to the same conclusion regardless of whether or not Complaint Seven was established. The admitted conduct the subject of Complaints One to Six is cumulatively so serious that a period of cancellation is appropriate." (My emphasis)
The matters summarised in paragraph 168 are the gravamen of admitted complaints 1 to 4. I repeat that together these admitted complaints led the Tribunal to determine that complaint 5 had been established (TJ [83], [104] - [106]). As I have already said, Mr Sayar admitted complaint 5 that he was guilty of professional misconduct (TJ [102]). He disputed the basis upon which the Tribunal should find that complaint 5 had been established. The findings I have referred to demonstrate that the Tribunal rejected Mr Sayar's submissions about complaint 5. There is no ground of appeal challenging the Tribunal's conclusion that complaint 5 had been established and that Mr Sayar was guilty of professional misconduct on the bases determined by the Tribunal. In particular, the Commission argued, and the Tribunal found, that each of complaints 2, 3 and 4 individually amounted to professional misconduct and clearly did so "cumulatively". (TJ [106]). Again, these conclusions are not challenged. It is noteworthy as the Tribunal made clear at TJ [175] the finding concerning the applicant's competence or rather incompetence due to the effects of his AMD is not included in the matters summarised at TJ [168]. Although complaint 6, the impairment complaint underpinned by the AMD is referred to at TJ [175], it is not a matter summarised at TJ [168]. And it seems to me that the reference to complaint 6 in TJ [175] is to some extent surplusage or, perhaps, a slip of the "pen". Either way, I repeat, the impairment was admitted and the finding that it was established is not challenged on appeal.

Agreed facts and Dr Messner's evidence

From the agreed facts, Mr Sayar obtained a Master of Pharmacy from Comenius University in Slovakia. After he migrated to Australia, he completed a Master of Pharmacy through the Australian Pharmacy Examining Council pathway in 2006 in which year he was first registered here.
From about 2007 to 2018 Mr Sayar worked as a pharmacist at Blacktown Hospital and at a community pharmacy in Rooty Hill.
In 2012 he was charged with driving with a low range prescribed concentration of alcohol ("PCA"). The Local Court found the offence proved but did not record a conviction and imposed a bond under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). I interpolate, this matter was not the subject of any complaint.
On 19 November 2016, Mr Sayar drove a motor vehicle with a high range PCA. His reading was 0.189 and it was an agreed fact that he had consumed around 20 standard drinks before driving. This was an offence required to be reported to the Australian Health Practitioner Regulation Agency ("AHPRA") within 7 days. Mr Sayar did not report the charge at all at any time prior to the initiation of the inquiries preliminary to the bringing of these proceedings.
On 22 November 2016, Mr Sayar applied to renew his registration and he failed to disclose the high range PCA charge. In response to a direct question about "any change in his criminal history" he answered, "No".
On his plea of guilty on 9 December 2016, he was convicted, fined $2200 and disqualified from driving for 9 months with a mandatory alcohol interlock order put in placefor 24 months. Mr Sayar failed to notify AHPRA of his conviction within 7 days or at all. A severity appeal to the District Court was dismissed on 28 February 2017.
It was an agreed fact that after this conviction, Mr Sayar in fact increased his alcohol consumption, drinking during the day at least twice per week.
During the period of his disqualification, on Sunday 26 March 2017 he was the on-call practitioner and was called in to work at Blacktown Hospital. He was unable to obtain alternate transport and decided to drive. At about 7:55 a.m. he was stopped by police after attempting evasive action from an RBT police checkpoint. On checking his licence, police ascertained he was disqualified. He gave an explanation that he was driving to return keys to the hospital medicine cabinet, but he was charged with driving whilst disqualified as a first offence, carrying a maximum penalty of 12 months imprisonment. He failed to notify AHPRA of this charge within the statutory 7 days or at all.
On 28 April 2017, on his plea of guilty, he was convicted of the charge, a good behaviour bond of 12 months and $1,000 fine were imposed, and he was disqualified from driving for an additional period of 2 years. He failed to notify AHPRA of his conviction as required within 7 days or at all. A severity appeal to the District Court was dismissed on 12 May 2017.
While working as a pharmacist on secondment at Lismore Base Hospital from August 2017, Mr Sayar lodged an application to renew his registration on 3 December 2017. In response to a question about any change in his criminal history he answered "No", failing to disclose both the high range PCA conviction of 9 December 2016 and the drive whilst disqualified conviction of 26 March 2017.
On 3 May 2018, while working as a pharmacist at Mount Druitt hospital he dispensed 20 Endone tablets on a prescription for 10 and receipted a quantity of 100 ampoules of morphine sulphate in error when the actual quantity was 50 ampoules. Dr Messner's evidence was to the effect that he suffered from his AMD throughout this period. This evidence was not challenged.
Due to a number of complaints about his conduct on 3 May 2018, Mr Sayar was suspended with pay on 7 May 2018. He failed to notify AHPRA within 7 days or at all of the suspension as required.
On 8 November 2018 he was assessed by Dr Atsumi Fukui, psychiatrist. Like Dr Messner, Dr Fukui is a Council Appointed Psychiatrist for assessments under the National Law. It is not clear whether she examined Mr Sayar in this capacity. Mr Sayar told her he was working at a community pharmacy at Rooty Hill and as a locum at various other locations. He claimed to be drinking no more than 1 to 2 glasses of wine once per month.
On 22 November 2018 Mr Sayar again applied to renew his registration. He failed to disclose the conviction for high range PCA of 9 December 2016 and a drive whilst disqualified conviction of 26 March 2018. He answered "No" to a question directly seeking to elicit this information. He also failed to disclose that his right to practise at the Western Suburbs Local Health District had been withdrawn on 7 May 2018. Again, he falsely answered a question designed to elicit this information. He failed to disclose the details of the complaints which had been made against him concerning his conduct of 3 May 2018 and of which he had been notified at the time of his suspension on or around 7 May 2018. He falsely answered a question about whether he had complied with his disclosure obligations in the affirmative.
In 2019 Mr Sayar worked at various placements obtained through a recruitment, or labour hire agency. On 2 January 2020 through the agency, he commenced working as a locum at a pharmacy in Caringbah. On 14 January 2020 he had consumed alcohol before his shift which commenced at 8 a.m. and worked at the pharmacy under the influence of alcohol. He was observed to be confused and forgetful. Errors were made. He dispensed incorrect doses of prescribed medication for several customers, lost prescriptions, dispensed the diabetes medication Janumet at an incorrect strength and failed to scan the prescription, he dispensed Sertraline on an out of date prescription and incorrectly labelled a box of 50 mcg Eltroxin as 75 mcg.
During the day his condition worsened and after a period during which he had left the premises unattended by a registered pharmacist, it was noticed he could barely stand, was unsteady on his feet and was unable to respond to simple questions asked of him by other staff. When the retail manager enquired after his well-being, he replied in slurred speech. An ambulance was called but he refused to co-operate with paramedics other than for a blood pressure reading. He refused to be taken to hospital. It is relevant for what follows to record that he did not attend any hospital that day.
On 15 January 2020, he knowingly gave false or misleading information to his employment agency about his condition on 14 January 2020, claiming to have travelled by taxi to Westmead Hospital where he remained for about 3 hours eventually receiving a diagnosis of epileptic seizure. He also falsely claimed that he was given a discharge letter for his usual GP and that he attended that practitioner for a follow-up. He was informed that his remaining shifts at the pharmacy had been cancelled and he was asked to provide the discharge letter, blood test results and a certificate of fitness for work.
In response to these requests Mr Sayar forged a discharge summary dated 14 January, purportedly from Liverpool Hospital, falsely stating he had been admitted there on 14 January and returned a blood alcohol concentration (BAC) of 0.0 percent. He also forged or falsified a discharge summary dated 18 January 2020 purportedly from Blacktown Hospital stating he had been admitted there on 16 January 2020 and had a BAC of 0.0 percent.
On Sunday, 17 January 2020, Mr Sayar worked as a locum at a community pharmacy. He absented himself from work during his break to consume alcohol in the form of beer and spirits. He also ingested Benzodiazepine tablets which he had stolen from his father-in-law. Between about 3 pm and 4 pm, it was noticed that his speech was slurred, and he appeared very agitated and stressed. He commenced to leave work at about 4 pm, even though he was rostered until 6 pm. When the dispensary assistant explained this, he remained at work.
At about 4:05 pm, he accepted a prescription from a customer and said, "do you want something different?" The dispensary assistant asked Mr Sayar to obtain Endone from the safe when he suddenly fell headfirst onto the floor. When asked by the assistant if he was ok, he queried why she would ask. When informed he had just fallen, he denied that, saying, "No I didn't, I'm fine".
An ambulance attended at 4:43 pm. Mr Sayar was then very lethargic, repeated questions, rather than answering them, and later was unaware that an ambulance had even attended. He fell asleep. A local GP arrived to attend to the applicant, but he was disorientated as to time and place. He refused an ECG and refused to attend hospital.
He was eventually persuaded to go with the ambulance officers and as he picked his bag up two empty bottles of Jim Beam bourbon whiskey could be seen in it. He was agitated and tried to abscond before the ambulance officers again convinced him to go with them. At the time he left, his speech was slurred. He remained disorientated as to time and place and appeared not to recognise pharmacy staff known to him. He was confused and speaking incoherently.
He was admitted to Blacktown Hospital at 6:34 pm and returned a positive BCA of 0.30 at 7:27 pm. Urine analysis was positive for Benzodiazepines at 10:11 pm.
On 20 January 2020, Mr Sayar provided a false or forged discharge summary to his employment agency and also to the owner of the community pharmacy where he had been working on 17 January 2020. This included the false information that when admitted his BAC was 0.0 percent.
By letter dated 13 February 2020, Mr Sayar was asked by the Pharmacy Council of New South Wales ("the Council") to attend a hearing for the purpose of s 150 of the National Law. That provision requires a Council, if at any time it is satisfied it is appropriate to do so for the protection of the health and safety of any person or it is in the public interest to, by order, suspend a registered practitioner's registration or impose conditions on the registration. The Council also asked for the provision of all discharge summaries and blood results obtained during the preceding 12 months. In response Mr Sayar submitted the false discharge summary dated 14 January 2020. At the Council hearing on 18 February 2020, Mr Sayar knowingly provided false or misleading information including stating that the incident of 14 January 2020 resulted from food poisoning and vertigo, that he had not refused to be taken to hospital by ambulance and that he had checked himself into Liverpool Hospital at 3:15 pm. He failed to disclose the incident of 17 January 2020 of which the Council was then unaware and concealed that the discharge summary he had provided was a forgery.
On 20 February 2020, the Council imposed conditions on Mr Sayar's registration. He was not to work as a "pharmacist-in-charge" and that he attends a GP for a health assessment. Mr Sayar was notified of these conditions by letter dated 4 March 2020.
On 9 March 2020 the Council convened a hearing under s 150C National Law. That provision empowers the Council to end a suspension or remove conditions imposed, inter alia, under s 150 National Law. The provision also empowers the Council to take any other action it could have taken at the time of the s 150 hearing.
At the s 150C hearing Mr Sayar repeated the false information he had provided at the s 150 hearing. He added additional false details including that he had not been given a discharge letter on 14 January because the hospital's computers were down and that its records relating to him were then lost. This information was knowingly false or misleading.
At s 150C hearing the Council was aware of the incident of 17 January 2020. Mr Sayar knowingly provided false or misleading information about that matter, claiming the empty whiskey bottles were not his, he drank alcohol once a month only, he had not drunk on 17 January 2020, his only regular medication was Phenergan and that he had not attended any hospital on that day.
On 10 March 2020 the Council suspended Mr Sayar's registration under s 150C, given it had the duty to take that step upon satisfaction of the conditions expressed in s 150 National Law at the time of the s 150C hearing.
By letters to the Council dated 11 and 17 March 2020, Mr Sayar repeated the falsehoods that the whiskey bottles of 17 January 2020 were not his and he had contracted food poisoning on 14 January 2020, respectively.
On 25 May 2020, Mr Sayar applied to the Council for his suspension to be reviewed. In support of his application, he repeated some of his previous falsehoods. He also submitted reports from two medical practitioners supporting his return to work. However, he had not disclosed to either of these doctors his chronic problems with alcohol misuse. He also gave false information about the incident of 14 January 2020, perpetuating the false account that he had suffered a seizure due to food poisoning. He denied that he had been taken to Blacktown Hospital by ambulance on 17 January 2020.
Mr Sayar's application for reconsideration was made under s 150A National Law, which required reconsideration by the Council unless it considered the application to be frivolous or vexatious: s 150A(2). If required to exercise the power of reconsideration, the Council was also bound to consider any new evidence or material submitted that the Council reasonably considered to be relevant.
A s 150A hearing was convened on 30 June 2020 during which Mr Sayar made a partial admission as to forging the 14 January 2020 discharge summary, but he otherwise falsely maintained the truth of the representations he had previously made orally and in writing. He relied upon the reports from the medical practitioners despite knowing them to be false or misleading because of his failure to make full disclosure to those medical practitioners.
On 2 September 2020, the Council published its decision affirming the suspension. Mr Sayar submitted to assessment by Dr Messner on 27 April 2021 and 6 December 2022. As I have said, Dr Messner is a Council Appointed Psychiatrist. I repeat, it is her uncontested opinion that Mr Sayar suffers an AMD.
It was Dr Messner's opinion that Mr Sayar's AMD was in the broad range of being mild to moderate when she last examined him and was not in remission. Her and other evidence generally was that he was not on any program or regime of treatment for the condition. In her first report of 4 May 2021, Dr Messner expressed the following opinion concerning the relationship between Mr Sayar's impairment and his capacity to practise: "When Mr Sayar returns to Australia, he needs to be able to demonstrate to the Council that he is not using alcohol, with EtG testing results to support this. If he wishes to return to work as a Pharmacist, he needs to engage with a psychiatrist with expertise in the management of Alcohol Misuse and to demonstrate his abstinence from Alcohol. He may benefit from working with a psychologist. Mr Sayar should have a regular general practitioner and his medical state be monitored. Initially on return to work, Mr Sayar should work in a pharmacy where there are other pharmacists present. As there has now been a gap since he last worked, Mr Sayar may initially benefit from some supervision of his work". On the same issue, in her second report of 16 December 2022, the expert said: "Mr Sayar presented in a polite and co-operative manner. He did not appear to be under the influence of any substance. He gave a clear history, answering questions appropriately. His affect was reactive and his mood appeared euthymic. His speech was of normal pace and form. His cognitive function appeared to be reasonable. There was nothing in his presentation to suggest he could not practice pharmacy competently, if he were to present as he did for the assessment appointment." (TJ [125], Summary of Mr Sayar's submissions)
In her testimony, Dr Messner said that she dated Mr Sayar's AMD at least to the time of the 2017 high range PCA charge. The expert stated she had prepared a third short report dated 16 January 2023 after reviewing the notes of Dr Wan, a GP who had been treating Mr Sayar. Dr Messner said that the content of the notes reinforced her concerns regarding Mr Sayar's lack of insight into his impairment. There was no record in the notes of him having consulted his GP about alcohol problems and seeking treatment. The suggestion in the notes of a reference to a psychologist was related to depression and anxiety. There was no mention management of a problem with alcohol at all.
Dr Messner accepted it was a matter for the Tribunal whether Mr Sayar's impairment was of a sufficient nature and extent to impair his capacity to practise pharmacy. From her point of view, the question was related to whether Mr Sayar was receiving treatment and his response to the treatment. She said that one had to have had regard to a history of almost six years impairment that had not been adequately addressed by February 2023. In her view, he was not currently competent because the impairment had not been adequately addressed.
In cross-examination Dr Messner said she was familiar with DSM V and regarded it as authoritative. She had regard to it in diagnosing Mr Sayar's condition.
Dr Messner said that she would put Mr Sayar into the mild to moderate category of severity of impairment.
Dr Messner would not agree that it was unusual for people suffering from AMD to avoid treatment. They were often too ashamed or embarrassed to seek treatment and some people were in denial.
Dr Messner agreed that it was not unusual for a person suffering from AMD to also demonstrate symptoms of anxiety and depression. Although there were stressors present because of his financial position related to his suspension, Mr Sayer did not give her a history of symptoms of depression or anxiety.
Dr Messner agreed that the risk of relapse in a person suffering from AMD was a concern and disclosure of a problem with alcohol to family and friends, as Mr Sayar claimed to have done, could be a protective measure.
Dr Messner accepted it was possible that Dr Wan simply may not have recorded any history of AMD he had in fact received from Mr Sayar. However, a new patient form of 31 October 2022 indicated that Mr Sayar denied using alcohol when he first consulted Dr Wan.
Dr Messner considered that Mr Sayar had apologised for past misconduct and expressed remorse for it was different from displaying insight into the problem. She did not regard attendance at Alcoholics Anonymous as of itself displaying insight into a person's drinking problems.
Dr Messner explained that EtG testing consisted of monthly blood tests to check for evidence of drinking at hazardous levels. She said while it was regarded as fairly crude it may be useful. Dr Messner did not consider that Mr Sayar was in either early remission or sustained remission because he had not sought treatment for his AMD. While he claimed to be attempting to reduce his alcohol intake she had seen no confirmatory evidence that he had done so successfully.
Dr Messner did not have an opinion about the appropriate length of any prohibition order. She accepted that there was medication which may be useful in the treatment of AMD. Dr Messner also accepted that Mr Sayar was keen to return to work in his profession and that was a factor that should assist in compliance with any conditions imposed upon his registration.
Dr Messner adhered to her opinion that as Mr Sayar presented to her on 6 December 2022, he would be able to work competently as a pharmacist, however, she accepted that she had not been aware of the statutory definition of competence. Her expression of opinion was based upon her own expertise. She accepted that she ought to have been aware of the statutory definition. When asked about the stringent conditions proposed by Mr Sayar, Dr Messner said "assuming he has - yes, assuming he complies and assuming that initially you have a base line that indicates that he's currently not drinking, and his drinking is managed before he goes back to work".
Counsel for Mr Sayar submitted to the Tribunal that Dr Messner's opinion about Mr Sayar's competence was "plainly unreliable", as counsel also submits in this Court. This seemed to be for two reasons, first because she had been unaware as she said of the statutory definition of competence, and secondly because she was said to have resiled from her initial evidence about the authoritative nature of DSM V. I interpolate, I did not read the transcript of Dr Messner's evidence as suggesting that she vacillated about the authoritative nature of DSM V. She said that she had regard to it when she diagnosed Mr Sayar and that AMD is a disorder recognised in DSM V. At a later point in time when asked an introductory question for a new topic by reference to her previous agreement that DSM V was authoritative, she said: "DSM V is questionably authoritative" (CB p. 1135). What Dr Messner meant by that was not fully explored because there was an objection which the presiding member of the Tribunal upheld. Nothing in the response in any event departed from the evidence she had earlier given about the use she made of DSM V in Mr Sayar's case. Quite clearly the Tribunal did not regard Dr Messner's opinions as "unreliable", as it relied upon her evidence at least in part. As I have said, in any event, Mr Sayar formally admitted for the purpose of the proceedings that AMD was an impairment from which he suffered which may affect his ability or capacity to work as a pharmacist.

The Tribunal's conclusion about complaint 7

The Tribunal dealt with complaint 7 at TJ [113] - [126], covering about 4 pages of a printout of the judgment. The Tribunal was clearly aware that the Commission's case was in terms of the definition of "competent" contained in s 139 National Law, that Mr Sayar lacks the mental or physical capacity to practise as a pharmacist because of the effects of his AMD. Indeed, the Tribunal was prepared to find on the evidence that Mr Sayar suffered from that impairment quite apart from his admission (TJ [112]).
The Tribunal clearly understood that the Commission's case depended not only upon Dr Messner's opinion, but also upon the considerations that Mr Sayar's AMD was not in remission, remained untreated, he continued to drink and was prone to relapses. The question of his competence was directly related to whether he continued to abuse alcohol especially at work. Reliance was placed upon his whole history of alcohol abuse, but particularly on the events of 14 and 17 January 2020. Moreover, it was pointed out that Mr Sayar had "repeatedly lied" to various persons in authority over him, including the Council, about his alcohol misuse which suggested he could not be trusted to comply with conditions. His lying extended to falsifying hospital documents to conceal the true facts concerning his abuse of alcohol at work.
The Tribunal accurately summarised Mr Sayar's submissions and understood Mr Sayar's argument that there were many instances of a person suffering an impairment having been found competent to practise (TJ [123]). The Tribunal also understood that Mr Sayar argued that the availability of conditions was relevant to the finding of competence. The Tribunal summarised the argument as follows (at TJ [124]): "Thirdly, an assessment of competence is not to be undertaken in a vacuum. The Tribunal must have regard to the imposition of conditions, consistent with the overarching objectives of the National Law on the practitioner's registration that could address those objectives before reaching a determination as to that practitioner's competence."
The Tribunal also understood that particular reliance had been placed upon Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 (TJ [126]). I interpolate that it is notable in that matter that Mr Bolton's registration as an optometrist was in any event cancelled on other grounds and a prohibition order was made under s 149C(7) National Law. The evidence was that Mr Bolton continued to drink in excess of the safe drinking guidelines (at [111]). Mr Bolton was receiving treatment for his alcohol abuse including compliance with a medication regime. An independent report identified conditions which would protect the public and support Mr Bolton in recovery and rehabilitation. The Tribunal was not satisfied that the evidence was "of sufficient quality and weight to support a finding that [Mr Bolton was] not competent to practise". This was of course a purely factual decision in a different case on different evidence. Notwithstanding their finding about competence, the Tribunal was of the view that the other complaints which had been proved required Mr Bolton's registration to be cancelled. I interpolate that given what I have said about the Tribunal's findings in the case at hand, it is difficult to see how the Bolton decision assists Mr Sayar. In any event, no issue of principle arises. The decision about competence was not material to the Tribunal's ultimate determination.
The Tribunal expressed its conclusions as follows (at TJ [127] to [139]): [127] We accept the practitioner's opening proposition that a finding of impairment does not necessarily lead to a finding of lack of competence, and whether it does or not will depend on such considerations as the nature and likely duration of the impairment, the kind of practice carried on by the medical practitioner, the extent to which the impairment interferes with the practitioner's judgment, communication skills and clinical ability, and other relevant circumstances. [128] As to the nature and likely duration of the impairment, it is common ground that the nature of the impairment is AMD. The evidence before us of the likely duration of the impairment is that the practitioner is not in remission, his AMD was not being currently managed through treatment with a drug and alcohol counsellor, addiction specialist or psychiatrist, and the practitioner was still drinking. [129] As to the kind of practice carried on by the practitioner, we do not understand that the practitioner wishes to practise in the future in situations other than he has practised in the past. This includes dispensing in suburban pharmacies. [130] As to the extent to which the impairment interferes with the practitioner's judgment, communication skills and clinical ability, clearly the evidence established, at least in the past, that the practitioner's impairment interfered with his judgment, communication skills and clinical ability. [131] As to other relevant circumstances, the Commission relies on the other matters summarised above. [132] The authorities relied on by the practitioner do not assist him. [133] In Bolton, the practitioner was under the care of a drug and alcohol specialist, unlike the practitioner. [134] Orr is not relevant. In Orr, the practitioner was no longer registered. The Tribunal found that he did have an impairment, and declared that had he been registered his registration would have been cancelled. [135] In Hallani, contrary to the practitioner's submission, the Tribunal did not find the practitioner competent to practise. [136] In Stewart, the practitioner had been abstinent for approximately 20 months. [137] And in Motun, the Medical Tribunal considered whether a medical practitioner was impaired and found that he was suffering from anxiety and depression and paranoid personality traits which conditions were likely to affect his capacity to practise medicine. The Tribunal found the complaint of impairment proved, but in the light of treatment which the doctor was receiving the Medical Tribunal considered that his impairment was not such as to render him incompetent to practise medicine providing that the existing conditions on his registration were continued. [138] In our view, none of these authorities assist the practitioner. [139] We are not persuaded that the practitioner is competent to practise. Accordingly, we find Complaint Seven established."

The reasons why the Tribunal ordered cancellation of Mr Sayar's registration

I have referred to this topic already in the context of materiality and set out some of the Commission's reasoning. The Tribunal dealt with "Stage 2" in a lengthy passage from TJ [141]-[175]. The case for each party was summarised in a fulsome manner.
The Tribunal commenced its consideration with a statement of the relevant principles in a manner about which no complaint is made (TJ [164]-[166]). At TJ [167] the principles informing the purpose of protective orders were summarised, again in a manner not subject to challenge in this Court (see [24] above).
Arguments about taking "time-served" into account and delay in the Commission bringing the application for cancellation were considered and rejected. Again, in a manner not challenged here.
I will now turn and deal with the grounds of appeal.

Ground 5B

I think it appropriate to commence with Ground 5B because Mr Sayar categorises this ground as a denial of procedural fairness. Leaving to one side for the moment whether this categorisation is accurate, where a ground asserting an infringement of the rules of natural justice is raised, it is appropriate for the Court to consider it first and in advance of other grounds because if established the ground may necessitate a remittal for rehearing in any event: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] 229 CLR 577; [2006] HCA 55 at [116] - [117] (Kirby and Crennan JJ at [172]). That case concerned the bias rule of natural justice rather than the hearing rule which is alleged to have been infringed here. Even so, for the reason I have rehearsed, a similar approach should be taken here. As I have pointed out (at [21] above), the plurality of the High Court in LPDT dealt with an asserted error of this type at [15]. While their Honours did not regard such an error as necessarily implying materiality (cf. [6] dealing with bias), "it is 'no easy task' for the Court to be satisfied" that the error is not material. I interpolate, as Kirk JA said in Fisher, breaches of the hearing rule aspect of natural justice are generally treated as errors of law (Fisher at [35]): see also Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208.
Mr Sayar's complaint relates to the additional reason expressed at the conclusion of TJ [170], extracted at [24] above. For ease of reference I will set out again: "In addition, in our view seeking a protective order that he be permitted to practise subject to conditions demonstrates a considerable lack of insight."
Mr Vuu of Counsel, who appeared for Mr Sayar both here and before the Tribunal, argued that this matter had not been raised with him by the Tribunal during the hearing. He submitted it might have been met by calling further evidence from Mr Sayar to the effect that his preparedness to submit to the stringent conditions proposed in fact demonstrated actual insight that his AMD required ongoing monitoring and supervision (see for example written submissions [85]-[94]).
Mr Chatterjee of Counsel, who appeared for the Commission in this Court and not below, relied upon the written submissions prepared by his predecessor, Mr Britt. In those submissions there was a concession (at [100]) that that the impugned expression of opinion had not been raised by the Tribunal with Mr Vuu at the hearing. However, he did not concede that this amounted to a denial of procedural fairness. He relied upon the well-known authority that the Tribunal was not required to disclose what it is minded to decide so as to allow the parties a further opportunity of criticising the process before a final decision is reached: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [48] where by reference to Hoffman La-Roche & Co. AG v Secretary of State for Trade and Industry [1975] AC 295 at 396, a unanimous High Court said: "Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of pre-judgment." I acknowledge that in the circumstances of that case the Court was of the view that the Tribunal had decided the case by reference to extraneous matters of which the applicant had no notice. However, this case is different.
First, I am not satisfied that Mr Britt's concession was properly made. The question of Mr Sayar's insight into his AMD and its affects was squarely raised at the hearing and indeed Mr Vuu cross-examined Dr Messner in relation to factors which might be consistent with appropriate insight. Dr Messner did not agree with the propositions underlying this line of cross-examination, as my summary of her evidence above indicates. Secondly, it is difficult to see what additional evidence or argument could have been put to deal with that issue in any event. In his written submissions, Mr Vuu does not suggest any particular matter that may have led to the expression of a different opinion on the part of the Tribunal. Thirdly, in context (at TJ [170]) the Tribunal was not referring to Mr Sayar's insight into the nature of his impairment and its affect upon him. Rather, it is clear that the lack of insight was into the nature of his professional misconduct constituted by the cumulative effect of his admitted unsatisfactory conduct as made in complaints 1 to 4. As I have made clear, it was those matters which persuaded the Tribunal that a cancellation order with a significant period of prohibition were the minimum protective orders necessary for the protection of the public. For Mr Sayar to focus upon the question of his competence (as he continues to do) portrayed a lack of insight as to the seriousness of the professional misconduct found against him. As I have said, the Tribunal made quite clear (at TJ [175]) that complaint 7 did not require cancellation of Mr Sayar's registration: cf. Bolton.
Finally, because in substance Mr Sayar's complaint goes to the adverse determination of complaint 7, for the reasons I have fully rehearsed above, had he established the error contended for, notwithstanding the difficulty of the task for an appellate court, I would have been of the view that it was a non-material error and on this ground as well I would have rejected Ground 5B.

Ground 1 - reversal of the onus of proof

The source of Mr Sayar's complaint is at TJ [139] (extracted at [79] above), where the Tribunal said: "We are not persuaded that the practitioner is competent to practise. Accordingly, we find complaint 7 established."
Mr Vuu argues that the grammatical meaning of TJ [139] is that Mr Sayar was required to persuade the Tribunal that he was competent, when as a matter of law the onus at all times lay upon the Commission to satisfy the Tribunal on the balance of probabilities that he was not competent as defined, bearing in mind the observations made by Dixon J as to the application of the civil standard of proof in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.
Mr Vuu referred to the oft-cited dictum of Hayne J in Waterways Authority v Fitzgibbon [2005] HCA 57;79 ALJR 1816 at [130] that because a judge is bound to state the reasons for arriving at the decision reached, "the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result". Mr Vuu argues that approached in that way, it is clear that the Tribunal adversely found complaint 7 against Mr Sayar by requiring him to prove his competence.
Mr Chatterjee argued that reading the Tribunal's judgment as a whole, it is evident that the Tribunal did not fall into this elementary mistake. Properly understood, the Tribunal did not reverse the onus of proof to require the plaintiff to prove his competence.
Of course, I am bound by the dictum of Hayne J in Fitzgibbon. At the same time as Mr Chatterjee argues the impugned passage must be read in the context provided by the whole of the Tribunal's reasons. The Tribunal has a statutory duty to provide the reasons: s 165M National Law. But like all Tribunals exercising a power in the nature of judicial power, its reasons are required to be read by the reviewing or appellate courts fairly, and as a whole, without an eye finely attuned to the detection of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [271]-[272].
When dealing with Mr Vuu's submissions (at TJ [121]) the Tribunal recorded that learned counsel had referred to the "heavy Briginshaw onus" resting on the Commission's "shoulders". The Tribunal also recorded the submission "that the Commission has not discharged that onus". It is quite clear that the Tribunal understood that submission and the other submissions advanced on behalf of Mr Sayar. At TJ [112], relating to complaint 6, the Tribunal recorded that notwithstanding Mr Sayar's admission, it was satisfied that the complaint "is established". This, clearly in context, means "is established by the evidence and the arguments advanced by the Commission". It is pointless to go on and multiply examples. There is nothing about the whole of the judgment that suggests that the Tribunal was under the fundamental misunderstanding in respect of any complaint that it fell to Mr Sayar to disprove the complaint. The consideration that the Commission bore the onus of proof in respect of each and every complaint, and that the application of the ordinary civil standard of proof may be informed by Briginshaw considerations, in my judgment it was so obvious as to go without saying in the Tribunal's decision.
I should add that as this ground like each of the others relates to complaint 7, had the error been established, it would not have been an error in point of law given that the findings on complaint 7 were, as I have said repeatedly, not material.

Ground 2

I set out the grounds of appeal at [4] above. However, for ease of reference I will restate Ground 2, which is in the following terms: "The Tribunal erred by failing to require sufficient evidence to discharge the onus of proof having regard to the gravity of the matters alleged in complaint 7."
Having regard to Ground 1, the real question arising goes to the sufficiency of the evidence to support the finding of incompetence. In his written submissions, Mr Vuu in the heading adopted described this as the "weight of evidence", which is purely a question of fact. However, from the substance of his submissions, I understand him to be raising a "no evidence" point, which of course, is a point of law. To the extent to which the argument goes on to seek to impugn the "reliability" of Dr Messner's evidence, it clearly raises a question of fact which in the present context requires leave: Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 155G-156B, Glass JA (Samuels JA agreeing).
The question of whether there was evidence to support the Tribunal's finding on complaint 7 arises in the context that the question of competence was one for the Tribunal and not for Dr Messner, although opinion based wholly or substantially upon her undoubted expertise as a psychiatrist was admissible. Dr Messner's evidence was not the only admissible evidence. In assessing the question of whether the no evidence ground is made good, I am required to take the evidence at its highest. Unless there has been a complete recantation by a witness of the whole of his or her evidence, the Tribunal of fact is entitled to accept part of a witness's evidence and reject other parts, even if the witness is an expert, according to the Tribunal's evaluation of the evidence. The Tribunal was not required to either accept all of the evidence of Dr Messner or reject all of it. These are trite matters of law requiring the citation of no authority.
It is clear from the Tribunal's determination of complaint 7 that it accepted Dr Messner's diagnosis of AMD, her opinion that Mr Sayar was not in remission, he was not receiving appropriate treatment and, according to the history recorded by her, continued to drink (TJ [128]). None of the matters upon which Dr Messner was challenged caused her to retract these opinions.
The Tribunal also relied upon the agreed facts about the circumstances of the incidents of 14 and 17 January 2020 from which they drew the inference that the impairment constituted by the AMD did interfere with Mr Sayar's judgment, communication skills and clinical ability on occasion (TJ [130]). The Tribunal clearly accepted the Commission's argument that while Mr Sayar continued to suffer from the AMD which was not in remission based upon the events of 14 and 17 January 2020 "there was a risk that [Mr Sayar] will jeopardise patient safety through dispensing errors while working under the influence in the future" (TJ 119). This was well open on the evidence. This body of evidence was sufficient to support the inference the Tribunal drew that Mr Sayar was not competent to practise due to his impairment.
It might be said that while the Tribunal clearly understood Mr Vuu's submission that "an assessment of competence is not to be undertaken in a vacuum" and that regard may be had to the imposition of conditions (TJ [123] - [124]), as a matter of law it was not bound to take into account protective conditions at Stage 1 of the inquiry. That it failed to do so when determining whether complaint 7 was established involved no error of law.
I am not satisfied that the no evidence point has been established. I need to repeat, had it been established, it would not have constituted an error of law in this case because the error would have been non-material to the making of the protective orders at Stage 2.
The balance of Mr Vuu's argument on ground 2, as I have said relates to questions of fact which require leave. His main criticisms relate to aspects of Dr Messner's evidence. However, his criticisms do not extend to those aspects of the matters accepted and relied upon by the Tribunal for the purpose of complaint 7 that I have summarised. Aspects of her evidence may have supported the submission that if complaint 7 were considered in isolation from the other complaints, stringent conditions may have been sufficiently protective. In particular, Dr Messner's conclusions in her report of 16 December 2022 were to that effect (see [61] above). But as I have said, as a matter of law, the Tribunal was not required to consider that evidence for the purpose of determining the question of competence at Stage 1.
My own impression of Dr Messner's evidence from reading the transcript has been set out at [74] above. I would not regard her evidence as being contrary to other established facts, incontrovertible evidence or compelling inferences. I am not persuaded that by relying upon so much of it as the Tribunal identified for the purpose of its determination of complaint 7, it either failed to use or misused its forensic advantage so far as such a such a consideration may be available in the case of an expert witness: see Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174.
It is obviously a tricky, but not impossible or impermissible, exercise for counsel to press Dr Messner's opinion about the protective nature of proposed conditions upon the Tribunal and the Court and at the same time argue her evidence was otherwise "unreliable". I do not find the argument persuasive in this instance.
Given what I have said about the materiality of complaint 7, notwithstanding the significance of Mr Sayar's ability to practise his profession to his livelihood, I would not grant leave for him to pursue the factual aspects of this ground.

Ground 3 - the failure to give adequate reasons

By dint of s 165M(1), the Tribunal is required to give a written statement of its decision to the parties and to the Council. Section 165M(2) provides: (2) The statement of a decision must - (a) set out any findings on material questions of fact; and (b) refer to any evidence or other material on which the findings were based; and (c) give the reasons for the decision. Given the nature of the powers reposed in the Tribunal under the National Law and having regard to its composition, I would also be prepared to assume that s 165M aside, it would have been subject to a common law duty to give reasons for its decision: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284.
Without purporting to fully survey the metes and bounds of the Tribunal's legal obligation to provide reasons for its decision, it is sufficient to refer to Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 which was relied upon by Mr Vuu. I should say, I accept that given the obligation to give reasons is a duty imposed by law a failure to discharge that duty as required would support a point of law appeal, always of course, subject to considerations of materiality.
Writing of a medical panel constituted under Accident Compensation Act 1985 (Vic) a unanimous High Court in Wingfoot said (at [55]): "The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion."
It may be that the Tribunal's obligation to give reasons is more onerous; certainly, its legal function should not be equated to that of a medical panel engaged in a neutral expert evaluation of a medical question in a non-arbitral or non-judicative context. Having said that, Mr Vuu emphasised the requirement that a "statement of reasons must explain the actual path of reasoning by which [the Tribunal] in fact arrived at the opinion [the Tribunal] in fact formed" on complaint 7.
Mr Vuu's argument was that there were only two available pathways for the Tribunal to find that complaint 7 had been established. The first was to accept the evidence of Dr Messner. In this regard, he submitted that evidence had to meet "the exacting threshold in Bolton", a point to which I will return. The second alternative was to reject Dr Messner's opinion and to act on the basis of its own expert knowledge as to the effect of AMD on the performance of a pharmacist's professional duty. He pointed out in this regard that the Tribunal would be required to disclose to Mr Sayar that it proposed to take into account its own expert knowledge, and to provide Mr Sayar with the opportunity through his counsel of addressing those matters. The essence of Mr Vuu's submission was that from the Tribunal's reasons it could not be said which of these pathways were followed.
The Commissioner submitted that the reasons were adequate to explain to Mr Sayar, and to the appellate court the pathway followed to the determination that complaint 7 had been established.
I agree that the reasons of the Tribunal adequately discharge their legal obligation in regard to complaint 7(and generally). I have already remarked more than once that the reasons were comprehensive and thorough in what was a complex and complicated case. It should be made clear emphatically that there is absolutely no suggestion in the material that the Tribunal in some way relied upon undisclosed matters drawn from its own expertise to conclude that complaint 7 was established. I have already referred to the aspects of Dr Messner's medical opinion expressly relied upon by the Tribunal and the Tribunal's reliance upon the factual material relating to the incidents of 14 and 17 January 2020; to say nothing of the long six-year history of alcohol abuse going as far back at least as the high range PCA conviction of 2017. It is clear to me from a fair reading of the Tribunal's decision, bearing in mind the dictum of Hayne J from Fitzgibbons, that the steps in fact taken by the Tribunal in arriving at its decision in respect of complaint 7 are fully set out in the judgment from TJ [127]-[139], as extracted at [79] above.
As I have already set out (at [78] above) the decision of Bolton does not establish any legal standard, nor does it purport to do so. It is abundantly clear that the Tribunal as constituted for that case was making a decision of fact and not principle. Indeed, with great respect, the Tribunal is not in a position to authoritatively decide any question of law. These matters are the province of the courts of ordinary jurisdiction, and in particular the Supreme Court. Bolton did not establish any exacting standard by which to measure Dr Messner's evidence. The standard of proof was the ordinary civil standard of proof on the balance of probabilities. Briginshaw does not impose some third exacting standard falling somewhere between the civil and criminal standards. It does no more than illustrate the application of the civil standard in given situations. Its work is done these days by the provisions of s 140(2) Evidence Act 1995 (NSW).
There may be a question about whether the considerations of materiality affect a failure to give adequate reasons in the same way as they affect the appellate potency of other errors of law given in one sense the legal obligation to give reasons is an aspect of natural justice. Given my decision in relation to the substance of this ground, it is unnecessary for me to resolve that question.

Ground 4 - the failure to respond to a clearly articulated argument

This ground relates to Mr Sayar's argument that the availability of stringent conditions on Mr Sayar's registration under s 149A(1)(b) National Law, the availability of which stringent conditions Mr Sayar said he would comply with, which found some support in the evidence of Dr Messner, at least in her reports, especially that of 6 December 2022, if accepted, meant that Mr Sayar was not incompetent, requiring the Tribunal to dismiss complaint 7.
As Mr Vuu accurately put it, this ground of appeal focuses on whether the Tribunal constructively failed to exercise jurisdiction by not disposing of a substantial and clearly articulated argument. Where that occurs, subject to materiality, the Tribunal has fallen into jurisdictional error which also qualifies as an available ground on a point of law appeal: Fisher at [35].
Once again, this argument relates to whether the Tribunal was bound to address the question of the imposition of conditions at Stage 1 while determining whether complaint 7 had been established. This ground of appeal is normally traced to the joint judgment of Gummow and Callinan J in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [394].
As Mr Vuu acknowledges, his argument at first instance was set out at TJ [124] during the Tribunal's Stage 1 decision as I have pointed out. And I accept his argument that there is nothing in the critical part of the Tribunal's Stage 1 decision (at TJ [127]-[139]) evaluating this argument. However, as Mr Vuu properly acknowledges, the Tribunal did address the appropriateness of the proposed conditions at Stage 2 (TJ [167]-[170]). It decided, having regard to its findings in relation to the admitted complaints 1 to 5 (and 6), that conditional registration was not the appropriate protective order to make in all the circumstances and that cancellation was called for.
Mr Chatterjee argued that the Tribunal had no obligation to consider conditional registration at Stage 1. The Tribunal had the power to cancel Mr Sayar's registration if he was guilty of professional misconduct (complaint 5) and it exercised that power. The Tribunal is not required to consider conditional registration at Stage 1 when determining complaint 7.
As Kirk JA said in Fisher (at [119]), for an appellant to succeed on this ground there must have been a failure to grapple with a substantial clearly articulated argument. However, his Honour cautioned against the danger of eliding into merits review.
As Meagher JA stated in Day v SAS Trustee Corporation [2021] NSWCA 71 at [37]: "[37] As those decisions illustrate, a constructive failure to exercise jurisdiction (or a purported exercise, in the sense that there is an appearance of an exercise of jurisdiction) as alleged by the appellant is not a mere failure to consider evidence or to address an argument or submission, which may be contingent or otherwise insignificant, but a failure to understand and determine a case or claim. The ultimate question is whether a failure to consider and address certain issues or arguments involved a failure to address central or critical elements of the case or claim: compare, in relation to failures to consider evidence, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [69], [111]. It will be insufficient for the appellant to show that his "three key issues" were not stated and determined discretely. What he must show is that they raised "substantial" (in the sense of clearly material) arguments or questions which the primary judge in substance failed to address in determining the appellant's claim to have been incapable, by reason of a chronic adjustment disorder, of exercising the functions of a police officer at the time of his resignation."
It was certainly part of Mr Sayar's case, as articulated by Mr Vuu, that imposition of appropriately stringent conditions was an available means of addressing any finding of incompetence. Indeed, it was implicit in the argument advanced on behalf of Mr Sayar at first instance that his AMD, absent such stringent conditions, did render Mr Sayar incompetent in the statutory sense because of the risk to the public of him wrongly dispensing medicine or failing to understand what a prescription required as had occurred on 14 and 17 January 2020. As I have said already, it is not the law, and Bolton is not to the contrary, that when raised, the availability of appropriate conditions must be considered at Stage 1 as an aspect which must be taken into account in considering questions of competence raised by a complaint that the Tribunal is required to determine. I repeat, Mr Vuu accepts that the Tribunal did consider the availability of even stringent conditions at Stage 2 and at both stages fairly and fully recorded his argument in that regard. Quite apart from the consideration of materiality which is significant in respect of an allegation of constructive failure to exercise jurisdiction, I am not satisfied that this ground is made out.

Ground 5A

Mr Vuu quite properly conceded that Ground 5A was an extension of the argument advanced on Ground 4. In the event that Ground 4 was rejected he did not press Ground 5A (Written Submissions [85]). Accordingly, it is unnecessary for me to consider the matter.

Orders

For the reasons given I make the following orders: 1. Direct the plaintiff to within 14 days file a Further Amended Summons incorporating the additional Grounds 5A and 5B and the proposed orders appearing at paragraph [100] of the plaintiff's written submissions dated 27 September 2023. 2. Refuse leave to raise the factual aspects propounded in relation to Ground 2. 3. Appeal dismissed. 4. The plaintiff to pay the defendant's costs of the appeal.

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: 19 April 2024

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