Vito Zepinic v Health Care Complaints Commission

Supreme Court of NSW|2019-05-30|Before: Adams J

Judgment

By Notice of Appeal filed on 12 November 2018, Dr Vito Zepinic appeals against the whole of the decision of the New South Wales Civil and Administrative Tribunal (Occupational Division) ("NCAT") on 18 October 2018 to refuse to reinstate him as a psychologist: Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 166. The Health Care Complaints Commission ("HCCC") appeared as contradictor before NCAT and appears as the respondent in the appeal to this Court.
The relevant legislation governing the registration of psychologists is the Health Practitioner Regulation National Law (NSW) ("National Law"). The Notice of Appeal incorrectly describes this appeal as being brought under s 48 of the Supreme Court Act 1970 (NSW) and Uniform Civil Procedure Rules 2005 ("UCPR"), r 51.9(1)(a). In fact, the statutory basis of Dr Zepinic's appeal is to be found in Clause 29 of Schedule 5 to the Civil and Administrative Tribunal Act 2013 (NSW) which relevantly provides as follows: 29 Certain profession decisions to be appealed directly to Supreme Court or Land and Environment Court (1) Profession decisions not internally appealable Despite section 32 of this Act, each of the following Division decisions (a profession decision) is not an internally appealable decision for the purposes of an internal appeal: … (d) a decision for the purposes of the Health Practitioner Regulation National Law (NSW) (other than a decision for the purposes of clause 13 of Schedule 5F to that Law). (2) Right to appeal to Supreme Court or Land and Environment Court However, a party to proceedings in which a profession decision is made may appeal against the decision in accordance with this clause to: (a) in the case of an order for the purposes of Division 3 of Part 5 or Division 4 of Part 7 of the Aboriginal Land Rights Act 1983 declaring a vacancy in an office - the Land and Environment Court, and (b) in the case of any other decision - the Supreme Court. … (4) Basis or grounds for appeal An appeal to a court under this clause: (a) in the case of an appeal against a decision for the purposes of the Legal Profession Uniform Law (NSW) - is an appeal to which section 75A of the Supreme Court Act 1970 applies and, accordingly, is by way of a rehearing rather than a new (de novo) hearing, and (b) in the case of any other appeal (a non-lawyer appeal) - may be made as of right on any question of law, or with the leave of the court, on any other grounds. … (Emphasis added.)

Background to the NCAT decision

The evidence on this appeal included all of the evidence before NCAT and two additional affidavits from Dr Zepinic. These affidavits are, in effect, submissions. The HCCC did not object to them being admitted on this basis. Dr Zepinic also filed lengthy submissions and reply submissions.
The background and procedural history of this matter is set out in the NCAT decision appealed against. The summary which appears below has largely been taken from that decision as well as the other material before me.
Dr Zepinic was born in the former Yugoslavia in 1953. He emigrated to Australia in 1993 and applied for registration with the Psychologist's Registration Board of New South Wales ("the Board"). He provided documentation concerning his qualifications in the former Yugoslavia and was registered as a psychologist in 1994. He worked as a psychologist in a number of positions both in Queensland and New South Wales after that time.
In 2008 the HCCC brought a prosecution against Dr Zepinic in the Local Court of NSW for breaches of s 105(1) of the Medical Practice Act 1992 (NSW) (now repealed) which provided as follows: (1) A person who is not a registered medical practitioner must not take or use any name, initials, word, title, addition, description or symbol which having regard to the circumstances in which it is taken or used indicates or is capable of being understood to indicate or is calculated to lead persons to infer that: (a) the person possesses a degree, diploma, or other qualification of a nature which would entitle the person to be registered as a medical practitioner, or (b) the person is registered as a medical practitioner under this Act. Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
It was alleged that when Dr Zepinic prepared medico-legal reports he held out that he was a medical practitioner writing the initials "MBBS" after his name. He has never been registered as a medical practitioner in Australia and it has also been confirmed that he has no such qualifications from the former Yugoslavia. I pause here to observe that when I queried why he was described as "Dr Zepinic" in the material before me he explained that he has a Doctor of Philosophy conferred when he was in the former Yugoslavia. Counsel for the HCCC accepted that he was entitled to describe himself in this way.
The hearing was conducted before Magistrate Barkell who on 22 July 2008 found Dr Zepinic to be guilty of the charges. The Local Court transcript of the proceedings on sentence on 25 July 2008 records that although Dr Zepinic's counsel submitted that it would be appropriate to deal with the matter under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act") (that is, that no formal conviction be recorded), his Honour formed the view that a conviction was appropriate, stating: "So it does seem to me, bearing all the matters that I have mentioned in mind, that this offence is one which is serious. It is one which is done in the context of someone with no previous convictions and someone who is of good character and a significant contributor to society but it does carry, not only a need for personal deterrence, but a need for general deterrence although not as great as the need found in the case of Lin, I do think that a conviction has to be recorded and I do intend to record convictions for each of the matters."
His Honour then convicted Dr Zepinic on each matter and placed him on a 2 year good behaviour bond.
On 25 July 2008, Dr Zepinic signed the section 9 bond.
As a result of a clerical error the initial certificates of conviction provided by the Local Court to the Board were incorrectly dated 19 August 2008 rather than 25 July 2008. The Local Court subsequently issued amended certificates of conviction, which were before me, which are dated 25 July 2008.
Subsequent to the convictions and the bond being entered into, the Board gave notice of an enquiry under Part 4 Div 4 of the Psychologists Act 2001 (NSW) ("the 2001 Act"). The enquiry was concerned with whether Dr Zepinic should continue to be registered as a psychologist. The focus of that inquiry was whether Dr Zepinic's conduct constituted unsatisfactory professional conduct within the meaning of s 25 of the 2001 Act, professional misconduct within the meaning of s 24 of the 2001 Act, and whether he was of good character.
On 7 October 2008, the board conducted its enquiry. Dr Zepinic was in attendance, provided written submissions, made a statement and was questioned by board members.
On 27 October 2008, the Board found that Dr Zepinic was guilty of unsatisfactory professional conduct by reason of a breach of s 25(e) of the 2001 Act based on the conduct giving rise to the Local Court convictions. The Board reprimanded Dr Zepinic under s 51(1)(a) of the 2001 Act for this unsatisfactory professional conduct.
On 22 November 2008, Dr Zepinic wrote to the Registrar of the Board. He commenced his five page letter in this way: "I acknowledge receipt of the Reasons for Decision in relation to the Board inquiry under section 48 Psychologists Act 2001. I reject the findings and lodge an official appeal considering that a natural justice was not taken into consideration. I also found that sending copy of the Reasons for Decision to the Clinical College of the Australian Psychological Society is an act of pre-emptive strike to decrease chances in someone's defence." (Emphasis added.)
At that time, s 53(2) of the 2001 Act provided that the Psychologist's Tribunal ("the Tribunal") could direct that a person's registration be cancelled if the Tribunal is satisfied that the person is: … (b) guilty of professional misconduct, or (c) that the person has been convicted of or made the subject of a criminal finding for an offence, either in or outside New South Wales, and the circumstances of the offence are such as to render the person unfit in the public interest to practice psychology, or (d) that the person is not of good character. …
Section 111(4) of the 2001 Act permitted the Tribunal to determine such an inquiry or appeal in the absence of the psychologist.
In addition to Dr Zepinic's appeal lodged by the 22 November 2008 letter, the Board also sought that Dr Zepinic's registration be cancelled and made two further complaints to the Tribunal dated 9 October 2009. The first of these two additional complaints was that Dr Zepinic was not of good character because of false representations or declarations he was alleged to have made to the following: the Royal Australian and New Zealand College of Psychiatrists (RANZCP), the Australian Medical Council, the Medical Board of Western Australia, the New South Wales Medical Board, the Hunter Mental Health Service, the Medical Board of Queensland, the University of Sydney, and the Psychologists Registration Board of New South Wales (in an annual renewal of registration).
The second additional complaint was that Dr Zepinic was guilty of professional misconduct, because he falsely declared to the Board in his annual renewal of registration on 23 March 2009 that he did not have a criminal history.
Dr Zepinic attended the first directions hearing at the Tribunal when the initial timetable for exchange of documents was fixed. He failed to attend the further directions hearings. He also failed to provide any documentation other than the material annexed to the original appeal. Records show that on 10 March 2009 he left the country to reside in the United Kingdom.
Dr Zepinic's appeal and the Tribunal's additional complaints were all subsequently heard in his absence on 24 June 2009, 27 and 28 April 2010 and 2 July 2010.
On 1 July 2010, the relevant legislation regulating the deregistration and application for review of psychologists changed. The 2001 Act was repealed and the National Law came into force and took effect in New South Wales.
On 13 August 2010, the Psychologists Tribunal of New South Wales issued its judgment in Zepinic v Psychologists Registration Board of NSW [2010] NSWPST 6. That decision concerned both Mr Zepinic's appeal under s 17 as well as the inquiry made under s 53 as to whether he should be deregistered as a psychologist.

The 2010 decision

The Tribunal published its reasons for decision on 12 August 2010. It found the initial complaint concerning the breaches of s 105 of the Medical Practice Act and an additional two complaints to be established. It was also satisfied that 13 of the 19 particulars for the first additional complaint were established.
The Tribunal was satisfied that, based on the evidence, Dr Zepinic's undergraduate and postgraduate qualifications were in psychology only. In addition to being satisfied of the Local Court convictions, the Tribunal was also satisfied that Dr Zepinic had answered "no" to the following questions on his application for renewal of registration in 2009: "Have you been convicted of any offence, in or outside NSW, except an excluded offence?" and "Has a criminal finding been made against you for an offence committed in the course of the practice or purported practice of psychology?".
The Tribunal was also satisfied that Dr Zepinic made a number of false representations that he had medical qualifications to the RANZCP in 1996 and 1998, to the Australian Medical Council in 1997 and 1998 (and also that he had postgraduate qualifications in psychiatry) and the University of Sydney in or about 2005. In addition, on 6 April 1999 he had created an "unauthorised" letter and forged the signature of a colleague at St John of God Hospital Burwood purporting to confirm an offer of a position as "Medical Officer" at the hospital in order to support his application for registration to the NSW Medical Board. Dr Zepinic had also given false evidence to Burwood Local Court on 14 April 2008 in stating that he had a Doctor of Medicine from the University of Sarajevo.
On 12 August 2010, the Tribunal, having heard Dr Zepinic's appeal from a decision of the Board under s 17 of the Psychologists Act and an inquiry under s 53 of that Act, made an order cancelling Dr Zepinic's name from the register, a prohibition order and an exclusion order for a period of five years.

Conviction in the United Kingdom

After Dr Zepinic left Australia he sought to practice as a psychologist in the United Kingdom. When asked whether he had any criminal convictions on the relevant documentation he replied that he did not.
On 8 August 2013, Dr Zepinic was convicted in a jury trial in the Crown Court at Wood Green in the United Kingdom of three counts of fraud. These convictions arose from Dr Zepinic's failure to disclose his 2008 convictions in his job application made on 9 September 2009 to Queen Mary University London; his failure to disclose in applications made between 22 November 2010 to 2 August 2011 for 22 jobs with National Health Service employers that he had previous convictions and had been removed from the register; and his failure to disclose in an application on 1 August 2011 for a post as Board Secretary of the Royal Free Hampstead NHS Trust that he had been removed from the register.
He was sentenced to a community order for 12 months. Dr Zepinic's application for leave to appeal against conviction was refused by a single Judge and his appeal to the Court of Appeal, Criminal Division, was dismissed on 6 November 2014.

Application for a reinstatement order

Dr Zepinic returned to Australia to reside on 8 October 2016. Shortly thereafter he sought a reinstatement order so that he could be registered as a psychologist in New South Wales again.
Since 1 July 2010 deregistration decisions taken under the 2001 Act are taken to have been made under the National Law: s 287 National Law. Part 8, Division 8 of the National Law provides for reinstatement applications. The Psychology Board of Australia cannot consider whether Dr Zepinic should be registered as a psychologist until NCAT has granted him a reinstatement order under s 163B of the National Law.
The reinstatement application was first listed for hearing on 5 June 2018 but that matter was adjourned: Zepinic v Health Care Complaints Commission [2018] NSWCATOD 92.
The reinstatement application was ultimately heard before NCAT on 17 and 18 July 2018. Dr Zepinic gave evidence and was cross-examined at that time.
The HCCC acted as contradictor before the Tribunal. It opposed the application for a reinstatement order, and submitted that the application should be dismissed. It was also submitted that a further non-review period of five years should be imposed.
The powers of NCAT on a review under s 163B are as follows: 163B Powers on review [NSW] (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following - (a) dismiss the application; (b) make an order ending or shortening the period of the suspension concerned; (c) make a reinstatement order; (d) make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions; (e) make an order - (i) ending or shortening the period of a prohibition order; or (ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions. (2) If the appropriate review body makes an order altering a critical compliance condition, or removing a critical compliance condition and imposing a new condition, the altered condition or new condition is a critical compliance condition unless the body orders otherwise. (3) A reinstatement order is an order that the person may be registered in accordance with Part 7 if - (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time.
In relation to a scope of a review, s 163C(2) provides that: 163C Inquiry into review application [NSW] … (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. …
NCAT refused the reinstatement application and provided its reasons for doing so on 18 October 2018.

Decision of NCAT

The reasons for NCAT's refusal to reinstate Mr Zepinic commence with an outline of the procedural history of the matter and extraction of the relevant appeal provisions. The relevant principles guiding a reinstatement application are set out at [6]-[9] of the decision. No challenge was made to the correctness of the applicable principles. I shall consider these principles in my consideration below. It was noted that the standard of proof is the civil standard, on the balance of probabilities, to the level of satisfaction described by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.
After setting out these relevant principles, some background material is briefly set out at [10]-[14] before the findings of the Board in 2010 are summarised and extracted in some detail at [15]-[22] including the following extract of the 2010 decision at [197]-[202]: "Findings in relation to the Original Complaints 197. The Tribunal is comfortably satisfied that the Appellant's conduct constitutes unsatisfactory professional conduct in that it demonstrates that the Appellant conducted himself in an improper and unethical manner and that the conduct demonstrated that the judgment possessed by the psychologist in the practice of psychology was significantly below the standard reasonably expected of a psychologist of an equivalent level of training and experience to that of the Appellant. Further the Tribunal is of the view that the conduct is of such a sufficiently serious nature to justify suspension or cancellation of registration. The Tribunal makes a finding of professional misconduct with respect to the original Complaint. 198. As to the 'not of good character' Complaint, the Tribunal is required to make a determination as at the date of the Inquiry/decision. The conduct is certainly indicative of a deficit in character. The Tribunal would not be reasonably satisfied that this conduct alone would result in a 'not of good character' finding. Given the additional matters put before the Tribunal it is appropriate for the Tribunal to consider the conduct established under the four Particulars of the Original Complaint along with those matters subsequently put before the Tribunal when determining the appropriate Orders to make. Findings in relation to Additional Complaint One 199. As set out above, the Tribunal has made findings with respect to each of the Particulars of the additional Complaint One. The Tribunal accepts the submissions made by the Respondent. 200. Whilst not every act of dishonesty (forgeries, false declarations and a failure to disclose to the Board in this instance) would in itself allow a finding of 'not of good character' to be made, the level of dishonesty of the Appellant found by the Tribunal is remarkable. When considered in its totality there is a pattern of the Appellant providing information that would progress his various applications rather than of providing truthful information. His reliance on the difficulties that are expected when leaving a country in the throws [sic] of civil unrest is disingenuous and deceitful. This conduct shows no regard for those people who genuinely hold qualifications to which they have no access because of such upheavals and may be deserving of the trust of a registration authority. 201. The Tribunal has evidence before it that when the District Court considered a personal injuries claim made by one of the Appellant's clients in 2001 it was argued that his evidence should be rejected on the basis that there was (at that stage) an allegation that the Appellant was holding himself out as a medical practitioner. On this occasion this argument was rejected. However, the potential for an adverse outcome for a client of the Appellant as a result of the Appellant's conduct is clearly demonstrated (see volume 1 - exhibit C1, page 58). 202. The Appellant engaged in a pattern of misleading conduct, providing false information whenever it suited his purposes. 203. The Appellant forged documents and signatures. He provided the false and misleading information not only to various relevant professional bodies but also to numerous registration authorities. He was prepared to provide this information as statutory declarations and solemn declarations which in some cases were witnessed by Justices of the Peace. 204. The Appellant made these representations knowingly, for his own purposes and benefit. His aim was to gain professional standing to which he was not entitled. The Tribunal notes the provisions of the Oaths Act 1900 (NSW). 205. His reliance on his refugee status compounds the abysmal nature of his conduct. 206. Although the Tribunal has viewed the Particulars cumulatively in forming the view of a reasonable satisfaction as to the conduct demonstrating a lack of good character, there are a number of Particulars that would in and of themselves allow the Tribunal to reach such a finding. The falsification of the letter on the St John of God letterhead and the forging of Ms McCabe's signature is one such act and the representations made to the effect that he held an undergraduate medical qualification is another. 207. The conduct occurred over a significant period of time. The Decision of the Board Inquiry indicates that the Appellant was not acting in a manner expected of a professional person. The Appellant has not taken any steps to correct the misleading information he has provided to various entities even after the falsity of the documents was beginning to be uncovered. 208. The Appellant did not attend the further Directions Hearings in this matter and did not comply with the timetables set by the Tribunal. The Appellant failed to attend the Inquiry. There is nothing in evidence before the Tribunal that would indicate that there has been any reformation of the character of the Appellant. 209. The conduct of the Appellant demonstrates serious and significant defects in his character. The Tribunal is reasonably satisfied that the conduct of the Appellant demonstrates that he is not of good character. Findings in relation to Additional Complaint Two 210. The Tribunal notes that the Appellant failed to honestly answer Questions 1 and 3 on his annual registration renewal form. The Act provides for the Board to require this information to be provided and verified as a statutory declaration. By making a false declaration the Appellant has contravened a provision of the Act. 211. Further, even if there was no such statutory obligation, the provision of relevant information is a fundamental responsibility of all registered health care professionals. Providing false information in the circumstances of this matter clearly constitutes improper and unethical conduct in the course of the practice of psychology. 212. The Appellant's conduct is of such a sufficiently serious nature to justify suspension or cancellation of registration. The Tribunal makes a finding of professional misconduct with respect to Additional Complaint Two."
The judgment then goes on to extract [215]-[221] of the 2010 decision. These paragraphs are as follows: "215. The Appellant made blatant and wilful misrepresentations to the Board, to other registration authorities and to other professional organisations. The misrepresentations may well have denied these bodies the opportunities to act appropriately to protect the public and to otherwise carry out their important functions. 216. The primary function of the Tribunal is to protect the public. Other matters to be considered by the Tribunal as relevant considerations are the maintenance of discipline within the profession, a general deterrent effect and the maintaining of public confidence in the profession. The Tribunal therefore must consider Orders that fulfil these requirements. Whilst it is an established principle of law that the Tribunal should impose the least restrictive Orders possible in the circumstances, the protection of the public is paramount and outweighs consideration of the onerous burdens that Orders may place upon a practitioner. In this matter protection of the reputation of the profession and the maintenance of confidence that the public is entitled to expect in the profession of psychology are prominent considerations. 217. Given the length of time the Appellant engaged in the deceptive conduct detailed in this matter and the nature of the deficits in character exposed by the findings of this Tribunal the Appellant will require a lengthy period of time to address these issues. The Tribunal will fix a period of five years from the date of the decision during which the Appellant will not be entitled to apply for a review of the Orders. 218. The Tribunal is satisfied that the Appellant lacks the character required to be a registered psychologist; further, he has conducted himself in an improper and unethical manner over a lengthy period of time. 219. The Tribunal is of the view that conditions on registration would not be appropriate in this matter. Not only is the conduct of the Appellant so appalling that it would attract the most severe criticism, the Appellant has demonstrated he cannot be trusted to act in an honest and truthful manner. 220. The Appellant poses a significant risk to the public safety, particularly having regard to the manner in which he has repeatedly made false and misleading statements to various regulatory and professional organisations. The Appellant did not attend the Inquiry and has not provided a full and frank account of his conduct to the Tribunal. The conduct of the Appellant extended beyond the profession of psychology, and beyond registration authorities. The Tribunal therefore considers it appropriate to proceed to make a Prohibition Order. 221. The provisions of the Act relating to the award of costs are what is commonly known as 'costs follow the event'. The Tribunal orders costs in favour of the Respondent in the usual terms."
The evidence relied upon by Dr Zepinic is then set out noting that he gave oral evidence and was cross-examined over two days ([23]-[27]). Dr Zepinic's submissions are then set out in some detail at [28]-[39]. In essence, Dr Zepinic sought a reinstatement order on the basis that the 2010 Tribunal decision was invalid because the hearings were invalid, the six certificates documenting his convictions in Burwood Local Court were fraudulent and he did not accept the decision of the Psycholigst's Registration Board of 27 December 2008.
The submissions of the HCCC are then summarised at [40]-[44].
NCAT's reasons for refusing to reinstate Dr Zepinic commence from [45] of the decision where it is noted that its task was to "consider whether Dr Zepinic has demonstrated that in the future he will act in accordance with the high standards and responsibilities of the profession".
NCAT acknowledged that the fact that Dr Zepinic does not admit that he is guilty of misconduct and continues to claim that he is innocent of the conduct found by the Tribunal does not of itself preclude reinstatement but noted the observations of Mason P (as he then was) in Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 at [100] that "there is no error in concluding in a particular context that continuing vigorous challenge to clearly established guilt may be indicative of continuing unfitness": at [47].
At [49] NCAT found that Dr Zepinic has not demonstrated any insight into or contrition for the conduct which was the subject of the orders made by the Tribunal. This conclusion was based in part on Dr Zepinic's denial that he was ever convicted in Burwood Local Court in 2008. It was noted (at [50]-[53]) that the basis for Dr Zepinic's assertion that he was never convicted was the initial incorrectly dated certificates of conviction. The amended certificates in evidence before NCAT confirmed the correct date of conviction as 25 July 2008 which is consistent with the transcript of the Local Court proceedings. The transcript records that on 22 July 2008 Magistrate Barkell found Dr Zepinic guilty of six counts of offending against s 105(1) of the Medical Practice Act and he was convicted and sentenced on 25 July 2009. It was noted that although Dr Zepinic's representative submitted that the court should consider dismissing the charges under s 10(1)(a) of the Crimes (Sentencing Procedure) Act, the Magistrate convicted Dr Zepinic and released him on his entering a bond under s 9 of that Act to be of good behaviour for a period of two years.
It was noted that Dr Zepinic maintained his assertion that he had not been convicted in his evidence before NCAT despite being shown the above documents in cross examination (the transcript of the proceedings at Burwood Local Court on 25 July 2008 and a copy of the bond made under s 9(1) of the Sentencing Act, signed by Dr Zepinic on 25 July 2008).
NCAT was satisfied that Dr Zepinic was convicted of the six offences under s 105(1) of the Medical Practice Act on 25 July 2008 and these convictions formed the basis of the Board inquiry and the appeal to the Tribunal: at [53].
NCAT went on to consider Dr Zepinic's second argument that the 2010 decision is "invalid and void" because it was heard in his absence. NCAT was satisfied that it had no jurisdiction to make any findings as to the validity of the 2010 decision: at [54]. The following observations were then made about Dr Zepinic's complaint in this regard: "However, we are satisfied that the letter of 22 November 2008 was clearly intended by Dr Zepinic as an appeal against the findings of the Psychologists Registration Board, and having initiated that process, that Dr Zepinic participated to the extent of the first directions hearing. The Psychologists Tribunal was empowered to deal with the additional complaints: cl 5, Sch 5, 2001 Act; and it was empowered to determine the appeal and inquiry in the absence of Dr Zepinic: s 111(4), 2001 Act. Dr Zepinic takes issue with the wording of the orders made by the Psychologists Tribunal, which refer both to "Respondent" and "Appellant", in support of his argument that the orders do not apply to him. However, in a matter in which that Tribunal was considering both an appeal against the findings of the Board and the additional complaints against Dr Zepinic, and where it is clear that Dr Zepinic is the subject of those orders, Dr Zepinic has not established how any such references could affect the validity of the orders, or how he could properly believe that the orders can be ignored because they do not apply to him. More fundamentally, Dr Zepinic has taken no steps to challenge the process undertaken by the Psychologists Tribunal, or to have its findings and orders set aside, in a court with jurisdiction to do so. The Tribunal accepts the HCCC submissions that the 2010 Decision stands, and as a "relevant order" as defined in s163A of the National Law is the basis of Dr Zepinic's application for an order under s 163B of the National Law."
NCAT then went on to consider Dr Zepinic's evidence noting at [55] that "[m]uch of Dr Zepinic's oral evidence was unsatisfactory, and unresponsive to the questions asked. When taken to particular documents or matters adverse to his interests, Dr Zepinic tended to deflect any blame, instead asserting that particular documents…..were falsified". Dr Zepinic's evidence as to when he became aware of the 2010 decision was described as "inconsistent and unsatisfactory". Records before NCAT showed that although Dr Zepinic was not in Australia for the actual hearing in 2010 he travelled to Australia 16 times after leaving on 10 March 2009 and returning to Australia on 8 October 2016.
Dr Zepinic's evidence before NCAT was that he first became aware of the 2010 decision during his prosecution in the United Kingdom in 2013 but the judgment of the Court of Appeal Criminal Division of 6 November 2014 in relation to that conviction records Dr Zepinic's evidence at trial being that he had found out about the order in 2011. Neither of these versions provided by Dr Zepinic as to when he first became aware of the 2010 decision is consistent with correspondence to Dr Zepinic dated 22 October 2010 from the UK Health Professions Council informing him that his application for registration had been refused on the basis that he had not declared that his name had been removed from the NSW register on 12 August 2010.
NCAT was satisfied that "even if Dr Zepinic was absent during the Psychologists Tribunal process and at the time its decision was made, he was aware of the orders made by the Psychologists Tribunal by October 2010": at [55].
At [56] of the Reasons it was observed: "The Tribunal is satisfied that Dr Zepinic has not addressed the matters in respect of which the Psychologists Tribunal concluded in 2010 that he was guilty of professional misconduct and not of good character. He has continued to deny the basis on which those findings were made and their applicability to him, and to deflect blame, rather than take steps to have the orders made then set aside."
NCAT went on to find that "since 2010 Dr Zepinic has continued to conduct himself in an improper and unethical manner, and to act in a manner which demonstrates that he is not of good character." In support of this NCAT relied upon three further matters since 2010.
First, the convictions in the United Kingdom were based on the same as conduct as that raised in these proceedings. Secondly, Mr Zepinic failed to disclose his 2008 convictions in his most recent application to AHPRA. Thirdly, Mr Zepinic continued to use false documents, in particular a reference purporting to have been given by Dr Selwyn Smith dated 22 February 1999. The Tribunal had in evidence in 2010 an affidavit sworn by Dr Smith that he did not provide such a reference and that the signature on it was not his. When asked why he had provided this document to NCAT, Dr Zepinic did not address the issue. His response was that he required proof that it was his signature on the reference, and that Dr Smith's statement was false.
NCAT went on to consider the quality of Dr Zepinic's character and was satisfied that: "64. …far from demonstrating any reflection on or attempts to address the shortcomings identified in the 2010 Decision, Dr Zepinic has continued to exhibit behaviour that is completely inconsistent with the standards of honesty and integrity expected of a health practitioner. He has failed to acknowledge, and to disclose to regulatory authorities and potential employers, his convictions in 2008 for offences under the Medical Practice Act. Those offences were described by the Magistrate as serious, and as being counter to the purpose of the legislation to protect the system of registration (ex R1, tab 7, p 186). He has failed to acknowledge, and to disclose to regulatory authorities and potential employers, that orders were made in 2010 by the Psychologists Tribunal to cancel his registration and impose a prohibition on his applying for re-registration. Instead, he has demonstrated a fixation with the date differences for the 2008 convictions and his grievances as to the process of the Psychologists Tribunal determination. 65. Dr Zepinic has not provided any basis on which the Tribunal could be satisfied that there has been a change since the findings in the 2010 Decision that there is a pattern of Dr Zepinic providing information that would progress various applications rather than providing truthful information, and that his conduct demonstrated serious and significant defects in his character. The Tribunal cannot be confident that he exhibits the required degree of candour and honesty with regulatory authorities, as stated in Health Care Complaints Commission v Kesserwani [2017] NSWCATOD 149 where the Tribunal said: It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with the regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities: see HCCC v Chowdhury [2015] NSWCATOD 65 at paragraph 81. 66. We are not satisfied that Dr Zepinic has demonstrated, on the balance of probabilities, that he can now be trusted to practice in a manner that conforms to the professional and ethical standards expected of a registered psychologist. We are not satisfied that there has been a reformation of character, and we cannot be satisfied that for the future he will act in accordance with the high standards and responsibilities of the profession. Dr Zepinic's application for a reinstatement order should be dismissed."
In addition to dismissing the application, NCAT ordered that there was to be no review of its order until five years after its date and that Dr Zepinic was to pay the HCCC's costs.

The appellant's submissions

The focus of Dr Zepinic's detailed written submissions was on two issues: his assertion that he was not convicted in the Burwood Local Court in 2008 and his assertion that the decision of the Tribunal in 2010 was a nullity because he was not present. Reliance was placed on, inter alia, the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 concerning how judicial documents are to be transmitted abroad.
A number of decisions relevant to criminal law were also cited in his submissions including: Reg. v Boardman [1975] AC 421, Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50, Makin v Attorney-General (1989) 167 CLR 590; [1984] AC 57, Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, R v Hanson, Gilmore & Pickstone [2005] 2 Crim App R 21, R v Fouad Bennabou [2012] EWCA Crim 3088, R v Highton [2005] 1 WLR 3472, DS v HM Advocate (2007) SC (PC) 1, Campbell v R [2007] 2 Cr App Rep 28, R v Ghosh [1982] 2 All ER 689, Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67, B v The Queen (1992) 175 CLR 599; [1992] HCA 68 and O'Brien v Chief Constable of South Wales Police [2005] UKHL 26. The relevance of these decisions appears to have been that he challenged the Tribunal's finding that he was not of good character.
During oral submissions it was explained to Dr Zepinic that the nature of the appeal was that he had an appeal as of right on a question of law and by leave on any other ground in the decision of NCAT. Despite being warned on numerous occasions that he was not to make any further submissions about his lack of convictions or assertion that the 2010 decision was a nullity he continued to do so. I then afforded Dr Zepinic a brief adjournment so that he could identify those parts of the decision of NCAT which he submitted disclosed error.
After court resumed, Dr Zepinic submitted that it was not open to NCAT to find that he was convicted at Burwood Local Court and that the UK convictions are not sound because they were based on incorrect certificates of conviction. He also challenged the finding that he lacked insight because he kept challenging what happened in 2010. He repeated the arguments put before NCAT that the fact that he was referred to as both respondent and appellant in the 2010 decision means that there is a defect in those orders and they do not apply to him.
He further submitted that the 2010 decision was void based on the decisions of Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14 and Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 ;[1995] HCA 10.
By way of example of the manner in which Dr Zepinic conducted the appeal and his insistence that he was not convicted at Burwood Local Court, when addressing [59] of the NCAT decision Dr Zepinic submitted the following: "Then paragraph 59, Court of Appeal, the Criminal Division, in UK made decision based on fabricated certificates and by Medical Board of New South Wales. Definition, criminal history, of course I don't have any criminal history in Australia, your Honour, even parking ticket. I never even have one point being taken from my driver's licence except, except criminal conviction on 19 August 2008, what doesn't happen at all."
When addressing the provision of the false reference from Dr Smith to the Tribunal, Dr Zepinic submitted that he did not understand the point of what NCAT was saying in that paragraph of its decision. The following exchange then took place: "HER HONOUR: Well, as I read paragraph 62, what the tribunal is saying is that you produced a reference from Dr Smith which is a forgery because Dr Smith said it's not his signature. APPELLANT: Your Honour, I didn't ask him, nor a college of psychiatrists ask Dr Smith to submit his reference. College requires a reference from a doctor and Dr Smith is not consultant psychiatrist. He was de‑registered from the college in 1972, I don't know, it's not my business. HER HONOUR: In any event, that document was before the NCAT. If you go over the page, NCAT said you didn't address then how it was before them and that you needed proof that it was his signature on it and that you submitted that Dr Smith‑‑ APPELLANT: I'm not competent, your Honour, to saying‑‑ HER HONOUR: Please don't interrupt me. APPELLANT: Sorry. HER HONOUR: Secondly, all I'm saying is that at that paragraph, the tribunal is summarising what happened and all it's saying is, they asked you why you provided it, you didn't address the issue and said you needed proof that it was his signature and that you said it was false. Now, they're just summarising what happened. Do you say there's any error in that summary? APPELLANT: I didn't do that. I did nothing with his reference. HER HONOUR: So your point is you didn't provide it? APPELLANT: I didn't ask him to provide and he has no rights to provide reference."
As for the ultimate findings of the Tribunal commencing at [64], Dr Zepinic made the following submission: "APPELLANT: It doesn't make any sense. It was duplicated for, I don't know, fifth or sixth time. It is similar in paragraph 65 as well. HER HONOUR: What is happening is that 64 and 65 is the crux of the decision. So just to remind you, the sole task of NCAT, when it was considering this application, was to look at your character and your credit and they've set out the principles at paragraph 7. And so the relevant principles are that the onus was on you to affirmatively prove that you were reformed, clear proof was needed that you were reformed, do you see the principle at paragraph 7? APPELLANT: Yes. HER HONOUR: And that you were in a more disadvantageous position than an original applicant because you had to displace the earlier decision. So in circumstances where your role was to persuade NCAT that you were reformed and that you were contrite and that you understood, if you'd proved all that, that's when they would have reinstated you. Instead, they weren't satisfied of that test and they've set that out in 64 and 65. So it's not a repeat, they're now addressing that earlier evidence to say why they're not satisfied of the test. APPELLANT: Your Honour, how I can be not truthful, not releasing in my application some things I didn't do? How I can release in application 2009, in my application, decision made 2010? How I can say yes, I have criminal? If I had, by the way, your Honour, if I had criminal conviction, I couldn't receive entry visa to Tiovan [sic] in England."
When I sought to clarify this submission Dr Zepinic returned to the question of the Burwood convictions and stated, "I didn't have conviction at all".
In his reply submissions Dr Zepinic focused on the obligations of the Board in 2010 to notify him of the hearing during which the following exchange took place: "HER HONOUR: Mr Zepinic, the chronology that NCAT found, was that after these proceedings before the board were commenced, you attended at some initial mention, or you were involved in the initial correspondence, but while those proceedings were on foot you left the country. APPELLANT: No, I left country ‑ on page 424, it was 24 June, 2009; 27 and 28 April and 2 June, 2010. HER HONOUR: Have you got the decision of NCAT there? Go to paragraph 15. APPELLANT: Yes. HER HONOUR: Sub‑section 4, what does that say? APPELLANT. I objected about this. HER HONOUR: No, the records show that you attended the first directions hearing and then you left the country. APPELLANT: Where is the record? HER HONOUR: That was found by the tribunal based on the documents it had before them, because when you have directions hearings, you make a note of who is present. It says you wrote a letter saying that you wanted to appeal against something and then you left the country. APPELLANT. Yes, but not about board. So board, your Honour, section 48 (1), in must within 30 days - "

Respondent's submissions

Succinct written submissions were filed on behalf of the HCCC and I only required brief oral submissions to be made. It was submitted that only grounds 1 and 6 address the decision of the Tribunal whereas the remaining four grounds concern the 2010 decision.
As for ground 1 it was noted that Dr Zepinic brought his application pursuant to the review provisions of the National Law and that application was determined on the basis of the material available to NCAT as at the time of that review.
As for ground 6 it was noted that no specific submissions were addressed to this ground.
Overall it was noted that no legal arguments were raised in much of Dr Zepinic's written submissions. They contained Dr Zepinic's assertion that he was not convicted of any criminal charges because he had been dealt with under s 10(1)(b) of the Sentencing Act. The only character material Dr Zepinic advanced before NCAT were the character references prepared for the Burwood Local Court proceedings in 2008.
It was submitted that the appellant misunderstands the process before NCAT and that Dr Zepinic's "fixation" (at [64]) with the date discrepancy in his continued denial of the commission of the criminal conduct provided a clear foundation for NCAT's finding that he lacked insight.
The HCCC submitted that the three additional matters relied upon by NCAT were relevant to its determination and demonstrated "a continuation of the conduct, in particular in repeatedly making false and misleading statements to regular bodies": [67].
As for the fact that the bulk of Dr Zepinic's appeal involved his expression of dissatisfaction with the 2010 decision, it was submitted that the statutory framework within which the appellant brought this review application expressly forbids review of the relevant anterior decision and this court is similarly fettered by the statutory scheme. It was noted that if Dr Zepinic wishes to challenge the 2010 decision he ought to have brought review proceedings against it and is now over eight years out of time.
It was submitted that Dr Zepinic cannot identify any prejudice caused by the incorrect date on the first certificates of conviction.
To the extent that Mr Zepinic asserted that there was no proper basis for finding that he showed any remorse, it was submitted that the transcript evidence shows that he made no attempt to acknowledge any of those findings or to demonstrate any insight or remorse for those findings.

Consideration

As stated above, I am satisfied that Dr Zepinic has failed to establish any error of law or fact in the decision of NCAT not to reinstate him as a psychologist.
The focus of NCAT's enquiry was a narrow one: had Dr Zepinic demonstrated that for the future "he will act in accordance with the high standards and responsibilities of the profession": [45].
An application for reinstatement is not a rehearing of the decision of the Tribunal in 2010. It is not the role of NCAT when hearing such an application to review the original decision, or any findings made in connection with the making of that decision: s 163C(2) National Law. NCAT's task was confined to determining the appropriateness of an order reinstating Dr Zepinic as at the date of the hearing of such an application: s 163C(1).
The relevant principles guiding an application for reinstatement at [7]-[8] were correctly stated in the decision of NCAT as follows: "[7] The approach to be adopted in considering an application for a reinstatement order under the National Law has been set out in several decisions of this Tribunal and the former Tribunals. In Haber v Health Care Complaints Commission [2018] NSWCATOD 16 the Tribunal stated the principles in the following terms: 12. We accept as correct the Commission's submissions as to the relevant principles to be applied. These include: (1) The Tribunal must have regard to the objectives and guiding principles of the National Law (see s 3). These include the objective of the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3(2)(a)); (2) The paramount consideration is the protection of the health and safety of the public: see s 3A; (3) The onus lies on the applicant for reinstatement to demonstrate that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24]; (4) The purpose of the jurisdiction is to protect the public, and is not for the punishment of the former practitioner: s 3A of the National Law; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]: Reimers v Medical Council of NSW [2015] NSWCATOD 38 at [13]. (5) There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioner. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance. Dawson v Law Society of NSW [1989] NSWCA 58; Coe v Health Care Complaints Commission [2013] NSWNMT 12 at [23]. (6) "Clear proof" is required to establish that there has been a reformation of character: Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 at 461. In this respect, the applicant is "in a more disadvantageous position than an original applicant. He or she must in effect displace the decision for deregistration that has been made": Amieson at [24]. (7) It is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future". The decision in any particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant: In Re Jason Martin [2010] NSWMT 13; Shah v Health Care Complaints Commission [2014] NSWCATOD 94 at [34]; [8] In Ng v Health Care Complaints Commission [2018] NSWCATOD 105 the Tribunal stated: 30. In Re Mansoor Haider Zaidi [2006] NSWMT 6 (at [42]) the Medical Tribunal made the obvious point that: [A]n applicant for reinstatement … is in a more disadvantageous position than an original applicant. He must displace the decision for deregistration which has been made. As a consequence, presumptions of fitness which might otherwise arise 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. 31. In that case, the Medical Tribunal also stated at [42]: [T]he ultimate issue … is a question of [the applicant's] 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 was not suggested by Dr Zepinic that any error is disclosed in the application of those principles to the facts before NCAT.
It was apparent throughout the hearing of this appeal that Dr Zepinic either could not or would not apprehend the statutory task that NCAT was undertaking when considering his reinstatement application. That is, either he genuinely could not understand the principles guiding the reinstatement application or he did understand them and persisted in making submissions not relevant to the real issue before this court.
The question for NCAT was Dr Zepinic's character and suitability to be reinstated given the significant findings made against him in 2010 and subsequently. Dr Zepinic approached his reinstatement application by simply denying that he had ever committed any misconduct and denying the validity of the findings of the Tribunal in 2010. He approached this appeal in the same way.
Turning to the six grounds of appeal, they can be dealt with as follows.
Ground one asserted that NCAT erred "in delivering its orders and appellant relies on res judicata principle". Dr Zepinic did not specifically address this ground. Given that the proceedings before NCAT included material of other convictions, both in the Local Court and also in the United Kingdom, it may relate to a complaint about that. The fact remains that it was Dr Zepinic who initiated the proceedings before NCAT by making a reinstatement application. NCAT correctly applied the relevant principles and dismissed that application. This ground was baseless.
Grounds 2, 4 and 5 all claim that the certificates of conviction were false. I have already extracted that part of the decision of NCAT where the evidence going to this issue is set out (see above at [51]). A reading of the transcript of the proceedings makes it clear both that Dr Zepinic was convicted and also that this was on 25 July 2008, not in August 2008.
Ground 3 contends that the decision of the Tribunal in 2010 is invalid because he was overseas at the time. As stated above, NCAT did not have jurisdiction to challenge the 2010 decision. Section 163C clearly states this (see above at [42]).
As for Dr Zepinic's persistent claim that the 2010 decision is invalid or void, it is to be noted that NCAT was satisfied that Dr Zepinic had been on notice of it since at least October 2010. At no stage since 2010 has Dr Zepinic ever sought to challenge that decision directly.
Ground 6 asserted that the decision of NCAT had "no legal grounds but to make further financial and damages on the appellant's professional reputation and dignity, and distress upon him and his family". For the reasons I have set out above, I am not satisfied that there were "no legal grounds" for the NCAT to make its decision and the rest of the allegation contained in this ground is baseless.
In the Notice of Appeal Dr Zepinic challenged all of the decision which would appear to include the order to pay costs. Despite this, no submissions were made in relation to any error disclosed in the decision to order Dr Zepinic to pay the HCCC's costs. The statutory authority for NCAT to make costs orders in health profession cases is found in clause 13 of Schedule 5D of the National Law which provides the relevant Tribunal, in this case NCAT, with the discretion to order any party to pay costs to any other person. In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 the court observed at [42] that "as a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule". No basis for departing from this rule was identified by Dr Zepinic.
I would dismiss this appeal.

Costs

As for the question of the appropriate costs order for this appeal, s 98(1)(a) of the Civil Procedure Act 2005 (NSW) provides that costs are in the discretion of the court and s 98(1)(b) provides that the court has "full power to determine by whom, to whom and to what extent costs are to be paid". The usual rule is that costs follow the event, unless it appears to the court that some other order should be made: r 42.1 of the UCPR. No basis to depart from the usual rule arises in this case and I do not propose to do so.

ORDERS

I make the following orders: 1. The appeal is dismissed. 2. The appellant is to pay the respondent'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: 03 February 2020

Medical Practice Act 1992(NSW)

Psychologists Act 2001(NSW)

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