Zepinic v Health Care Complaints Commission

The relevant principles

1. These proceedings are not a re-hearing of the decision of the Psychologists Tribunal in 2010 to cancel Dr Zepinic's registration as a psychologist, or the prohibition order, or the order that he not seek re-registration for a period of five years. In conducting this review the Tribunal cannot review the original decision, or any findings made in connection with the making of that decision: s 163C(2) National Law. The task of the Tribunal is to determine the appropriateness, at the time of the review, of the order concerned: s 163C(1).
2. 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];
3. 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.
4. We adopt those statements of the principles to be applied in determining Dr Zepinic's application. As noted in Ng at [29], 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.

Background

1. Dr Zepinic was born in 1953 in the former Yugoslavia, and obtained academic qualifications in that country. He was first registered as a psychologist in NSW in 1994, and he was registered until 30 June 2010.
2. On 23 September 2008 the Psychologists Registration Board (the Board) gave notice of an inquiry under Part 4 Div 4 of the 2001 Act into complaints that the conduct of Dr Zepinic constituted unsatisfactory professional conduct within the meaning of s 25 of the 2001 Act and professional misconduct within the meaning of s 24 of the 2001 Act, and demonstrated that he was not of good character.
3. The inquiry was held on 7 October 2008. The record of the Board Inquiry (ex A1, tab 11) records that Dr Zepinic attended, and made a statement which went to aspects of his written submission, followed by questioning by the 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, that in being found guilty of offences under the Medical Practice Act 1992 he had engaged in improper and unethical conduct in the course of his practice of conducting assessments and preparing psychological reports. The Board was satisfied that a finding of professional misconduct could not comfortably be made, and was not satisfied that the particulars of the complaint based on s 25(a), (b) and s25(2) were established. The Board reprimanded Dr Zepinic under s 51(1)(a) of the 2001 Act for his unsatisfactory professional conduct.
4. On 22 November 2008 Dr Zepinic wrote to the Registrar of the Psychologists Registration Board (ex A1, tab 13). The opening paragraph of the five page letter, headed "Re: Board inquire", was: I acknowledge receipt of the Reasons for Decisions in relation to the Board inquire 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 defense.
5. The remainder of the letter responds to the material addressed in the inquiry and the inquiry process.

The Psychologists Tribunal decision 12 August 2010

1. The reasons for decision of 12 August 2010 record that the hearing of the Psychologists Tribunal was conducted on 24 June 2009, 27 and 28 April 2010 and 2 July 2010. The reasons record that: 1. the Tribunal was conducting an Inquiry to hear the Appeal lodged by Dr Zepinic by letter dated 22 November 2008 with respect to the decision of a Board Inquiry of 27 October 2008; 2. the Complaint before the Board Inquiry was dated 23 September 2008; 3. the Tribunal was also inquiring into two further complaints dated 9 October 2009 made by the Board; 4. Dr Zepinic attended the first Directions Hearing when the initial timetable for exchange of documents was fixed and preliminary matters dealt with; 5. Dr Zepinic failed to attend the further Directions Hearings on 25 September 2009 and 19 March 2010 and failed to provide any documentation other than the material annexed to the original Appeal; and 6. Dr Zepinic did not appear before the Tribunal hearings on 24 June 2009, 27, 28 April and 2 July 2010.
2. The three complaints before the Psychologists Tribunal were: 1. the complaint found proven by the Psychology Registration Board arising from reports of a medico-legal character written by Dr Zepinic, and his conviction of offences under the Medical Practice Act; 2. Additional Complaint One, that Dr Zepinic was not of good character, particularised to relate to representations alleged to have been made to 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 declarations made to the Psychologists Registration Board of New South Wales in an annual renewal of registration; and 3. Additional Complaint Two, that Dr Zepinic was guilty of professional misconduct, in making a false declaration to the Psychologists Registration Board of New South Wales in that his answers to questions one and three of the declaration in the annual renewal of registration dated 23 March 2009 were false.
3. The Psychologists Tribunal discussed the evidence and made findings as to each of the particulars in the original complaint, and the additional complaints, finding that the particulars for complaint 1 and additional complaint 2, and that 13 of the 19 particulars for additional complaint 1, were established.
4. The specific findings relevant to the present application are, in summary, as follows: 1. Based on evidence provided by the Dean of the Faculty of Philosophy, University of Sarajevo and the Dean of the School of Medicine, University of Belgrade, Dr Zepinic's undergraduate and postgraduate qualifications are in psychology: at [89]; 2. Dr Zepinic had falsely represented to the RANZCP in 1996 and 1998 that he had medical qualifications: at [130]; 3. Dr Zepinic had falsely represented to the Australian Medical Council in 1997 and 1998 that he had medical qualifications and postgraduate qualifications in psychiatry: at [131]; 4. On 6 April 1999 Dr Zepinic 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: at [136]; 5. Dr Zepinic had made false statutory declarations as to his qualifications on 23 June 1998 and 17 September 1999: at [139], [145]; 6. Dr Zepinic had falsely represented to the University of Sydney in or about 2005 that he had an undergraduate degree in medicine: at [170]; 7. Dr Zepinic had given false evidence to Burwood Local Court on 14 April 2008 in stating that he had the degree of Doctor of Medicine from the University of Sarajevo: at [173]; 8. Dr Zepinic was convicted on 19 August 2008 of six counts of take/use false description concerning entitlement to register under s 105(1) of the Medical Practice Act : at [177]; 9. Those offences related to Dr Zepinic providing reports to legal representatives for several clients for the purpose of legal proceedings involving the clients, using the descriptor "MBBS" after his name, conduct which could only be considered to be in the course of practice or purported practice of psychology: at [181], [182]; 10. Dr Zepinic answered no, and should have answered yes, to questions 1 ("Have you been convicted of any offence, in or outside NSW, except and excluded offence?") and 3 ("Has a criminal finding been made against you for an offence committed in the course of the practice or purported practice of psychology?") on his application for renewal of registration to July 2010 completed on 23 March 2009: at [183].
5. The Tribunal concluded: 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.
6. The Psychologists Tribunal gave its reasons for the protective orders made in the following terms: 213. The Tribunal has made a finding of professional misconduct and that the Appellant is not of good character. 214. The Tribunal notes that the Appellant signed off on the reports he wrote (subject of the Burwood Local Court proceedings) as follows (see for example volume R1 - exhibit 2, page18): Dr Vito Zepinic MBBS BA(Hons) MSc PhD Consultant in Psychological Medicine WorkCover and MAA trained in the assessment of Permanent Impairments & AMA guides, 4th and 5th edition. 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.
7. We note that in his evidence and submissions Dr Zepinic referred to the decision of the Psychologists Tribunal on 12 August 2010 as "Suppression Orders Apply", a term that appears on the coversheet of the decision. However, the correct citation is as recorded above, Zepinic v Psychologists Registration Board of New South Wales [2010] NSWPST 6. In these reasons the decision is referred to as "the 2010 Decision".
8. Pursuant to the transitional and savings provisions in Sch 5A to the National Law, the order made by the Psychologists Tribunal is a "relevant order" for the purposes of Part 8 Div 8 of the National Law, as discussed in Smithson v Medical Council of New South Wales [2016] NSWCATOD 82 applying the reasoning of the Court of Appeal in Bahramy v Medical Council of New South Wales [2015] NSWCA 384.

Evidence

1. Dr Zepinic relied on two affidavits, affirmed 13 February 2018 (ex A1) and 16 March 2018 (ex A2), and a folder of documents provided to the Tribunal and the HCCC on 14 June 2018 (ex A4). A further email and attached journal article were tendered at the hearing and admitted without objection, subject to relevance and weight (ex A6). Dr Zepinic provided written submissions dated 29 March 2018 and 14 June 2018.
2. Dr Zepinic's tender of a letter dated 6 June 2018 sent to the HCCC was objected to. For the reasons given orally the objection was upheld and that document was not admitted.
3. The HCCC relied on bundles of documents dated 17 May 2018 (filed 22 May 2018) - tabs 1-16 (ex R1); dated 31 May 2018 (filed 1 June 2018) - tabs 17-33 (ex R2); dated 20 June 2018 (filed 21 June 2018) - tabs 33B-48 (ex R3). No objection was made to the admission of those documents. The HCCC provided written submissions dated 22 June 2018.
4. We note as recorded in the earlier reasons that Dr Zepinic claimed at the hearing on 5 June 2018 to have been disadvantaged by the provision of documents in tabs 17-33 after the date specified in the directions made on 23 March 2018. As noted in those reasons Dr Zepinic was provided with an opportunity to read those documents on 5 June 2018. The directions made at the adjournment of that hearing included an opportunity for Dr Zepinic to provide any documents in reply to the HCCC's documents. He has done so in his additional documents and submissions filed on 14 June 2018.
5. Dr Zepinic gave oral evidence and was cross examined on both hearing days. An oral application made by Dr Zepinic at the end of the first day of hearing on 17 July 2018 to have Ms Emma Bayley, the solicitor acting for the HCCC, give oral evidence, was refused, for reasons given at the time.

Dr Zepinic's application for a reinstatement order

1. In his written submissions dated 12 June 2018 Dr Zepinic stated that he is seeking the following orders: (a) Invalidate Suppression Orders Apply dated 12 August 2010 by the Psychologists Tribunal of New South Wales; (b) A reinstatement order is granted; (c) Australian Health Practitioner Regulation Agency to pay Dr Vito Zepinic's legal costs of £166,539 on an indemnity basis; (d) Australian Health Practitioner Regulation Agency to pay £840,000 (6 x 140,000) for Dr Vito Zepinic's financial loss caused by fraudulent documents submitted to the Health Professional Council (UK) and QMUL; (e) Order to grant registration to Dr Vito Zepinic, PhD, as a Specialist Psychiatrist in accordance to s57 of Health Practitioner Regulation National Law (NSW); (f) Health Care Complaints Commission pay Dr Zepinic's costs of this proceeding.
2. At the hearing Dr Zepinic confirmed that he is seeking all those orders other than (d), on which he could negotiate.
3. In his affidavit affirmed on 13 February 2018, provided with his application to the Tribunal, Dr Zepinic states: 1. He left Australia on 10 March 2009 and has been resident in the United Kingdom (UK) since, obtaining a position as a senior lecturer in Psychiatry at Queen Mary University of London, and then establishing a private practice (PsychClinic P/L, London); 2. Charges brought against him under the Workplace Injury Management and Workers Compensation Act 1998 by WorkCover were dismissed on 18 July 2006; 3. He had never made an appeal to the Psychologists Tribunal of NSW in regard to the alleged criminal convictions on 19 August 2008, and was not informed about the application before the Board nor attended any hearings.
4. In the affidavit affirmed on 16 March 2018 Dr Zepinic states that during his residence in the UK (2009-2017) he had no legal representative, business or residential address nor any nominated person for service of documents in Australia. He provides a list of journal and monograph publications from 2009 to 2018, details of projects and memberships and awards, and states that in 2012-14 he finished an LL.B at GSM London.
5. In his written submissions dated 29 March 2018 Dr Zepinic records his previous registration as a psychologist in NSW from March 1994 to 30 June 2010; his membership of the Australian Psychological Society and the APS College of Clinical Psychologists since 1996; his employment as psychologist or clinical psychologist in public and private sectors from June 1994 to February 2009; and that on 10 March 2009 he left Australia and was resident in the UK until 8 October 2016. Dr Zepinic summarises his academic qualifications in the following terms: 9. Alongside with psychology study, I also finished Medicine at the Faculty of Medicine in Sarajevo 1976 (MD), five-years full-time postgraduate studies in psychiatry (MSc) at the Faculty of Medicine, University of Belgrade in 1983, and conferred Doctorate in Medicine at the Faculty of Medicine in Belgrade in 1985 (PhD).
6. Dr Zepinic submits that his qualifications have been recognised by the Australian Department of Employment, Education and Training - National Office of Overseas Skills Recognition. Dr Zepinic records the history of his applications made between 1997 to 1999 to various regulatory and other bodies (including the Australian Medical Council and the RANZCP) for assessment of his qualifications; a Certificate of Conditional Registration by the Medical Board of Western Australia, and Certificate of Registration by the Medical Board of Queensland; his employment as Staff Specialist-Psychiatrist in Queensland; his work as clinical psychologist at Psychology Clinic P/L in NSW; proceedings by WorkCover relating to his refusal to provide patient files; the criminal proceedings in Burwood Local Court in 2008; communications in March 2010 by an officer of the NSW Medical Board to Professor Sir Nicholas Wright, Warden of School of Medicine and Dentistry, London, concerning the convictions; and proceedings against him in 2012 by the National Health Service in the UK.
7. Dr Zepinic submits that he left Australia on 10 March 2009 and the hearing dates of the Psychologists Tribunal hearing were without proper service on him. The Psychologists Tribunal had no jurisdiction when he lived outside Australia, and the rules for proper service of documents outside the jurisdiction were not followed. Accordingly there was no outstanding concern for a reinstatement order and no grounds on which the 2010 orders could have been made.
8. In his further written submissions dated 12 June 2018 Dr Zepinic submits: 1. In relation to the 2010 Decision: 1. because the hearings were ex parte, and without serving any documents on him in accordance with the Constitution or multilateral treaty requirements, or with notice to him of the hearing dates, the entire process before the Psychologists Tribunal was invalid, and any orders made are void and must be set aside (relying on Laurie v Carol [1958] HCA 4, Taylor v Taylor [1979] HCA 38, Cameron Bankrupt v Cole Petitioning Creditor [1944] HCA 68, South Australia v Commonwealth [1942] HCA 14); and 1. in relation to the Burwood Local Court certificates of conviction: 1. based on a statement by Burwood Local Court that it could not locate any file from 19 August 2008, the six certificates of the alleged convictions on 19 August 2008 are fraudulent; 2. the six certificates were sent to his employer in the UK with intent to discredit him and cause him significant damage (professional, personal and financial) as well as on his family, to damage his dignity and reputation; 3. as a consequence his application to the Health Professional Council (UK) in March 2010 was rejected due to notification that his name had been removed from the register; 4. in Wood Green Crown Court proceedings the prosecution stated that he had been convicted on 19 August 2008 of six offences; the Crown Court imposed a community order for 12 months and payment of prosecution costs, a decision upheld on appeal; and 5. due to the conviction by the Crown Court he was unable to be registered in the UK and maintain his clinical practice, causing significant financial loss.
9. Dr Zepinic's oral evidence was as follows: 1. In relation to the Psychologists Registration Board Inquiry: 1. He could not recall attending the hearing on 7 October 2008; 2. He did not make an appeal to the Psychologists Tribunal, and he did not accept that the letter of 22 November 2008 was an appeal, stating that it was a response to the letter dated 2 October 2008 referred to in the second paragraph. There has been no response to his request for information as to who made the appeal on his behalf. If he had appealed he would have submitted evidence on the appeal; 3. He did not accept that the "Reasons for Decision" document referred to in his letter of 22 November 2008 is a reference to the reasons given by the Psychologists Registration Board on 27 October 2008 for the outcome of its Inquiry, and maintained that the "Board inquire" referred to at p4 of that letter is a different inquiry. 1. In relation to the 2010 Decision: 1. he did not appear at the hearings before the Psychologists Tribunal, and he became aware of the decision late as he was overseas at the time; 2. He did not appeal or seek to have those orders set aside by a court because no court could set aside a decision that is invalid or illegal. 1. In relation to the convictions for offences under the Medical Practice Act: 1. he was not criminally convicted of any offences, and he was discharged on 25 July 2008 with a good behaviour bond under s10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act); 2. He accepted that he had been found guilty, but not that he had been convicted; 3. The six certificates of conviction issued by Burwood Local Court dated 29 April 2013 (ex R2, tab 20) recording the conviction date as 25 July 2008 and the penalty as a section 9 bond - 2 years, were falsified, and the HCCC had provided falsified certificates to the Psychologists Tribunal stating that he had been convicted on 19 August 2008; 4. He would have appealed if the certificates had stated that he was convicted on 25 July 2008.
10. Dr Zepinic agreed that he was convicted in the UK based on his failure to disclose the convictions recorded on 19 August 2008, and stated that the prosecution opening in 2013 was the first time he realised that someone had sent certificates stating that he had been convicted.
11. Dr Zepinic was taken to the particulars of the two additional complaints found established by the Psychologists Tribunal. He responded that documents relating to his degree in medicine were admitted in court proceedings and accepted in his work in Western Australia and Queensland, and any challenge to that was a re-opening of the court proceedings which he opposed. If he did misrepresent his qualifications to the RANZCP or Medical Council it was up to those bodies to take action and not the HCCC. He was not able to respond to particular 19 of additional complaint 1 or to additional complaint 2 because he left Australia on 10 March 2009, and was not sure if he submitted the application dated 23 March 2009. He did not accept the findings that the other particulars were established.
12. In oral submissions, Dr Zepinic submits that a reinstatement order should be granted for the following reasons: 1. He has worked as a psychologist in Australia for a long time, including his work with indigenous people, and he left his employment as a trainee psychiatrist in Queensland in 2002 for family reasons following an accident in which his colleagues were killed, and not for reasons related to any action by the Queensland Medical Board; 2. He refutes the finding that he is not of good character, and submits that the HCCC is relying only on previous convictions and has nothing new to establish that he is of bad character; 3. He did as much as he could do in London for his further professional development, and published two books and articles; and the documents submitted show continuing professional development; 4. The Tribunal should consider all his qualifications including his qualifications in psychiatry; 5. The falsified documents relating to the Burwood Local Court proceedings have affected him financially, and cannot be relied upon.

The HCCC submissions

1. The HCCC submits that in order to invoke the jurisdiction of the Tribunal under s 163A of the National Law the applicant must rely on the existence and efficacy of the 2010 Decision, and that the Tribunal has no jurisdiction to deal with any challenges to the validity or efficacy of the 2010 Decision. The Tribunal has no jurisdiction to grant the orders sought to invalidate the 2010 Decision, require AHPRA to pay legal costs incurred in the UK, require AHPRA to pay Dr Zepinic compensation for alleged financial loss, or an order granting him registration as a specialist psychiatrist.
2. The HCCC submits that Dr Zepinic has adduced no evidence that directly addresses the complaints found proven in the 2010 proceedings. The sustained particulars to Additional Complaint 1 canvassed many years during which the applicant was found to have engaged in conduct that is inimical to practice as a psychologist, including the false representations made between 1996 to 2000 to the RANZCP, the Australian Medical Council, the NSW Medical Board, the Medical Board of Queensland, and false representations in a curriculum vitae that he held undergraduate and postgraduate qualifications in medicine and/or was a psychiatrist; falsifying a letter and signature from a colleague in 1998; and in the period 2003 to 2009 making further false representations regarding medical qualifications.
3. The HCCC relies on the conviction of Dr Zepinic in the UK in 2013 on three counts involving false representations, and the findings made by Pembroke J in proceedings declaring him a vexatious litigant under the Vexatious Proceedings Act 2008 in relation to a building dispute (Zepinic v Chateau Constructions (Aust) Ltd; Chateau Constructions (Aust) Ltd v Zepinic [2017] NSWSC 582). The HCCC submits that documents filed in these proceedings also disclose continued conduct that is misleading in character, including: 1. Stating in his affidavit of 13 February 2018 that he has been a resident of the UK since 10 March 2009, whereas his travel records and court attendances in the Chateau Constructions cases demonstrate that he has frequently returned to Australia since March 2009; 2. Alleging in his submissions of March 2018 a "forgery" by the NSW Medical Board in relation to the certificates of conviction issued by Burwood Local Court which initially had the incorrect date of conviction as 19 August 2008, whereas the transcript of the Local Court proceedings and the bond signed by the applicant indicate that he was well aware that he was convicted on 25 July 2008; 3. referring in his March submissions to s10(1)(b) of the CSP Act, whereas the Local Court had rejected submissions on behalf of Dr Zepinic that a s10 bond apply and instead imposed a s9 bond; 4. providing in his material filed on 14 June 2018 the purported character reference of Dr Selwyn Smith, which is a forgery.
4. The HCCC notes that some of the conduct for which Dr Zepinic was prosecuted in the UK occurred in 2009 during the period in which he was to be of good behaviour.
5. The HCCC submits that not only has Dr Zepinic failed to adduce any material demonstrating acceptance of remorse for the conduct identified in the 2010 Decision, and he has taken no steps to change his aberrant behaviour, behaviour which is entirely inimical to the position of trust held by a registered psychologist. In light of his failure to address the conduct that led to the cancellation of his registration in 2010, and having regard to the evidence of further wrongdoing since that time, the Tribunal is entitled to find: 1. Dr Zepinic's continued misconduct does not reflect a one-off error of judgment but rather an underlying defect of character; 2. The seriousness of the misconduct and in particular that it involves significant breaches of trust, demonstrate that Dr Zepinic is unfit to practice as a psychologist; 3. Dr Zepinic's conduct is not reflective of an episode atypical of normal qualities but rather is misconduct demonstrative of personal qualities and character that are entirely incompatible with practice as a psychologist; 4. Conduct post the 2010 Decision demonstrates that public and professional confidence cannot be placed in him; and 5. Dr Zepinic has shown no insight into past mistakes and no remorse.

Consideration

1. The 2010 Decision was based on findings that Dr Zepinic was guilty of professional misconduct and was not of good character. The task for the Tribunal is to consider whether Dr Zepinic has demonstrated that for the future he will act in accordance with the high standards and responsibilities of the profession. He bears the onus of demonstrating change such as to establish that he has now overcome the shortcomings referred to in the 2010 Decision.
2. In Ex parte Tziniolis; Re The Medical Practitioners Act (1966) 67 SR(NSW)448 at 461 Walsh JA held: Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man.
3. The fact that Dr Zepinic does not admit that he has been guilty of misconduct, and continues to claim that he is innocent of the conduct found by the Psychologists Tribunal, does not of itself preclude reinstatement: Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82. However, Mason P went on to say in Zaidi at 100: …This said, there is no error in concluding in a particular context that continuing vigorous challenge to clearly established guilt may be indicative of continuing unfitness …
4. That is the situation in this application.
5. Dr Zepinic has not demonstrated any insight into or contrition for the conduct which was the subject of the orders made by the Psychologists Tribunal.
6. Dr Zepinic continues to deny that he was convicted of offences under the Medical Practice Act 1992 in Burwood Local Court in 2008. The original certificates of conviction state that the convictions were recorded on 19 August 2008. The amended certificates now in evidence (ex R2 tab 20) confirm the correct date of conviction as 25 July 2008, as it is recorded in the transcript of the proceedings in evidence (ex R1 tab 8). The transcript establishes 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 1992 by the use of the initials MBBS on six psychological reports he prepared for an insurance company, when he was not a registered medical practitioner. At the hearing on sentence on 25 July 2008 Dr Zepinic's representative submitted that the court should consider dismissing the charges under s 10(1)(a) of the CSP Act (ex R1, tab 8, p202); however, the Magistrate convicted Dr Zepinic and released him on his entering a bond to be of good behaviour for two years (ex R1, tab 8, p210). The Magistrate refused the prosecution's application for costs (ex R1, tab 8, p 210), and the application for costs made on behalf of Dr Zepinic (p 212).
7. Dr Zepinic maintained his position that he had not been convicted when taken to: 1. his application for registration as a psychologist received by AHPRA on 6 February 2017 (ex R3 tab 46) in which he answered "no" to question 22 ("Do you have any criminal history in Australia"); 2. paragraph 5 in his written statement provided with that application (ex R3 p136); 3. his statement provided as additional documentation to AHPRA (ex R3, tab 47); 4. the transcript of the proceedings at Burwood Local Court on 25 July 2008 (ex R1, pp 202, 209, 210); and 5. the copy of the bond signed by him on 25 July 2008 (ex R3, p 92).
8. The copy of the bond signed by Dr Zepinic on 25 July 2008 confirms that the order was made under s 9(1) of the CSP Act, with the notation: The Local Court has convicted the offender of the above offence but has not imposed a sentence, instead the offender is released upon entering this bond.
9. It is not clear in the evidence why the original certificates of conviction record the date of conviction as 19 August 2008, or why, given that the Psychologists Tribunal had the Local Court transcript in evidence, that error was maintained in the 2010 Decision. In any event, the Tribunal is satisfied that Dr Zepinic was convicted of the six offences under s105(1) of the Medical Practice Act 1992 on 25 July 2008. The 2008 convictions formed the basis of the Board inquiry and the appeal to the Psychologists Tribunal.
10. Further, Dr Zepinic's position is that the proceedings and findings of the Psychologists Tribunal are invalid and void, contending that he did not initiate the appeal to that Tribunal, and that it had proceeded in his absence. The Tribunal has no jurisdiction to make any findings as to the validity of the 2010 Decision. 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.
11. Much 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, for example the copy of the bond imposed on 25 July 2008, were falsified. Dr Zepinic's evidence as to when he became aware of the 2010 Decision is inconsistent and unsatisfactory. The Movement Details records (ex R1, tab 33) confirm that Dr Zepinic was not in Australia on the dates recorded for the Psychologists Tribunal hearing. However, between 10 March 2009 (when he departed) to 8 October 2016 (when he states he resumed residence in Australia), he travelled to Australia 16 times. In oral evidence before the Tribunal he stated that he became aware of the decision when the prosecution opened its case in 2013. The judgment of the Court of Appeal Criminal Division of 6 November 2014 records Dr Zepinic's evidence at trial that he had only found out about the order relating to his registration in 2011 at which time he stopped making job applications in the UK. However, neither version 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 following a decision by the Psychologists Tribunal. His response to that document in oral evidence was to deny that the orders of the Psychologists Tribunal applied to him, and to state that he could not have been removed from the register as his name was not on the register at the time. The Tribunal finds 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. That was well before the applications which were the subject of his prosecution and convictions in the UK, discussed below.
12. 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.
13. Dr Zepinic submits that the HCCC has concentrated on the previous convictions and there is nothing new which it has put to say he is of bad character. The Tribunal does not agree, and finds that Dr Zepinic has since 2010 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. Central to that finding are three matters: his conviction in 2013 in the UK for offences relating to his failure to make proper disclosures of his criminal conviction in NSW and the orders made cancelling his registration as a psychologist; his failure to disclose his 2008 convictions in his most recent application to AHPRA; and his continued use of false documents.
14. First, based on the judgment of the Court of Appeal Criminal Division dated 6 November 2014 (ex R3, tab 45), the Tribunal finds that 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, and sentenced to a community order for 12 months. The charges were based on his 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 online 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.
15. The Court of Appeal Criminal Division dismissed Dr Zepinic's application for leave to appeal against conviction after refusal by a single judge. The Court of Appeal relied on the reasons of the single judge, who had considered in detail the evidentiary rulings and summing up at trial, noting that the summing up had fairly directed the jury on the issues they had to determine. Those issues included the reliability of the 2008 certificates of conviction and court transcripts, whether the bond had been imposed under s 9 following conviction or under s 10 of the CSP Act, and whether Dr Zepinic had been removed from the register or had a condition put on his registration. The Court of Appeal Criminal Division agreed that the trial judge had properly directed the jury on the elements of the offences of which they had to be sure before they could convict, "including that of [Dr Zepinic's] knowledge of the untruthfulness or misleading nature of the representations made, and that of dishonesty."
16. We note that the issues identified in the Court of Appeal Criminal Division as being raised by Dr Zepinic at his trial were all matters which he continues to contest. In his submissions of 29 March 2018 Dr Zepinic referred at [52] to a request for review to the Criminal Cases Review Commission in 2015; however other than a copy of a letter sent by him to that body on 2 March 2015 (ex A4 tab 5, p 75) there are no further details provided, and we rely on the findings of the Court of Appeal Criminal Division.
17. Secondly, in his application for registration made to AHPRA on 6 February 2017, Dr Zepinic answered "No" in response to question 22 "Do you have any criminal history in Australia?" He had an obligation to disclose that he had been convicted in 2008 of the six offences under the Medical Practice Act. While the HCCC was not able to provide a copy of the Information and definitions sheet to which applications were referred in the form, as it was as at the date of Dr Zepinic's application, and while Dr Zepinic denied that he had received a copy of that sheet, the form is clear in its warning that applicants need to have a clear understanding of the definition of "criminal history" (ex R3, tab 46, p 112). That term is defined in s5 of the National Law to include not only "every conviction of the person for an offence", but also "every …finding of guilt by a court" and "every charge made against the person for an offence". Even if Dr Zepinic believed that he had not been convicted, the charges and findings had to be disclosed in his application. We note in Dr Zepinic's favour that he did disclose his UK conviction, however that does not excuse his failure to disclose the NSW convictions.
18. Thirdly, Dr Zepinic relied in his application to the Tribunal on the reference purporting to have been given by Dr Selwyn Smith dated 22 February 1999. The Psychologists Tribunal had in evidence an affidavit sworn by Dr Smith, that he did not provide such a reference and the signature on it was not his (2010 Decision, paras [116]-[119], ex R1, tab 16, p270). When asked why he had provided this document to the Tribunal, Dr Zepinic did not address the issue, and his response was that he required proof that it was his signature on the reference, and that Dr Smith's statement was false.
19. In accordance with the established authorities, the Tribunal must consider the quality of the character of Dr Zepinic. It has been held that the term "good character" is not a "summation of acts alone, but relates rather to the quality of a person": it is to be judged by acts and motives, behaviour and the mental and emotional situations accompanying that behaviour: see Ex parte Tziniolis at 475-476 per Holmes JA. Further, it has been held that "conduct may show a defect of character incompatible with a membership of a self-respecting profession": see Ziems v Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279.
20. The Tribunal is satisfied that 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.
21. 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: 98. 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.
22. 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.
23. The HCCC seeks an order that if the application is dismissed Dr Zepinic should be precluded from making a further application for a period of five years. The Psychologists Tribunal imposed that period in 2010 based on the length of time Dr Zepinic engaged in the conduct the subject of those proceedings and the nature of the deficiencies of character it found. This Tribunal has seen no insight into that conduct, no reformation of character, and a continuation of the conduct, in particular in repeatedly making false and misleading statements to regulatory bodies. The Tribunal is satisfied that it is appropriate to impose a further lengthy period of time in which Dr Zepinic can demonstrate that he can address these issues before he is entitled to make a further application.

Costs

1. The HCCC seeks its costs of the proceedings. The Tribunal has the power to award costs, pursuant to cl 13 Sch 5D of the National Law. The relevant principles were summarised by the Court of Appeal in Qasim v Health Care Complaints Commission [2015] NSWCA 282: 85. In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]-[48] this Court (Basten JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. (This position is in contrast to that under s 60 of the CAT Act which provides by subs (1) that each party to proceedings in the Tribunal is to pay its own costs and that the Tribunal may award costs in relation to proceedings "only if it is satisfied that there are special circumstances warranting an award of costs".)
2. The HCCC has properly exercised its role as contradictor to the application, and there is no basis, including in how the proceedings were conducted, on which it would not be appropriate to order that Dr Zepinic should pay the HCCC's costs as agreed, and failing agreement, as assessed.

Orders

1. The orders of the Tribunal are: 1. The application is dismissed. 2. Pursuant to s163B(5) of the Health Practitioner Regulation National Law (NSW), the order is not to be reviewed under Part 8 Div 8 until five years after the date of these orders. 3. The applicant shall pay the Health Care Complaints Commission's costs of and incidental to the proceedings as agreed, and failing agreement within 28 days of the date of these orders, as assessed under the legal costs legislation (as defined in s3A of the Legal Profession Uniform Law Application Act 2014 (NSW).

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 October 2018