Zepinic v Health Care Complaints Commission

Zepinic v Health Care Complaints Commission - [2020] NSWCA 146 - NSWCA 2020 case summary — Zoe

Judgment

THE COURT: This is an application by Dr Vito Zepinic ("the applicant") to appeal from a judgment dated 3 February 2020 of N Adams J. By that judgment her Honour dismissed an appeal by the applicant from a decision of the New South Wales Civil and Administrative Tribunal (Occupational Division) ("NCAT") of 18 October 2018 refusing to make an order under s 163B of the Health Practitioner Regulation National Law (NSW) ("the National Law") reinstating the applicant as a psychologist ([2018] NSWCATOD 166).
It is sufficient for the purposes of this judgment to refer to the following background facts which are more fully described in her Honour's judgment.
The applicant was registered as a psychologist in 1994 and thereafter practised as such in Queensland and New South Wales. In 2008 he was prosecuted on charges relating to misdescriptions of his professional qualifications. Magistrate Barkell of the Local Court found that the charges were proved and concluded on 25 July 2008 that convictions should be recorded. The applicant was placed on a two year good behaviour bond.
On 27 October 2008 the Psychologists Registration Board, constituted under the then operative Psychologists Act 2001 (NSW), found the applicant guilty of unsatisfactory professional conduct, based upon his conduct giving rise to the Local Court convictions, and reprimanded him. On 12 August 2010 the Psychologists Tribunal of New South Wales, constituted under the same Act, found complaints against the applicant established and cancelled his registration as a psychologist, precluding him from applying for a review of the order for a period of five years.
In the meantime, the applicant had left Australia and sought to practise as a psychologist in the United Kingdom. On 8 August 2013 he was convicted in the United Kingdom of three counts of fraud involving, inter alia, his failure to disclose to various persons the convictions referred to above. His appeal was dismissed.
In October 2016 the applicant returned to Australia to reside. He then applied to NCAT for a reinstatement order under s 163B of the National Law, which had come into force on 1 July 2010. The National Law had the effect that the 2010 decision deregistering the applicant was taken to have been made under the National Law (s 287).
After a contested hearing in which the present respondent, the Health Care Complaints Commission, acted as contradictor, NCAT declined to order reinstatement, as noted above. In determining that application NCAT's role was not to consider the correctness of the 2010 decision of the Psychologists Board to cancel the applicant's registration but to determine the "appropriateness" at the time of the hearing before NCAT of the order concerned (s 163C of the National Law).
As noted above, N Adams J subsequently dismissed the applicant's appeal to the Supreme Court. As in this Court, the applicant represented himself. Her Honour dealt thoroughly with the applicant's arguments so far as her Honour was able to discern them. Her Honour found that he had failed to establish any error of law or fact in NCAT's decision not to reinstate him as a psychologist.
We do not consider that, on his application for leave to appeal to this Court, the applicant has established that he has any arguable basis for challenging her Honour's decision. As with the arguments put to her Honour, those that the applicant put to us were broad-ranging and often difficult to follow. The substance of the matters of which he complained however appeared to be as follows.
First, the applicant complained that "[n]either the NCAT or the Court below has power nor any jurisdiction to challenge retroactively evidence adduced (certificates dated on 20/08/2008) on which the NSW Psychologists Tribunal made [orders] on 12 August 2010" (sic). This was a reference to the issue by the Local Court of certificates erroneously referring to convictions on 19 August 2008 rather than 25 July 2008. Correct certificates were however subsequently issued and the initial error is of no significance.
Secondly, the applicant contended that "the NCAT, or the Court below, has no jurisdiction to challenge evidence under which the courts in the UK delivered the judgments/orders". This had no basis as the existence of the United Kingdom judgments was accepted by NCAT and her Honour without any suggestion of contradiction.
Thirdly, the applicant appeared to deny that he was in fact convicted in the Local Court in July 2008. This was contradicted by the evidence before NCAT and her Honour and was in any event concerned with a question of fact which would not form the basis of a grant of leave to appeal to this Court.
Fourthly, the applicant took issue with a statement by the primary judge that the applicant "has never been registered as a medical practitioner in Australia". It appears that he may however have had conditional registration as a medical practitioner in Queensland but, even if her Honour's statement required qualification to be accurate, it was simply part of her Honour's description of the background to the appeal and is of no present consequence. Likewise, the applicant complained of a slip made by her Honour in saying that it was the Health Care Complaints Commission that prosecuted him in 2008. This was an error because it was in fact the Medical Board of New South Wales constituted under the Medical Practice Act 1992 (NSW) that did this. Again the slip is of no significance.
Fifthly, the applicant put an argument in this Court which he did not put to her Honour that NCAT was in error in having regard to his 2008 convictions because they were, and are, spent by reason of the provisions of the Criminal Records Act 1991 (NSW). That Act provides for certain convictions to be "spent" after a specified period. It has the effect that the applicant's convictions of 25 July 2008 became spent for some purposes on 25 July 2010. Section 12 of that Act provides, in effect, that spent convictions are not required to be disclosed and that questions concerning a person's criminal history are taken to refer only to convictions of the person which are not spent.
Subject to presently immaterial exceptions, s 16(1) however provides that s 12 "does not apply to proceedings before a court (including the giving of evidence) or the making of a decision by a court (including a decision concerning sentencing)". Section 4(1) defines a "court" to include a "tribunal". NCAT is clearly a "tribunal" for this purpose.
In Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159; [2014] NSWCA 368, it was held, by majority, that the s 16 exception did not apply to a tribunal undertaking a merits review in relation to an administrative decision-maker who was bound by the Criminal Records Act. That conclusion was based on the view that the contrary conclusion would give rise to "[t]he somewhat anomalous result … that where the tribunal stood in the shoes of an administrative decision-maker, it [would be] entitled to have regard to spent convictions, whereas the original decision-maker was not" (at [67]). That reasoning (and conclusion) is not applicable in the present case as the NCAT proceedings involved the exercise of original jurisdiction to make an order for reinstatement. They were not by way of an appeal from, or review of, an administrative decision. We note that the correctness of the decision in Kocic was accepted by the High Court in Frugtniet v Australian Securities and Investments Commission (2019) 93 ALJR 629; [2019] HCA 16.
Sections 77 and 79 of the National Law provide a further basis for rejecting the applicant's spent convictions argument. Section 77 requires an applicant for registration under the Act to disclose his or her criminal history and to authorise the relevant National Health Practitioner Board to obtain that history. Subsection (4) provides that a "criminal history law" does not apply to the requirement for the applicant to disclose his or her criminal history. "Criminal history law" is defined in s 5 in terms that encompass the Criminal Records Act 1991 (NSW). Further, s 79 requires the Board to check an applicant's criminal history and, by subsection (3), provides that a "criminal history law" does not apply to a report obtained about an applicant's criminal history under the section. Clearly, the information so obtained may be taken into account by the Board in making its decision regarding registration and, it would follow, NCAT can take the same information into account when considering a reinstatement application.

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