Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Zepinic v Health Care Complaints Commission [2018] NSWCATOD 92 Hearing dates: 5 June 2018 Date of orders: 05 June 2018 Decision date: 05 June 2018 Jurisdiction: Occupational Division Before: L Pearson, Principal Member A Shires, Professional Member E Collins, Professional Member P Hooker, General Member Decision: The hearing is adjourned to 17 and 18 July 2018 Catchwords: Health practitioner – application for reinstatement order – adjournment Legislation Cited: Civil and Administrative Tribunal Act 2013 Health Practitioner Regulation National Law (NSW) Psychologists Act 2001 Cases Cited: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR(NSW) 448 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 Litchfield v Medical Council of New South Wales [2012] NSWMT 8 Category: Procedural and other rulings Parties: Vito Zepinic (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: P Lowson (Respondent) Solicitors: Applicant self-represented Health Care Complaints Commission (Respondent) File Number(s): 2018/00057863 REASONS FOR DECISION 1. On 21 February 2018 Dr Vito Zepinic applied to the Tribunal for a reinstatement order to enable him to be considered for re-registration as a psychologist. The application was supported by an affidavit affirmed on 13 February 2018, with 13 annexures. The applicant subsequently provided a further affidavit affirmed on 16 March 2018. 2. The applicant has previously been registered in New South Wales as a psychologist. On 12 August 2010 the Psychologists Tribunal of New South Wales, having heard an appeal from a decision of the Psychologists Registration Board of New South Wales under s 17 of the Psychologists Act 2001 and an Inquiry under s 109 of that Act, made an order cancelling the applicant's name from the Register, a prohibition order and an exclusion order for a period of five years. The applicant requires a reinstatement order under s 163B of the Health Practitioner Regulation National Law (NSW) in order for his application for registration to be considered by the Psychology Board of Australia. 3. At a directions hearing on 23 March 2018 at which the applicant appeared in person and the respondent was represented by its solicitor, directions were made for the parties to exchange and provide their evidence and submissions on which they intended to rely. The hearing was listed for two days, on 5 and 6 June 2018. 4. The procedural directions made on 23 March 2018 required the applicant to provide to the Tribunal and respondent his evidence-in-chief and statements by 4 April 2018. The respondent was directed to provide its documents by 17 May 2018, and the applicant was to provide any reply by 24 May 2018. 5. The applicant's submissions were received at the Tribunal on 29 March 2018. The respondent's documents (numbered 1-16) served on 17 May 2018 were received by the Tribunal on 22 May 2018. On 24 May 2018 the respondent provided its Reply, stating that it appears as contradictor to the application and opposes the application. Additional material (documents 17-33) served by the respondent on 31 May 2018 was received by the Tribunal on 1 June 2018. 6. On 5 June 2018 the hearing was adjourned. These are the reasons for the Tribunal's decision to adjourn. Hearing 1. At the opening of the hearing on 5 June 2018 the applicant stated that he had not received any of the respondent's documents identified in paragraph [5] above. The respondent's counsel stated that the documents had been posted or couriered to the applicant's address as confirmed by him on 23 March 2018 (and confirmed again at the hearing on 5 June 2018) and by email. The applicant stated that he did not consent to service by email. He had been in China between 23 May 2018 and 4 June 2018. 2. The applicant stated that he did not want an adjournment, and wanted the hearing to proceed. After discussion with the parties the Tribunal provided the applicant with a copy of the respondent's documents, and adjourned to allow him time to read those documents, and consider whether he would be in a position to proceed. To assist in that consideration the respondent's representative provided a brief outline of the legal framework under the Health Practitioner Regulation National Law (NSW) and the provisions relevant to the Tribunal's hearing and determination of the application for a reinstatement order. 3. The Tribunal resumed at 12.00 noon. The applicant confirmed he had read the documents, and stated that he had not previously seen documents 22 (letter from University of Sarajevo Medical Faculty), 17A and 17B (application received by University of Sydney), 24 (evidentiary certificate dated 29 May 2018 by Psychology Council of New South Wales) and 27, 28 and 29 (Psychology Board of Australia CPD Guidelines, Criminal History Registration Standard and General Registration Standard, dated 2015 and 2016). 4. The applicant stated that he was seriously disadvantaged by the respondent's non-compliance with the direction to provide its evidence by 17 May 2018, however he would do his best to participate in the hearing. When asked what specific disadvantage he was asserting, the applicant stated that because he had not received the documents he had not had an opportunity to respond in accordance with the direction made on 23 March 2018. When asked what documents he would have wished to provide in reply, the applicant stated that he would provide documents relating to his practice and registration before he left Australia in 2009, and documents relating to what he had done as a psychologist in the United Kingdom after he left Australia. He clarified that he would have responded with a folder of documents. 5. The applicant was asked whether he was requesting an adjournment to enable him to respond to the documents. The applicant stated that he was not, as he has been waiting three years to be re-registered and has not been able to work. The applicant stated that he had documents with him. He then provided a number of documents to the respondent's representative and to the Tribunal. The documents handed up to the Tribunal were returned to the applicant after the hearing was adjourned. 6. The Tribunal indicated that notwithstanding the applicant's position that he was not requesting an adjournment, it needed to consider whether in the interests of procedural fairness it ought to adjourn the hearing of its own motion. The applicant opposed that course. The respondent's position was that the Tribunal had power to do so. It would neither support nor oppose an adjournment. It would support an adjournment at the Tribunal's own motion, and if the Tribunal determined to proceed with the hearing it should provide reasons for doing so. Consideration 1. The present proceedings are under the Health Practitioner Registration Uniform Law (NSW), and the Tribunal must, in the exercise of functions under that legislation, have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s3. The most directly relevant of those principles is that in s 3(2)(a), to provide for 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. The protection of the health and safety of the public must be the paramount consideration: s3A. 2. The Tribunal has power under s51 of the Civil and Administrative Tribunal Act 2013 to adjourn proceedings. That power is to be exercised bearing in mind the statement of principle by the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management Pty Ltd [2013] HCA 46; (2013) 250 CLR 303, where French CJ, Kiefel, Bell, Gageler and Keane JJ at 321 [51] referred to the importance of the achievement of a just but timely and cost-effective resolution of a dispute. That goal is reflected in the guiding principle for the Tribunal stated in s 36(1) of the NCAT Act. 3. The Tribunal is required to comply with procedural fairness, as directed by s 38(2) of the NCAT Act, and in any event at common law as a consequence of the nature of these proceedings and the interests affected. The concern of the Tribunal was whether, given the applicant's firm statement that he did not receive the respondent's documents, and his firmly expressed position that he was seriously disadvantaged by not having the opportunity to provide further evidence and submissions in reply, to proceed with the hearing would mean that the applicant may not have a reasonable opportunity to be heard and to adequately present his case in support of his application. 4. We did not consider it necessary to reach a concluded view as to whether or not the respondent's documents were properly served on the applicant. The applicant was satisfied having read the documents on the morning of the hearing that he had seen most of them before, however there were some that were new. While the applicant had with him some of the documents which he said he would have provided in reply, he made it clear he would seek to introduce additional documents in the course of his evidence should the hearing proceed on the second day allocated. 5. The applicant did not request, or agree to, an adjournment. Notwithstanding that position, he maintained his assertion that he was seriously disadvantaged should the hearing proceed. 6. The Tribunal accepts that the applicant wants to have the matter heard and determined expeditiously, as until he is re-registered he is unable to resume his practise as a psychologist. While he states that he has a United Kingdom legal qualification and has obtained legal advice, he is self-represented. Unless set aside through some process other than the present proceedings, the Psychologists Tribunal decision of 12 August 2010 stands, and that decision and the findings then made are not the subject of the present proceedings. In this application for a reinstatement order the applicant is required to establish that there has, as expressed in Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR(NSW) 448 at 461, been "a reformation of character" since then. As stated in the authorities including Litchfield v Medical Council of New South Wales [2012] NSWMT 8, the onus is on him to demonstrate that he can now be trusted to practise in a way that conforms to the expected professional standards and in a manner that presents no risk to the safety of the public and their confidence in the profession. That is a heavy onus, and there must be solid and substantial grounds: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49. The applicant's evidence and submissions as to the period since he was de-registered in 2010 are clearly central to the determination of the present application. 7. The Tribunal was not satisfied that it would be proper to proceed in circumstances where a self-represented applicant was asserting he had not had the opportunity to provide all his evidence in reply. In any event, were the hearing to proceed on the second day allocated, with the applicant attempting to tender, in a piecemeal fashion, documents not previously provided to the respondent or the Tribunal, it would be doubtful whether the hearing would conclude in that time. Bearing in mind the principles as expressed in s 3 and s 3A of the Health Practitioner Registration Uniform Law (NSW), the significance of the present proceedings both for the parties and the public, and the essential requirement to accord procedural fairness to all parties, the Tribunal concluded that the proper course was to adjourn the hearing. The Tribunal was able to arrange hearing dates without significant delay, for dates on which the parties and the presently constituted Tribunal were available, and made directions for finalisation of the exchange of evidence and submissions before then. ******** 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: 14 June 2018