Attia v Health Care Complaints Commission

[2017] NSWSC 1066

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Attia v Health Care Complaints Commission [2017] NSWSC 1066
Hearing dates:	8 May 2017; 22 June 2017
Date of orders:	16 August 2017
Decision date:	16 August 2017
Jurisdiction:	Common Law
Before:	Walton J
Decision:	The Court directs that the HCCC file within 7 days of the publication of this judgment short minutes of order reflecting this judgment. If the orders are duly executed by both parties the Court will make orders administratively in Chambers, providing the orders properly reflect this judgment. In the absence of agreement, the HCCC shall file and serve the short minutes of order within the same 7 day period and the plaintiff shall file and serve short minutes of order containing any alternative orders within a further 7 days. The Court will in that event issue orders or list the matter for short argument as to the form of orders.
Catchwords:	ADMINISTRATIVE LAW – appeal – decision of the Civil and Administrative Tribunal that the plaintiff’s registration as a pharmacist be cancelled – regulatory system for registered pharmacists – regulatory system for pharmaceutical wholesalers – interaction of regulatory schemes – protective legislation and statutory objects – whether the finding of unsatisfactory professional conduct under s 139B(1)(a) constituted an error of law because the impugned conduct was undertaken by the plaintiff as the office holder of a licenced pharmaceutical wholesaler corporation and not in the practice of a pharmacy – whether impugned conduct in practice of practitioner’s profession – procedural fairness – hearing rule – whether the determination by the Tribunal to take into account matters not within the particulars of the complaints breach of procedural fairness – notice and litigation of non-particularised issues – a single stage process – relevant principles – orders – leave partially refused – appeal dismissed
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Regulation 2013 (NSW) Health Practitioner Regulation National Law (NSW) Medical Practitioners Act 1938 (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Therapeutic Goods Act 1989 (Cth)
Cases Cited:	Annamunthodo v Oilfields Workers’ Trade Union [1961] AC 945 B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481 Barnes v Australian Telecommunications Commission (1989) 25 FCR 283; [1989] FCA 47 Battle v Bundagen Co-operative Ltd (No 2) [2011] NSWCA 38 Bryant v Hawkesbury Radio Communication Co-operative Society Limited [2014] NSWSC 848 Childs v Walton [1990] NSWCA 41 CSR Ltd v Eddy (2008) 70 NSWLR 725; [2008] NSWCA 83 Daskalopoulos v Health Care Complaints Commission [2002] NSWCA 200 Forge v Australian Securities and Investments Commission (2004) 213 ALR 574; [2004] NSWCA 448 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Health Care Complaints Commission v Attia (No 2) [2017] NSWCATOD 25 Health Care Complaints Commission v Attia [2016] NSWCATAD 309 Health Care Complaints Commission v Little [2016] NSWCATOD 146 Howe v Administrative Decisions Tribunal of New South Wales [2003] NSWSC 157 Howe v Administrative Decisions Tribunal of New South Wales [2003] NSWCA 120 King v Health Care Complaints Commission [2011] NSWCA 353 Kioa v West (1985) 159 CLR 550 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 Lawrie v Lawler (2016) 168 NTR 1 Lee v Health Care Complaints Commission [2012] NSWCA 80 Lucire v Health Care Complaints Commission [2011] NSWCA 99 Mahoney v Industrial Registrar of New South Wales (1986) 8 NSWLR 1 Malone v Marr [1981] 2 NSWLR 894 McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470 New South Wales Bar Association v Cummins [2001] NSWCA 284 Ng v Health Care Complaints Commission [2017] NSWSC 53 Nominal Defendant v Saleh [2011] NSWCA 16 Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Aust) Pty Ltd (1978) 139 CLR 231 Re Coldham; Ex parte Municipal Officers Association of Australia (1989) 84 ALR 208; [1989] HCA 13 Re Minister for Immigration and Multicultural Affairs, Re Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Smith v New South Wales Bar Association (1992) 176 CLR 256 Smith v Superannuation Complaints Tribunal [2008] FCA 1528 Sudath v Health Care Complaints Commission [2012] NSWCA 171 Szeel v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 62 Totalisator Agency Board of New South Wales v Casey (1994) 54 IR 354 United Voice v Restaurant and Catering Association of Victoria (2014) 226 FCR 255; [2014] FCAFC 121 Veal v The Minister for Immigration, Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72
Texts Cited:	M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability, (6th ed, 2017, Thomson Reuters)
Category:	Principal judgment
Parties:	Mina Attia (Plaintiff) Health Care Complaints Commission (Defendant)
Representation:	Counsel: M R Pesman SC with T Flaherty (Plaintiff) L Fernandez (Defendant)   Solicitors: Michael Flaherty Solicitor (Plaintiff) Health Care Complaints Commission (Defendant)
File Number(s):	2017/20085
Decision under appeal	Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Occupational Division Citation: [2016] NSWCATAD 309 Date of Decision: 23 December 2016 Before: A Britton, Principal MemberE Anderson, Professional memberM Cross, Professional memberD Ball, General member File Number(s): 1620014

Judgment

1. By an amended summons filed on 24 March 2017 the plaintiff, Mina Attia brought an appeal against a decision of the NSW Civil and Administrative Tribunal (“the Tribunal”), delivered on 23 December 2016, inter alia, cancelling his registration as a pharmacist: Health Care Complaints Commission v Attia [2016] NSWCATAD 309 (“the Tribunal decision”).

2. The appeal is governed by the provisions of Pt 6 of Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW) (“the Act”).

3. The plaintiff was registered as a pharmacist under the uniform national legislation implemented in NSW by the Health Practitioner Regulation National Law (“the National Law”) (see Pt 7 of the National Law).

4. The proceedings before the Tribunal arose out of an investigation by the Therapeutic Goods Administration (“TGA”) into the plaintiff’s involvement in the wholesale purchase and on-sale of counterfeit Viagra® (“Viagra”). Apart from the social use for which the drug is more popularly known, it had an important application in the treatment in pulmonary arterial hypertension.

5. Counterfeit Viagra was detected by a pharmacist at the Sydney Children’s Hospital who was preparing the drug for administration to paediatric patients. The supply of the drug was traced to a company known as Hillmear Trading Pty Ltd (“Hillmear”) of which the plaintiff was the sole director. Hillmear was a pharmaceutical wholesaler licensed to supply poisons and other restricted substances by wholesale for therapeutic use under the Poisons and Therapeutic Goods Act 1966 (NSW) (“PTGA”) and Poisons and Therapeutic Goods Regulation 2008 (“PTGR”). In turn, Hillmear purchased the tablets from a Mr Sajay Rai. Viagra is a restricted substance and Mr Rai was not licenced to supply it.

THE COMPLAINT

6. On 14 January 2016, Ms Karen Mobbs, Director of Proceedings, Health Care Complaints Commission (“HCCC”) determined, pursuant to s 90B(1) of the Health Care Complaints Act 1993, to prosecute a complaint against the plaintiff alleging that he had been guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(a) and (l) of the National Law and/or professional misconduct within the meaning of s 139E of the National Law. An application for “Disciplinary Findings and Orders” was brought by Ms Mobbs in the Occupational Division of the Tribunal after consultation with the Pharmacy Council of New South Wales. The complaint consisted of three numbered sub-complaints.

7. A common background was given to the complaints. This was not disputed at first instance or in these proceedings and was in the following terms:

The practitioner was first registered as a pharmacist in New South Wales on 7 October 1998.

At all times relevant to the complaint the practitioner operated a business as a licensed wholesaler of medicines under a licence to supply poisons and/or restricted substances by wholesale for therapeutic use issued under the Poisons and Therapeutic Goods Act 1966 (NSW) and the Poisons and Therapeutic Goods Regulation 2008 (wholesale licence). At all times relevant to the complaint the practitioner operated the business through a company trading as Hillmear Trading (Hillmear Trading), of which he was the sole director.

Relevantly, condition three of the wholesale licence (condition three) stipulated that:

Poisons and restricted substances for therapeutic use may be obtained only from the holder of a licence or authority to supply by wholesale poisons and/or restricted substances issued under a law of the Commonwealth or a State or Territory of the Commonwealth or by way of import approved by a Commonwealth licence or authority.

In June 2010, the Therapeutic Goods Administration (TGA) issued a retail level Urgent Medicine Recall under its Uniform Recall Procedure for Therapeutic Goods in relation to counterfeit Viagra tablets that had been supplied to a public hospital in Sydney and a number of community pharmacies in New South Wales by a licensed wholesaler. Viagra is a restricted substance within the meaning of the Poisons and Therapeutic Goods Act 1966 (NSW) and may only be supplied or purchased by wholesale by a holder of a wholesale licence.

The licensed wholesaler who supplied the Viagra tablets which were the subject of the TGA's Urgent Medicine Recall had been supplied the Viagra tablets by Hillmear Trading. The practitioner, acting on behalf of Hillmear Trading, had in turn purchased the Viagra tablets from Mr Sajay Rai. Mr Rai did not hold a wholesale licence or act on behalf of an entity which held such a licence. On 7 November 2013 Mr Rai was convicted on two counts of supplying counterfeit therapeutic goods. One count related to the supply of the Viagra tablets to Hillmear Trading.

8. The conduct particularised in the complaint shall be referred to in this judgment as the impugned conduct.

9. Complaints 1 to 3 (which shall be referred to as such in this judgment) and the particulars thereof, were as follows:

Complaint 1

[The plaintiff] is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law in that the practitioner has:

(i) engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the Practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience;

(ii) engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy.

Each particular in itself justifies a finding of unsatisfactory professional conduct, in the alternative, when two or more particulars are taken together, a finding of unsatisfactory professional conduct is justified.

Particulars of Complaint 1

(1) On two occasions in 2010 the practitioner purchased a substance purporting to be Viagra tablets by wholesale from a person without a wholesale licence, namely Mr Rai, in breach of condition three of the practitioner’s wholesale licence.

(2) On two occasions in 2010 the practitioner purchased a substance purporting to be Viagra, now known to be counterfeit, and failed to ensure that it was genuine by contacting the manufacturer to confirm the batch number and expiry date, when he knew or ought to have known the Viagra was not genuine, in that:

(a) Mr Rai offered to supply the Viagra at price per unit which was significantly cheaper than the normal market price;

(b) The practitioner was not aware as to whether Mr Rai held a wholesale licence authorising him to supply Viagra;

(c) The practitioner had not purchased restricted substances from Mr Rai in the past, and this was the first time Mr Rai had offered to supply him with a restricted substance;

(d) The packaging and appearance of the substance purporting to be Viagra which the practitioner purchased from Mr Rai was different from the genuine product, including the blister pack being a different shape and appearance from the genuine product.

(3) The practitioner distributed the substance purporting to be Viagra which he had purchased from Mr Rai, now known to be counterfeit, when he knew or ought to have known that the product was not genuine, in the circumstances particularised in particulars 1 and 2.

Complaint 2

[The plaintiff] is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (I) of the National Law in that the practitioner has:

(i) engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the Practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience;

(ii) engaged In improper or unethical conduct relating to the practice or purported practice of pharmacy.

Particulars of Complaint 2:

(1) The practitioner provided false or misleading information to the Therapeutic Goods Administration by providing them with false invoices purporting to relate to the purchase of Viagra from Mr Rai, namely;

(a) The invoice, numbered 537269, purporting to record the purchase of 55 units of Viagra 100 mg at $54.27 per unit by Hillmear Trading Pty Ltd from Tamer Distribution Pty Ltd on 3 March 2010, which transaction did not occur.

(b) The invoice, numbered 000188, purporting to record the purchase of 1000 units of Viagra 100 mg at $57 per unit by Hillmear Trading Pty Ltd from Tamer Distribution Pty Ltd on 9 March 2010, which was false in that the quantity and price per unit of Viagra supplied on that occasion was 2,200 units for a unit price of approximately $34.52 (excluding GST).

Complaint 3

[The plaintiff] is guilty of professional misconduct under s 139E of the National Law in that the practitioner has:

(i) engaged an unsatisfactory conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or

(ii) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to Justify suspension or cancellation of the practitioner's registration.

Particulars of Complaint 3:

Complaints 1 and 2 and the particulars thereof are repeated and relied upon, individually and cumulatively.

10. In the application to the Tribunal, the HCCC sought the following orders in the event the complaint was proven:

1. Orders pursuant to s 149A (powers to caution, reprimand, impose conditions on registration, etc), s 149B (power to impose a fine) and/or s 149C (powers to suspend or cancel registration, make a prohibition order, etc) of the Health Practitioner Regulation National Law (NSW) (“the National Law”).

2. Costs.

THE APPEAL

11. In the amended summons the plaintiff relied upon ten grounds of appeal. By the hearing of the matter, grounds 3 to 5 were abandoned.

12. The grounds of appeal (maintaining the numbering system used in the amended summons but adjusting the form thereof to conform with this judgment) and the abandonment of three grounds were as follows:

(1) The Tribunal erred at law in finding that any of the conduct of the plaintiff the subject of the HCCC complaints and the proceedings was conduct by the plaintiff in the practice of his profession. On the evidence before the Tribunal, such a finding was not open to the Tribunal.

(2) The Tribunal erred at law in failing to find that all of the conduct of the plaintiff the subject of the HCCC complaints and the proceedings was conduct by the plaintiff in his capacity as an officeholder of a licensed pharmaceutical wholesaler corporation and not in the practice of his profession. On the evidence before the Tribunal, the Tribunal was bound.

(3)-(5) [abandoned by the plaintiff].

(6)The Tribunal erred at law in finding that the provision of information by the plaintiff, pertaining to the purchases of pharmaceuticals by a licensed pharmaceutical wholesaler corporation was conduct of the plaintiff in the practice of his profession.

(7) The Tribunal erred at law in taking into account irrelevant considerations and giving weight to those irrelevant considerations, being matters of speculation at paragraph 133-136 of the Judgment and further not forming the subject of the HCCC complaints, in making its decision.

(8) The Tribunal erred at law by conducting the hearing below in such manner as to deny the plaintiff procedural fairness in considering material and matters adverse to the plaintiff, being the findings at paragraph 134 of the Judgment and for which the plaintiff was not provided notice in the complaints of the HCCC, and failing to provide the plaintiff an opportunity to respond.

(9)The Tribunal erred at law in failing to conduct the hearing in a two-stage process, denying the plaintiff the opportunity to be heard on penalty, once the Tribunal had made its findings, thereby denying the plaintiff procedural fairness, in particular in light of ground 8 above.

(10) The order made by the Tribunal, cancelling the plaintiff's registration as a pharmacist, was sufficiently unreasonable so as to attract appellate intervention

13. At the outset of the hearing of the appeal, Mr M R Pesman SC, who appeared with Mr T Flaherty of counsel for the plaintiff, confined the appeal to two contentions which resulted in the issues in the appeal being narrower than the grounds in the amended summons. Senior counsel also corralled the grounds of appeal into a cluster or group falling with each such issue. Those issues and the corresponding grounds of appeal were as follows:

1. Notwithstanding the HCCC sought a finding of unsatisfactory professional conduct under s 139B(1)(a) and/or (l), wheresoever the Tribunal found the complaint proven, it did so solely in reliance upon s 139(1)(a) and, in particular, upon the basis that the plaintiff engaged in the impugned conduct in or as part of, to employ the language of the subsection, “the practice of the practitioner’s profession.” That finding constituted an error of law because the impugned conduct was undertaken by the plaintiff as the office holder of a licenced pharmaceutical wholesaler corporation and not in the practice of a pharmacy. The impugned conduct was regulated under the PTGA or PTGR and not the National Law. The law differently regulated conduct of a licenced pharmaceutical wholesaler and a pharmacist. The plaintiff described this as the “liability appeal” and noted that it concerned grounds 1, 3 and 6 of the appeal. I will adopt the plaintiff’s title as to this issue.

2. The manner in which the Tribunal dealt with “penalty” was wrong both as a matter of process and substance. Counsel submitted that the gravamen of the second limb was the determination by the Tribunal to take into account matters not within the particulars of the complaints without giving warning or notice to the plaintiff and the failure to conduct a two stage process so as to permit a separate hearing on penalty after the Tribunal had decided whether the complaints were proven. Central to that issue was the findings of the Tribunal at [131]-[136] of its decision. This was described as the “penalty appeal” which related to grounds 7 to 10 inclusive of the grounds of appeal. Having in mind the operation of the National Law as a protective jurisdiction this ground should be described as the “protective orders appeal”.

14. Putting aside costs, the plaintiff sought the following relief:

1. An order pursuant to s 29(8)(b) of the Act that the decision of the Tribunal under appeal be quashed or set aside.

2. Leave to appeal [be] granted, pursuant to s 29(4)(b) of the Act to the extent that any of the grounds of appeal do not involve a question of law.

3. Such further or other order as the Court sees fit.

THE COURSE OF THE PROCEEDINGS

15. The proceedings before the Tribunal were conducted over three days. On the first day Mr Fernandez, who also appeared for HCCC below, gave a short opening submission. Evidence was then taken on that day from an expert Mr Leigh, Mr Rai and the plaintiff. The plaintiff’s evidence continued on the second day of the hearing and was followed by the remainder of the evidence. The matter was adjourned for the production of written submissions. Oral submissions were taken on the third day, 27 July 2016.

16. At the opening of the hearing, the Principal Member of the Tribunal, Ms A Britton, sought to identify the principal issues for the proceedings. It was during this exchange that Mr Fernandez announced that Mr Barnes, counsel for the plaintiff in the Tribunal proceedings, was “not seeking a two-stage hearing”. Mr Barnes did not, at that juncture, confirm that submission but it was clear from his later intimations during the discussion of relevant issues at the opening stages of the proceedings that he did so.

17. Upon being advised as to a one-stage hearing, Ms Britton indicated that there were “not a lot of issues in dispute” although “we can appreciate that those that are in dispute are significant”. It was upon that basis that she stated, “our preference would be that if a discussion in respect of protective orders could be made on the basis that we accept everything the HCCC asserts and, in the alternative we hear submissions on, if we accept that what Mr Attia… in the alternative we can consider it that way”.

18. The plaintiff submitted in these proceedings, without demur from the HCCC, that this procedure involved addresses as to protective orders upon the basis that everything the HCCC asserted was made out. No submission was made by either party as to what the Tribunal intended by the alternative procedure concerning the plaintiff’s case in terms of addresses on protective orders.

19. In the discussion which ensued at the outset of the proceedings, the parameters of the dispute between the parties as to the complaints were narrowed as follows:

1. There was no dispute as to the factual background as specified within the complaint.

2. The issues concerning Complaint 1 were constrained to whether, with respect to particulars 2 (save for particular 2(d)) and 3, the plaintiff knew the counterfeit Viagra was genuine. The whole of particular 2(d) was contested (particular 1 was conceded).

3. Particular 1(b) of Complaint 2 was disputed. There was a particular issue as to the number of units of the counterfeit Viagra purchased by the plaintiff. It was identified that particular 1(a) was agreed.

4. Complaint 3 was contested.

20. As a result of that discussion as to the confinement of these issues the HCCC gave a very limited opening submission as such.

21. After the close of the proceedings on the second day, written submissions were filed by the HCCC. Those submissions were divided into two parts located under the headings “Findings of fact in relation to the particulars of each complaint” (part 1) and “Protective orders” (part 2). In part one, there were further sub-divisions entitled, “A. Particulars relating to proof that the respondent knew that the Viagra he bought from Mr Rai was not genuine”, and in relation to Complaint 2, “B. Particulars relating to proof that the respondent provided false and misleading information to the TGA”.

22. In the discussion of component “A” of part one, the HCCC first submitted that the plaintiff was “certain” he had bought counterfeit Viagra as at 10 June 2010. The HCCC referred to an extract of an interview conducted with the plaintiff by Ms Singh on 3 February 2015, in which he was questioned about a deposit in Mr Rai’s bank account of $86,362.50. Reference was made to the transcript of proceedings in which the plaintiff was recorded as indicating that that money was refunded into his bank account because he did not wish to have any further dealings with Mr Rai. The plaintiff is recorded as saying he did not want “this product, this is counterfeit”. It was submitted whether the plaintiff knew, or ought to have known, that Mr Rai was not a wholesaler of restricted medications, the plaintiff had lied when he stated that he did not know Mr Rai was an unlicensed wholesaler.

23. After dealing with the circumstances of purchasing the Viagra, it was noted that the plaintiff was himself concerned about whether the counterfeit Viagra was genuine and that he looked inside the boxes of the counterfeit Viagra (such that he must have clearly known they were counterfeit). Certain submissions were made as to price and that the plaintiff lied about the way he paid for the Viagra and concealed Mr Rai’s identity until 23 or 24 June 2010. It was then submitted that the plaintiff lied to the authorities about the way in which the transactions occurred, including that the second purchase of the counterfeit Viagra, which represented 5,000 units, rather than 1,000 units, corresponding to the sum paid of $83,538.66.

24. Lastly, in the written submissions as to Complaint 1, contentions were made as to a further purchase of the counterfeit Viagra from Mr Rai. Here it was submitted that the respondent did not adequately disclose that there was a third purchase from Mr Rai until 3 February 2015 and only volunteered that information when the fact of a deposit to Mr Rai was directly put to him. Reference was made to the earlier mentioned interview with Mr Singh on 3 February 2015 and a refund (it was said by the plaintiff) of $86,362.50.

25. The following submissions were then made in relation to that further transaction:

The [Plaintiff] stated that when he became aware that there were problems with Viagra he spoke with [Mr Rai] on the phone. During this conversation the [plaintiff] stated (7 July 2010 Statement to HCCC, Tab 21, P 3):

[Mr Rai] assured me the product was genuine and there was nothing wrong with it. He told me that he had sold it all over the country and had no complaints. He also stated there were new batches coming on line and he would be able to supply me with some of that.

This was a lie. It is inconsistent with the [plaintiff’s] asserted concern for the welfare of the community. The [plaintiff] never notified the authorities, even though he had ample opportunity. The transaction was in relation to a shipment of Viagra from overseas.

The fact that the [plaintiff] did not seek the return of such a huge amount of money, for goods he never received, has not been adequately explained.

The [plaintiff] deliberately concealed the fact that he had a further transaction with Mr Rai of $86,000, which he paid for by EFT on 7 June 2010. This only came to light when he was asked about it on 3 February 2015. The [plaintiff’s] evidence that he “was not asked about it” is further evidence of his deliberate concealment of his purchases of Viagra from Mr Rai.

26. Submissions were then made as to Complaint 2, it being contended that the invoices referred to in the complaint were false, namely, the payment by cheque (the first invoice) and the amount purchased (the second invoice). As to the first invoice, attention was drawn to a question put to the plaintiff in cross-examination to the effect that he was “deliberately mislead[ing] investigators” (to which the plaintiff agreed).

27. The remainder of the written submissions were directed to protective orders. Nowhere in that part of the HCCC’s submissions were contentions advanced regarding the further purchase of the counterfeit Viagra (the “third transaction”), failing to disclose matters to the relevant authorities or knowingly providing false invoices or misleading investigators. Rather, it was submitted that there were potentially severe consequences to distributing counterfeit Viagra, particularly when the plaintiff knew he was distributing the medication to the Sydney Children’s Hospital. It was also submitted that, whilst the plaintiff claimed that his primary concern was the welfare of the people the product was supplied to, his actions were very serious having regard to his breaches of the Code of Professional Conduct.

28. The plaintiff’s written submissions concentrated at the outset upon a contention that his evidence rather than Mr Rai’s should be accepted. It was conceded with respect sub-particulars (a)-(c) of particular 2 of Complaint 1 that the matters there pleaded should have lead the plaintiff to suspect that the Viagra was not genuine and he should have refrained from purchasing it. It was also conceded that he should have contacted Pfizer to ensure its authenticity. It was submitted that sub-particular (d) was not made out. It was also submitted that particular 3 was not made out.

29. The plaintiff then made the following submission as to particulars 1 and 2 of Complaint 1:

It is a matter for the Tribunal whether or not the conduct as admitted by the Respondent as set out in Particulars 1 and 2 was such that he ought to have known the Viagra was counterfeit.

30. Contrary to the intimations given at the outset of the proceedings, it was submitted that the Tribunal would not find sub-particular 1(a) of Complaint 2 as proven. He did so upon the basis that the Tribunal would prefer the plaintiff’s evidence to Mr Rai’s as to whether the transaction “did occur”. No submissions were made as to the contention that there was a third transaction, by the plaintiff, for the sum of $86,000 that was not disclosed.

31. The conclusions the plaintiff sought to be drawn as to the complaints were as follows:

1. In considering protective orders, the Tribunal should have regard to the plaintiff never having come to notice before or since the events of March 2010, his otherwise unblemished record and the contents of his character references. They attest to his being a person of good character.

2. The plaintiff himself had expressed contrition for his actions and demonstrated insight into his behaviour. The Tribunal will accept him when he says that he was and remains deeply concerned that he may have placed members of the community at risk.

3. The Tribunal can repose confidence in the plaintiff not being a current risk to the public. He is not at risk of re-offending in the future.

32. With respect to protective orders, the following submissions were made by the plaintiff:

1. In the absence of a finding the plaintiff knew the Viagra was counterfeit when he purchased it from Mr Rai or later distributed it to a retailer and his own pharmacies, the Tribunal should not cancel the plaintiff’s registration.

2. In considering protective orders the Tribunal should have regard to the plaintiff never having come to notice before or since the events of March 2010; his otherwise unblemished record and the contents of his character references. They attest to his being a person of good character.

3. The respondent himself has expressed contrition for his actions and demonstrated insight into his behaviour. The Tribunal would accept him when he says that he was and remained deeply concerned that he may have placed members of the community at risk.

4. The Tribunal can repose confidence in the plaintiff not being a current risk to the public. He is not at risk of re-offending in the future.

33. Before turning to the oral submissions on the third day of the hearing, two aspects of the cross-examination of the plaintiff should be mentioned, as follows:

1. There was a reasonably lengthy piece of cross-examination of the plaintiff concerning the deposit of $86,362.50 into Mr Rai’s bank account. It was put to the plaintiff there were, in fact, three rather than two transactions with Mr Rai for the purchase of Viagra. This was disputed by the plaintiff upon the basis that the third transaction was never completed. The monies were said to be a deposit for another shipment of “a similar quantity”. In this context the following cross-examination occurred:

Q. The first time you ever told any authority about this third transaction with Mr Rai was on 3 February 2015; that’s right, isn’t it?

A. Because it was never completed.

Q. The first time you ever told any authority about this transaction on the – in – this third transaction with Mr Rai was on 3 February 2015, wasn’t it?

A. You’ve just repeated the same question.

Q. What’s the answer to the question?

A. Well, I’ve just answered you. I said it’s an incomplete transaction.

Q. You deliberately withheld from everyone that you spoke to that there was a third transfer of money to Mr Rai, that transfer taking place on 7 June 2010. That’s correct, isn’t it?

A. No, that’s incorrect.

Q. The only reason you answered question about that third transaction was because one of the investigators showed you Mr Rai’s bank account; correct?

A. And I had to explain that the transaction did not take effect and it was incomplete and all the investigations right through from the beginning, they were concerned with the invoices and the safety of the public and that’s – that’s all that was really at the forefront of my mind initially.

…

Q. When did you say that to him, that you didn’t want any dealings to do with this counterfeit product?

A. On – on the same day, so it would have been around 10 June.

Q. Right. So when you were speaking to the investigators from the TGA on 16 June 2010, did you tell them that you called Mr Rai on 10 June to say you didn’t want any dealing to do with a counterfeit product?

A. No, because it wasn’t for certain that it was a counterfeit product.

…

Q. Why did you call him on 10 June?

A. To notify him that we will not be transacting and that I required a refund, and that’s it.

…

Q. And yet you were immediately saying to Mr Rai on 10 June, before you meet with the TGA, you don’t want counterfeit product.

A. That’s right – taking all precautions, that’s right.

Q. And you – did you tell the TGA inspectors at any time about this transaction with Mr Rai and calling him to tell him you didn’t want any counterfeit product?

A. I think I did, yes.

Q. When did you do that?

A. If would have been later on. I – I don’t remember exactly the same – the dates or – but definitely in investigations and that’s why Mr Cole took other statements off me later on.

The plaintiff was further cross-examined on this topic as follows:

Q. I‘m asking you about your memory of paying $86,000 to Mr Rai in June 2010. He repaid that $86,000, didn’t he?

A. Not that I can recall.

Q. So you’ve told him you don’t want to deal with him with counterfeit products and you’ve paid him $86,000; is that right?

A. Yes.

Q. And you never receive any amounts of products from Mr Rai?

A. I’d have to check to be 100 per cent sure.

Q. And knowing that the products were counterfeit, you’d want your money back –

A. Yes.

Q. – wouldn’t you?

A. Yes.

Q. Did you get your money back from Mr Rai –

A. As I –

Q. – $86,000? Did you get that back?

A. As I said to you, I shut all dealings with him and I don’t recall of getting that money back. I’ll have to check.

Q. Shutting all dealing with him means that you don’t buy from him anymore.

A. No.

Q. What about getting the money back for what you you’d paid –

A. That’s not dealing with him, full stop.

Q. What about getting back $86,000 for something you never received, did you think that’s something you should do?

A. Yes.

Q. Did you get it back?

A. I don’t think so.

Q. You just let $86,000 go, did you?

A. Yes.

Q. And you never told anyone – you never told the TGA –

A. I did, actually –

Q. – about giving Mr Rai $86,000 –

A. – tell the TGA that I lost a lot of money in this transaction –

Q. Yeah, but you never told the TGA that you gave Mr Rai $86,000 for something you never received –

A. No, because –

Q. – that’s correct, isn’t it?

A. – because they never asked me.

2. In this appeal, counsel for the HCCC did not rely upon the extract in (1) above in opposing grounds 7 to 10 of the appeal. Rather reliance was placed upon the cross-examination of the plaintiff as to two other matters. First, that contrary to the statements he had made to the TGA that he had paid for the invoices referred to in Complaint 2 by cheque that he had not done so (the plaintiff agreed in cross-examination that he had not in fact paid by cheque). Secondly, it was submitted that the plaintiff had incorrectly advised the TGA by email that, having checked, the invoices were in fact paid by cheque. The ultimate part of this cross-examination which was relied upon as providing notice to the plaintiff, was as follows:

Q. Why did you lie to the TGA? Why did you tell these lies to the TGA the day after they came to see you about Viagra that may have been counterfeit?

A. Because, as I said before, on the 16th it was very early in the time. I was in terrible shock and I wasn’t –really the invoice and the amounts of – how it was paid for and all that wasn’t really the top of the agenda. It was mainly about, did I supply counterfeit medication and was there anybody hurt by that.

34. On the third day of hearing, oral submissions were received from counsel for the HCCC and the plaintiff. The submissions were constructed such that the Tribunal first received, to the point of completion, submissions as to whether or not the complaints were proven as a matter of fact. At the completion of those submissions the Tribunal then took submissions as to any protective orders that might be made.

35. As to the first segment of the hearing, the Principal Member asked at the outset, whether, in relation to Complaint 2, the term “false invoice[s]” should be understood as a complaint that, with respect to the invoices particularised, the plaintiff had knowingly participated in their falsification. The HCCC answered yes, stating further, “the production and the fact that they were false”, presumably a reference to what the plaintiff knowingly did in those respects. The Tribunal also asked if it was necessary to be satisfied in terms of the plaintiff’s role in the creation of the invoices.

36. As to the first invoice, it was submitted by the HCCC that the transaction did not actually occur and the invoice was created “to provide some sort of trail in relation to the purchase of Viagra by the [plaintiff]”.

37. Reference was also made to false entries on the first invoice such as Tamer Distributions, “Michael” and a telephone number. The HCCC made clear that the invoices were provided to the TGA. Further, the Tribunal posited that it would be necessary for the Tribunal to be satisfied that the plaintiff was unaware Mr Rai was not using Tamer Distributions as an entity. The HCCC accepted that proposal and contended that the plaintiff “provided these details”. Mr Barnes responded by submitting that particular 1(a) of Complaint 2 was a very narrow issue depending upon the acceptance of Mr Rai’s or the plaintiff’s evidence as to whether the transaction occurred at all.

38. After dealing with these preliminary matters, the substantive submissions of the HCCC were put as to proof of the complaints. The first three of those paragraphs were those extracted in the HCCC’s written submission in these proceedings as representing the notice provided to the plaintiff of matters relied upon by the Tribunal at [134] and [136] of its decision) (see [97] of this judgment). The second paragraph of those submissions relied upon the concealment of Mr Rai as the person who sold the drugs to the respondent; the lies told by the plaintiff to the authorities about “how the transaction took place” and “what took place – what the respondent’s evidence was about the counterfeits” and the “further purchase of Viagra from Mr Rai which was paid for in June”.

39. In reply, Mr Barnes conceded that the particulars in (a)-(c) of Complaint 1 were enough to have alerted the plaintiff to make an inquiry with Pfizer and if he had the transaction would not have gone ahead. However, it was contended, without making this inquiry he could not have known the product was counterfeit. The plaintiff accepted that it was open for the Tribunal to find, with respect to particulars (a)-(c) of Complaint 1, that the plaintiff ought to have known the Viagra was not genuine. It was also accepted particular 3 should be read with particular 2.

34. As to Complaint 3, the plaintiff conceded that the plaintiff’s conduct amounted to “unsatisfactory professional conduct” and further accepted it was open to the Tribunal to find “professional misconduct”.

35. There was then an interval in the proceedings in which the Tribunal asked about protective orders before formally turning to that area. In the course of that discussion it was conceded by Mr Barnes, as to Complaint 2 (1)(a), that there could be no doubt the plaintiff told Mr Rai to prepare the invoice and therefore told Mr Rai about the cheque entry. However, it was submitted this was the only matter conceded to be untrue.

36. The oral submissions of the HCCC as to the protective orders commenced with the contention that the plaintiff knew that the Viagra was not genuine. On that basis it was said that there was a concession that cancellation would flow in that event.

37. In the alternative, it was submitted that the Tribunal should find that the plaintiff ought to have known that the Viagra was not genuine and in that event, cancellation should also be the consequence because “that suspicion or doubt or belief or even reckless thought, even though it may not meet the level of actual knowledge, is so serious when dealing with the responsibilities of a pharmacist, firstly, in buying medication, and then in distributing that medication – it’s so serious in terms of its conduct that that too can lead to cancellation”.

38. Counsel for the HCCC made reference to the decision of Barratt JA (with whom Macfarlan JA and Tobias AJA agreed) in Lee v Health Care Complaints Commission [2012] NSWCA 80 (“Lee”). Reliance was placed on [67] of Barratt JA’s judgment as representing the principles to be applied in the matter before the Tribunal. I extract that paragraph below:

Lack of dishonesty does not necessarily point to a need for some order less stringent than that which the Tribunal imposed. Cases of dishonesty are very serious. Cases of recklessness are also serious. This is particularly so where the protection of the public is at stake and the default is one that leaves patients exposed to a risk against which the practitioner is required by law to provide protection.

45. It was submitted that those principles were directly applicable to the plaintiff’s case and that “even if there was some level of disbelief below actual knowledge, even if it was reckless or a firm doubt or some real concern… protection of the public being at stake and, the potential exposure of risk to the public was so great that cancellation can flow”.

46. It was then contended by the HCCC that the plaintiff’s registration should be cancelled, even though it had been six years since the conduct, particularised in the complaints.

47. Reliance was then placed, with respect to the period of delay, upon [70]-[72] of Lee. It was submitted that the mere passage of time could not be relied upon to form a view that the misconduct was not going to happen again.

48. Given those submissions and the reliance by the Tribunal upon Lee in the impugned paragraphs of its decision. I extract [72]-[73] of Lee below:

Finally on this aspect, there is the point that emerges from the decision of this Court in Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630. Gleeson CJ, Meagher and Handley JJA there noted (at 637) that, despite the passage of four and a half years since the last complaint of misconduct, there was no explanation offered that would make it unlikely the misconduct would reoccur or to suggest that the practitioner had become a changed person. They said:

"In cases such as this, the Tribunal and this Court should not assume that the doctor has become a reformed person. As Walsh JA said in Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461; 84 WN (NSW) (Pt 2) 275 at 286:

"...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."

A finding of reformation thus cannot be made by reference merely to the passage of time without renewed misconduct.

49. The HCCC contended that the plaintiff had put firmly before the Tribunal that he was honest. This, it was submitted, was advanced on the basis of persuading the Tribunal to accept this evidence over that of Mr Rai. However, it was submitted, as to protective orders, that it was the plaintiff who was dishonest.

50. An example was given of the plaintiff indicating that he had paid by cheque when in fact he had paid by cash. One explanation advanced was that he wanted to hide the transaction. A further illustration was the failure of the plaintiff to disclose there was “a third transaction”. That was said to indicate that deliberate steps were taken by the plaintiff to hide and conceal his conduct because that information was only revealed when the bank statements were shown to the plaintiff. He was not candid.

51. It was also suggested that the plaintiff deliberately chose not to reveal the name Mr Rai at a critical time “when the TGA were making inquiries to find out what was wrong, where did this… Viagra come from?”. This suggested that the plaintiff might have traded upon his reputation for honesty to try and conceal the very conduct that he was involved in. That is why Complaint 2 is a very serious complaint because to provide false and misleading information to the TGA by a pharmacist is a very serious matter.

52. The following submission is then made by counsel for the HCCC:

It was a deliberate deception. There is no other explanation. It wasn’t fear or fright or panic. He had to turn his mind as to how he was going to explain a transaction that took place with Mr Rai. He had to go to his cheque books to find a cheque but to find an amount that might approximate an amount that he would say he paid for the Viagra that he bought from Mr Rai. So the respondent’s honesty is a very important matter and it is particularly important when this Tribunal considers protective orders.

53. Counsel for the HCCC then made submission as to the form of orders seeking cancellation for a period of 12-18 months before an application for reinstatement could be made. The alternative submission was for a period of suspension.

54. There was then a short adjournment granted on Mr Barnes’ application before he addressed on the protective orders. Mr Barnes submitted that, if a finding was made that the plaintiff knew the medication was not genuine, cancellation of registration “would follow”. It was acknowledged that, if a finding was made that the plaintiff “ought to have known”, then he understood cancellation “within a range of protective orders” was sought.

55. Mr Barnes then addressed the contentions regarding Lee (noted he had appeared for Mr Lee in the Tribunal stage of the matter but not in the Court of Appeal). He submitted that Mr Lee was not found to be dishonest but reckless.

56. Mr Barnes submitted that it does not follow in all cases “of either dishonesty and/or recklessness, there must necessarily follow a cancellation order”. It was submitted that there were degrees of recklessness. In any event, it was submitted by counsel for the plaintiff that the Tribunal should not find recklessness in the absence of any pleading of the complaint of recklessness, although it was accepted that a pleading of “ought to have known is, as a species of recklessness, pretty close”. It may be noted that the plaintiff submitted on appeal that this is an illustration of what Mr Barnes might have done in relation to the matters following outside the complaints the tribunal ultimately had regard to at [133]-[136] of the judgment below if he had been alerted to the prospect of those matters being taken into account. However, what counsel for the plaintiff below was, in fact, doing was responding directly to the HCCC submissions as to the appropriate protective orders (in reliance on Lee (which clearly concerned the implications of dishonesty in the making of protective orders).

57. Mr Barnes then submitted, contrary to the contentions advanced in the liability appeal as follows:

The conduct here was in relation to the wholesaling business. That is not to detract from the fact that he was a pharmacist, and I am not saying that they are completely separate – they are not, but he has sold the wholesaling business…

58. It was submitted that nothing had happened in the six years since the events complained of in relation to the plaintiff’s practice as a pharmacist per se.

59. As to the failure of the plaintiff to volunteer Mr Rai’s name to the investigators, it was submitted that “no-one asked him a direct question to that effect”. He was shocked when he found out that the Viagra was counterfeit. Not much weight should be placed upon that contention. However, Mr Barnes specifically addressed the “third transaction” between Mr Rai and the plaintiff. The plaintiff contended that the transaction did not occur. The evidence of Mr Rai in that respect should not be accepted.

60. Counsel for the plaintiff then directly dealt with the submissions of the HCCC as to “deliberate deception”. This submission was relied upon by the HCCC to demonstrate notice and was in the following terms:

The third matter is referred to as the deliberate deception of the TGA by the respondent. If, contrary to my submission, you find that the transactions described by Rai – Mr Rai – did occur, then the two invoices submitted by the respondent to the TGA are clearly false and misleading, because they don’t reflect the scale, as it were, of the transactions that he undertook with Mr Rai. What that reflects is an attempt by the respondent to understate the scale of his purchases of the medication. It is certainly not an attempt by him to deny that there was any purchase, and he couldn’t do that given that, in any event, he’d on-sold it to Symbion.

61. In addition to that extract relied upon by the HCCC the following further oral submission was made by Mr Barnes for the plaintiff immediately thereafter:

In my submission, it is not as bad when one considers the full circumstances, but my primary submission is that you wouldn’t accept Rai.

62. Mr Barnes made a submission regarding the form of the orders. That submission seems to have been inaccurately transcribed and would appear to be that cancellation should only be ordered if the Tribunal formed the view that the plaintiff knew that the Viagra was counterfeit. Alternatively, it was contended, if the Tribunal formed the view that he was reckless to a sufficient degree or that he ought to have known to a sufficient degree as to warrant serious action being taken then “perhaps a suspension for a period might be in order”. However, the Tribunal would not form the view that any of those things had occurred in that way.

63. It was then submitted that the Tribunal should have regard of the fact that the conduct occurred in the context of running a wholesale business and not in the day-to-day practice of the pharmacy. There was no evidence as to his actual capacity to manage a pharmacy. The plaintiff opposed any condition that he not engage in a wholesaling activity.

64. Mr Barnes then submitted that:

In terms of orders – other orders that should be made – there should certainly be a reprimand for what occurred. In terms of deterrence and upholding the standards generally of the “pharmacy profession” a suspension would be about as significant and as serious as you would go for the sought of period that my learned friend referred to of 3-6 months.”

FINDINGS OF THE TRIBUNAL

65. As to Complaint 1, the Tribunal made the following findings:

1. Particular 1 was admitted and found proven.

2. Particulars 2(a), (b) and (c) were found proven in so far as it was complained that the plaintiff ought to have known the Viagra was not genuine. However, the Tribunal was not satisfied that an inference could be drawn that the plaintiff knew the product was not genuine and, accordingly, found that aspect of the particulars not proven.

3. The Tribunal found particular 2(d) was not proven.

4. Particular 3 was found proven upon basis that the plaintiff ought to have known the product was not genuine but did not have actual knowledge to that effect.

66. Much of the Tribunal’s discussion of Complaint 1 is unnecessary to summarise because of the abandonment of grounds 4 and 5 of the appeal and the further confinement of the issues into primary issues in the manner described below.

67. As to Complaint 2, the Tribunal found particular 1(a) was proven but that particular 1(b) was not made out.

68. Tribunal concluded that the conduct found in particulars 1, 2 and 3 of Complaint 1 and particular 1(a) of Complaint 2 constituted unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the National Law. The Tribunal considered it was unnecessary to consider whether that conduct was unsatisfactory professional conduct within the meaning of s 139B(1)(l).

69. Some of the findings of the Tribunal in relation to particular 1(a) of Complaint 2 intersect with the issues on appeal. These relevant components are at [87]-[94], which are set out below:

[87] There can be no argument that Mr Attia provided false or misleading information to the TGA throughout the course of its investigation. Among other things, Mr Attia took some 10 days to supply the TGA with Mr Rai’s name and contact details, claimed the first payment was made by cash, and never disclosed the $86,000 bank transfer made to Mr Rai in June 2010.

[88] However, while it is clear that Mr Attia did not fully cooperate with the TGA, as framed, whether the particulars of Complaint 2 are established turns on whether the transaction described in the first invoice occurred and whether on 9 March 2010 Mr Attia purchased 2,200 units at a price of approximately $34.52 per unit, not 1,000 units at approximately $57, as he has at all times claimed.

[89] In relation to paragraph (a) of Complaint 2, there is no doubt that the transaction purportedly described in the invoice did not take place. Indeed, it could not have taken place because, as the TGA investigators discovered, Tamer Distribution did not exist. Moreover, payment was not made to anyone involved in the transaction by cheque, much less cheque no 1612. Nor was there a person called “Michael” involved in the transaction. And, if he existed at all, the mobile phone number purporting to be his had expired. In providing a document purporting to be a regular business record evidencing a transaction between Hillmear Trading and Tamer Distribution, of which the relevant particulars were set out in the “invoice”, Mr Attia clearly provided false information to the TGA.

[90] Was this information provided by Mr Attia with knowledge that it was false? For the following reasons, we have concluded that the only rational inference from the evidence was that, in providing this invoice, Mr Attia sought to conceal critical details and the true nature of the transaction.

[91] First, when he was initially interviewed, Mr Attia concealed the true identity of the supplier of the subject Viagra®. He knew Mr Rai. Despite this, by giving the invoice to the investigators he laid down a false trail. It must be said that Mr Attia is no criminal mastermind. Had he given any thought to what he was doing in providing that information, he would have realised that it was likely that the investigators would check the particulars on the invoice because one of the objectives of their investigation was to find the source of the counterfeit drugs. The supplier of the drugs to Mr Attia was bound to be the target or part of the targeted supply chain. Mr Attia, had he thought this through, would have realised that the investigators would seek to identify “Michael” and “Tamer Distribution”, and would probably obtain bank and telephone records relating to the transaction on the “invoice”.

[92] Second, although Mr Rai has obvious credibility issues as a witness, he gave evidence that all the details on the invoice were false. Much of what he says about that is corroborated both by objective evidence, such as the non-existence of Tamer Distributions, the fact that cheque no 1612 was paid into an account of one of Mr Attia’s associates, not to Mr Rai, and Mr Attia’s own belated admission that he did not pay Mr Rai by cheque but by cash.

[93] Third, because of the fact that Mr Rai’s account is corroborated by objective evidence to a significant extent, whereas, except where his account coincides with Mr Rai’s, Mr Attia’s is not, our assessment is that where their accounts conflict, Mr Rai’s account is more likely to be reliable than Mr Attia’s. This is not to say that we accept Mr Rai’s evidence without reservation. But our impression is that throughout this hearing, Mr Attia has been at pains to minimise his own and to maximise Mr Rai’s culpability in relation to the transaction.

[94] Fourth, when cross-examined about the invoice, Mr Attia admitted that the document was false but, despite admitting that he had paid in cash not by cheque, he denied attempting to mislead by representing that he had paid by cheque. He claimed that he was providing “information” and the problem was not the “financial aspect” but the harm or potential harm that was caused by the drug. This was entirely unresponsive to the question and appears to have been an attempt to evade the issue. The very point is that he had not paid by cheque yet made that representation. The only rational inference to be drawn from that was that he had hoped that, because he had made it look like one with details such as cheque numbers and other details, the invoice would be accepted by the investigators as a genuine business record, whereas it was not. When further pressed on this during the cross-examination, he admitted that he had “in that light”, deliberately sought to mislead the investigators.

70. The Tribunal did not specifically make a finding in relation to Complaint 3. The Tribunal did, however, pose a question, by reference to s 139E of the National Law: “Does some or all of the conduct found constitute unsatisfactory professional conduct amount to ‘professional misconduct’?”.

71. In answering that question the Tribunal posed a further question: “Is the conduct of a sufficiently serious nature to justify suspension or cancellation of [the plaintiff’s] registration?”. This was a reference to the definition of unprofessional conduct in s 139E(a) of the National Law. In that respect, the Tribunal identified that the conduct referred to in this question was the conduct found to constitute unsatisfactory professional conduct, in relation to Complaints 1 and 2, and then proceeded to consider whether that conduct was sufficiently serious to justify the sanction of suspension or cancellation on an objective basis having regard to matters such as the nature and duration of the impugned conduct, the existence of any mitigating factors and an assessment of where the offending conduct fell within the spectrum of unsatisfactory professional conduct. The Tribunal referred in that respect to Sabag v Health Care Complaints Commission [2001] NSWCA 411 (“Sabag”) at [99].

72. The Tribunal found that the conduct described in “each of particulars 2 and 3 of Complaint 1 and particular 1(a) of Complaint 2 [were] sufficiently serious to justify the suspension or cancellation of the [plaintiff’s] registration”. Further, the Tribunal was satisfied that the conduct described in particular 1 of Complaint 1, when considered together with the balance of the particulars found to constitute unsatisfactory professional conduct, was sufficiently serious to justify the suspension or cancellation of the plaintiff’s registration.

70. Whilst there was no express finding, it must follow that the Tribunal found, with respect to the proven conduct, the plaintiff’s conduct amounted to professional misconduct.

71. The Tribunal then proceeded to consider a further question: “What, if any, protective orders should be made?”. After considering the orders sought by the HCCC, it commenced consideration of that question by noting three matters:

1. The disciplinary powers available to the Tribunal where a complaint is found proven are to be found under Subdiv 6 of Div 3 of Pt 8 of the National Law. Those powers included the suspension or cancellation of the practitioner’s registration where the practitioner was found guilty of professional misconduct.

2. Notwithstanding findings as to proven conduct justifying the suspension or cancellation of the plaintiff’s registration, it did not follow that such an order must be made.

3. While the safety of the public is a paramount consideration, any protective order must nonetheless be commensurate with the seriousness of the impugned conduct and, in determining an appropriate order, consideration must be given to the probability of the reoccurrence of that conduct and the nature and extent of any justifiably apprehended harm.

75. The consideration of those issues, and in particular the appropriate protective order, attracted attention in the second to the plaintiff’s appeal (which will be turned to shortly). It is convenient then to extract parts of the Tribunal’s discussion of the proposed protective orders and its findings, in that respect, in full at [123]-[126] and [131]-[137] below:

[123] The Commission urges the Tribunal to order the cancellation of Mr Attia’s registration and order that he be disqualified from being registered for a period of 12 to 18 months. In the alternative, the Commission seeks the suspension of Mr Attia’s registration for period of three to six months and the imposition of a number of conditions.

[124] The Commission argues that even if it is found that Mr Attia ought to have known that the Viagra® was counterfeit, as opposed to having actual knowledge of that fact, this warrants the making of a cancellation order. In support, the Commission cites the following passage from Lee v Health Care Complaints Commission [2012] NSWCA 80. ...

[125] While the Commission acknowledges that close to six years have passed since Mr Attia’s involvement in the supply and distribution of counterfeit Viagra®, it argues that, of itself, that does not establish that Mr Attia is reformed, citing in support the comment made by Barrett JA in Lee at [73]: “A finding of reformation thus cannot be made by reference merely to the passage of time without renewed misconduct”.

[126] The Commission submits that it is highly relevant that despite claiming to have reformed since 2010, Mr Attia had continued to conceal the full extent of his involvement with Mr Rai, as illustrated by his failure to volunteer information about the transfer of over $86,000 to Mr Rai. It contends that his lack of candour in his dealings with the TGA provides further support for its submission that the protection of the public requires cancellation, or at the very least the suspension of Mr Rai’s registration order.

…

[131] Notwithstanding our finding that the conduct found proven was sufficiently serious to justify the suspension or cancellation of Mr Attia’s registration, it does not follow that such order must be made. (See, HCCC v Jamieson [2014] NSWCATOD 56 at [100].) Cancellation and suspension are but some of the orders available where a health practitioner has been found guilty of professional misconduct. While the safety of the public is the paramount consideration, any protective order must nonetheless be commensurate with the seriousness of the impugned conduct. In determining the appropriate order, consideration must also be given to the probability of recurrence of that conduct and the nature and extent of any justifiably apprehended harm.

[132] We accept as argued for Mr Attia that it is unlikely he would again deal with a supplier of pharmaceutical products unless first taking steps to satisfy himself that they held the appropriate licence or authority. We also think it unlikely that in any future dealings with a supplier that he would fail to make enquiries even if there was a hint that the offered pharmaceutical goods might be counterfeit. As Mr Attia points out, his dealings with Mr Rai has been a very expensive error of judgement and cost him a multi-million dollar wholesaling business.

[133] We are less confident, however, that Mr Attia will act with complete candour and make full disclosure in future dealings with those charged with the responsibility of overseeing the regulation of the pharmaceutical sector. Pharmacists work in a heavily regulated sector. Parliament has decided that the regulation of the sector is necessary to protect the public. The health and safety of the public demands that health practitioners fully cooperate with those charged with responsibility for overseeing and regulating the health sector, especially where, as in this case, it involves a matter which has the potential to put at risk the health and safety of consumers.

[134] As found by us, Mr Attia gave false and misleading information to the TGA in respect of the first invoice. In addition, while not the subject of the referred Complaints, on a number of occasions throughout the investigations conducted by the TGA and the HCCC, not only did Mr Attia knowingly mislead investigators but he failed to disclose information relevant to the investigation. His failure to disclose that he paid over $86,000 to Mr Rai in June 2010 is but one example. The explanation he gave for not making that disclosure before being presented with Mr Rai’s bank records in 2015 — that he was not asked about that transaction — is unimpressive.

[135] While possible that concern that his registration might be jeopardised will be sufficient to ensure that in all future dealings with regulators, Mr Attia will act with candour and make all necessary disclosures, we are not confident at this stage that this will occur. In reaching that conclusion we note that our misgivings about Mr Attia’s honesty is at odds with those people who have provided character references and had the advantage of knowing Mr Attia over a long period in various capacities. We also have taken into account that apart from the conduct relating to the investigation of the supply of the counterfeit Viagra®, there is no evidence to suggest that Mr Attia has not been frank and open in his dealings with the authorities charged with the oversight of the pharmaceutical sector.

[136] We have decided nonetheless that cancellation, not suspension, reprimand or a fine is the appropriate order. In reaching that decision we have taken into account that some of the matters discussed above, relating to Mr Attia’s dealings with authorities, were not the subject of the Complaints referred by the Commission. That conduct is nonetheless relevant to the probability of the recurrence of the conduct of the type found proven, described in particular 1(a) of Complaint 2.

[137] In addition, we have decided to exercise the discretionary power conferred by the National Law, to order that Mr Attia not apply for review of the cancellation order for a period of 12 months from the date of this decision. We consider a period of 12 months to be appropriate given the seriousness of the conduct found proven together with our concerns about whether at this stage Mr Attia will act with candour in future dealings with authorities charged with the oversight of pharmacists and the pharmaceutical sector.

76. The Tribunal made orders cancelling the registration of the plaintiff as a pharmacist under s 149C(1)(b) of the National Law and pursuant to s 149C(7) found that the plaintiff must not apply for review of his cancellation within 12 months of the date of the Tribunal decision. Hence, the cancellation took effect on the 23 December 2016.

77. The decision of the Tribunal was published in the absence of the parties. Soon after its publication the solicitor for the plaintiff sought consent of the HCCC to vary the operative date of cancellation to 1 March 2017 so as to allow the plaintiff to commence an appeal and seek a stay in this Court. In so doing the solicitor invoked r 9(1) of the Civil and Administrative Tribunal Regulation 2013 (NSW) and the “slip rule.” The HCCC opposed the variation principally upon the basis that it did not fall within the operation of the slip rule.

78. Consequently, the plaintiff brought an application before the Tribunal seeking to have the date of the operation of the orders of the Tribunal altered under the slip rule. That application came before the Principal Member of the Tribunal and was refused: Health Care Complaints Commission v Attia (No 2) [2017] NSWCATOD 25 (it may be noted that the Principal Member amended the medium neutral citation for the Tribunal decision to [2016] NSWCATOD 309, no doubt to reflect the disposition of the matter was in the Occupational Division of the Tribunal). It may be noted that one reason given for the refusal of that application was that the plaintiff had consented to have the complaint being dealt with in a “one-stage hearing”, that is, without a separate hearing as to appropriate protection orders, in the event the Tribunal made affirmative findings in relation to the complaints proven.

SUBMISSIONS OF THE PARTIES

Submissions for the plaintiff

The liability appeal

79. In summary, the liability appeal was advanced by written and oral submissions on the following bases:

1. Notwithstanding that Complaints 1 and 2 alleged the plaintiff was guilty of unsatisfactory professional conduct under ss 139B(1)(a) and (l) of the National Law, the Tribunal’s determination that the plaintiff had engaged in unsatisfactory professional conduct was entirely predicated upon the determination made under s 139B(1)(a).

2. Complaint 3 was predicated upon the provisions of s 139E which depended for its operation, upon a finding of unsatisfactory professional conduct, so that the determination made under that section to the effect that the cancellation of the plaintiff’s registration was warranted stemmed from the same tainted source namely the Tribunal’s determinations under s 139B(1)(a).

3. The provisions of s 139B(1)(a) only operate with respect to conduct of a registered health practitioner “in the practice of the practitioner’s profession”. None of the conduct complained about constituted the practice of the practitioner’s profession and consequently the Tribunal had no power to discipline the Tribunal for conduct in that respect and more particularly to make adverse findings about unsatisfactory professional conduct and discipline the plaintiff for professional misconduct.

4. The law in NSW regulates the conduct of a pharmaceutical wholesaler or the wholesale distribution of therapeutic and pharmaceutical goods differently to the regulation of pharmacists.

5. Pharmacists are regulated under the National Law whereas pharmaceutical wholesalers are regulated under the PTGA and the PTGR.

6. The legislative regimes under the National Law and for the regulation of poisons and therapeutic goods evinced an intention that those activities will be dealt with separately and in the case of penalties in the PTGA more severely.

7. An objective test or assessment was required to determine whether the conduct of an employee and/or office holder of a corporate pharmaceutical wholesaler was conduct by a person in the practice of pharmacy. This did not hinge on whether or not the employee and/or office holder of the corporate pharmaceutical wholesaler was a pharmacist.

8. It was accepted that both the National Law and the PTGA may apply. However, by reference to codes of conduct operating in the pharmaceutical industry (as referred to in the following summary of the defendant’s submissions), it was submitted that “practice” means any role whether remunerated or not in which the individual uses their skills and knowledge as a practitioner in their regulated health profession. What that definition is directed to is the profession “in which they are regulated”. It may well be the case that the conduct, the subject of the complaints, offends that standard and the National Law more generally but it only does so in the context of the fit and proper person requirements dealt with in s 139B(1)(l). The code of conduct makes statements of conduct generally and does not influence the specific parts of the National Law by which the conduct is regulated.

9. The question of the operation of s 139B and the National Law cannot turn upon whether the plaintiff actually looked at the counterfeit box or not. That serves to emphasise the fundamental point that what the plaintiff was doing was not in a practitioner’s role but in another capacity.

10. There was no evidence that any of the conduct alleged against the plaintiff was conduct of the plaintiff in the practice of his profession. Rather the evidence established his conduct was that of an employee and/or officeholder of a corporation conducting business as a licensed pharmaceutical wholesaler namely Hillmear. It was that company which sold the counterfeit Viagra to another company which was a licenced wholesaler which, in turn, distributed the product to a public hospital.

11. In this case the conduct engaged in by the plaintiff was clearly not that involving the practice of a practitioner’s profession because:

1. The plaintiff was undertaking the conduct as a director of the pharmaceutical wholesaler not as a pharmacist;

2. The impugned conduct would be unlawful for a pharmacist to perform because a pharmacist is prohibited with criminal sanctions from wholesaling pharmaceutical products; and

3. The decision of the Tribunal resulted in an incongruous result in that the cancellation orders did not prevent the plaintiff from acting as an employee and/or office holder of a corporate pharmaceutical wholesaler because that role does not require him to be a registered pharmacist.

80. In addition, Mr Pesman made the following particular oral submissions:

1. The Tribunal did have power to deal with the conduct of the plaintiff under s139B(1)(l) but chose not to do so.

2. The decision in Childs v Walton [1990] NSWCA 41 (“Childs”) may be distinguished on two bases:

1. The conduct in Childs was conduct in the profession in question because that is how the two persons entering into a relationship, referred to in that matter, met;

2. The Court did not have regard to the alternative forms of the relevant disciplinary provisions such as been argued in this case

3. In relation to New South Wales Bar Association v Cummins [2001] NSWCA 284 (“Cummins”) at [52] (per Spigelman CJ), the National Law makes provisions for the discipline of a pharmacist in a number of different ways. In circumstances where, as a pharmacist, the plaintiff could not have lawfully engaged in the impugned conduct, this militates against the conclusion that what he was doing was in the practice of pharmacy for the purposes of Complaint 1. It was submitted that the same argument holds good in relation to Complaint 2 (although it is weaker), if the conduct is seen as a single course of conduct, particularly in circumstances where the TGA regulated the operations of the wholesaler, rather than a pharmacist under the National Law.

Protective orders appeal

81. In oral submissions the plaintiff advanced two primary contentions as to why he was denied procedural fairness:

1. Notwithstanding the acquiescence by counsel for the plaintiff at first instance to a one stage process in which liability and “penalty” were dealt with together, it was “mandatory” in the circumstances of this matter for there to be a two stage process, particularly having regard to the variety of findings available to the Tribunal on liability and the range of penalties which may be ordered in the light of such findings. This submission was predicated upon the judgment of this Court in Bryant v Hawkesbury Radio Communication Co-operative Society Limited [2014] NSWSC 848 (“Bryant”) at [64]-[65] (per Sackar J). The plaintiff contended that this submission was “reinforced and emphasised” by the second contention below.

2. The Tribunal took into account matters which did not form part of the complaints without the plaintiff being given notice of the same and afforded an opportunity to respond to those matters before a penalty was imposed: Veal v The Minister for Immigration, Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72 (“Veal”).

82. The two stage process was mandatory in the particular circumstances of the case. Mr Barnes, counsel for the plaintiff at first instance, was well aware of the need to restrict the Tribunal to the case put against the plaintiff. By reference to page 330 line 7 of the transcript of the proceedings, the Court was invited to infer that he would have made the same point vis-à-vis the Tribunal’s protective order findings if he was alerted to the prospect of such findings being made outside of the complaints. The difficulty was that, until finding was made as to whether the plaintiff had knowledge or ought to have had known the Viagra was counterfeit, no submission could properly be made on penalty. This is particularly so where the Tribunal chose deregistration as the appropriate penalty.

83. As to the second contention, it was submitted that the Tribunal proceeded on the basis that the respective parties below would make submissions on penalty upon the basis that everything the HCCC asserted was made out. This was the “genesis” of the error. It was possible to make submissions on that basis but not that the plaintiff was “guilty of some things, because the range of variability is too high”. It was accepted the plaintiff’s counsel made no complaint about this approach and his acceptance explains the very short submissions made on penalty. However, the plaintiff was not put on notice by the Tribunal that the basis for the making any protective orders would be beyond the particulars of the second complaint. It was not sufficient to discharge the requirements of procedural fairness (in respect of matters falling outside the complaints) for counsel for the HCCC to make submission at the “heel of the hunt”.

84. Central to this aspect of the complaint, in this respect, was the Tribunal’s finding at [136], which considered the plaintiff’s conduct for the purposes of assessing the probability of reoccurrence. This paragraph had a connection to paragraphs 133 to 135 concerning the candour of the plaintiff in his dealings with those responsible for the overseeing of the regulation of pharmaceuticals.

85. Further, the plaintiff submitted that the finding at [136] was unable to be viewed in isolation and must be construed as having been taken into account by the Tribunal in making findings of unsatisfactory professional conduct and professional misconduct relying upon Sabag at [105]-[108].

86. Additionally, it was contended that the finding by the Tribunal at [136] related to “a number of occasions” yet identified “but one example” (it is not clear what the basis for this submission was in light of the terms of paragraph [136] but it is presumably a reference to [134]). It was submitted that the Tribunal failed to provide the plaintiff with details of the occasions the Tribunal was relying upon in its findings: Smith v New South Wales Bar Association (1992) 176 CLR 256 (“Smith”) at [269].

87. Lastly, it was contended that the Court should consider, in evaluating whether there was a denial of natural justice, that the Tribunal had made serious factual findings that were adverse to the plaintiff’s interests.

88. It should be noted that no separate submission was advanced with respect to ground 7 as it became engulfed in the two issues raised by the plaintiff. It may be noted that, in written submissions, the plaintiff contended that the Tribunal considered a significant amount of material and allegations adverse to the plaintiff not forming part of (nor particularised) in relation to the second complaint. Reference was made to the following: the investigations conducted by the TGA (at [11]-[20] of the Tribunal decision); the investigations by Pfizer (at [21]-[23] of the Tribunal decision) and the plaintiff’s knowledge of whether the relevant invoice was false (at [90]). None of those issues were pressed at the hearing of the appeal.

1. In any event, as the Tribunal recorded, the plaintiff accepted in cross-examination that, in the light of those considerations, he had deliberately sought to mislead the investigators. It may also be noted that, under cross-examination, the plaintiff agreed that he had lied when he informed investigators that he had paid the first invoice by cheque and further lied when he confirmed the fact that he had paid by cheque to the investigators when enquiries were made. (It was also put to the plaintiff in cross-examination that he was asked to check the details of cheque and that in his reply he had misinformed the investigators).

2. In oral submissions, it was suggested that, by these lies, the plaintiff was attempting to provide a “trail” and had used his reputation for honesty to conceal the truth of the transaction involved in the first invoices. It was ultimately put in oral submissions that there was a “deliberate deception”. These submissions were put in a context of challenging the defendant’s honesty. The plaintiff’s counsel below directly engaged with the submission as to deliberate deception and accepted that, if the transactions associated with the invoices were as described by Mr Rai (as accepted by the Tribunal) then the invoices were clearly false and misleading to the TGA.

3. As noted in the aforementioned exchange of submissions the particulars of Complaint 2 alleged that the plaintiff had provided false and misleading information to the TGA. The Tribunal clarified during oral submissions, without demur, that what it was required to consider in that respect was whether the plaintiff had knowingly participated in the falsification of the invoices.

193. Senior counsel for the plaintiff contended that the denial of procedural fairness may be found because any notice given to the plaintiff was late in the proceedings. He described the notice arriving at the “heel of the hunt”. That description is not inaccurate except that it omitted reference to the extensive cross-examination on those very factors, without objection, during the course of the proceedings. Nonetheless, it may be accepted that the formulation of the issues, albeit with clarity, occurred in the final written and oral submissions of the HCCC.

194. However, it is clear that counsel for the plaintiff below understood the issues raised and engaged with them in turn. He sought and was granted a short adjournment of the proceedings before making submissions as to the protection orders. There is nothing to suggest a longer adjournment would not have been granted if sought by the plaintiff (there was an overnight adjournment, after the close of evidence, before taking submissions). Ultimately, Mr Barnes acknowledged the issues raised by the HCCC including the non-particularised factors and engaged in terms with those submissions of the HCCC. He litigated the case for his client in reply including as to the non-particularised factors.

The Second Limb: Two Stage Process

195. It is important to bear in mind when considering this question that the plaintiff accepted before the Tribunal that the determination of the complaint should be undertaken in the proceedings without a two stage process. That factor does import the issue raised in relation to the liability appeal vis-à-vis the plaintiff adopting a different case on appeal than adopted below although that factor has less potency in this area as I will find the grounds of the protective orders appeal, framed in terms of question of procedural fairness, may be brought as of right.

196. However, this consideration introduces a further question as to how the doctrine of procedural fairness might operate in such a context (that is, consent by counsel for the procedure adopted), both in terms of the application of the “hearing rule” and other issues such as waiver and election. I will return to those questions after a consideration of the merits of this aspect of the protective orders appeal.

197. The foundation of the plaintiff’s contentions in this respect was a passage from the judgment of Sackar J in Bryant at [65] as follows:

In cases like Hall and Forge v ASIC (2004) 52 ACSR 1, where different results on penalty might flow from which particular charges are made out, it may well be that a two stage process is mandatory. If there is a range of allegations (some of which may involve say dishonesty, others raising no higher than reckless behaviour), it is obvious that very different penalties may flow

198. It may be observed, at once, that Sackar J’s judgment does not support a proposition that in all disciplinary proceedings a two stage process is mandatory. In my view, his Honour’s observations are to the effect, in the particular circumstances described in the passage from his judgment, that a two stage process may be required. Thus, his Honour made the following observations in [67] as follows:

The underlying assumption, it seems to me, in the debate over whether a one stage or two stage approach is appropriate, proceeds on the basis that one has been clearly informed of the charges so as to be able to predict substantively different penalties depending upon the findings of guilt. That quite simply had not happened by the date of the meeting.

199. His Honour ultimately held in Bryant that it was not possible on the facts of the case to come to a decided view as to whether a one stage or two stage process would be necessary having regard to the relevant principles stated in Battle v Bundagen Co-operative Ltd (No 2) [2011] NSWCA 38 (“Battle”). His Honour came to the view that particulars in the matter were so inadequate that it was impossible to come to any conclusion as to whether Mr Bryant could be said to be guilty or not (at [63]). Sackar J stated that “[u]ntil it is clear what the precise allegations are, I do not think a Court is able to come to a view as to the appropriate process that should be followed” (Bryant at [64]). However, his Honour stated that “properly particularised, it is not inconceivable that a one stage approach may have been appropriate” (at [66]).

200. In this light, it is appropriate to pay closer attention to the authorities relied upon by his Honour. I will do so in chronological order commencing with Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 (“Hall”) and then proceeding to Forge v Australian Securities and Investments Commission (2004) 213 ALR 574; [2004] NSWCA 448 (“Forge”) and Battle.

201. In Hall at 382, Hutley JA stated that, even if Mr Hall did know what was alleged against him, namely, that everything which had been brought out in the inquiry collectively amounted to misconduct was the subject of the charge (Mr Hall contended that he was not aware of the misconduct with which he had been charged), it was nonetheless necessary for the domestic tribunal determining the charges against him to provide an opportunity for him to address on penalty after he knew what the misconduct with respect of which he had been found guilty. His Honour found that “the right to be heard in palliation of misconduct is established by authority nearly a century old” and that the dictum in Annamunthodo v Oilfields Workers’ Trade Union [1961] AC 945 at 950 was not sound in circumstances where the Tribunal may impose a wide range of penalties.

202. Samuels JA in Hall (at 391) stated that the disqualification faced by Mr Hall was a grave matter and “although he may be supposed to have been aware of the penalties which might be imposed on him, and of other consequences, he should, in my opinion, have been distinctly offered the opportunity to speak in mitigation”.

203. Later in Malone v Marr [1981] 2 NSWLR 894 (“Malone”) Holland J (at 902) stated that the effect of the majority decision in Hall was that the requirements of natural justice were not satisfied by showing that, when the accused before the Tribunal was called to answer charges, he knew the Tribunal had power to impose a penalty upon him if he should be found to be guilty or that he could have addressed the Tribunal on matters going to the question of punishment at the same time as he was heard upon the charge made against him if he had chosen to do so.

204. In Forge, McColl JA (with whom Handley and Santow JJA agreed) found, in reliance on Hall and Malone, that matters relied upon by ASIC in that matter were “insufficient to displace the appellants’ right to be heard on the issue of penalty once they were aware of the contraventions which had been found against them” (at [424]).

205. The factors relied upon by ASIC were referred to at [422] as follows: the appellant knew from the statement of claim the penalties sought, the penalties sought were confirmed in the opening address for ASIC that the appellant had been informed by the trial judge that he did not have any evidence as to the issue of penalty and the written submissions of ASIC had addressed the issue of penalty.

206. Her Honour found that it was incumbent upon the primary judge to approach the contravention issue and penalty in a two stage process distinguishing in that respect the approach adopted in Howe v Administrative Decisions Tribunal of New South Wales [2003] NSWSC 157 (per Dunford J) and Howe v Administrative Decisions Tribunal of New South Wales [2003] NSWCA 120 (per Giles JA). Santow JA also referred to those judgments as earlier mentioned, in Battle.

207. The decision of the Court of Appeal in Battle ultimately turned upon whether a special resolution to expel Mr Battle which was passed by a general meeting of the Bundagen Co-operative conformed with a rule within the rules of the Cooperative. There was, however, a discussion of the requirement for a two stage process.

208. Hodgson JA found it was unnecessary for him to rule on the question of natural justice and, in that respect, whether a two stage process was required in the hearing of the expulsion of Mr Battle (at [67]). His Honour did, however, refer, with approval, to the judgment of Campbell J in McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470 at [125] where Campbell J (adopting the judgment of Spender J in Barnes v Australian Telecommunications Commission (1989) 25 FCR 283; [1989] FCA 47 at 290-291) found there was “no rule of law to the effect that it is not possible for there to be a single hearing which addresses both questions of guilt and on a contingent basis, questions of penalty”

209. It was in that context that Hodgson JA distinguished Hall and Forge upon the following basis (at [66]):

I agree with Campbell J that there is no rule of law mandating a two-stage process in all circumstances. In cases like Hall and Forge, where there are both a substantial number of different findings on guilt that could be made, and also a considerable range of consequential penalties that could be imposed, it is generally the case that natural justice does require first a determination of what findings are made on guilt, and second an opportunity to be heard concerning the range of possible penalties. Otherwise, it is not possible for submissions concerning penalty to be appropriately focussed. However, in my opinion, if for example there were only two possibilities on guilt, that is, either guilty or not guilty on one charge, then it could be that submissions concerning penalty could be appropriately focussed in a single-stage hearing. And where, as in this case, there are only two possible results on "penalty", that is, expulsion or non-expulsion, again it may be that submissions concerning penalty could be sufficiently focussed in a single-stage hearing.

210. Sackville AJA in Battle at [95] found it was difficult to understand, in that case, where the allegations involved a large number of possible combinations and permutations of detrimental conduct, how Mr Battle could have a reasonable opportunity to argue against expulsion when he never knew the precise case he had to meet on that issue.

211. Returning to the judgment of Giles JA in Howe, his Honour, stated (at [14]) that Dunford J was unarguably correct in finding that, whilst it was generally desirable that addresses on penalty follow the determination of guilt, the rule was not “inflexible” and that, provided there was ample opportunity to address on penalty there was no breach of the rules of natural justice or procedural fairness. In that matter, he considered that the claimant had had the “fullest opportunity to address on penalty”.

212. By the time of the judgment in Bryant, three judgments of the Court of Appeal had expressed views as to the question of a two stage process. One was the judgment in King. The second judgment was that of Basten JA in Lucire. Handley AJA and McColl JA agreeing. The third was the judgment of Basten JA in Sudath.

213. In King, Handley AJA found in that matter that there was no breach of the common law duty of procedural fairness as the appellant and his advisors could not have been in any doubt as to the allegation of professional misconduct (at [185]) but that the appeal should succeed because, by reference to Forge and Hall, the Tribunal had erred by not publishing its findings and giving the party an opportunity to adduce evidence and make submissions as to appropriate orders. There was no elaboration in Handley AJA’s judgment as to the reasons for that conclusion. The judgment of McColl JA, in the majority, did not seem to cast any further light upon that issue.

214. In Lucire, Basten JA stated at [60] as follows:

The suggestion that intervention by the Court in the present matter would carry some general and unfortunate consequences for future hearings in the Tribunal must be rejected. The practitioner calls in aid well-established principles of procedural fairness, the application of which will vary from case to case. Whether a separate hearing will be required in any particular case will depend upon such factors as the number and complexity of the complaints or particulars thereof, the manner in which the case is conducted and the wishes of the parties in respect of further evidence and submissions on protective orders.

215. In Sudath Basten JA (at [25]) discussed the decision in King as follows:

King is not authority for such a universal proposition: the need for a separate hearing on the appropriate disciplinary orders will depend upon the nature of the complaint and the circumstances of the particular case. In relation to complaint 1, the fact of the convictions and criminal finding were admitted: the only issue was the appropriate disciplinary order. In respect of complaint 2, there was a dispute as to the substance of the complaint. However, it may not have been necessary for there to be a separate hearing in respect of the appropriate orders and such a course might well be both inappropriate and impractical. Findings as to the basis of lack of good character will often have immediate and important significance for the form of the order. If, at the completion of the hearing, an adjournment is necessary where that was not anticipated at the commencement of the hearing, that can occur. There is no legal requirement for such a course in all cases; indeed character and conviction complaints are unlikely candidates for such a procedure.

216. It will be seen from the foregoing discussion that the plaintiff’s contention, in this respect, may not be accepted if it is advanced as a universal proposition that a two stage process must have been adopted in the present matter because the matter concerned a disciplinary hearing, even if dealing with potentially severe and substantial penalties for the plaintiff.

217. A two stage process is no doubt a desirable course particularly where the penalty of deregistration would have substantial consequences but, in order to demonstrate legal error occasioned by a failure to afford procedural fairness, it was necessary for the plaintiff to demonstrate that the nature of the complaint (the number and complexity of the complaints and particulars thereof) and the particular circumstances of this case (including the manner in which the proceedings were conducted and the attitude of the parties) warranted a conclusion that, in the absence of a two stage process, the plaintiff was denied procedural fairness.

218. In the light of the aforementioned statement of principles. I have come to the view, that the adoption of the single stage process in the proceedings before the Tribunal in this matter did not deny the plaintiff procedural fairness for the following reasons:

1. By final submissions, the contest as to the complaints had significantly narrowed. As to Complaint 1, the plaintiff admitted particular 1 and with respect to particulars 2(a)-(c) and 3, the plaintiff accepted that the Tribunal may find that the “he ought to have known” for the purposes of the complaint. In other words, the plaintiff conceded that the Tribunal could treat, as proven, the particulars of Complaint 1 so far as it was alleged that the plaintiff had engaged in the impugned conduct in Complaint 1 (other than particular (d)), he “ought to have known”. Complaint 2 was contested, but it was conceded as to particular 1(a) that the plaintiff had told Mr Rai to prepare the first invoice including the cheque information and, hence, the plaintiff did give false information to the TGA. Complaint 3 was treated as a product of whatever conclusion was reached in relation to Complaint 2 (the same approach was adopted in these proceedings)

2. Thus, in terms of the complaints particularised, the issue arising by the stage of final submissions was whether the plaintiff was guilty of knowingly purchasing and distributing Viagra which was not genuine, as particularised, and whether he provided false and misleading information to the TGA, as particularised, in relation to the first and second invoices save for his concession as to the first invoice.

3. The aforementioned non-particularised factors or elements concerned only the protective orders which may have been made. It is plain from the initiating process that the HCCC sought the cancellation of the registration of the plaintiff. It was equally clear that, in the circumstances the matter, if the Tribunal rejected that aspect of the complaint that the plaintiff knew the Viagra was not genuine and found in the alternative that the plaintiff ought to have known that the cancellation of the registration was nonetheless sought. Counsel for the plaintiff understood that position. He accepted the cancellation of registration would follow if a finding that the plaintiff knew the medication was not genuine was made but that if the alternative finding that the plaintiff “ought to have known” was made the cancellation became one penalty option. He contended that, if a finding was made to a “sufficient degree” to warrant serious action in that respect, then suspension may be considered by the Tribunal rather than cancellation. He accepted that a reprimand may be made in addition to suspension to uphold the standards of the profession and for deterrence.

4. This limitation to the parameters for the making of protective orders needs to be seen in light of the further concession made by the plaintiff that the Tribunal would be entitled to find, upon his concessions, that the plaintiff’s conduct amounted to “unsatisfactory professional conduct” and that it was open, in relation to Complaint 3, for the Tribunal to find professional misconduct.

5. There is no suggestion that the plaintiff did not have an opportunity to call evidence in mitigation or, as described in Hall, palliation. In fact, the plaintiff did call such evidence in mitigation and gave evidence himself in defence of the complaint as well as the non-particular elements earlier discussed.

6. It is important to recall that procedural fairness requires a fair hearing, not a fair outcome: King at [3]. However, the plaintiff was successful in prosecuting his defence of every contested element of Complaint 1 and Complaint 2(1)(b). It follows that the Tribunal ultimately came to assess penalty essentially upon the conduct conceded by the plaintiff in relation to Complaint 1 and its findings as to the proof of Complaint 2(1)(a) (as earlier noted this had been the subject of concessions by the plaintiff). To this may be added, as earlier noted, the plaintiff’s concession as findings of unsatisfactory professional conduct and unprofessional conduct. That subject matter was expressly the subject of notice and litigated by the plaintiff including the calling of evidence and an effective acceptance that the appropriate penalties (in addition to a reprimand) lay between suspension and the cancellation of registration.

1. It is understandable in that light that much of the plaintiff’s focus was upon the non-particularised elements. I have found the plaintiff was not denied procedural fairness as to those matters, sufficient in my view to warrant a conclusion that a single stage process was sufficient to meet the requirements of natural justice. The focus came as to the additional considerations concerning the risk of reoffending based on issues of honesty or concealment about which the plaintiff had notice and as earlier discussed not only litigated in the sense of submissions but in evidence given during the proceeding.

219. When attention is also given to the procedure adopted by the Tribunal – compartmentalising submissions strictly along the lines of liability and protective orders – the particular circumstances of the proceeding do not warrant the conclusion that the plaintiff was denied procedural fairness by a one stage process.

220. That is not the end of the discussion as there is a further consideration bearing upon this aspect of protective orders appeal to which I will now turn: the acceptance by counsel for the plaintiff of a one stage process.

221. I will turn firstly to the issue of waiver or election.

222. In Hall, Hutley JA (at 382) assumed that the person entitled to a hearing can agree to dispense with it. However, in that matter, the equivocal language of Mr Hall was not sufficient to amount to a waiver.

223. The question of the waiver of the hearing rule was also discussed by the Northern Territory Court of Appeal in Lawrie v Lawler (2016) 168 NTR 1. There the Court of Appeal proceeded on the basis that a waiver of some or all of the hearing rule was possible but reached no final decision on the matter because all members held that the facts could not sustain a claim for waiver.

224. Heenan AJ discussed the relevant principles at [419] as follows:

Neither party submitted that this aspect of the hearing rule was incapable of waiver by a person affected but the authorities to that effect are rather limited. There is ample authority to the effect that the bias rule can be waived by a party and once waived is irretrievable: Vakauta v Kelly (1989) 167 CLR 568; 87 ALR 633; 9 MVR 193, Smits v Roach (2006) 227 CLR 423; 228 ALR 262; [2006] HCA 36; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; 282 ALR 685; [2011] HCA 48 at [79]. However, on the question of whether this aspect of the hearing rule may be waived such authorities as there are, are rather more tentative. In Escobar v Spindaleri (1986) 7 NSWLR 51 a majority of the Court (Kirby P and Glass JA — Samuels JA dissenting) appears to have recognised that this aspect of the rule could be waived but waiver was not established by the evidence in that case. In MH6 v Mental Health Review Board (2009) 25 VR 382; [2009] VSCA 184 it was held that there was no reason in principle or authority to doubt that the full observance of the hearing rule may be waived. (For other examples see Aronson and Groves ‘Judicial Review of Administrative Action’ (5th edn, Law Book Co, 2013) [7.400] p 485). As this point was not argued we should proceed on the footing that this aspect of the hearing rule is capable of being waived either expressly or passively by informed and deliberate action by the party concerned. It is unnecessary and inappropriate to go into this question further on this appeal.

225. It is conceivable, in the context of the present matter, that, insofar as the two-stage process constituted an requirement of the “hearing rule”, that the plaintiff, by his counsel, had waived any right to a hearing on a two-stage basis or otherwise elected not to follow that course. In any event, it was relevant to the question as to whether the single stage process had denied him procedural fairness: see Lucire at [60].

226. The plaintiff was represented by counsel who gave a positive affirmation in favour of a one-stage hearing at the outset of the proceedings. As the HCCC submitted, counsel for the plaintiff of considerable experience in professional disciplinary matters involving health practitioners; a submission which seems to accord with the submissions made by Mr Barnes himself as to his experience in the matter of Lee. There is no suggestion that the plaintiff was denied an opportunity to be heard in relation to the making of protective orders or that he did other than avail himself of that opportunity. The Tribunal, as earlier mentioned, constructed arrangements so that there was a clear and express delineation between issues concerning liability and those concerning penalty and did not preclude, as I have found, the plaintiff receiving, at least in practical terms, notice of the issues relevant to the making of protective orders.

227. I do not propose to ultimately resolve the question of waiver or election. Issues of that kind received little attention in the submissions of the parties. The finding of waiver in relation to the “hearing rule” remains attended by some judicial reluctance: M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability, (6th ed, 2017, Thomson Reuters) at 495.

228. However, as I mentioned at the outset of this aspect of my reasons, that approach does not mean that the approach adopted by counsel for the plaintiff below is without significance.

229. At the outset of the proceedings the Tribunal expressly raised the adoption of a two stage process. It was indicated (and confirmed) that the plaintiff did not wish to take that course. There was positive and voluntary acceptance by counsel. The proceedings were then conducted on that basis. Ultimately, the Tribunal proceeded to hear submissions as to the making of protective orders, notwithstanding that a determination had not been made as to the guilt of the plaintiff as to the complaints. No application was made to defer submissions or to make further submissions or to adjourn the proceedings in order to call further evidence in relation to protective orders that may be made.

230. In those circumstances, it is difficult to see how the plaintiff may properly complain of the denial of procedural fairness in the adoption of a single stage process as being a breach of the “hearing rule” or a failure to provide a reasonable opportunity to be heard: see United Voice v Restaurant and Catering Association of Victoria (2014) 226 FCR 255; [2014] FCAFC 121 at [22]-[24].

231. There is a further issue that requires attention in this respect. The plaintiff contended that the “genesis” of the unfair procedure adopted by the Tribunal was its declaration that the question of protective orders could be approached on the basis that the HCCC would wholly succeed in making out the complaints. As was stated in my earlier discussion of authority that procedure would be insufficient to permit a single stage process in conformity with the requirement of procedural fairness, if the plaintiff might be confronted with a multitude of different findings of guilt and penalty outcomes.

232. However, notwithstanding that intimation by the Tribunal, counsel for the plaintiff ultimately confronted the question of appropriate protective orders in the context where he was, as earlier discussed, addressing a narrow band of possible findings as to guilt and protective orders.

233. Nor was the plaintiff having to deal with, in reality, the full range of possible penalties. By the conclusion of the proceedings, the plaintiff had accepted that a reprimand would be issued. There was no issue that deregistration was if the plaintiff had been found to ‘know’ as expressed in the particulars of Complaint 1. As to the concession the plaintiff ought to have known for the purposes of Complaint 1, Complaint 2 and the non-particularised elements in that respect the context was essentially whether the Tribunal should order cancellation or suspension.

Disposition of the Protective Orders Ground

234. It is clear law that a failure to afford natural justice or procedural fairness involves an error of law: Totalisator Agency Board of New South Wales v Casey (1994) 54 IR 354 at 359 (per Kirby P).

235. In this matter it was ultimately agreed that a denial of procedural fairness constituted a question of law. That would seem to accord with authority: see for example Smith v Superannuation Complaints Tribunal [2008] FCA 1528 at [25]. The protective orders appeal is, therefore, brought as of right. Having regard to the manner in which senior counsel approached this aspect of the appeal (as a procedural fairness ground) my finding that there was no denial of procedural fairness must result in the dismissal of the protective order ground of appeal.

236. Ground 10 was encompassed in the protective orders appeal but in substance involved questions of fact. That much is certainly reflected in the written submissions of the plaintiff as to that ground. It is appropriate then that leave be refused to bring this ground. For completeness I note the submissions advanced in relation to that ground incorrectly contended that the Tribunal did not have regard to certain matters. Further, I note that the determination by the Tribunal as to the risk of reoffending was open on the basis of the decision in Lee and the facts considered by the Tribunal (which did not involve speculation).

CONCLUSIONS

237. On 22 June 2017, the Court sat at the request of the parties and prior to judgment being delivered in order to indicate the findings the Court intended to make with respect to the grounds of appeal (there was an impending date for the disposition of the plaintiff’s assets).

238. The Court indicated that it intended to refuse leave for grounds 1, 2 and 6 of the appeal, dismiss the appeal in relation to grounds 7 to 9 and refuse leave to appeal with respect to ground 10.

239. Upon the provision of this intimation by the Court the parties sought that orders be delayed until the Court was in a position to deliver judgment. They indicated that short minutes of order reflecting the Court’s intimation would be provided upon notice of an impending judgment.

240. Upon the provision of such an intimation draft orders were produced by the parties. However, the short minutes of order did not seem to entirely reflect the foreshadowed orders mentioned in [238] above. A request was then made by the parties to produce a further short minutes of order after the publication of judgment. I have decided to adopt that course.

DIRECTIONS

241. In the result, the Court directs that the HCCC file within 7 days of the publication of this judgment short minutes of order reflecting this judgment. If the orders are duly executed by both parties the Court will make orders administratively in Chambers, providing the orders properly reflect this judgment. In the absence of agreement, the HCCC shall file and serve the short minutes of order within the same 7 day period and the plaintiff shall file and serve short minutes of order containing any alternative orders within a further 7 days. The Court will in that event issue orders or list the matter for short argument as to the form of orders.

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Amendments

16 August 2017 - Typographical error corrected.

16 August 2017 - The omitted second hearing date "22 June 2017" was added to the front cover sheet. The date referred to at [237] was also amended to "22 June 2017".

Decision last updated: 16 August 2017