Attia v Health Care Complaints Commission

[2017] NSWSC 178

Supreme Court

New South Wales

Medium Neutral Citation:	Attia v Health Care Complaints Commission [2017] NSWSC 178
Hearing dates:	20, 22, 24 February 2017
Decision date:	03 March 2017
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Plaintiff’s application for a stay and alternatively an interlocutory order reinstating the plaintiff’s registration as a pharmacist refused; plaintiff ordered to pay the defendant’s costs
Catchwords:	ADMINISTRATIVE LAW – appeal from decision of the Civil and Administrative Tribunal that the plaintiff’s registration as a pharmacist be cancelled – where cancellation order implemented by a separate statutory agency prior to commencement of appeal – application for interlocutory restorative injunction – whether Court has power to order the agency to reinstate the plaintiff’s name to the register pending determination of the appeal – factors relevant to the exercise of any such discretion
Legislation Cited:	Administrative Decisions Tribunal Act 1997 (NSW) s 60(2) Civil and Administrative Tribunal Act 2013 (NSW), s 61, s 63 Civil and Administrative Tribunal Regulation 2013 (NSW), reg 9 Health Practitioner Regulation National Law (NSW)
Cases Cited:	Australian Broadcasting Corporation v O’Neill [2006] HCA 46 AVS Group of Companies Pty Ltd v Commissioner of Police (2010) 78 NSWLR 302; [2010] NSWCA 81 Deano v Health Care Complaints Commission [2011] NSWSC 1570 Health Care Complaints Commission v Attia [2016] NSWCATAD 309 Health Care Complaints Commission v Attia (No 2) [2017] NSWCATOD 25 Lucire v Health Care Complaints Commission [2011] NSWCA 99 McBride v Walton (Court of Appeal (NSW), Handley JA, 27 August 1993, unrep) McClymont v The Owners-Strata Plan No 12139 [2009] NSWSC 276 Russo v Legal Services Commissioner [2016] NSWCA 95
Category:	Procedural and other rulings
Parties:	Mina Attia (plaintiff) Health Care Complaints Commission (defendant) Australian Health Practitioner Regulation Agency (proposed second defendant)
Representation:	Counsel: T Flaherty (plaintiff) L Fernandez (defendant) K J Young (proposed second defendant)   Solicitors: Michael Flaherty (plaintiff) Health Care Complaints Commission (defendant) Australian Health Practitioner Regulation Authority (proposed second defendant)
File Number(s):	2017/20085

Judgment

1. HER HONOUR: These proceedings raise an interesting question as to whether the Court has power, by interlocutory order, to reverse the cancellation of a health practitioner’s registration pending the determination of an appeal against the cancellation decision.

2. The practice of health professions in Australia is regulated by uniform national legislation, implemented in New South Wales by the Health Practitioner Regulation National Law (NSW). Unsurprisingly, one of the regulated professions is pharmacy.

3. The plaintiff, Mr Mina Attia, is a pharmacist. Until the events giving rise to these proceedings, he was registered as such under the National Law. On 23 December 2016, the Civil and Administrative Tribunal of New South Wales (Occupational Division) made orders cancelling Mr Attia’s registration as a pharmacist and prohibiting him from applying for review of that order for a period of 12 months: Health Care Complaints Commission v Attia [2016] NSWCATAD 309 (sic).

Application before the Court

4. Mr Attia has appealed against the Tribunal’s decision. An appeal lies as of right on any question of law and otherwise by leave: Civil and Administrative Tribunal Act 2013 (NSW), sch 5, cls 29(2), (4). The application before the Court concerns the fate of the cancellation order pending determination of the appeal. Mr Attia seeks an interlocutory order to have his name reinstated to the register of pharmacists during that period. This judgment determines that application.

5. The register is maintained by the Australian Health Practitioner Regulation Agency. The Agency plays no part in the assessment of practitioners but performs the formal function of maintaining the register in accordance with notifications received from the various boards of practitioners. On that basis, Mr Attia seeks an order joining the Agency as second defendant to the proceedings. Consistently with its limited function, the Agency does not take any adversarial position concerning the joinder application or the appeal but contends that an interlocutory order reinstating Mr Attia’s name to the register of pharmacists is “neither appropriate nor available” for the Court to make.

6. The defendant to the proceedings as presently constituted is the Health Care Complaints Commission. The Commission joins in the Agency’s contention that the Court has no power to make the interlocutory order sought and further contends that, even if the Court has that power, the application should be refused in the exercise of the Court’s discretion.

Circumstances in which the application is brought

7. The proceedings in the Tribunal arose out of an investigation by the Therapeutic Goods Administration (TGA) into Mr Attia’s alleged involvement in the wholesale purchase and on-sale of counterfeit Viagra®. Apart from the social use for which that drug is more popularly known, it has an important application in the treatment of pulmonary arterial hypertension, a potentially life-threatening condition. The counterfeit Viagra® was detected by an astute pharmacist at the Sydney Children’s Hospital who was preparing it for administration to paediatric patients. Its supply was traced to a company controlled by Mr Attia which, in turn, had purchased the tablets from a Mr Rai. Viagra® is a restricted substance; Mr Rai was not licenced to supply it.

8. The investigation resulted in the formulation by the Health Care Complaints Commission of essentially two kinds of complaints against Mr Attia. First, it was alleged that he knew or ought to have known the tablets were not genuine. As occurs with regrettable frequency in cases of suspected professional misconduct, the second, arguably more serious kind of complaint arose from Mr Attia’s response to the investigation, during which he was alleged to have provided false and misleading information to the TGA.

9. The complaints were regarded as being sufficiently serious to warrant their referral by the Health Care Complaints Commission to the Civil and Administrative Tribunal, as contemplated by s 145D of the National Law.

10. The complaint proceedings were heard by a Tribunal of four members over three days in July 2016. At the conclusion of the hearing, the Tribunal reserved its decision. On 23 December 2016 (the Friday before Christmas), the Tribunal made orders cancelling Mr Attia’s registration as a pharmacist and prohibiting him from applying for review of that order within 12 months from the date of the decision.

11. Section 61 of the Civil and Administrative Tribunal Act 2013 (NSW) provides that a decision of the Tribunal takes effect on the date on which it is given or such later date as may be specified in the decision. In the present case, no later date having been specified, the cancellation order took effect on 23 December 2016.

12. The decision was published in the absence of the parties, as evidently allowed by the legislation that governs the Tribunal, which is silent as to how decisions are to be given. In the absence of any specific statutory constraint, there would appear to be no requirement for an administrative tribunal to convene for the purpose of publishing its decisions. However, advance notice of the giving of a decision may, depending upon the circumstances, be a requirement of procedural fairness, as I was persuaded in McClymont v The Owners-Strata Plan No 12139 [2009] NSWSC 276 at [76].

13. That is not to say that the absence of advance notice of the giving of the decision necessarily amounted to a denial of procedural fairness in the present case. However, the practical effect of the publication of the decision in the absence of the parties was that there was no opportunity that day for Mr Atttia to apply to have the decision take effect on a later date.

14. On about 3 January 2017, the Agency gave effect to the Tribunal’s order, removing Mr Attia’s name from the register of pharmacists. Section 222(2) of the National Law also requires that there be maintained a public national register of pharmacists whose registration has been cancelled. When it implemented the Tribunal’s order, the Agency also caused Mr Attia’s name to be placed on that register.

15. On 16 January 2017, Mr Attia instructed a solicitor, Mr Michael Flaherty, to prepare an appeal against the Tribunal’s decision. Mr Attia’s name having already been removed from the register, Mr Flaherty formed the view that the occasion for this Court to stay the Tribunal’s order had passed, since the order had already been implemented.

16. Mr Flaherty promptly wrote to the Health Care Complaints Commission asserting that Mr Attia had been denied procedural fairness in “the timing, operation and manner that the decision was made” and seeking the Commission’s consent to vary the operative date of the cancellation to 1 March 2017 so as to allow Mr Attia to commence an appeal and seek a stay in this Court. The letter invoked reg 9(1) of the Civil and Administrative Tribunal Regulation 2013 (NSW), which provides:

9 Additional power to set aside or vary decision determining proceedings

(1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances:

(a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision,

(b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party’s absence has resulted in the party’s case not being adequately put to the Tribunal.

17. That regulation appears to have been properly invoked in circumstances where it appeared to Mr Flaherty that the case for deferred operation of the cancellation order had not been put, adequately or at all. The Tribunal undoubtedly had power (under either s 61 of the Civil and Administrative Tribunal Act or s 165E of the Health Practitioner Regulation of National Law (NSW)) to specify a date later than the date on which the decision was given as the date on which it was to take effect. Mr Flaherty (who had not appeared at the hearing) was evidently given to understand that the exercise of that power that had not been addressed.

18. Mr Flaherty further contended in his letter that the “timing of the decision” was due to error or oversight capable of being corrected under the so called “slip rule”. The Tribunal’s power to correct errors on that basis is contained in s 63 of the Civil and Administrative Tribunal Act.

19. The Health Care Complaints Commission did not consent to the proposed variation, contending that it did not fall within the operation of the slip rule. It may be noted, however, that it would have been open to the Commission to provide its consent whether or not the absence of any specification of a later day on which the order was to take effect was an “obvious error” within the meaning of s 63. Unfortunately, consideration of the slip rule appears to have distracted attention from the discrete power to vary the decision under reg 9.

20. In any event, the Commission noted that Mr Attia had been represented in the proceedings by competent practitioners experienced in the jurisdiction and that the occasion for asking the Tribunal to consider deferring the time when the order was to come into effect was at the time when the Tribunal’s decision was reserved. The Commission contended that the proposed variation raised “substantive issues concerning the efficacy of the Tribunal’s orders” being “to protect the health and safety of the public which is the paramount consideration under s 3A of the National Law”.

21. Mr Attia then brought an application before the Tribunal seeking to have the decision given 23 December 2016 altered under the slip rule. That application came before the principal member only. The application was refused, for a number of reasons. The Tribunal noted that Mr Attia’s former representatives were “squarely on notice” that the Commission sought an order cancelling Mr Attia’s registration as a pharmacist. It was noted in that context that Mr Attia had consented to have the complaint dealt with by a “one-stage hearing” (that is, without a separate hearing, after publication of the Tribunal’s determination as to whether the complaints were established, as to the appropriate orders: cf Lucire v Health Care Complaints Commission [2011] NSWCA 99).

22. The Tribunal also rejected the submission that the failure to specify a later date for operation of the cancellation order was due to error or omission. In reaching that conclusion the principal member, perhaps surprisingly, considered that it would be “presumptuous” to assume the other members of the Tribunal would have considered the variation sought to be “non-controversial”. If that were the determinative consideration, the appropriate course may have been to reconvene the whole Tribunal as originally constituted. In any event, the application was treated as one the principal member could determine and was refused: Health Care Complaints Commission v Attia (No 2) [2017] NSWCATOD 25.

23. In the circumstances, Mr Attia submits that, unless his name is ordered to be restored to the register of pharmacists by order of this Court, the appeal will be rendered nugatory.

24. The orders sought by Mr Attia in his amended notice of motion filed 17 February 2017 are as follows:

1. An order joining the Proper Officer of the Australian Health Practitioner Regulation Agency to these proceedings as second defendant;

2. An order staying the orders of the New South Wales Civil and Administrative Tribunal in the matter of Health Care Complaints Commission v Attia [2016] NSWCATAD 309 made on 23 December 2016 until the determination by this Honourable Court of the appeal of the decision;

3. Further or alternatively an order that the second defendant reinstate to the National Register of Health Practitioners the plaintiff’s registration as a pharmacist until determination by this Honourable Court of the appeal of the decision.

The question of power

25. The application for a stay faces the obvious difficulty that, before it was brought (and indeed before Mr Attia’s solicitor obtained instructions to commence these proceedings), the cancellation order had already been implemented. The better view appears to be that, in that event, it is too late for a stay: AVS Group of Companies Pty Ltd v Commissioner of Police (2010) 78 NSWLR 302; [2010] NSWCA 81 at [95] per Campbell JA; Handley JA agreeing at [191].

26. The more difficult question is whether the Court has power to order the Agency to restore Mr Attia’s name to the register on an interlocutory basis pending final determination of these proceedings.

27. As emphasised by Mrs Young, who appears for the Agency, that question is complicated by the fact that, as required under s 222(2) of the National Law, the Agency maintains the separate register of pharmacists who were registered by the Pharmacy Board and whose registration has been cancelled. The inclusion of Mr Attia’s name on that second register, which reflects the fact, is not the subject of any application by Mr Attia. The prospect of his name being included on both registers at the same time is, to say the least, troubling.

28. In any event, the critical question is whether the Court has power to make an order in the nature of a restorative injunction, as sought by Mr Attia. Mr Tim Flaherty of counsel, who appears for Mr Attia, submitted that authority to make such an order may be found in cl 29(9) of sch 5 to the Civil and Administrative Tribunal Act, which governs proceedings in the Occupational Division. Sub-clause (9) provides (my emphasis):

(9) Effect of appeal on profession decision

Subject to any interlocutory order made by the court concerned, an appeal under this clause does not affect the operation of the Division decision under appeal or prevent the taking of action to implement the decision.

29. Mr Flaherty submitted that the power to make “any interlocutory order” assumed in that provision must be taken to include the Court’s power under s 66(4) of the Supreme Court Act 1970 (NSW) to grant an interlocutory injunction “in any case in which it appears to the Court to be just or convenient so to do”. He submitted that the occasion for exercising that power by granting a restorative injunction plainly arises in circumstances where, if the injunction were not granted, an appeal against the decision would be rendered nugatory.

30. Mrs Young submitted that the current legislation governing the regulation of health practitioners, which came into force on 1 July 2010, must be construed having regard to any known and supposed defects in the law as it stood when the legislation was introduced. She submitted that part of the law as it stood was the constraint recognised in the decision in McBride v Walton (Court of Appeal (NSW), Handley JA, 27 August 1993, unrep). Mrs Young also referred in this context to the decision of the Court of Appeal in AVS Group of Companies Pty Ltd v Commissioner of Police (cited above) and the decision of Schmidt J in Deano v Health Care Complaints Commission [2011] NSWSC 1570.

31. The circumstances of McBride were similar to those of the present case. The Medical Tribunal had ordered that the doctor’s name be removed from the register of medical practitioners and had not deferred the operation of that order to a future date. The doctor appealed to this Court and applied for a stay of the order removing his name from the register pending the hearing of the appeal. As here, at the time the stay was sought, the order of the Medical Tribunal had already been carried into effect. Handley JA said:

It seems that the Court’s only power, pending the hearing of an appeal from a Medical Tribunal, to interfere with its orders, is that conferred by s 90(3) of the new Act, namely a power to stay such orders. The Court appears to have no power to order the re-registration or the reinstatement of a Medical Practitioner on the register on an interim basis pending the hearing of the appeal, and the contrary was not argued.

32. The reference to the “new Act” was a reference to the Medical Practice Act 1992 (NSW), which had come into force the day after the decision of the Medical Tribunal and which governed the appeal. Section 90(3) provided:

90 Appeal against Tribunal’s decisions and actions

…

(3)   The Supreme Court may stay any order made by the Tribunal, on such terms as the Court sees fit, until such time as the Court determines the appeal.

33. In stating that that section contained the only power of the Court to “interfere with” the orders of the Medical Tribunal, it is not clear whether his Honour brought to mind the power invoked in the present application, namely, the power under s 66(4) of the Supreme Court Act to grant interlocutory orders. Certainly, as his Honour recorded, it was not argued that the Court had any power other than the express statutory power contained in s 90(3) of the Medical Practice Act. His Honour may have taken the view that the express reference in that provision to a “stay” excluded any other kind of order by implication.

34. In any event, the decision was concerned with legislation in different terms from the provisions governing the present appeal. Upon analysis, I do not think McBride is authority for the proposition that this Court has no power under the present legislation to grant an interlocutory restorative injunction.

35. The decision in AVS Group of Companies Pty Ltd v Commissioner of Police was concerned with the provisions of s 60(2) of the Administrative Decisions Tribunal Act 1997, which provided (my emphasis):

On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.

36. The Court held that, unlike McBride, the Tribunal had a wider power under that section than merely to grant a stay and that the power was wide enough to enable the Tribunal temporarily to reinstate a licence that had been revoked pending the hearing of an application for review: at [96] per Campbell JA; importantly enjoying the agreement of Handley AJA at [191].

37. The decision in Deano was concerned with circumstances similar to those faced by Mr Attia. However, that was before the introduction of sch 5 to the Civil and Administrative Tribunal Act. After considering the decision in McBride, her Honour said at [11]:

In the case of this statutory scheme it also appears that the Court has been given no power to revoke the cancellation of a nurse's registration, pending the hearing of an appeal, even if a stay of the Tribunal's order is granted. The practical effect of that situation is that if an appeal from the Tribunal’s order is being contemplated, an approach should be made to the Tribunal, postponing the date of effect of the order. If that step is not taken and the order is implemented before any approach is made to this Court, no stay of the Tribunal's order can effect the reinstatement of a nurse's cancelled registration.

38. Schmidt J noted that the decision in McBride had been considered in AVS Group of Companies Pty Ltd v Commissioner of Police where, as already noted, it was concluded that s 60(2) of the Administrative Decisions Tribunal Act granted wider power than the mere granting of a stay. Her Honour considered that there was no comparable provision in the legislation applicable in that case, ultimately concluding that the Court had no power to make either of the orders sought.

39. A different view was taken by Barrett AJA in Russo v Legal Services Commissioner [2016] NSWCA 95. However, that was a decision concerning a legal practitioner and, on my understanding, turned very much on the inherent jurisdiction and power of this Court with respect to the control and discipline of legal practitioners.

40. The provision invoked in the present case is, in my view, indistinguishable from the provision under consideration in AVS Group of Companies Pty Ltd v Commissioner of Police. Although expressed differently (grammatically), each provision acknowledges the prospect of an interlocutory order that does affect the operation of the decision under appeal. Accordingly, I am not persuaded that the Court has no power to grant the relief sought. However, for the reasons cogently argued by Mrs Young, I accept that the power is one that would be exercised sparingly.

41. I turn to consider whether a basis is established for granting the relief sought.

Prima facie case

42. The principles to be applied in determining whether to grant an interlocutory injunction are well established. They were considered recently by the High Court in the decision of Australian Broadcasting Corporation v O’Neill [2006] HCA 46.

43. It is appropriate to begin by considering whether there is a prima facie case. In the case of an appeal, the task is to consider the apparent strength of the grounds of appeal specified. In undertaking that task, I am mindful of the limitations imposed on Mr Flaherty by the urgency with which this application had to be brought. There has scarcely been time for the proper development of the complex issues raised by the present application, let alone the appeal. This judgment should not be understood to pre-judge the appeal.

44. The proposed amended summons specifies nine grounds of appeal, as follows:

1.   The Tribunal erred at law in finding that any of the conduct of the plaintiff the subject of the first defendant’s complaints in 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 first defendant’s 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 to make such a finding.

3.   The Tribunal erred at law in finding that the plaintiff ought to have known the pharmaceuticals in question were counterfeit as:

a.    On the evidence before the tribunal, such a finding was not open to the Tribunal.

b.   Having found that element (d) of the complaint grounds not proved, it was not open to the Tribunal to find the complaint proved.

c.   Having found the plaintiff ought to have been alerted to the real and material risk that the pharmaceuticals in question were counterfeit, it was not open to the Tribunal to draw the inference and make the finding that the plaintiff ought to have known that the pharmaceuticals in question were counterfeit.

4.   The Tribunal erred at law in failing to discharge the judicial duty to record lawful and meaningful reasons with respect to the finding that the plaintiff ought to have known the pharmaceuticals in question were counterfeit.

5.   The Tribunal erred at law in finding that the plaintiff provided false information to the Therapeutic Goods Administration (“TGA”) based upon evidence that the Tribunal found unreliable. On the evidence before the Tribunal, such a finding was not open to the Tribunal.

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 not forming the subject of the first defendant’s 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 adverse to the plaintiff and for which the plaintiff was not provided notice in the complaints of the first defendant, 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.

45. Grounds 1, 2 and 6 relate to the identity of the entity which purchased and on-sold the counterfeit Viagra®. The Tribunal’s decision records that the Children’s Hospital had purchased the tablets from a licensed pharmaceutical wholesaler which, in turn, had purchased the tablets from Hillmear Trading Pty Ltd. Mr Attia was the sole director of Hillmear.

46. Insofar as the complaints against Mr Attia addressed the issue of his purchase of the counterfeit Viagra®, particulars were provided in particular 1 of complaint 1, which alleged:

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 3 of the practitioner’s wholesale licence.

47. Mr Attia submits that that aspect of the complaint was entirely misconceived, since the wholesale licence in question was held by Hillmear, not by Mr Attia. Mr Flaherty asserted in argument that it is not a requirement of the wholesale licence that the business of the wholesaler be conducted by a registered pharmacist. He submitted on that basis that the impugned conduct was not conduct by Mr Attia in the practice of his profession as a pharmacist.

48. The submission raises an interesting legal question which it is neither practicable nor appropriate to determine in an interlocutory application.

49. Section 153 of the National Law defines “professional performance” as “the knowledge, skill or judgment possessed and applied by the practitioner in the practice of the practitioner’s health profession”. It is by that measure that a professional’s performance is assessed under the National Law.

50. There may be some force in the contention that Mr Attia’s conduct in the practice of his profession as a pharmacist must be considered separately (for the purposes of the National Law) from his conduct as the thinking mind of the licensed wholesaler, Hillmear. Conversely, it might be contended by the Health Care Complaints Commission that Mr Attia’s conduct in that role necessarily informs an assessment of the “knowledge, skill or judgment” possessed and applied by him in the practice of his profession.

51. A significant assessment of the merits of grounds 1, 2 and 6 is the fact that, in the proceedings before the Tribunal, Mr Attia admitted the particular set out above. That is not to say that those grounds could not be made good if the submission is correct as a matter of law. However, the fact that the practitioner now seeks to resile from the manner in which the proceedings were conducted before the Tribunal is relevant in the exercise of the Court’s discretion to grant the relief now sought.

52. Ground 3 relates to particulars 2 and 3 of complaint 1. Particular 2 alleged that Mr Attia purchased the Viagra® “when he knew or ought to have known” it was not genuine. Four matters were identified to support that contention: the price of the tablets; the fact that Mr Attia was not aware as to whether the vendor held a wholesale licence authorising him to supply Viagra®; the fact that Mr Attia had not purchased restricted substances from the vendor in the past and the appearance of the packaging. The Tribunal found the first three matters proved but was not satisfied as to the fourth (the packaging).

53. Particular 3 alleged that Mr Attia distributed the substance purporting to be Viagra® when he knew or ought to have known it was not genuine in the circumstances particularised in particular 2. The tribunal found (at [85]) that Mr Attia ought to have known the tablets were not genuine but was not satisfied that he had actual knowledge of that fact (there is a typographical error in [85]; the word “not” is obviously missing in the last line).

54. Ground 3 implicitly assumes that the complaint could only be made good if each of the four matters specified in particular 2 was proved. I do not accept that is necessarily so. The particulars were relied upon severally and in combination. In my view, the matters specified in (a), (b) and (c) were capable of sustaining the conclusion contended for; that was a matter for the Tribunal.

55. Separately, ground 3 appears to fasten upon a potential weakness in the Tribunal’s reasoning at [82], where the Tribunal said:

In our view, the factors listed in paragraphs 9(a), (b) and (c) of particular 2 ought to have alerted Mr Attia to the real and material risk that the product was counterfeit. While there was a thin basis for the assumption that the product was genuine, we are not satisfied, on the basis of the matters particularised in paragraphs (a), (b) and (c), separately or in combination that the inference can be drawn, that he knew that the product was not genuine. However, we are satisfied on the basis of those factors, separately and in combination, Mr Attia ought to have known that the supplied Viagra® was not genuine.

56. As a matter of logic, there may be some force in the proposition raised by ground 3 that knowledge of a risk that the product was counterfeit does not amount to knowledge that the product was in fact counterfeit. However, the distinction between those two states of knowledge or belief is of doubtful significance in the context of proceedings to assess a practitioner’s conduct.

57. Ground 4 appears to raise substantially the same issue as is raised by ground 3.

58. Grounds 5 and 7 relate to complaint 2, which was that Mr Attia provided false and misleading information to the Therapeutic Goods Administration by providing them with false invoices purporting to relate to the purchase of Viagra® from Mr Ray. Mr Flaherty submitted that the complaint required proof only that the information was in fact false or misleading and that it was not relevant to the establishment of the complaint to know whether Mr Attia knew the information was false or misleading. On that premise, Mr Flaherty made the ambitious submission that the Tribunal’s consideration of Mr Attia’s knowledge as to the falsity of the information provided exceeded the Tribunal’s jurisdiction or else amounted to a denial of procedural fairness.

59. I do not think there is sufficient merit in that ground for it to stand as a significant consideration in favour of granting the relief now sought. Even if it is correct that a complaint of providing false or misleading information does not include an element of knowledge that the information was false or misleading (which must be doubted), it would plainly be relevant in considering the appropriate orders for the Tribunal to consider the degree of knowledge on the part of the practitioner.

60. Finally, grounds 8 and 9 allege denial of procedural fairness. The focus of that contention appears to be the allegation made by ground 9, that the Tribunal failed to conduct the hearing in a two-stage process, denying Mr Attia the opportunity to be heard on penalty. As already noted, the Tribunal’s second decision (determining the slip rule application) records that Mr Attia consented to that process. Unless that is incorrect, it is difficult to see how the complaint of denial of procedural fairness can be maintained.

61. In summary, leaving aside grounds 1 and 2, Mr Attia’s submissions have not persuaded me that there is a good prima facie case. In a number of respects, the appeal could be described as ambitious. As to grounds 1 and 2, there may be a real question to be considered. Certainly, the prospects of success on that limited issue cannot be dismissed out of hand.

Balance of convenience

62. It remains to consider the balance of convenience. Although I am not persuaded that this Court does not have power, in an appropriate case, to grant an interlocutory restorative injunction, there are compelling reasons not to do so. The objective and guiding principle of the National Law (stated in section 3A) is the protection of the health and safety of the public. An important aspect in the pursuit of that objective is the constitution of specialised boards and a specialised tribunal (the New South Wales Civil and Administrative Tribunal sitting in its Occupational Division) charged with the function of assessing serious complaints.

63. I note in that context that undertakings were offered by Mr Attia with a view to providing additional protection to the public. However, the same undertakings were not accepted by the Tribunal as a basis for staying its hand in making the cancellation order.

64. A further aspect of the pursuit of the objective of the National Law is the existence of two public national registers in each relevant profession. One includes the names of all health practitioners currently registered by the relevant board. The other includes the names of all practitioners who were registered by the board and whose registration has been cancelled by an adjudication body. Mr Attia’s registration has been cancelled by the Civil and Administrative Tribunal. The grant of a restorative injunction in the present case would undermine the important clarity of the system of registration. The information to be recorded in the national register is prescribed by s 225 of the National Law. Relevantly for present purposes, it includes the dates on which the practitioner’s registration expires and any conditions imposed on the practitioner’s registration. If a restorative injunction were granted in the present case, how would the register disclose that information? What would be the “type of registration held by the practitioner”? (s 225(f)) What of the register of practitioners who were registered by the board and whose registration has been cancelled? Should Mr Attia’s name be included on both registers?

65. Against those considerations are two compelling two considerations in favour of granting the relief sought. The first is the unhappy circumstance that, if the injunction is not granted, the utility of the appeal will be significantly undermined, at least. Two practical consequences flow for Mr Attia in particular. The first is that, under the National Law, he is required to divest himself of any relevant interest within six months. Secondly, he presently has an interest in four particular pharmacies including one at Burwood in which he holds a 100% interest as an individual. Mr Attia has sought permission for that pharmacy to be operated by a pharmacist other than himself but that permission has been withheld pending the determination of the present application. Accordingly, the pharmacy presently operates under the constraint that prescriptions for restricted substances cannot be filled.

66. Mr Flaherty submitted that, in the circumstances, damages will not be an adequate remedy, since the Tribunal and the Health Care Complaints Commission are immune from suit. It is difficult to know what weight should be given to that consideration. Plainly, there is the prospect of financial loss if the injunction is not granted. However, the appeal is not a cause in which damages is a remedy at all.

67. In all the circumstances, assuming the existence of a power to grant the relief sought, I am not persuaded that it is appropriate in the circumstances of this case to take the significant step of reversing the effect of the Tribunal’s orders, even on an interlocutory basis. In reaching that conclusion, I have placed considerable weight on my assessment of the apparent strength of the appeal and the gravity of second-guessing, in an urgent hearing, the conclusions reached by the Tribunal charged with the determination of the complaints.

68. For those reasons, the application is refused.

69. I consider it appropriate to expedite the hearing of the proceedings, as occurred in McBride.

70. ORDERS:

1. The plaintiff’s application is dismissed;

2. The plaintiff is to pay the defendant’s costs of the application;

3. No order is made as to the costs of the Australian Health Practitioner Regulation Agency;

4. Proceedings listed for hearing on 8 May 2017;

5. Proceedings listed before the registrar for directions on 9 March 2017.

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Decision last updated: 03 March 2017