Zepinic v Attorney General NSW

[2023] NSWSC 1396

Supreme Court

New South Wales

Medium Neutral Citation:

Zepinic v Attorney General NSW [2023] NSWSC 1396

Hearing dates:

14 November 2023

Date of orders:

14 November 2023

Decision date:

14 November 2023

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

1. The summons is dismissed.

2. The plaintiff's notice of motion filed on 8 September 2023 is dismissed.

3. The plaintiff to pay the first defendant's costs of the proceedings in the gross sum assessed pursuant to section 98(4)(c) of the Civil Procedure Act in the amount of $9,375.

4. The plaintiff is to pay the second defendant’s costs of the proceedings in the gross sum assessed pursuant to section 98(4)(c) of the Civil Procedure Act in the amount of $31,743.

Catchwords:

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – abuse of process – where summons brought by self-represented plaintiff sought to reagitate matters already decided and for which avenues of appeal exhausted

APPEALS – jurisdiction of appellate court – Supreme Court – appeal from decision of Associate Justice to single Divisional Judge

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil Procedure Act 2005 (NSW)

Health Practitioner Regulation National Law 2009 (NSW)

Health Practitioner Regulation National Law Regulation 2018 (NSW)

Supreme Court Act 1970 (NSW)

Supreme Court Rules 1970 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

El-Saeidy v NSW Land & Housing Corporation [2014] NSWCA 172

Penson v Titan National Pty Ltd [2015] NSWCA 404

Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13

Zepinic v Attorney General of NSW [2023] NSWSC 785

Zepinic v Health Care Complaints Commission [2020] NSWCA 146

Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 16

Zepinic v Health Care Complaints Commission (No 2) [2020] NSWCA 320

Zepinic v Health Care Complaints Commission (No 3) [202]1 NSWCA 25

Category:

Procedural rulings

Parties:

Vito Zepinic (Plaintiff)
Attorney General of NSW (First Defendant)
Australian Health Practitioner Regulation Agency (Second Defendant)

Representation:

Counsel:
Self-represented Plaintiff (No appearance)
R McEwen (First Defendant)
P Lowson (Second Defendant)

Solicitors:
Self-represented Plaintiff (No appearance)
Crown Solicitor’s Office (First Defendant)
Minter Ellison (Second Defendant)

File Number(s):

2023/247642

JUDGMENT (ex-tempore - REVISED)

1. HIS HONOUR: Before the Court are two notices of motion, one filed by each of the two defendants, claiming orders that the plaintiff's summons filed on 4 August 2023 be dismissed summarily pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 NSW (UCPR).

2. Alternative orders are sought by each of the defendants and the second defendant also initially sought orders 5 and 6 in its notice of motion that were intended to constrain Dr Zepinic against commencing further repetitive proceedings. The second defendant does not press its claim for orders 5 and 6.

3. Other orders claimed in the alternative to dismissal under rule 13.4 need not be considered in view of the conclusion that I have formed as to how the notices of motion should be finally resolved.

4. The plaintiff is unrepresented in the proceedings. He was present before Registrar Hedge on 18 October 2023 when the notices of motion were listed for hearing today. He did not appear when the matter was called on before me, nor did he answer when his name was announced three times outside the courtroom. I therefore proceeded to hear the defendants' notices of motion in his absence. There is also before the Court a notice of motion filed by the plaintiff himself but as he has not been present to pursue that matter and in view of the other orders that I propose to make, the plaintiff's notice of motion filed 8 September 2023 will be dismissed.

5. Dr Zepinic's summons in this proceeding is entitled: “Summons (Judicial Review)" and claims orders in the following terms:

1   Set aside judgment delivered by Harrison AsJ on 7 April 2023.

2   Orders in accordance with the prayers 1-5 in the plaintiff's summons filed in the NSW Supreme Court on 14 December 2021.

6. The decision of Harrison AsJ to which order 1 refers, is Zepinic v Attorney General of NSW [2023] NSWSC 785. In that decision her Honour dismissed summarily a claim by Dr Zepinic pursuant to a summons filed on 14 December 2021 for orders to reverse a refusal by the New South Wales Civil and Administrative Tribunal (NCAT) to make a reinstatement order in respect of Dr Zepinic. Dr Zepinic had sought such an order pursuant to s 163B(1)(c) of the Health Practitioner Regulation National Law 2009 (NSW), to permit him to be re-registered as a psychologist, subject to him making a successful application to the Psychology Board of Australia, which is a National Health Practitioner Board provided for in cl 4 of the Health Practitioner Regulation National Law Regulation 2018.

7. It is necessary to provide a chronology of events that have led to the present proceedings, as follows:

25 July 2008 - Dr Zepinic was convicted in the Local Court at Burwood on 6 counts of using post-nominals to represent that he held qualifications that would entitle him to be registered as a medical practitioner and/or otherwise holding himself out as a medical practitioner.

12 August 2010 - the Psychologists Tribunal, as then constituted under the Psychologists Act 2001 (NSW) (rep), found that Dr Zepinic's commission of the offences of which he was convicted in the Local Court and certain other acts constituted professional misconduct. The Psychologists Tribunal ordered "that his name be cancelled from the register". Dr Zepinic was prohibited from practicing or providing services as a psychologist and was effectively barred from making any application for re-registration for five years.

21 February 2018 - Dr Zepinic applied to NCAT for a reinstatement order pursuant to s 163B of the Health Practitioners Regulation National Law.

10 October 2018 - NCAT dismissed Dr Zepinic's application for a reinstatement order: Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 16.

12 November 2018 - Dr Zepinic filed in this Court a notice of appeal from the decision of NCAT (Supreme Court file number 2018/385664). The Health Care Complaints Commission was named as the only respondent.

3 May 2019 - the appeal was heard on its merits by N Adams J.

3 February 2020 - N Adams J dismissed the appeal: Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13.

15 July 2020 - the Court of Appeal refused Dr Zepinic's application for leave to appeal the decision of N Adams J: Zepinic v Health Care Complaints Commission [2020] NSWCA 146.

10 December 2020 – an attempt by Dr Zepinic to re-agitate the leave application was dismissed in the Court of Appeal: Zepinic v Health Care Complaints Commission (No 2) [2020] NSWCA 320.

4 March 2021 - a further attempt by Dr Zepinic to re-agitate the leave application was dismissed in the Court of Appeal: Zepinic v Health Care Complaints Commission (No 3) [2021] NSWCA 25.

14 December 2021 - Dr Zepinic filed a summons in the Common Law Division naming the Attorney General and "Australian Health Practitioners Registration Agency" as first and second defendants (Supreme Court file number 2021/354466). The word "Registration" in the title of the second defendant should have been "Regulation".

19 April 2023 - Harrison AsJ heard notices of motion filed by each of the two defendants to the summons of 14 December 2021, in each case claiming summary dismissal of that summons pursuant to r 13.4 of the UCPR.

7 July 2023 - Harrison AsJ dismissed Dr Zepinic's summons of 14 December 2021 pursuant to r 13.4 and ordered that he pay the defendants' costs.

4 August 2023 - Dr Zepinic filed his summons commencing the present proceedings, under Supreme Court file number 2023/247642.

8. The orders sought in the summons of 14 December 2021, which Harrison AsJ dismissed, were as follows:

1   Order to invalidate Suppression Order Apply delivered by the NSW Psychologists Tribunal on 12 August 2010.

2   Order to invalidate judgment/orders delivered by the NSW Civil and Administrative Tribunal on 10 October 2018.

3   A reinstatement order to the Australian Health Practitioner Registration Agency that Dr Vito Zepinic be unconditionally re-registered as a psychologist (s 83(2) of the Psychologists Act 2001).

4   Order that the defendants pay the plaintiff’s legal costs and disbursements on indemnity basis.

5   Order that the defendants pay the plaintiff’s losses and damages, which courts finds fit, caused by the defendants’ forgery, perjury, and defamation.

9. As Harrison AsJ observed at [18] of her reasons, the claim for order 1 concerning a decision of the Psychologists Tribunal made on 12 August 2010 was well out of time, whether it be viewed as a purported appeal or as an application for judicial review. No application for extension of time had been made or supported before Harrison AsJ. Accordingly, her Honour summarily dismissed the claim for order 1, as sought by the defendants.

10. The claims for relief in orders 2 and 3 were either made by way of a purported appeal from NCAT's decision of 18 October 2018, in which the Tribunal had refused to make a reinstatement order in respect of Dr Zepinic, or they constituted an application for judicial review of that decision and the claim for relief in the nature of certiori pursuant to s 69 of the Supreme Court Act 1970 (NSW).

11. Harrison AsJ found that either as an appeal from the NCAT decision or as an application for judicial review the summons claiming orders 2 and 3 was out of time and, again, no application for extension had been made: [143]. The time limits were 28 days from the Tribunal's decision for an appeal (see r 50.3 of the UCPR), and three months from the decision for an application for judicial review (see r 59.10).

12. Her Honour also found that the applications for relief in orders 2 and 3 were an abuse of process because they amounted to an attempt to relitigate what had been heard and determined by N Adams J in her decision of 3 February 2020. For those reasons, the claims for orders 2 and 3 were dismissed.

13. As for order 5, Harrison AsJ accepted the Attorney General's submission, paraphrased at [122] of her reasons, that there was no reasonable cause of action disclosed for "forgery, perjury and defamation". "Perjury" and "forgery" are not causes of action. Defamation claims cannot be commenced by summons without pleading.

14. The Associate Justice's jurisdiction to hear and determine the proceeding pursuant to Dr Zepinic's summons of 14 December 2021 arose under Pt 60 of the Supreme Court Rules 1970 (NSW). By Pt 60 r 1A(c) the Associate Justice:

may exercise the powers of the Court in respect of the matters mentioned in Part 3 of Schedule D and Part 2 of Schedule E.

15. Part 3 of Sch D includes the following clause:

5A   Proceedings referred to an Associate Judge by a judge where those proceedings are an appeal from, or an application for prerogative or declaratory relief relating to, the Administrative Decisions Tribunal.

16. The Administrative Decisions Tribunal was abolished by cl 3 in Sch 1 to the Civil and Administrative Tribunal Act 2013 (NSW). By cl 17(3) of that schedule the reference to the Administrative Decisions Tribunal in Sch D to the Supreme Court Rules is to be read as a reference to NCAT.

17. Dr Zepinic's summons of 14 December 2021 fell within cl 5A of Sch D to the Supreme Court Rules, as quoted above. The proceeding under that summons was referred to the Associate Justice on 17 April 2020 by the judge who on that day was responsible for allocation of the Court's business in the Civil List. That was in accordance with long standing practice of the Common Law Division. The allocation is recorded under the date 17 April 2023 on Justice Link.

18. Any appeal from the decision of Harrison AsJ would lie only to the Court of Appeal and not to a single judge of this Division: see Supreme Court Rules Pt 60 r 17(a1) and r 49.4 of the UCPR.

19. The proceeding now before me under Dr Zepinic's summons filed on 4 August 2023 does not purport to be an appeal from Harrison AsJ's decision. It has been commenced as a fresh proceeding. As such it must be dismissed as an abuse of process because the precise relief sought in the summons was refused on 7 July 2023 by the Associate Justice, who acted within her jurisdiction to dismiss summarily the summons of 14 December 2021.

20. The summons in the proceeding now before me is not framed as an application for judicial review of the Associate Justice's decision but if the proceeding is intended to be such an application it is incompetent. As an exercise of power which has been specifically conferred upon the Associate Justice by or under the Supreme Court Act, her decision constitutes a decision of this Court: see ss 118(2) and (5) of the Supreme Court Act and El-Saeidy v NSW Land & Housing Corporation [2014] NSWCA 172 at [46]. As a Divisional Judge, I have no jurisdiction to undertake judicial review of this decision of the Court: see Penson v Titan National Pty Ltd [2015] NSWCA 404 at [8] and the authorities there cited.

21. Even if it was open to me to undertake judicial review of Harrison AsJ’s decision I would not do so where the structure and interaction of the rules referred to above clearly indicates that any reconsideration of a determination by her Honour in such a matter is to be undertaken by the Court of Appeal, not by a single Judge.

22. Making all due allowance for Dr Zepinic as a litigant in person, albeit a very experienced one, as a search of his name on Caselaw reveals, I have considered whether I should refer his summons to the Court of Appeal to deal with, if seen fit, as an appeal or application for leave to appeal from the Associate Justice's decision. I will not take that course because I am satisfied from careful reading of the judgment of N Adams J of 3 April 2020 and the subsequent judgment of the Associate Justice of 7 July 2023 that the issues sought to be agitated before Harrison AsJ and now again under the present summons were fully litigated before N Adams J. From N Adams J’s decision, the Court of Appeal refused leave to appeal three years ago. Furthermore, the present summons does not purport to identify error in the Associate Justice's decision. It is not capable of being adapted to facilitate appellate review of that decision. The plaintiff's summons must therefore be dismissed.

23. The plaintiff must pay the defendants' costs of the proceedings. Both defendants have sought orders under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) for assessment of their costs in a gross sum.

24. The amount of costs claimed by the Attorney General is supported by an affidavit of Sam Goldsmith affirmed 14 November 2023. The amount claimed by the second defendant is supported by an affidavit of Beverley Neubold affirmed 13 November 2023. The costs claimed by the Attorney General are significantly less than those of the second defendant. That is understandable because the Attorney General's involvement in the history of Dr Zepinic's litigation concerning his de-registration as a psychologist has been very much less extensive than the involvement of the second defendant. It appears from the material tendered on the hearing of these notices of motion that there has never been any basis for the Attorney General to be joined as a party and, consequently, I infer that the extent of the Attorney General's legal work to defend the summons has not needed to be as detailed or extensive as the work undertaken by the second defendant’s legal representatives. The second defendant has some statutory responsibility with respect to registration of Dr Zepenic whereas the Attorney General has none.

25. On behalf of the Attorney General costs have been claimed at rates ranging between $295 and $432 per hour, according to the seniority of the legal practitioner involved. The bulk of the work has been undertaken at the lower rate, appropriately to the nature of the work that has been required on a case such as this. The hours expended are set out in Mr Goldsmith's affidavit and appear to be a reasonable allocation of time to address the issues so far as they have been progressed. The affidavit provides evidence of counsel’s fees which also appear to have been charged at a reasonable rate for the nature of the proceedings and for which the time devoted is well within what would be expected for a proceeding such as this.

26. The Court is in a position to judge the reasonableness of the rates and the amounts of time spent on the matter based upon examination of invoices rendered by solicitors and counsel in other similar proceedings and based upon the Court's experience of hearing appeals, from time to time, from costs assessors.

27. The total expended by the Attorney General at the rates to which I have referred is $12,980. The Attorney General seeks a gross sum assessment in the figure of $9,375 being 75% of the expenditure. The discount of 25% is an allowance for the relatively inexact nature of the assessment and for what might well be deducted if a formal assessment procedure were undertaken. In my view the figure of $9,375 is fully justified and I will make a gross sum order incorporating that figure.

28. With respect to the second defendant, solicitors’ rates have been charged in a range between $297 per hour and $478 per hour, from what is described as a lawyer level 1 up to a partner in the firm that has acted for the second defendant. Those rates are closely comparable to the rates claimed on behalf of the Attorney General. Again in the case of the second defendant, the bulk of the work has been done by more junior level lawyers, with relatively limited hours consumed by a supervising partner and senior associate.

29. Counsels' fees have been charged at rates that appear entirely reasonable for the nature of work undertaken and the time involved also appears reasonable. The total incurred by the second defendant is in excess of $44,000 and the amount claimed, allowing a 30% discount, is $31,743. I am satisfied that that is an appropriate gross sum to be awarded.

30. Accordingly, the orders of the Court are:

1. The summons is dismissed.

2. The plaintiff's notice of motion filed on 8 September 2023 is dismissed.

3. The plaintiff is to pay the first defendant's costs of the proceedings in the gross sum assessed pursuant to section 98(4)(c) of the Civil Procedure Act 2005 in the amount of $9,375.

4. The plaintiff is to pay the second defendant’s costs of the proceedings in the gross sum assessed pursuant to section 98(4)(c) of the Civil Procedure Act 2005 in the amount of $31,743.

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Decision last updated: 16 November 2023