Zepinic v Attorney-General of NSW

Case •

[2023] NSWSC 785

•

07 July 2023

No judgment structure available for this case.

Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Zepinic v Attorney-General of NSW [2023] NSWSC 785
Hearing dates: 19 April 2023
Date of orders: 7 July 2023
Decision date: 07 July 2023
Jurisdiction:Common Law
Before: Harrison AsJ
Decision:

(1) The defendant’s summons filed 14 December 2021 is dismissed.

(2) The plaintiff is to pay the first and second defendant’s costs.

Catchwords:

JUDICIAL REVIEW – Appeal from NCAT – reinstatement order – psychologist’s registration – abuse of process – summons dismissed

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW) s 9 and 10

Medical Practice Act 1992 (NSW) s 105

Vexatious Proceedings Act 2008 (NSW) s 8

Health Practitioner Regulation National Law2009 (NSW) s 3, 5, 23, 25, 149, 163, 163B, 287 and Schedule 4 and 5A

Uniform Civil Procedure Rules (NSW) rr 6.1, 6.10, 13.4, 14.28, 59.10 and 163B

Psychologists Act 2001 (NSW) (now repealed) s 17, 24, 25, 53, 83 and 111

Cases Cited:

B v The Queen (1992) 175 CLR 599; [1992] HCA 68

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; [1995] HCA 10

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937

Campbell v R [2007] 2 Cr App Rep 28

DS v HM Advocate (2007) SC (PC) 1

Global Partners Fund v Babcock v Brown Ltd (In liq) (2010) 267 ALR 144

Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50

Hassan v Sydney Local Health District [2022] NSWSC 954

Hulme v Hulme [2023] NSWSC 299

Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67

Kitoko v New South Wales [2021] NSWSC 545

Makin v Attorney-General (1989) 167 CLR 590; [1984] AC 57

O'Brien v Chief Constable of South Wales Police [2005] UKHL 26

Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7

R v Fouad Bennabou [2012] EWCA Crim 3088

R v Ghosh [1982] 2 All ER 689

R v Hanson, Gilmore & Pickstone [2005] 2 Crim App R 21

R v Highton [2005] 1 WLR 3472

Regina v Boardman [1975] AC 421

Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14

Vito Zepinic v Healthcare Complaints Commission [2020] NSWSC 13

Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131

Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82

Zepinic v Chateau Constructions (Australia) Limited [2016] NSWCA 30

Zepinic v Health Care Complaints Commission [2020] NSWCA 146

Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 166

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

Zepinicv Health Care Complaints Commission (No 3) [2021] NSWCA 25

Zepinic v Health Care Complaints Commission [2020] NSWSC 13

Zepinic v Psychologists Registration Board of New South Wales [2010] NSWPST 6

Category:Principal judgment
Parties: Vito Zepinic (Plaintiff)
Attorney General of NSW (First Defendant)
Australian Health Practitioner Regulation Agency (Second defendant)
Representation:

Counsel:
Self-represented (Plaintiff)
R.A. McEwen (First Defendant)
P. Lowson (Second Defendant)

Solicitors:
Self-represented (Plaintiff)
NSW Crown Solicitors Office (First Defendant)
Minter Ellison (Second Defendant)
File Number(s): 2021/354466

JUDGMENT

  1. By way of the summons filed on 14 December 2021, the plaintiff seeks an;

  1. Order to invalidate Suppression Order Apply delivered by the NSW Psychologists Tribunal on 12 August 2010 (‘2010 Psychological Tribunal’).

  2. Order to invalidate judgment/orders delivered by the NSW Civil and Administrative Tribunal on 10 October 2018 (‘invalidate NCAT 2018 decision’).

  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 (NSW)) (‘reinstatement order’).

  4. Order that the defendants pay the plaintiff’s legal costs and disbursements on indemnity basis (‘costs’). It is only if the plaintiff is successful that I need to address order 4.

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

  1. These current proceedings seek to relitigate these prior proceedings. In the Supreme Court proceedings, before N Adams J, Dr Zepinic raised six grounds of appeal. It is difficult to reconcile the orders sought in the summons with the grounds of judicial review or appeal. It is unclear. They are as follows:

“Ground 1:   The NCAT erred in delivering its orders and appellant relied on res judicata principle.

Ground 2:   The NSW Psychologists Tribunal decision against the appellant delivered on 12 August 2010 is based on the falsified certificates.

Ground 3:   On 10 March 2009, the appellant left Australia and has never been served with any documents regarding ex parte proceedings of the NSW Psychologist’s Tribunal conducted on 24 June 2009, 27 and 28 April 2010, and 2 July 2010.

Ground 4: The certificates of alleged criminal conviction forwarded from the NSW Medical Council to the Queen Mary University of London were falsified.

Ground 5: Due to the falsified certificates submitted by the NSW Medical Council to the Queen Mary University of London and taken legal proceedings, the appellant has suffered a substantial financial loss, psychological distress upon him and his family, and damages upon his dignity and professional career.

Ground 6:   NCAT decision delivered on 10 October 2018 has no legal grounds but to make further financial and damages on the appellant’s professional reputation and dignity, and distress upon him and his family.”

  1. The plaintiff is Vito Zepenic. I will describe him as Dr Zepinic on the basis that he apparently has a PhD in psychology awarded in Belgrave. The first defendant is the Attorney General of NSW. The second defendant is the Australian Health Practitioner Agency (‘AHPRA’). Dr Zepinic appeared self-represented. The first defendant was represented by R. McEwen of counsel. The parties relied upon 3 volumes of court books. The plaintiff relied on 2 volumes (‘Ex A(1) + Ex A(2)’) together with Exhibits B, C, D and E. Both defendants’ relied on a Court Book (‘Ex 1’).

  2. By notice of motion filed on 25 August 2022, the Attorney General of NSW (‘the first defendant’) seeks the following orders:

  1. The summons filed by the plaintiff on 14 December 2021 (‘summons’) be summarily dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules (‘UCPR’); or, in the alternative

  2. Paragraph 5 of the summons be summarily dismissed pursuant to r 13.4 of the UCPR or, in the alternative, struck out pursuant to r 14.28 of the UCPR; and

  3. …

  1. Similarly, by notice of motion filed on 17 August 2022, the Australian Health Practitioner Agency (‘AHPRA’) (‘the second defendant’) seeks the following orders:

  1. The summons filed by the plaintiff on 14 December 2021 be struck out in its entirety pursuant to rule 14.28 of the UCPR.

  2. The proceeding be otherwise dismissed pursuant to rule 13.4 of the UCPR.

  3. That the plaintiff pay the second defendant’s costs on an indemnity basis.

The law

Summary Dismissal (UCPR 13.4)

  1. Rule 13.4 of the UCPR reads:

13.4 Frivolous and vexatious proceedings

(cf SCR Part 13, rule 5; DCR Part 11A, rule 3; LCR Part 10A, rule 3)

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings--

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

  1. The question for summary dismissal is whether the material before the Court demonstrates that the action should be permitted to proceed to hearing in the ordinary way because it is apparent it must fail: Choice v Secretary, Department of Communities and Justice (2022) 405 ALR 715 at [199], referring to Whitehead v Nickells [2013] NSWSC 1446 at [5] and Hamzy v Commissioner of Corrective Services (NSW) (2011) 80 NSWLR 296 at 300. Put another way, summary dismissal will be appropriate where claims are so obviously untenable or groundless that there is a high degree of certainty that they will fail if allowed to go to trial.

  2. A “very clear case” is required before an application for summary dismissal is granted, and the power to make such an order should be sparingly employed: Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner of Railways(NSW) (1964) 112 CLR 125 at 129.

Strike Out (UCPR 14.28)

  1. Rule 14.28 of the UCPR reads:

14.28 Circumstances in which court may strike out pleadings

(cf SCR Part 15, rule 26; DCR Part 9, rule 17; LCR Part 8, rule 3)

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading--

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1)

  1. As these proceedings were commenced by summons rather than statement of claim, r 14.28 does not strictly apply: Kitoko v New South Wales [2021] NSWSC 545 at [42], [44]. Consequently, the Attorney-General calls in aid the power of this Court, as a “necessary incident of its jurisdiction” “to control its own proceedings and procedure in the same way as if the proceedings were conducted on pleadings in the strict sense”: Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131 at [87]; Global Partners Fund v Babcock v Brown Ltd (In liq) (2010) 267 ALR 144 at [77]; Hassan v Sydney Local Health District [2022] NSWSC 954 at [82].

  2. As the first defendant submitted, there is considerable overlap between the principles concerning an application for summary dismissal and the principles concerning strike out. However, r 13.4 focuses upon the weakness of a party’s case, whereas r 14.28 enunciates grounds upon which a defective pleading may be struck out – the Court need not consider whether the proceedings generally are hopeless or an abuse of process: Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 941.

Dr Zepinic’s prior proceedings

  1. Prior proceedings concerning similar subject matter include:

  1. Zepinic v Psychologists Registration Board of New South Wales [2010] NSWPST 6

  2. Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 166

  1. These decisions were the subject of subsequent consideration by the Supreme Court and the Court of Appeal in:

  1. Zepinic v Health Care Complaints Commission [2020] NSWSC 13

  2. Zepinic v Health Care Complaints Commission [2020] NSWCA 146

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

  4. Zepinic v Health Care Complaints Commission (No 3) [2021] NSWCA 25.

  1. The Attorney General was not a party to any of the proceedings set out above. Neither was AHPRA.

  2. It is worth observing that in Zepinic v Chateau Constructions (Australia) Limited [2016] NSWCA 30, a decision that involves different subject matter, Pembroke J stated at [25]:

“[25] One further matter should be mentioned… A litigant who continues to advance a point when it has repeatedly been determined against him or her may be committing an abuse of the processes of the court, and may be bringing proceedings which fall within the definition of ‘vexatious proceedings’ under the Vexatious Proceedings Act 2008 (NSW). It should not be thought that Dr Zepinic can repeatedly bring proceedings against Chateau Constructions agitating the same matters.”

  1. His Honour made an order that the plaintiff be declared vexatious pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW).

Time limitation judicial review

  1. It is convenient here that I briefly set out the relevant statutory provisions in relation to the AHPRA and the National Law that relates to the plaintiff’s complaints.

  2. The majority of the plaintiff’s detailed submissions deal with the decision of the NSW Psychologists’ Tribunal made on 12 August 2010 that involve those proceedings that concluded over thirteen years ago. Any appeal or review rights that the plaintiff had pursuant to the Psychologists Act have long since expired. In the absence of an extension of time, any proceedings for judicial review of that decision would have been required to be commenced within three months of the decision: UCPR r 59.10(1). The effect of that decision has also been overtaken by the subsequent proceedings in the Tribunal. While I have covered the plaintiff’s complaints concerning this decision in more detail in the judgment, whether the plaintiff’s summons is framed as a judicial review or an appeal, they are brought out of time. An extension of time is necessary, and none was applied for. The summons should be dismissed on this basis.

AHPRA and the National Law

  1. The National Law is a schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) that applies as a law of New South Wales pursuant to the Health Practitioner Regulation National Law2009 (NSW).

  2. On 1 July 2020, the National Law commenced operation in New South Wales. It is also in operation (as provided for in the applicable domestic legislation) in all other States and Territories.

  3. The National Law provides for a scheme for the registration of practitioners in 16 health professions, including the psychology profession.

  4. The Psychology Board of Australia (‘Psychology Board’) has responsibility, under the National Law, for the psychology profession.

  5. Section 3 of the National Law sets out the objectives and guiding principles of the National Law. Clause 7 of Schedule 4 to the National Law provides that members of National Boards are to act impartially and in the public interest in the exercise of their functions as members and are to put the public interest before the interests of particular health practitioners or any entity that represents health practitioners.

  6. Part 8A of the National Law is specific to New South Wales and confers on a National Board powers and functions with respect to the health, performance and conduct of registered health practitioners. Part 8A maintains the role of the NSW authority, the Health Care Complaints Commission, as well as other bodies such as the Medical Council of New South Wales. These include powers to take action in response to a notification about a registered health practitioner. Such action includes conducting an investigation into the practitioner.

  7. AHPRA is established by section 23 of the National Law, and its functions are set out at section 25. Those functions include supporting the National Boards that exist for each health profession and that are responsible for registration of the health practitioners. AHPRA itself is not responsible for the registration of health practitioners, although it maintains the register of registered health practitioners and otherwise supports the National Boards in fulfilling their roles under the National Law.

  8. Neither AHPRA nor the Psychology Board, have the power to review an order in relation to a registered health practitioner, including suspension and prohibition orders.

  9. Pursuant to section 149E of the National Law a National Board cannot register a health practitioner whose registration has been cancelled, or who has been disqualified from applying for registration, under the National Law, unless a reinstatement order has been made in this case by the Psychologists Board Tribunal that they be reinstated.

  10. In its decision dated 12 August 2010 (‘the 2010 decision’) the Psychologists Tribunal found that, had the plaintiff’s registration as a psychologist been current as at that date it would have ordered that his registration be cancelled; further, the Psychologists Tribunal disqualified the plaintiff from applying for reregistration for a period five years. That period expired on 12 August 2015.

  11. The plaintiff’s registration was not cancelled under the National Law. It was cancelled under the now repealed Psychologists Act 2001 (NSW). Schedule 5A of the National Law contains transitional provisions. Clause 4 deals with relevant matters being dealt with on commencement day (1 July 2010) and sub-clauses 4(1)(g) and (h) apply to the Zepinic appeal and inquiry that were before the Psychologists Tribunal on commencement day.

  12. Pursuant to Clause 4(2), the Zepinic matters were to be (and were) dealt with under the repealed legislation under which the matters had been commenced, and pursuant to Clause 4(3), ‘after the relevant matter has been decided under the repealed Act, any further proceedings or appeal in relation to the matter the subject of the relevant matter is to be dealt with under this Law as if the relevant matter had been decided under this Law’.

  13. Section 163 of the National Law reads:

163   Appropriate review body [NSW]

(1)  For the purposes of this Division, the appropriate review body is—

(a)  if the order being reviewed provides that it may be reviewed by a Council, the Council; or

(a1)  if the Tribunal List Manager decides, on application by the person the subject of the review or the Commission, that a Council is the appropriate review body, the Council; or

(b)  if the Tribunal List Manager decides, on application by the person the subject of the review, that a National Board is the appropriate review body, the National Board; or

(c)  otherwise, the Tribunal.

(2)  An application for review by a person must be lodged with the Executive Officer of the Council for the health profession in which the person is or was registered.

(3)  The Executive Officer must refer the application to the appropriate review body.

  1. The definition of ‘criminal history’ is found in s 5 of the National Law. It reads:

criminal history, of a person, means the following—

(a)  every conviction of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law;

(b)  every plea of guilty or finding of guilt by a court of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law and whether or not a conviction is recorded for the offence;

(c)  every charge made against the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law.

Background to NCAT decision

  1. I acknowledge that I have largely reproduced the plaintiff’s background for the NCAT decisions from the judgment of N Adams J in Vito Zepinic v Healthcare Complaints Commission [2020] NSWSC 13, which in turn she adopted the history by NCAT.

  2. Dr Zepinic was born in the former Yugoslavia in 1953. He emigrated to Australia in 1993 and applied for registration with the Psychologist’s Registration Board of New South Wales (‘the Board’). He provided documentation concerning his qualifications in the former Yugoslavia and was registered as a psychologist in 1994. On March 1994, Dr Zepinic was first registered as a psychologist in New South Wales. He worked as a psychologist in a number of positions both in Queensland and New South Wales after that time.

  3. Until 30 March 2010, Dr Zepinic remained registered as a psychologist.

  4. On 27 October 2008, the Board found that Dr Zepinic had engaged in unsatisfactory professional conduct in respect of a complaint dated 23 September 2008.

  5. On 22 November 2008, Dr Zepinic lodged an appeal PST 005/2008 against the Board's decision to the Psychologist's Tribunal of New South Wales (‘the Tribunal’), requiring the Tribunal to inquire in to the 23 September 2008 complaint.

  6. Subsequently the Board was notified of further complaints dated 9 October 2009, which were also the subject of inquiry by the Tribunal.

  7. On 12 August 2010, the Tribunal dismissed the appeal and in the inquiry made a finding of professional misconduct against Mr Zepinic. Orders were made including:

  1. that Dr Zepinic’s name be deleted from the register of psychologists for a period of five years from the date of the orders;

  2. that Dr Zepinic is not entitled to apply for registration for a minimum period of five years from the date of the orders; and

  3. that Dr Zepinic is prohibited from providing certain health services

  1. Suppression orders apply to some names of witnesses in the decision of the Tribunal. The plaintiff has not explained the basis of why he seeks to have the suppression orders removed, nor has he explained the source of the Court’s power to make this order. This Court did not make the suppression order.

  2. On 6 February 2017, after the 5-year period had expired, Dr Zepinic applied to the Psychology Board of Australia for registration as a psychologist.

  3. On 8 February 2018, Dr Zepinic was informed that he was required to apply for and be granted a reinstatement order by the NCAT under section 163B of the National Law.

  4. On 21 February 2018, Dr Zepinic applied to NCAT for a reinstatement order.

  5. On 5 June 2018, Dr Zepinic's application for a reinstatement order was heard. On 10 October 2018, NCAT dismissed Mr Zepinic's application and made an order that the decision of NCAT was not to be reviewed until five years after the date of the orders, pursuant to section 163B(5) of the National Law (‘NCAT Decision’). The effect of this order was that Dr Zepinic was precluded from making a further application for reinstatement for a period of five years. Dr Zepinic was also ordered to pay the costs of the Health Care Complaints Commission (‘HCCC’) who appeared as a contradictor in the proceedings. It should be observed that Dr Zepinic could apply for registration on 11 October 2023 (some months away).

  6. On 12 November 2018, Dr Zepinic filed a notice of appeal in the Supreme Court of New South Wales by which he sought an appeal against the NCAT Decision.

  7. On 30 May 2019, the appeal of the NCAT decision was heard by N Adams J.

  8. On 3 February 2020, N Adams J made orders dismissing the appeal and ordered that Dr Zepinic pay the costs of the HCCC, who appeared as respondent on the appeal (‘Supreme Court decision’).

  9. Dr Zepinic then sought to appeal the Supreme Court decision to the New South Wales Court of Appeal. On 17 June 2020, Mr Zepinic's application for leave to appeal was heard by the Court of Appeal (per Macfarlan and McCallum JJA). On 15 July 2020, the Court of Appeal dismissed Mr Zepinic's application for leave to appeal the Supreme Court Decision, with costs: Zepinic v Health Care Complaints Commission [2020] NSWCA 146. Two further motions filed by Dr Zepinic were dismissed by the Court of Appeal on 10 December 2020 and 4 March 2021 respectively: Zepinic v Health Care Complaints Commission (No 2) [2020] NSWCA 320; Zepinic v Health Care Complaints Commission (No 3) [2021] NSWCA 25.

  10. These current proceedings seek to relitigate these prior proceedings. In the Supreme Court proceedings, before N Adams J, Dr Zepinic raised six grounds of appeal. It is difficult to reconcile the orders sought in the summons with the grounds of judicial review or appeal. It is unclear. They are as follows:

“Ground 1:   The NCAT erred in delivering its orders and appellant relied on res judicata principle.

Ground 2:   The NSW Psychologists Tribunal decision against the appellant delivered on 12 August 2010 is based on the falsified certificates.

Ground 3:   On 10 March 2009, the appellant left Australia and has never been served with any documents regarding ex parte proceedings of the NSW Psychologist’s Tribunal conducted on 24 June 2009, 27 and 28 April 2010, and 2 July 2010.

Ground 4:   The certificates of alleged criminal conviction forwarded from the NSW Medical Council to the Queen Mary University of London were falsified.

Ground 5:   Due to the falsified certificates submitted by the NSW Medical Council to the Queen Mary University of London and taken legal proceedings, the appellant has suffered a substantial financial loss, psychological distress upon him and his family, and damages upon his dignity and professional career.

Ground 6:   NCAT decision delivered on 10 October 2018 has no legal grounds but to make further financial and damages on the appellant’s professional reputation and dignity, and distress upon him and his family.”

Certificates of Conviction

  1. The plaintiff has filed an affidavit in these proceedings affirmed on 8 November 2021. This affidavit reflects the plaintiff’s contention that the certificates of conviction issued by the Local Court are based on falsified certificates (grounds 2 and 4). This is a matter that has been traversed in previous proceedings brought by the plaintiff.

  2. The origin of the plaintiff’s grievance is this. On 25 July 2008 the plaintiff was convicted in the Local Court of offences under s 105(1) of the Medical Practice Act 1992 (NSW). In 2008 the HCCC brought a prosecution against Dr Zepinic in the Local Court of NSW for breaches of s 105(1) of the Medical Practice Act 1992 (NSW) (now repealed) which provided as follows:

(1) A person who is not a registered medical practitioner must not take or use any name, initials, word, title, addition, description or symbol which having regard to the circumstances in which it is taken or used indicates or is capable of being understood to indicate or is calculated to lead persons to infer that:

(a) the person possesses a degree, diploma, or other qualification of a nature which would entitle the person to be registered as a medical practitioner, or

(b) the person is registered as a medical practitioner under this Act.

Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.

  1. It was alleged that when Dr Zepinic prepared medico-legal reports he held out that he was a medical practitioner writing the initials "MBBS" after his name. He has never been registered as a medical practitioner in Australia and it has also been confirmed that he has no such qualifications from the former Yugoslavia. I pause here to observe that when I queried why he was described as "Dr Zepinic" in the material before me he explained that he has a Doctor of Philosophy conferred when he was in the former Yugoslavia. Counsel for the HCCC accepted that he was entitled to describe himself in this way.

  2. The hearing was conducted before Magistrate Barkell who on 22 July 2008 found Dr Zepinic to be guilty of the charges. The Local Court transcript of the proceedings on sentence on 25 July 2008 records that although Dr Zepinic’s counsel submitted that it would be appropriate to deal with the matter under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘Sentencing Act’) (that is, that no formal conviction be recorded), Her Honour formed the view that a conviction was appropriate, stating:

“So it does seem to me, bearing all the matters that I have mentioned in mind, that this offence is one which is serious. It is one which is done in the context of someone with no previous convictions and someone who is of good character and a significant contributor to society but it does carry, not only a need for personal deterrence, but a need for general deterrence although not as great as the need found in the case of Lin, I do think that a conviction has to be recorded and I do intend to record convictions for each of the matters.”

  1. Her Honour then convicted Dr Zepinic on each matter and placed him on a 2-year good behaviour bond. On 25 July 2008, Dr Zepinic signed the section 9 bond. As a result of a clerical error the initial certificates of conviction provided by the Local Court to the Board were incorrectly dated 19 August 2008 rather than 25 July 2008. The Local Court subsequently issued amended certificates of conviction, which were before me, which are dated 25 July 2008.

  2. The certificates which were initially issued incorrectly recorded the date of the plaintiff’s conviction. The erroneous date of conviction is referred to in the reasons of the Psychologists Tribunal. It appears that the Local Court subsequently reissued certificates with the correct date of conviction. The published reasons of NCAT and of the Supreme Court show that, on subsequent occasions, amended certificates of conviction bearing the correct dates were in evidence. There is no doubt that the plaintiff was convicted. This gives rise to the plaintiff’s central theme throughout the hearings in the Psychologist Tribunal, NCAT and this Court, which is that the certificate of convictions issued by Burwood Local Court are false. I have included the transcript of the convictions below. The plaintiff was present when this occurred.

  3. The transcript of the plaintiff’s convictions, before Magistrate Barkell in Burwood Local Court recorded as follows:

“Would you stand up please?

ACCUSED: Yes-

HER HONOUR: You have heard what I have said, I do not intend to repeat it -

ACCUSED: Yes I did

HER HONOUR: You will have to take greater notice of the rules that do govern your behaviour and stick by them more carefully whether or not you think they are appropriate but, considering the matters that have been put in your favour, it seems to me appropriate that -

ON EACH OF THESE MATTERS YOU ARE CONVICTED, I RELEASE YOU ON YOUR ENTERING A BOND TO BE OF GOOD BEHAVIOUR FOR A PERIOD OF TWO YEARS

THE TERMS OF THIS BOND ARE THAT YOU ARE OF GOOD BEHAVIOUR AND COMMIT NO FURTHER OFFENCE, THAT YOU NOTIFY THE CLERK OF THIS COURT IF YOU CHANGE ADDRESS AND THAT YOU APPEAR IN COURT IF CALLED ON TO DO SO,

What all that means is if you do not offend again for two years that will be the end of these matters If you do offend again within two years, you can be brought back and punished for these matters, sentenced again for these matters as well as for the new offence because you will have broken the promise on which I release you. Do you understand that-

ACCUSED: Yes I do.”

  1. It is my understanding that the certificates of conviction initially issued by the Local Court incorrectly recorded the date of the plaintiff's conviction as being 19 August 2008. 

  2. The erroneous date of conviction is referred to in the reasons of the Psychologists Tribunal in Zepinic v Psychologists Registration Board of New South Wales [2010] NSWPST 6.

  3. The Local Court subsequently reissued certificates of conviction bearing the correct date of conviction.

  4. It is apparent from their published reasons, that the amended certificates of conviction bearing the correct date were in evidence:

  1. before the NCAT, as is reflected in Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 166 at [50]; and

  2. before the Supreme Court of New South Wales, as is reflected in Zepinic v Health Care Complaints Commission [2020] NSWSC 13 at [16].

  1. The Attorney General has no role in producing or issuing certificates of conviction, nor does AHPRA.

The Attorney-General’s submissions

  1. The Attorney-General has no role in producing or issuing certificates of conviction. Nor does AHPRA. Taking the material at its highest, the contention of the plaintiff is that an employee of the Attorney-General faxed the erroneously dated certificates of conviction to a solicitor at the Crown Solicitor’s Office.

  2. Subsequent to the convictions and the bond being entered into, the Board gave notice of an enquiry under Part 4 Div 4 of the Psychologists Act 2001 (NSW) (‘the 2001 Act’). The enquiry was concerned with whether Dr Zepinic should continue to be registered as a psychologist. The focus of that inquiry was whether Dr Zepinic's conduct constituted unsatisfactory professional conduct within the meaning of s 25 of the 2001 Act, professional misconduct within the meaning of s 24 of the 2001 Act, and whether he was of good character.

  3. On 7 October 2008, the Board conducted its enquiry. Dr Zepinic was in attendance, provided written submissions, made a statement and was questioned by board members.

  4. On 27 October 2008, the Board found that Dr Zepinic was guilty of unsatisfactory professional conduct by reason of a breach of s 25(e) of the 2001 Act based on the conduct giving rise to the Local Court convictions. The Board reprimanded Dr Zepinic under s 51(1)(a) of the 2001 Act for this unsatisfactory professional conduct.

  5. On 22 November 2008, Dr Zepinic wrote to the Registrar of the Board. He commenced his five page letter in this way:

"I acknowledge receipt of the Reasons for Decision in relation to the Board inquiry under section 48 Psychologists Act 2001. I reject the findings and lodge an official appeal considering that a natural justice was not taken into consideration. I also found that sending copy of the Reasons for Decision to the Clinical College of the Australian Psychological Society is an act of pre-emptive strike to decrease chances in someone's defence."

  1. At that time, s 53(2) of the 2001 Act provided that the Psychologist's Tribunal could direct that a person's registration be cancelled if the Tribunal is satisfied that the person is:

…

(b) guilty of professional misconduct, or

(c) that the person has been convicted of or made the subject of a criminal finding for an offence, either in or outside New South Wales, and the circumstances of the offence are such as to render the person unfit in the public interest to practice psychology, or

(d) that the person is not of good character.

…

  1. Section 111(4) of the 2001 Act permitted the Tribunal to determine such an inquiry or appeal in the absence of the psychologist.

  2. In addition to Dr Zepinic's appeal lodged by the 22 November 2008 letter, the Board also sought that Dr Zepinic's registration be cancelled and made two further complaints to the Tribunal dated 9 October 2009. The first of these two additional complaints was that Dr Zepinic was not of good character because of false representations or declarations he was alleged to have made to the following: the Royal Australian and New Zealand College of Psychiatrists (RANZCP), the Australian Medical Council, the Medical Board of Western Australia, the New South Wales Medical Board, the Hunter Mental Health Service, the Medical Board of Queensland, the University of Sydney, and the Psychologists Registration Board of New South Wales (in an annual renewal of registration).

  3. The second additional complaint was that Dr Zepinic was guilty of professional misconduct, because he falsely declared to the Board in his annual renewal of registration on 23 March 2009 that he did not have a criminal history.

  4. Dr Zepinic attended the first directions hearing at the Tribunal when the initial timetable for exchange of documents was fixed. He failed to attend the further directions hearings. He also failed to provide any documentation other than the material annexed to the original appeal. Records show that on 10 March 2009 he left the country to reside in the United Kingdom.

  5. Dr Zepinic's appeal and the additional complaints were all subsequently heard by the Tribunal in his absence on 24 June 2009, 27 and 28 April 2010 and 2 July 2010.

  6. On 1 July 2010, the relevant legislation regulating the deregistration and application for review of psychologists changed. The 2001 Act was repealed and the National Law came into force and took effect in New South Wales.

The Tribunal’s 2010 decision

  1. On 12 August 2010, the Tribunal published its reasons for decision. It found the initial complaint concerning the breaches of s 105 of the Medical Practice Act 1992 (NSW) and an additional two complaints to be established. It was also satisfied that 13 of the 19 particulars for the first additional complaint were established.

  2. The Tribunal was satisfied that, based on the evidence, Dr Zepinic's undergraduate and postgraduate qualifications were in psychology only. In addition to being satisfied of the Local Court convictions, the Tribunal was also satisfied that Dr Zepinic had answered "no" to the following questions on his application for renewal of registration in 2009: "Have you been convicted of any offence, in or outside NSW, except an excluded offence?" and "Has a criminal finding been made against you for an offence committed in the course of the practice or purported practice of psychology?".

  3. The Tribunal was also satisfied that Dr Zepinic made a number of false representations that he had medical qualifications to the RANZCP in 1996 and 1998, to the Australian Medical Council in 1997 and 1998 (and also that he had postgraduate qualifications in psychiatry) and the University of Sydney in or about 2005. In addition, on 6 April 1999 he had created an "unauthorised" letter and forged the signature of a colleague at St John of God Hospital Burwood purporting to confirm an offer of a position as "Medical Officer" at the hospital in order to support his application for registration to the NSW Medical Board. Dr Zepinic had also given false evidence to Burwood Local Court on 14 April 2008 in stating that he had a Doctor of Medicine from the University of Sarajevo.

  4. On 13 August 2010, the Tribunal, having heard Dr Zepinic’s appeal from a decision of the Board under s 17 of the Psychologists Act and an inquiry under s 53 of that Act, made an order cancelling Dr Zepinic’s name from the register, a prohibition order and an exclusion order for a period of five years.

Convictions in the United Kingdom

  1. After Dr Zepinic left Australia he sought to practice as a psychologist in the United Kingdom. When asked whether he had any criminal convictions on the relevant documentation he replied that he did not.

  2. On 8 August 2013, Dr Zepinic was convicted in a jury trial in the Crown Court at Wood Green in the United Kingdom of three counts of fraud. These convictions arose from Dr Zepinic's failure to disclose his 2008 convictions in his job application made on 9 September 2009 to Queen Mary University London; his failure to disclose in applications made between 22 November 2010 to 2 August 2011 for 22 jobs with National Health Service employers that he had previous convictions and had been removed from the register; and his failure to disclose in an application on 1 August 2011 for a post as Board Secretary of the Royal Free Hampstead NHS Trust that he had been removed from the register.

  3. He was sentenced to a community order for 12 months. Dr Zepinic’s application for leave to appeal against conviction was refused by a single Judge and his appeal to the Court of Appeal, Criminal Division, was dismissed on 6 November 2014.

Application for a reinstatement order

  1. On 8 October 2016, Dr Zepinic returned to Australia to reside. Shortly thereafter he sought a reinstatement order so that he could be registered as a psychologist in New South Wales again.

  2. Since 1 July 2010 deregistration decisions taken under the 2001 Act are taken to have been made under the National Law: s 287 National Law. Part 8, Division 8 of the National Law provides for reinstatement applications. The Psychology Board of Australia cannot consider whether Dr Zepinic should be registered as a psychologist until NCAT has granted him a reinstatement order under s 163B of the National Law.

  3. The reinstatement application was first listed for hearing on 5 June 2018 but that matter was adjourned: Zepinic v Health Care Complaints Commission [2018] NSWCATOD 92.

2018 NCAT decision

  1. The reinstatement application was ultimately heard before NCAT on 17 and 18 July 2018. Dr Zepinic gave evidence and was cross-examined at that time.

  2. The powers of NCAT on a review under s 163B of the National Law are as follows:

163B Powers on review [NSW]

(1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following-

(a) dismiss the application;

(b) make an order ending or shortening the period of the suspension concerned;

(c) make a reinstatement order;

(d) make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions;

(e) make an order-

(i) ending or shortening the period of a prohibition order; or

(ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions.

(2) If the appropriate review body makes an order altering a critical compliance condition or removing a critical compliance condition and imposing a new condition, the altered condition or new condition is a critical compliance condition unless the body orders otherwise.

(3) A reinstatement order is an order that the person may be registered in accordance with Part 7 if-

(a) the person makes an application for registration to the National Board; and

(b) the relevant National Board decides to register the person.

(3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4).

(4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order.

(5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time.

  1. In relation to a scope of a review, s 163C(2) of the National Law provides that:

163C Inquiry into review application [NSW]

…

(2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision.

…

  1. The HCCC acted as contradictor before the Tribunal. It opposed the application for a reinstatement order and submitted that the application should be dismissed. It was also submitted that a further non-review period of five years should be imposed.

Decision of NCAT – 2018

  1. On October 2018, NCAT refused the reinstatement application and provided its reasons for doing so: Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 166.

  2. The reasons for NCAT's refusal to reinstate Dr Zepinic commence with an outline of the procedural history of the matter and extraction of the relevant appeal provisions. The relevant principles guiding a reinstatement application are set out at [6]-[9] of the decision. No challenge was made to the correctness of the applicable principles. It was noted that the standard of proof is the civil standard, on the balance of probabilities, to the level of satisfaction described by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.

  3. After setting out these relevant principles, some background material is briefly set out at [10]-[14] before the findings of the Tribunal in 2010 are summarised and extracted in some detail at [15]-[22], including the following extract of the 2010 decision at [197]-[202]:

"Findings in relation to the Original Complaints

197. The Tribunal is comfortably satisfied that the Appellant's conduct constitutes unsatisfactory professional conduct in that it demonstrates that the Appellant conducted himself in an improper and unethical manner and that the conduct demonstrated that the judgment possessed by the psychologist in the practice of psychology was significantly below the standard reasonably expected of a psychologist of an equivalent level of training and experience to that of the Appellant. Further the Tribunal is of the view that the conduct is of such a sufficiently serious nature to justify suspension or cancellation of registration. The Tribunal makes a finding of professional misconduct with respect to the original Complaint.

198. As to the 'not of good character' Complaint, the Tribunal is required to make a determination as at the date of the Inquiry/decision. The conduct is certainly indicative of a deficit in character. The Tribunal would not be reasonably satisfied that this conduct alone would result in a 'not of good character' finding. Given the additional matters put before the Tribunal it is appropriate for the Tribunal to consider the conduct established under the four Particulars of the Original Complaint along with those matters subsequently put before the Tribunal when determining the appropriate Orders to make.

Findings in relation to Additional Complaint One

199. As set out above, the Tribunal has made findings with respect to each of the Particulars of the additional Complaint One. The Tribunal accepts the submissions made by the Respondent.

200. Whilst not every act of dishonesty (forgeries, false declarations and a failure to disclose to the Board in this instance) would in itself allow a finding of 'not of good character' to be made, the level of dishonesty of the Appellant found by the Tribunal is remarkable. When considered in its totality there is a pattern of the Appellant providing information that would progress his various applications rather than of providing truthful information. His reliance on the difficulties that are expected when leaving a country in the throws [sic] of civil unrest is disingenuous and deceitful. This conduct shows no regard for those people who genuinely hold qualifications to which they have no access because of such upheavals and may be deserving of the trust of a registration authority.

201. The Tribunal has evidence before it that when the District Court considered a personal injuries claim made by one of the Appellant's clients in 2001 it was argued that his evidence should be rejected on the basis that there was (at that stage) an allegation that the Appellant was holding himself out as a medical practitioner. On this occasion this argument was rejected. However, the potential for an adverse outcome for a client of the Appellant as a result of the Appellant's conduct is clearly demonstrated (see volume 1 - exhibit C1, page 58).

202. The Appellant engaged in a pattern of misleading conduct, providing false information whenever it suited his purposes.

203. The Appellant forged documents and signatures. He provided the false and misleading information not only to various relevant professional bodies but also to numerous registration authorities. He was prepared to provide this information as statutory declarations and solemn declarations which in some cases were witnessed by Justices of the Peace.

204. The Appellant made these representations knowingly, for his own purposes and benefit. His aim was to gain professional standing to which he was not entitled. The Tribunal notes the provisions of the Oaths Act 1900 (NSW).

205. His reliance on his refugee status compounds the abysmal nature of his conduct.

206. Although the Tribunal has viewed the Particulars cumulatively in forming the view of a reasonable satisfaction as to the conduct demonstrating a lack of good character, there are a number of Particulars that would in and of themselves allow the Tribunal to reach such a finding. The falsification of the letter on the St John of God letterhead and the forging of Ms McCabe's signature is one such act and the representations made to the effect that he held an undergraduate medical qualification is another.

207. The conduct occurred over a significant period of time. The Decision of the Board Inquiry indicates that the Appellant was not acting in a manner expected of a professional person. The Appellant has not taken any steps to correct the misleading information he has provided to various entities even after the falsity of the documents was beginning to be uncovered.

208. The Appellant did not attend the further Directions Hearings in this matter and did not comply with the timetables set by the Tribunal. The Appellant failed to attend the Inquiry. There is nothing in evidence before the Tribunal that would indicate that there has been any reformation of the character of the Appellant.

209. The conduct of the Appellant demonstrates serious and significant defects in his character. The Tribunal is reasonably satisfied that the conduct of the Appellant demonstrates that he is not of good character.

Findings in relation to Additional Complaint Two

210. The Tribunal notes that the Appellant failed to honestly answer Questions 1 and 3 on his annual registration renewal form. The Act provides for the Board to require this information to be provided and verified as a statutory declaration. By making a false declaration the Appellant has contravened a provision of the Act.

211. Further, even if there was no such statutory obligation, the provision of relevant information is a fundamental responsibility of all registered health care professionals. Providing false information in the circumstances of this matter clearly constitutes improper and unethical conduct in the course of the practice of psychology.

212. The Appellant's conduct is of such a sufficiently serious nature to justify suspension or cancellation of registration. The Tribunal makes a finding of professional misconduct with respect to Additional Complaint Two."

  1. The judgment then goes on to extract [215]-[221] of the 2010 decision. These paragraphs are as follows:

"215. The Appellant made blatant and wilful misrepresentations to the Board, to other registration authorities and to other professional organisations. The misrepresentations may well have denied these bodies the opportunities to act appropriately to protect the public and to otherwise carry out their important functions.

216. The primary function of the Tribunal is to protect the public. Other matters to be considered by the Tribunal as relevant considerations are the maintenance of discipline within the profession, a general deterrent effect and the maintaining of public confidence in the profession. The Tribunal therefore must consider Orders that fulfil these requirements. Whilst it is an established principle of law that the Tribunal should impose the least restrictive Orders possible in the circumstances, the protection of the public is paramount and outweighs consideration of the onerous burdens that Orders may place upon a practitioner. In this matter protection of the reputation of the profession and the maintenance of confidence that the public is entitled to expect in the profession of psychology are prominent considerations.

217. Given the length of time the Appellant engaged in the deceptive conduct detailed in this matter and the nature of the deficits in character exposed by the findings of this Tribunal the Appellant will require a lengthy period of time to address these issues. The Tribunal will fix a period of five years from the date of the decision during which the Appellant will not be entitled to apply for a review of the Orders.

218. The Tribunal is satisfied that the Appellant lacks the character required to be a registered psychologist; further, he has conducted himself in an improper and unethical manner over a lengthy period of time.

219. The Tribunal is of the view that conditions on registration would not be appropriate in this matter. Not only is the conduct of the Appellant so appalling that it would attract the most severe criticism, the Appellant has demonstrated he cannot be trusted to act in an honest and truthful manner.

220. The Appellant poses a significant risk to the public safety, particularly having regard to the manner in which he has repeatedly made false and misleading statements to various regulatory and professional organisations. The Appellant did not attend the Inquiry and has not provided a full and frank account of his conduct to the Tribunal. The conduct of the Appellant extended beyond the profession of psychology, and beyond registration authorities. The Tribunal therefore considers it appropriate to proceed to make a Prohibition Order.

221. The provisions of the Act relating to the award of costs are what is commonly known as 'costs follow the event'. The Tribunal orders costs in favour of the Respondent in the usual terms."

  1. The evidence relied upon by Dr Zepinic is then set out. At that hearing, he gave oral evidence and was cross-examined over two days ([23]-[27]). Dr Zepinic's submissions are then set out in some detail at [28]-[39]. In essence, Dr Zepinic sought a reinstatement order on the basis that the 2010 Tribunal decision was invalid because the hearings were invalid, the six certificates documenting his convictions in Burwood Local Court were fraudulent and he did not accept the decision of the Psychologist’s Registration Board of 27 December 2008.

  2. The submissions of the HCCC are then summarised at [40]-[44]. NCAT's reasons for refusing to reinstate Dr Zepinic commence from [45] of the decision where it is noted that its task was to "consider whether Dr Zepinic has demonstrated that in the future he will act in accordance with the high standards and responsibilities of the profession".

  3. At [47], NCAT acknowledged that the fact that Dr Zepinic does not admit that he is guilty of misconduct and continues to claim that he is innocent of the conduct found by the Tribunal does not of itself preclude reinstatement but noted the observations of Mason P (as he then was) in Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 at [100] that "there is no error in concluding in a particular context that continuing vigorous challenge to clearly established guilt may be indicative of continuing unfitness".

  4. At [49] NCAT found that Dr Zepinic has not demonstrated any insight into or contrition for the conduct which was the subject of the orders made by the Tribunal. This conclusion was based in part on Dr Zepinic's denial that he was ever convicted in Burwood Local Court in 2008. It was noted (at [50]-[53]) that the basis for Dr Zepinic's assertion that he was never convicted was the initial incorrectly dated certificates of conviction. The amended certificates in evidence before NCAT confirmed the correct date of conviction as 25 July 2008 which is consistent with the transcript of the Local Court proceedings. The transcript extracted above, records that on 22 July 2008 Magistrate Barkell found Dr Zepinic guilty of six counts of offending against s 105(1) of the Medical Practice Act and he was convicted and sentenced on 25 July 2009. It was noted that although Dr Zepinic's representative submitted that the court should consider dismissing the charges under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Magistrate convicted Dr Zepinic and released him on his entering a bond under s 9 of that Act to be of good behaviour for a period of two years.

  5. It was noted that Dr Zepinic maintained his assertion that he had not been convicted in his evidence before NCAT despite being shown the above documents in cross examination (the transcript of the proceedings at Burwood Local Court on 25 July 2008 and a copy of the bond made under s 9(1) of the Sentencing Act, signed by Dr Zepinic on 25 July 2008). I have reproduced the relevant portions of the transcript earlier in this judgment.

  6. NCAT was satisfied that Dr Zepinic was convicted of the six offences under s 105(1) of the Medical Practice Act on 25 July 2008 and these convictions formed the basis of the Board inquiry and the appeal to the Tribunal: at [53].

  7. NCAT went on to consider Dr Zepinic's second argument that the 2010 decision is "invalid and void" because it was heard in his absence. NCAT was satisfied that it had no jurisdiction to make any findings as to the validity of the 2010 decision: at [54]. The following observations were then made about Dr Zepinic's complaint in this regard:

"However, we are satisfied that the letter of 22 November 2008 was clearly intended by Dr Zepinic as an appeal against the findings of the Psychologists Registration Board, and having initiated that process, that Dr Zepinic participated to the extent of the first directions hearing. The Psychologists Tribunal was empowered to deal with the additional complaints: cl 5, Sch 5, 2001 Act; and it was empowered to determine the appeal and inquiry in the absence of Dr Zepinic: s 111(4), 2001 Act. Dr Zepinic takes issue with the wording of the orders made by the Psychologists Tribunal, which refer both to "Respondent" and "Appellant", in support of his argument that the orders do not apply to him. However, in a matter in which that Tribunal was considering both an appeal against the findings of the Board and the additional complaints against Dr Zepinic, and where it is clear that Dr Zepinic is the subject of those orders, Dr Zepinic has not established how any such references could affect the validity of the orders, or how he could properly believe that the orders can be ignored because they do not apply to him. More fundamentally, Dr Zepinic has taken no steps to challenge the process undertaken by the Psychologists Tribunal, or to have its findings and orders set aside, in a court with jurisdiction to do so. The Tribunal accepts the HCCC submissions that the 2010 Decision stands, and as a "relevant order" as defined in s163A of the National Law is the basis of Dr Zepinic's application for an order under s 163B of the National Law."

  1. NCAT then went on to consider Dr Zepinic's evidence noting at [55] that

"[m]uch of Dr Zepinic's oral evidence was unsatisfactory, and unresponsive to the questions asked. When taken to particular documents or matters adverse to his interests, Dr Zepinic tended to deflect any blame, instead asserting that particular documents… were falsified."

  1. Dr Zepinic's evidence as to when he became aware of the 2010 decision was described as "inconsistent and unsatisfactory". Records before NCAT showed that although Dr Zepinic was not in Australia for the actual hearing in 2010 he travelled to Australia 16 times after leaving on 10 March 2009 and before returning to Australia on 8 October 2016.

  2. Dr Zepinic’s evidence before NCAT was that he first became aware of the 2010 decision during his prosecution in the United Kingdom in 2013 but the judgment of the Court of Appeal Criminal Division of 6 November 2014 in relation to that conviction records Dr Zepinic’s evidence at trial being that he had found out about the order in 2011. Neither of these versions provided by Dr Zepinic as to when he first became aware of the 2010 decision is consistent with correspondence to Dr Zepinic dated 22 October 2010 from the UK Health Professions Council informing him that his application for registration had been refused on the basis that he had not declared that his name had been removed from the NSW register on 12 August 2010.

  3. NCAT was satisfied that “even if Dr Zepinic was absent during the Psychologists Tribunal process and at the time its decision was made, he was aware of the orders made by the Psychologists Tribunal by October 2010”: at [55].

  4. NCAT determined at [56] that it was:

"…satisfied that Dr Zepinic has not addressed the matters in respect of which the Psychologists Tribunal concluded in 2010 that he was guilty of professional misconduct and not of good character. He has continued to deny the basis on which those findings were made and their applicability to him, and to deflect blame, rather than take steps to have the orders made then set aside."

  1. NCAT went on to find that "since 2010 Dr Zepinic has continued to conduct himself in an improper and unethical manner, and to act in a manner which demonstrates that he is not of good character." In support of this NCAT relied upon three further matters since 2010.

  2. First, the convictions in the United Kingdom were based on the same as conduct as that raised in these proceedings. Secondly, Dr Zepinic failed to disclose his 2008 convictions in his most recent application to AHPRA. Thirdly, Dr Zepinic continued to use false documents, in particular a reference purporting to have been given by Dr Selwyn Smith dated 22 February 1999. The Tribunal had in evidence in 2010 an affidavit sworn by Dr Smith that he did not provide such a reference and that the signature on it was not his. When asked why he had provided this document to NCAT, Dr Zepinic did not address the issue. His response was that he required proof that it was his signature on the reference, and that Dr Smith's statement was false.

  3. NCAT went on to consider the quality of Dr Zepinic's character and was satisfied that:

"64. …far from demonstrating any reflection on or attempts to address the shortcomings identified in the 2010 Decision, Dr Zepinic has continued to exhibit behaviour that is completely inconsistent with the standards of honesty and integrity expected of a health practitioner. He has failed to acknowledge, and to disclose to regulatory authorities and potential employers, his convictions in 2008 for offences under the Medical Practice Act. Those offences were described by the Magistrate as serious, and as being counter to the purpose of the legislation to protect the system of registration (ex R1, tab 7, p 186). He has failed to acknowledge, and to disclose to regulatory authorities and potential employers, that orders were made in 2010 by the Psychologists Tribunal to cancel his registration and impose a prohibition on his applying for re-registration. Instead, he has demonstrated a fixation with the date differences for the 2008 convictions and his grievances as to the process of the Psychologists Tribunal determination.

65. Dr Zepinic has not provided any basis on which the Tribunal could be satisfied that there has been a change since the findings in the 2010 Decision that there is a pattern of Dr Zepinic providing information that would progress various applications rather than providing truthful information, and that his conduct demonstrated serious and significant defects in his character. The Tribunal cannot be confident that he exhibits the required degree of candour and honesty with regulatory authorities, as stated in Health Care Complaints Commission v Kesserwani [2017] NSWCATOD 149 where the Tribunal said:

98. It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with the regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities: see HCCC v Chowdhury [2015] NSWCATOD 65 at paragraph 81.

66. We are not satisfied that Dr Zepinic has demonstrated, on the balance of probabilities, that he can now be trusted to practice in a manner that conforms to the professional and ethical standards expected of a registered psychologist. We are not satisfied that there has been a reformation of character, and we cannot be satisfied that for the future he will act in accordance with the high standards and responsibilities of the profession. Dr Zepinic's application for a reinstatement order should be dismissed."

  1. In addition to dismissing the application, NCAT ordered that there was to be no review of its order until five years after its date and that Dr Zepinic was to pay the HCCC's costs.

Summary dismissal and strike out motions

The plaintiff’s submissions

  1. The focus of Dr Zepinic's detailed written submissions dated 12 September 2022 (Ex 1 104) concentrated on two issues: First, his assertion that he was not convicted in the Burwood Local Court in 2008 and, second, his assertion that the decision of the Tribunal in 2010 was a nullity because he was not present. Reliance was placed on, the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, which concerns how judicial documents are to be transmitted abroad.

  2. A number of decisions relevant to criminal law were also cited in his submissions including: Reg. v Boardman [1975] AC 421, Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50, Makin v Attorney-General (1989) 167 CLR 590; [1984] AC 57, Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, R v Hanson, Gilmore & Pickstone [2005] 2 Crim App R 21, R v Fouad Bennabou [2012] EWCA Crim 3088, R v Highton [2005] 1 WLR 3472, DS v HM Advocate (2007) SC (PC) 1, Campbell v R [2007] 2 Cr App Rep 28, R v Ghosh [1982] 2 All ER 689, Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67, B v The Queen (1992) 175 CLR 599; [1992] HCA 68 and O'Brien v Chief Constable of South Wales Police [2005] UKHL 26. The relevance of these decisions appears to have been that he challenged the Tribunal's finding that he was not of good character.

  3. During oral submissions it was explained to Dr Zepinic that the nature of the appeal was that he had an appeal as of right on a question of law and by leave on any other ground against the decision of NCAT. Despite being warned on numerous occasions that he was not to make any further submissions about his lack of convictions or assertion that the 2010 decision was a nullity he continued to do so. I then afforded Dr Zepinic a brief adjournment so that he could identify those parts of the decision of NCAT which he submitted disclosed error.

  4. After court resumed, Dr Zepinic submitted that it was not open to NCAT to find that he was convicted at Burwood Local Court and that the UK convictions are not sound because they were based on incorrect certificates of conviction. He also challenged the finding that he lacked insight because he kept challenging what happened in 2010. He repeated the arguments put before NCAT that the fact that he was referred to as both respondent and appellant in the 2010 decision means that there is a defect in those orders and they do not apply to him.

  5. He further submitted that the 2010 decision was void based on the decisions of Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14 and Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; [1995] HCA 10.

The submissions of the Attorney-General – the first defendant

  1. In explaining the basis for its application, the Attorney-General has dealt with each of the paragraphs of relief in the summons in turn. The Attorney-General noted that the plaintiff filed a document on 19 September 2022 addressing the orders sought in the defendants’ notices of motion.

Paragraph 1 of Summons – Invalidate “suppression order apply”.

  1. Paragraph 1 of the summons seeks to invalidate what is described as a “Suppression Order Apply” delivered by “NSW Psychologists Tribunal” on 12 August 2010. The Attorney-General understands this to be a reference to Zepinic v Psychologists Board of NSW [2010] NSWPT 6. The Attorney-General played no role in those proceedings.

  2. The plaintiff has previously sought similar relief from NCAT. NCAT observed that it had no jurisdiction to make findings concerning the validity of the decision made in 2010, and noted that the plaintiff had not taken any steps to challenge the process undertaken by the Psychologists Tribunal or to have its findings and orders set aside in a court with jurisdiction to do so Zepinic v HCCC (No 2) [2018] NSWCATOD 166 at [52]–[53].

  3. At the time of the decision of the Psychologists Tribunal, the Psychologists Act 2001 (NSW) (now repealed) was in force. Any appeal rights that the plaintiff had pursuant to the Psychologists Act have long since expired. In addition, the proper respondent to such an appeal would not been the Attorney General. The plaintiff has identified no basis (in the National Law or otherwise) on which this Court could intervene to set aside the 2010 decision of the Psychologists Tribunal. I agree with the Attorney-General’s submissions. This claim is groundless and untenable against him.

Paragraph 2

  1. Paragraph 2 of the summons seeks an order to invalidate “the judgment/orders delivered by the NSW Civil and Administrative Tribunal on 10 October 2018.” This appears to be a reference of the decision in Zepinic v HCCC (no 2) [2018] NSWCATOD 166.

  2. The plaintiff has already appealed against this decision, and subsequently sought to challenge both the first instance decision dismissing his appeal, and this Court’s affirmation of the first instance decision: Zepinic v HCCC [2020] NSWCA 146; Zepinic v HCCC (No 2) [2020] NSWCA 320. This claim seeks to re-litigate matters that have already been finally determined and is an abuse of process.

Paragraph 3

  1. Paragraph 3 of the Summons seeks a “reinstatement order to the [second defendant] that [Zepinic] be unconditionally re-registered as a psychologist”. Reinstatement of a psychologist is now governed by the National Law. On 10 October 2018, NCAT ordered pursuant to s 163B(5) of the National Law that the order of the Psychologists Tribunal was not to reviewed for five years; that is, the plaintiff is not able to make further application for reinstatement until five years after 10 October 2018. That period has not yet elapsed. In addition, the appropriate forum to seek such a reinstatement is not this Court.

  2. Finally, the Attorney-General would not be a party to any such application. For these reasons, Paragraph 3 must fail and should be summarily dismissed.

Paragraphs 4 and 5

  1. Paragraph 4 of the Summons seeks costs from the respondents on an indemnity basis. It is not necessary to deal with the substance of this paragraph as it is consequential upon the plaintiff’s success in the proceedings.

  2. Paragraph 5 seeks damages in relation to perjury, forgery and defamation. This paragraph for relief should be struck out on the basis that it is embarrassing. In relation to the allegations of perjury and forgery, no reasonable cause of action is disclosed in the material filed by the plaintiff. The plaintiff has not articulated a basis on which these assertions relate to any matter in relation to which this Court’s jurisdiction could properly be invoked. His assertion of defamation is wholly unparticularised and, in any event, defamation proceedings cannot be commenced by Summons in this Court.

  3. The majority of the plaintiff’s detailed submissions deal with the decision of the Psychologists Tribunal made on 12 August 2010.

  4. Further, and more significantly for the purposes of the Attorney-General’s application, the Attorney-General played no role in those proceedings, and there is no reason why the Attorney-General would be a proper party to any proceedings in relation to the decision of the Psychologists Tribunal.

  5. The plaintiff’s submissions also deal with alleged defamation (see, e.g., [91]-[93]). The claims made by the plaintiff concerning defamation (and “fraud and forgery”) are embarrassing, and disclose no reasonable cause of action. In addition, even if the plaintiff had arguable claims in this regard, this is not the appropriate forum for the plaintiff to commence those proceedings.

  6. In summary, the plaintiff seeks to relitigate, in these proceedings, a number of matters that have already been determined, and to raise issues which have no connection to a matter that could properly be brought before this Court. The proceedings should be summarily dismissed.

  7. In addition, the only claim that could affect the rights and liabilities of the Attorney-General, such that the Attorney-General would be a proper party, is paragraph 5. For the reasons set above, this claim should be summarily dismissed or struck out. If that occurs, the Attorney-General should be removed as a part to these proceedings.

  8. The Attorney-General ultimately submitted that the plaintiff seeks, in these proceedings, to relitigate a number of matters which have already been determined, and to raise issues which bear no real connection to any matter which could be brought properly before this Court. The claims made by the plaintiff are groundless and untenable. They should be summarily dismissed.

  9. In addition, the only claim that could, on any view, affect the rights and liabilities of the Attorney-General is paragraph 5. For the reasons set out above, it was submitted that this claim should either be summarily dismissed or struck out. In the event that this occurs, the Attorney-General submits that he should be removed as a party to these proceedings.

The submissions of AHRPA

  1. The second defendant seeks to strike out or otherwise dismiss the summons on the following grounds:

  1. The second defendant does not have authority to register the plaintiff as a psychologist or any other health practitioner - that is the role of the National Board responsible for each health profession;

  2. Even if the second defendant had authority to register the plaintiff it would be prohibited from doing so because the plaintiff has been disqualified from practising as a psychologist and has not secured a reinstatement order that would permit any application for registration to be considered on its merits;

  3. Further and in any event there is no merit in the plaintiff s claims, which have been dealt with exhaustively in other proceedings before this Court, and before the New South Wales Civil and Administrative Tribunal.

  1. As such, the order disqualifying the plaintiff from practising as a psychologist for a period of five years is taken to be a disqualification order made under the National Law, and a National Board cannot register the plaintiff unless and until a reinstatement order has been made.

  2. The plaintiff has made one application for a reinstatement order, which is the subject of the decision in Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 166. The application failed and the plaintiff was disqualified from making a reinstatement order for a further period of five years.

  3. The National Law is a statutory scheme that governs the registration of health practitioners. It contains within it a process by which practitioners can appeal from decisions made by the NCAT. The plaintiff has exhausted his appeal rights in respect of the Tribunal decision in 2018.

  4. The plaintiff has not identified any way in which this Court has any residual jurisdiction to make an order reinstating him to the register of psychologists. It is inconceivable that the Court would consider making such an order where the statutory scheme requires the plaintiff to have obtained a reinstatement order from NCAT, and he has failed to secure same. Further and in any event, AHPRA is not the body that registers psychologists and could not comply with any order, in the extremely unlikely event that such an order were to be made by this Court.

  5. In the decision declining the plaintiff’s application for a reinstatement order the NCAT set out, and rejected, the plaintiff s position that he was not convicted of offences in 2008. In rejecting the plaintiff s appeal from this decision N Adams J noted that "A reading of the transcript of the proceedings makes it clear both that Dr Zepinic was convicted and also that this was on 25 July 2008, not in August 2008."

  6. The 2010 Psychologists Tribunal decision relied on a number of matters - not only the fact of the 25 July 2008 convictions, to find that the plaintiff’s registration should be cancelled. In 2018, NCAT held that the plaintiff had initiated the appeal to the Psychologists’ Tribunal, had attended at the first directions hearing and had taken no steps to appeal from or otherwise challenge the 2010 decision. Further, the 2018 Tribunal found the plaintiff to be an unsatisfactory witness who failed to address the adverse finding made against him in 2010.

  7. In noting and rejecting the plaintiff’s claim that the 2010 decision was "invalid or void”, N Adams J noted the Tribunals finding that the plaintiff had been aware of the decision since October 2010: see [55] of the NCAT decision. I have set that finding out earlier in this judgment.

  8. The plaintiff’s application for leave to appeal from N Adams J’s judgment, and subsequent attempts to review the appeal judgment, have all been dismissed.

The plaintiff’s further submissions

  1. In oral submissions, the plaintiff argued that neither defendant filed a notion of appearance or defence. He relied upon UCPR 6.1 and 6.10(1)(b), referred to Hulme v Hulme [2023] NSWSC 299 (‘Hulme’) at [5] and stated that in the event of non-compliance with this rule, this Court may dismiss any proceedings or any documents filed by the defendants without leave of the Court (T13-14).

  2. Rules 6.1. and 6.10(1)(b) of the UCPR read as follows:

6.1 No step without originating process or notice of appearance

(1) Except by leave of the court, a party may not take any step in proceedings (including any appearance in court) unless the party has filed a statement of claim or summons in the proceedings or has entered an appearance in the proceedings.

(2) Subrule (1) does not apply to—

(a) a defendant who applies for an order under rule 12.11 (Setting aside originating process etc), or

(b) a plaintiff who applies for an order under rule 25.2 (Order in urgent case before commencement of proceedings), or

(c) a defendant who makes an application in relation to the setting aside or enforcement of any judgment.

(3) In any proceedings, a person (not being a party and not having filed a notice of motion) may not take any step in the proceedings (including any appearance in court) unless he or she has filed a notice of address for service.

…

6.10   Time for appearance

(1) For the purposes of these rules, the time limited for a defendant to enter an appearance (whether by filing a notice of appearance in accordance with this Division or by filing a defence in accordance with Division 4) is—

(a)  in the case of proceedings commenced by statement of claim—

(i)  28 days after service on the defendant of the statement of claim or such other time as the court directs for the filing of a defence, or

(ii)  if the defendant makes an unsuccessful application to have the statement of claim set aside, 7 days after the refusal of the application,

whichever is the later, or

(b)  in the case of proceedings commenced by summons—

(i)  on or before the return day stated in the summons, or

(ii)  if the defendant makes an unsuccessful application to have the summons set aside, 7 days after the refusal of the application,

whichever is the later.

(2)  A reference in subrule (1)(b) to a summons extends, in relation to the Land and Environment Court, to an application that, in accordance with the rules of that Court, commences proceedings in Class 1, 2 or 3 of that Court’s jurisdiction.

  1. In Hulme, Hallen J stated at [5]:

“[5] Although the Defendant was served with the amended Statement of Claim filed on 20 September 2022, he has not entered an appearance (Uniform Civil Procedure Rules 2005 (NSW) (UCPR) rule 6.9) or filed a defence to the amended Statement of Claim (UCPR rule 14.3). Pursuant to UCPR rule 6.1, he would have been unable to take any step in the proceedings (including any appearance in court) without the leave of the court. He was not an "active party" in the proceedings (UCPR rule 1.2).”

  1. The difficulty with this submission is that as the plaintiff’s proceedings were commenced by summons, the defendants were not required to file defences. This submission fails.

Conclusion

  1. The claims brought in the summons are lodged out of time, are an abuse of process as the subject matter, namely the 2008 and 2010 proceedings and have already been litigated and dealt with in previous proceedings. The plaintiff’s central complaint concerns the certificates of conviction in the Local Court. He is adamant in his belief that the certificates have been falsified. Despite that this issue has been dealt with on a number of occasions in a prior NCAT decision and in this Court. It has been shown while the certificates of conviction initially had the wrong date of conviction, they were subsequently corrected. The plaintiff has continued to relitigate this issue again in these proceedings. Further, these claims are not ones where the defendants are liable. For the reasons I have set out earlier, the grounds set out in the summons filed 14 December 2021 is dismissed. The proceedings are dismissed.

Costs

  1. Costs are discretionary. Costs usually follow the event.

Future action?

  1. As the plaintiff continues to relitigate the same matters, the Attorney General may give consideration as to whether he should bring proceeding to declare the plaintiff vexatious.

  2. Orders were made pursuant to s 8(7)(a) of the Vexatious Proceedings Act 2008 (NSW) that proceedings instituted by the plaintiff, only in relation to the proceedings concerning Chateau (a building company), have been stayed. Section 8(7)(a) of the Vexatious Proceedings Act states that the Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person staying all or part of any proceedings in New South Wales already instituted by the person.

THE COURT ORDERS THAT:

  1. The plaintiff’s summons filed 14 December 2021 is dismissed.

  2. The proceedings are dismissed.

  3. The plaintiff is to pay the first and second defendant’s costs.

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Amendments

26 July 2023 - R.A. McEwan corrected to R.A. McEwen.

Decision last updated: 26 July 2023

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Cases Citing This Decision

2

Zepinic v Attorney General NSW [2023] NSWSC 1396
Zepinic v Mitrovic [2023] NSWDC 423
Cases Cited

26

Statutory Material Cited

6

B v The Queen [1992] HCA 68
B v The Queen [1992] HCA 68
B v The Queen [1992] HCA 68