Attia v Health Care Complaints Commission

1. [1]

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

2. [2]

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

3. [3]

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

4. [4]

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

5. [5]

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

THE COMPLAINT

1. [6]

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

2. [7]

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

3. [8]

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

4. [9]

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

5. [10]

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

   1. (1)

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

   2. (2)

      Costs.

THE APPEAL

1. [11]

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

2. [12]

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

3. [13]

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

   1. (1)

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

   2. (2)

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

4. [14]

   Putting aside costs, the plaintiff sought the following relief:

   1. (1)

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

   2. (2)

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

   3. (3)

      Such further or other order as the Court sees fit.

THE COURSE OF THE PROCEEDINGS

1. [15]

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

2. [16]

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

3. [17]

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

4. [18]

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

5. [19]

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

   1. (1)

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

   2. (2)

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

   3. (3)

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

   4. (4)

      Complaint 3 was contested.

6. [20]

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

7. [21]

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

8. [22]

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

9. [23]

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

10. [24]

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

11. [25]

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

12. [26]

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

13. [27]

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

14. [28]

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

15. [29]

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

16. [30]

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

17. [31]

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

    1. (1)

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

    2. (2)

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

    3. (3)

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

18. [32]

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

    1. (1)

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

    2. (2)

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

    3. (3)

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

    4. (4)

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

19. [33]

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

    1. (1)

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

    2. (2)

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

20. [34]

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

21. [35]

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

22. [36]

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

23. [37]

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

24. [38]

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

25. [39]

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

26. [40]

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

27. [41]

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

28. [42]

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

29. [43]

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

30. [44]

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

31. [45]

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

32. [46]

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

33. [47]

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

34. [48]

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

35. [49]

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

36. [50]

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

37. [51]

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

38. [52]

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

39. [53]

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

40. [54]

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

41. [55]

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

42. [56]

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

43. [57]

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

44. [58]

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

45. [59]

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

46. [60]

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

47. [61]

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

48. [62]

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

49. [63]

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

50. [64]

    Mr Barnes then submitted that:

FINDINGS OF THE TRIBUNAL

1. [65]

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

   1. (1)

      Particular 1 was admitted and found proven.

   2. (2)

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

   3. (3)

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

   4. (4)

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

2. [66]

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

3. [67]

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

4. [68]

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

5. [69]

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

6. [70]

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

7. [71]

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

8. [72]

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

9. [73]

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

10. [74]

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

    1. (1)

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

    2. (2)

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

    3. (3)

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

11. [75]

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

12. [76]

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

13. [77]

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

14. [78]

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

Submissions for the plaintiff

1. [79]

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

   1. (1)

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

   2. (2)

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

   3. (3)

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

   4. (4)

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

   5. (5)

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

   6. (6)

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

   7. (7)

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

   8. (8)

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

   9. (9)

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

   10. (10)

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

   11. (11)

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

2. [80]

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

   1. (1)

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

   2. (2)

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

   3. (3)

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

3. [81]

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

   1. (1)

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

   2. (2)

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

4. [82]

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

5. [83]

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

6. [84]

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

7. [85]

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

8. [86]

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

9. [87]

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

10. [88]

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

11. [89]

    The plaintiff sought leave pursuant to s 29(4)(b) of Sch 5 of the Act to argue ground 10. No oral submissions were made in relation to ground 10. It became engulfed in the second primary contention.

12. [90]

    In written submissions it was contended that the Tribunal erred in the exercise of discretion in determining penalty by acting unreasonably in the exercise of discretion in three ways, as follows:

    1. (1)

       The Tribunal failed to adequately take into consideration six articulated matters.

    2. (2)

       Having found that it was unlikely the plaintiff would engage in conduct that formed the basis of the findings of unsatisfactory professional conduct in the future, being the potential for the wholesale purchase of counterfeit pharmaceuticals, the Tribunal ought not to have exercised its discretion to cancel the plaintiff’s registration as a pharmacist in order to protect the public interest as no risk to the public interest can be identified.

    3. (3)

       The Tribunal’s decision to cancel the registration was based on speculation as to future events, being the Tribunal’s view that they were not confident that the plaintiff would act with candour and make all necessary disclosures in all future dealings with regulators. It was unreasonable for the Tribunal to speculate as to the possible reoccurrence of matters that were not the subject of the complaints that transpired six years ago as a basis for the cancellation of the plaintiff’s registration.

    4. (4)

       Where the Tribunal found a significant part of the conduct alleged not proven, it needed to explain why those lesser findings still justified the cancellation and it did not.

Submissions for the defendant

1. [91]

   The defendant contended that leave to appeal should be refused with respect to grounds 1, 2 and 6 for the following two reasons:

   1. (1)

      None of the grounds were argued before the Tribunal. The plaintiff should be held to the way he conducted his case before the Tribunal, particularly where the case strategy represented a deliberate decision made by counsel for the plaintiff. No issue was taken that the plaintiff engaged in the practice of pharmacy during the course of his offending conduct;

   2. (2)

      Each of the grounds of appeal (including grounds 7 to 10) asserted errors of fact and not law. The defendant opposed leave being granted to the plaintiff to argue errors of fact in the appeal.

2. [92]

   Notwithstanding these submissions, Mr Fernandez, counsel for the HCCC, invited the Court to consider the merits of the grounds raised by the plaintiff and, in the event that no merit was found, to refuse leave upon this basis.

3. [93]

   The submissions advanced by the defendant in relation to the liability appeal were as follows:

   1. (1)

      The flaw in the plaintiff’s submission was to treat the National Law and the PTGA and PTGR as binary opposites with respect to regulation of the plaintiff. The applicant was the subject of both legislative regimes. Once it was accepted that the plaintiff was subject to the National Law, it was a matter of fact for the Tribunal to determine whether he was engaged in the practice of his profession: a determination the Tribunal correctly made.

   2. (2)

      The National Law was protective legislation (see ss 3(3)(c) and 3(a)).

   3. (3)

      A health practitioner was defined in s 6 of the National Law as an individual who practices a health profession including pharmacy.

   4. (4)

      Section 139B(1) was concerned with unsatisfactory professional conduct of a registered health practitioner. Section 139B(1)(a) was concerned with conduct in the practice of the practitioners profession. Practice is not defined in the Act. The question of whether the plaintiff engaged in the conduct of his profession is a question of fact according to the facts before the Tribunal.

   5. (5)

      By reliance upon definition of “practice” within the code of conduct for pharmacists (Pharmacy Board of Australia, Code of Conduct, 17 March 2014 (hereafter referred to as “the Board” and “the 2014 Code”, respectively) at p 24), it was submitted that practice consists of four elements:

   6. (6)

      The Board developed the code of conduct pursuant to s 39 of the National Law so as to provide guidance to health practitioners it registered. An approved registration standard or code or guideline is admissible in proceedings under the National Law against a health practitioner registered by the Board as evidence of what constitutes appropriate professional conduct or practice for the health professional (see s 41).

   7. (7)

      The Pharmacy Society of Australia’s (“the Society”) Code of Conduct, as endorsed by the National Council of the Society in March 1998, was in evidence before the Tribunal (“the National Code”).

   8. (8)

      The National Code “establish[ed] a set of fundamental principles to guide pharmacists in discharging their responsibilities in relation to maintaining and improving the health and well-being of clients and the Australian community”.

   9. (9)

      Principle One of the National Code stated that the “primary concern of the pharmacist must be the health and wellbeing of both clients and the community”. The following relevant obligations attached to this principle:

   10. (10)

       It would be totally artificial in the circumstances of this case for the applicant to draw a distinction between his practice as a pharmacist and his practice as a wholesaler. That may very well explain why he did not do so before the Tribunal.

   11. (11)

       In the circumstances of this case, when the plaintiff was purchasing certain medications, as permitted by his wholesaling licence, he was not acting with a completely different state of mind, attitude or responsibility to that he must have had as a pharmacist. He had to use his knowledge, skill, and judgment, and to exercise care as a pharmacist in that activity, namely, purchasing pharmaceutical medications wholesale.

   12. (12)

       That is evident from the plaintiff relying on his knowledge, skill and judgment as a pharmacist when he purchased the counterfeit Viagra. He stated in cross-examination:

   13. (13)

       With his purchase of counterfeit Viagra the plaintiff supplied the pharmacies that he owned and at which he worked as a pharmacist. This was another aspect of the evidence before the Tribunal that the plaintiff was engaged in the practice of his profession when he purchased the counterfeit Viagra. Whether the plaintiff was purchasing Viagra from Mr Rai in accordance with his wholesale licence, he was also purchasing that same Viagra for his own pharmacies.

   14. (14)

       The plaintiff accepted before the Tribunal that he had to act in a manner that promoted and safeguarded the interests and welfare of the community. He stated in cross-examination:

   15. (15)

       It was contended this was an appropriate admission. As a pharmacist engaging in the practice of pharmacy, whether his company had a wholesaler’s licence or not, the applicant should have had, as his primary regard, the safety and interests of the community.

   16. (16)

       Principle Two of the National Code states that a pharmacist “must at all times uphold the reputation of the profession and adhere to the legislation applicable to the practice of pharmacy”. The following relevant obligations attached to this principle:

   17. (17)

       The applicant’s actions of the purchase and distribution of counterfeit Viagra put the community at risk.

   18. (18)

       The authority in Childs (at 4) supported a submission that the phrase “in the practice of” does not have merely a temporal meaning but a qualitative or descriptive character and referred to the nature of conduct which need not be in the course of treating a patient. It was found that a psychiatrist had disclosed confidential patient information to a former patient and had a sexual relationship with at least one former patient. The Tribunal found that the applicant was relying on her capacity as a medical practitioner in the course of her practice of medicine at all relevant times. Reliance was also placed upon Health Care Complaints Commission v Little [2016] NSWCATOD 146 (“Little”) at [139].

   19. (19)

       It followed that the pharmacy code of conduct captured what the plaintiff was doing even in a non-clinical way.

   20. (20)

       The practice of a practitioner’s profession describes a wide variety of conduct that is consistent with the protective purpose of the National Law.

   21. (21)

       The plaintiff was exercising his professional knowledge, skill and judgment when he purchased and supplied the counterfeit Viagra and was subject to the National Law as an individual, irrespective of the regulation of Hillmear Pty Ltd under the PTGA.

   22. (22)

       Whilst a non-pharmacy employee of a corporation undertaking the purchase and sale of the counterfeit Viagra would not be caught by the provisions of the National Law the plaintiff was because, even though he was a sole director of the trading company, he was “bringing his mind to the conduct”.

   23. (23)

       It was common ground that the Tribunal correctly decided that the plaintiff ought to have known that it was counterfeit Viagra. The Tribunal recognised that the plaintiff’s conduct was in the practice of pharmacy (at [101]-[102]).

4. [94]

   The facts of a particular case determine whether a practitioner engages in the practice of a profession. It was also submitted that the Tribunal made correct findings that the plaintiff was engaged in the practice of pharmacy.

5. [95]

   The summary provided by the Tribunal as to the investigations by Pfizer and TGA provided a chronology and background to the discovery of the plaintiff’s conduct as well as to what he did once he was informed of the existence of counterfeit Viagra (referring to [11]-[20] and [21]-[23] of the Tribunal decision).

6. [96]

   The Tribunal found at [90] that the plaintiff sought to “conceal critical details and the true nature of the transaction”. This was again sustained by the investigations by TGA and Pfizer and formed the background to the conclusion reached by the Tribunal at [134].

7. [97]

   The plaintiff had notice that his conduct would be relied upon by HCCC (as found in the Tribunal’s findings as to protective orders) having regard to the following:

   1. (1)

      propositions put to the plaintiff in cross-examination.

   2. (2)

      the closing submissions by the plaintiff’s counsel. The following passage was relied upon:

   3. (3)

      The final submissions of the plaintiff’s counsel addressed the contentions advanced by the HCCC.

8. [98]

   As to the contention of the plaintiff that the Tribunal erred in conducting a one stage hearing of the proceedings, the HCCC contended that the parties had agreed before the Tribunal to such an approach and, additionally, the submissions were structured in such a way that contentions as to the making of protective orders were only undertaken after submissions as to findings of fact were exhausted. The defendant’s submissions seeking cancellation were at the forefront of its submissions as to protective orders.

9. [99]

   The defendant then replied to the submission that there were findings made by the Tribunal in its decision that were not raised with the plaintiff during the hearing before the Tribunal.

10. [100]

    The Tribunal’s consideration of protective orders found in [131]-[136] of the decision. However, those findings do not stand in isolation. Particular attention was drawn to the Tribunal’s discussion of evidence given by the plaintiff at [41]-[48] of the Tribunal decision. The assessment of the reliability of his evidence was to be found at [64]-[67] and the discussion of Complaint 2 found at [87]-[89] and [94]. The Tribunal had referred to the evidence the applicant had given in which he had denied attempting to mislead the TGA and found that his answers were unresponsive and evasive, ultimately concluding that the plaintiff had deliberately sought to mislead investigators.

11. [101]

    This is the context in which the Tribunal found it was less than confident that the plaintiff would act with complete candour and make full disclosure, namely, the applicant’s evidence before the Tribunal. The conclusions were made notwithstanding the reliance upon the applicant upon his own good character and reference witnesses.

The Act

1. [102]

   By s 145C(1)(c) of the National Law, the HCCC may refer a complaint to “another entity” and, by s 145C(1)(e), the HCCC may “take any other action that it can take under the Health Care Complaints Act”. The latter jurisdiction includes a power to prosecute under s 90B (1) of that Act. (For completeness, it might be noted that s 145D(1) compels the relevant Council and the HCCC to refer a complaint if the opinion is formed that, if substantiated, the complaint provided grounds for the suspension or cancellation of the registered health practitioner).

2. [103]

   When seized of the complaint, the Tribunal may exercise the disciplinary powers conferred by Subdiv 6 of Div 3 of Pt 8 of the National Law if it found the subject matter of the complaint against a practitioner to have been proven (s 149(a)).

3. [104]

   Section 144 provides that, inter alia, a complaint may be made against a health practitioner that he/she is guilty of unsatisfactory professional conduct or professional misconduct. Before the Tribunal in this matter, the HCCC sought, by Complaints 1 and 2, the former finding (in reliance on s 139B(1)(a)) and by Complaint 3 the latter (in reliance on s 139E). Those respective provisions appear below.

4. [105]

   Putting aside the power to deal with contraventions of a disciplinary order, the powers to discipline a health practitioner are found in ss 149A – 149C. The power under s 149B may only be exercised if a practitioner has been found guilty of unsatisfactory professional conduct or professional misconduct. Aside from findings as to competence or conviction for a criminal offence, the power under s 149C may be exercised where a practitioner has been found guilty of professional misconduct.

5. [106]

   Part 4, Div 1 of the Act stipulates the practice and procedure to be adopted by the Tribunal (the proviso in s 35 not being applicable in this case).

6. [107]

   Section 36(1) establishes a guiding principle for the Tribunal in the describing of its functions as follows:

7. [108]

   Section 36(2) states that the Tribunal must seek to give effect to the guiding principle when it exercises any power given to it by the Act.

8. [109]

   Section 38 governs the procedure to be adopted by the Tribunal “generally” and relevantly provides:

9. [110]

   This appeal is governed by the provisions of Pt 6 of Sch 5 of the Act.

10. [111]

    A decision for the purposes of the National Law is described in this part as a “profession decision” (see cl 29(1)(d)).

11. [112]

    Such a decision is not “an internally appealable decision for the purposes of an internal appeal” (cl 29(1)). Nonetheless, a party to proceedings in which a profession decision is made may appeal against the decision to this Court (cl 29(2)(b)).

12. [113]

    The “basis or grounds” for appeal are constrained in the present case by the provisions of cl 29(4)(b) which provides, when read in conjunction with cl 29(4)(a), that a non-lawyer appeal against a decision may be made as of right on any question of law, or with the leave of the Court, on any other grounds.”

13. [114]

    Clauses 29(8) deals with the powers of this Court on appeal as follows:

The National Law

1. [115]

   The provisions of the National Law which are relevant to the disposition of the appeal are as follows:

Poisons and Therapeutic Goods Act

1. [116]

   The following provisions of the PTGA relevant to the disposition of the appeal:

Poisons and Therapeutic Goods Regulation

1. [117]

   The provisions of the PTGR which are relevant to the position of the matter are ss 134(1), 160, 172(1)(c) and 2(a). The provisions are as follows:

Therapeutic Goods Act

1. [118]

   Section 4(1)(a) of the Therapeutic Goods Act 1989 (Cth) is relevant and is in the following terms:

The Liability Appeal: Grounds 1, 2 and 6

1. [119]

   There was no demur in this appeal that the plaintiff’s case in relation to the liability appeal was different to that advanced before the Tribunal. In fact, it was diametrically different. In the proceedings below, the plaintiff not only accepted that the impugned conduct occurred whilst the plaintiff conducted himself in the practice of pharmacy but relied upon a dual role as the director of Hillmear in mitigation. He contended, in that respect, that the conduct occurred in the context of “[the] running of a wholesale business, rather than the day to day pharmacy practice.”

2. [120]

   The decision of the Tribunal demonstrated that it was mindful of the need to confine its determination under s 139B(1)(a), to conduct in the practice of the plaintiff’s profession and that the plaintiff was, at the time of the purchasing and supplying the counterfeit Viagra, a director of Hillmear. Beyond that recognition, the Tribunal did not engage in any deliberation, per se, as to whether the plaintiff engaged in the impugned conduct whilst in the practice of his profession as opposed to his role as director of Hillmear because the plaintiff had eschewed that such a distinction would need to be addressed in the proceedings other than in mitigation.

3. [121]

   This background raises two issues. First, Sch 5 Pt 6 cl 29(4)(6) of the Act provides that the appeal may be made as of right on any question of law or with the leave of the court on any other grounds.

4. [122]

   In determining whether leave is required it is necessary to first determine the relevant decision and then to identify ‘any question of law’ which may ground a right of appeal: B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481(“B & L Linings”) (at [124] per Allsop P with whom Giles and Basten JJA agreed)

5. [123]

   In this matter, the plaintiff did not identify an erroneous passage from the decision of the Tribunal, as such, except the ultimate conclusion by the Tribunal that the plaintiff had engaged in unsatisfactory professional conduct within the meaning of s 139B(1)(a) (in contrast to s 139B(1)(l ) of the Act (see at [115] and [116] of the decision below).

6. [124]

   Whilst the grounds of appeal purport to identify errors of law, they are, in substance, couched in terms of appeals of fact; a characterisation borne by the development of the plaintiff’s argument as I will discuss below. The plaintiff did draw a comparison between the regulation of pharmacists under the National Law and persons engaged in the wholesale supply of a restricted substance or poison, but it was for the purpose of illustrating why a finding should be made that the plaintiff’s conduct was not actually in the practice of his profession and not for the purposes of establishing there was any relevant inconsistency between the pieces of legislation (or other conflict of laws). There was absent a contention that there was “no evidence” which could have sustained the finding by the Tribunal that the impugned conduct was in the practice of the plaintiff’s profession: see Ng v Health Care Complaints Commission [2017] NSWSC 53 at [38] and [41]. Nor is this a case, as I will find, where the Tribunal failed, in making factual findings, to understand the true construction of the enactment in question: Mahoney v Industrial Registrar of New South Wales (1986) 8 NSWLR 1 at 1 and 5 (per Hope and Samuels JJA). In these circumstances, the liability appeal was, in substance, one of a question of fact. A mere issue as to the findings of fact (or whether on the preponderance of the evidence a fact is properly found proven) will not establish a right to appeal in the case of appeals as to any question of law against any decision: Kostas v HIA Insurance Services Pty Ltd (“Kostas”) (2010) 241 CLR 390 at [24] (per French CJ); B & L Linings at [139] and [150] (per Basten JA). It was not contended that the liability appeal concerned mixed questions of fact and law. Even if the issues raised in the liability appeal raised such a question, I do not consider the appeal of that character may be as of right under the Act. The appeal may only be made as of right “on any question of law”. That is a narrower field than an appeal right controlled by words such as “with respect to” or “in relation to”: Kostas at [24]-[25].

7. [125]

   Secondly, in its written submission, the HCCC opposed the grant of leave to appeal upon the basis (correctly in my view) the plaintiff had resiled in the liability appeal from the case below. There is some substance to this submission. The observations of Barwick CJ in Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Aust) Pty Ltd (1978) 139 CLR 231 at 241 are apposite in this respect. His Honour stated that “suffice it is to say it should only be in the clearest case and for the most cogent reasons that the party that has conceded [a] matter at trial should be allowed to make the validity of what has been conceded as the basis for overturning the result of the trial.”

8. [126]

   No explanation or justification was provided by the plaintiff in this appeal for his changed stance.

9. [127]

   I will put those considerations aside momentarily, however, to address the merits of the appeal in the light of the earlier mentioned concession by the HCCC which invited the Court to consider the merits of the ground before ruling on leave to appeal. The discussion of merit appears below.

10. [128]

    By means of a system of registration and accreditation of individual persons, the National Law establishes a scheme for the regulation of health practitioners including pharmacists for the paramount purpose of protecting the health and safety of the public (ss 3(1)(a), 3(2)(a), 3(2)(e) and 3A).

11. [129]

    The plaintiff was a registered pharmacist at the time of the impugned conduct.

12. [130]

    The means of effecting such regulation is found under Pt 8 of the National Law. Central to those mechanisms is a complaint system under Division 3 by which the various regulators under the National Law deal with, inter alia, “unsatisfactory professional conduct” and “unprofessional conduct” (s 144(b)) which concepts are defined under s 139B(1) and s 139E.

13. [131]

    In that respect, the Tribunal found that the impugned conduct was conduct significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience which was sufficiently serious to justify cancellation of the plaintiff’s registration (s 139E(1) and s 149C(1)(b)).

14. [132]

    By its long title, the PTGA concerns the regulation, control and prohibition of the supply and use of poisons, restricted substances, drugs of addiction, certain dangerous drugs and certain therapeutic goods.

15. [133]

    Division 1 of Pt 3 of the PTGA regulates the supply of poisons and restrictive substances by a system of licensing and a penalty regime. Hillmear had such a licence at the time of the impugned conduct and the plaintiff, as previously mentioned, was its sole director.

16. [134]

    Section 9 of the PTGA constrains the wholesale supply of any poison or restricted substance for therapeutic use to licenced persons in accordance with the conditions of the licence. Sections 10(1) and 10(3) prohibit, with exceptions, the supply of any substance specified in Sch 1, 2, or 3 of the Poisons List (see as defined and s 4 and Div 2 of Pt 2) by means other than wholesale supply and s 11 restricts the supply of certain substances to “authorised persons”.

17. [135]

    The exceptions in s 10(1) and s 10(3) relate to certain health practitioners including a pharmacist. In other words, a pharmacist may supply the substances in question by means other than wholesale supply. By ss 11(1) and 11(2)(a), the wholesale supply of certain poisons and restricted substances is limited to, inter alia, pharmacists.

18. [136]

    The PTGA also directly regulates pharmacists. By s 36AA, a person other than a pharmacist or a person acting under the personal supervision of a pharmacist, must not dispense or compound any substance specified in the Poisons List on the prescription of, inter alia, a medical practitioner.

19. [137]

    Section 36D is a deeming provision which provides that a Director, such as a plaintiff, is taken to have contravened the same provision as a body corporate such as Hillmear “if the person knowingly authorised or permitted the contravention”.

20. [138]

    The grounds for the suspension of a licence are specified under Div 5 of Pt 6 of the PTGR. Regulation 134 of the PTGR provides the singular exception by which a pharmacist may provide a restricted substance wholesale to another pharmacist.

21. [139]

    The expression “supply” is not defined in either the PTGA or the PTGR. However, there is nothing in that Act or Regulation which would suggest those words have any meaning other than their ordinary meaning within the context used, namely, to furnish, provide or make available to someone.

22. [140]

    In the light of this analysis of the respective legislative regimes under the National Law and the PTGA (and the PTGR), the contention by the plaintiff that the Acts created “separate regimes for the wholesale distribution of pharmaceutical goods and retail distribution by pharmacists” and that the respective legislative regimes manifest an intention to “deal with those activities separately and in the case of penalties [under the PTGA] more seriously” erects, at least in the context of the liability appeal, a false dichotomy.

23. [141]

    Whilst pharmacists are prohibited from the wholesale supply of poisons and restrictive substances, the very nature of the legislative scheme under the PTGA is that there may be a point of intersection or interaction between the wholesale supplier and pharmacists registered and regulated under the National Law. This is reflected, in a legislative sense, by s 36AA of the PTGA which directly regulated pharmacists in the dispensing of medicines. At a practical level, the interaction is illustrated in these proceedings by the purchase of the counterfeit Viagra by the plaintiff into his own pharmacies where he worked as a registered pharmacist.

24. [142]

    Whilst, there are different schemes of regulation, there is nothing in the language of either the National Law or the PTGA (either express or implied) which would suggest a legislative intention that the regulatory systems may not operate concurrently and in complementary function. In other words, the Acts are permissive of the respective regulatory schemes acting in unison upon the same course of conduct including the distribution of restrictive substances, albeit that each regulatory scheme will operate in conformity with the particular requirements of each Act. Thus, both the National Law and the PTGA may have operated upon the impugned conduct as long as the acts of the plaintiff were those falling within the regulatory reach of each Act.

25. [143]

    So much was implicitly recognised by the plaintiff in this appeal by his acceptance that the impugned conduct was amenable to disciplinary action under s 139B(1)(l) and below, by his admission as to the particular one of Complaint 1 (which is not the subject of challenge in the appeal).

26. [144]

    It follows that the existence of the separate regulatory schemes under the National Law and the PTGA and the PTGR does not, of itself, demonstrate whether the impugned conduct was “in the practice of the profession” (the “phrase”) for the purposes of s 139B(1)(a) of the National Law.

27. [145]

    The question becomes then whether any act or omission of the plaintiff as a registered pharmacist at the time of the purchase of the counterfeit Viagra (or later in his dealings with the TGA) was amenable to the National Law pursuant to s 139B(1)(a), notwithstanding the plaintiff had initiated and transacted the acquisition of the medication as director of Hillmear.

28. [146]

    In approaching that question, I consider that the judgment of Samuels JA (with whom Priestley and Meagher JJA agreed) in Childs at 4 is apposite. His Honour’s judgment concerned a counterpart provision to s 139B(1), albeit in the context of the definition of professional misconduct, (namely, s 27(1)(a) of the Medical Practitioners Act 1938 (NSW)). His Honour opined that the gravamen of the definition was that the conduct, the subject of the complaint, must be such as to demonstrate the lack of a quality (such as “judgment possessed” and/or “care exercised”) “necessary in the practice” of pharmacy (at [4]). The conduct is the vehicle by which a specified defect is revealed (s 27 also concerned any “other improper or unethical conduct relating to the practice of medicine”). In my view, his Honour’s construction of s 27(1)(a) of the Medical Practitioners Act is, represents a sure guide to the interpretation of s 139B(1)(a).

29. [147]

    The preposition “in” in the phrase does require a relevant connection between the conduct, the subject of a complaint, and the practice of pharmacy. Thus, Samuels JA used the word “necessary” in the aforementioned passage from Childs.

30. [148]

    However, the word “conduct” is defined very widely in s 138(1) to mean “any act or omission”. This must be wide enough to capture an act or omission of the plaintiff as a director of Hillmear in purchasing medications permitted by the wholesaler license of Hillmear, if, in the course of that conduct, the plaintiff’s acts and omissions had the necessary connection to his practice as a pharmacist which he held or operated at the time of the requisite purchase. As Spigelman CJ described in Cummins (at [56]) the question is whether the acts were sufficiently connected to the actual practice.

31. [149]

    The word “practice” in the phrase is not defined in the National Law. Nor is the phrase itself. There appeared to be common ground that the word and the phrase were attended by some ambiguity. I consider that is an appropriate concession.

32. [150]

    The ordinary meaning of the word “practice”, when read in the context of the phrase, and in the context of the profession of pharmacy, is the application of the principles and practices of pharmacy or the application of its ideas or methods.

33. [151]

    The practice of pharmacy, so defined, was the subject of evidence, without objection, in these proceedings in the form of various Codes of Conduct which prescribed the standards or obligations attending upon or expected of practitioners of the profession of pharmacy.

34. [152]

    The Codes made clear that the practice of pharmacy extended beyond direct clinical care such as the filling of prescriptions or the giving of the advice to clients to direct non-clinical care which impacts upon the safe delivery of health services. The National Code specifically refers to the purchase (or sale) of any medicinal product and the prevention of the supply of products which constitute an unacceptable hazard.

35. [153]

    That approach to the interpretation of the phrase “the practice of the practitioner’s profession” for the purpose of s 139B(1)(a) is consistent with the requirement to give an expansive meaning to such provisions when instrumentally used in protective legislation (that is, protective of the public who are supplied with pharmaceuticals: see the paramount consideration in s 3A); Day & Dent Constructions Pty Ltd (in liquidation) v North Australian Properties Pty Ltd (provisional liquidator appointed) (1982) 150 CLR 86 at 108 (per Mason J).

36. [154]

    It follows that the conduct simpliciter engaged in by the plaintiff in purchasing the counterfeit Viagra fell within the scope of the phrase the practice of his profession in that, as the respondent described it, the acts involved non-clinical judgment or the exercise of care which impacted upon the safe delivery of pharmaceutical products.

37. [155]

    Whether the plaintiff was so engaged was a question of fact which could have received attention in the proceedings below if the issue had been raised. Nonetheless, the Tribunal was conscious of the requirement to find the pharmacist has engaged in the practice of pharmacy and did, as mentioned earlier, approach its decision on that basis. That finding, such as it is a finding of fact, is not impeachable in an appeal confined to a question of law unless leave is granted to do so. In any event, any doubts attending upon such a conclusion must be removed by the evidence in the proceedings which showed the plaintiff was directly involved in the acquisition of the counterfeit Viagra in his own pharmacies in which he worked.

38. [156]

    As to the merits of these grounds, there was other evidence relied upon by the HCCC to sustain the conclusion that, coinciding with the purchase of the counterfeit Viagra as a director of Hillmear, the plaintiff exercised judgment and care in the practice as a pharmacist. First, the plaintiff gave evidence that he exercised his judgment as to whether or not the Viagra was counterfeit by examining the box containing the counterfeit Viagra by using the “normal parameters”, that any pharmacist would employ in checking a product. Secondly, he recognised that his paramount concern was to promote the interest and welfare of the community. I will further discuss these factors at the end of the discussion of the liability appeal, but note again that there was absent a “no evidence” ground to sustain a conclusion that the impugned conduct was undertaken by the plaintiff in the practice of his profession.

39. [157]

    Senior counsel for the plaintiff submitted that the fact the plaintiff could not lawfully have engaged in the impugned conduct militates against the conclusion that which he were doing was in the practice of the profession for Complaint 1. There are, with respect, flaws with this submission. First, complaint fixes attention upon the plaintiff’s role as a practitioner. It is his lack of, for instance, judgment and care as a pharmacist during the course of the transactions which is, as I have observed, the gravamen of the complaint. Secondly, the Tribunal found that the plaintiff ought to have known the Viagra was counterfeit and failed to ensure it was genuine. These are not complaints directed to the work of the wholesale supplier but to the failure of professional judgment during the course of such wholesale supply.

40. [158]

    The plaintiff accepted these contentions were weaker with respect to Complaint 2. However, it was submitted that the contention may be sustained if the conduct in Complaint 2 concerned “a course of conduct”. Given the nature of the complaints and the plaintiff’s conduct, I do not accept that submission. He was engaged in a discrete course of conduct when he engaged in the acts referred to in Complaint 1 and he undertook further and separate steps in the preparation of the invoice when faced with the investigation (Complaint 2). In any event, the impugned conduct under Complaint 2 does not represent a breach of the PTGA. Rather, in my view, it directly concerns the breach of professional ethical standards necessary for the public safety as described in the objects of the National Law.

41. [159]

    Before leaving the discussion of Complaint 2, it might be noted that the conduct complained of, in that respect, received little attention in relation to whether the impugned conduct was conduct that fell within the meaning of the phrase. It is difficult to conceive why that conduct in Complaint 2(1)(a) would not constitute conduct in the plaintiff’s practice of the profession of pharmacy at least insofar as that practice required ethical conduct. This conclusion is supported by the objects and guiding principles of the Act. Whilst many of them are expressed in very broad terms, as I previously noted, the object of the law as stated in s 3(1)(a) was to establish a national registration and accreditation scheme for the regulation of health practitioners. Section 3(2)(a) makes clear that the objects of the national registration and accreditation scheme are to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice “in a[n]… ethical manner are registered”. In this sense, the objects of the Act give “practical content” to the terms of the phrase: Russo v Aiello (2003) 215 CLR 643 at 645 (per Gleeson CJ).

42. [160]

    This conclusion is also supported by the terms of s 139B(1)(l), the opening words of which are, “any other improper or unethical conduct”. This not only makes clear that the provision is dealing with conduct not otherwise dealt with in s 139B(1)(a)-(k) but that the conduct caught by sub-s (1)(a)-(k) does concern, inter alia, “unethical conduct”.

43. [161]

    The plaintiff submitted that the provisions of sub-s (1)(l) illustrated why the legislature had not intended the impugned conduct to be caught by the provisions of sub-s (1)(a) as the legislature had provided a wider scope of power under sub-s(1)(l) in the nature of fit and proper person requirements capable of capturing the acts or omissions of the plaintiff as the director of a wholesale supplier as particularised in the complaints.

44. [162]

    There are, with respect, three flaws in that submission. The first is that that provision, as I observed, operates only in circumstances where the earlier parts of the sub-section do not apply. Thus, if the impugned conduct falls within sub-s (1)(a), sub-s (1)(l) has no work to do.

45. [163]

    Secondly, the sub-section does not operate directly or exclusively in conjunction with “fit and proper person requirements” as contended by the plaintiff. As I observed, the opening words of sub-s (1)(l) made clear that ethical and related considerations may arise under sub-ss (1)(a)-(k) as applicable.

46. [164]

    Thirdly, it is true the words “related” and “purported” do widen the scope of the meaning of “unsatisfactory professional conduct” for the purposes of s 139B(1) but those words operate upon the phrase “practice of the practitioner’s profession”. It follows that, if the conduct is something which is “in” that practice then, when read with the opening words of sub-s (1)(l), it cannot be “related to” the same or in the nature of something purported to be the practice.

47. [165]

    Little attention was paid by the parties to examples of the scope of sub-s (1)(l) but it is conceivable that the provisions would act upon personal conduct which did not have or require the application of knowledge, skills, judgment or care in the practice of pharmacy but which nonetheless had implications for the continued practice of the practitioner. However, once the conduct of the plaintiff engaged his knowledge, skill, judgment or care as a registered pharmacist then, in my view, the provisions of sub-s (1)(a) came into operation. As discussed by Samuels JA in (Childs at 4) the conduct by the plaintiff as a practitioner pharmacist, having regard to the findings of the Tribunal, demonstrated he lacked one or more of the qualities indispensable to the practice of pharmacy. (It may be noted that, in Childs, the misconduct alleged was that a psychiatrist had, inter alia, engaged in a sexual encounter after the termination of the doctor-patient relationship. The Court found that the definition of “professional misconduct” had no such temporal limitation and, as I have earlier observed, the relevant question was whether the nature of the conduct was such as to demonstrate the requisite lack of quality in the profession).

48. [166]

    The plaintiff also submitted that it would be incongruous if the plaintiff could have his registration cancelled but still be able to continue the supply of restricted substance as a director of Hillmear. This submission sits ill with the submission by the plaintiff that the National law and PTGA represented discrete or separate legislative regimes. In any event, the submission overlooks, in my view, the fact that the registration process under the National Law is a protective regime in the public interest. It is the discharge of the plaintiff’s professional obligations in the context of purchase of the counterfeit Viagra which are under review in order to protect the public with which he engaged. It is entirely consistent with schemes of regulation under the National Law and the PTGA and PTGR (and see the objects of the Therapeutic Goods Act) that the plaintiff may have his registration cancelled if he engaged in conduct (such as non-clinical activities) as a registered pharmacist which is contrary to the paramount objective under s 3A of the National Law: a consideration which does not arise in the same way with respect of Hillmear’s wholesale supply activities. The distinction is between the non-clinical professional activities by the applicant and the supply by wholesale of restricted substances under the PTGA.

49. [167]

    Two further matters should be attended to before I finally resolve these grounds.

50. [168]

    First, as required by the provisions of s 139B(1)(a), the Tribunal made findings as to whether the conduct of the plaintiff demonstrated that the plaintiff’s knowledge, skill, judgment possessed or care exercised was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The Tribunal made findings, in that respect, which are set up in paras [65]-[68] of the HCCC written submissions. As was pointed out in those submissions, the Tribunal based its opinions upon, inter alia, the expert opinion of Mr Lee, a registered pharmacist with over 40 years’ experience in both wholesale and the wholesaler pharmacy industry. What is apparent from the conclusions of the Tribunal was that, in making these findings, it found the existence of a nexus between the conduct complained of and what may be expected in the practice of pharmacy for someone holding an equivalent level of training or experience. The very nature of these conclusions is that they contribute to the conclusion that the impugned conduct of the plaintiff impeached his role as a practitioner per se.

51. [169]

    The second observation is that the foregoing reference to the conclusions of the Tribunal and my earlier discussion of these grounds emphasised that the resolution of the questions raised by the grounds necessarily involved questions of fact.

52. [170]

    I consider, therefore, that the liability appeal lacks merit. Having regard to the terms of the concession given by the HCCC (and, in particular, its limits), the true nature of the grounds of the appeal (as raising questions of fact) and the conduct of the plaintiff’s case in which the plaintiff resiled from the position taken below, leave to appeal should be refused. If the appeal was to be found to be one as of “right”, I would dismiss the appeal for the reasons given under this heading.

The Protective Orders Appeal: Grounds 7 to 10

1. [171]

   In the conduct of the appeal, senior counsel confined these grounds to the contention that the plaintiff had been denied procedural fairness in that aspect of the proceedings before the Tribunal which concerned the making of protective orders. There were two limbs to that argument which are encapsulated at [13] of this judgment. First, it was submitted that the plaintiff was denied procedural fairness because the Tribunal took into account matters adverse to the plaintiff for which he had not been provided notice and which fell outside of the complaint. The second contention was to the effect that the plaintiff had been denied an opportunity to be heard on the protective orders because the Tribunal had failed to conduct two-stage process in which he would be heard as to appropriate protective orders after a finding of question of law. The two stage process was said to be mandatory.

2. [172]

   I will consider those issues seriatim but note that findings in one limb may reinforce the other.

The First Limb: Absent of Notice as to Matters Taken into Account Outside Complaints

1. [173]

   As was stated by McColl JA (with whom Beazley and Giles JJA agreed) in Nominal Defendant v Saleh [2011] NSWCA 16 (“Saleh”) at [17]:

2. [174]

   It is a fundamental rule of the common law that, generally speaking, when an order is to be made which will deprive the person of some right or interest he is entitled to know the case that is sought to be made against him and to be given an opportunity of replying to it: Kioa v West (1985) 159 CLR 550 at 582 (per Mason J). Thus, in disciplinary proceedings of the kind here under consideration, the doctrine of procedural fairness requires that the plaintiff be given the opportunity to be heard as to whether a finding should be made: Smith v New South Wales Bar Association (1982) 176 CLR 256; [1982] HCA 36 at 269 (per Brennan, Dawson, Toohey and Gaudron JJ).

3. [175]

   More recently the High Court in Szeel v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 62 at [32] (per Gleeson CJ with whom Kirby, Hayne, Callinan and Heydon JJ agreed) stated that it is a fundamental principle that “where the rules of procedural fairness apply to a decision making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require that the party affected be given an opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material”.

4. [176]

   The content to be given to the obligation to accord procedural fairness, in this matter must accommodate the particular provisions made in legislation which regulated how the Tribunal was to go about its task: Veal at [10].

5. [177]

   The proceedings before the Tribunal were governed by s 38 of the Act. By s 38(2) the Tribunal may inform itself on any matter in any manner it thinks fit, subject to the rules of natural justice. By its terms the provision requires the procedures adopted by the Tribunal to conform to the requirements of procedural fairness: see also Sudath v Health Care Complaints Commission [2012] NSWCA 171 (“Sudath”) at [75].

6. [178]

   Section 38(5)(c) is also applicable in the present context where the essence of the complaint made by the plaintiff is that he failed to receive an opportunity to be heard in relation to various matters that resulted in adverse findings in the context of the Tribunal’s determination to make protective orders. That provision requires that the Tribunal is to take such measures as are “reasonably practicable” to ensure that the parties have “a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings”.

7. [179]

   It is not necessary in this matter to consider whether the condition appearing in the opening words of s 38(5) would materially affect the obligation falling upon the Tribunal to afford parties a reasonable opportunity to be heard under sub-s (5)(c). The procedural fairness requirement that a party be given a “reasonable opportunity” to be heard has, however, received consideration by the High Court of Australia in Re Coldham; Ex parte Municipal Officers Association of Australia (1989) 84 ALR 208; [1989] HCA 13 at 219-220 (per Gaudron J) as follows:

8. [180]

   In Lucire v Health Care Complaints Commission [2011] NSWCA 99 (“Lucire”) at [61] Basten JA (with whom McColl JA and Sackville AJA agreed) made the following observations about a reasonable opportunity to be heard:

9. [181]

   That passage resonates with the well-known observation of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs, Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] where his Honour stated: “Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice” (see the discussion of various authorities applying the concept in King v Health Care Complaints Commission [2011] NSWCA 353 (“King”) at [79]-[81]).

10. [182]

    In CSR Ltd v Eddy (2008) 70 NSWLR 725; [2008] NSWCA 83 (at [39]) Basten J observed that care must be taken with phrases such as “practical injustice” which, “can, taken out of context, appear to have a broad and indefinite scope of operation”. However, the Court may have regard to whether, on proper examination, a complaint of unfairness has been established such as where an applicant was not deprived of an opportunity “to put his case as fully as he wished”.

11. [183]

    In Sabag the NSW Court of Appeal considered a determination by the Medical Tribunal of NSW (“the Medical Tribunal”) to deregister a doctor in circumstances where the Medical Tribunal had relied, in reaching its decision to deregister, upon findings not particularised in complaints brought against the doctor for unsatisfactory professional conduct. One matter that the Medical Tribunal had regard to in coming to its conclusion was that the appellant doctor had deliberately misled the investigating agencies at an earlier time (at [95]).

12. [184]

    In reviewing whether the Medical Tribunal had denied the appellant doctor procedural fairness Sperling J had regard to whether the allegations of the non-particularised impugned conduct had been “notified or litigated” at [77]. His Honour had regard to, in that respect, the content of the complaint itself as well as whether the appellant doctor had received notice of the matters the Medical Tribunal had regard to in its ultimate findings during the course of the proceedings.

13. [185]

    At [116] Sperling J identified that the essential difference between Davies AJA (in the minority) and himself was whether the subject issue, which had not been particularised, had emerged at trial and had been litigated. In Sabag, Sperling J took the view that the non-particularised issue had not been litigated.

14. [186]

    A similar approach seems to have been taken by Hodgson JA (with whom Meagher and Stein JJA agreed) in Daskalopoulos v Health Care Complaints Commission [2002] NSWCA 200 at [51]-[52] where his Honour, by reference to the judgments of Davies AJA and Sperling J in Sabag, expressed the view that “minds may reasonably differ when it is suggested that issues outside the particulars have adequately been raised and contested at the hearing” (at [51]). In the instance case he considered that “the extent of the difference between the particular and the finding, and the lack of any clear formulation during the hearing of any amended particular or allegation in relation to that particular” meant that the case before him fell on the wrong side of the line (in other words, it was unsuccessful) (at [53]).

15. [187]

    The challenge to the Tribunal’s decision under the first limb fixes upon [131]-[136] thereof although ground 8 focuses upon [134] of the decision.

16. [188]

    It is clear from [136] of the decision that the Tribunal relied upon two factors in reaching its decision to deregister the plaintiff which related to Complaint 2(1)(a) but were not particularised in the complaints before the Tribunal (the Tribunal stated it had taken into account that these factors were not the subject of the complaint but it is not clear whether that observation at [136] is concessionary, in the sense of the weight to be attached to the factors or, a mere reminder of what had been stated in the immediately preceding paragraphs).

17. [189]

    The Tribunal stated that the “conduct” in question (as making up those factors) was relevant in that it concerned the “probability of reoccurrence” of what it considered to be the serious conduct proven with respect to Complaint 2(a). The plaintiff raised no issue as to the relevance of that consideration. Nor did the plaintiff take issue that, if the plaintiff, in fact, was afforded procedural fairness, that factors taken into account by the Tribunal not the subject of the particulars within the complaints “the non-particularised factors” were applicable to the making of protective orders.

18. [190]

    The non-particularised factors were as follows:

    1. (1)

       The Tribunal lacked confidence that the plaintiff would act “with complete candour and make full disclosure in future dealings with those charged with the responsibility with overseeing the regulation of the pharmaceutical sector” (at [133]-[135]). The particular elements of that factor were:

    2. (2)

       The second factor was that the plaintiff had knowingly misled investigators (at [134]).

19. [191]

    In my view, each of the aforementioned issues or factors relied upon by the Tribunal in determining to deregister the plaintiff as a pharmacist emerged in the proceedings before the Tribunal and were litigated by the plaintiff’s legal representative. The issues were formulated with sufficient clarity as to give notice to the plaintiff and a reasonable opportunity to be heard in all the circumstances of the case. They were responded to, in terms, by the plaintiff’s legal representative. In short, the plaintiff had ample and reasonable opportunity to address these issues – he received notice and responded in terms. There was no procedural injustice in the way the proceedings were conducted and, therefore, the plaintiff was not denied procedural grounds upon this first limb of the protective orders ground.

20. [192]

    In providing my reasons for this conclusion, I shall avoid undue repetition of details set out earlier in my discussion about the course of proceedings at the outset of this judgment. Those reasons are as follows:

    1. (1)

       The issue of whether or not the plaintiff would reoffend was squarely litigated in the proceedings. The plaintiff relied upon his character and the absence of a prospect of reoffending in his final written submissions. There was argument in oral submissions by both parties below about the implications of the judgment in Lee (referred to at [124]-[125] of the Tribunal’s judgment) and, in that respect, whether a case involving dishonest, recklessness or a “suspicion or doubt or belief” (the allegation the plaintiff should have known) might properly resulted in a deregistration order, notwithstanding the delay between the impugned conduct and the determination by a Tribunal.

    2. (2)

       It was in that context that the Tribunal undertook its consideration of the lack of candour by the plaintiff in dealing with the TGA with respect to, in particular, the third transaction.

    3. (3)

       As to that latter factor, the plaintiff was cross-examined extensively without objection by the HCCC. The Tribunal’s reference to the plaintiff’s explanation in that respect as being unimpressive was a direct reference to that cross-examination. The HCCC expressly relied upon this factor in its written submissions, albeit in the context of the making out of the complaints per se. The HCCC also relied upon this factor in its oral submissions, which were directly responded to by counsel for the plaintiff.

    4. (4)

       The Tribunal referred to “other examples” of a lack of candour without further elaboration (I note the appeal did not raise an adequacy of reasons point). However, this is plainly a reference to the plaintiff’s failure to reveal Mr Rai’s identity at the outset of the inquiries by the TGA (see at [87] and [91] of the Tribunal decision). In its written submissions, the HCCC also contended that the plaintiff had concealed Mr Rai’s identity for a period of time. This same submission was advanced in oral submissions and dealt with in terms by counsel for the plaintiff in his oral submissions by way of an explanation for the omission.

    5. (5)

       I turn then to the finding in [134] of the Tribunal decision that the plaintiff knowingly mislead investigators. This issue concerned Complaint 2(1)(a) (given that the Tribunal dismissed Complaint 2(1)(b)). The Complaint pleaded that the plaintiff had provided “false and misleading” information to the TGA by providing a false invoice (“the first invoice”).

    6. (6)

       The Tribunal recognised that, as particularised in Complaint 2 (1)(a) the relevant concern was whether the transaction as described in the first invoice “occurred”. It found at [89] that it did not because, inter alia, the invoice provided to the TGA referred to payment by cheque number 1612. The Tribunal found that payment was not made to anyone involved in the transaction by that means. Thus, the plaintiff clearly provided false information to the TGA.

    7. (7)

       The Tribunal also recognised that certain matters raised in the proceedings, as demonstrating that the plaintiff had provided false and misleading information to the TGA, fell outside the particulars (at [87]). Two of those issues – the failure to disclose the third transaction and the failure to supply Mr Rai’s name to the TGA for ten days – have been discussed above and were the subject of Tribunal findings in [90] and [134]. The third area referred to in [87] was that the plaintiff claimed the first payment was made by cash. It is to this issue that attention will now be directed.

    8. (8)

       The Tribunal considered (at [90]) whether the plaintiff knew the information in the invoices was false. It concluded that the plaintiff sought to conceal critical details about “the true nature of the transaction”. In ground 7 of the appeal, it was pleaded that the Tribunal had regard to irrelevant considerations in this respect. As earlier noted, these issues were subsumed in the second limb of the plaintiff’s case namely the procedural fairness ground. Nonetheless, it is important to observe that serious doubts may be expressed as to this ground (submissions in challenging the relevance of findings made at [90] of the Tribunal decision). The Tribunal gave four reasons for the conclusion reached in [90]. The fourth reason dealt squarely with whether or not the plaintiff had, in providing the first invoice, mislead the TGA. That misleading conduct was a key element of Complaint 2(1)(a). By reference to cross-examination that will be referred to further below in the procedural fairness context, the Tribunal recorded correctly, that the plaintiff had admitted the invoice was false and that he had paid by cash rather than cheque. It had rejected his evidence that he had not sought to mislead in that respect. It was found that he had made a representation that the payment was made by cheque and that it may be inferred that he did so to mislead the TGA into believing the invoice was a genuine business record. The finding, expressed in that way, fell squarely within the particulars of the charge.

    9. (9)

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

    10. (10)

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

    11. (11)

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

21. [193]

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

22. [194]

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

The Second Limb: Two Stage Process

1. [195]

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

2. [196]

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

3. [197]

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

4. [198]

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

5. [199]

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

6. [200]

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

7. [201]

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

8. [202]

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

9. [203]

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

10. [204]

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

11. [205]

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

12. [206]

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

13. [207]

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

14. [208]

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

15. [209]

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

16. [210]

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

17. [211]

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

18. [212]

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

19. [213]

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

20. [214]

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

21. [215]

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

22. [216]

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

23. [217]

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

24. [218]

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

    1. (1)

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

    2. (2)

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

    3. (3)

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

    4. (4)

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

    5. (5)

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

    6. (6)

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

    7. (7)

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

25. [219]

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

26. [220]

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

27. [221]

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

28. [222]

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

29. [223]

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

30. [224]

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

31. [225]

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

32. [226]

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

33. [227]

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

34. [228]

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

35. [229]

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

36. [230]

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

37. [231]

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

38. [232]

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

39. [233]

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

Disposition of the Protective Orders Ground

1. [234]

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

2. [235]

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

3. [236]

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

CONCLUSIONS

1. [237]

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

2. [238]

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

3. [239]

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

4. [240]

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

DIRECTIONS

1. [241]

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