Zepinic v Attorney-General of NSW

1. [1]

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

   1. (1)

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

   2. (2)

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

   3. (3)

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

   4. (4)

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

   5. (5)

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

2. [2]

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

3. [3]

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

4. [4]

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

   1. (1)

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

   2. (2)

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

   3. (3)

      …

5. [5]

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

   1. (1)

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

   2. (2)

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

   3. (3)

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

The law

1. [6]

   Rule 13.4 of the UCPR reads:

2. [7]

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

3. [8]

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

4. [9]

   Rule 14.28 of the UCPR reads:

5. [10]

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

6. [11]

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

Dr Zepinic’s prior proceedings

1. [12]

   Prior proceedings concerning similar subject matter include:

2. [13]

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

3. [14]

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

4. [15]

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

5. [16]

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

Time limitation judicial review

1. [17]

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

2. [18]

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

AHPRA and the National Law

1. [19]

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

2. [20]

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

3. [21]

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

4. [22]

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

5. [23]

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

6. [24]

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

7. [25]

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

8. [26]

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

9. [27]

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

10. [28]

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

11. [29]

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

12. [30]

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

13. [31]

    Section 163 of the National Law reads:

14. [32]

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

Background to NCAT decision

1. [33]

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

2. [34]

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

3. [35]

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

4. [36]

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

5. [37]

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

6. [38]

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

7. [39]

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

8. [40]

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

9. [41]

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

10. [42]

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

11. [43]

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

12. [44]

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

13. [45]

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

14. [46]

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

15. [47]

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

16. [48]

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

17. [49]

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

18. [50]

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

19. [51]

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

20. [52]

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

21. [53]

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

22. [54]

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

23. [55]

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

24. [56]

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

25. [57]

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

26. [58]

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

27. [59]

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

28. [60]

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

29. [61]

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

30. [62]

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

31. [63]

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

32. [64]

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

33. [65]

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

34. [66]

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

35. [67]

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

36. [68]

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

37. [69]

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

38. [70]

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

39. [71]

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

40. [72]

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

41. [73]

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

The Tribunal’s 2010 decision

1. [74]

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

2. [75]

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

3. [76]

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

4. [77]

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

Convictions in the United Kingdom

1. [78]

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

2. [79]

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

3. [80]

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

Application for a reinstatement order

1. [81]

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

2. [82]

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

3. [83]

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

2018 NCAT decision

1. [84]

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

2. [85]

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

3. [86]

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

4. [87]

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

Decision of NCAT – 2018

1. [88]

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

2. [89]

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

3. [90]

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

4. [91]

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

5. [92]

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

6. [93]

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

7. [94]

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

8. [95]

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

9. [96]

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

10. [97]

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

11. [98]

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

12. [99]

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

13. [100]

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

14. [101]

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

15. [102]

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

16. [103]

    NCAT determined at [56] that it was:

17. [104]

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

18. [105]

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

19. [106]

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

20. [107]

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

Summary dismissal and strike out motions

1. [108]

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

2. [109]

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

3. [110]

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

4. [111]

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

5. [112]

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

6. [113]

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

7. [114]

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

8. [115]

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

9. [116]

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

Paragraph 2

1. [117]

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

2. [118]

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

Paragraph 3

1. [119]

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

2. [120]

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

Paragraphs 4 and 5

1. [121]

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

2. [122]

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

3. [123]

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

4. [124]

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

5. [125]

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

6. [126]

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

7. [127]

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

8. [128]

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

9. [129]

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

10. [130]

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

    1. (1)

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

    2. (2)

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

    3. (3)

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

11. [131]

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

12. [132]

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

13. [133]

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

14. [134]

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

15. [135]

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

16. [136]

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

17. [137]

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

18. [138]

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

19. [139]

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

20. [140]

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

21. [141]

    In Hulme, Hallen J stated at [5]:

22. [142]

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

23. [143]

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

Costs

1. [144]

   Costs are discretionary. Costs usually follow the event.

2. [145]

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

3. [146]

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

   1. (1)

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

   2. (2)

      The proceedings are dismissed.

   3. (3)

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