A former pharmacist who was struck off for supplying counterfeit Viagra has attempted to have the decision altered, blaming his legal reps for an error
Mr Mina Attia, the former owner of Shopsmart Wholesale pharmacies across Sydney, had his registration cancelled in December following revelations he had introduced counterfeit Viagra into the Sydney pharmaceutical market.
As part of the orders, Mr Attia has been unable to apply for a review of the cancellation order for a period of 12 months.
While the decision by the NSW Civil and Administrative Tribunal took effect on the date it was handed down – 23 December 2016 – an unhappy Mr Attia again faced the tribunal with the request that the decision be altered to come into effect on 1 March 2017 instead.
He contended that an “unforeseen and unintended consequence” of the decision is that he had been deprived of the right to appeal the decision.
Mr Attia asserted that “the tribunal’s failure to order that the decision not come into effect until after the expiration of the appeal period, constitutes an ‘obvious error’, namely an accidental slip or omission, and therefore the power to alter the decision conferred by s 63 of the NCAT Act can be exercised,” tribunal documents read.
He argued that his legal representatives had failed to draw to the tribunal’s attention the ramifications of making a decision with immediate effect, and because the decision was handed down shortly before Christmas he was unable to take immediate steps to consult his lawyers and seek a stay of the decision.
Mr Attia argued that “it would not have been the intention of the tribunal to deprive him of the right to appeal”, and had the tribunal been apprised of the consequences of making an order with immediate effect it would have changed its tune.
However at the February hearing, a principal member of the tribunal was unable to accept the proposition that the purported error arose from an “accidental slip or omission”. either by the tribunal or by Mr Attia’s legal representatives.
“First, Mr Attia and his representatives were squarely on notice that the order sought by the Commission was the cancellation of his registration as a pharmacist,” said the tribunal member.
“It could not reasonably be maintained that they were caught by surprise by the decision.
“Further, the parties consented to the complaint being dealt with by way of a ‘one-stage hearing’. This meant that the issue of whether some or all of the conduct particularised in the complaint had been established and if so what order should be made, would be dealt with in the one hearing,” they found.
The principal member of the tribunal was not satisfied that the purported error is not an “obvious error”, and therefore would not alter the decision.
Mr Attia’s deregistration stands as first ordered in December and, as before, he is unable to apply for a review of the decision until December this year.