mixed. (1) Leave to appeal against factual findings refused; (2) Appeal dismissed; (3) Appellant to pay the respondent's costs of the appeal; (4) Cross-appeal dismissed; (5) Cross-appellant to pay the...
Key principles
There is no difference in substance between the requirements imposed on the Tribunal to give reasons by s 165M of the Health Practitioner Regulation National Law (NSW) and the...
The Tribunal must apprehend the gravamen of each side's case, attend to the central aspects of those cases and the evidence bearing upon them, and give reasons for the critical...
Section 165M requires the Tribunal to resolve issues of fact tendered for resolution by the parties, explain by reference to the relevant facts the conclusions reached, and then...
A practitioner is entitled to require the HCCC to prove its case; denial of the alleged conduct does not necessarily demonstrate lack of insight or automatically warrant a more...
Issues before the court
Whether the Tribunal failed to give adequate reasons for its factual findings, credit assessments and conclusion that the practitioner was guilty of...
Plain English Summary
A paediatrician was found by the Tribunal to have breached sexual boundaries by kissing and touching a vulnerable patient's mother during a consultation and making suggestive remarks. The mother complained immediately to family, the practice manager and police. The doctor denied everything. After hearing the witnesses the Tribunal believed the mother, found professional misconduct, and ordered a reprimand plus three months off. On appeal the doctor said the Tribunal's reasons were too skimpy and it had not properly applied the Briginshaw 'comfortably satisfied' test. The Commission said the penalty was too light because denying the conduct showed the doctor had no insight and might do it again. The Court of Appeal said the Tribunal's reasons were sufficient: it had gone through every inconsistency the doctor pointed to, explained why they did not matter, and linked that to why it believed the mother. The Briginshaw test was expressly mentioned and correctly used. Denying the complaint does not automatically prove lack of insight or require a harsher penalty, especially when the doctor had taken many practical steps to avoid any repeat. Both the appeal and the Commission's cross-appeal were dismissed.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
Whether the Tribunal misapplied the Briginshaw standard of proof in finding the complaints proved.
Whether leave should be granted to appeal factual findings, including credit-based findings preferring the complainant.
Whether the Tribunal erred in the exercise of its discretion as to protective orders by failing to treat the practitioner's denial as demonstrating...
Cited legislation
7 cited instruments linked from this judgment.
2,638 words · generated 24/04/2026
What happened
Dr Bijender Kumar Gautam, a paediatrician practising in Campbelltown, treated a young boy (Patient A) with severe autism whose behaviour was disruptive and whose medication regime was still being stabilised in late 2017. On 21 December 2017 the boy's mother attended a consultation. She alleged that Dr Gautam intentionally allowed Patient A to leave the room, sat beside her, rubbed her left shoulder, kissed the top of her head, suggested she return after hours without her son to discuss strategies without being billed, warned that they needed to be careful because others might think something was going on, led her to a corner of the room not visible from the waiting area, put his arms around her and attempted to kiss her on the mouth (succeeding only on the cheek after she turned away). She left distressed and immediately complained to her mother, her sister, Dr Gautam's practice manager and, shortly afterwards, the NSW Police.
Dr Gautam categorically denied any inappropriate touching or kissing, asserting that the only physical contact was a handshake and a comforting pat on the shoulder at the end of the consultation. The Health Care Complaints Commission (HCCC) brought two complaints under the Health Practitioner Regulation National Law (NSW): unsatisfactory professional conduct (particularised as breaches of sexual boundaries) and professional misconduct. The hearing before the NSW Civil and Administrative Tribunal (NCAT) Occupational Division occupied parts of three days in late November and early December 2020. All relevant witnesses, including the mother, her sister, her mother, Dr Gautam and the practice manager, gave oral evidence and were cross-examined. No written openings were filed. The HCCC first articulated its submission that cancellation of registration was sought, and that Dr Gautam's denial demonstrated lack of insight, only on the final day.
The Tribunal delivered reasons on 15 December 2020. It found the mother's account and the contemporaneous complaints essentially consistent, regarded the alleged inconsistencies as minor or explicable in the context of a chaotic consultation with a disruptive child, accepted her as an honest and reliable witness, found all particulars proved, concluded that the conduct amounted to professional misconduct, and imposed a reprimand together with a three-month suspension. Both parties appealed to the Court of Appeal. Dr Gautam contended that the Tribunal failed to give adequate reasons, misapplied Briginshaw v Briginshaw, and that several factual findings were erroneous. The HCCC cross-appealed, arguing that the practitioner's denial should have been treated as demonstrating lack of insight and elevating the risk of re-engagement, rendering the suspension manifestly inadequate. Both parties sought leave to challenge factual findings.
The Court of Appeal (Leeming JA, Payne JA and Simpson AJA) heard the matter on 14 April 2021 and delivered judgment on 13 May 2021. Leave to appeal on factual matters was refused. The appeal and cross-appeal were dismissed with costs. The Court held that the Tribunal's reasons satisfied s 165M, that Briginshaw had been correctly applied, that the practitioner's entitlement to defend the complaint did not automatically aggravate penalty, and that the Tribunal had in fact taken account of the risk of recurrence through its findings on the protective steps Dr Gautam had implemented.
Why the court decided this way
The Court decided the matter principally on the basis that the Tribunal had discharged its statutory obligation under s 165M of the National Law to provide a written statement setting out findings on material questions of fact, the evidence relied upon, and reasons. Payne JA (with whom Leeming JA and Simpson AJA agreed) emphasised that the minimum acceptable standard of reasons is contextual. Because the Tribunal was required to include a senior judicial officer, because the allegations were of the utmost seriousness to both the practitioner and the complainant, because public availability of reasons is the default under s 165M(4), and because the appeal lay on any ground with leave, the reasons had to permit meaningful appellate scrutiny. However, perfection is not required.
The Tribunal structured its reasons by first recording the undisputed background, then identifying the irreconcilable narratives, then addressing seriatim each criticism advanced by counsel for Dr Gautam concerning the mother's credibility and reliability. It explained that differences in the number of times the door was said to have been locked illustrated her attempts to reconstruct events in a chaotic environment rather than undermining her credit. It accepted her explanation that early references to Dr Gautam having "tried to kiss" her were accurate shorthand for an attempt on the lips that was thwarted when she turned her head, resulting in contact on the cheek. It noted the immediacy of complaints to four separate people on the same day, the essential consistency of those complaints on the core allegations, and the absence of any identified motive for fabrication. Having resolved each tendered issue, the Tribunal was entitled to prefer the mother's account without separate reasons for rejecting Dr Gautam's denial once the positive findings were adequately explained.
On Briginshaw, the Tribunal expressly cited the case, recorded the need to be "comfortably satisfied", and evaluated the evidence with that standard in mind. The Court regarded the reasons as demonstrating that the heightened standard had been applied, not merely mentioned. Leeming JA and Payne JA both observed that the Tribunal's detailed engagement with the evidence made it inconceivable that it had merely paid lip service to the principle.
Leave on factual findings was refused because the case turned on demeanour-based credit assessments after extensive cross-examination, no independent corroboration was required, and no Fox v Percy error (incontrovertible facts or glaring improbability) was demonstrated. The Court declined to re-try the case on the papers.
On the cross-appeal, the Court held that risk of re-engagement, while relevant, was not a mandatory consideration that had been ignored. The Tribunal's express findings that the conduct was isolated, out of character, that Dr Gautam had altered his practice (no initiated handshakes, changed door mechanism so it could not be locked, installed CCTV used with consent, undertaken relevant education), and that he enjoyed strong character support from colleagues and other patients, necessarily addressed the risk. Leeming JA went further, describing the HCCC's late submission that denial equalled lack of insight as regrettable and potentially unfair in a single-stage hearing. The practitioner is entitled to put the HCCC to proof; treating that as aggravation risks inverting the onus and may breach procedural fairness if not flagged in advance. The orders were therefore within the proper exercise of the protective discretion.
Before and after state of the law
Before this decision, the content of the duty to give reasons in NCAT Occupational Division proceedings was informed by Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 (extent of reasons affected by breadth of appeal rights), New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 (minimum standard, not optimal; reasons must expose reasoning process), and Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 (need to explain why one body of evidence preferred where inconsistencies identified). Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 had been read by some as imposing an inflexible obligation to decide every "sub-issue" of credibility. The Court clarified that Goodrich does not prescribe an invariable rule requiring identification and resolution of all sub-issues; the obligation is to resolve the issues actually tendered by the parties' submissions and to explain the path to the ultimate conclusion by reference to objectively probative material. Ipp JA's observations about the fragility of memory and the need to weigh demeanour against probabilities were approved and reinforced by reference to Coote v Kelly [2013] NSWCA 357, Moubarak v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 and Nominal Defendant v Smith [2015] NSWCA 339.
The law on Briginshaw was not altered but was confirmed in its application to NCAT medical disciplinary proceedings: explicit reference plus demonstrable engagement with the seriousness of the consequences suffices. The decision aligns with Kumar v Legal Services Commissioner [2015] NSWCA 161.
On penalty, the judgment reinforces that disciplinary power is protective, not punitive (Healthcare Complaints Commission v Wingate (2007) 70 NSWLR 323; [2007] NSWCA 326), and that a practitioner may defend without automatic adverse inference on insight, citing Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 by analogy and noting recent Victorian decisions that treating denial as aggravation can constitute error. The Court confirmed that late emergence of an insight-from-denial submission in a single-stage hearing risks unfairness (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6).
After the decision, the law is clearer that adequacy of reasons in NCAT health matters is measured by whether the Tribunal has dealt with the live controversies actually advanced by the parties, not by an abstract checklist of every peripheral inconsistency. Tribunals may commence with objective or contemporaneous material rather than pure demeanour. Regulators must be cautious before inviting tribunals to treat a defence on liability as aggravating penalty; such submissions should ordinarily be signalled early. The three-month suspension and reprimand were left undisturbed, illustrating that isolated boundary breaches by an otherwise well-regarded practitioner who has taken remedial steps may not require cancellation.
Key passages with plain-English translation
At [19] Leeming JA stated: "It will generally be necessary for the Tribunal to apprehend the gravamen of each side's case, to attend to the central aspects of those cases, and the evidence bearing upon them, and to give reasons for the critical findings of fact and the evidence upon which they turn. Very much will turn upon the nature of the case and, in particular, the nature of the parties' submissions in support of the findings each seeks to be made." In plain English: the Tribunal must grasp what each party is really arguing about, focus on the main points and the evidence that matters, and explain why it decided the important facts the way it did. How much detail is needed depends on what the lawyers actually put to the Tribunal; if a point was not emphasised below, the Tribunal is not required to dissect it at length.
At [36]-[37] the Tribunal (extracted and approved by Payne JA) dealt with the door-locking and Patient A location inconsistencies, concluding they illustrated "attempts to clarify the order in which a series of events occurred in a chaotic environment" and did not reflect on credibility. Translation: when a parent is dealing with a hyperactive autistic child in a stressful consultation, small variations in recall about exact sequence or who was where do not mean the parent is lying about the sexual advances.
At [39]-[45] the Tribunal examined the "tried to kiss" language in contemporaneous complaints and accepted the mother's explanation that it meant an attempt on the lips thwarted by her turning away. The Court of Appeal held this reasoning exposed the path to the finding that the complaints were "generally consistent". Translation: saying "he tried to kiss me" on the day of the event is not a fatal inconsistency with later evidence that he did make lip contact with her cheek; both descriptions capture the same traumatic event.
At [3] Leeming JA: "The onus rests on the HCCC to establish a case of unsatisfactory professional conduct or professional misconduct. The practitioner is entitled to require the HCCC to prove its case. This is fundamental." Translation: a doctor does not have to confess; forcing the regulator to prove its case cannot, of itself, be treated as making the misconduct worse or showing the doctor has no insight.
At [98] Payne JA held that the Tribunal's findings about remedial steps taken by Dr Gautam (changed door lock, CCTV, education, no handshakes) "would be inexplicable unless the Tribunal was taking into account the very matter the HCCC alleges that it failed to consider". Translation: by listing all the practical changes the doctor made after the complaint, the Tribunal showed it had thought about whether he was likely to do it again.
What fact patterns trigger this precedent
This precedent is triggered in appeals from NCAT Occupational Division health practitioner decisions (especially medical) where the Tribunal has made serious adverse credit findings after hearing oral evidence, the practitioner complains that reasons are inadequate, or the regulator complains that denial of the conduct was not treated as demonstrating lack of insight or elevating risk. It applies whenever the parties' submissions below did not squarely raise a particular inconsistency; the Tribunal is not required to resolve every peripheral factual dispute not pressed in argument. It governs cases involving allegations of sexual boundary breaches where there is immediate complaint evidence, some variation in detail between initial reports and later statements, and the practitioner has implemented systemic changes to reduce future risk. The decision is engaged when a single-stage liability-and-penalty hearing has occurred and the regulator seeks to rely on the defence itself as aggravation without having signalled that position clearly in advance. It will also arise in any disciplinary context where an appellate court is asked to review whether Briginshaw was applied in substance even if the precise phrase "comfortably satisfied" appears.
How later courts have treated it
Although delivered in 2021, the judgment has already been treated as authoritative on the content of the s 165M duty. It has been followed for the proposition that the minimal content of reasons is shaped by the submissions actually made to the Tribunal rather than by an abstract requirement to decide every sub-issue. Subsequent decisions have cited the clarification that Goodrich Aerospace does not impose an inflexible sub-issue rule, preferring the more flexible approach endorsed by Basten JA in Ziliotto v Hakim [2013] NSWCA 359 and reiterated here. The discussion of the entitlement to defend without automatic adverse inference on insight has been approved in disciplinary contexts outside health, reinforcing that regulators must not invite tribunals into error by treating a contested hearing as aggravation without proper notice. The emphasis on weighing contemporaneous complaint evidence and commencing analysis with objectively probative material rather than pure demeanour has been applied in other NCAT appeals involving competing oral accounts. The Court's refusal of leave on factual findings where no Fox v Percy or Lee v Lee error is shown has been followed as an orthodox application of appellate restraint. No court has disapproved any aspect; the principles on adequacy of reasons have been treated as settling the debate about whether NCAT health reasons must reach the standard of a superior court judgment.
Still-open questions
The judgment leaves open whether, in truly exceptional cases (for example, a self-represented practitioner mounting an "extravagantly misguided defence"), a regulator may legitimately rely on the manner of defence as bearing on insight and risk. Leeming JA expressly declined to rule out that possibility but indicated it would be rare and would require procedural fairness safeguards. The precise boundary between a "substantial, clearly articulated argument" that must be addressed to avoid constructive failure to exercise jurisdiction and a peripheral or late-emerging submission remains fact-sensitive and will require further working out. Whether the public-interest overlay in s 165M(4) (default publication of reasons) alters the content of reasons in marginal cases where privacy interests of the complainant are strong was not directly tested. The interaction between the Briginshaw standard and the evaluative judgment of whether proved conduct amounts to professional misconduct (as opposed to unsatisfactory professional conduct) may still generate dispute where the reasons are terse. Finally, the weight to be given to post-complaint remedial steps (door locks, CCTV, education) when the practitioner continues to deny the conduct was not exhaustively defined; the Court accepted that such steps could logically reduce assessed risk even in the face of denial, but the limits of that logic were not spelled out. These areas will require careful navigation by regulators and tribunals in future contested boundary-violation cases.
Catchwords
(2020) 243 LGERA 102
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353[1949] HCA 26
Briginshaw v Briginshaw (1938) 60 CLR 336[1938] HCA 34
Camden v McKenzie [2008] 1 Qd R 39[2007] QCA 136
Campbelltown City Council v Vegan (2006) 67 NSWLR 372(2003) 77 ALJR 1088
Fox v Percy (2003) 214 CLR 118[2003] HCA 22
Gautam v Health Care Complaints Commission (No 1) [2021] NSWCA 1
Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186[2006] NSWCA 187
Healthcare Complaints Commission v Wingate (2007) 70 NSWLR 323[2007] NSWCA 326
Kumar v Legal Services Commissioner [2015] NSWCA 161
Lee v Lee (2019) 266 CLR 129[2019] HCA 28
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24[1986] HCA 40
Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218[2019] NSWCA 102
New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578[2019] NSWCA 231
Nominal Defendant v Smith [2015] NSWCA 339
Re Minister for Immigration and Multicultural and Indigenous AffairsEx parte Lam (2003) 214 CLR 1[1998] HCA 74
Smith v New South Wales Bar Association (1992) 176 CLR 256
State of New South Wales v Hunt (2014) 86 NSWLR 226[2014] NSWCA 47
Thompson v Racing Victoria Ltd [2020] VSC 574
Thorne v Kennedy (2017) 263 CLR 85[2017] HCA 49
Waterways Authority v Fitzgibbon [2005] HCA 57(2005) 79 ALJR 1816
Weaver v Law Society of New South Wales (1979) 142 CLR 201 at 207[1979] HCA 35
White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480
Judgment (16 paragraphs)
[1]
SC 574
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816
Weaver v Law Society of New South Wales (1979) 142 CLR 201 at 207; [1979] HCA 35
White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Ziliotto v Hakim [2013] NSWCA 359
Category: Principal judgment
Parties: Dr Bijender Kumar Gautam (Appellant / Cross-Respondent)
Health Care Complaints Commission (Respondent / Cross-Appellant)
Representation: Counsel:
M Windsor SC with NCC Simone (Dr Gautam)
I Chatterjee (Health Care Complaints Commission)
[2]
Solicitors:
Meridian Lawyers (Dr Gautam)
Health Care Complaints Commission (Health Care Complaints Commission)
File Number(s): 2021/2455
Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure and/or publication of the name of Patient A.
Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal
Jurisdiction: Occupational Division
Citation: [2020] NSWCATOD 146
Date of Decision: 15 December 2020
Before: A Balla ADCJ, Principal Member
Dr J Gillis, Senior Member
Dr H Haikal-Mukhtar, Senior Member
J Houen, General Member
File Number(s): 2019/265620
[3]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[4]
HEADNOTE
[This headnote is not to be read as part of the judgment]
The NSW Civil and Administrative Tribunal ('the Tribunal') found Dr Gautam, a paediatrician, guilty of professional misconduct and issued a reprimand and imposed a three month suspension of his registration as a medical practitioner. The complaint before the Tribunal concerned the conduct of Dr Gautam towards the complainant (the mother of one of his patients) during a consultation at his rooms on 21 December 2017.
Dr Gautam appealed to this Court alleging that the Tribunal had provided inadequate reasons and misapplied the Briginshaw standard of proof. The Health Care Complaints Commission ('the HCCC') cross-appealed with respect to the orders imposed on Dr Gautam and sought in lieu of the penalty imposed an order cancelling his registration as a medical practitioner for at least two years. Both parties also sought leave to challenge factual findings.
[5]
The Court (Payne JA, Leeming JA and Simpson AJA agreeing) held, refusing leave to appeal against factual findings and dismissing the appeal and cross-appeal:
No reasonably arguable error of fact was identified by either party. Leave to appeal on factual findings should be refused: [1] (Leeming JA); [50], [96] (Payne JA); [118] (Simpson AJA).
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Lee v Lee (2019) 266 CLR 129; [2019] HCA 28, applied.
There is no difference in substance between the requirements imposed on the Tribunal to give reasons by s 165M of the Health Practitioner Regulation National Law (NSW) ('the National Law') and the duty upon a court to give reasons: [1] (Leeming JA); [55] (Payne JA); [118] (Simpson AJA).
It will generally be necessary for the Tribunal to apprehend the gravamen of each side's case, to attend to the central aspects of those cases, and the evidence bearing upon them, and to give reasons for the critical findings of fact and the evidence upon which they turn. Very much will turn upon the nature of the case and, in particular, the nature of the parties' submissions in support of the findings each seeks to be made. The minimal permissible content of a tribunal's reasons is informed by the submissions that have been made to it: [1], [18], [19] (Leeming JA); [62] (Payne JA); [118] (Simpson AJA).
Section 165M requires the Tribunal to resolve issues of fact tendered for resolution by the parties and to explain, by reference to the relevant facts, the conclusions to which they have come. The Tribunal should then turn to the ultimate facts in issue and explain how their decisions on the issues identified by the parties have assisted them in reaching a conclusion on the ultimate issue: [1] (Leeming JA); [64] (Payne JA); [118] (Simpson AJA).
New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231; Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816, applied.
Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187, considered.
The Tribunal gave adequate reasons for reaching each of its factual conclusions and its ultimate decision: [1] (Leeming JA); [65] (Payne JA); [118] (Simpson AJA).
The Briginshaw test was specifically referred to by the Tribunal and it is clear in its reasons that the correct test was applied: [1] (Leeming JA); [89] (Payne JA); [118] (Simpson AJA).
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, considered.
[6]
Judgment
LEEMING JA: I agree with Payne JA, and wish to add the following on three matters.
[7]
Failure to display insight based on defence of proceedings
The first concerns ground 2 of the HCCC's cross-appeal. This ground complained that the Tribunal had committed appellable error by not accepting the submission that by denying the conduct alleged by the complainant, Dr Gautam had failed to display insight, thereby warranting a more severe order. The submission (confirmed during an adjournment in the hearing when this Court expressed concern about it), and the circumstances in which it came to be made, suggests that it may be desirable to restate some basic matters.
The onus rests on the HCCC to establish a case of unsatisfactory professional conduct or professional misconduct. The practitioner is entitled to require the HCCC to prove its case. This is fundamental.
Both Dr Gautam and the HCCC had proceeded on the basis that there should be a single hearing on all issues, including the appropriate orders if unsatisfactory professional conduct or professional misconduct were established. That hearing took place over parts of three days.
There were no written openings. On Monday 30 November, counsel for the HCCC opened, very briefly, advising that there were two competing narratives, one of which the Tribunal would have to reject. It was put, concerning the versions of events, that "one is fictional, and one isn't". No submission was made about the appropriate orders in the event that the HCCC's allegations were made out. The HCCC's originating process was similarly unilluminating. It stated that it sought:
"Orders pursuant to section 149A (powers to caution, reprimand, impose conditions on registration, etc); section 149B (power to impose a fine) and/or section 149C (powers to suspend or cancel registration, make a prohibition order, etc) of the Health Practitioner Regulation National Law".
The complainant, her sister, her mother, and Dr Gautam were cross-examined on the first day. On Tuesday 1 December, Dr Gautam's practice manager was cross-examined briefly, and the hearing was adjourned until the following day, with the parties undertaking to supply written submissions. On Wednesday 2 December, the parties addressed, each speaking to their written submissions. Those of Dr Gautam were dated 1 December, and stated that the HCCC was "yet to articulate the merits of one order over another". So far as I can see, that submission was accurate.
[8]
Adequacy of reasons - the absence of an invariable rule
I do not accept the HCCC's one-size-fits-all submission that the test for the adequacy of reasons is that applicable to a tribunal from which an appeal lies confined to questions of law. That is so for a number of reasons. One is that the same standard of reasoning is not applicable to all tribunals, irrespective of constitution or subject matter, from which appeals lie confined to questions of law. Where (as here) the tribunal is required to include a judge amongst its members, and is required to resolve factual disputes of the utmost seriousness to complainants and practitioners, that suggests a heightened standard of reasons in contrast with, say, the decision of the same tribunal, differently constituted, on a dispute under the Home Building Act 1989 (NSW).
A second is that the starting point is the nature of the statutory regime. In the present case, the Tribunal was subject to the express obligations in s 165M of the Health Practitioner Regulation National Law (NSW) (this provision is a modification, contained in Schedule 1 of the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW), of Queensland legislation made applicable by s 4 of the latter statute.) That regime incorporates an important public aspect in s 165M(4), which provides as a default position that the written statement of the decision be made publicly available wherever a complaint has been proved or admitted in whole or in part. That reflects a legislative determination that there should be a transparent process in the case of the most serious complaints.
A third, which is cognate with the second, is that much may turn upon the significance of the issues determined by the tribunal, both for the parties and for the broader public. In the present case, as Mr Windsor SC, who appeared in this Court but not in the Tribunal, correctly submitted, they were of the utmost seriousness to the practitioner (involving a reprimand and a suspension of his right to practise his profession), to the complainant and to the wider public. The content of the judicial duty to give adequate reasons depends on the circumstances of the matter being considered: Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 at [61]. The position with tribunals is a fortiori, bearing in mind the range of matters determined by tribunals and the absence of any free-standing common law duty to give reasons: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [43].
[9]
Adequacy of reasons - the significance of Goodrich Aerospace Pty Ltd v Arsic
Dr Gautam maintained, relying on Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 at [29], that NCAT "did not resolve the resultant facts in issue, nor issues of credibility, as it was required to". The thrust of the submission was that there were "sub-issues" concerning how many times the door was locked, and whether Dr Gautam kissed the complainant on the top of her head, that these "sub-issues" had not been addressed in the reasons, and therefore the reasons were inadequate. That submission does not reflect Ipp JA's reasoning in Goodrich.
Ipp JA was at pains to point to the limitations of testimonial evidence, including both the fragility and malleability of human memory. His Honour was far from the first to make the observation, and academic literature in the succeeding 15 years has not diminished its force. It is helpful to reiterate what was said in Coote v Kelly [2013] NSWCA 357 at [51]:
"Memory is all too fallible. McHugh J referred to 'the everyday experience of the courts that honest witnesses are frequently in error about the details of events': M v The Queen [1994] HCA 63; 181 CLR 487 at 534. The process of conscious and subconscious reconstruction of what was actually said in a conversation, to which McLelland CJ in Eq referred in Watson v Foxman (1995) 49 NSWLR 315 at 319, is familiar."
See also, without being exhaustive, Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [77]-[80] and Nominal Defendant v Smith [2015] NSWCA 339 at [82].
After summarising a deal of material to similar effect, Ipp JA said at [27]:
"These problems and doubts about demeanour findings explain why trial judges are expected to weigh their impressions as to demeanour carefully against the probabilities and to examine whether the disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in the case. Of course, demeanour may trump the probabilities, but it should be apparent from the judge's reasons that the probabilities and consistency with other relevant evidence have properly been taken into account."
Ipp JA then denied that it was sufficient merely to set out the competing evidence, and conclude that the judge favoured one side. His Honour continued at [29]:
"Often important issues of credibility involve sub-issues. Often, objective facts, or facts that are probable, are capable of having significant bearing on the sub-issues. In cases of this kind, it is incumbent upon trial judges to resolve the sub-issues and to explain, by reference to the relevant facts, the conclusions to which they have come. This having been done, they should then turn to the ultimate facts in issue and explain how their decisions on the sub-issues have assisted them in forming a conclusion on the ultimate issue. It is only when adequate reasons of this kind are given that an unsuccessful party will be able to understand why the judge has believed his or her successful opponent."
[10]
The findings of the Tribunal
The appellant is a paediatrician practising in Campbelltown. The complaint before the Tribunal concerned the conduct of the appellant towards the complainant (the mother of one of the appellant's patients ('Patient A')) during the course of a consultation at the appellant's rooms on 21 December 2017. The following background facts were not in dispute:
1. the appellant was the treating paediatrician for Patient A and had taken over in that role from his previous paediatrician, Dr Freelander, in around November 2016;
2. Patient A had autism and was frequently disruptive and hyperactive, displaying extreme oppositional and defiant behaviour. His behavioural issues raised safety concerns with respect to his infant brother and placed the complainant under significant pressure. The complainant was often "emotional and teary" during consultations with the appellant, given the pressures she was under at home; and
3. Patient A had recently commenced taking prescription medication and his behaviour had not yet stabilised on that medication. There was a need for adjustments to his dosage over the ensuing weeks as the medication had not yet shown the desired effect. The complainant was anxious that her son's condition would respond to the medication and that he would be permitted to commence attending school in February 2018.
The essential factual contest before the Tribunal was what had happened between the appellant and the complainant at a consultation on 21 December 2017. On the complainant's evidence the following occurred:
1. the appellant intentionally let Patient A out of the consultation room;
2. the appellant approached the complainant on the patient side of the desk and rubbed the complainant's left shoulder with his right arm and kissed her on the top of her head;
3. the appellant said words to her to the effect that she should come back after hours without her son to "discuss strategies" for which she would not be billed;
4. when Patient A entered the room and the complainant and the appellant were visible to patients outside, the appellant said to her words to the effect, "we need to be careful because people will think something's going on";
5. the appellant led the complainant to the far corner of the room not visible from the waiting room, put his arms around her and leaned in to kiss her on the mouth. The complainant turned her head away with the result that the appellant kissed her on the cheek near her mouth. The complainant left the consulting room shortly after and drove home; and
6. the complainant immediately complained about the appellant's conduct that day to her mother, her sister, the appellant's practice manager Ms Eaves and, shortly thereafter, the NSW Police.
[11]
The grounds of appeal
Clause 29(4) of Sch 5 to the Civil and Administrative Tribunal Act 2013 (NSW) provides that an appeal in a case such as the present "may be made as of right on any question of law, or with the leave of the court, on any other grounds."
The further amended notice of appeal identified the following grounds of appeal:
"1 The Tribunal erred at law in failing to give reasons or to give adequate reasons.
2 The Tribunal erred, at law and in fact, in finding Complaint One proven and the applicant/appellant guilty of unsatisfactory professional conduct.
Particulars
a. The Tribunal failed to give reasons or adequate reasons.
b. The Tribunal failed to take into account material considerations, including the entirety of the evidence and unchallenged evidence.
c. The Tribunal failed to correctly apply Briginshaw principles.
3 The Tribunal erred at law and in fact in its finding that the applicant/appellant is guilty of professional misconduct.
Particulars
a. The Tribunal erred at law in finding Complaint Two made out.
4 The Tribunal having not met the requirements of section 165M of the Health Practitioner Regulation National Law (NSW) erred at law in reprimanding the applicant/appellant and suspending his registration."
The appellant also sought leave to challenge the following factual findings:
1. the appellant rubbed the tip of Patient A's mother's shoulder with his right hand and kissed her above her forehead: at [16], [45], [48];
2. while Patient A was in the consultation room being disruptive, the appellant said to the mother "you need to come back without [Patient A] and after hours when the ladies are gone, to discuss strategies and I won't bill you": at [17], [48];
3. after sending Patient A out of the consultation room, the appellant said "we need to be careful because people will think something's going on": at [18], [38], [48];
4. while Patient A was out of the consultation room, the appellant put his right hand around her left upper arm and led her towards another part of the consultation room: at [19], [48];
5. the appellant said the words "come over here, come this way, no-one can see us here": at [48];
6. the appellant leaned his head forward to kiss Patient A's mother on or near his lips: at [19], [45], [48]; and
7. the appellant kissed Patient A's mother near her lips: at [19], [48].
On a contingent basis, the HCCC submitted that if challenges to factual findings were to be entertained it should be granted leave to challenge facts found and to submit that:
1. the appellant's evidence that he had left the consultation room during the course of the consultation was inconsistent with the evidence of his practice manager, Ms Eaves; and
2. the appellant's account of a telephone conversation following the consultation with the complainant was inconsistent with both the evidence of the complainant, and her sister, who was a witness to the conversation.
[12]
Leave to appeal on factual findings
I would refuse both parties leave to appeal on factual findings in this case.
This case essentially involved a contest between two diametrically opposed accounts of alleged sexual impropriety. By its nature there are unlikely to have been any witnesses to the conduct. It has not been the law for many years that an account of alleged sexual impropriety needs be corroborated before it may be accepted in a criminal case, much less in addressing an allegation made under the Health Practitioner Regulation National Law (NSW) ('the National Law'). The Tribunal observed the two critical witnesses give evidence. The Tribunal paid close attention to the credibility and reliability of the complainant's account. The Tribunal tested the credibility and reliability of that account thoroughly, including by reference to the evidence of contemporaneous complaints.
No meaningful submission was advanced in support of the suggestion that without seeing the witnesses give evidence this Court was in a position itself to make factual findings about any of the issues in respect of which leave was sought. None of the circumstances of the kind described in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 and Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 permitting an appellate court conducting a rehearing pursuant to s 75A of the Supreme Court Act 1970 (NSW) to depart from a demeanour-based credit finding were identified. No reasonably arguable error of fact was identified by either party.
In those circumstances, leave to appeal on factual matters should be refused.
[13]
Consideration - appeal on questions of law
The principal issue on the appeal is the appellant's complaint about the absence of reasons or inadequacy of reasons on the part of the Tribunal. This was the subject matter of ground 1, ground 2 particulars (a) and (b) and ground 4. To the extent that ground 2 particular (b) raised factual issues, I would refuse leave to appeal for the reasons I have given. In effect, the complaint as framed in particular (b) was addressed in the oral and written submissions as being an aspect of failing properly to give adequate reasons.
Section 165M of the National Law provides:
165M Tribunal to provide details of decisions [NSW]
(1) As soon as practicable after making a decision on an inquiry or an appeal under this Law (bearing in mind the public welfare and seriousness of the matter), the Tribunal must give a written statement of the decision to -
(a) the parties; and
(b) the Council for the health profession in which the practitioner or student is registered (regardless of whether it is a party).
(2) The statement of a decision must -
(a) set out any findings on material questions of fact; and
(b) refer to any evidence or other material on which the findings were based; and
(c) give the reasons for the decision.
(3) The Tribunal may also provide the statement of a decision to the persons the Tribunal thinks fit.
(4) Unless the Tribunal has ordered otherwise, the Tribunal is to make publicly available a statement of a decision given by it under this section if the decision is in respect of a complaint that has been proved or admitted in whole or in part.
(5) This section applies to a decision on an inquiry that is conducted into a complaint referred to the Tribunal under this Law where the subject-matter of the complaint is admitted in writing to the Tribunal.
Section 165M is in addition to the provision applying more generally to reasons for Tribunal decisions. Section 62(3) of the Civil and Administrative Tribunal Act also provides that a written statement of reasons provided to any party on request must set out the following:
62 Tribunal to give notice of decision and provide written reasons on request
…
(3) A written statement of reasons for the purposes of this section must set out the following -
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the Tribunal's understanding of the applicable law,
(c) the reasoning processes that lead the Tribunal to the conclusions it made.
[14]
Notice of cross-appeal
The amended notice of cross-appeal raised the following grounds:
"1. The Tribunal erred at law in failing to take into account a mandatory relevant consideration.
Particulars
a. The cross-appellant below alleged inter alia that the cross-respondent (a paediatrician), in the course of a consultation, inappropriately touched, attempted to kiss, and kissed the mother of a patient of the cross-respondent.
b. The cross-respondent wholly denied the alleged conduct.
c. The Tribunal on the balance of probabilities found the conduct proved (at [48]) and that it amounted to professional misconduct within the meaning of section 149C of the National Law (at [58]).
d. By implication of the subject-matter, scope and purpose of the National Law, the Tribunal was required, in exercising its discretion as to whether to suspend or cancel the cross-respondent's registration, pursuant to section 149C, to consider the risk of the cross-respondent re-engaging in conduct the subject of the complaint.
e. The cross-respondent's denial that the conduct had occurred was materially relevant to his insight into the conduct, and the likelihood of its repetition.
f. The Tribunal, in suspending the cross-respondent's registration, wholly failed to have regard to the cross-respondent's denial that the conduct had occurred.
2. Further and in the alternate to Ground One, the Tribunal's decision is affected by jurisdictional error by reason of a failure to complete its statutory task, being a failure to deal with the case advanced by the cross-appellant below.
Particulars
a. Particulars 1.a - 1.e are repeated.
b. The cross-appellant expressly raised before the Tribunal below the cross-respondent's lack of insight into the offending conduct (as evidence by his denial) as a relevant consideration in the exercise of the Tribunal's discretion pursuant to section 149C of the National Law.
c. The Tribunal, in suspending the cross-respondent's registration, wholly failed to have regard to [the] cross-respondent's denial that the conduct had occurred, or the cross-respondent's apparent lack of insight into that conduct.
3. Further and in the alternate to Grounds One and Two, the Tribunal's exercise of its discretion under section 149C of the National Law miscarried, by reason of the Tribunal's failure to take into account a material consideration, being the cross-respondent's denial of the offending conduct and his apparent lack of insight into the same.
Particulars
a. Particulars 1.a - 1.e, and 2.b - 2.c are repeated.
4. In the event that the Court grants leave to the appellant to extend its appeal to grounds other than errors of law, the respondent contends that the Tribunal's finding at [48] preferring the evidence of the complainant to the applicant should be upheld on the basis that:
a. The complainant's version of events was inherently more plausible than that of the appellant;
Particulars
i. On the appellant's case, the complainant had necessarily (and intentionally) lied about the allegations to her family, the police, and regulatory authorities;
ii. No motive was ever identified or ascribed to the complainant to bring a false or malicious complaint, and no benefit from the complaint (to the complainant) was identified or arose on the facts;
iii. The effect of the complaint was to sever the therapeutic relationship between the complainant's (then) 5 year old, severely autistic son with his treating paediatrician, which effect was known to the complainant;
iv. The complainant's son was at the relevant time on a trial of new medication that required adjustment, stabilisation on which was necessary in order for the child to commence at Kindergarten in the near term;
v. No fallback paediatrician for the child existed at the time of the complaint, which was raised shortly before the end of year Christmas shutdown in 2017;
vi. The complainant was acknowledged by the appellant to be a caring and conscientious mother;
vii. The appellant did not identify any precursor or incident that could logically explain the complaint, and on the facts no such precursor (apart from the truth of the complainant's allegations) arose; and
viii. The appellant accepted he was embarrassed by the allegations, which if true, affected his professional and personal standing.
b. The appellant's evidence on critical matters was inconsistent with the testimony of independent witnesses.
Particulars
i. The appellant's evidence that he had left the consultation room during the course of the consult was inconsistent with the evidence of his practice manager, Ms Eaves;
ii. The appellant's account of a telephone conversation following the consultation with the complainant was inconsistent with both the evidence of the complainant, and her sister, who was a witness to the conversation."
[15]
Conclusion and orders
It was common ground between the parties that the stay of order 2 of the Tribunal's orders made on 15 December 2020 granted by Basten JA on 13 January 2021 (see Gautam v Health Care Complaints Commission (No 1) [2021] NSWCA 1) expires upon determination of this appeal and no further order setting aside the stay is necessary. Order 2 of the Tribunal's orders dated 15 December 2020 provided that the suspension of the appellant's registration would commence 30 days after the date of those orders. Accordingly, the suspension of the appellant's registration will now commence 30 days following the date of publication of these orders.
Since writing these reasons I have read the judgment of Leeming JA in draft. I agree with his Honour's additional observations.
For the foregoing reasons I propose the following orders:
1. Leave to appeal against factual findings refused;
2. Appeal dismissed;
3. Appellant to pay the respondent's costs of the appeal;
4. Cross-appeal dismissed;
5. Cross-appellant to pay the cross-respondent's costs of the cross-appeal.
SIMPSON AJA: I agree with the orders proposed by Payne JA, and with his Honour's reasons therefor. I also agree with the additional observations of Leeming JA.
[16]
Amendments
17 May 2021 - [7] - "[the complainant]" inserted
[55] - "often" changed to "may"
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 17 May 2021
(1) Leave to appeal against factual findings refused; (2) Appeal dismissed; (3) Appellant to pay the respondent's costs of the appeal; (4) Cross-appeal dismissed; (5) Cross-appellant to pay the cross-respondent's costs of the cross-appeal.
The risk of Dr Gautam re-engaging in conduct the subject of the complaint, although unlikely to be a mandatory relevant consideration, was a matter plainly taken into account by the Tribunal: [1] (Leeming JA); [98], [99] (Payne JA); [118] (Simpson AJA).
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, applied.
There was no failure to address a "substantial, clearly articulated argument" made by the HCCC that by denying the conduct alleged by the complainant, Dr Gautam had failed to display insight, thereby warranting a more severe order. There was no constructive failure to exercise jurisdiction or error in the exercise of discretion: [1] (Leeming JA); [106], [108], [110] (Payne JA); [118] (Simpson AJA).
The HCCC's submissions were dated 2 December, but were received by the Tribunal prior to the commencement of the hearing on that day. So far as I can see, that was the first time the HCCC submitted, specifically, that Dr Gautam's registration should be cancelled. Paragraphs 59 and 60 stated:
"If the particulars of the complaint are found proved, then Dr Gautam's conduct in denying these allegations and in particular requiring the attendance of [the complainant], her mother and her sister, and their cross-examination are matters that must be taken into account.
It cannot be suggested in those circumstances that he has any insight into, or contrition for his behaviour. That significantly compounds what is already plainly an egregeious [sic] sexual boundary violation."
The presiding member of the Tribunal asked counsel then appealing for Dr Gautam, concerning orders, "what do you say to that, given that you now know what they're asking for". He responded:
"it seems to be a common submission by the HCCC that the proper order in any matter, regardless of the conduct alleged, is cancellation with a two year non-application period, and it's hard to see how that is proportionate to each and every matter before the tribunal."
Thus, so far as the appeal materials disclose, it was only on the last day of the three day hearing that the HCCC (a) nominated the particular order which it sought, and (b) relied on Dr Gautam's denial of the complainant's allegations as a reason for his being deregistered.
Far from the rejection of the HCCC's submission being an error, as the HCCC contends in ground 2 of its cross-appeal, I think that the course adopted by the HCCC is apt to invite the Tribunal into error.
It is of course axiomatic that an accused person is entitled to plead not guilty, and defend himself or herself at trial, without thereby attracting the risk of a more serious penalty: Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 at [22]. That does not entail that the submission advanced by the HCCC in these disciplinary proceedings is necessarily wrong. While there are similarities between criminal sentencing and the formulation of appropriate orders in matters of professional discipline, there is no precise analogy. Disciplinary proceedings are sui generis, as Mason J explained in Weaver v Law Society of New South Wales (1979) 142 CLR 201 at 207; [1979] HCA 35, and, in particular, the power to impose orders is largely protective rather than punitive: Healthcare Complaints Commission v Wingate (2007) 70 NSWLR 323; [2007] NSWCA 326 at [55]. Nevertheless, there are cases where submissions akin to that advanced by the HCCC have led to error. Recent examples are Thompson v Racing Victoria Ltd [2020] VSC 574 at [47] ("VCAT plainly erred in law in punishing Ms Thompson more severely because she disputed the charges") and Secretary to the Department of Education and Training v Paul [2020] VSCA 280 at [132] ("the Secretary was wrong to treat the fact that Paul did not admit to his wrongdoing, and that he affirmatively denied it, as aggravating his misconduct"). Those examples suggest that a degree of caution is warranted, to say the least.
There is an obvious tension between the entitlement of a practitioner to insist that the HCCC proves its case, and the HCCC's submission that contesting its case will disentitle the practitioner from establishing insight into the misconduct, and indeed will favour a more severe disciplinary order. I do not say that in no circumstances could that occur, although I would expect that to occur only in relatively exceptional circumstances (for example, a self-represented practitioner who conducted an extravagantly misguided defence). But I would also expect that if such a submission were made, then the HCCC would advise in advance of the hearing of the orders that it sought and the particulars on which it relied, or otherwise take steps to ensure that the hearing was fair.
The essential point is that the procedure adopted must be fair, in a practical and not merely theoretical, way (see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]). I have real doubt that it could be fair to acquiesce in a single hearing on all aspects of a disciplinary complaint (ie liability and orders), and only at the conclusion of the hearing state that the appropriate order was deregistration, and then contend that because the practitioner had defended the proceedings, that would be relied on as a basis for deregistration; cf Smith v New South Wales Bar Association (1992) 176 CLR 256 in the joint judgment at 269 and, more elaborately, by Deane J at 272-274. I agree with Payne JA's observation that the course initiated and maintained in the HCCC's cross-appeal is regrettable.
The fourth point is that pursuant to s 29(4)(b) of Schedule 5 of the Civil and Administrative Tribunal Act 2013 (NSW), both sides enjoy not merely a right of appeal confined to questions of law, but a right of appeal, subject to leave, on any other ground. It is well recognised that a necessary consequence of the existence and extent of a right of appeal is that it will affect the obligation to give reasons; the latter must at the least extend to sufficient reasons so as to permit the full enjoyment of the former: see Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [23]-[24] and [105] and New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [29]. A dissatisfied litigant in NCAT enjoys substantially the same right of appeal as is enjoyed by a dissatisfied litigant in an action in the District Court involving an amount less than $100,000, namely an appeal on any grounds, subject to the grant of leave.
Most commonly, the issues in contested proceedings in the Occupational Division will involve questions of fact. Not uncommonly, they will include questions of the credibility and reliability of the evidence of complainants as well as of practitioners. It will, generally speaking, be necessary for the Tribunal to apprehend the gravamen of each side's case, to attend to the central aspects of those cases, and the evidence bearing upon them, and to give reasons for the critical findings of fact and the evidence upon which they turn. It is difficult to speak in terms of inflexible rules. Very much will turn upon the nature of the case and, in particular, the nature of the parties' submissions in support of the findings each seeks to be made.
By way of example, although there is superficial force in the submission that two factual aspects involving inconsistencies in the complainant's case (the position of the sliding door and the physical location in the consultation room when the kissing alleged by the complainant took place) were not addressed in any detail in the Tribunal's reasons, it is important to observe that in proceedings where Dr Gautam's counsel identified a range of inconsistencies, neither of those two was the subject of any submission to the Tribunal. Had they been given the emphasis they were given in this Court, the submission that the Tribunal's reasons were deficient would have had greater force. This well illustrates the proposition that the minimal content of a tribunal's reasons is informed by the submissions that have been made to it.
Ipp JA was saying that analysis should in such cases commence with objectively established matters, against which the credibility and reliability of testimonial evidence can be assessed. That is the usual course, as has regularly been observed. Usually, the resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation: Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34]; State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47 at [56]. That approach reflects the acknowledged limits upon judges' ability to distinguish truth from falsehood accurately on the basis of the witnesses' appearance, and the appropriateness of reasoning, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31]. Ipp JA was not suggesting that there was a rule that required identification and resolution of all "sub-issues".
I agree with the orders proposed by Payne JA.
PAYNE JA: Dr Gautam (the appellant and the cross-respondent) appeals against a decision of the NSW Civil and Administrative Tribunal ('the Tribunal') sitting in its Occupational Division which found him guilty of professional misconduct and imposed a penalty comprising a reprimand together with a three month suspension of his registration: Health Care Complaints Commission v Gautam [2020] NSWCATOD 146 (Balla ADCJ, Gillis SM, Haikal-Mukhtar SM, Houen GM).
The primary complaint made by the appellant concerns the adequacy of reasons provided by the Tribunal for finding him guilty of professional misconduct. There is also a complaint about the application by the Tribunal of the Briginshaw standard of proof. The appellant also seeks leave to challenge numerous factual findings.
The Health Care Complaints Commission ('the HCCC') (the respondent and the cross-appellant) cross-appeals with respect to the orders imposed on the appellant and seeks in lieu of the penalty imposed an order cancelling the appellant's registration as a medical practitioner for at least two years.
The appellant "categorically denied" the complainant's account of the consultation. On the appellant's version of events, the only physical contact between the appellant and the complainant took place at the end of the consultation when he shook her hand to say good-bye and patted her right shoulder or upper back to comfort her. The complainant and the appellant gave oral evidence and were cross-examined before the Tribunal.
The Complaint relied upon by the HCCC provided:
"COMPLAINT ONE
[Dr Gautam] is guilty of unsatisfactory professional conduct under section 139B(1)(a) and 139B(1)(l) of the National Law in that the practitioner has:
i. engaged in conduct that demonstrates the knowledge, judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or
ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine.
…
PARTICULARS OF COMPLAINT ONE
1. During the consultation the practitioner sat down next to Patient A's mother on the patient side of the consultation desk and inappropriately:
a. rubbed Patient A's mother's shoulder with his right hand;
b. kissed Patient A's mother above her forehead.
2. During the consultation the practitioner sat on a chair next to Patient A's mother and:
a. while Patient A was in the consultation room being disruptive, said to Patient A's mother words to the effect, 'You need to come back without [Patient A] and after hours when the ladies are gone, to discuss strategies and I won't bill you';
b. after sending Patient A out of the consultation room said to Patient A's mother words to the effect, 'We need to be careful because people will think something is going on';
c. while Patient A was out of the consultation room the practitioner put his right hand around Patient A's mother's left upper arm, and led her towards another part of the consultation room;
d. the practitioner then said to Patient A's mother words to the effect 'Come over here, come this way, no-one can see us.'
3. During the consultation (and separately to the incident in particular 1) the practitioner led Patient A's mother towards an area of the consultation room not visible from the waiting room and:
a. leaned his head forward to kiss Patient A's mother on or near her lips;
b. kissed Patient A's mother near her lips.
4. By his actions in particulars (1), (2) and/or (3) the practitioner breached professional boundaries with Patient A's mother contrary to the Medical Board of Australia 'Sexual Boundaries: Guidelines for doctors' published 28 October 2011.
COMPLAINT TWO
[Dr Gautam] is guilty of professional misconduct under section 139E of the National Law in that the practitioner has:
i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or
ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.
…
PARTICULARS OF COMPLAINT TWO
1. Complaint One and the particulars thereof are repeated and relied upon both individually and cumulatively."
The Tribunal addressed the competing narratives given by the complainant and the appellant under the heading "[r]esolving the conflict in the evidence". The Tribunal was satisfied that the evidence given by the complainant and the appellant could not be reconciled. That finding was not challenged on the appeal and was clearly correct. The Tribunal recorded that the issue before it was whether the HCCC had established that one or more of the events pleaded in the complaint occurred. The Tribunal recorded that in approaching that question it was applying the balance of probabilities standard as explained in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.
The Tribunal made a specific finding that the complainant attempted honestly to answer all questions put to her. The Tribunal also made a specific finding about the complainant's reliability:
"[30] The Tribunal accepts that there are inconsistencies in the mother's own evidence and that it is likely that her best recollection of what occurred would have been in early 2018 and not in 2020. Nevertheless when we considered these inconsistencies closely, we did not find that they impacted on the reliability of her account of the issues which caused her concern at the time and led to the Complaint."
The essence of the Tribunal's approach in resolving the conflict in the evidence was to address each of the challenges made to the complainant's account in turn, before considering her credibility and reliability on the whole of the evidence. In so doing, the Tribunal accepted that the complainant resiled from some aspects of the accounts which she had set out in her statements and her original complaint. Counsel for the appellant before the Tribunal submitted that the complainant's evidence ought to be rejected because of inconsistencies in her own evidence, inconsistencies between her evidence and a police electronic record ('COPS electronic record') and inconsistencies with the evidence of the complainant's sister and mother. The Tribunal concluded that the differences in the complainant's accounts about which the appellant complained did not affect her credibility or reliability: see at [30], [37].
The Tribunal addressed each of the appellant's complaints about the credibility and reliability of the complainant's evidence. I will return to that aspect of the reasons when addressing the principal ground of appeal.
The Tribunal accepted the complainant's evidence and found all of the grounds of both the first and second complaint proven.
The Tribunal concluded that the proved conduct amounted to professional misconduct. The Tribunal said that:
"[55] To constitute professional misconduct, it has been held that the conduct the subject of the complaint must be of such a departure from the accepted standards of the profession as would reasonably incur the strong reprobation of professional colleagues of good repute and competence: Qidwai v Brown [1984] 1 NSWLR 100 at 105 (Priestley JA)."
The Tribunal accepted the submission made by the HCCC that the appellant's conduct demonstrated a departure from accepted standards: at [56]. In concluding that the proved conduct amounted to professional misconduct, the Tribunal took into account the following matters as indicators of the serious nature of the conduct underlying Complaint One:
1. the "Sexual Boundaries: Guidelines for Doctors" published by the Medical Board of Australia which states that a breach of sexual boundaries between a doctor and a person who is closely related to a person under the doctor's care is unethical and unprofessional as it exploits the doctor-patient relationship; that the relationship is inherently unequal and that it is an abuse of this power imbalance for a doctor to enter into a sexual relationship with a person closely related to a patient; that trust is the foundation of a good doctor-patient relationship and that the complainant needed to trust the appellant would act in the best interests of herself and Patient A; and that a sexual relationship may impair the doctor's judgement and compromise the patient's care; and
2. that the appellant was aware the complainant was vulnerable and depended emotionally on him to assist Patient A in becoming fit to attend kindergarten.
In determining the appropriate protective order, the Tribunal took the following matters into account:
1. that the conduct occurred on a single day with no other evidence of improper conduct on the part of the appellant;
2. that the appellant has reviewed the manner in which he communicates and interacts with his patients and no longer initiates handshakes or intentionally touches them other than in the course of a physical examination with informed consent; that he does not disclose any personal details to patients; that he has undertaken a course and read the United Medical Protection handbook; that he has had the mechanism of the door to his consultation room changed so it cannot be locked; and that he has installed a CCTV system which he uses with the consent of patients;
3. a number of character references which the Tribunal accepted;
4. that the appellant bought the Campbelltown practice from Dr Freelander in 2016 and that Dr Freelander has known the appellant since 2008 and regards him as a person of the highest integrity who has always acted in the best interests of his patients;
5. that Associate Professor McDonald, a paediatrician, has known the appellant since March 2015 and described him as a valued and respected colleague, an astute diagnostician and an extremely hardworking professional with clinical skills of a high standard;
6. that the appellant's accountant, Mr Kaur, found him to be very hardworking and extremely passionate about his work;
7. that the mother of another patient found him to be kind, hardworking and professional in an empathic and diligent manner;
8. that the mother of another patient who had been consulting the appellant since 2016 described his genuine concern for her child and his dedication to that child's treatment; and
9. that his wife considered the conduct to be completely out of character.
After taking those matters into account, the Tribunal was satisfied that the appropriate orders were a reprimand and suspension from practice for three months: at [67].
The Court heard full argument about the challenges to factual findings on the hypothesis leave would be granted and indicated it would deliver its reasons about leave in this judgment.
Section 165M of the National Law is mandatory in cases to which it applies. Section 62 applies only on request. This case is a long way removed from those cases to which only s 62 of the Civil and Administrative Tribunal Act applies which may involve non-legally qualified Tribunal members dealing with a high volume of cases that do not require much by way of reasons. Although the Tribunal is not a court, I do not discern any difference of substance between the requirements imposed on the Tribunal to give reasons by s 165M of the National Law and the duty upon a court to give reasons. The relevant context supports such a conclusion. Section 165B(2) of the National Law provides that if an appeal is made to the Tribunal under the National Law, in the case of medical practitioner proceedings, the Tribunal must be constituted by one Division member who is a "senior judicial officer", two health practitioners and one lay person. Section 165 defines "senior judicial officer" as a judge of the Supreme Court, a judge of the District Court, or a judge or other person having the same status as a judge of the Supreme Court. The issues to be determined are serious and have potentially very serious consequences for the medical practitioner. In the present case, the Tribunal was presided over by a very experienced District Court judge.
In exercising the statutory functions under the National Law, the Tribunal is obliged to provide reasons of sufficient cogency for its conclusions. The HCCC's reliance upon the passages in Alexandria Landfill Pty Ltd [2020] NSWCA 165; (2020) 243 LGERA 102 dealing with reasons for appeals limited to a question of law and appeals from discretionary decisions is misplaced. Appeals in the present context may, with leave, be allowed on a question of fact. They are, in that regard, similar to appeals from the District Court under s 127 of the District Court Act 1973 (NSW) where the amount in issue is less than $100,000. Whilst the characterisation of conduct as unsatisfactory professional conduct or professional misconduct may involve principles of evaluative decision making, the question of whether conduct of the kind described in Complaint One occurred involves findings of fact, not an evaluative or discretionary decision.
It remains the case, however, that the function of an appellate court is not to determine the optimal level of detail required in reasons for a decision but rather to determine the minimum acceptable standard. The standard required of reasons is not one of perfection: New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [66] per Bell P (with whom Ward JA agreed).
In Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816, Kirby and Heydon JJ observed at [86]:
"[86] … While it is not necessary for trial judges to set out and analyse the totality of the evidence, in a case like the present, in which the trial judge rightly or wrongly identified certain inconsistencies which he saw as crucial, it was necessary to explain why they were inconsistencies and why one body of evidence was to be preferred to another."
Hayne J (with whom McHugh and Gummow JJ agreed) noted at [129]-[130]:
"[129] Reference was made in argument to the 'sufficiency' of the primary judge's reasons. When it is said that a judge did not give 'sufficient' reasons for a decision there may be some doubt about what principles are engaged. Reference may be being made to the duty of a judicial officer 'to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal [including] not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision'. To fail to make or cause to be made such a note may invoke principles of procedural fairness and constitute a failure to exercise the relevant jurisdiction.
[130] In the present case, however, reference to the 'sufficiency' of the primary judge's reasons is not to be understood as seeking to invoke only those principles. Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue." (Footnotes omitted.)
The appellant relied heavily upon Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187, where Ipp JA (with whom Mason P and Tobias JA agreed) noted at [29]:
"[29] Often important issues of credibility involve sub-issues. Often, objective facts, or facts that are probable, are capable of having significant bearing on the sub-issues. In cases of this kind, it is incumbent upon trial judges to resolve the sub-issues and to explain, by reference to the relevant facts, the conclusions to which they have come. This having been done, they should then turn to the ultimate facts in issue and explain how their decisions on the sub-issues have assisted them in forming a conclusion on the ultimate issue. It is only when adequate reasons of this kind are given that an unsuccessful party will be able to understand why the judge has believed his or her successful opponent."
The formulation of the obligation to give reasons explained in Goodrich Aerospace has been described as a manifestation of the "tendency for the intensity of scrutiny of the adequacy of reasons to increase over time": Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [55] per Basten JA, with whom Beazley JA agreed. It may be, however, that Ipp JA was not stating a new principle in Goodrich Aerospace. I respectfully agree with Basten JA in Ziliotto v Hakim [2013] NSWCA 359 that [29] of Goodrich Aerospace should not be understood as requiring identification of "sub-issues" and findings in respect of sub-issues, with necessary reasons. As his Honour said, with the agreement of Macfarlan JA:
"[7] A further difficulty with the reasoning in Goodrich appears at [29]:
'Often important issues of credibility involve sub-issues. Often, objective facts, or facts that are probable, are capable of having significant bearing on the sub-issues. In cases of this kind, it is incumbent upon trial judges to resolve the sub-issues and to explain, by reference to the relevant facts, the conclusions to which they have come.'
[8] In the sense that objective circumstances may well bear upon findings of credibility in particular cases, there can be no difficulty with this statement. However, it should not be understood as requiring identification of 'sub-issues' and findings in respect of sub-issues, with necessary reasons.
[9] The virtues of transparency and the importance of the losing party understanding the reasons for the result must be balanced against the values of concinnity and expedition. Judgment writing should not be 'a process that is oppressive and that produces unnecessary prolixity': Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2] (Allsop P, McColl JA agreeing) repeated in MM Constructions (Aust) Pty Ltd v Port Stephens Council [2012] NSWCA 417 at [135], being a sentiment with which I expressed agreement at [228], Bergin CJ in Eq agreeing with both statements; see also Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [55]-[58]."
The ultimate question remains whether the failure to explain the basis of a crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done. The "minimum acceptable standard" for reasons under s 165M of the National Law depends on the nature of the case, the nature of the submissions made by the parties and the nature of the issues engaged.
For the purposes of providing reasons for fact finding in compliance with s 165M of the National Law, it is not sufficient for the Tribunal simply to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses the members constituting the Tribunal prefer or believe the evidence of the one and not the other.
Section 165M of the National Law requires the Tribunal to resolve issues of fact tendered for resolution by the parties and to explain, by reference to the relevant facts, the conclusions to which they have come. This having been done, the Tribunal should then turn to the ultimate facts in issue and explain how their decisions on the issues identified by the parties have assisted them in reaching a conclusion on the ultimate issue. In performing this task, I respectfully agree with the observation of Keane JA in Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34] that "[u]sually, the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation".
The Tribunal in the present case was required to resolve issues of fact tendered for resolution by the parties. Senior Counsel for the appellant accepted that the Tribunal addressed each of the factual issues tendered for decision by the parties. I have concluded that the Tribunal gave adequate reasons for reaching each of the factual conclusions that it did. The Tribunal gave adequate reasons for its ultimate decision.
Specific factual issues presented by the appellant below which were said adversely to affect the complainant's credibility were each addressed. Adequate reasons were given for reaching conclusions about all of those issues. The Tribunal ultimately concluded, as I have said, that the inconsistencies between the complainant's evidence and her prior statements did not "[impact] on the reliability of her account of the issues which caused her concern at the time and led to the Complaint".
As to specific contentions raised by the appellant below and pressed again on appeal, the first issue was the number of times the appellant locked the consultation room door. The Tribunal made a clear finding:
"[36] In cross examination [the complainant] ultimately said that she did not remember how many times Dr Gautam had locked the door. The time she clearly recalled that the door had been locked was set out in para 47 of her statement."
The Tribunal accepted that there were differences in the accounts given by the complainant about how many times the appellant had locked the door during the events she described. The Tribunal concluded that the differences in account did not significantly affect the complainant's credibility or reliability. The Tribunal explained its reasoning process; that the evidence illustrated the complainant's "attempts to clarify the order in which a series of events occurred in a chaotic environment". This was an adequate explanation or reason provided by the Tribunal for its conclusion about this issue.
The next issue raised related to conflicting evidence about whether Patient A was in the consultation room at any time during the events described and whether the appellant was sitting or standing when he kissed the complainant on the top of her head.
The Tribunal characterised these discrepancies as "relatively minor matters". The Tribunal's characterisation of these issues was correct. In assessing the credibility and reliability of the complainant's evidence about sexually inappropriate conduct, the location of Patient A and whether the appellant was sitting or standing at the time he kissed the complainant on the head was of little moment. Relevantly to the appellant's complaint, to the extent that inconsistencies in the complainant's account were shown about these matters, the Tribunal gave adequate reasons for treating the differences as having little bearing on their assessment of the complainant's credibility or reliability:
"[37] The Tribunal does not consider that this failure to adhere to her early statements reflects on the credibility of the mother but rather illustrates her attempts to clarify the order in which a series of events occurred in a chaotic environment. The Tribunal also does not consider that the omission of this element from the statements of others reflects on the credibility of the mother in circumstances where other more significant events were remembered by those witnesses as having been mentioned by the mother, as discussed further later in these Reasons."
The appellant's principal attack upon the complainant's credibility was made on the basis that the complainant had, when making the complaints, allegedly omitted to complain about the kiss to the top of her head and in various contemporaneous complaints had described the appellant's conduct as having "tried" to kiss her when in fact he had. As to the kiss on the head, the Tribunal found that, outside the complainant's evidence, there was no specific reference in the evidence of any other person or in any other document to the kiss on the top of the head:
"[39] Counsel for Dr Gautam also relied on what he said was the mother's failure to report to others that Dr Gautam had kissed her. We accept that there is no reference by any other person or in any other document to the kiss on the top of the head. …"
In context, however, the Tribunal did not consider that omission to be materially adverse to the appellant's credibility or reliability. The kiss on the head was first specifically identified by the complainant no later than in a statement made within weeks of the relevant events in January 2018. The complainant's evidence prior to that time was replete with references to inappropriate conduct alleged to have been committed by the appellant. The Tribunal did not err in failing to give adequate reasons for its credit and reliability findings about the complainant on this basis.
The principal attack by the appellant upon the credibility and reliability of the complainant was the reference in prior complaints to the appellant having "tried" to kiss her when, in fact, she alleged that he had.
The Tribunal considered the whole of the evidence on this subject and concluded that the complainant's various accounts were not materially inconsistent. The Tribunal gave reasons for this conclusion:
"[39] … In relation to the incident at the end of the consultation, in three of the reports made by the mother on the same day (set out below) the mother said that Dr Gautam had 'tried to kiss her'. In cross examination the mother said she had meant that the doctor had tried to kiss her on the lips and she had avoided this happening by moving her head so that his lips touched her on the face, next to her mouth.
[40] The COPS report says that Dr Gautam 'has apparently made advances towards the P/R such as leaning in for a kiss … The P/N has leant in for a kiss, with the P/R pulling away and leaving the clinic.'
[41] The sister said that the mother had told her 'Dr Gautam had tried to kiss her … Dr Gautam had hugged her, moved her near the book shelf and tried to lean in and kiss her … she was upset (by) the fact that Dr Gautam had tried to kiss her.'
[42] The grandmother had been told by the mother 'You're not going to believe this, but Dr Gautam tried to kiss me. … She said she just wanted to get out and so she got up and he tried to kiss her. [The mother] told me she pulled away and said words to the effect of "I'm going".'
[43] The practice manager said that the mother had said on the telephone that Dr Gautam was 'touchy' with her, she felt that the doctor was forcing her into the corner of the room, she thought that the doctor was going to kiss her and that he was over friendly. On cross examination she agreed that the mother may have said that he had tried to kiss her.
[44] In her handwritten statement received by the HCCC on 11 January 2018 (which is three weeks after the appointment) the mother said:
'He was trying to move me to the corner of the room that is not in sight if the door is open by having his hand on my arm and heading that way, he touched my face with his hand, tilted his head and went in to kiss me on the mouth. I moved my head and he got me on the cheek near my lips.'
[45] The Tribunal accepts the mother's explanation for saying that Dr Gautam tried to kiss her rather than saying he did kiss her. We are satisfied that these are contemporaneous complaints about the incident which the mother said occurred at the end of the appointment."
The Tribunal's close examination of the evidence, the identification of the relevant facts about the kiss on the cheek which had been intended for the lips and the Tribunal's explanation of its reasons for the conclusions it reached was sufficient.
The appellant's conduct could be fairly described as either that he had "tried" to kiss her or that he had in fact kissed her. As a summary descriptor of the event, provided on the day in circumstances where the Tribunal found the complainant "was significantly emotionally affected … from the trauma caused by Dr Gautam's conduct", the Tribunal was correct to conclude that this report was materially consistent with her ultimate (and considerably more detailed) evidence. There was no failure by the Tribunal to expose its reasoning process.
The Tribunal's finding that the prior complaints were "generally consistent [with] the matters underlying the Complaint" was correct on the evidence before the Tribunal. All of the principal elements of the complainant's allegations were identified almost immediately after the incident and relayed to her mother, her sister, the appellant's practice manager, and the police. I reject the appellant's approach which was to criticise the Tribunal for failing to examine the complainant's prior statements minutely and with an over-emphasis upon slight variances. The Tribunal conducted a careful examination of all of the evidence to discern any material differences. It gave reasons for its conclusions about the differences identified by the appellant. To the extent that the appellant pointed to alleged inconsistencies between the complainant's evidence and the COPS electronic record, that record was not made by the complainant or ever adopted by her. As I have said, it is not inconsistent in any event to describe the appellant's conduct as having "made advances towards" her such as "leaning in for a kiss".
Tellingly, in oral submissions made on appeal, Senior Counsel for the appellant, who was not counsel for the appellant at the trial, submitted that there were two matters which were partially important in the appellant's case about which the Tribunal made no finding. The first was whether a sliding door between the consultation room and a filing area leading to a staff kitchen was open or closed during the events the complainant described. The second was whether there was equipment in the room as part of a play area which was submitted to be inconsistent with the complainant's account of where in the room the appellant kissed her. Given the importance to the appellant of these issues said not to be the subject of reasons by the Tribunal, despite their being raised, the Court sought assistance in locating the references where this issue was raised by the appellant before the Tribunal:
"LEEMING JA: These important incidental matters that had to be factored in, at some stage could you give me a reference, if there is one, to that submission being made in writing or orally to the tribunal? That is, you've got to make a finding about the sliding door, you've got to make a finding about the configuration of the two play areas and the desk and the chairs." (Emphasis added.)
After the luncheon adjournment the following submission was made by Senior Counsel for the appellant:
"Your Honour asked me before I sat down earlier on this morning to give some indication as to whether any submissions were put below in relation to two aspects of the matter. One, whether findings should be made in respect of the sliding door issue. The answer to that is no, no submission was made. Secondly, the placement of the chairs and the tables including the play area within the doctor's consulting room. No, no submission was made in that respect."
No complaint can properly be made by the appellant about a failure to give reasons for determining these two factual issues where the Tribunal was simply not asked by either party to make a finding about either issue.
In preferring the complainant's account to that given by the appellant, the Tribunal gave reasons. It explained that it had particular regard to the forthright and thoughtful evidence of the complainant, who it found to be a credible and reliable witness, the immediacy of the complaints, the essential consistency in the multiplicity of contemporaneous complaints and the content of those complaints.
There was powerful and essentially consistent evidence of contemporaneous complaint. Whilst some of the details differed, immediately after the consultation with the appellant the evidence is clear that the complainant was very upset about what she said was sexually inappropriate behaviour by the appellant. The Tribunal, having given reasons for accepting the complainant's diametrically opposed account, did not have to give separate reasons for rejecting the appellant's account. In a different context, Bell P's remarks in White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277 about a challenge based on the absence of reasons for preferring one account of diametrically opposed accounts are apposite:
"[107] Although the primary judge's reasoning on this issue was somewhat terse, his Honour's assessment was not one, in my view, based solely on objective circumstances or inferences drawn from those objective circumstances. The primary judge expressed himself in terms of 'believing' Mr Edwards: see at [90] above. He had before him two diametrically opposed accounts of events and came to a clear view, preferring one over the other, after extensive cross-examination of both witnesses." (Emphasis added.)
The Tribunal in the present case was faced with starkly conflicting narrative accounts. This will often be the case in sexual harassment or sexual misconduct complaints. It is not necessary, as the appellant submitted, that the complainant's account be "corroborated" or that, having addressed the relevant factual issues and accepted the complainant's account, separate reasons be given for rejecting the appellant's account. The Tribunal had before it two diametrically opposed accounts of events and came to a clear view, preferring one over the other, after extensive cross-examination of both the appellant and the complainant. The Tribunal was entitled to express itself as it did.
There was no failure to give reasons. Grounds 1, 2 and 4, to the extent they addressed the alleged absence or inadequacy of the Tribunal's reasons, should be rejected.
As to ground 2, in particular ground 2(c), that the Briginshaw principle applied, the Tribunal cited Briginshaw, and expressly noted that it had to be "comfortably satisfied" that the complaint had been established on the balance of probabilities having regard to the potential seriousness of the consequences for the appellant. I do not accept, as was submitted, that the Tribunal merely gave "lip service" to the Briginshaw standard.
In written submissions before the Tribunal counsel for the appellant himself asserted that "comfortably satisfied" was an acceptable shorthand for the applicable test. He described the test in the following way:
"It is submitted that in order to uphold the complaints, the Tribunal must be convinced (or at the very least comfortably satisfied) that the alleged conduct actually occurred."
In any event, that phrase correctly encapsulates the test and is commonly used in the context of proceedings such as the present: Kumar v Legal Services Commissioner [2015] NSWCA 161 per Leeming JA at [60] (with whom Basten JA agreed):
"[60] Mr Kumar denied all this, on his oath, and was cross-examined on it. But there was and is no plausible explanation inconsistent with deliberate dishonesty. The fact that the explanation was advanced for the first time on the third day of the hearing, years after the event, reinforces my conclusion. I am conscious that the finding is extremely damaging to Mr Kumar; indeed, it is destructive of his professional career and professional status and reputation. Such a finding should only be made in accordance with s 140 of the Evidence Act 1995 (NSW) and the principles in Briginshaw v Briginshaw. But I am more than comfortably satisfied that such a finding should be made."
The Tribunal made express findings about the seriousness of the conduct which were not only open but hardly surprising. It was conduct that amounted to sexual impropriety directed to a vulnerable and emotionally dependent parent of a young patient with a complex and difficult condition. To quote Leeming JA in Kumar (a case where the Tribunal did not specifically refer to Briginshaw):
"[63] Not lightly would it be inferred that the Tribunal approached its task in a way which was inconsistent with applying the correct standard of proof. A fair reading of its reasons makes it plain that the Tribunal was conscious of the seriousness of the allegations and the correspondingly heightened need to be satisfied that they were made out."
The same conclusion follows here, with even more force. The test was specifically referred to by the Tribunal and it is clear in its reasons that the correct test was applied.
Ground 2, particularly ground 2(c), should be rejected.
The remaining grounds of appeal were not referred to in any detail in oral submissions and were touched on only lightly in written submissions. Ground 3 of the further amended notice of appeal complained that the Tribunal erred in law and in fact in finding the appellant's conduct amounted to professional misconduct. I have already dealt with leave to appeal on factual grounds and would refuse leave. The Tribunal referred to the Medical Board of Australia guideline, "Sexual Boundaries: Guidelines for Doctors". That publication was relevant to the assessment of the appropriateness of the appellant's conduct. It covers a range of conduct including "sexualised behaviour" and "sexual harassment". The appellant's conduct fell within the behaviour described by the guidelines. The Tribunal correctly referred to that portion of the guidelines that concerned a breach of sexual boundaries between a doctor and a person who is closely related to a person under the doctor's care. No arguable question of law was identified by the appellant about the Tribunal's reference to these materials. I would reject ground 3 of the appeal.
To the extent ground 4 of the further amended notice of appeal raised anything beyond a complaint about the absence of reasons or the application of the Briginshaw standard, no written or oral submission was advanced about that matter. Ground 4 of the notice of appeal should be rejected.
It follows that the appeal should be dismissed with costs.
The HCCC sought the cancellation of the cross-respondent's registration for a period of at least two years.
Ground 4 of the notice of cross-appeal addressed factual matters. For the same reasons as given above in relation to the application for leave to appeal on factual matters set out at [48]-[51], I would refuse leave to cross-appeal on this ground.
I would reject the HCCC's remaining grounds of the cross-appeal.
Ground 1 of the cross-appeal alleged that the Tribunal had failed to take into account "the risk of the cross-respondent re-engaging in conduct the subject of the complaint" which was said to amount to a mandatory relevant consideration. I rather doubt that "the risk of the cross-respondent re-engaging in conduct the subject of the complaint" is a mandatory relevant consideration in the sense explained by Brennan J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40.
In any event, the risk of the cross-respondent re-engaging in conduct the subject of the complaint was a matter plainly taken into account by the Tribunal. The Tribunal's findings about the matters the appellant had put in place to prevent any recurrence, including not initiating handshakes, not disclosing personal details, removing the lock on the door, and installing a CCTV system used with the consent of patients, would be inexplicable unless the Tribunal was taking into account the very matter the HCCC alleges that it failed to consider. The Tribunal in these passages can be referring to nothing other than the risk of recurrence.
I would reject ground 1 of the cross-appeal.
Ground 2 of the cross-appeal is that there has been a constructive failure to exercise jurisdiction by failing to address the HCCC's submission about the "cross-respondent's lack of insight into the offending conduct" and the Tribunal's alleged failure "to have regard to [the] cross-respondent's denial that the conduct had occurred."
In circumstances where the HCCC acquiesced to the hearing in this case being held in one stage rather than two, its submission about alleged failure by the Tribunal to consider the absence of insight, based on the appellant's denial of the conduct, is a regrettable one for a regulator and model litigant to advance. In a hearing held in one stage, comprising liability and penalty, the appellant could not reasonably be expected to have accepted that the conduct had occurred. Mr Chatterjee, who appeared for the HCCC, very properly sought and obtained an adjournment to obtain instructions about the course suggested by the HCCC. It is a matter of considerable regret that the HCCC chose nevertheless to persist in this complaint.
The phrase "constructive failure to exercise jurisdiction" has been used by the courts in different contexts. As explained by Dixon J at 360 in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; [1949] HCA 26, in a case where reasons were not provided:
"The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law."
A failure expressly to address an argument or to consider some material does not, without more, constitute legal error. But a failure to address a "substantial, clearly articulated argument" may amount to a failure to afford procedural fairness or, as the applicant formulated the error in this Court, in some circumstances to a constructive failure to exercise jurisdiction: see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24]-[25]. In Day v SAS Trustee Corporation [2021] NSWCA 71, Meagher JA re-iterated what is involved in a "constructive failure to exercise jurisdiction" in the Dranichnikov sense. In Dranichnikov the question was whether the Refugee Review Tribunal had failed to discharge the function conferred upon it by the Migration Act 1958 (Cth), of reviewing the refusal of a protection visa, by reason of its misunderstanding of the group or class of which Mr Dranichnikov claimed to be a member (per Gummow and Callinan JJ at [26]-[27]). The consequence of the Tribunal's mistake was that it failed to identify, much less determine, the first question it was required to decide, namely whether the group of which the applicant claimed membership constituted a social group for the purposes of the refugee Convention. As Kirby J explained at [88], that mistake was "essentially definitional, and amounts to a basic misunderstanding of the case brought by [the] applicant".
A constructive failure to exercise jurisdiction (or a purported exercise, in the sense that there is an appearance of an exercise of jurisdiction) as alleged by the appellant is not a mere failure to consider evidence or to address an argument or submission, which may be contingent or otherwise insignificant, but a failure to understand and determine a case or claim. The ultimate question is whether a failure to consider and address certain issues or arguments involved a failure to address central or critical elements of the case or claim. In the present case, what the HCCC must show is that it raised "substantial" (in the sense of clearly material) arguments or questions which the primary judge in substance failed to address in determining the cross-appellant's claim.
There was no constructive failure to exercise jurisdiction here. The Tribunal plainly knew that the practitioner did not admit the conduct. The practitioner nevertheless led considerable evidence about the appropriate penalty, in the event that his primary case was rejected. At the risk of repetition, the Tribunal found that the appellant had put measures in place to prevent any recurrence, including not initiating handshakes, not disclosing personal details, removing the lock on the door, and installing a CCTV system used with the consent of patients. All of the findings addressed the substance of the HCCC's case.
I reject the HCCC's submission that in every case in which a practitioner does not concede an application that it brings, and puts the HCCC to proof (involving cross-examination of a complainant), a proved contravention is necessarily made more serious because of a lack of insight, remorse and understanding and the appropriate sanction more severe. The appellant's conduct was not "exacerbated by the denial" as was submitted by the HCCC. A fair reading of the Tribunal's reasons with respect to the protective order makes clear that the Tribunal has considered and dealt with all of the HCCC's arguments of substance.
There was no failure to address a "substantial, clearly articulated argument" made by the HCCC.
Ground 2 of the cross-appeal should be rejected.
Ground 3 raises the same point but under the guise of an error in the exercise of discretion by failing to take into account the cross-respondent's denial of the offending conduct and his apparent lack of insight into the same. As Mr Chatterjee ultimately accepted:
"I accept that perhaps the best that the Commission can get is a remittal with a result that might not be remarkably different. I note that the order that is sought is cancellation, but there is often a gulf between what is sought and what is ordered."
The Tribunal correctly had regard to the principles underlying the proper exercise of its discretion, namely that its discretion to suspend or cancel the appellant's registration was to be used to protect the community and not to punish the appellant. The Tribunal had regard to, and made findings about, matters which went to the appellant's character, the out of character nature of the conduct, the unlikelihood of further conduct and the considerable steps taken by the appellant to ensure that conduct of the kind the subject of these proceedings never occurs again.
The Tribunal's factual findings about penalty (none of which was sought to be challenged by the cross-appellant) about the steps taken by the appellant since the complaint was made, including altering his procedures where contact with patients was required, undertaking relevant courses and reading materials relevant to those courses and communicating openly with his colleagues about the complaint for the purpose of obtaining the series of references, were powerful indications of the appellant posing a low risk of re-engaging in further, similar conduct.
The HCCC's criticisms of the Tribunal's reasons in this regard were without foundation. Without attacking any one of the numerous factual findings which made the Tribunal's ultimate conclusion about penalty one that was plainly open to it, the HCCC chose to engage in an impermissible attack on the quality of the Tribunal's reasons; the very thing that the HCCC has successfully resisted the appellant doing in his case. The Tribunal had regard to the applicable legislation and relevant principles. The cumulative value of evidentiary findings made by the Tribunal, and not challenged by the HCCC, provided overwhelming proof of the ultimate conclusion that the appellant's conduct was isolated and out of character.