Health Care Complaints Commission v Balafas

Background to the application to set aside the proceedings

1. The disciplinary proceedings against Dr Balafas involve allegations of sexual misconduct against two female patients in 2009. The allegations relating to Patient A include that Dr Balafas conducted an internal pelvic examination without her informed consent. The most serious allegation is that during the examination Dr Balafas asked Patient A to turn over on to her stomach, placed his fingers in her vagina for a few minutes and then rubbed her clitoris twice. That conduct was said to amount to inappropriate behaviour of a sexual nature towards Patient A. The allegations in relation to Patient B include that Dr Balafas conducted a pap smear and a breast examination without obtaining informed consent.
2. Dr Balafas applied for the proceedings to be set aside after the evidence and submissions at a hearing to determine whether the subject matter of the complaints had been proved. The evidence in relation to the stage one hearing on liability closed on 14 May 2021 and the submissions were completed on 25 May 2021. The Tribunal has reserved its decision and must determine the inquiry expeditiously: Health Practitioner Regulation National Law (NSW) (the National Law), Sch 5D, cl 11.
3. As the stage one hearing is complete, and Dr Balafas has not applied for the proceedings to be re-opened, none of the evidence filed in these proceedings will be taken into account in the stage one proceedings. That evidence included an affidavit from Dr Balafas' solicitor, Dr Andrew Llewellyn Davey, dated 30 August 2021 annexing a report from Dr Michael Atherton, Dr Balafas' treating psychiatrist, dated 14 June 2021. An earlier report of Dr Atherton was also in evidence. The solicitor for the Health Care Complaint Commission (the Commission), Ms Emma Bailey, swore an affidavit dated 3 September 2021.
4. The application to set aside the proceedings is based on several circumstances, the most prominent of which is that Dr Balafas' mental health affected his preparation for the hearing and his evidence at the hearing. Dr Balafas submits that he "could not have been afforded fairness" where he "could not participate properly" in the proceedings as a result of his mental ill-health at the time. That situation, together with several other procedural matters, are said to have resulted in an unfair hearing. In brief, those other matters are: 1. the admission of evidence as to the availability of Patient B in the form of an email exchange between the solicitor for the Commission and Patient B; 2. that part of the proceedings dealing with the issue of whether the evidence from Patient B would be admitted and the admissibility of tendency evidence that took place in front of all members of the Tribunal including two medical professionals and one community member; and 3. the alleged failure of the Commission to comply with its disclosure obligations, resulting in a denial of procedural fairness to Dr Balafas.

Does the Tribunal have power under s 53 of the Tribunal Act to set aside the proceedings in the circumstances of this case?

Source of the Tribunal's power to set aside proceedings

1. The source of the Tribunal's power to set aside the proceedings was said to be s 53(3) and (4) of the Tribunal Act: 53 Amendments and irregularities (1) The Tribunal may, in any proceedings, make any amendments to any document (for example, an application or appeal) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice. (2) Any such amendment may be made - (a) at any stage of the proceedings, and (b) on such terms as the Tribunal thinks fit, but may only be made after giving notice to the party to whom the amendment relates. (3) If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise. (4) The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings.
2. Section 53(1) and (2) of the Tribunal Act deal with amendments to documents filed in the proceedings. Those subsections are not relied on in this case. Section 53 "is subject to enabling legislation and the procedural rules": Tribunal Act, s 35. The National Law contains provisions in Division 1 of Part 11 which outline various ways in which the medical practitioner is to be afforded procedural fairness: Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474; [2012] NSWCA 171 at [75]. I am not aware of any enabling legislation or procedural rules that qualify s 53.
3. Section 53(4) gives the Tribunal express power to set aside the whole or part of the proceedings (or a decision in the proceedings) to deal with an irregularity. An irregularity is non-compliance with a provision of the Tribunal Act or the procedural rules in relation to the commencement or conduct of proceedings. I will use the term "irregularity" as a short-hand term for that definition.

Scope of set aside power

1. The guiding principle when interpreting and applying s 53 of the Tribunal Act is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": Tribunal Act, s 38.
2. When considering an application to set aside the proceedings (or a decision in the proceedings) the Tribunal must first identify an irregularity. If there is an irregularity, the Tribunal must determine whether to exercise the discretion to set aside the proceedings despite the fact that the irregularity does not nullify the proceedings.
3. As to the purpose and meaning of s 53 of the Tribunal Act, I am guided by the way courts have interpreted other similarly worded provisions. Apart from the words in italics, s 63 of the Civil Procedure Act 2005 (NSW) (CPA) is in similar terms: (1) This section applies to proceedings in connection with which there is, by reason of anything done or omitted to be done, a failure to comply with any requirement of this Act or of rules of court, whether in respect of time, place, manner, form or content or in any other respect. (2) Such a failure: (a) is to be treated as an irregularity, and (b) subject to subsection (3), does not invalidate the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings. (3) The court may do either or both of the following in respect of proceedings the subject of a failure referred to in subsection (1): (a) it may, by order, set aside the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings, either wholly or in part, (b) it may exercise its powers to allow amendments and to make orders dealing with the proceedings generally. (4)The court may not take action of the kind referred to in subsection (3) (a) on the application of any party unless the application is made within a reasonable time and, in any case, before the party takes any fresh step in the proceedings after becoming aware of the failure.
4. Section 53 of the Tribunal Act does not contain the words "whether in respect of time, place, manner, form or content or in any other respect" that appear in s 63(1) of the CPA. However, I do not consider that omission to be significant. Those words simply clarify that the omission may be "in any respect".
5. McColl JA identified one purpose of provisions such as 63 of the CPA, in Bobolas v Waverley Council (2016) 92 NSWLR 406; [2016] NSWCA 139; at [109]: Provisions such as s 63 do away with the old distinction between nullities and irregularities. Every omission or mistake in practice or procedure is now regarded as an irregularity which the court can and should rectify so long as it can do so without injustice. Thus, in Australian Coastal Shipping Commission, (Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734) the Court applied s 81 of the Supreme Court Act 1970 (NSW) (the legislative ancestor of s 63) to permit proceedings to continue although the statement of claim was neither filed nor served within the limitation period. (Words in brackets added)
6. The old distinction between mere irregularities and matters which would have been regarded as nullities is explained by author and general editor Peter Taylor SC in LexisNexis, Ritchie's Uniform Civil Procedure NSW at [63.10]: Under CPA s 63(3) the court has a wide discretion to determine the consequences that will attach to a failure to comply with procedural requirements of the Act or Rules. In this way "mere technicality, any slip, any mistaken step" are prevented from becoming automatically determinative of the result of the proceedings: Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729 at 736; [1966] 3 All ER 843 . The discretion applies where there is non-compliance in any respect. Therefore, there is no longer any valid distinction to be made between mere irregularities on the one hand and, on the other, matters which would have been regarded as nullities under the older authorities: Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734 ; Bank of America National Trust and Savings Assn v Christmas (The Kyriaki) [1993] 1 Lloyd's Rep 137; (serving of defective writs was "purporting to begin" proceedings). Accordingly, a defective originating process is capable of constituting the "commencement" of proceedings for the purpose of compliance with a relevant limitation period: Hill v Luton Corp [1951] 2 KB 387 ; Mitchell v Harris Engineering Co Ltd [1967] 2 QB 703 ; cf Re Pritchard; Ex parte Pritchard v Deacon [1963] Ch 502; [1963] 1 All ER 873 .
7. Similarly, s 53(3) and (4) of the Tribunal Act do away with the distinction between nullities and irregularities. Any procedural defect which amounts to a relevant non-compliance by a party or purported party to the proceedings is an irregularity. As well as the examples given in the passages quoted above, I set out below three further illustrations of irregularities in appellate proceedings: 1. failing to name the defendant in the statement of claim: Deveigne v Askar (2007) 69 NSWLR 327; [2007] NSWCA 45 at [178] per McColl JA, Hodgson JA agreeing; 2. failing to file or serve an originating process within the limitation period: Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734; and 3. failing to serve the originating process within the prescribed time after filing: Choy v Tiaro Coal Ltd (in liq) (2018) 98 NSWLR 493; [2018] NSWCA 205; [2018] 130 ACSR 475 (Gleeson JA at [1]; Leeming JA at [2]; Payne JA at [83]).

Does an irregularity include non-compliance with a provision of the Tribunal Act relating to procedural fairness?

1. Dr Balafas submits that he "could not have been afforded fairness" where he "could not participate properly" in the proceedings as a result of asserted mental ill-health at the time. Under s 38(2) of the Tribunal Act: The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
2. Procedural fairness is a component of natural justice. Under s 38(5) of the Tribunal Act: The Tribunal is to take such measures as are reasonably practicable - (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
3. As Whaley Basten and Whealy JJA agreeing said in Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474; [2012] NSWCA 171 at [78]: Although, in conducting an inquiry, the Tribunal is not bound by the rules of evidence and may inform itself "of any matter in such manner as it thinks fit", in doing so it remains subject to an overriding obligation to accord procedural fairness: Weinstein v Medical Practitioners Board of Victoria [2008] VSCA 193; (2008) 21 VR 29 at [28], [29].5]:
4. The question as to whether non-compliance with the requirements of procedural fairness is an irregularity for the purposes of s 53 of the Tribunal Act has been considered both by the Tribunal and the Supreme Court, although not with the benefit of any detailed argument.
5. In Atkinson v Crowley [2011] NSWCA 194 the former Consumer, Tenancy and Trader Tribunal (CTTT) had ordered substituted service and made a default order for the payment of damages. On appeal, Basten JA noted at [12] that the scope of s 32(3) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), which was in the same terms as s 53 of the Tribunal Act, had not been the subject of submissions, but made the following observations: Where there is alleged to be a breach of the rules of procedural fairness, the allegation must involve contravention of the requirements of s 28(2) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ("the CTTT Act "). Where there is a failure to comply with a provision of the CTTT Act , "the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal otherwise determines": s 32(3). Whether or not that description can affect the supervisory jurisdiction of this Court, the Tribunal is empowered, in dealing with such an irregularity, to set aside the proceedings or a decision in the proceedings: s 32(4).
6. The equivalent of s 28(2) of the now repealed Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) is s 38(2) of the Tribunal Act. That provision makes the Tribunal "subject to the rules of natural justice".
7. Three years after Basten JA made this observation, the Tribunal considered the scope of s 53 of the Tribunal Act as it relates to a breach of procedural fairness: XDX [2014] NSWCATGD 38 ("XDX"). Without referring to Atkinson v Crowley [2011] NSWCA 194, the Tribunal made the following remarks at [28]: …Section 53 focuses on non-compliance with provisions and procedural rules that create any irregularity. There is no definition of "irregularity" in the CAT Act but the plain English meaning, as set out in the Oxford English Dictionary, connotes "not in conformity with [a] rule or principle." Section 53(3) refers to "the provisions of the Act and procedural rules." While on its face this section may encompass a wide range of provisions and rules, including those provisions directed to procedural fairness, to interpret the effect of s 53(4) so broadly would unnecessarily trespass on the rights of appeal established in Part 6 of the CAT Act. Section 53 is a beneficial but practical provision intended to give effect to documents and decisions affected by technical procedural defects and to give the Tribunal discretion to correct such defects. This is clear from the language, heading and context of s 53 when read as a whole. Furthermore, s 53 is directed to the conduct and actions of the parties, not the Tribunal.
8. Dr Balafas sought to distinguish this case because a final decision had been made whereas in the present case, the decision is reserved. While that is factually correct, it does not detract from the Tribunal's legal reasoning about the scope of s 53 of the Tribunal Act.
9. An irregularity as defined in s 53(3) of the Tribunal has two elements. There must be non-compliance with a provision of the Tribunal Act or the procedural rules and that non-compliance must relate to the commencement or the conduct of proceedings. Under s 38(2) of the Tribunal Act, the Tribunal is subject to the rules of natural justice which include the rules of procedural fairness. In this case, the non-compliances do not relate to the commencement of the proceedings. If there is non-compliance with the rules of natural justice as they relate to the conduct of the proceedings, it has been suggested that such a failure could come within the meaning of an irregularity in s 53(3). For the following reasons, in my view non-compliance by the Tribunal with the rules of procedural fairness does not come within the meaning of an irregularity.
10. In XDX, the Tribunal identified three reasons for concluding that non-compliance with a provision of the Tribunal Act relating to procedural fairness is not an irregularity. The first is that s 53 is directed to the conduct and actions of the parties, not the Tribunal. The second is that s 53 is intended to apply to technical procedural defects. The third is that such an interpretation would "unnecessarily trespass on the rights of appeal".
11. Section 53(3) is expressed in the passive voice. The subject is not identified. I agree with the Tribunal in XDX that, read in context, the subject is intended to be a party or a purported party to the proceedings, not the Tribunal. The Tribunal does not commence proceedings. Nor does the Tribunal conduct proceedings in the sense conveyed by s 53(3). While the Tribunal is bound to afford procedural fairness to the parties, the irregularities referred to in s 53 of the Tribunal Act are procedural irregularities by a party or purported party.
12. As to the third point made in XDX, that the contrary interpretation would "unnecessarily trespass on the rights of appeal", I do not agree that that is the case. A party has the right to appeal from an "internally appellable decision" on a question of law: Tribunal Act, s 80(2)(b). A breach of procedural fairness is a question of law, but that does not assist in understanding the scope of s 53 of the Tribunal Act. It is uncontroversial that a breach of procedural fairness by the Tribunal may justify setting aside a decision in accordance with the principles outlined by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11. But that was not argued in this case.

Does an irregularity include non-compliance with a provision of the Tribunal Act about the admissibility of evidence?

1. Issues relating to the admissibility of evidence as to the availability of Patient B and the admissibility of her statement were circumstances which were said to contribute to the unfairness justifying the proceedings being set aside. The Tribunal is not bound by the rules of evidence when determining the proceedings involving Dr Balafas: Tribunal Act, s 38(2). It follows that admitting or not admitting evidence is not non-compliance with a provision of the Tribunal Act or the procedural rules in relation to the commencement or conduct of proceedings.
2. None of the circumstances identified by Dr Balafas involve non-compliance with the Tribunal Act or the procedural rules in relation to the commencement or conduct of the proceedings. In the absence of any irregularity, the occasion does not arise for the Tribunal to determine whether to exercise the discretion to set aside the proceedings.

Does the Tribunal have a "general unlimited discretion to set aside proceedings to prevent unfairness"?

1. Dr Balafas' alternative submission is that if the Tribunal is of the view that s 53(4) of the Tribunal Act does not provide a remedy, it may rely on its general, unlimited discretion to prevent an unfairness to Dr Balafas. Such a power was said to be consistent with the Tribunal's "unlimited jurisdiction and the objects and principles of the Tribunal Act".
2. Under s 38(1) of the Tribunal Act, the Tribunal has power to "determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision." Dr Balafas did not identify that provision, or any other provision of the Tribunal Act, as a possible source of power to set aside these proceedings. In my view, the Tribunal's power to determine its own procedure does not encompass a power to set aside the entire proceedings for unfairness or on any other ground. Nor, as Dr Balafas submits, does the Tribunal have a general unlimited discretion to set aside proceedings to prevent unfairness.
3. Because Dr Balafas provided detailed evidence and submissions about the circumstances said to justify setting aside the proceedings, I will address those circumstances below.

Dr Balafas' mental state at the time of the hearing

1. Dr Balafas' solicitor, Mr Davey, was present during the five day hearing. He gave written evidence that he observed Dr Balafas to "become more anxious". He wrote that he "appeared agitated and unsettled". During the first three days of hearing, Mr Davey observed that Dr Balafas become "increasingly fidgety" and "appeared teary". While Dr Balafas engaged appropriately with Mr Davey, Mr Davey was unable to ascertain "whether and when he had reviewed the material tendered in the proceedings". When asked how he felt by his counsel during the hearing, Dr Balafas said he felt "very anxious and very upset".
2. On Saturday 15 May 2021, the day after the five day hearing had finished, Dr Balafas had a telephone conversation with Mr Davey. Mr Davey reported that during that conversation Dr Balafas was "upset, crying and speaking rapidly". Dr Balafas consulted his treating psychiatrist, Dr Atherton, the following Monday, 17 May 2021. Dr Atherton admitted Dr Balafas to a private hospital on 18 May 2021. He was discharged on 21 May 2021 and returned to work, part-time.
3. At the request of Mr Davey, Dr Atherton prepared a report. Following a directions hearing and the obtaining of the audio recording of Dr Balafas' evidence at the hearing, Dr Atherton prepared a second report dated 16 June 2021. Dr Atherton had been treating Dr Balafas for two and a half years prior to the hearing and had started him on anti-depressants in January 2020. At that stage his mental illness was stable. He had not seen Dr Balafas since 4 December 2020, five months before the hearing. The arrangement was that Dr Balafas would make regular appointments every three to four months. Dr Atherton does not know why Dr Balafas did not see him in the first half of 2021.
4. After Dr Atherton reviewed Dr Balafas on 17 May 2021 Dr Atherton wrote that he: . . . reported increasing disturbance of sleep and deterioration in mood over the past 4 weeks and this history was supported by his wife who has become increasingly concerned for his mental state. He was preoccupied, distracted, hopeless, constantly catastrophic about the Commission case and had 3 x full blown panic attacks in my rooms during the session requiring immediate intervention from his wife and myself. He was cognitively impaired with no capacity to focus on basic cognitive tasks and his attention and concentration were poor. Attempts at a clock face and serial 7s resulted in mistakes and he was difficult to keep on track . . .Urgent admission to hospital was arranged as there were significant concerns regarding suicide and his antidepressant was doubled in dose.
5. Dr Atherton listened to the audio tapes of Dr Balafas giving evidence and expressed the following opinions: 'It is not long into the questioning before he appears confused and struggles to follow the line of questioning and the directions of the Commission barrister.' 'Dr Balafas appeared to lose his train of thought and he seemed unable to follow what the actual questions were.' 'He seemed unable to cope with the particular referencing directions and when challenged on some of the distressing allegations he was mixing his words and used odd words out of place … .' '[h]e sounded extremely tired and again his memory appeared poor. He was sighing frequently and the tiredness was again evident from the sound of his voice in the recording.' '[h]e was again confused about numbers and paragraphs and seemed to have difficulty staying on-track with numerous "can your repeat the question" requests.'
6. In response to questions posed by the Dr Balafas' solicitor, Dr Atherton states: 'Dr Balafas has a severe mental health condition which has manifested over the past 6 to 7 weeks in the lead up to the Commission Hearing and as a result of the stress caused by this process, which he feels he has no control over.' He 'began to experience a decrease in his ability to sleep and an increasingly low mood.' … He 'became extremely anxious with the onset of suicidal thoughts. His sleep deteriorated further and he barely slept for a number of the initial nights of the hearing and at the time of the cross examination he was tired, anxious and suffering with significant major depressive disorder. 'The development of major depressive disorder had an impact on his ability to prepare for the hearing as his concentration was reduced, his sleep was poor and he was experiencing significant anxiety.' 'In the lead-up to the NCAT Hearing Dr Balafas was becoming increasingly depressed and anxious but I believe he would have retained the capacity to instruct his lawyers at that stage.' ' … there was evidence of cognitive impairment by the 17th May and the recordings of the hearing are consistent with Dr Balafas appearing confused, struggling to follow the train, or sequence of questions and directions. For this reason, it appears entirely reasonable that the Mental Health condition impact (sic) on his ability to follow the questions and give evidence.' 'I was surprised by his combative nature which is not his normal character …. . Certainly, he appeared out of character during the hearing as I know him to be a (sic) articulate, intelligent and quick-witted individual.'
7. In his summary, Dr Atherton states that: 'I believe that the recordings of the hearing are consistent with the diagnosis made and that there would have been a significant impact from his mental illness on his ability to take part in the Hearing given his mental state at that time.'
8. In the clinical notes, Dr Atherton reported Dr Balafas as saying he thought he had "ruined everything." Dr Atherton elaborated on this entry saying that Dr Balafas had felt that he had performed poorly when giving evidence, that he had panicked, could not think straight and was overwhelmed.
9. Counsel for the Commission cross examined Dr Atherton in some detail about the opinions he expressed. I make the following observations about Dr Atherton's evidence: 1. It is not Dr Atherton's role to express any opinion as to the likelihood that Dr Balafas did or did not engage in the alleged sexual misconduct. 2. Dr Balafas had become increasingly anxious and stressed in the weeks prior to the hearing, but he was able to continue working full time and instruct his lawyers as to an agreed statement of facts 12 days before the hearing. 3. The reason Dr Balafas did not consult Dr Atherton in the lead up to the hearing was not just that, "he is a very private man", but also because he did not feel sufficiently unwell at the time. 4. Dr Balafas "felt panicked on the way to the Tribunal every day", but that was not the same as having a panic attack. There was no record of Dr Balafas having had a panic attack until he was in Dr Atherton's rooms three days after the hearing. 5. Dr Atherton acknowledged that: I would never claim to diagnose someone on the basis of how they sound in an intensely stressful situation on an audio recording. 1. Dr Atherton cannot comment on whether Dr Balafas' response to questioning is 'out of character' because he is not familiar with how Dr Balafas typically responds when his version of events is being challenged in cross-examination. 2. Dr Atherton's opinions were influenced to some extent by Dr Balafas' lawyers' subjective opinions about Dr Balafas' presentation when giving evidence. 3. Dr Balafas' response to questioning is not necessarily "wholly explained by his current mental health issues." Other explanations could be that he was under-prepared or not telling the whole truth.
10. Cross-examination is designed to test the witness' credibility. Allegations of sexual misconduct are highly likely to make even a well-adjusted respondent feel anxious and stressed prior to and in the course of giving evidence. Being 'clearly shaken' by a certain 'angle of questioning' and asking for questions to be repeated is not an uncommon occurrence in such proceedings. Similarly, 'deep sighs' and 'long breaths', being 'defensive' and 'combative' are not uncommon reactions when being cross examined.
11. When answering questions during cross examination Dr Balafas was obviously feeling stressed and anxious and had difficulty concentrating at times. Nevertheless, his answers to questions were, on the whole, responsive and coherent. It is not suggested that Dr Balafas is incapable of providing instructions or making a legal decision. He is competent to give evidence and has the capacity to do so. The sudden deterioration in Dr Balafas' mental health, to the point where he was having panic attacks, occurred after the hearing. Dr Balafas was extremely disappointed with his performance at the hearing and was anxious about the result.

The admission of evidence as to Patient B's unavailability to give evidence and pursuing the complaints in circumstances where Patient B was not available

Summary of submissions

1. Dr Balafas identified four aspects to this asserted irregularity: 1. the timing of the Commission's disclosure to Dr Balafas as to the unavailability of Patient B; 2. the emails between Patient B and the Commission's solicitor, Ms Bayley were prejudicial and should not have been tendered; 3. Dr Balafas was not aware of the case he had to meet until part way through the hearing; and 4. there was no proper basis for pursuing the complaints particularly in the absence of medical evidence as to Patient B's unavailability.

Chronology

1. Sometime after the alleged events in 2009, and the first scheduled hearing, Patient B returned to live in Ireland. Initially she agreed to give evidence by video link, however the hearing was delayed for several months, following the death of an expert witness. On 1 August 2020, Patient B wrote to the Commission saying, in part, that she was "not sure [she] can continue with this process" and asked whether it was possible to proceed without her having to testify. After some further email communications with Patient B, the Commission wrote to her on 16 October 2020 encouraging her not to make a final decision until a hearing date had been allocated.
2. On 13 April 2021, the Commission advised Patient B of the hearing date and asked whether she was prepared to speak to the Commission's solicitor and barrister to discuss her concerns about giving evidence. In an email dated 15 April 2021, Patient B wrote that "... for my own mental health, I no longer want to be part of this inquiry and trust you appreciate where I'm coming from". In response, the Commission's solicitor wrote back explaining the process and asking her if she could provide a letter from a doctor or counsellor explaining why she was unable to give evidence.
3. Dr Balafas was first advised of Patient B's unavailability to give evidence the following day, 16 April 2021. That was three weeks before the hearing was due to commence. Dr Balafas confirmed that Patient B was required for cross-examination and that if she was not available, he objected to the entirety of her evidence.
4. On 6 May 2021, Patient B apologised for the late reply and advised that she would not be giving evidence and did not have a doctor's certificate as she did not see a doctor about her anxiety. She apologised for any inconvenience. The emails between the Commission and Patient B about her unavailability to attend the hearing were tendered in evidence at the stage one hearing (Exhibit A2). According to Dr Balafas, these emails were not probative evidence, could not be tested and were highly prejudicial to him.
5. At a directions hearing on 16 April 2021, the Commission's solicitor, Ms Bayley, confirmed that Patient B would not be giving evidence. Dr Balafas' solicitor, Mr Davey, indicated that the evidence would be objected to in its entirety and there would be legal argument about that issue at the commencement of the proceedings. In reply to emails from Mr Davey dated 29 April 2021 and 4 May 2021 requesting clarification, Ms Bayley confirmed that Patient B was not available to give evidence. Ms Bayley invited Mr Davey to identify any objections Dr Balafas had to the Commission's material. Mr Davey re-iterated that Dr Balafas objected to the entirety of Patient B's evidence and requested that the complaint be amended accordingly. Ms Bayley responded on 5 May 2021 saying that the objection was being considered but the Commission did not intend to amend the complaint at that stage.
6. On 7 May 2021, Ms Bayley wrote to Mr Davey disclosing the emails from Patient B and confirming that the Commission proposed to maintain the complaint regarding Patient B. Ms Bayley advised that she was seeking instructions as to the amendment of any particular in the complaint and expected to have those instructions on the morning of the first day of hearing. Ultimately, the Commission did not seek to amend the complaint on the morning of the hearing. The admissibility of the full complaint regarding Patient B was argued before the Tribunal after Patient A gave her evidence.

The timing of the Commission's disclosure to Dr Balafas as to the unavailability of Patient B

1. Dr Balafas submits that, although the Commission knew that Patient B was not likely to attend from at least August 2020, it did not put him on notice of any difficulty until 16 April 2021. At no stage after expressing her unwillingness to attend did Patient B appear to prevaricate or change her mind. As a model litigant, Dr Balafas submits that the Commission was obliged to be proactive in confirming whether she would attend.
2. Patient B's communication about her attendance in August 2020 was equivocal. She said she was "not sure" she could continue with the process. It was not incumbent on the Commission to disclose Patient B's reluctance to attend the hearing. On 16 April 2021, a month before the hearing, it did become apparent that Patient B would not give evidence. The same day that was confirmed, Dr Balafas' lawyers were advised. Dr Balafas has not suffered any prejudice as a result of the timing of the Commission's disclosure that Patient B was not available.

The emails between Patient B and the Commission's solicitor, Emma Bayley were prejudicial and should not have been tendered

1. When counsel for the Commission flagged that the emails between Patient B and Ms Bayley would be tendered, counsel for Dr Balafas raised a concern that there was no affidavit from Ms Bayley as to her communications with Patient B. The absence of an affidavit is said to be inconsistent with the expectations arising from being a model litigant. Following a break in proceedings, counsel for Dr Balafas did not object to the tender of these emails. Counsel for Dr Balafas now says that counsel for the Commission should not have tendered those emails without written notice and in the absence of any proper medical evidence. Counsel for Dr Balafas also said that she should have objected because the emails were self-serving and highly prejudicial.
2. The obligations of a model litigant are to act with fairness and integrity. The Tribunal is not bound by the rules of evidence and material does not have to presented through an affidavit. The fact that Exhibit A2 was not supported by an affidavit was raised during the proceedings. The Commission offered to provide an accompanying affidavit. Counsel for Dr Balafas did not require it do so. Instead, counsel for Dr Balafas requested time to take instructions as to whether or not the tender of the email exchange was objected to. Time was given. The emails were admitted without objection. There is no unfairness.

Dr Balafas was not aware of the case he had to meet until part way through the hearing

1. Counsel for Dr Balafas attended the first day of the hearing expecting that legal argument as to the admissibility of Patient B's evidence would take place on the first morning and that Patient A would be called the following day.
2. Dr Balafas submits that it is not appropriate to keep a respondent guessing until the morning of the hearing as to whether, and if so what amendments to a serious complaint will be sought. That approach was said to pay insufficient regard to the gravity of the allegations and the need for the respondent to properly prepare a case in reply. In hindsight, Dr Balafas suggests that the issue of the admissibility of Patient B's evidence should have been determined prior to the start of the stage one hearing.
3. This is not a case where Dr Balafas was served with additional evidence very late or part-way through the proceedings. The case against him did not change in any material respect that may have prejudiced him. Dr Balafas was aware of the substance of Patient B's complaint and that the Commission intended to maintain that complaint despite Patient B not giving evidence. There was no practical prejudice to Dr Balafas.

There was no proper basis for pursuing the complaints particularly in the absence of medical evidence as to Patient B's unavailability

1. Dr Balafas criticises the Commission for pursuing the original complaint despite there being "no proper basis to prove the contested factual allegations, and in the absence of any evidence to support what Patient B asserted".
2. Dr Balafas submits that the way in which the Commission ventilated the complaint relating to Patient B, when it had known for almost a year that she was likely to refuse to attend to give evidence, was unfair. Despite knowing that Patient B was required for cross-examination, the Commission continued to rely on the entirety of her evidence and did not amend the complaint. That was said to be unfair and not in accordance with its obligations as a model litigant.
3. The Commission consistently maintained its position that it was pursuing the complaint and relying on Patient B's evidence. I agree with the Commission's submission that Dr Balafas had ample opportunity to prepare for an argument against the admissibility of the statement. There was no obligation on the Commission, either as a model litigant or otherwise, to withdraw the statement or the complaint.
4. Argument as to the admissibility and/or weight of Patient B's evidence was heard on the afternoon of the first day of the hearing and during the morning of the second day. That was the first time that the Commission had articulated the argument as to why the evidence was admissible and further, that it could be used for propensity reasoning. That situation was said to be prejudicial to Dr Balafas and could have been avoided if the argument had taken place before the judicial member alone prior to the stage one hearing.
5. The Tribunal is not bound to observe the rules of law governing the admission of evidence. The Tribunal may inform itself as it thinks fit: the National Law, Sch 5D, cl 2. Nevertheless, the Tribunal is subject to the rules of natural justice.
6. The Commission submits that there are many examples of the Tribunal admitting and considering evidence from patients who were unavailable for cross examination. In Health Care Complaints Commission v Marino [2016] NSWCATOD 37 the Commission sought findings of unsatisfactory professional conduct and professional misconduct against the practitioner who was alleged to have had sexual intercourse with a patient. Dr Marino admitted to failing to maintain proper professional boundaries when he called the patient and texted her nine times. He denied driving her home or having sexual relations. The patient did not attend to give evidence but the Commission successfully sought to tender her statement and annexures.
7. The Tribunal found that requiring the patient to give evidence would have had an adverse impact on her health. Medical evidence was tendered in support of the patient's inability to attend, Dr Marino admitted many of the patient's assertions and others were corroborated by documentary evidence such as mobile phone records and hospital records. Those factual circumstances are not present in this case, but the principle is the same. The unavailability of a witness, for whatever reason, does not automatically mean that any contested evidence is inadmissible: Health Care Complaints Commission v Vega [2015] NSWCATOD 62 at [122]. That is a question for the Tribunal to determine based on the circumstances of each case. Ultimately the Tribunal in this case decided not to admit contested evidence, but that was not a foregone conclusion. It follows that the Commission was not in breach of its obligations as a model litigant to press the admissibility of Patient B's evidence.

Propensity reasoning

1. After the Tribunal ruled that Patient B's evidence was not admissible to the extent that it was inconsistent with the denials of Dr Balafas, the Commission pressed for the remaining admissible evidence of Patient B to be used as propensity or tendency evidence. The Commission's argument was that what remained of Patient B's evidence could be used in support of the complaint of sexual misconduct made by Patient A.
2. In criminal trials tendency evidence is not admissible without notice being given specifying the nature of that evidence. According to Dr Balafas, it is self-evident that the unsworn evidence of a complainant who did not wish to give evidence would not be permitted. Although the rules of evidence do not apply in the Tribunal, Dr Balafas submitted that procedural fairness was breached because of the absence of any notice that tendency evidence was being relied on. In addition, evidence should not have been admitted where its probative value outweighed its prejudicial effect. The Commission should not have pressed this argument.
3. Ultimately the Tribunal ruled in favour of Dr Balafas by indicating that it would not use what remained of Patient B's evidence to support any allegations of sexual misconduct made by Patient A. There was no procedural unfairness in the Commission not giving formal notice that tendency evidence was being relied on or in pressing that submission.

Effect of panel members hearing the evidence

1. Section 165 of the National Law governs how the Tribunal is to be constituted when conducting an inquiry. In accordance with that provision, the Tribunal in this case was constituted by a senior judicial officer, two registered health practitioners and one lay person.
2. After detailed submissions from the parties at the hearing over the course of about a day, the Tribunal excluded evidence of sexual misconduct that Dr Balafas denied. As outlined above, the Tribunal also ruled against the use of any admitted material as tendency or propensity reasoning. The three non-legal members of the panel were present during the lengthy argument on this issue.
3. Each of the panel members had access to all the Commission's material before the hearing and were present during the legal argument as to the admissibility of that material. In hindsight, Dr Balafas submits that the issue as to the admissibility of Patient B's evidence should have been determined by the senior judicial officer alone prior to the start of the stage one proceedings and before the filed documents were provided to the other panel members. According to Balafas, it is impossible to expect that the non-legal members could have put those matters out of their minds. Even if the senior judicial officer warns the non-legal members of the panel not to take the evidence into account, that does not cure the unfairness.
4. Dr Balafas submits that a reasonable bystander would not expect the non-legal members of the panel to be able to ignore all the prejudicial material from Patient B. The Commission submits that this language echoes that of the test for apprehended bias, namely: 'whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.'
5. If that is Dr Balafas' submission, the proper application is not for the entire proceedings to be set aside, but for the non-legal members to disqualify themselves from continuing to hear the proceedings.
6. In oral submissions on this application, it was not suggested that the non-legal members should have been asked to leave the hearing room while these arguments were being made. Rather, it was said that the issue should have been dealt with before the hearing or at the commencement of the hearing in the absence of those members. That was said to be because the lawyers acting for Dr Balafas needed certainty about what is in the complaint and the evidence that would be relied upon.
7. Under s 189(4) of the Evidence Act 1995 (NSW), jurors are not to be present at a hearing to decide preliminary questions including the admissibility of an admission. There is no similar requirement for non-legal members of the panel. Under s 57(2) of the Tribunal Act, where a question of law arises, it is to be determined in accordance with the opinion of the member (or the majority of members) who are Australian lawyers. Section 57 does not state that questions of law are to be determined solely by the legal member or members. Rather, questions of law are to be determined in accordance with the opinion of the legal member or the majority of legal members. This provision contemplates that non-legal members may express an opinion as to questions of law, but that the opinion of the lawyer or lawyers prevails.
8. This issue was determined in Nursing and Midwifery Board of Australia v Linquist [2019] NSWSC 978. Evidence and submissions concerning a variety of issues were argued before four members of the Tribunal, two of whom were Australian lawyers. A jurisdictional issue, questions of statutory construction, and questions as to the merits of the application were argued before all members of the Tribunal. After the hearing a decision was published which was solely the decision of the Principal Member. In determining the appeal, Adamson J held at [45]: It is plain from s 57 of the [Tribunal Act] that the legislature contemplated that questions of law would arise in the course of hearings before a tribunal which was constituted by more than one member and made provision for the resolution of such questions where there was a dispute between members on questions of law. As referred to above, two of the members who constituted the Tribunal on 21 June 2018 were Australian lawyers. While Principal Member Britton's view could prevail in the event of a dispute, the process required that the four members take part in the decision and questions of law be decided by those of the four members who were Australian lawyers. The analysis contended for on behalf of Ms Linquist, that it was open to Principal Member Britton to decide legal questions separately from the balance of the Tribunal which had heard the matter, having been constituted under s 165B(2) as a four-member tribunal, cannot be accepted. Section 165B(5A) requires a tribunal to be separately constituted for the purposes of making an ancillary or interlocutory decision. It does not authorise a single member of a multi-person tribunal which has already been constituted to make such a decision unilaterally without recourse to the balance of the tribunal or to constitute himself or herself as the Tribunal on some unstated informal basis.
9. Based on this analysis, there is no merit to the submission that non-legal members of the Tribunal should have been excluded from the hearing when a question of law was being argued.

Non-disclosure of material relevant or possibly relevant to an issue

1. Just before and at various stages during the hearing, the solicitor for the Commission served "disclosure material" on Dr Balafas. According to Dr Balafas, the Commission failed to disclose certain material in conformity with its status as a model litigant. Those failures were said to irreparably compromise Dr Balafas' case in the way in which the cross examination of Patient A could be prepared and undertaken.
2. The breaches were said to relate to: 1. file notes and subsequent emails in relation to Patient A's explanation that an inconsistency in her evidence could be explained because of the way lying on your back or your stomach is described in the Portuguese language; and 2. file notes in relation to Patient A's memory that she may have seen a flip phone.
3. There are no specific disclosure rules in the Health Care Complaint's Commissions Code of Conduct, March 2015, but that Code provides that: "[i]n conducting all prosecutions and other legal proceedings, the Commission acts with complete propriety, fairness and in accordance with the highest professional standards."
4. Dr Balafas highlighted more specific obligations of disclosure in criminal proceedings under the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW). Under r 29.1, a prosecutor must "fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court . . " In criminal proceedings, there is an undoubted duty to disclose material that is "relevant or possibly relevant to an issue in the case": R v Livingstone [2004] NSWCCA 407 ("Livingstone") at [44].
5. Dr Balafas submits that the Commission failed to disclose notes in interviews with material witnesses where they appear "on a sensible appraisal by the prosecution, to have been relevant, or possibly relevant to an issue in the case": Livingstone at [51]. The obligation applies to any new information that is revealed in the course of conferencing a witness. The prosecutor need not hand over or disclose conference notes provided any additional information is disclosed by way of a further statement.
6. The Commission failed to disclose information obtained in two pre-hearing conferences with Patient A that were relevant, or at least possibly relevant, to an issue in the case. The Commission selectively disclosed portions of the file note, but failed to include information that was a prior inconsistent statement and relevant to the credibility of Patient A.
7. The alleged failures relate to an inconsistency between Patient A's original statement dated 27 August 2016 when she said she was on her stomach when Dr Balafas touched her clitoris, and what she said in the pretext phone call which was that she was on her back. Secondly, Patient A said in conference that she thought she had seen Dr Balafas take a photo of her vagina using a grey flip phone.
8. As to the inconsistency about whether she was lying on her stomach or her back, Patient A told her lawyers in a conference on 6 May 2021, that she had meant to say in the pretext call with Dr Balafas that she was lying on her stomach. Following that conference, Patient A emailed the Commission's solicitor explaining why she had made that mistake. Neither the file note nor the email was disclosed to Dr Balafas' lawyers. On 7 May 2021, Ms Bayley sent an email to Mr Davey setting out some information that was disclosed in the conference with Patient A on 5 May 2021.
9. According to Dr Balafas, the inconsistency between what Patient A said in her statements, compared with what she said in the pretext call is "not insignificant". It is much more likely for there to be accidental touching of the clitoris if Patient A was on her back. In cross-examination, Patient A said that the reason she said she was on her stomach in the pretext call was because, in her native language, Portuguese, she prefers to say lying with her "belly up" or her "belly down". She then said she was 100% sure that she was lying on her stomach. Patient A agreed in cross examination that she told Ms Bayley that there are reasons why in Portuguese back and stomach get confused.
10. Counsel for Dr Balafas then called for the file notes of the conference between Patient A and the lawyers for the Commission. That material was provided. According to Dr Balafas, that late disclosure could not cure the prejudice to him. Counsel for Dr Balafas was entitled to understand what Patient A had said about the inconsistency before deciding whether to cross-examine her on that issue. The issue had already been ventilated before the disclosure. Had counsel for the Dr Balafas had the email exchange prior to cross examination, for example, a decision may have been made not to cross examine on that issue. Secondly, there was not time to seek expert advice from a native Portuguese speaker as to whether the explanation for the discrepancy was a reasonable one.
11. After receiving the disclosure material, counsel for Dr Balafas alerted the Tribunal to the two matters in the conference note that had not been cross examined on and sought to tender the note. Counsel for the Commission accepted that the late disclosure of the material was a fair criticism, but objected to the tender of the file notes unless they were tendered with the emails of 6-7 May 2021 between Patient A and Ms Bayley. Ultimately a redacted file note of 5 May 2021 and the emails of 6-7 May 2021 were tendered (Exhibit A4).
12. In light of that tender, the Tribunal decided to recall Patient A.
13. The second incidence of non-disclosure related to Patient A telling her lawyers that she thought she had seen Dr Balafas take a photo of her vagina. In her original statement of August 2016, Patient A stated that: Dr Balafas inserted his fingers into my vagina. I remember thinking this was very unusual and I thought he might have been trying to take a photo of my vagina.
14. There is no other reference to Dr Balafas attempting to take a photo in any of Patient A's three statements. After the disclosure of the file note of the conference with the Commission on 5 May 2021, it became evident that Patient A had told the lawyers for the Commission something about a flip phone. The summary of what she had said, contained in the file note, is that she had an "impression" that she saw a "flip phone" and had a "vague memory of grey flip phone". Counsel for Dr Balafas submits that she had to deal with this information "out of sequence and on the run".
15. Counsel for Dr Balafas put to Patient A in cross examination on 10 May 2021 that she had not mentioned a 'grey flip phone' in any of those statements. On the morning of 11 May 2021, counsel for Dr Balafas requested that the entire file note of 5 May 2021 be tendered. On 12 May 2021 counsel for Dr Balafas told the Tribunal that there was further disclosure material and that Patient A was available to be recalled. That material was notes of a conference that took place on 20 December 2019 and COPS entries taken by the police at the time of the pretext phone call in 2016.
16. The notes of the conference were provided to counsel for Dr Balafas mid-morning on Wednesday 12 May 2021 and the police material was provided at around 2 pm. Patient A was re-called at around 3 pm and the questioning restricted to the file note material. Counsel for Dr Balafas submitted to the Tribunal at the time that she was deprived of the opportunity for an orderly cross examination and advised that she had some lead up questions for Patient A.
17. The file note of 20 December 2019 comes within the definition of material which should have been disclosed. According to counsel for Dr Balafas, the unfairness cause by the late disclosure could not be cured by the belated provision of material after the cross-examination had concluded. The issue of the flip phone had already been ventilated by counsel for the Commission. The forensic value of the file note, and the opportunity to properly test the evidence and memory of Patient A was lost.
18. The Commission acknowledges that the criticism of it for late disclosure of this material is fair, but says the remedy against any unfairness is not to set aside the whole proceedings. I agree that while the late disclosure of the material prejudiced the Commission's counsel in relation to the cross-examination of Patient A, that does not justify setting aside the whole proceedings. Once the material had been disclosed, the question was whether counsel for Dr Balafas was given enough time to mitigate any unfairness from the late disclosure. The time was limited. In one instance counsel for Dr Balafas received the material less than an hour before Patient A was recalled. Nevertheless, in all the circumstances, I do not consider that the late disclosures mean that Dr Balafas was denied procedural fairness. In addition, there was no application for an adjournment or for the Tribunal to re-open the proceedings.

Costs

1. The Commission seeks its costs of Dr Balafas' application.

Orders

1. I make the following directions: 1. The application by the respondent to set aside the proceedings is refused. 2. Within 14 days of the date of these reasons for decision, the Health Care Complaints Commission is to file and serve submissions in support of its application for costs. 3. Within 14 days of receiving such a submission, Dr Balafas is to file and serve any submissions in reply. 4. Each submission should include the party's view as to whether any application for costs should be determined without a hearing.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 29 September 2021