Health Care Complaints Commission v Hill [2025] NSWCATOD 59

Legal Profession Uniform Law Application Act 2014

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Chen v Health Care Complaints Commission [2017] NSWCA 186

Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173

Health Care Complaints Commission v Aref [2018] NSWCATOD 133

Health Care Complaints Commission v Brush [2015] NSWCATOD 120

Health Care Complaints Commission v Choi [2017] NSWCATOD 82

Health Care Complaints Commission v Collins [2021] NSWCATOD 132

Health Care Complaints Commission v CSM [2016] NSWCATOD 125

Health Care Complaints Commission v De Lore [2020] NSWCATOD 72

Health Care Complaints Commission v Do [2014] NSWCA 307

Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53

Health Care Complaints Commission v Karalasingham [2007] NSWCA 267

Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65

Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630

Health Care Complaints Commission v Liu [2016] NSWCATOD 133

Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172

Health Care Complaints Commission v Muthukrishna [2024] NSWCATOD 105

Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168

Health Care Complaints Commission v Philipiah [2013] NSWCA 342

Health Care Complaints Commission v Robinson [2022] NSWCA 164

Health Care Complaints Commission v Sare [2018] NSWCATOD 190

Health Care Complaints Commission v Segal [2022] NSWCATOD 71

Health Care Complaints Commission v Shrimpton (No 2) [2019] NSWCATOD 48

Health Care Complaints Commission v Whittle [2022] NSWCATOD 163

Henderson v Queensland [2014] HCA 52, (2014) 255 CLR 1

Merrick v Hines [2021] NSWCATAP 108

Nayar v Uren [2024] NSWCATAP 47

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449

Pillai v Messiter (No 2) (1989) 16 NSWLR 197

Prakash v Health Care Complaints Commission [2006] NSWCA 153

Sabag v Health Care Complaints Commission [2001] NSWCA 411

Sullivan v Civil Aviation Authority (2014) 226 FCR 555; [2014] FCAFC 93

Troy Hood trading as UR Place Landscape v Rutten [2016] NSWCATAP 250

Pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s64(a) and 64(c) respectively, the disclosure and the publication of the names and addresses of the witnesses set out in the Schedule attached to the Amended Complaint is prohibited, until further order of the Tribunal.

1. Francisco Hill, also known as Frank Hill, was a registered nurse. These proceedings concern complaints brought by the Health Care Complaints Commission (HCCC) against Mr Hill. The particulars of the complaints concern, variously, harassment, including sexual harassment by Mr Hill of staff reporting to him or working alongside him in the period between 2016 and March 2022.
2. By an application and complaint filed on 24 May 2024 and amended on 30 August 2024, the HCCC has applied to the Tribunal, as it is required to do so where it has formed a view that the complaints, if substantiated, would provide grounds for suspension or cancellation of Mr Hill's registration as a nurse: Health Practitioner Regulation National Law (NSW) (National Law), s 145D, for disciplinary findings and orders of the following kind;

(1) That disciplinary findings be made that Mr Hill is guilty of unsatisfactory professional conduct and professional misconduct;

(2) Various protective orders under the National Law. The National Law was adopted as law in New South Wales by the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW); and

(3) An order for costs as agreed or assessed on the ordinary basis.

(1) Mr Hill is guilty of unsatisfactory professional conduct in relation to complaints 1 to 8 as set out in the Amended Complaint; and

(2) Mr Hill is guilty of professional misconduct in relation to complaint nine, which relies on the accumulation of Mr Hill's conduct arising from the first eight complaint findings;

(3) Protective orders are necessary as we are satisfied that they are necessary to protect the public from the substantial risk arising from the conduct of Mr Hill; and

(4) Mr Hill is liable to pay the costs of the HCCC in bringing the application.

1. The hearing was conducted on 18 September 2024 as a combined stage 1 and 2 proceeding.
2. Mr Hill did not attend the hearing. We are satisfied that Mr Hill, though making no admissions, has been served with adequate notice of the hearing and was entitled to appear and have representation and that his election not to participate in the proceedings does not prevent the Tribunal from conducting its inquiry in his absence: National Law, s 165J.
3. In particular, we are satisfied that Mr Hill knew of the proceedings and the hearing date since:

(1) Mr Hill has been served with the Application and Complaint in their original and amended forms;

(2) Mr Hill has not appeared at the directions hearing or filed any material in the proceedings;

(3) Mr Hill has twice corresponded with the HCCC and Tribunal, in which he stated that he would not participate in the proceedings or attend any hearing.

1. The failure of a party to appear at the hearing does, alone, not mean the hearing is procedurally unfair. That applies with greater force where it is clear that a party has had adequate notice of both the hearing and the proceedings and appears to have elected not to participate. What is required is that the party has been given a reasonable opportunity to be heard: Troy Hood trading as UR Place Landscape v Rutten [2016] NSWCATAP 250 at [5]; Merrick v Hines [2021] NSWCATAP 108 [24-[54]; Nayar v Uren [2024] NSWCATAP 47 at [24].
2. One outcome of Mr Hill's failure to attend the hearing or participate in the proceeding more generally is that the evidence concerning the complaints made against him was uncontested and unchallenged. Even so, we have reviewed the evidence in detail, and we are satisfied that the evidence concerning each complaint should be accepted.

1. Before setting out the particulars of each complaint, together with our findings and consideration of the same, we provide our understanding of the applicable law: Civil and Administrative Tribunal Act 2013 (NSW), s 62(3).

1. The Tribunal has jurisdiction to hear and determine disciplinary matters for registered health practitioners pursuant to the National Law and the Civil and Administrative Tribunal Act 2013 (NSW).
2. The HCCC carries the onus of proof.
3. The civil standard of proof, namely, the balance of probabilities, applies to matters before the Tribunal. The strength of the evidence necessary to establish a matter on the balance of probabilities may vary according to the nature or gravity of the fact to be proved: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362-31; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449; [2014] HCA 52, (2014) 255 CLR; Henderson v Queensland [2014] HCA 52, (2014) 255 CLR 1.
4. It was submitted, and we accept, that taking into consideration the seriousness of the allegations against the Respondent, the Tribunal ought to inform itself by reference to evidence or other materials which properly support the findings being made in the knowledge of the seriousness of those findings and their potential for significant impact upon a party: Health Care Complaints Commission v Segal [2022] NSWCATOD 71 at [5] citing, Sullivan v Civil Aviation Authority (2014) 226 FCR 555; [2014] FCAFC 93 and Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53.

1. The Civil and Administrative Tribunal Act 2013 (NSW), Sch 5, cl 9 requires the Tribunal to observe the objectives and principles referred to in the National Law, ss 3, 3A, and 3B when exercising a function under the National Law.
2. The paramount consideration is the protection of the health and safety of the public.
3. The paramount consideration is not achieved when health practitioners and associated staff are the subject of harassment and sexual harassment, or work in an environment where they are likely to be subject to harassment and sexual harassment.
4. Accordingly, and relevant to our consideration of protective orders, restrictions on a health professional's practice are to be imposed where we consider it necessary to ensure that health services are provided safely.

The meaning of unsatisfactory professional conduct and professional misconduct under the National Law

1. The HCCC has alleged eight complaints of unsatisfactory professional conduct as comprehended by s 139B(1)(l) of the National Law, which states:

139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW]

(1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following -

...

(l) Other improper or unethical conduct

Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.

1. Complaint nine alleges that the practitioner is guilty of professional misconduct as comprehended by section 139E(b) of the National Law, which states:

139E Meaning of "professional misconduct" [NSW]

For the purposes of this Law, professional misconduct of a registered health practitioner means -

(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or

(b) 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 suspension or cancellation of the practitioner's registration.

1. In applying the National Law, the HCCC, in its written submissions, set out the following principles, which the Tribunal accepts are relevant:

"[16] The relevant principles [See, generally, HCCC v Liu [2016] NSWCATOD 133 at [51]- [55]; HCCC v Nguyen [2018] NSWCATOD 168 at [47]; HCCC v Shrimpton [2019] NSWCATOD 25 at [67]- [69]; HCCC v Petros [2019] NSWCATOD 83 [116]-[121]; HCCC v Konigson [2021] NSWCATOD 186 at [93]- [95]] include:

a. The words "improper" and "unethical" are not defined in the National Law, so the Tribunal has considered their dictionary meanings: improper relevantly means not right or not in accordance with propriety of behaviour and unethical relevantly means contrary to moral precept, immoral or in contravention of some code of professional conduct [HCCC v Liu [2016] NSWCATOD 133 at [51]- [52]];

b. the relevant ordinary meanings of improper include not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong [HCCC v Liu [2016] NSWCATOD 133 at [53]];

c. in professional disciplinary proceedings, impropriety means a breach of the standards of conduct that would be expected of a person in the position of the practitioner [HCCC v Liu [2016] NSWCATOD 133 at [54]];

d. it is not necessary to state an exhaustive definition of improper or unethical conduct as it encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of practitioners, in that it has a tendency to bring the profession into disrepute or reduces public confidence in the profession [HCCC v Liu [2016] NSWCATOD 133 at [55]];

e. whether conduct is improper is an objective test [HCCC v Liu [2016] NSWCATOD 133 at [54]];

f. to make a finding of improper or unethical conduct, it is not necessary for the Tribunal to be satisfied that the conduct is intentional: improper conduct does not need to be intentional and includes conduct not in conformity with standards of professional conduct [HCCC v Aref [2018] NSWCATOD 133 at [19]- [21]];

g. impropriety does not depend on the practitioner's consciousness of impropriety, it consists in a breach of the standards of conduct that would be expected of a person in the position of the practitioner by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case [HCCC v Nguyen [2018] NSWCATOD 168 [47]];

h. codes approved by the National Board are admissible evidence of what constitutes appropriate professional conduct or practice for the profession [Section 41 National Law] and may be relevant to whether conduct is improper or unethical."

1. In Health Care Complaints Commission v Muthukrishna [2024] NSWCATOD 105 at [9]- [10], the Tribunal conveniently extracted the most relevant parts of the same authorities referred to by the HCCC in submissions in the present case:

"[9] The extracts from cases below, are relevant here. They outline what constitutes 'improper or unethical conduct' and the process of characterising conduct:

(1) In Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54]:

"Decisions involving professional disciplinary proceedings have adopted as relevant the discussion of the term 'impropriety' in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1 as being a breach of the standards of conduct that would be expected of a person in the position of the alleged offender (citations omitted). The test of whether the conduct is improper is an objective one."

(2) In Health Care Complaints Commission v Sare [2018] NSWCATOD 190 at [31]:

"The Macquarie Dictionary defines 'improper' as 'not in accordance with propriety of behaviour, manners etc or abnormal or irregular' (see also R v Byrnes and Hopwood [1995] HCA 1; 183 CLR 501 at 514-515). Unethical is defined as 'contrary to moral precept; immoral; in contravention of some code of conduct'. As in Health Care Complaints Commission v Little [2016] NSWCATOD 146, we consider it appropriate to adopt the dictionary definition in construing these words as they appear in the National Law. We note that the words are to be read in the context of s 139B(1)(l), namely that the offending conduct is conduct relating to 'the practice or the purported practice of the practitioner's profession.'"

(3) In Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 at [26], it was stated:

"In our view, the test of 'unethical conduct' has both objective and subjective elements. The word 'unethical' connotes moral opprobrium. The term 'unethical conduct' implies that the conduct concerned not only objectively falls short of a certain professional standard but that the person involved has performed subjectively in a way that is morally dubious or unprincipled and is therefore reprehensible on that ground. It is unnecessary here to provide exhaustive categories of conduct that may be unethical. Conduct may be unethical if it is constituted by a deliberate flouting of significant professional standards. Reckless disregard of, or wilful blindness to, significant ethical standards or principles may also constitute unethical conduct. All will depend on the relevant circumstances."

(4) In Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [26], it was stated:

"In disciplinary proceedings in relation to s 139B(1)(l) of the National Law, the determination of the question as to whether 'any other improper or unethical conduct relating to the practice...of the practitioner's profession' has occurred requires the making of findings of fact as to whether the alleged conduct has occurred, and then the characterisation of that conduct as improper or unethical (or otherwise). If the conduct has occurred, and if that conduct is determined to be improper or unethical, then that conduct is inevitably characterised as unsatisfactory conduct by s 139B(1)(l) of the National Law. There is no discretion to be exercised between the finding that the determination that conduct has occurred which is improper or unethical and the characterisation of that conduct as unsatisfactory conduct."

[10] The extracts from the following cases clarify what "professional misconduct" means under s 139E:

(1) In Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19]- [20] per Basten JA (Leeming and Payne JJA agreeing):

"The term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation...There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be 'sufficiently serious' to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1)."

(2) In Sabag v Health Care Complaints Commission [2001] NSWCA 411, Sperling J (Beazley JA agreeing) said at [82]:

"The definition of 'professional misconduct' involves a degree of seriousness sufficient to warrant suspension or deregistration, a matter of degree and judgment."

(3) In Health Care Complaints Commission v Karalasingham [2007] NSWCA 267, the NSW Court of Appeal (Basten and Giles JJA and Bergin J agreeing) held at [67] that the definition of 'professional misconduct' is focused on the nature of the conduct, which must have the capacity to justify an order to suspend or cancel a practitioner's registration, whether or not such an order should be made in the particular circumstances.

(4) In Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200 per Kirby P:

"But the statutory test [for professional misconduct] is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner."

(5) In Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638 per Gleeson CJ, Meagher and Handley JJA:

"The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards."

(6) In Health Care Complaints Commission v Robinson [2022] NSWCA 164, Kirk JA at [35] said:

"The seriousness of the conduct may take colour not only from the acts or omissions in question but also from the circumstances in which they occurred: note, analogously, EFA at [169]-[172]. For example, that conduct was undertaken for an improper purpose may be a very significant factor in determining whether suspension or cancellation is justified. Thus, to look to the facts of this case, inappropriately touching a patient is likely to be more serious if it was done for sexual gratification rather than because of a misguided understanding of clinical justification."

1. Under the National Law, s 149C(5), the Tribunal is empowered to make prohibition orders that apply to a person who is no longer registered. A prohibition order would operate to prevent Mr Hill from providing "health services" as defined under the National Law, s 4. Health services, which as defined, include:

(1) services provided by registered health practitioners;

(2) hospital services;

(3) mental health services;

(4) pharmaceutical services;

(5) ambulance services;

(6) community health services;

(7) health education services;

(8) welfare services necessary to implement any services referred to above,

(9) services provided by dieticians, masseurs, naturopaths, social workers, speech pathologists, audiologists, or audio metrists; and

(10) pathology services.

1. The HCCC submits that the Tribunal should exercise its discretion to make a prohibition order even in circumstances where Mr Hill is no longer registered because he continues to pose a substantial risk to the health of the public. The HCCC has submitted that if Mr Hill were permitted to provide health services during a period where his registration would have been cancelled, then this would substantially undermine the protective purpose of that order: Health Care Complaints Commission v Shrimpton (No 2) [2019] NSWCATOD 48 at [25].
2. The particular reasons for that submission are set out and considered below. With regard to that submission, we accept the following principles are relevant because, as the HCCC submitted:

"a. The Tribunal has a discretion to make a prohibition order when it suspends or cancels the practitioner's registration, and it is satisfied that the practitioner poses a substantial risk to the health of members of the public;

b. The phrase substantial risk is not defined in the National Law and has been considered by the Tribunal as a risk that is material and real or apparent on the evidence, and not a risk that is without substance or speculative [Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [96]; Health Care Complaints Commission v Choi [2017] NSWCATOD 82 at [75]; Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 at [18]; Health Care Complaints Commission v Collins [2021] NSWCATOD 132 at [97]];

c. The question of whether a person poses a substantial risk to the health of the public must be assessed by evaluating the risk posed to the public if the person were to be involved in the provision of health services [Menz (No 2) at [19]; Health Care Complaints Commission v De Lore [2020] NSWCATOD 72 at [93]]".

1. The codes of conduct and policies set out below inform practitioners, and in disciplinary proceedings, the Tribunal, of the standards of conduct expected of a person in the position of the practitioner: Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54]. As such, where the Tribunal finds that there is conduct demonstrative of a departure from those standards, that finding may lead to a conclusion of unsatisfactory professional conduct or professional misconduct.

Nursing and Midwifery Board of Australia Code of Conduct

1. As a registered nurse, Mr Hill was obliged to comply with the Nursing and Midwifery Board of Australia Code of Conduct for Nurses in Australia, as varied from time to time.
2. The August 2008 iteration of that code provided, relevantly:

4. Nurses respect the dignity, culture, ethnicity, values and beliefs of people receiving care and treatment and of their colleagues.

Nurses refrain from expressing racist, sexist, homophobic, ageist or other prejudicial and discriminatory attitudes and behaviours towards colleagues, co-workers, persons in their care and their partners, family and friends.

1. The March 2018 iteration of that code provided, relevantly, that:

[3.4] Bullying and harassment

When people repeatedly and intentionally use words or actions against someone or a group of people, it causes distress and risks their wellbeing. Nurses understand that bullying and harassment relating to their practice or workplace is not acceptable or tolerated and that where it is affecting public safety it may have implications for their registration. Nurses must:

a. never engage in, ignore or excuse such behaviour

b. recognise that bullying and harassment takes many forms, including behaviours such as physical and verbal abuse, racism, discrimination, violence, aggression, humiliation, pressure in decision-making, exclusion, and intimidation directed towards people or colleagues

...

1. In addition to his required adherence to the Nursing and Midwifery Board of Australia Code of Conduct for Nurses in Australia, Mr Hill was also obliged to conform, at relevant times, to codes of conduct and policies determined by the different workplaces in which he was employed. The scope of practice of registered nurses varies according to the content and context of their duties. It is informed by professional standards, regulatory standards, policies, and guidelines, and, where a registered nurse practices within a health service provider, the relevant codes of conduct, policies, and protocols are informative of the standards required to be adhered to.

1. As an employee of NSW Health, from 16 December 2015, he was required to comply with the NSW Health Code of Conduct. The Code of Conduct provides that staff must:

4.1.2 Treat all other members of staff (irrespective of whether they are at the same level of seniority, or more senior or junior) in a way that promotes harmonious and productive working relationships and a collaborative teamwork approach.

4.1.3 Not bully or harass other staff, patients or members of the public or discriminate against them on the basis of their sex, race, ethnic or ethno-religious background, marital status, pregnancy, disability, age, homosexuality, transgender or carers' responsibilities.

1. The range of consequences for a breach of the NSW Health Code of Conduct includes referral to the relevant registration board and termination of employment.

The NSW Health Policy Directive: Prevention and Management of Bullying

1. From August 2021, Mr Hill was also required to comply with the NSW Health Policy Directive: Prevention and Management of Bullying. The policy directive sets out the mandatory requirements for the prevention and management of a suite of "unacceptable workplace behaviours", including sexual harassment, harassment, bullying and discrimination. From the revision history of that document, it is clear that a policy directive of this kind has been in place, albeit revised from time to time, since June 2007.
2. The policy directive describes sexual harassment in the following terms:

Sexual harassment:

Unwelcome conduct of a sexual nature by which a reasonable person would be offended, humiliated or intimidated. Sexual harassment is unlawful and may need to be reported to the NSW Police.

Sexual harassment may include behaviours such as:

● Unwelcome sexual advances

● Requests for sexual favours

● Leering or sexual comments about a person's body

● Sending obscene communications or displaying sexually suggestive materials (including using electronic devices to send inappropriate messages or images)

● Sexually explicit jokes

● Intrusive questions or suggestive remarks about a person's sexual or private life

● Unwelcome touching

● Sexual assault (including unwelcome touching of genitals or breasts).

1. As an employee of Ramsay Health Care, from 7 June 2017, Mr Hill was obliged to comply with the Ramsay Health Care Code of Conduct, which includes adherence to the Ramsay Health Care Discrimination, Bullying and Harassment Policy, as varied from time to time.
2. The Ramsay Health Care Code of Conduct states, in part, under the heading "Respect for others", that:

Ramsay's strengths are based on its people. Our dealings with each other in the workplace - and those with the wider community - should reflect mutual respect. We should treat others as we expect to be treated.

...

We believe in ... a workplace free from discrimination, bullying and harassment. We show respect in our interactions with others irrespective of gender, age, race, culture, religion, ethnicity, disability, social and economic status, sexual orientation, political beliefs and family or carer's responsibilities. We do not tolerate disrespectful behaviour observed in others.

1. The Ramsay Health Care Code of Conduct states that failure to follow the Code "may lead to disciplinary action, and possibly dismissal."
2. There were two relevant iterations of the Ramsay Health Care Discrimination, Bullying and Harassment Policy; the first was applicable from January 2015, and the second was applicable from September 2018. The versions of the policy are relevantly identical and provide that:

Sexual harassment encompasses any sexual intention that is unwanted. Sexual harassment can be a single incident - depending on the circumstances. It includes

Either verbal or physical conduct; or

Actions or remarks that are so offensive that they may constitute sexual harassment in themselves, even if they are not repeated.

Other single incidents, such as an unwanted invitation or compliment, may not constitute harassment if they are not repeated. Sexual harassment has nothing to do with mutual attraction. Such friendships are a private matter.

Sexual harassment and harassment are against the law in the workplace itself and in any work-related context, e.g. conferences, work functions / business trips.

Examples of sexual harassment and harassment prohibited by this policy include, but are not limited to:

Physical assault;

...

Direct propositions of a sexual nature;

Subtle pressure for sexual favours;

A pattern of conduct that discomforts and humiliates the person at whom the conduct is directed, which includes one or more of the following:

■ Comments of a sexual nature;

■ Sexually explicit statements, questions, jokes or anecdotes;

■ Unnecessary touching, patting, hugging, kissing, or brushing against a person's body.

■ Remarks of a sexual nature about the person's clothing or body; or; remarks about sexual activity or speculations about previous sexual experience.

Non-Physical harassment - e.g. Sending of inappropriate information via email such as jokes, inappropriate pictures, etc.;

Persistent, unwanted attempts to change a professional relationship to an intimate one.

1. Curiously, while the Ramsay Health Care Codes of Conduct note that workplace bullying creates a risk to health and safety, a similar notation is not present with respect to harassment and sexual harassment. However, there is an apparent overlap between sexual harassment and bullying in the workplace. In that regard, we are reminded of the observations of the Tribunal in Health Care Complaints Commission v Whittle [2022] NSWCATOD 163 at [21]- [23]:

[21] Although the ordinary principles in respect of sexual harassment and bullying are not "at play" in this jurisdiction, when considering the legal principles that apply to the Respondent's case, the Commission submits that it is important to remember the observations of her Honour Justice Lucy McCallum in Vitality Works Australia Pty Ltd v Yelda (No 2) (at [125]):

'...[that conduct] could not amount to sexual harassment because its sexualised message was not "explicit". The sexualisation of women in the workplace often isn't. Innuendo, insinuation, implication, overtone, undertone, horseplay, a hint, a wink or a nod; these are all devices capable of being deployed to sexualise conduct in ways that may be unwelcome. The power of implication is well understood in the field of defamation: cf Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 at [8]- [12]. In the nature of things, sexual implication is perhaps the most powerful of all. The suggestion that conduct cannot amount to sexual harassment unless it is sexually explicit overlooks the infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries.'

[22] Similarly, it was submitted, although there is no uniform definition of what constitutes bullying in Australia, it is relevant to note that it has been observed by the Fair Work Commission of Australia to include,

'...intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up on, isolation, freezing out, ostracism, innuendo, rumour-mongering, mobbing, mocking, victim-blaming and discrimination...' (Amie Mac v Bank of Queensland Limited and Others [2015] FWC 774 at [99])

[23] The Commission submits that this is the context that ought to be considered when assessing whether or not certain aspects of the Respondent's behaviour was contrary to his professional obligations under the National Law.

1. The complaints arise from the conduct of the Registered Practitioner in the course of his work at Wollongong Private Hospital, Nowra Private Hospital and Wollongong Public Hospital.
2. According to his curriculum vitae prepared in 2022, which was in evidence before us:

(1) Mr Hill started his working life as a youth worker in juvenile justice for the Department of Communities Services in about 1993.

(2) In 1994, he completed a Bachelor of Arts majoring in psychology and sociology at the University of Wollongong.

(3) In 2000, Mr Hill completed a Bachelor of Nursing, also at the University of Wollongong.

(4) He became a registered nurse on 5 December 2000. He commenced work as a clinical nurse specialist in the intensive care unit of Wollongong Public Hospital, which is a hospital within the Shoalhaven Local Health District. He was employed by that hospital at all relevant times.

(5) His curriculum vitae suggests that Mr Hill held the position of Operation Manager and Nurse Unit Manager at Wollongong Private Hospital for 20 years between 2002 and March 2022. However, the summary of an investigation conducted by Ramsay Health Care, which operates both Figtree Private and Wollongong Private Hospitals, noted that, in fact, Mr Hill worked as a registered nurse on a casual basis at Figtree Private Hospital from about August 2003 and that Wollongong Private Hospital employed him from about 2016.

(6) In 2005, Mr Hill attained the post-graduate nursing qualification of Post-Graduate Certificate in Clinical Nursing - Intensive Care.

(7) Further, in 2009, Mr Hill attained a Master of Nursing Critical Care & Research degree from the University of Wollongong.

(8) In 2014, Mr Hill received a Certificate IV in Training and Assessment and Front Line Management.

1. There was evidence before the Tribunal of two complaints concerning Mr Hill prior to the matters that were particularised in the Amended Complaint. Only the first complaint is described in the Evidentiary Certificate dated 27 May 2024 that was tendered in the proceedings.
2. In brief terms, the nature of the first of those complaints is that, in 2002, Mr Hill had engaged in sexual intercourse with a patient in his care who was in long-term care with cerebral palsy and a mild intellectual disability or otherwise had inappropriately shaved or trimmed that patient's pubic hair. The NSW Police had initially investigated the allegations. The NSW Police decided not to proceed to lay charges because, according to the notification given to the NSW Nursing and Midwifery Board (NSW NMB) by the Department of Community Services, "of issues of consent and the client's expressive communication difficulties."
3. The report of the investigation conducted by the NSW NMB was tendered in these proceedings. In that report, the NSW NMB concluded that there was insufficient evidence to corroborate the patient's allegations of sexual intercourse. The NSW NMB concluded that there was "direct evidence" of Mr Hill having shaved or trimmed the patient's pubic hair on at least three occasions, including that Mr Hill had admitted he had done so. In 2022, when giving evidence before the Nursing and Midwifery Council when it was investigating matters which are referred to below as Complaints 6 and 7, Mr Hill denied he had ever cut or shaved the patient's pubic hair, stating he was having to take responsibility for the actions of another staff member.
4. The NSW NMB apparently did not see any linkage between that conduct and the allegations of sexual intercourse, nor did the panel consider that there was any overriding concern for the protection of patients generally where conduct of that kind, and more, had been admitted. Instead, the NMB concluded, with regard to the pubic hair trimming, that there were "some questions" about the patient's role in requesting the trimming and that, in any event, while the conduct was serious, it was unlikely to occur again since the "relationship, therapeutic or otherwise" between Mr Hill and the patient had ended.
5. In coming to those conclusions, the NSW NMB report referred to Mr Hill's recorded interviews in which he disclosed having engaged in inappropriate conduct in several instances, including his admission that at one stage he had threatened the patient with physical harm. Ultimately, the NSW NMB made the following recommendation:

The Commission recommends that the following comments be made to the practitioner [ie Mr Hill]:

● The Commission take the opportunity to remind RN Hill of the boundary between professional nursing relationships and person relationships with clients (Copies of the boundary guidelines and the Nurse Code of Conduct should be provided to RN Hill)

● The Commission takes the view that his conduct in cutting [the patient]'s pubic hair in the absence of a proper procedure represented a departure from an adequate standard of nursing practice.

● The Commission takes the view that his conduct in failing to properly document the cutting of [the patient]'s pubic hair represented a departure from accepted standards of nursing practice.

1. The second complaint was concerned with allegations that, in 2011, Mr Hill had breached the NSW Health Code of Conduct by conducting himself inappropriately towards two student nurses and making sexually inappropriate comments to them. Mr Hill denied making sexualised comments or touching the student nurses in the manner alleged, but he did admit to taking one of the students to a restricted area, alone. The complaint was investigated at the Local Health District level, and the investigation concluded that the conduct the subject of the allegations could not be sustained "due to insufficient evidence." However, Mr Hill was issued with a formal warning about his conduct. In advising Mr Hill of the outcome of the investigation, the Director of Nursing & Midwifery / Site Manager stated:

The report ...raises significant concerns regarding your judgment and actions bearing in mind your position as an acting Chief Nurse Consultant particularly your decision to take a young, female student nurse to a restricted area which is predominantly a sleeping area.

1. The allegations made by the two student nurses went well beyond being taken into a restricted area as referred to in the quoted passage. In fact, both students had reported that Mr Hill had inquired about their personal lives and had stated his sexual preferences to them.
2. One had received a sexualised suggestion from Mr Hill while standing near a bed, and had told him, according to her record of interview, to "f*** off". That student described him as "very hands on, and very touchy", but she explained that she was able to address the inappropriate behaviour because she was at an age where she could stand up for herself.
3. The other student, who subsequently asked not to return to the ICU where Mr Hill worked, had had her abdominal and pelvic area examined by Mr Hill as part of a "training exercise". Additionally, she had been asked about her interest in group sex and had later been taken, alone, into a restricted sleeping area by Mr Hill for no reason where, according to her statement, Mr Hill then closed the door and while they were together in that room, Mr Hill had then placed his legs between hers and touched her on the pretext that he was trying to feel her femoral artery.
4. We regard these matters as being relevant in the following respects:

(1) First, with regard to any finding we might make concerning Mr Hill's awareness of his roles and responsibilities with regard to inappropriate conduct and sexual harassment, and

(2) Second, we must consider what protective orders may be necessary in the circumstances of this case.

1. Accordingly, the relevance of both these earlier incidents to the matters to be determined here is not that Mr Hill did (or did not) conduct himself inappropriately. . Rather, their significance lies in the fact that, arising from each set of allegations, Mr Hill had had been specifically and expressly reminded, of his obligations concerning the maintenance of appropriate professional boundaries as between himself and patients and between himself and colleagues throughout his lengthy career as a nurse.

1. The HCCC relied on a bundle of material extending to nearly 600 pages. It included, in addition to the relevant codes of conduct, copies of the complaints made and documents produced by Ramsay Health Care, Shoalhaven Local Health District and the Nursing and Midwifery Council of NSW. Statements from the people who made complaints about Mr Hills' conduct, statements from other relevant witnesses - some of which are attached to relevant correspondence, and reports from workplace investigators. Twenty documents contained material that was either prepared by or sent to Mr Hill, particularly in relation to the HCCC investigation of the complaints. We will refer to specific evidentiary material when considering each complaint and consider the weight to be given to it.

1. The Amended Complaints particularised eight separate complaints that were said to involve Mr Hill.
2. Because of the nature of the allegations, we have adopted the practice initiated by the HCCC in the Amended Complaint and identified the eight persons who were said to have been subjected to the conduct by Mr Hill, which is alleged to be in the nature of sexual harassment.

1. The HCCC particularises Complaint 1 as follows:

Particular 1.1. On one occasion between 2016 and 2018, in front of an elevator in Ward 3 South of Wollongong Private Hospital, the practitioner made an unwelcome sexualised comment to Person A, saying words to the effect of "You have a good figure".

Particular 1.2. On 21 April 2018, in the nurses' station in Ward 3 South of Wollongong Private Hospital, the practitioner unnecessarily touched Person A by putting his arm around Person A and kissing Person A on the cheek, making Person A feel uncomfortable

Particular 1.3. The practitioner's conduct in particulars 1.1-1.2 is contrary to the Ramsay Health Care (RHC) Discrimination, Bullying and Harassment Policy (Version V.4, effective January 2015 ("V.4"), and/or Version V.5 effective September 2018 ("V.5") in that it constitutes harassment (including sexual harassment) of Person A

Particular 1.4. The practitioner's conduct in particulars 1.1-1.2 is contrary to Conduct Statement 4 of the Nursing and Midwifery Board's Code of Professional Conduct for Nurses in Australia (effective August 2008) ("the Code of Conduct (August 2008)") and cl 3.4 of the Nursing and Midwifery Board's Code of Conduct for Nurses (Effective March 2018) ("the Code of Conduct (March 2018)"), in that his conduct engaged in harassment (including sexual harassment) of Person A.

1. The HCCC tendered a statement from Person A in which she described experiencing two incidents involving Mr Hill that amount to sexual harassment. The statement annexed a copy of some text messages Person A had sent to a friend shortly after the second incident, the subject of particular 1.2 occurred.
2. We give no weight to any of the other matters contained in Person A's statement that relate to other comments or actions alleged to have been carried out by Mr Hill that are not the subject matter of the particularised complaint.
3. The HCCC also tendered a file note prepared by Ms Landers, a human resources officer with Ramsay Health Care, dated "22 December 2020 and 4 January 2021", in which Person A recounts the matters as the subject of Complaint 1.
4. We note that Person A informs the Tribunal in her statement that, despite providing details of the two incidents, the subject of Complaint 1 to Ms Landers, at some point after the investigation of December 2020, Mr Hill became her direct manager in intensive care. We observe that where complaints of sexual harassment have been made, it seems an odd outcome to place people who are the subject of such a complaint together (in a manager and subordinate relationship) and require them to work in areas where patients require staff to perform their duties at the highest level of care and undistracted by personnel and other issues. It is unclear how such an arrangement, where a complaint is not resolved, could possibly meet the paramount consideration of the protection of the health and safety of the public.
5. Person A stated that she started work as an enrolled nurse at Wollongong Private Hospital in January 2016, when she was about 23 years old. She stated that she initially found Mr Hill friendly and knowledgeable, that she would escalate matters to him, and that she received good advice. This evidence points to the fact that, even absent the difference in their roles, Person A regarded Mr Hill as being in a position of authority.

The first incident concerning Person A, Particular 1.2

1. The first incident, referred to in Particular 1.2, occurred between her commencement at Wollongong Private Hospital in January 2016 and before the second incident, which occurred on 21 April 2018. Accordingly, we are satisfied that the first incident likely occurred when Person A was about 24 years old, and Mr Hill was in his late forties.
2. On Person A's evidence, Mr Hill was the operational manager at the time of the first incident. This meant that he was responsible for the day-to-day management of the hospital's operations, including staffing and patient movements. This is a considerably more senior position than the one occupied by Person A, and his role encompassed staffing decisions that would affect Person A. It is also a position of significant systemic power in a hospital - by his role, Mr Hill was in charge of an entire hospital when there was otherwise a lack of supervision and management, and the demands of his role also meant he was present, whether wanted or unwanted, was unavoidable.
3. Person A says she was standing next to Mr Hill while they both waited to enter a lift. While standing there, Mr Hill turned to her and said, "You have a good figure."
4. Person A states that this comment made her uncomfortable, but she did not say anything or report the incident. She stated that she does not like people talking about her body in that way.
5. There are several observations to make about this incident:

(1) Firstly, Person A should not be criticised for failing to report this incident. In the setting of a workplace, it is natural for people faced with conduct such as this to calculate the impact on their well-being and career of reporting a one-off remark on how they may be perceived by others in the workplace (for example, being regarded as overly sensitive or prone to complain), not to mention their working relationship with the statement-maker who occupies a position of seniority or supervision. That calculation applies with possibly greater moment when an incident occurs in the absence of witnesses to a young woman at an early stage of her career.

(2) Secondly, the setting of when this comment occurred is relevant to the level of discomfort and impact of the comment on Person A: the two were waiting together, about to enter the confines of a lift. We conclude that the discomfort that arose in Person A draws not only from what was said but from the fact that she was about to enter a lift with him where, if it were full, they would be in close physical proximity, and if empty, she would be confined with him alone.

(3) Thirdly, while Person A cannot be sure of the precise date when the incident occurred, that does not, in our view, lessen the veracity of her account. She clearly recalls the salient details and the way the comment made her feel.

The second incident concerning Person A, Particular 1.1

1. The second incident occurred on or around 21 April 2018. The date of the second incident is more definite because Person A sent a text message to a friend when it occurred.
2. According to her statement, which is consistent with the report she provided to Ms Landers, Person A was standing in front of a whiteboard with the names of patients written on it at the nurses' station in the ward. We have inferred from Person A's statement that Mr Hill occupied the operations manager position at the time of the second incident. Person A states that she and Mr Hill were discussing some work-related matters when he placed his arm around her and kissed her on the cheek. Person A says another nurse was close by and that she looked over to the other nurse as if to say: "what was that?".
3. On 21 April 2018, Person A sent a text message to a friend; we have extracted it in full, though we have consolidated some of the messages where they appear to have been sent seriatim and have included abbreviations where their meaning is unclear:

[Person A]: I feel like, [Mr Hill] keeps assaulting me. [I don't know]. Like ever since jonno said it, Also I read stuff but like I fell asleep ay

[Friend] What he doing

[Person A] He put his arm around me waist and kissed my cheek

[Friend] WHAT Really

[Person A] Yeah lol

[Friend] I highly inappropriate

1. Person A stated that she could not recall whether she said anything to Mr Hill at the time. She doubts that she did because she is not the kind of person to confront others. She stated that the incident left her feeling uncomfortable and shocked.
2. The HCCC tendered a statement from the other nurse, whom Person A identified as having been present during the second incident. In his statement, the other nurse states that he considers Mr Hill to be a good leader and that he cannot recall seeing Mr Hill put his arm around Person A and kiss her on the cheek.

Conclusion concerning Complaint 1 regarding Person A.

1. Save for the witness statement of the other nurse, whose evidence rises no higher than the fact that he does not recall seeing the second incident, Person A's account was unchallenged. We accept her statement as a truthful account of what occurred in both incidents.
2. We accept that Person A felt uncomfortable during the first incident and was shocked and uncomfortable during the second incident.
3. We consider that the conduct, as found, amounted to sexual harassment of Person A and was in direct breach of the Nursing and Midwifery Board of Australia Code of Conduct as of August 2008.
4. The applicable policy at the time of the incidents concerning Person A was the Ramsay Health Care Discrimination, Bullying, and Harassment Policy, which was in effect from January 2015. Considering the unchallenged description of each incident, they fall squarely within the definitions of sexual harassment under that policy and are, therefore, also in contravention of the Ramsay Health Care Code of Conduct.
5. Consequently, we find that Mr Hill's conduct in respect of the two incidents particularised as Complaint 1 gives rise to a finding that he engaged in unsatisfactory professional conduct.
6. Having regard to the above matters, we find that the subject matter of this aspect of the Amended Complaint is proven to the requisite standard: National Law, s 149.

1. The HCCC particularises Complaint 2 in the following terms:

Particular 2.1. In or around 2017 or 2018, on one occasion when Person B was between Ward 3 South and Ward 3 North of Wollongong Private Hospital, the practitioner unnecessarily touched Person B by grabbing Person B and hugging Person B, making Person B feel uncomfortable

Particular 2.2. The practitioner's conduct, in particular 2.1, is contrary to the RHC Discrimination, Bullying and Harassment Policy (V.4 and/or V.5) in that it constitutes harassment (including sexual harassment) of Person B.

Particular 2.3. The practitioner's conduct, in particular 2.1, is contrary to Conduct Statement 4 of the Code of Conduct (August 2008) and cl 3.4 of the Code of Conduct (March 2018) in that by his conduct, he engaged in harassment (including sexual harassment), of Person B.

1. The HCCC tendered a statement from Person B in which she described experiencing an incident of sexual harassment, by way of unwanted touching, from Mr Hill.
2. In her statement, Person B stated that she had a long history of working with Mr Hill from 2014 to 2022. Their shared work history included work at Figtree Private Hospital and Wollongong Private Hospital. In providing that history, Person B described various instances where Mr Hill is said to have touched her or spoken in an inappropriate and sexualised manner. None of those instances are the subject of the Amended Complaint, and accordingly, we give no weight to any of those other matters.
3. We are satisfied, however, that at all relevant times, Person B was junior to Mr Hill. She states that she commenced work as a medical records clerk, then as an assistant in nursing, and then as an enrolled nurse. She has since become a registered nurse. Person B states that when Wollongong Private Hospital opened in about 2017, she worked as a medical records clerk and a ward clerk. Mr Hill was the ICU Nurse Unit Manager and the Operations Manager. Person B states that the positions occupied by Mr Hill, particularly his Operations Manager role, meant that he was in charge (by which we infer he was the most senior nursing staff member) during the afternoon, night and weekend shifts. As an example of his supervisory role, Person B stated that when she suffered a needlestick injury on an afternoon shift, Mr Hill was her direct supervisor "at this time of day".
4. In her statement, Person B informs the Tribunal that:

One shift, I believe either a PM shift or night shift, no one was really around. I was walking the corridor in between 3 South and 3 North when Frank grabbed me and hugged me without saying anything. There was no reason for him to do that. It made me feel quite uncomfortable. This was early on after Wollongong Private Hospital opened.

1. The HCCC also tendered a file note prepared by Ms Landers, a human resources officer with Ramsay Health Care, dated 27 January 2021, in which Person B recounts the matters as the subject of Complaint 2. In that file note, Ms Landers records Person B as having told her that between four or five years ago, Mr Hill had been walking around a corner when he "grabbed and hugged" Person B. Person B informed Ms Landers that the incident had made her feel uncomfortable but that Person B "had not felt the need to raise anything before".
2. With regard to the issue of why she did not report the conduct, which is now the subject of Complaint 2, as particularised, Person B gives the following evidence in her statement:

None of Frank's actions felt reportable to me - it was a very fine line between him being overly friendly or him being ill intentioned. I remember feeling very uncomfortable with his behaviour. I remember discussing Frank's behaviour with my mum. I never made a formal complaint about Frank.

1. Person B's evidence was unchallenged, and we accept it as a truthful account of what occurred during an incident that took place in the corridor between 3 North and 3 South of the Wollongong Private Hospital shortly after it opened in about 2017.
2. We accept that Person B felt very uncomfortable as a result of this incident, so uncomfortable that she discussed what had happened with her mother.
3. At the time of the conduct particularised, she was a young woman in a low-level position at a newly opened hospital. Person B's evidence is that she was touched and grabbed without reason by Mr Hill in the course of an afternoon shift - a time when he was likely to have been one of the most senior employees working at the hospital, and that Mr Hill's touching and grabbing made her feel very uncomfortable, and that she has discussed what had happened with her mother. The fact that Person B did not report the matter appears to stem, on her evidence, from a mistaken understanding about the relevance of intention to Mr Hill's behaviour.
4. The fact that she did not report Mr Hill's conduct is not relevant in circumstances where;

(1) Person B has provided an adequate, albeit misguided, reason for not reporting that conduct, and

(2) Her evidence of what, in fact, took place is unchallenged.

1. We consider that the conduct, as found, amounted to sexual harassment of Person B. That conduct was in direct breach of the Nursing and Midwifery Board of Australia Code of Conduct as of August 2008.
2. We consider that the applicable policy at the time of the incident concerning Person B was the Ramsay Health Care Discrimination, Bullying, and Harassment Policy, which was in effect from January 2015. If we are wrong about this, then the later policy that came into effect in September 2018 is in relevantly identical terms as we have noted above. Considering the unchallenged description of the incident, we consider it falls squarely within theefinetion of sexual harassment under that policy. Mr Hill's conduct was also, therefore, in contravention of the Ramsay Health Care Code of Conduct.
3. Consequently, we find that Mr Hill's conduct in respect of the incident particularised as Complaint 2 gives rise to a finding that he engaged in unsatisfactory professional conduct.
4. Having regard to the above matters, we find that the subject matter of this aspect of the Amended Complaint is proven to the requisite standard: National Law, s 149.

1. The HCCC particularises Complaint 3 in the following terms:

Particular 3.1. In 2018 at Wollongong Private Hospital, after Person C had booked in to undergo a breast reduction procedure at the hospital, the practitioner made an unwelcomed sexualised comment to Person C, by saying words to the effect of "you don't need to get the operation done. You look really good in that shirt; you don't need it".

Particular 3.2. The practitioner's conduct, in particular 3.1, is contrary to the RHC Discrimination, Bullying and Harassment Policy (V.4 or V.5) in that it constitutes harassment (including sexual harassment) of Person C.

Particular 3.3. The practitioner's conduct, in particular 3.1, is contrary to Conduct Statement 4 of the Code of Conduct (August 2008) and cl 3.4 of the Code of Conduct (March 2018) in that by his conduct, he engaged in harassment (including sexual harassment), of Person C.

1. As with all the particularised complaints, Mr Hill does not seek to challenge the allegations; he also makes no admissions.

1. The HCCC tendered a witness statement by Person C, who is a registered nurse whose association with Mr Hill began when she was an enrolled nurse at Wollongong Private Hospital when she was in her early twenties. In her statement, Person C recounts that she knew Mr Hill as the Operations Manager at Wollongong Private Hospital.
2. Corroborating Person B's evidence on this topic, Person C notes that this position meant that on weekends and during after-hours shifts, Mr Hill was the most senior staff member on site. Specifically, Person C states that as Operations Manager, Mr Hill would run the hospital after hours because no Nursing Unit Managers were rostered for those shifts.
3. Person C described her relationship with Mr Hill as "very professional." She described him as a mentor and sought his advice concerning study and work.
4. In her statement, Person C states that in about 2018, she was booked to have breast reduction surgery at Wollongong Private Hospital. Person C says she did not tell Mr Hill that she intended to have this surgery, but that she nonetheless recalls him saying to her:

"You don't need to get the operation done. You look really good in that shirt; you don't need it."

1. Person C recalls that this was said to her while they were both attending Ward 3 South. Person C states that while she considered this comment to be inappropriate:

"It didn't really affect our relationship - I just brushed it off and ignored him."

1. Consistent with our approach to the irrelevant evidence of Persons A and B, we have disregarded the further material in Person C's statement where she describes seeking professional guidance from Mr Hill, only to be required to obtain that guidance if she attended a private dinner with him. That aspect of Person C's statement does not form any part of the complaint, nor does it even have contextual relevance to Complaint 3. We have also disregarded that part of the statement by Person C that Mr Hill must have found out about her surgery from seeing a theatre list. We consider that part of Person C's statement to be speculative as she had identified no basis on which to make that conclusion.

1. While we are satisfied that Mr Hill made the comment to Person C and that it was unwelcome - that Person C felt she needed to "brush off' that comment indicates that she did find it offensive but that she decided it should not hold it against him or allow it to affect her working relationship with Mr Hill. While it is heartening that Person C was able to manage the situation that presented itself, the fact that she had to do anything to counter inappropriate comments is not acceptable. It was obviously an unwelcome comment since Person C expressly stated that she had not told Mr Hill about her intended surgery on a part of her body that is usually kept private. Given that Person C's planned surgery was to take place at the same hospital where she worked, the fact that she expressly did not tell her co-workers, including Mr Hill, speaks to the fact that she wished to keep the matter private. We note that Person C's evidence is that Mr Hill made the comments on the ward in circumstances where there was every chance that Person C's co-workers could have observed the comments.
2. We consider that the conduct, as found, amounted to sexual harassment of Person C. The conduct directly breached the Nursing and Midwifery Board of Australia Code of Conduct as of March 2018.
3. The applicable policy at the time of the incidents concerning Person C was the Ramsay Health Care Discrimination, Bullying, and Harassment Policy, which was in effect from September 2018.
4. We find that, regarding Person C, Mr Hill breached the Ramsay Health Care Code of Conduct by being disrespectful towards his colleague.
5. Consequently, Mr Hill's conduct in respect of the incidents particularised as Complaint 3 gives rise to a finding that he engaged in unsatisfactory professional conduct.
6. Having regard to the above matters, we find that the subject matter of this aspect of the Amended Complaint is proven to the requisite standard: National Law, s 149.

1. The HCCC particularises Complaint 4 in the following terms:

Particular 4.1. In or around late 2019, on one occasion, while off the ward at Wollongong Private Hospital, the practitioner made an unwelcome sexualised comment to Person D by saying, "You look like the type who would like Maoris".

Particular 4.2. In or around 2018 and 2019, on at least two occasions at Wollongong Private Hospital, the practitioner unnecessarily touched Person D by swiping Person D on the bottom as she passed him in a corridor of Ward 3 South of Wollongong Private Hospital

Particular 4.3. In or around June or July 2020, outside a patient's room at Wollongong Private Hospital, the practitioner pulled Person D's ponytail and made an unwelcome sexualised comment to Person D, saying words to the effect of "You look like the type of girl who enjoys that in the bedroom"

Particular 4.4. The practitioner's conduct, in particular 4.1-4.3, is contrary to the RHC Discrimination, Bullying and Harassment Policy (V.4 and/or V.5) in that it constitutes harassment (including sexual harassment) of Person D.

Particular 4.5. The practitioner's conduct in particulars 4.1- 4.3 is contrary to Conduct Statement 4 of the Code of Conduct (August 2008) and cl 3.4 of the Code of Conduct (March 2018) in that by his conduct, he engaged in harassment (including sexual harassment) of Person D.

1. The HCCC tendered a witness statement by Person D, who is an enrolled nurse who, in 2018, worked at Wollongong Private Hospital. The HCCC also tendered a file note from Ms Landers dated "22 December 2020 and 4 January 2021" arising from her workplace investigation on behalf of Ramsay Health Care.
2. The HCCC also tendered Mr Hill's response to the Ramsay Health Care investigation, which was an email dated 8 February 2021. In that email, Mr Hill was principally concerned with allegations made by Person E, which are the subject of Complaint 5, which is considered below. In relation to Person D, Mr Hill, in his email, does not address any of the particularised allegations of the subject of Complaint 4; he does suggest that Person D had a high rate of absenteeism and had once called another manager when she should have contacted him to advise that she could not take a shift because she was intoxicated. His email further suggests that Person D engaged in sexually explicit conversations that would not have been appropriate in a workplace.
3. Whether Person D acted inappropriately is not a matter of any relevance to this Tribunal. Her conduct, on any occasion, is not the subject of the Tribunal's inquiry. In any event, aside from his own assertions (which, since he elected to participate in the proceedings, are unsworn and untested), there is no evidence that Person D acted in any way inappropriately or that any action has been taken against her. What Mr Hill's email reveals, as far as Person D is concerned, is a well-known phenomenon of deflecting or failing to address allegations made against him and instead trying to damage the credibility of the complainant. The misconduct of a complainant is entirely irrelevant unless there is sufficient evidence to suggest that the evidence of the complaint has been fabricated. Here, Mr Hill has elected not to question or challenge the evidence of Person D, and there is no suggestion that Person D's evidence was untruthful or lacked credibility. Accordingly, we have given Mr Hill's statements concerning Person D no weight.

The first incident concerning Person D, Particular 4.1

1. According to Ms Landers' file note, Person D reported to her that the first incident occurred in about 2019.
2. In her statement, Person D gave the following evidence relevant to particular 4.1 of Complaint 4:

Once Frank took me off the ward to mind a dog. I think it belonged to one of the radiologists who came in to do an after-hours appointment. The dog was in a car outside, and Frank came with me. He asked me about my husband and what he does for work. I said he was a scaffolder. He thought my husband was Maori and said words to the effect of "You look like the type that would like Maoris". Frank asked me questions about my son and made a joke about teenage pregnancy.

1. Aside from the bizarre setting in which they took place and the unexplained fact that Person D was removed from her ward duties to mind a dog alongside Mr Hill, who was likely a senior person in attendance at the hospital, the comments that are the subject of particular 4.1 are unchallenged and grossly sexual. They would be offensive to any person, not least a person such as Person D, over whom Mr Hill had a sufficient level of control to direct to leave her professional nursing duties and mind an animal in a vehicle.

The second incident Concerning Person D, Particular 4.2

1. Relevant to particular 4.2 of Complaint 4; Person D then gave the following evidence:

Frank has swiped me on the bum as I've walked past on the ward 2 or 3 times. This was in the hallway/corridor at work. He'd just laugh.

1. Ms Landers' file note refers to several incidents where Person D reported that Mr Hill had touched her in an unwelcome manner. This included touching her bottom. Ms Landers' file note records that Person D had asked Mr Hill to stop and that Person D had started to reject shifts that would result in her having to work under Mr Hill. Ms Landers' file note records that, after Person D told her Nurse Unit Manager about the touching, including the touching of her bottom, Mr Hill had told the same Nurse Unit Manager that Person D had attended a shift while intoxicated (which Person D denies).
2. Person D's evidence is unchallenged in relation to this incident.
3. We note that several of the instances of touching in the complaints against Mr Hill so far have involved interactions in a corridor - which is naturally a semi-confined space that does not lend itself to avoiding a person: one must go forward or back. We are satisfied, in respect of particular 4.2, that:

(1) The incidents of touching Person D occurred;

(2) The touching by Mr Hill of Person D's bottom was unwelcome;

(3) Mr Hill laughed when he touched Person D on the bottom and such laughter is derisory and harassing; and

(4) The touching of Person D on her bottom was an unwelcome sexual gesture which, having regard to the context (a workplace), is reasonably to be considered sexual harassment.

The third incident concerning Person D, Particular 4.3

1. The third incident involved an allegation that Mr Hill sexually harassed Person D by physically touching her and saying offensive things to her.
2. Person D gave the following account of what occurred, which, again, was unchallenged:

He once pulled my ponytail while I was outside a patient's room. He said something to the effect of "You look like the type of girl who enjoys that in the bedroom." I was angry and went home and told my husband.

1. According to Ms Landers' file note, this incident occurred in June or July 2020. Ms Landers records that Person D recounted this incident as one that made her feel uncomfortable.
2. Aside from experiencing feelings of anger and discomfort, Person D was obviously vexed about disclosing the incidents concerning Mr Hill due to the subject matter and her vulnerable employment status as a casual employee at Wollongong Private Hospital.
3. Evidence of how concerned Person D had become about disclosing the difficulties she had experienced with Mr Hill came in the form of a text message that she annexed to her statement. The message had been sent to a friend on 15 December 2020, days before she spoke to Ms Landers:

I just don't know what to do cause I'm casual I don't wanna piss anyone off I can lose my job like that

1. As a consequence of Mr Hill's conduct toward her, Person D stated that she took steps to avoid working when Mr Hill was at the hospital. We infer that, since she was avoiding weekend and late shifts, Person D did not receive the higher shift rates that working those kinds of shifts incur; therefore, at least one consequence of trying to avoid Mr Hill's unwelcome behaviour was also a financial one for Person D.

Conclusion concerning the particulars of Complaint 4

1. We are satisfied that the HCCC has proven the particulars of Complaint 4 concerning Mr Hill's conduct toward Person D. We have concluded that Mr Hill, in the period between about 2018 and 2020, touched Person D in an unwelcome and sexual manner and said things to her that were inappropriate, sexual and unwelcome. Mr Hill's conduct is all the more egregious toward Person D because she occupied a junior nursing role and because she was a casual employee. Those aspects of Person D meant that there was a significant power imbalance between Mr Hill and Person D and that the effects of his conduct were magnified and caused Person D at least temporary harm.
2. We consider that Mr Hill's conduct with respect to Person D was in breach of clause 3.4 of the Nursing and Midwifery Board of Australia Code of Conduct as of March 2018.
3. The applicable policy at the time of the incidents concerning Person D was the Ramsay Health Care Discrimination, Bullying, and Harassment Policy, which was in effect from September 2018.
4. We find that, regarding Person D, Mr Hill breached the Ramsay Health Care Code of Conduct by engaging in physical and verbal conduct that amounted to sexual harassment.
5. Consequently, Mr Hill's conduct in respect of the incidents particularised as Complaint 4 gives rise to a finding that he engaged in unsatisfactory professional conduct.
6. With regard to the above matters, we find that the subject matter of this aspect of the Amended Complaint is proven to the requisite standard: National Law, s 149.

Particular 5.1. On two occasions while working with Person E at Wollongong Private Hospital, the practitioner made unwelcomed sexualised comments to Person E, namely:

Particular 5.1.1. In or around September 2020, the practitioner said to Person E words to the effect of "So I hate my wife, and you hate your husband. I've wanted to leave her for years. I would leave her for someone else. I'm looking for a friend with benefits."

Particular 5.1.2. On 30 November 2020, the practitioner said to Person E words to the effect of "You never told me that you got your boobs done. You have really nice boobs; you didn't need to do that. Why didn't you tell me?"

Particular 5.2. On 30 October 2020, the practitioner entered Person E's office, closed the door, and removed his pants

Particular 5.3. The practitioner's conduct, in particular 5.1-5.2, is contrary to the RHC Discrimination, Bullying and Harassment Policy (V.5) in that it constitutes bullying and/or harassment (including sexual harassment) of Person E.

Particular 5.4. The practitioner's conduct in particulars 5.1-5.2 is contrary to cl 3.4 of the Code of Conduct (March 2018) in that by his conduct, he engaged in bullying and/or harassment (including sexual harassment) of Person E.

1. The evidence concerning complaint 5 is contained in a statement made by Person E, a statement made by Margaret Mason, the Director of Clinical Services at Wollongong Private Hospital, and the file notes and reports prepared by Ms Landers as part of the internal investigation conducted by Ramsay Health Care.
2. As we noted above in relation to Person D, Mr Hill responded to some of the allegations concerning Person E in an email in February 2021. In that email, Mr Hill admits to speaking to other staff, including managers, about Person E's competence. He does not address any of the specific allegations concerning Person E specifically; instead, as with Person D, Mr Hill's correspondence is directed towards attempts to damage Person E's credibility and deflect from the matters under review.
3. Aside from the following paragraph, we have not given Mr Hill's email of February any weight as far as it concerns the complaint particularised as Complaint 5. That is because it is irrelevant. The only paragraph of relevance from Mr Hill's email of February 2021, to which we can give only limited weight because it is unsworn and untested, is as follows:

I do not speak with staff about inappropriate things. I have two sisters and a 13-year-old daughter. I am fully aware of the issues with body image, and I am disgusted that someone thinks I would say anything about someone's body. There have been many times I have walked in on topics that I have ignored and occasionally asked them to stop.

1. Mr Hill also made statements in response to the incidents concerning Person E during Ms Landers' investigation. We refer to these responses below.
2. Person E worked at Wollongong Private Hospital as a Patient Flow Coordinator and Clinical Documentation Specialist. The Patient Flow Coordinator is frequently described in the materials as the Bed Manager. This is a senior non-clinical role, though Person E is also a registered nurse and midwife. Person E is a woman in her early forties.
3. In her statement, Person E provided numerous attachments, text messages, contemporaneous file notes recording events, a hand-drawn map of her office, copies of Mr Hill's response to her initial complaint and her further comments in reply, a copy of the findings letter prepared by Ms Landers and various relevant emails.
4. Person E first worked with Mr Hill at Figtree Hospital. She stated that she remembers the first time she met him and that he had asked her out on a date. She stated that she should have found Mr Hill "creepy". These matters are relevant to the context in which the particulars of Complaint 5 arise. They are unchallenged, and we accept that Person E may have been wary of Mr Hill because he had previously shown sexual interest in her that she did not reciprocate and because of her feelings of suspicion about him. Person E also states, consistent with the statements of Mr Hill in the evidence before the Tribunal, that her role required her to undertake shift hand-overs with Mr Hill when he arrived for the afternoon or evening shifts. Their role was so closely aligned that, in her role as Patient Flow Coordinator, Person E occupied the same small office by day as Mr Hill occupied in his role as Operations Manager by night. Accordingly, we consider that Mr Hill and Person E had a relatively close professional relationship, and they communicated most days. Person E also states that she communicated with Mr Hill using their private mobile phones but that their communications were solely concerned with work matters.

The first incident concerning Person E, Particular 5.1.1

1. From her statement, Person E informs the Tribunal that on either 4 or 11 September 2020, near the nurses' station at 4 South at Wollongong Private Hospital, the following occurred:

... We had a chat and he asked what my husband did. I said he does shift work and works in the mines, I said we were like ships in the night. Frank said to the effect of "that's just like me and my wife".

1. We observe that no allegation arises from that interaction. It merely sets the context for what occurred next, which, according to Person E's statement, was this:

About a week later, I was outside Frank's office in ICU on Level 1. I think Frank had called me into his office and I sat down opposite him. After the conversation the week before, I was prepared to have another chat with him and give him the benefit of the doubt. We had a conversation in words to the following effect:

Frank: "So I hate my wife and you hate your husband. I've wanted to leave her for years. I would leave her for someone else. I'm looking for a friend with benefits."

Me: "I love my husband!. Frank, stop it right now!

I jumped up and left straight away. I felt shocked that he was so open and forward about it. I was confused about how he had twisted what I said. I had never said that I didn't love my husband.

1. Person E then states that she immediately reported what had happened to the Director of Clinical Services, Ms Mason, who offered to escalate the matter to David Crowe, the hospital's Chief Executive Officer at the time. Person E says that she did not want Ms Mason to escalate the matter at that time. Having considered that she had adequately addressed the issues with Mr Hill, she states she said to Ms Mason, "Let's leave it." Person E then states that she disclosed all the incidents to Ms Mason on 9 December 2020 after the events that comprise Complaint 5.2.
2. Contrary to Person E's statement concerning when particularised as Complaint 5.1.1 occurred, other records provided by Person E suggest the incident actually occurred on about 23 October 2020, more than a week after the early September interaction,
3. Further, and contrary to Person E's statement concerning the timing of when she disclosed the incident to Ms Mason, in her statement, Ms Mason states that Person E only raised the allegation Complaint 5.1.1 on 9 December 2020 when Person E also disclosed the complaints particularised as 5.1.2 and 5.2. Despite that difference, Ms Mason gives a broadly consistent account of the disclosures of all three incidents concerning Mr Hill made by Person E on 9 December 2020, as Person E provides in her statement. Ms Mason's account of what Person E told her about Complaint 5.1.1 is entirely consistent with the substance of Person E's account.
4. We also prefer the evidence of Ms Mason as to the date when Person E reported the conduct particularised in 5.1.1 of Complaint 5. This is because Ms Mason annexed to her statement an email that she sent to Ms Landers on 9 December 2020, which read:

Hi Tori,

Just letting you know that we have received some disturbing allegations today from [Person E]. I have outlined them in this letter ....

David [Crowe] and I are happy to manage this one but can you please check the letter to make sure it includes the correct language and processes?

...

1. Neither in her statement nor in any other material prepared by Ms Mason does she deny what Person E reported to her or express any suspicion about the veracity of Person E's account. Person E's credibility is not subject to any suspicion by Ms Mason, who was in a position of supervision over both Mr Hill and Person E.
2. Ms Mason, however, does express some ambivalence towards Mr Hill's character. She appears to have regarded Mr Hill as competent but with a slightly blemished professional reputation. Ms Mason expressed this in the following manner:

As the Director of Clinical Services, I had to speak to Frank a few times. He was working at the public hospital too, so working more than full-time hours. Frank would often arrive to his shifts late and wearing his public hospital scrubs and not wearing Ramsay Health uniform. I remember speaking to him about this.

My impression of Frank was that he was good at talking the talk and would say what people wanted him to say. Frank always did his job very well; the hospital was well managed when he was in charge.

There were rumours that Frank had favourite wards; wards he didn't like didn't allocate as much staff. The rumours were unsubstantiated, there were no formal complaints made and there was not much I could do about it.

1. Ms Mason also states that after Person E made her complaint, Mr Hill complained to the human resources department about Person E and the colleague to whom Person E spoke about the incident. In his statement to Ms Landers, Mr Hill asserted that he commenced his complaints regarding Person E on 5 December and followed that complaint up on 12 December to Ms Mason and Mr Crowe. There is no independent evidence of a complaint being raised on 5 December 2020. We accept Ms Mason's evidence that Mr Hill only started to make complaints about Person E after she had reported his conduct to Ms Mason on 9 December 2020. We infer that Mr Hill's reports concerning Person E were retaliatory in response to her complaints.
2. In his response to Ms Landers, Mr Hill stated that he did not work closely with Person E until late October 2020. He stated he never said anything of the sort reported by Person E concerning a wish to be "friends with benefits" with her.
3. On balance, we are satisfied, having regard to the totality of the evidence before us, that Person E's account of the complaint particularised at 5.1.1 of Complaint 5 is accurate in terms of describing what occurred. We consider it more likely than not that the incident took place in late October 2020 and that Person E did not immediately report the incident to Ms Mason. Instead, we consider it more likely than not that Person E reported this incident about six weeks later, when she disclosed the incidents particularised in 5.1.2 and 5.2 of Complaint 5, to Ms Mason.
4. We do not consider that the credibility of Person E's account of what occurred is significantly impaired by the fact that we do not accept her evidence that she immediately reported the incident to Ms Mason. Some allowance may be made to a witness who had surgery shortly after the incident and who has been subsequently traumatised by the events concerning Mr Hill that, according to Ms Mason's statement, Person E has required counselling and stress leave to deal with the consequences of her disclosure.

The second incident concerning Person E, particular 5.1.2

1. Shortly after the first incident, particularised in 5.1.1 of Complaint 5, Person E had breast reduction surgery at Wollongong Private Hospital and took about two weeks' leave to recuperate. She returned to work in late November 2020. On her return, according to her statement, she was trying to avoid Mr Hill, but she received a telephone call from him in which:

He said to the effect: "You never told me that you got your boobs done. You have really nice boobs you didn't need to do that. Why didn't you tell me?"

1. Person E says she took the telephone call while at the nurses' station on level 4 and that her colleague heard part of the conversation after Person E mouthed to her that it was Mr Hill on the other end of the line. Person E's colleague has not provided a statement in these or any other proceedings.
2. In his response to Ms Landers' investigation, Mr Hill denies saying the words particularised in the amended complaint. Instead, he told Ms Landers that after welcoming Person E back from leave and discovering from her that she had been admitted as a patient, he had not remarked on her breasts but had said to Person E words to the effect of "As long as you are OK now, I didn't know you had been admitted."
3. In the hearing before the Tribunal, the statements of Person E regarding the incident particularised as Complaint 5.1.2 were unchallenged. We are satisfied that a phone call took place and that Person E and Mr Hill discussed Person E's recent breast surgery. We consider it more likely than not that Person E's account of what occurred is the accurate account, considering the consistency of her account, her distress after receiving the call, and her unchallenged credit.

The third incident concerning Person E, particular 5.2

1. Person E describes the third incident in the following terms:

Frank arrived [at their shared office] at about 3pm. He was wearing his Wollongong Private work uniform, navy pants and a navy top. He didn't sit down. I remember he closed the door and locked it. He was between me and the door. I couldn't get out. He had a shopping bag with him. I said to the effect of "What's that?" Frank said: "These are work pants I am going to put them on." I said "You already have work pants on." He said "I like these ones and they feel better."

Frank started undoing his pants and I said "what are you doing?". He had a smirk on his face and he said to me "You don't have to look if you don't want to". I swivelled around on my chair and put my face in my hands. I did not see him undress further. I thought what the hell is going on here. Frank said to the effect of "You can turn around now."

1. Person E stated she then conducted the handover with Mr Hill without any chatting or social talk. She stated she was in complete shock and was quite shaken up. She states that she mulled over what she had experienced and considered whether or not to report it. She confided in two colleagues, and sought their advice. Both of them recommended that she report the matter. She states she was very troubled about what she should do:

... I started crying at home about what he did to me in the office. As a manager I felt I had an obligation to report it. I thought if he did this to me what is he doing to other younger nurses on the ward.

1. In his response to Ms Landers' investigation, Mr Hill agreed that he had put on a pair of pants in the office he shared with Person E while she was present. He stated that Person E was giggling and that he had insisted he put on his work pants over a pair of shorts that he was already wearing. Mr Hill stated he put on pants over his shorts because he was running late and wished to save time.
2. In our view, the question of whether or not Mr Hill was wearing shorts or not when he changed his pants in front of Person E is not to the point. Person E could not have known what he was wearing because she turned away. Rather, the admitted conduct is that he changed an intimate part of his clothing in front of a co-worker in a small office where she was prevented from being able to leave. In the context, as we have found, of the earlier incident where Mr Hill propositioned Person E to become "friends with benefits", his conduct in removing or putting on pants in front of her was highly suggestive and sexual and strongly suggests he was dressing or undressing in front of her in a manner that a reasonable person would consider both sexual and unwelcome.
3. There is no reasonable explanation for why Mr Hill did not, for example, use a bathroom, toilet or locker room to change his pants. That would have been the appropriate course to take for any person in a workplace who wished to change clothes that come in contact with or protect the genital area. Ms Mason's statement suggests that she considered it might have been permissible for Mr Hill to have used the office to change where he was alone, but again, that is not what occurred.
4. Regarding the above, we are satisfied that the HCCC has established the factual particulars of the incident, which are particularised in 5.2 of Complaint 5.

Conclusion concerning Complaint 5 regarding Person E.

1. We are satisfied that Person E was subjected to acts and words that amount to sexual harassment on three separate occasions. We find that Person E, as a result, was left feeling shocked, uncomfortable, upset and, in respect of the incident particularised as 5.2, shaken.
2. The behaviour alleged in Complaint 5 fell well below the standard expected of a registered nurse and was unethical in that he breached the Nursing and Midwifery Board of Australia Code of Conduct as of March 2018.
3. The applicable policy at the time of the incidents concerning Person E was the Ramsay Health Care Discrimination, Bullying, and Harassment Policy, which was in effect from September 2018. Considering the unchallenged description of each incident, they fall squarely within the definitions of sexual harassment under that policy. Accordingly, we consider Mr Hill's actions toward Person E to be improper and unethical as they were in breach of the Ramsay Health Code of Conduct.
4. Consequently, we find that Mr Hill's conduct in respect of the three incidents particularised as Complaint 5 gives rise to a finding that he engaged in unsatisfactory professional conduct.
5. Having regard to the above matters, we find that the subject matter of this aspect of the Amended Complaint is proven to the requisite standard: National Law, s 149.

1. The HCCC particularises Complaint 6 as follows:

Particular 6.1. On 6 February 2022, the practitioner made unwelcome sexualised comments when he sent a multimedia messaging service ("MMS") message to Person F containing a photo of Person F and, in further text messages to Person F, saying that the photo was "hot" and "distracting".

Particular 6.2. The practitioner's conduct in particular 6.1 is contrary to the RHC Discrimination, Bullying and Harassment Policy (V.5) in that it constitutes harassment (including sexual harassment) of Person F.

Particular 6.3. The practitioner's conduct in particular 6.1 is contrary to cl 3.4 of the Code of Conduct (March 2018), in that by his conduct, he engaged in harassment (including sexual harassment) of Person F.

1. The HCCC tendered a file note by Ms Duffy, the Commercial Manager at Ramsay Health, which Ms Duffy had prepared as an email and sent to herself on 15 February 2022 and a statement from Person F, which attaches an email and some screenshots of her phone that are relevant to Complaint 6.
2. In her statement, Person F explains that she is employed in an administrative role where Ms Duffy is her direct manager. Person F states that she did not have very much to do with Mr Hill professionally, but that in one interaction, he had made a potentially sexualised comment regarding the size of a phone battery, which Person F considered "a bit creepy" and "a bit odd". Person F states that its significance was not apparent until after the matters particularised in Complaint 6 occurred.
3. Ms Duffy's 15 February 2022 email to herself records that she received a report on 7 February 2022 (a Monday) from Person F concerning the conduct particularised at 6.1 of Complaint 6. In her note, Ms Duffy states that she had seen the MMS exchange that is particularised at 6.1 of Complaint 6 and that it accorded with the description provided by Person F. The note also records that Person F did not wish to make a formal complaint, but her agreement for Ms Duffy to discuss the matter with two more senior managers, including Mr Hill's manager.
4. In her statement, Person F states that on 6 February 2022, a Sunday, she received an email from Mr Hill in which he asked that she telephone him. Person F did so, and she and Mr Hill discussed a work issue. Mr Hill then asked whether Person F had sent him a photo of herself in the week prior. Person F told Mr Hill that she had not sent him a photo and, concerned that an image of her had been sent without her knowledge, Person F asked Mr Hill to send her the image he had received. The image Mr Hill sent to Person F was her profile picture, which she had used on Facebook years before. Person F stated she had changed her profile picture at least twice since using that image and that she had changed her privacy settings, which caused her more recent profile pictures to be unable to be seen by the public. Person F then stated that Mr Hill started making "some reference to me being hot and the photo being distracting". Person F, not wishing to have discuss the matter further, gave her thanks to Mr Hill and ended the call.
5. Corroborating her account, Person F provided screenshots of text messages sent between her and Mr Hill. The part of the exchange between them relevant to the complaint was as follows:

[Person F]: The second photo came through but not the first one ����

[Person F] I just don't even know what its come up on haha

[Mr Hill ] But you see what I mean when I say Hot!!!

[Mr Hill] And distracting. LOL

[Person A] ������hahha, thanks Frank

[Mr Hill] No, thank you

1. Subsequently, in June 2022, Mr Hill provided the HCCC officer responsible for investigating the complaint a copy of his version of the above text exchange which was entirely consistent with the version provided by Person F.
2. Person F states that she found Mr Hill's comments were highly inappropriate and that she felt she should report the matter. Person F reported what had occurred the next day to Ms Duffy.
3. On being interviewed by Ms Landers, who, as we note above, was a human resources officer with Ramsay Health Care and Ms Aroutsides, Person F was obviously and understandably distressed by the incident and the complaint process. She stated, after personnel investigators interviewed her, that:

I didn't want it to go any further at the time because I didn't want to be "that person" or the type of person to make a complaint about another person. They said they had to take it seriously and action the complaint. I had a breakdown and went home early. The whole thing affected me terribly at the time.

1. In his record of interview, Mr Hill gave an account of what had occurred. He stated that he had received several inappropriate or "explicit" images accompanying "friend requests", apparently from Person F, over the past week and that he had deleted them. He had told Person F what occurred and stated that she might have been hacked. He stated that Person F was upset and concerned about Mr Hill receiving these messages and that he believed that she had not sent them. Mr Hill also refers to having a text exchange with Person F, but in his description, the content of the text exchange differs from the screenshots provided by Person F and the same material he supplied to the HCCC in June 2022 in a manner which seeks to minimise what Mr Hill had, in fact, written to her.
2. Before the panel of the Nursing and Midwifery Council proceedings under s 150, Mr Hill gave the following evidence, concerning Complaint 6:

And I - I said to her on the phone and on the text, "See, its not that bad, is it? Like, you're all done up and you look quite good", you know. And we were laughing about it and I said "But I think you've been hacked", which is what somebody else had said, "but you need to sort this out because its not good, people receiving these photos".

...

... and, you know, thumbs up and smiley faces. There was no issue that she indicated at all. ...

1. Likewise, in his written response to Ramsay Healthcare dated 16 March 2022. Mr Hill stated:

On 6 February 2022, [Person F] said she had received the second photo I sent her. I replied "see, it's not too bad, you're all done up with makeup and look hot".

...

I deny any behaviour of a sexual nature toward [Person F].

1. We are satisfied that Mr Hill did make sexual comments to Person F via text message and that those comments were unwelcome. Telling a co-worker that an image of her is "hot" and "distracting" is unquestionably sexual and inappropriate.
2. Telling a coworker such things in the context where Person F was manifestly concerned about having been hacked was obviously unwelcome and likely detrimental to the well-being of Person F, as Mr Hill's colleague.
3. For Person F, the experience was entirely negative: she experienced a breakdown at work after reporting the incident and recounts that when she saw Mr Hill at a shopping centre months later, she says that she grabbed her friend and ran off in order to avoid him.
4. Mr Hill's evidence about the incident lacked candour. Both his written response and his evidence sought to minimise the gravity of his comments. His statements were contradicted by the unambiguous nature of the text messages. Mr Hill's responses suggest that he was conscious of having acted inappropriately towards Person F but that, equally, he was unwilling to take responsibility for his actions. That failure to take responsibility and acknowledge what had occurred further reinforces the need for protective orders to be made.
5. We consider that Mr Hill's conduct with respect to Person F was in breach of clause 3.4 of the Nursing and Midwifery Board of Australia Code of Conduct as of March 2018.
6. The applicable policy at the time of the incidents concerning Person F was the Ramsay Health Care Discrimination, Bullying, and Harassment Policy, which was in effect from September 2018. We find that, regarding Person F, Mr Hill breached the Ramsay Health Care Code of Conduct by engaging in physical and verbal conduct that amounted to sexual harassment.
7. Consequently, Mr Hill's conduct in respect of the incidents particularised as Complaint 6 gives rise to a finding that he engaged in unsatisfactory professional conduct.
8. With regard to the above matters, we find that the subject matter of this aspect of the Amended Complaint is proven to the requisite standard: National Law, s 149.

Particular 7.1. In or around February 2022 at Nowra Private Hospital, on one occasion, the practitioner unnecessarily touched Person G by lifting Person G's skirt to reveal her tattoo on her right thigh

Particular 7.2. On 22 February 2022, at various locations associated with Nowra Private Hospital, the practitioner unnecessarily touched Person G multiple times by (variously) placing his hand on her back, on her hand, and on her right thigh

Particular 7.3. On 22 February 2022, made unwelcome sexualised comments to Person G, such as;

Particular 7.3.1 words to the effect of "nice breasts", as Person G bent down

Particular 7.3.2. "stop it, you are making me horny"

Particular 7.3.3. words to the effect of "we should meet up at a hotel. I think we have a connection"

Particular 7.4. On 22 February 2022, the practitioner sexually touched Person G in the following instances without her consent:

Particular 7.4.1. The practitioner stood behind Person G as she was making coffee, squeezed her hips and pressed himself against her

Particular 7.4.2. The practitioner took Person G's right hand and placed it on his groin area on top of his pants while he had an erection

Particular 7.4.3. The practitioner put his hand up the back of Person G's shirt, touched her bra, and touched her right breast over her bra

Particular 7.4.4. The practitioner spun Person G's chair around while she was sitting on it, and put his hand up her skirt

Particular 7.4.5. The practitioner followed Person G into a room, took hold of Person G's face and attempted to kiss her on the lips

Particular 7.5. The practitioner's conduct in particular 7.1-7.4 is contrary to the RHC Discrimination, Bullying and Harassment Policy (V.5) in that it constitutes harassment (including sexual harassment) of Person G.

Particular 7.6 The practitioner's conduct in particulars 7.1-7.4 is contrary to cl 3.4 of the Code of Conduct (March 2018), in that by his conduct, he engaged in harassment (including sexual harassment) of Person G.

1. In summary, Mr Hill's account is that he was employed as the Education Manager at Nowra Private Hospital, a hospital owned and operated by Ramsay Healthcare, from mid-January 2022 until about late February 2022. Part of that role involved working with Person G, an administrator in a team leader position, to upload education packages and policies onto the webpage for Nowra Private Hospital. Mr Hill says that on 22 February 2022, both he and Person G had received an email from the hospital's quality manager that was highly critical of them both and the work they had been doing. Mr Hill says, repeatedly, that he had been "frustrated" by the lack of time Person G had been available to assist him, the technical problems they had with the formatting of various items to place on the webpage and his consequent inability to meet the necessary deadlines.
2. Of his interactions with Person G on 22 February 2022, Mr Hill's account is succinctly provided in the following passage from his response letter to Ramsay Health Care dated 16 March 2022:

"As [Person G] had also received the email, I was concerned that she would be upset. I went to see her and while I asked if she was okay, I put my hand on her shoulder. She said she was okay but angry. [Person G] then assisted me to upload the policies."

1. Mr Hill then goes on to deny that his conduct toward Person G was intentionally inappropriate and to deny any conduct of a sexual nature.
2. That account is consistent with the record of the panel proceedings before the Nursing and Midwifery Council. However, in that account, Mr Hill states that he was physically close to Person G while working because of the office set-up and that people were working nearby and coming in and out throughout the day, which suggests that the particulars of Complaint 7 are improbable.
3. Person G states that on 22 February 2022, the only people she recalled attending the workplace were one doctor in a consulting room for a couple of hours, a co-worker sitting at the reception desk undertaking screening calls (during the COVID era), and her friend who came to visit on Person G's repeated requests.
4. In his initial response to Ms Lander of Ramsay Health Care on 1 March 2022, Mr Hill admits to several instances of touching Person G. However, he explains each instance as being entirely innocent and non-sexual. After an email that extends over three whole pages, Mr Hill concluded:

The above is exactly what occurred. And I know I am not 100% innocent on all these, but I am 100% positive that I have never touched, grabbed or forced any woman without her consent!

I know what it looks like, especially given the issues I had last year and the warnings that come with it.

Please note: that this is not an acceptance of guilt for her allegations, but at this stage I believe it would be prudent for me to hand in my resignation from Ramsay Health.

1. The reference to last year and the warnings in Mr Hill's email appear to have been intended as a reference to the matters particularised at Complaint 5.
2. Person G's account of what she experienced is starkly different from Mr Hill's statements and evidence. In a statement given to the HCCC on 23 February 2023 that was tendered in the proceedings and unchallenged by any cross-examination, Person G states that she had been in the team leader role at the hospital for less than six months when Mr Hill stated working there. Person G states, consistent with Mr Hill's account, that he had been engaged to assist in preparing for the hospital's upcoming accreditation. Person G states that she only worked with Mr Hill on about three occasions.
3. We are satisfied having regard to the evidence before us that Person G's account of the conduct particularised under 7.1, 7.2, 7.3 and 7.4 of Complaint 7 should be preferred over that of Mr Hill. This is because Person G gave unchallenged evidence in detail of specific incidents that were unembellished by any hint of exaggeration or enmity toward Mr Hill. By all accounts, she and Mr Hill had previously had a short but entirely amicable working relationship. Person G's statement is in all significant respects the same as the contemporaneous report she provided concerning the conduct, the day after it occurred. Further, to some extent, Person G's account is also corroborated by the observations of her manager and by the manager's own experience in dealing with Mr Hill.

The first incident concerning Person G, Particular 7.1

1. According to Person G, the very first day she worked with Mr Hill, he noticed the end of a large tattoo on her thigh, which was exposed because her skirt had ridden up slightly. On seeing part of the tattoo, Mr Hill then, without asking Person G, lifted Person G's skirt slightly more and asked her about the tattoo.
2. While unwanted, Person G stated that she did not think Mr Hill had done anything untoward by moving her skirt up in this manner.
3. According to Ms Lander's file note of her interview with Person G on 23 February 2022, in the week preceding the matters particularised at 7.2 of Complaint 7, Person G disclosed to Ms Landers that Mr Hill had "started to become a little touchy." By which, she informed Ms Landers, Person G meant that Mr Hill had rubbed his hands on her shoulders and hands and sat close to her with his thigh touching hers.
4. As noted above, we are satisfied with respect to Particular 7.1 that the incident occurred as described by Person G, whose evidence was unchallenged and corroborated by her contemporaneous report to her manager of the allegations particularised in 7.2. Some aspects of the complaint, in particular the touching of Person G's thigh with his own, are further corroborated by Mr Hill. However, he explained that this was non-sexual and unavoidable because they were working together in a confined space or needed to look at the one computer screen.

The further and numerous incidents concerning Person G, Particulars 7.2, 7.3 and 7.4

1. The particulars set out in 7.2, 7.3 and 7.4 of Complaint 7 all took place on 22 February 2022. They were reported by Person G to her line manager promptly the next day, and, on the same day, Ms Landers interviewed Person G and took a detailed file note.
2. Throughout that process of disclosure, Person G appeared very emotional and was obviously experiencing significant distress. However, whether this distress arose from having to make the report or from a combination of the reporting and the actual incidents of 22 February 2022 is unclear.
3. The account recorded by Ms Landers in her file note prepared after interviewing Person G on 23 February 2022 differs in some respects from the detailed account in Person G's statement. Having reviewed the differences, we did not find them to be material to the questions for determination in these proceedings. It is often the case that an initial interview recorded by a personnel officer will not cover every detail, and the file note created by Ms Landers was also concerned with noting the extent of management reporting and employee welfare concerns arising from the incident. Accordingly, where the file note differs from Person G's statement, we have preferred the account set out in the statement.
4. In summary, Person G's unchallenged evidence of what occurred on 22 February 2022 is this:

(1) Mr Hill arrived and gave her a birthday card and some "Milky Way" chocolates for her upcoming birthday. In the card, Mr Hill wrote something about Person G having told him that she had dreamt of this type of chocolate.

(2) That day, Person G and Mr Hill worked side-by-side in an unused consulting room in a building at Nowra Private Hospital. The door to the room was ajar, and another staff member was attending to reception duties and making calls related to COVID. As they continued to work, Person G says Mr Hill increasingly touched her body - on the back, her hand as it rested on a computer mouse and touching her right thigh. This is the conduct referred to in particular 7.2 of Complaint 7. Person G stated that her first impression of this behaviour was that it was "part of his personality - that he was just a 'touchy feely' person." This statement indicates that Person G was not a person likely to take offence at physical conduct readily and was willing to consider Mr Hill's touching as being well-intentioned or without having any sexual element. We note that this approach was common to several of the persons the subject of the particularised complaints expressed a similar attitudes and initial reactions to Mr Hill's conduct, and we observe, in passing, that it would seem none of them were particularly sensitive about being touched and were willing to give Mr Hill the benefit of being considered to be acting within appropriate boundaries. The fact that Person G approached the situation in this way does not connote consent or willingness concerning Mr Hill's conduct. Instead, we consider that Person G tried to deal with Mr Hill's conduct in a manner which placed him in the best light.

(3) In her statement, Person G's manager gives unchallenged evidence that Mr Hill had, in a meeting which Person G and another staff member attended, also put his hand on the manager's hand and had entered the manager's personal space. The manager reflects on that incident and theorises that Mr Hill may have been showing Person G that he could touch Person G's manager without any negative consequence. We make no finding in that regard, however, the fact that there was touching of this kind indicates that Mr Hill was prone to touch co-workers and that he had gained some licence to do so, though certainly not in a manner that would ever have permitted the conduct the subject of Complaint 7.

(4) Person G then stated that she was wearing her work uniform, which included a V-neck top with buttons that tended to gape when she bent down. She states that at one stage she had bent down and she noticed that Mr Hill seemed to be staring down at the top of her breasts before saying something to the effect of "nice breasts." Person G gave an almost identical account to Ms Landers the day after the incident. This conduct was particularised as 7.3.1 of Complaint 7. Person G says that in response, she said something to the effect of "Stop it - that's enough of that." In addition to telling Mr Hill to stop, Person G also took the additional step of putting on a cardigan and buttoning that garment up to the top, even though it was a hot day in summer. This manner of dress was observed by Person G's manager the following day. In her statement, the manager says she found Person G "with her hair tied up tight in a bun, the buttons on her shirt were done up all the way to the top. She was not her usual self, and she was as quiet as a mouse."

(5) After Person G had responded to Mr Hill's comments regarding her breasts, he was plainly on notice that any further sexual advances toward Person G were unwelcome, and his subsequent conduct, which we are satisfied occurred, constituted sexual harassment.

(6) Person G's evidence is that, as the day continued, Mr Hill apparently kept making jokes and at one point said, "Stop it you are making me horny". This conduct was particularised as 7.3.2 of Complaint 7. We are satisfied that he said these words to Person G and we accepted her account the Mr Hill continued to touch her hand on the computer mouse, sit so close to her she could feel his breath on her skin and touch her right thigh. We note that Person G stated that when her thigh was touched again, she stated "Stop it - we need to get back to work." Person G explained that while this conduct was occurring Mr Hill was talking to Person G about his spouse and children and that she was concerned not to "make a big deal or hurt his feelings". Instead, according to Person G's statement, she tried to get away from Mr Hill and bring other people into their work space. She states that she:

"kept making excuses to get up and get something. To go to the bathroom. I kept messaging my friend ... on Teams to see if she could come and see me - bring me paper or have a break. Just to have someone else there. "

(7) In one instance, which forms particular 7.4.1 of Complaint 7, Person G got up to make some coffee. This was not a successful attempt to get away from Mr Hill, since, on Person G's account, Mr Hill:

"came up behind me, squeezed my hips, and pressed himself against me. I jumped forward and said something to the effect, "Stop it. It's not funny".

(8) Person G told Ms Landers the following day that she had pulled away from Mr Hill and that after this incident, "Frank walked back to the room as if nothing had happened".

(9) We are satisfied, on the evidence provided, that the matters particularised at 7.4.1 occurred as described by Person G. That conduct was, in effect, a physical assault on Person G. Having been told to stop at least twice by this stage, Mr Hill could not have been under any misapprehension that his actions were unwelcome and unwanted by Person G.

(10) On Person G's unchallenged account, Mr Hill then suggested that they meet up in a hotel and told her that he thought she and Mr Hill "had a connection". This conduct is the basis of particular 7.3.3 of Complaint 7. In her file note, Ms Landers records that Mr Hill had asked Person G whether she wanted to meet up with him after work. There is no relevant difference in the accounts - both record a proposal for the two to meet outside of the work environment. There was no work-related reason for such a proposal; and however it was conveyed, the offer was obviously a sexual proposition. Person G says, and Ms Lander's file note also records, that she again rebuffed him, telling him that she was married and not interested in any way.

(11) Person G then states that after the lunch break, Mr Hill's behaviour became less "light-hearted" and more persistent towards her. She states that she was sitting at a computer typing in the room where they were working when Mr Hill grabbed her right hand and placed it on top of his trousers at his crotch. Person G says she was able to feel that Mr Hill had an erect penis before she was able to pull her hand away. She states that she said to Mr Hill something to the effect of "I don't want to know about that, I don't want to feel that" and that she tried to get on with her typing work. This conduct forms particular 7.4.2 of Complaint 7. On the unchallenged evidence before us, we find that this conduct occurred as described by Person G. As with the conduct particularised at 7.4.2 of Complaint 7, this conduct was also, in effect, a physical assault on Person G with a prominent sexual element. We have concluded that it was unwelcome and distressing for Person G to have to endure.

(12) In her statement, Person G recounts that Mr Hill's conduct escalated further and that, having taken off her cardigan from the morning because of the heat, Mr Hill then put his right hand up the back of her shirt and while his hand was there he touched her bra and briefly touched her breast over the top of her bra. Person G says that Mr Hill had managed to get his hand this far into her clothes before she was able to push him away. Person G's evidence on this conduct was specific and unchallenged, and we find that the conduct occurred as she described it. This conduct forms particular 7.4.3 of Complaint 7. As with the conduct particularised at 7.4.2 and 7.4.3 of Complaint 7, this conduct too was, in effect, a physical assault on Person G, and was unquestionably sexual. The extent of Person G's shock and distress at this event is illustrated by the following part of her statement:

"I kept working to try and ignore his behaviour. I was confused, was it a joke? One minute he was talking about this renovation and then he was doing that. After that I put my cardigan back on."

(13) Person G then states that she asked her co-worker, who was sitting out at the reception area, to move and allow Person G to sit out at reception, where Person G felt safer because there were more people around. Person G states that she felt bad about requesting this of her co-worker because her reception co-worker was not able-bodied. We observe that Person G throughout the day tried to remove herself from Mr Hill's space or ensure she was not entirely alone with him, and to tighten her clothing to prevent him from touching or looking at her body. Each of those attempts, as well as getting her coworker to make space at the reception desks arose from Mr Hill's conduct making her feel unsafe in the workplace. Person G then states that it was when she was sitting alone at the reception area that the conduct particularised at 7.4.4 of Complaint 7 occurred. That conduct involved Mr Hill sitting down next to Person G at her left-hand side, spinning Person G's chair so that she was facing him and then putting his hand up her skirt in an aggressive manner. Ms Lander's file note records this incident as having occurred when Person G was making calls to patients, and she was spun around, and Mr Hill put his hand up her skirt while she was, in fact, leaving a message for a patient. It was at this point, having been subjected to repeated sexual harassment, that Person G came to the decision that she needed to leave the area, and so she intended to pack up her belongings and go back to the administration area. She says she told Mr Hill, "You are really going to get yourself in trouble for this", but that she did not notice Mr Hill appear to be at all troubled by what she had said.

(14) The final conduct that forms particular 7.4.5 of Complaint 7 occurred while Person G was getting her belongings so she could leave, and in effect get away from Mr Hill. She stated that she headed back into the consulting room where she and Mr Hill had been meant to be working that day, and that Mr Hill followed her into that room and stood in the doorway, by which we infer that he was effectively blocking Person G from leaving the room. Person G then stated that Mr Hill grabbed her face and tried to kiss her on the lips, but that she was able to turn her face so she received his kiss on her cheek, before she was able to pull away from him and leave.

1. We are satisfied that Person G was subjected to the conduct (both words and actions) set out in each of the particulars to Complaint 7 and that this conduct that amounted to serious sexual harassment of Person G. We find that Person G, as a result, was made to feel unsafe in her workplace, that she was distressed and was left feeling shocked, uncomfortable and embarrassed. She stated that she went home on the evening of 22 February 2022 and was upset but could not tell her spouse what had occurred. Person G explains her feelings and thoughts that evening in the following terms, which are consistent with the kind of thoughts and feelings typically experienced by a person who has experienced sexual harassment:

When I got home, I was upset. My husband kept asking me what was wrong but I wouldn't tell him because I wasn't really sure what had happened and I was questioning what had happened. Was I being overly dramatic? Did I take it the wrong way? Why would he behave that way towards me? Had I been assaulted? I was embarrassed that I hadn't told him to get f***cked or slapped him or done something more I just froze and and didn't know how to get out of there. I was worried about by new role I had taken on I loved my job.

1. The conduct set out in Complaint 7 shows an abuse of Mr Hill's power at the workplace over a significantly less powerful colleague. Mr Hill was a senior registered nurse providing services to the Nowra Private Hospital at a critical time, when it was trying to meet an accreditation deadline. The difference in his organisational influence when compared with that of Person G, an administrative worker, was stark. This led Person G to be concerned that she might not be believed; commendably, in fact, the managers at Nowra Private Hospital took immediate and appropriate action as soon as they became aware of the incident. Person G describes her understanding of the way in which Mr Hill was generally perceived and her perception of Mr Hill's relative value and power in the workplace in these terms:

"Frank is charismatic, everybody loved him, and he had come to the hospital to save us during the accreditation. I did not think anyone would believe me ..."

1. The behaviour alleged in Complaint 7 fell significantly below the standard expected of a registered nurse and was unethical in that he breached the Nursing and Midwifery Board of Australia Code of Conduct as of March 2018.
2. The applicable policy at the time of the incidents concerning Person G was the Ramsay Health Care Discrimination, Bullying, and Harassment Policy, which was in effect from September 2018. Considering the unchallenged description provided to the Tribunal of each incident, the incidents fall squarely within the definitions of sexual harassment under that policy. Accordingly, we consider Mr Hill's actions toward Person G to be improper and unethical as they were in breach of the Ramsay Health Code of Conduct.
3. Consequently, we find that Mr Hill's conduct in respect of each of the incidents particularised in Complaint 7 gives rise to a finding that he engaged in unsatisfactory professional conduct.
4. Having regard to the above matters, we find that the subject matter of this aspect of the Amended Complaint is proven to the requisite standard: National Law, s 149.

1. The HCCC particularises Complaint 8 as follows:

Particular 8.1. On 15 March 2022, at about 9:00am or soon after, in the ICU at Wollongong (Public) Hospital, the practitioner unnecessarily touched Person H by putting his hand on her shoulder and then sliding his hand down her back diagonally towards her waist.

Particular 8.2. On 15 March 2022, at about 11:50am, in the ICU at Wollongong (Public) Hospital, the practitioner unnecessarily touched Person H by taking her hand and placing her hand on her bottom

Particular 8.3. The practitioner's conduct in particular's 8.1-8.2 is contrary to clause 4.1.3 of the NSW Health Code of Conduct in that it constitutes harassment (including sexual harassment) of Person H.

1. The matters alleged in Complaint 8 took place a few weeks after the conduct set out in Complaint 7. We note that, in the evidence before the Tribunal, in February 2022, Mr Hill had requested that Wollongong Hospital increase his hours there to allow him to work full time. In completing the paperwork to return to full-time work, Mr Hill did not disclose to the Local Health District that he was the subject of a complaint at the hospitals operated by Ramsay Health Care. We consider that failure to disclose shows a material lack of candour.

1. At the relevant time, Person H was employed as a casual cleaner at Wollongong Hospital. She was then 18 years old.
2. Person H provided a written statement and took part in a recorded interview, the transcript of which was before us. A file note prepared by Person H's manager at the time was also in evidence, recording Person H's initial report and the manager's follow-up.
3. The Tribunal had before it the transcript of Mr Hill's evidence before the Nursing and Midwifery Council, s 150 Proceedings at which he denied being involved in any of the incidents forming Complaint 8.
4. The Tribunal also had the report from the investigation conducted by the Local Health District. In that report, Mr Hill was recorded as having explained that he had seen a mark on Person H's trousers and had tried to explain that to her. Specifically, he stated that:

"I saw her doing something with her cleaning trolley or something. I'm not sure what she was doing., and I noticed she had a white mark on the upper side of her left, of her right leg. And I said 'Oh you must've sat on something, you've got a white mark there.' Never mentioned her bum or anything like that, 'cause it was on the upper right leg. And I turned, had my back to her ..."

1. Person H's recorded record of interview with the Local Health District was attached to her witness statement. In that interview, Person H succinctly sets out the relevant events in summary form in the following terms:

"I was in ICU and there was a male nurse working in the station right next to my cleaning point. At about 9 o'clock, just after breakfast, I came in and he walked past me and he put his arm around my shoulder like he was trying to hug me or something and then I just walked away 'cause I felt a bit uncomfortable then. And then a couple of hours later, I was passing him in the corridor and he had a blanket in his hand and he tried to playfully hit me with it, which I thought was a bit odd, so then I just kept on walking. And then, about 11:30 he came up to me while I was changing the bin outside my cleaning point and he said to me 'you have something on your bum' and I went to my cleaning point because there's a little mirror in there and I looked and I said 'well, no, I don't, its fine', and then he just followed me into the cleaning point, got my hand and put it on my own bum and I just walked out straight away and went to the bathroom."

1. The Local Health District suspended Mr Hill's employment with pay while it conducted its investigation. By April 2022, the Local Health District had concluded its investigation and was satisfied that three incidents described by Person H were sustained.
2. The Local Health District investigation went into significant detail in weighing the opposing accounts provided to it by Mr Hill and Person H concerning the conduct now forming the particulars to Complaint 8. The Local Health District concluded, and we agree, that Person H's account of what occurred should be preferred over Mr Hill's account to the extent the two accounts diverge. Person H's account is preferred because of the way in which she immediately reported the conduct to her manager, the fact that she had no previous interactions with Mr Hill before the day on which the conduct occurred, and hence no motivation, positive or negative, to make a false complaint or embellish what occurred. We find further support for that position, to a limited extent, in the statements by Person H's manager, who observed how shaken Person H was when reporting Mr Hill's conduct to her.

The first incident concerning Person H, Particular 8.1

1. The first incident particularised at 8.1 of Complaint 8 concerns the action by Mr Hill of putting his arm around Person H's shoulder. In her record of interview, which is attached to her statement, Person H goes on to explain that:

He walked past me and it was like he was trying to hug me, like he put his hand on my shoulder while he was still slowly walking past and his hand slid down my back diagonally"

1. Person H stated that this interaction lasted a few seconds.
2. In her interview, Person H also stated that it was not until Mr Hill "playfully" flicked her with a blanket that her concerns about his behaviour toward her came to the front of her mind. The flicking incident does not form part of any complaint in these proceedings. It has not been considered other than as context to Person H's reaction and reporting of the two incidents particularised in Complaint 8.
3. There was no work-related reason for Mr Hill to touch Person H in this way. The manner in which Person H was touched was unnecessary and sexual.

The second incident concerning Person H, Particular 8.2

1. The second incident, particularised at 8.2 of Complaint 8, involved Mr Hill and Person H interacting over a mark on Person H's trousers. On Person H's account (which, as we note above, we prefer of that of Mr Hill), Mr Hill pointed to a mark on her trousers on top of her buttocks, Person H went to her pod where she could look herself over with a mirror and she then found Mr Hill had followed her there, before he grabbed her hand and placed it on the mark.
2. We are satisfied that this touching was also unprofessional and unnecessary.

1. In March 2022, Person H was a very young employee who was working in a role that was appreciably less powerful than that occupied by Mr Hill, a registered nurse working in the intensive care unit. Person H did not know Mr Hill, she did not know of any of the other allegations against him, and it appears neither of them had encountered each other before the incidents described in Complaint 8.
2. There was no reason for Mr Hill to touch Person H in the way she described, and in the manner that we are satisfied occurred, by touching her, putting his hand on her shoulder before sliding his hand down across her back towards her waist. There was absolutely no reason at all for Mr Hill to follow Person H back to her pod, grab her arm and place it on her buttock.
3. The consequences of the conduct particularised in Complaint 8 were significant for Person H. She was shaken and made to feel unsafe in her workplace. As a young person, at the start of her career, her treatment by Mr Hill was totally unacceptable.
4. We are satisfied that Person H was subjected to the conduct particularised in Complaint 8 and that the conduct amounted to sexual harassment. Tellingly, the kind of conduct Mr Hill engaged in toward Person H, touching her, trying to put his arm around her and touching her bottom, was the same kind of conduct described in the warning issued to him in February 2021 by Wollongong Private Hospital after the complaints concerning Persons A, B and D. The Tribunal is able to have regard to all the evidence before it when making any finding on a question of fact in relation to the conduct of a practitioner and any finding that the practitioner has engaged in unsatisfactory professional conduct: National Law, Sch 5, cl 6(3), though where we have found each allegation to be proven it is unnecessary to rely on that provision_._
5. We find that Person H, as a result of her interactions with Mr Hill, was left feeling shaken and upset. She stated that she was trying to process what had happened before approaching her team leader, bursting into tears while she made her report. Her team leader moved her to another area, and her mother collected her from work that day. In explaining why she felt so uncomfortable with Mr Hill's conduct, Person H told the Local Health District investigation:

Just 'cause I am an 18-year-old girl and that shouldn't happen, especially in a hospital, and you wouldn't expect that from an ICU nurse, so it's just a bit, yeah, makes me feel sick.

1. The behaviour particularised in Complaint 8 fell below the standard expected of a registered nurse and was unethical in that he breached the Nursing and Midwifery Board of Australia Code of Conduct as of March 2018.
2. We consider that the conduct, as found, amounted to sexual harassment of Person H and was in breach of the Nursing and Midwifery Board of Australia Code of Conduct as of March 2018, as we have set out at paragraph 29 above.
3. Further, the conduct particularised in Complaint 8 was in breach of the NSW Health Code of Conduct as set out at paragraph 31 above which obliges all NSW Health staff not to harass other staff, and the NSW Health Policy Directive: Prevention and Management of Bullying, set out at paragraph 33 above.
4. Consequently, we find that Mr Hill's conduct in respect of the incidents particularised as Complaint 8 gives rise to a finding that he engaged in unsatisfactory professional conduct.
5. Having regard to the above matters, we find that the subject matter of this aspect of the Amended Complaint is proven to the requisite standard: National Law, s 149.

1. As we have noted above, we are satisfied that, in relation to each of the first eight complaints, Mr Hill's conduct constitutes unsatisfactory professional conduct. In short, Mr Hill engaged in improper or unethical conduct relating to the practice of nursing.
2. By Complaint 9, the HCCC seeks that the Tribunal make a finding that Mr Hill is found guilty of professional misconduct. We have set out the relevant principles concerning the making of such a finding at paragraphs 19 to 21 above. We note in particular that the National Law, s 139E(b) provides that where there has been 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 suspension or cancellation of the practitioner's registration.
3. Having regard to the statutory definition of professional misconduct, and in particular the National Law, s 139E(B), as well as the relevant authorities as they apply to our findings above, we consider that the totality of Mr Hill's conduct is sufficiently serious to amount to professional misconduct.
4. Having regard to the above matters, we find that the subject matter of this aspect of the Amended Complaint is proven to the requisite standard: National Law, s 139E.

1. By its Amended Complaint, the HCCC seeks the following specific orders:

(1) An order under section 149C(4)(a) of the National Law that if the practitioner were still registered, the Tribunal would have cancelled his registration (pursuant to section 149C(1)(b) of the National Law because the practitioner is guilty of professional misconduct;

(2) An order under section 149C(4)(b) of the National Law that he is disqualified from being registered in the health profession for 3 years from the date of the decision;

(3) An order under section 149C(4)I of the National Law that the National Board is required to record the fact that if the practitioner were still registered, the Tribunal would have cancelled his registration in the National Register kept by the Board;

(4) An order under section 149C(5) of the National Law that the practitioner is prohibited from providing a health service (as defined in section 4 of the Health Care Complaints Act 1993 (NSW)) permanently unless and until the Tribunal makes a reinstatement or other order in relation to the practitioner under sections 163B of the National Law;

(5) An order under section 149C(7) of the National Law that an application for review of orders 3 and 5 may not be made until 3 years from the date of these orders;

(6) An order under clause 13 of Schedule 5D of the National Law that the practitioner pay the HCCC's costs as agreed or assessed.

1. In relation to the proposed orders, one to five inclusive, we are satisfied, having regard to the totality of the evidence and our findings set out above and considering the authorities discussed in these reasons, we consider that those protective orders are appropriately made in this instance. We address our reasons concerning cancellation and "would have cancelled" orders, the appropriate term of disqualification and non-review, and lastly, the imposition of a prohibition order immediately below.

Consideration of protective orders, including that the Tribunal would have cancelled Mr Hill's registration, if he was still registered

1. The jurisdiction of the Tribunal is primarily protective, not punitive: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637.
2. Moreover, the Tribunal is mindful to take only action necessary for the proper protection of the community: Prakash v Health Care Complaints Commission [2006] NSWCA 153 [101] per Basten JA.
3. The objective of protecting the health and safety of the public is not confined to protecting patients or potential patients from the conduct of a particular practitioner. Instead, the objective is achieved by ensuring the public is protected from similar misconduct by practitioners and by upholding public confidence in the standards of the profession. The objective is further achieved by setting and maintaining the standards of the nursing profession, which requires, as here, that the registration of a practitioner who is not fit to practice by reason of being guilty of serious misconduct. Denouncing such conduct is intended to operate as both a specific and a general deterrent. It maintains public confidence by signalling that those whose conduct fails to meet the required standards will not be permitted to practice: Health Care Complaints Commissioner v Do [2014] NSWCA 307 at [35].
4. The discretion to cancel a practitioner's registration or make a "would have cancelled" order arises where the Tribunal, as here, has made a finding of professional misconduct: Health Care Complaints Commissioner v Karalasingham [2007] NSWCA 267 at [67]. Whether the conduct is sufficiently serious to warrant cancellation (or, as here, make an order that the Board record that registration would have been cancelled) is a matter of degree and judgment that requires consideration by the Tribunal of any evidence of remorse and insight demonstrated by the practitioner: Sabag v Health Care Complaints Commission [2001] NSWCAT 411 at [82].
5. In that regard, we consider that Mr Hill, as an experienced registered nurse of more than 22 years in professional practice, would have known his behaviour toward each of the persons referred to above was highly inappropriate. Mr Hill's misconduct was repeated and sustained over the years. It affected multiple other staff members and had adverse consequences on their personal and professional well-being. We have found in some instances that those adverse consequences increased the risk of poor patient care and created an unacceptable risk to the public. While there is not a single performance evaluation contained in the material before the Tribunal, the seniority of the positions held by Mr Hill at each relevant time indicates that he was a person who had a significant amount of power and control over more junior staff. We note, for example, that Mr Hill was the most senior nurse at the hospital when the complaints concerning Persons B, C and D occurred. Moreover, his conduct as found was not a one-off or momentary error of judgment; it was sustained and repeated across years and over three different workplaces.
6. We find that Mr Hill's misconduct was primarily characterised by inappropriate conduct towards junior or subordinate female staff members. We consider the fact that it was mostly junior or subordinate female staff who were subjected to his misconduct to make that conduct all the more egregious. That is particularly so, considering Mr Hill's status as a senior nurse and the reliance placed on him when he occupied positions of seniority or management or where he was tasked to undertake important roles within the workplace.
7. In this case, we consider that it is Mr Hill's registration is required to be cancelled or an order under s 149C(4)I in order to:

(1) Denounce his conduct, being a repeated pattern of treating female colleagues with disrespect, touching them inappropriately in the workplace, in several cases touching in an overt and inappropriately sexual manner, and in other instances entering into inappropriate and unwelcome discussions concerning their personal lives;

(2) Deter other practitioners from similar misconduct; and to

(3) Uphold the high professional standards of the nursing profession.

1. In further support of the need for protective orders, the HCCC submitted that nursing workplaces, in particular, should be free of the kind of conduct engaged in by Mr Hill because that kind of conduct is not only unacceptable but contrary to long-established codes of conduct aimed at eradicating such conduct. The fact that several of the persons subjected to Mr Hill's unsatisfactory professional conduct were also nurses engaged in patient care put at risk the ability of those nurses to care for their patients safely and created a risk that those more junior nurses might not escalate clinical concerns as required. We observe that staff who are subjected to sexual harassment and bullying may be unlikely to be fully concentrating on the core responsibilities of patient care. We consider this to be a serious risk arising from Mr Hill's conduct. While there was no evidence that such risk materialised in this case, the fact that there is an increase in the risk to patient care created by Mr Hill's conduct is, on our view, absolutely unacceptable.
2. We also consider that Mr Hill's conduct posed a real risk of harm to the persons subjected to his conduct. In particular, we note that Person A felt shocked and uncomfortable by his conduct towards her, Person B felt uncomfortable, Person D stopped taking weekend work to make sure she could avoid Mr Hill and further stated she was scared to confront Mr Hill for fear that her casual shifts at the hospital would be cancelled where Mr Hill held the Operations Manager role. Person E felt shocked, and her mental health suffered as a result of Mr Hill's conduct. The mental health of Person F was affected by Mr Hill's conduct. Person G was made to feel unsafe in her workplace, and her mental health was affected as a result of Mr Hill's conduct toward her, which required her to take leave from a job she loved. Lastly, Person H had been visibly distressed and felt physically sick by Mr Hill's conduct toward her.
3. The HCCC submitted that Mr Hill has demonstrated a lack of insight into his conduct. We have considered every statement made by Mr Hill in the evidence before the Tribunal. Mr Hill, as noted above, refused to participate in the proceedings and declined to appear before the Tribunal at the hearing. The s 150 hearing had the opportunity to observe Mr Hill in relation to Complaint 8, and he appeared to lack insight and had not reflected adequately on his conduct. That observation accords with the rest of the material before the Tribunal, including recorded statements, interviews and correspondence, in which Mr Hill showed limited insight into his behaviour, and in which he consistently failed to reflect on the impact his behaviour had on his colleagues. From this, we have observed a consistent pattern of denial, obfuscation, and minimisation of his conduct.
4. The seriousness of Mr Hill's observed conduct is further compounded by the fact that, throughout his career, Mr Hill had been counselled about maintaining appropriate professional boundaries we agree with the findings of the s 150 hearing that Mr Hill may not have taken meaningful steps to adopt practices and behaviour that accord with the relevant Code of Conduct, directives and policies.

Consideration of the proposed period of disqualification and non-review

1. The HCCC has sought a three-year period in which Mr Hill is disqualified and a further order requiring that Mr Hill may not apply for review of the cancellation or would-have-cancelled orders for three years.
2. The fixing of a period of disqualification and the fixing of a period of non-review is directed toward the protection of the health and safety of the public: National Law, ss 149E, 163A.
3. Registration ensures the safety of the public by ensuring that only those practitioners who are suitably trained and qualified to practice competently and ethically are registered: National Law, s 3(2)(a). The inherent purpose of the Tribunal exercising its discretion to set a period of disqualification and non-review is twofold. Firstly, the disqualification, in particular, is a clear message of denunciation of a practitioner's conduct. Secondly, the period of disqualification and non-review (or disqualification or non-review) is a prediction, based on the evidence available, of the minimum period in which the practitioner who is subject to such orders will be required to rehabilitate themselves. Relatedly, and consistent with the protective rather than punitive nature of the orders, a practitioner should be given the possibility, with strict processes applying, to return to the profession at a later time.
4. The HCCC submits, and we agree, that a three year period is needed to:

(1) Denounce Mr Hill's conduct as found;

(2) Send a clear message to other practitioners that harassment and bullying, including sexual harassment in the workplace creates risks to staff and the public and is not to occur; and

(3) Allow Mr Hill some further time to demonstrate whether he has gained any insight into his behaviour, to address any risk factors that might have led to his misconduct, to complete any further relevant education or training and to demonstrate that his character is reformed.

1. Having determined that Mr Hill's registration would have been cancelled if he had remained registered, the Tribunal has also exercised the discretion to make a prohibition order under the National Law, s 149C (5) because it is satisfied that Mr Hill poses a substantial risk to the health of members of the public. The relevant principles concerning the exercise of that discretion are set out above at paragraph 24 above.
2. The effect of such an order is to prohibit Mr Hill from providing a "health service" permanently unless and until the Tribunal makes a reinstatement or other order.
3. The matters which we have had regard to exercising the discretion to impose a prohibition order on Mr Hill are as follows:

(1) In December 2011, Mr Hill received a formal warning concerning the second of the earlier complaints against him, in which he was invited to submit a reflective piece about his research and understanding of the Code of Conduct. In January 2012, Mr Hill stated that he was "fully aware" of the power and responsibilities associated with his role, and he assured the Local Health District that he would continue to "work towards a positive workplace culture". In March 2012, also in relation to that complaint, Mr Hill submitted a detailed reflective piece in which he stated he was "fully aware of my responsibilities with regards to the code of conduct, ethical behaviour and professional boundaries", further that he was "fully aware of the implications harassment has upon the victim, increased sick leave, burnout, poor recruitment and retention. I was event aware that is something went beyond the workplace and impacted on homelife, personal relationships and self-esteem." Mr Hill then cited research about the extent of female and male registered nurses experiencing sexual harassment and concluded that he understood that there was "no room for sexual harassment in the workplace" and assured the Local Health District of his strategy to avoid engaging with "co-workers other than work related events, avoid commenting about their appearance, or telling jokes, using profanity, or sexual innuendo, and avoid any discussions about sexually related matters". That was in 2012. Despite this apparent awareness, we have found that Mr Hill engaged in harassment of Persons A, B, C, D and E in the period between 2016 and 2020.

(2) In January 2021, Mr Hill received a formal warning concerning his behaviour towards Person E. He attended a meeting with Ramsay Health managers and provided a formal response weeks later in which he stated "I do not speak with staff about inappropriate things. I have two sisters and a ... daughter. I am fully aware of the issues with body image". Mr Hill was provided with a further written formal warning on 23 February 2021 concerning his conduct, that warning stated in part "Comments in the workplace of a sexual nature are not condoned ... Your communications and actions moving forward are to be appropriate at all times and any further reports or incidences of this nature may result in the termination of your employment." Despite these warnings, and Mr Hill's response, we have found that he went on to engage in the sexual harassment of Persons F, G and H.

(3) Mr Hill continued to harass and bully female staff sexually, notwithstanding that he had been issued with two formal warnings. In those circumstances, we have concluded he poses a substantial risk to the health of the public.

(4) Prior to becoming a registered nurse, Mr Hill worked as a residential care worker, a juvenile justice officer, a special needs vacation carer and a youth worker. In his submissions to the Tribunal sent by email dated 5 June 2024, he advised that he was now working in "a different industry and am committed to continue in the new industry until [his] retirement" but failed to specify what that industry was. We consider that there is, consequently, a high probability that, absent a prohibition order, Mr Hill may try to seek employment in contexts where there are young, female and vulnerable persons, such as in disability care or as an assistant in nursing.

1. Having regard to the above matters, the Tribunal is concerned to ensure that when a member of the public attends any healthcare setting, they are able to trust that the health professionals responsible for their care, whether registered or unregistered, will uphold ethical standards of behaviour and that they are safe. We cannot be satisfied that, absent the imposition of a prohibition order, this will occur,

1. The award of costs in matters such as this is discretionary: National Law, Sch 5, cl 13(1).
2. Costs are intended to be compensatory, and, as a general rule, costs should be awarded to the successful party in the absence of any disentitling conduct on its part: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]- [46]; Health Care Complaints Commission v CSM [2016] NSWCATOD 125 at [98].
3. Here, the HCCC has been required to bring proceedings arising from Mr Hill's misconduct. It has been successful in seeking every order it proposed, and there is no evidence of any disentitling conduct.
4. In the evidence before the Tribunal, the HCCC tendered a file note dated 6 June 2024, which recorded a telephone conversation between Mr Hill and Sam Fair of the HCCC. According to the file note, in the course of that call, Mr Hill asked about the costs order proposed by the HCCC and sought an explanation for why such an order was sought. We are satisfied from this file note that Mr Hill was aware that the HCCC was intending to seek an order for costs and that he has elected not to make submissions about this issue.
5. Accordingly, regarding proposed order six, regarding the application's costs, we are satisfied that it is appropriate that Mr Hill pay the HCCC's costs as agreed or assessed on the ordinary basis.

(1) The respondent, Francisco (Frank) Hill, is guilty of unsatisfactory professional conduct under the Health Practitioner Regulation National Law (NSW) (National Law), s 139B(1)(l) in relation to each of Complaints 1, 2, 3, 4, 5, 6, 7 and 8, particularised in the Amended Complaint dated 29 August 2024.

(2) The respondent, Francisco (Frank) Hill, is guilty of professional misconduct under the Health Practitioner Regulation National Law (NSW), s 139E.

(3) If Francisco (Frank) Hill were still registered, the Tribunal would have cancelled his registration pursuant to the Health Practitioner Regulation National Law (NSW), s 149C(4).

(4) The National Board is required to record the fact that if Francisco (Frank) Hill were still registered, the Tribunal would have cancelled his registration in the National Register kept by the Board pursuant to Health Practitioner Regulation National Law (NSW), s 149C(4)I.

(5) Pursuant to the Health Practitioner Regulation National Law (NSW), s 149C(4)(b), Francisco (Frank) Hill is disqualified from being registered in the health profession for three years from the date of these orders.

(6) Pursuant to Health Practitioner Regulation National Law (NSW), s 149C(7), Francisco (Frank) Hill may not seek review of Order 3 and Order 5 for a period of three years from the date of these orders.

(7) Pursuant to the Health Practitioner Regulation National Law (NSW), s 149C(5) Francisco (Frank) Hill is prohibited from providing a health service as defined in the Health Care Complaints Act 1993 (NSW), s 4 unless and until the Tribunal makes a reinstatement or other order in relation to the practitioner under Health Practitioner Regulation National Law (NSW), s 163B of the National Law.

(8) Pursuant to the Health Practitioner Regulation National Law (NSW), Sch 5D, cl 13, Francisco (Frank) Hill is to pay the costs of the Health Care Complaints Commission of and incidental to these proceedings as agreed or assessed under the Legal Profession Uniform Law Application Act 2014 (NSW), on the ordinary basis.

(9) Pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s64(a) and 64(c) respectively, the disclosure and the publication of the names and addresses of the witnesses set out in the Schedule attached to the Amended Complaint is prohibited, until further order of the Tribunal.

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.