Health Care Complaints Commission v Horton

Summary of Complaints

1. The Commission makes four complaints against the Respondent. Complaint 1 concerns unsatisfactory professional conduct, being messaging, on Facebook Messenger, and behaviour towards Colleague A, inappropriate behaviour towards Colleague B, and inappropriate messaging, on Facebook Messenger, towards Colleague C in breach of various codes of conduct between the period January 2020 and November 2021.
2. Complaint 2 is that the Respondent is guilty of professional misconduct under s 139E of the National Law, in that he engaged in one or more instances of unsatisfactory professional conduct, namely that set out in the particulars to Complaint 1, which, considered together, are sufficiently serious to justify the suspension or cancellation of the Respondent's registration.
3. Complaint 3 relies on s 144(a) of the National Law and complains that the Respondent has been convicted of a criminal offence in New South Wales.
4. Complaint 4 is that the Respondent is otherwise not a suitable person to hold registration in the practitioner's profession, as provided for in s 144(e) of the National Law.

Procedural History

1. On 19 January 2024, the Respondent's Solicitor wrote to the Commission advising that he had discussed the matter with his client and was instructed to convey an in-principle position to the Commission. Subject to what the Commission provided by way of evidence, noting the Respondent cannot consent on the basis of the complaint, the Respondent was highly likely to consent or not oppose the proposed orders sought by the Commission except as to costs.
2. The Solicitor advised that the Respondent's position was clear, namely, he is in a substantially difficult financial position and has significant debts to family members as a result of the criminal proceedings previously brought against him. He earns less than he did previously, he has four young children across two relationships and has mortgage debt as well as all the usual costs of living.
3. The letter continued that with the above in mind, the Respondent was asking the Commission to remove the order for costs sought in the application. In the event that the order was not withdrawn, the Solicitor advised that he suspected that the issue will remain the only point of contention and he requested that instructions be sought on the contents of his letter, particularly the claim to costs. The Respondent requested that in light of the concern about costs that the Commission restrict work done to the bare essentials, noting there is unlikely to be any resistance.
4. On 30 January 2024, the Commission wrote to the Respondent's Solicitor in relation to the first directions hearing due to be heard on 2 February 2024 and proposed a timetable for the filing of material and for the matter to be set down for hearing for two days on a date to be allocated. The Commission did not in any way engage with the correspondence from the Solicitor of 19 January 2024.
5. On 31 January 2024, the Respondent's Solicitor again approached the Commission by email in relation to the question of costs that he had raised and the fact that there had been no response from the Commission. It was proposed that although the rules of evidence did not strictly apply, the Respondent proposed agreed facts to be drawn up and to allow those to be relied upon for the purposes of the proceeding. The Solicitor stated that this would allow the matter to be dealt with in a manner that is expeditious and cheap for both the Commission and his client. It was pointed out that a review of the legislation did not preclude this approach and arguably encourages it because of the expeditiousness and reduction in costs and formality.
6. It was also suggested that, if it would assist, admissions could be made pursuant to s 184 of the Evidence Act 1995 (NSW) as formal admissions following advice. The Solicitor encouraged the Commission to adopt this practice as he was concerned not only about the Commission's costs but those of the Respondent. Once again, it was pointed out that the Respondent had significant financial obligations. The correspondence to the Commission concluded that the Solicitor hoped that the parties could resolve the issue as soon as possible.
7. It appears that, notwithstanding this request, the Commission did not engage with the Respondent's Solicitor in relation to his urging upon it to adopt the approach foreshadowed.
8. On 2 February 2024, the directions hearing referred to above was held in the Tribunal. The Commission resisted a course of seeking to arrive at an agreed position through any admissions the Respondent was prepared to make and/or facts to be agreed. As a result, a timetable was set for the filing of materials by the parties.
9. On or about 15 February 2024, the Respondent, nevertheless, provided to the Commission a document signed by the Respondent and by his Solicitor under the heading "Admissions pursuant to s 184 of the Evidence Act 1995 (NSW)" ("the Admissions document").
10. The Admissions document closely follows the contents of the Complaints and sets out that for the purposes of the hearing in the Tribunal commencing on the date set down at the directions hearing, namely, 12 May 2024, the Respondent admits all the matters of fact pleaded. There was then addressed each of the facts set out in the Complaint, starting with the background, and then each element of the complaints and particulars to the Complaints individually were admitted.
11. The Respondent admitted Complaint 1 that he was guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law, in that he engaged in improper or unethical conduct relating to the practice or purported practice of nursing. This was followed by an admission of Particulars 1 to 8 of Complaint 1 (see paragraphs 7 to 15 of the Admissions document) including that the Respondent's admitted conduct was in breach of the codes of practice particularised in the Complaint.
12. The Admissions document next addressed Complaint 2 and that the Respondent concedes and admits that he is guilty of professional misconduct pursuant to s 139E of the National Law by engaging in more than one instance of unsatisfactory professional conduct, that when the instances are considered together, they amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the Respondent's registration.
13. For the purposes of that Complaint the Respondent reaffirmed the admissions made in relation to Complaint 1 insofar as that was necessary.
14. Complaint 3 was then admitted and further particularisation was provided of the prosecution, and the outcome of an appeal to the District Court which reduced the penalty, for the offence of the Respondent of "use carriage service" to send indecent material to a person under 16 years contrary to s 474.27A(1) of the Criminal Code Act 1995 (Cth). Details were provided that the penalty imposed was a recognisance under s 20(1)(b) of the Crimes Act 1914 (Cth) in the sum of $1,000.00 to be of good behaviour for three years with supervision by Community Corrections for two years and to undertake any treatment as directed.
15. In respect of Complaint 4 the Admissions document recorded that for the following reasons the Respondent is otherwise unsuitable to hold registration in the Respondent's profession pursuant to s 144(e) of the National Law, namely, he has psychosexual and behavioural problems that are clinically significant. At the relevant times, these problems manifested in repetitive and intense sexual impulses and frequent inappropriate sexualised behaviours, including in the workplace communications and conduct as set out in the earlier part of the document. The particulars set out in the earlier part of the Admissions document were readmitted for the purposes of this complaint.
16. In the Admissions document, the Respondent then acknowledged that he had been advised by his legal representative about the making of those admissions and understood the admissions would go to proof of elements concerning the Complaints made by the Commission.
17. The Admissions document then contained a notation that the Respondent consents to the making of the relevant orders sought by the Commission. He was therefore consenting to cancellation of his registration with a non-review period of two years and an order that he be prohibited from providing a health service with a non-review period of two years.
18. The Admissions document concludes that the Respondent seeks an order that each party bears their own costs.

Tribunal's Task

1. The first step in the proceedings is to determine whether the Commission has established the facts alleged in support of its Complaints to the satisfaction of the Tribunal on the balance of probabilities (Health Care Complaints Commission v Grygie) (Termination Application) [2020] NSWCATOD 53.
2. In view of the nature of the allegations, we are required to apply the requirements set out in Briginshaw v Briginshaw (1938) 60 CLR 336, namely that we will find that a fact has been proven to the requisite standard only when we feel an actual persuasion of the existence of that fact because evidence of sufficient probative force has been adduced.
3. The next step is whether such facts as are found to have been proved establish unsatisfactory professional conduct pursuant to s 139B of the National Law, and, if so, whether such conduct is sufficiently serious to justify suspension or cancellation so as to amount to professional misconduct pursuant to s 139E of the National Law (Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [31] per Kirk JA). Accordingly, the Respondent's consent to the orders sought is not the end of the matter. The Tribunal is still required to be satisfied for itself that the facts proven establish the unsatisfactory professional conduct and professional misconduct.

Evidence Tendered

1. The Commission tendered extensive agreed facts arrived at after discussion between the parties. The Commission further sought to tender up to 345 pages of the over 800 pages of documents relied upon by it and as filed and served on 24 April 2024. We questioned the Commission as to the relevance of that material given the Admissions document and the extensive agreed facts. It was submitted that it was necessary to tender that material so that the Tribunal would have the underlying material supporting the agreed facts. The Tribunal did not accept that approach. Given that the facts were agreed, and they had also separately been formally admitted, the Tribunal was of the view that it was not necessary to receive and review material which may be the source of the admissions or facts agreed. The tender was rejected.
2. The Commission did, however, seek to further tender, without objection, the forensic psychiatrist report of Dr Jeremy O'Dea of 21 September 2022 concerning an assessment of the Respondent for the purpose of the criminal proceedings instituted against him.
3. The Respondent tendered a bundle of documents including the early correspondence between the parties to which we refer to above, the Admissions document, correspondence concerning the request by the Commission for the Respondent to be further examined by another medical practitioner, which was opposed, correspondence in relation to the Respondent's debt position owed to family members, and a letter of 25 April 2024 by the Respondent's psychologist who has been treating the Respondent since 4 August 2022.

Agreed Facts

1. We set out below the agreed facts (footnotes omitted). 1. On 15 December 1986, the Respondent was born. He is currently 36 years of age. 2. From 2003 to 2009, the Respondent worked at Great Lakes Nursing Home as an Assistant in Nursing. 3. In 2009, the Respondent obtained a Bachelor of Nursing from Charles Sturt University. 4. From 2009 to 2010, the Respondent worked at Broken Hill Base Hospital as a Registered Nurse (Full Time New Graduate). 5. On 21 July 2009, the Respondent was registered as a Registered Nurse by the Nurses and Midwives Board of New South Wales. 6. In 2010, the Respondent obtained employment with Orange Health Service as a Registered Nurse on a full-time basis. Orange Health Service is a public hospital located near Orange, New South Wales and is operated by Western NSW Local health District. 7. In 2011, the Respondent obtained a Graduate Certificate in Critical Care Nursing from the University of Tasmania. 8. In October 2015, the Respondent acted as Nurse Unit Manager for 3 weeks in the Intensive Care Unit at Orange Health Service. 9. In July 2016, the Respondent acted as Nurse Unit Manager in the Coronary Care/Stroke Ward at Orange Health Service for 2 weeks. 10. In July 2018, the Respondent obtained employment with Orange Health Service as an Acting After Hours Clinical Nurse Consultant on a full-time basis. In this position, the Respondent had responsibility for mentoring and educating nursing staff (including Colleagues A, B and C) at Orange Health Services. The Respondent held this position until March 2022. 11. Colleagues A, B and C were, at the time of the relevant conduct, either new graduate nurses or had recently commenced employment at Orange Health Service. 12. Facebook Messenger is an instant messaging app where users can send text, photos, videos, audio and files. 13. Between January 2020 and April 2020, the Respondent sent to Colleague A inappropriate messages on Facebook Messenger, including: 1. On 24 January 2020, the Respondent sent a message to Colleague A saying: 'Love your profile pie x you look really stunning'; 2. On 24 January 2020, the Respondent sent a message to Colleague A saying: 'So can I just say ... l kind of love seeing you at work'; 3. On 24 January 2020, the Respondent sent a message to Colleague A saying: 'So what time do you normally go to bed'; 4. On 28 March 2020 the Respondent sent a message to Colleague A saying: 'You strike me as a pretty active person'; 5. On 28 March 2020 the Respondent sent a message to Colleague A saying: 'Have you explored many walks around the area'; 6. Continuing to ask which specific walking routes Colleague A had taken. 1. On 25 January 2020 at 10:55am, Colleague A sent a message over Facebook Messenger to the Respondent saying: "l don't mind you messaging, but as colleagues keep it professional. (Emoji omitted)". 2. On 11 April 2020, the Respondent engaged in inappropriate behaviour towards Colleague A in the workplace by: 1. Asking Colleague A to attend the medical ward 'fishbowl' room alone to conduct training; 2. Speaking to Colleague A about his desire to have a sexual relationship with her; 3. Telling Colleague A that he was struggling to accept that she did not want a sexual relationship with him; 4. Saying words to the effect of 'I am in an open relationship. I have different values to other people, and I want to take things further'; 5. Telling Colleague A that he did not want a relationship and was only interested in having sex. 1. By his conduct in paragraphs 13 and 15 above, the Respondent breached: 1. Clause 1.2 and 3.4 of the Nursing and Midwifery Board of Australia Code of Conduct effective from March 2018; and 2. Clause 4.1 and 4.3 of the NSW Health Code of Conduct 2015. 1. Between around May 2021 and June 2021, the Respondent engaged in inappropriate behaviour towards Colleague B, including: 1. Asking Colleague B to meet up with him outside of work while they were alone in the medication room and the practitioner was standing in front of the door of the medication room; 2. Requesting that Colleague B be his 'friend' via the social media platform Facebook; 3. Asking Colleague B to have a glass of wine with him; 4. Sending Colleague B unprofessional and inappropriate messages on Facebook Messenger, including: 1. 'I'd love to have a glass of wine with you'; 2. 'It'd be nice to have a drink together'; 3. 'I would like to find out exactly how naughty you are underneath'; 4. 'I would like to see you dancing to the song 'wicked games' with a black thong and garter belt'. 1. By his conduct in paragraphs 13 and 15 above, the Respondent breached: 1. Clause 1.2 and 3.4 of the Nursing and Midwifery Board of Australia Code of Conduct effective from March 2018; and 2. Clause 4.1 and 4.3 of the NSW Health Code of Conduct 2015. 1. On or about 13 November 2021, Colleague C attended a school reunion at an establishment in Orange. The Respondent also attended that event. During the reunion, the Respondent told Colleague C that he would like to stay and have drinks with Colleague C but that he had to leave. 2. On 15 November 2021, the Respondent sent Colleague C inappropriate messages on Facebook Messenger, including: 'I would have loved to come over and have a drink with you on your couch". 3. On 15 November 2021, a second message was sent to Colleague C via Facebook Messenger. The Respondent deleted the message as he considered the message to be 'suggestive and inappropriate'. 4. By his conduct in paragraphs 20 and 21, the Respondent breached clause 4.1 of the Nursing and Midwifery Board of Australia Code of Conduct effective from March 2018. 5. On 19 December 2021, investigators from the Child Exploitation Internet Unit were conducting investigations on an online chat website called "Chat IW" using the assumed online identity ("AOI") of a 14-year-old female. 6. Chat IW is a social networking site that offers free chat with other people via the internet. ChatIW allows users to select a username, age and location when they enter a chatroom. There is no central chat hub rather a user has a list of all the other users available and can privately message these users. 7. The AOI was sent a private message from the Respondent using the username 'princesspounder'. The profile noted he was 35 years old from New South Wales, Australia. During this conversation which occurred on 19 December 2021 on the platform Chat IW, the following occurred: 1. The Respondent identified himself as a 35-year-old male living in Central West NSW and the AOI identified herself as a 14-year-old female. 2. The Respondent introduced himself as 'James'. 3. The Respondent asked and was informed of the AOl's purported age and told 'ahh ok... bit too young'. 4. After the AOI gave her name the Respondent stated, 'it's unfortunate your'e not just a bit older' to which the AOI replied 'oh why is that?'. The Respondent then wrote: 'well you see really nice.... I think it's nice to get to know you a lot more, if you were a few years older that could be a possibility'. To this the AOI asked 'wot do you mean?' and the Respondent replied "I'd be able to treat you like a princess". 5. The AOI then said: "I would like 2 be treated like a princess" "how come I would have to be older?" to which the Respondent replied, "you're underage", "if you were sixteen... I'd love to bend you over in your netball uniform" "but you're not". 6. When the AOI pressed the Respondent further and asked why the Respondent would bend her over, he replied: "Haha.... you'd find out ... " 7. The AOI asked why the Respondent would not tell her and was it bad and he replied "No ... definitely not bad... would definitely have you make some noises though'. 8. The AOI then stated she was "so confused' to which the Respondent responded "I'd fuck you on all fours". 9. The AOI informed the Respondent of her sexual inexperience to which the Respondent replied "No ... well you're still too young" "But this is inappropriate" "So we better stop" then asked "are you curious about it?" 10. The AOI stated "idk. I've never done anything b4" "I wouldn't know what to do". 11. The Respondent said to the AOI "No... i suppose not". 12. The AOI asked if that is bad to which the Respondent replied "No ... you have plenty of time to explore" then afterwards said "But I'm going to leave it there". 13. The Respondent then told the AOI "come and see me when you turn sixteen haha". 14. The AOI stated that the Respondent is a nice person to talk to. 15. The Respondent replied, "so are you" and asked the AOI if she had Snapchat and told her it would be nice to chat to her again. 16. The AOI replied saying that she didn't as her Mum didn't allow her to have it, to which the Respondent replied "fair enough". 17. After the AOI asked why, the Respondent stated "Oh I was thinking it would be nice to chat again" "But all good, no pressure". 18. The AOI suggested that they chat on Skype as an alternative to which the Respondent replied, "you're allowed skype but not Snapchat?" and then "I think it's prob a bit inappropriate anyway tbh". 19. The AOI stated "I thought you wanted to talk" to which the Respondent replied, "You're underage … and it's not ok for a guy my age to be chatting to you online" "So I think sadly we need to part ways" "as lovely as you are" "take care". 20. The AOI then sent a sad face emoji and the Respondent responded by saying "Oh Bub" "I don't want to" and he and the AOI exchanged Skype contact details so they could chat on Skype. 21. When the Respondent first found the AOI Skype username, the AOI asked what his Skype "addy" [address] was, to which the Respondent replied "I just don't feel comfortable with this [AOI name]". 22. The AOI then stated, "Well don't think you rlly looked me up" "cause my Skype works" and the Respondent responded saying "l did" and then sent the friend request. 1. The conversation then moved to the Skype application. Skype is an application that uses the internet as a gateway to allow two or more computers to connect directly with one another and communicate. The program allows uses [sic] to chat with one another in real time using either typed chat, voice calls using a microphone, or video calls using a webcam. If users know another person's identity, they can add the person to their list of friends and can send a notification to people using their online identity inviting them to chat. The Respondent's Skype account displayed the username 'James'. 2. On 19 December 2021, on Skype, the following took place: 1. The Respondent told the AOI 'Happy to chat as long as we keep it strictly of PG'; 2. He told her he was a nurse and lived in Orange. 1. On 20 December 2021, the AOI attempted to engage the Respondent in conversation on Skype but the Respondent did not reply. 2. On 29 December 2021, the AOI attempted to engage the Respondent on Skype. A short conversation about video games and Christmas occurred. The conversation was innocuous. 3. On 30 December 2021, 4 January 2022 and 7 January 2022 the AOI attempted to strike up a conversation on Skype. Each time the Respondent did not reply. 4. On 1 February, Colleague B sent a text message to the Respondent requesting that he stop messaging her and to never speak to her about non-work-related things again. 5. On 5 February 2022, the Respondent initiated a conversation with the AOI on Skype saying "Hey sorry [AOI Name]. How have you been? No, you didn't do anything wrong". The following day, on 8 February 2022 the AOI responded. During this conversation, the Respondent said "… just got a bit worried about you being the age you are and me being much older". 6. On 8 February 2022, the AOI instigated a further conversation suggesting the Respondent may be "pissed off" with her. 7. On 10 February 2022, the Respondent sent a message to the AOI on Skype saying he had been busy. 8. On 24 February 2022, the AOI again initiated a conversation with the Respondent. 9. On 26 February 2022, the AOI again initiated a conversation where the Respondent stated, "You're too young for me to continue talking to". 10. On 4 March 2022, the Respondent inappropriately left a gift on the doorstep of Colleague B's private residence. The gift was a parcel with a box of biscuits. 11. On or about 9 March 2022, Joanne Dean, Director of Nursing and Midwifery sent the Respondent a letter titled 'Allegations of Unprofessional and Unethical Conduct' which included various allegations regarding the Respondent's conduct at work. 12. On 10 March 2022: 1. A search warrant was executed at the Respondent's premises; 2. The Respondent was placed under arrest and cautioned by NSW Police; 3. The Respondent was charged with one sequence of use carriage service to send indecent material to person less than 16 years pursuant to s 474.27A(1) of the Criminal Code Act 1995 ('criminal charge'); 4. The Respondent declined to participate in a recorded interview. 1. At the time of the arrest on 10 March 2022, the Respondent made the following admissions to police: 1. He had been chatting online using ChatlW using his mobile phone; 2. He was chatting with other people of whom were under 16 years of age on ChatlW and other social media platforms but stopped when he became aware they were under the age of 16; 3. He was an undiagnosed sex addict and struggled with chatting online. He said it was dangerous for him because there were so many underage on the website he goes on (ChatlW); 4. He said he blocks underage girls when he comes across them. 1. On 15 March 2022, the Respondent signed an AHPRA Notice of Certain Events Form (NOCE) which declared that he had been charged with an offence punishable by 12 months imprisonment or more and his right to practise at hospital or another facility is withdrawn or restricted because of his conduct, professional performance or health. That NOCE was received by the Nursing and Midwifery Council of New South Wales ("the Council") on 15 March 2022. 2. On 22 March 2022, the Respondent sent a letter to Ms Dean in reply to her letter of 9 March 2022 titled 'Response to Allegations of Unprofessional and Unethical Conduct'. Within that letter, the Respondent wrote: 1. That he had had a consensual sexual and romantic relationship with Colleague B from around the month of July 2021 until October 2021 when Colleague B asked to stop seeing each other; 2. The relationship with Colleague B reignited in November 2021 and they spent time with each other at her place on a few occasions; 3. In February 2022, the Respondent asked Colleague B for a more committed relationship over the phone, after which, Colleague B sent the Respondent a message saying that she did not want to and asked to keep the relationship professional from then on; 4. That he responded to Colleague B saying that he would respect her wishes; 5. That he did not leave any gifts for her on her doorstep on 4 March 2022, in circumstances where he knew that he had in fact done so; 6. That he acknowledged that he initially pursued a relationship with Colleague B while at work and asked her if she wanted to go out with him while at work; 7. That he did not ask for sex from Colleague A or make persistent sexual advances, in circumstances where he did on 11 April 2020 tell Colleague A in the 'fishbowl room' that: 1. he wanted to have a sexual relationship with her; and 2. he was struggling to accept that she did not want a sexual relationship with him. 1. On 28 March 2022, the Respondent was suspended without pay by Orange Health Service. 2. On 28 March 2022, the Council held proceedings under s 150 of the National Law ('"the s 150 Hearing") where the Respondent attended and gave oral evidence. During the s 150 Hearing, the Respondent gave oral evidence that: 1. He was a sex addict; 2. He had been struggling with addiction to chatting online to people about sex; 3. He had organised a referral to a sexual disorder specialist, and has seen three psychologists in the past; and 4. That he understands that it is unethical and illegal to talk to underage people online about sex. 1. On 28 March 2022, during the s 150 Hearing, the Respondent gave oral evidence that it was untrue that after the person he was in a relationship with at work (Colleague B) asked him to stop seeing her, he left something on her doorstep, in circumstances where when [sic] he knew he had in fact left a gift on Colleague B's doorstep of her private residence on 4 March 2022. 2. On 28 March 2022, the Council suspended the Respondent's registration as a nurse pursuant to section 150(1)(a) of the National Law. 3. On 31 March 2022, Catherine Nowlan, General Manager of Orange Health Services sent a letter to the Respondent by email titled 'Investigation Findings and Proposed Recommendation'. Within that letter, Ms Nowlan advised of the Investigation Findings and invited the Respondent to respond to the investigation findings within 14 days of receipt of the letter. 4. On or about 12 April 2022, the Respondent sent Ms Nowlan a letter titled 'Response to Investigation Findings and Proposed Recommendation' by email'. Within that letter, the Respondent wrote that: 1. Since 2008 he had displayed behaviour that is consistent with addiction to sex; 2. He first sought help for his problem through the EAP following his marriage breakdown in October 2014. After his initial consultation with a psychologist through EAP, he saw the same psychologist in July 2016. After a few sessions with her he felt better about himself and stopped going. In hindsight, he realised that he lacked insight into his own compulsive behaviour and should have kept up with the appointments; 3. His addiction clouded his ethical judgment. He knew that he breached the Code of Conduct with all 3 people involved; 4. After Colleague B and he had broke it off in November 2021, he again contacted EAP and he knew he was breaching ethical and professional boundaries. After two psychology sessions, he did not book in again. He lacked enough insight to realise that he had spiralled out of control and again engaged with Colleague B and reignited the relationship, showing a true lack of ethical decision-making capability. 1. On 12 May 2022, Sandra Duff, Director of People and Culture at Western NSW Local Health District sent the Respondent a letter by email and registered post. Within that letter, Ms Duff: 1. Wrote that she was considering a recommendation to the Chief Executive that the Respondent's employment be terminated; and 2. Provided the Respondent with an opportunity to provide reasons why his employment should not be terminated. 1. On 8 June 2022, Ms Sandra Duff signed a Complaint and concern (notification) form (NOTF-00) concerning the Respondent notifying AHPRA of Orange Health Service's complaints against the Respondent. 2. On 28 June 2022, the Respondent resigned from his employment with Western NSW Local Health District. 3. On or about 26 July 2022, the Respondent entered a plea of guilty to the criminal charge. 4. On 17 August 2022, Tiffany Charlton, Acting Director People & Culture at Western NSW LHD sent the Respondent a letter titled 'Outcome of Investigation'. Within that letter, Ms Charlton wrote that: 1. The Respondent's resignation was accepted and effective 28 June 2022; 2. If the Respondent had remained employed within WNSWLHD, the matter would have been referred to the Chief Executive to consider termination of his employment; 3. WNSWLHD considered that the substantiated allegations of misconduct still poses a risk to patients, work colleagues and WNSWLHD's ongoing reputation. Therefore a decision had been made to update the Service Check Register for NSW Health to reflect the investigation findings of serious misconduct. 1. On 21 September 2022, Dr Jeremy O'Dea, Forensic Psychiatrist provided the Respondent's solicitors with a medical report concerning the Respondent. Within that report, Dr O'Dea opined that the Respondent's psychosexual and behavioural problems would be considered from a psychiatric perspective, to be clinically significant and appropriate for ongoing psychiatric treatment and risk management. 2. On 9 November 2022, Magistrate Day sentenced the Respondent to imprisonment for a period of two years, released by recognisance order under s 20(1)(b) suspending the sentence, and supervision by Community Corrections. 3. On a date between 9 November 2022 and 17 February 2023, the Respondent filed an appeal of the conviction and sentence of Magistrate Day in the District Court of NSW which was heard on 17 February 2023 in Orange District Court. 4. On 17 February 2023: 1. The conviction appeal was dismissed by Judge P Musgrave; 2. The Respondent was convicted of an offence of use of carriage service to send indecent material to a person under 16 years contrary to section 474.27A(1) of the Criminal Code Act 1995 (Cth); 3. The sentence appeal was upheld and the order varied to a sentence of a conviction but released without passing sentence on condition that the Respondent upon giving security in the amount of $1,000 is to comply with the following conditions: 1. The Respondent is to be of good behaviour for a period of 3 years; 2. To undertake such treatment or rehabilitation that Community Corrections reasonably directs; 3. To obey all reasonable directions of Community Corrections; 4. The offender is to be placed under the supervision and guidance of the Community Corrections Services for s [sic] period of 2 years; 5. Pursuant to s20(1)(A) the appellant is not to travel interstate or overseas without the written permission of the community corrections officer.
2. As a result, the factual matters upon which the Commission relies on in the Complaints are agreed, and also the code of conduct breaches are established as alleged. The agreed facts also set out in some detail the circumstances giving rise to the prosecution of the Respondent following the investigation by the Child Exploitation Internet Unit. We note that the agreed facts also deal with the representations the Respondent made to the Nursing and Midwifery Council in s 150 proceedings which were not true. The agreed facts also contain an extract of the report from Dr O'Dea to which we refer to above.

Complaint 1 Proven

1. On the material before the Tribunal we are satisfied, and we find, that the conduct of the Respondent the subject of Complaint 1 as particularised has been proven.

Improper or Unethical Conduct - s 139B(1)(l)

1. The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as "not in accordance with propriety of behaviour, manners etc." or "abnormal or irregular" and "unethical" as 1. "contrary to moral precept; immoral"; and 2. "in contravention of some code of professional conduct".
2. Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R v Byrnes & Hopwood [1995] HCA 1; 183 CLR 501. If conduct is not in conformity with standards of professional conduct and practice, it can be seen as improper.
3. In Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 the Tribunal considered the scope of "improper conduct" in s 139B(1)(l) stating at [47]-[48]: "47. … The High Court has noted that "improper" is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 at 514, citing Grove v Flavel (1986) 43 SASR 410 at 420. In Byrnes at 514-5, Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows: "Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case." 48. This approach to determining whether conduct is "improper" has been adopted in a disciplinary context in numerous cases, including Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54] and [55] and the cases there cited."
4. The meaning of the expression "improper or unethical conduct" in s 139B(1)(l) of the National Law was also considered by the Tribunal in Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65. The Tribunal stated at [25]-[26]: "25. The use of the word 'or' in s 139(1)(l) suggests that the words unethical and improper should be read disjunctively and do not carry the same meaning. However, their meanings may overlap. While not necessary to reach a concluded view arguably a broader class of conduct is caught by the term improper conduct, than unethical conduct. 26. 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." (emphasis omitted). See also Health Care Complaints Commission v Matta [2024] NSWCATOD 33 [66]-[69]; and Health Care Complaints Commission v Sathiyapal [2024] NSWCATOD 14 at [119] to [121].
5. The conduct the subject of those particulars related to the practice or purported practice of nursing as the events either occurred during the Respondent's employment as a nurse or stemmed from workplace relationships created in the context of working, as a clinical nurse consultant.
6. The Commission argued that the conduct was below the standards of professional conduct and therefore improper for the following reasons: 1. The Respondent held a position of influence, clinical leadership and power with the responsibility for mentoring, supporting and educating less experienced nursing staff in the workplace such as Colleagues A, B, and C and that there was an inherent power imbalance which the Respondent took advantage of. 2. The conduct showed a pattern of behaviour involving unwanted sexual advances to his colleagues done with the intention of enhancing his chances of having a sexual relationship and could be properly described as sexual harassment. 3. The conduct demonstrated a lack of understanding of boundaries in professional relationships, respect for female colleagues and a lack of general judgment. 4. The conduct in respect of Colleague A was particularly egregious given that the conduct continued after Colleague A directly requested that the practitioner keep communication with her "professional". 5. The conduct had the potential to create a toxic workplace whereby employees feel vulnerable, uncomfortable and unsafe. The conduct had the potential for colleague A, B and C to avoid going to the practitioner for advice on clinical or ethical issues arising in their work, which in effect could have impacted the quality of nursing care provided at Orange Health Service.
7. We are not required to find that the conduct amounted to sexual harassment, as that was not part of the complaint, or, in the absence of specific evidence, that the potential to create a "toxic workplace" existed.
8. We accept the balance of the submissions as a fair description of the nature and seriousness of the conduct.
9. The conduct particularised in Particulars 1, 2, 4, 5 and 7 which is admitted ([18] and [19] above, and agreed facts paragraphs 13 to 37) was in our view, and we find, improper, unethical, unprincipled, and also below the standards of professional conduct and contrary to various codes of conduct binding upon the Respondent.
10. Accordingly, we find that Complaint 1 has been established.

Complaint 2 Proven

1. We are further satisfied that the instances of unsatisfactory professional conduct, particularised in Complaint 1 when considered together, amounted to professional misconduct.
2. Professional misconduct is not defined in the National Law.
3. In relation to what constitutes professional misconduct, it was held in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20] by his Honour Justice Basten as follows: "20. 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)."
4. The determination of whether the conduct amounts to professional misconduct has, as its starting point, an objective assessment of the practitioner's conduct against the standard of conduct reasonably expected of an equivalent practitioner.
5. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment (Sabag v Health Care Complaints Commission [2001] NSWCA 41 at [82] per Sterling J). In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper or reasonably expected standards (Health Care Complaints Commission v Litchfield [1997] NSWSC 264; (1997) 41 NSWLR 630 at 638).
6. The seriousness of the conduct may take its colour not only from the acts or omissions in question but also from the circumstances in which they occurred. Such circumstances would relevantly include the practitioner's state of mind at the time of the conduct, risk of harm arising from the conduct and the practitioner's knowledge, skill and training (Health Care Complaints Commission v Robinson [2022] NSWCA 164 [35]-[37] per Kirk JA).
7. The Commission argued that the conduct, when considered cumulatively, is sufficiently serious to justify suspending or cancelling the Respondent's registration as set out at paragraph 41 but also because: 1. The Respondent was an experienced registered nurse with over 10 years' experience and knew or ought to have known what was appropriate behaviour in the workplace; 2. There was potential for harm, being that the conduct was likely to have caused the distress, embarrassment to the recipients of the communication and potentially disharmony in the workplace; and 3. The frequency and duration of the conduct. This was not a case of a one-off mistake or error of judgment but multiple instances of misconduct over a period of more than two years involving three different female colleagues.
8. In our view, workplaces should be free of the kind of conduct engaged in by Respondent. The unwanted advances, against other employees in the same workplace was completely unacceptable. The codes of conduct applicable to the profession are aimed at eliminating from workplaces the type of conduct the subject of Complaint 1. The fact that the Respondent was a senior practitioner, and was directing his comments to the junior practitioners also renders the conduct far more serious.
9. On the materials before us we therefore conclude, and find, that the facts on which the Commission relies have been established for the purposes of Complaint 2 and that the conduct was sufficiently serious to justify the suspension or cancellation of the practitioner's registration when viewed together. Complaint 2 has therefore been made out.

Complaint 3 Proven

1. As pointed out above, the Respondent admits Complaint 3. We find based on the admissions made, and the agreed facts, that the subject conviction is a criminal offence within the meaning of s 144(a) of the National Law. We also find that the Respondent was convicted of that offence on 17 February 2023 at the District Court in Orange, a conviction of an offence of use carriage service to send indecent material to a person under 16 years contrary to s 474.27A(1) of the Criminal Code Act 1995 (Cth). Accordingly, we are satisfied that Complaint 3 is proven.

Complaint 4 Proven

1. Complaint 4 relies on s 144(e) of the National Law to establish that the Respondent is otherwise not a suitable person to hold registration in the Respondent's profession. That expression is not defined in National Law. As the Admissions document makes clear, the Respondent has admitted that he is otherwise unsuitable to hold registration.
2. The Commission relies first on the Respondent's psychosexual and behavioural problems identified by Dr O'Dea. Secondly, it relies on the conduct particularised in Complaint 1 and, thirdly, the fact that the Respondent has been convicted of a criminal offence bringing into operation s 144(a) of the National Law.
3. The Commission argued that the Tribunal should bear in mind the principle that the terms "suitable person to hold registration" and "fit and proper person" (referred to in s 55 of the National Law dealing with the relevant National Board's consideration of the person's suitability to hold general registration) each embrace potentially concepts of "integrity, probity and scrupulosity" (Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [72]-[73]).
4. The Commission further argued that what was contemplated by s 144(e) is an inquiry into the person's fitness in the sense of an inquiry going to the person's character and integrity. It was argued that it would be necessary to demonstrate a fundamental deficiency of character so serious as to warrant in its own right exclusion from the profession. Attention was drawn to Health Care Complaints Commission v Geary [2018] NSWCATOD 15. The Tribunal in that case held: "115. It is inherent in a finding that a person is not a 'suitable person to hold registration' that he or she must be removed from the profession. What we think is contemplated by this provision is an inquiry into the person's fitness in the sense of an inquiry going to the person's character and integrity. It would, we think, be necessary to demonstrate a fundamental deficiency of character so serious as to warrant in its own right exclusion from the profession. 116. In our view, introducing into disciplinary cases a separate complaint of lack of suitability may tend to stand in the way of appropriate resolution of cases where there is some preparedness to co-operate with and not impede the process, as has been seen here in the early and frank admissions made in this case from an early stage. 117. Practitioners, we acknowledge, have a duty to co-operate with and respond to disciplinary investigations and disciplinary proceedings brought against them. But it is not unknown for practitioners to disengage from the process or only give limited responses, especially in cases where there is evidence of mental ill health, and conditions such as depression. In our view, it will ordinarily be sufficient to deal with omissions of this kind through the spectrum of the professional misconduct/unsatisfactory professional conduct inquiry, and in the consideration of the appropriate disciplinary order. 118. We accept that there may be, in some cases, behaviours found proven as instances of unsatisfactory professional conduct or professional misconduct that do have relevance to an assessment of 'suitability' (for example, findings of falsification, dishonesty, sexual abuse). 119. Similarly, we accept that the complaints of misconduct found proven in this case (i.e. Complaints 1 and 2, referred to in Particulars 1 and 2 of Complaint 5) might be seen as raising issues as to the character and integrity of the practitioner - the habitual nature of the offending, the deviousness involved in using prescriptions written in the names of family members, and the relapses after the suspension was lifted."
5. In Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 the Tribunal approached the construction of s 144(e) of the National Law on the basis that the effect of the word "otherwise" in s 144(e) is that the matters in (a) to (d), may not be taken into account when determining whether a practitioner is suitable to hold registration under that provision. We respectfully agree.
6. The Particulars to Complaint 1 relied upon by the Commission for this complaint established a proven complaint of unsatisfactorily professional conduct and were also relevant to the proven professional misconduct, matters within the scope of s 144(b), and are not available to establish that the Respondent is "otherwise" not a suitable person to hold registration.
7. Similarly, reliance on the conviction of a criminal offence, Particular 3 to this complaint, is a matter within the scope of s 144(a) and is not available of itself to also bring into operation s 144(e).
8. However, the underlying circumstances of an offence may be taken into account as these do not form part of a complaint that a person has been made subject of a criminal finding for an offence.
9. Some guidance can be gained from s 55(1) of the National Law as it uses the expression "not suitable" (Health Care Complaints Commission v Holbrook [2019] NSWCATOD 146 at [69] to [72]).
10. In Health Care Complaints Commissions v Brush [2015] NSWCATOD 120 at [72]-[73] it was held: "72. We agree with the submission made by the Commission that, in considering whether Mr Brush "is a suitable person to hold registration", it is useful to have regard to the expression "fit and proper person". The latter has been the subject of detailed consideration by the authorities in various regulatory environments. Neither expression carry any precise meaning and take their meaning from their context, from the activities in which the person is or will be engaged and the ends to be served by those activities (see, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ). In this case the context is the statutory scheme established for the registration and accreditation of health practitioners, a scheme designed to protect members of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (ss 3(1) and 3(2)(a) of the National Law). 73. While some overlap between the concepts of "good character" and "being a suitable person to hold registration" / "fit and proper person" they are not identical. The former encompasses matters such as integrity, probity and scrupulosity; the latter embraces those concepts but also includes matters such as competence and technical skills."
11. The Respondent's identified clinically significant psychosexual and behavioural problems have been present for some time. Despite initially seeking psychological assistance he ceased at times to do so leading to ongoing and repeated misconduct.
12. The Respondent's addiction attached his sexual interest towards young females.
13. In addition, as pointed out by the Commission the Respondent accepted that in his workplace communications, as reflected in Complaint 1, he let his personal feelings and impulses override his ethical conduct and clouded his professional judgment. He began to lose his sense of what was right or wrong in pursuit of sexual gratification.
14. Although there is evidence regarding the Respondent's current treatment from August 2022 as provided by his treating psychologist, his commitment to treatment and his engagement with his treatment cannot rule out the existence of an ongoing risk that the Respondent poses of again engaging in the conduct complained of in the foreseeable future.
15. Accordingly, we accept that the Respondent is otherwise not a suitable person to hold registration and Complaint 4 is proven.

Protective Orders

1. The findings and the admissions made by the Respondent enliven the Tribunal's jurisdiction as provided in s 149 of the National Law.
2. The Commission relies on s 149C(1)(b), (c) and (d) in support of the cancellation of the Respondent's registration.
3. As set out above, we concluded that we are satisfied that the Respondent is guilty of professional misconduct ((1)(b)), that the Respondent was convicted of an offence ((1)(c)), and the Respondent is not a suitable person for registration ((1)(d)).
4. We are satisfied that it is appropriate in circumstances of this case that the Respondent's registration be cancelled, noting that the Respondent has consented to such an order. In that regard we take into account, in particular the following: 1. the criminal conduct was of a serious nature; 2. the community expects nurses to exhibit integrity, trustworthiness and high moral and ethical values and which the Respondent's conduct the subject of Complaints 1 and 3 at odds with those expectations; 3. there is no room in the workplace for the kind of conduct the subject of Complaint 1; 4. the Tribunal cannot be confident that the Respondent is yet in a position that future conduct of this kind will not be repeated; 5. there is a need for specific deterrence in this case such that the conduct the subject of the Complaints should not in the future be repeated; 6. there is a need for general deterrence to reinforce high professional standards and maintain public confidence in the reputation of the profession.
5. The Commission submitted, that the Respondent has not demonstrated sufficient insight and remorse as to his conduct. However, against that, is that the Respondent has made full admissions and has accepted the very significant consequences on his registration as a practitioner.
6. We are also of the view that a non-review period of two years as submitted by the Commission is within the appropriate range reflecting the seriousness of the conduct, provides general and specific deterrence as well as holding open the possibility that an application for re-registration will at least be considered once the practitioner shows evidence of full rehabilitation.

Prohibition Order

1. It is necessary for the Commission to demonstrate, and it carries the burden of doing so, that the Respondent currently poses a substantial risk to the health of members of the public in order to invoke a prohibition order under s 149C(5) of the National Law.
2. The Respondent has consented to this order.
3. The medical evidence we refer to above demonstrates that the Respondent continues to undergo treatment but it cannot yet be concluded that the underlying conditions are fully controlled.
4. A prohibition order ensures that the protective purpose of the cancellation is not significantly undermined by the person providing health services as defined in of the Health Care Complaints Act 1993 (NSW) following the cancellation of registration and during the non-review period. The absence of such an order may substantially diminish the protective purpose of any cancellation order and may undermine confidence in the profession (Health Care Complaints Commission v Shrimpton (No 2) [2019] NSWCATOD 48 at [25]).
5. We are satisfied that the Respondent poses a substantial risk to the health of members of the public and, accordingly, an order under s 149C(5) will be issued.

Costs

1. The Commission seeks an order that the Respondent pays its costs.
2. It argues that it has proven the complaint in its entirety and "is entitled to compensation" in accordance with Schedule 5D, clause 13 of the National Law. Further, it is argued that there are no factors that might militate against the recovery of those costs as identified in Health Care Complaints Commission v Philipiah [2013] NSWCA 342.
3. It was contended by the Commission that the Respondent's admissions made to the complaint, consent to the protective orders sought, and the decision not to challenge the evidence has, in effect, minimised the costs incurred by the parties, but is not a reason to depart from "the rule" that costs follow the event.
4. After the hearing, and with leave of the Tribunal the Commission later referred the Tribunal to a range of cases where admissions had been made but had not caused the Tribunal in those cases to depart from what was argued as "the rule that costs follow the event". (See, for example, Health Care Complaints Commission v Piper [2014] NSWCATOD 62 at [60] and Health Care Complaints Commission v Spruce (No 2) [2015] NSWCATOD 153 at [13]).
5. The Respondent in a submission filed on 20 May 2024 urges the Tribunal to apply the principles dealing with costs in the following way: 1. Any costs incurred in this matter beyond filing the Complaint and preparing the "Agreed facts" is disentitling conduct, within the principles set out in Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 and Health Care Complaints Commission v Litchfield (No 3) (Costs) [2023] NSWCATOD 44. 2. The preparation of the complaint filed on 18 January 2024, which was admitted, informally the following day, and formally no later than 12 or 15 February 2024, is conceded to be necessary work. 3. The request to resolve the matter by agreed facts was a proposition put by the Respondent at the directions hearing on 2 February 2024. It is said to have been resisted by the Commission. 4. It is conceded that the Commission prepared the agreed facts, there were some corrections, which were made on behalf of the Respondent, and accepted by the Commission. It is also conceded there should be some balanced costs consideration, given that both parties contributed to the settling of those costs. 5. The preparation of the Complaint and the agreed facts are severable issues which can be treated at distinct and severable - per Litchfield citing BHP Billiton Iron Ore Pty v National Competition Council (No 2) [2007] FCA 557 at [27]. 6. The Respondent sought, at all times, to adhere to the objectives of the Civil and Administrative Tribunal Act 2013 (NSW), as considered in Health Care Complaints Commission v Quan [2018] NSWCATOD 111 at [12]-[14]. 7. The obligation to prove the conduct in preparing a full brief and any work incidental to that, necessarily falls to the Commission (Quan at [13]). 8. The Respondent has sought to admit the Complaint and consent to the Orders sought in the most expeditious and cost-effective way possible. This conduct should be recognised as promoting the objectives of the Tribunal and be seen as providing encouragement to future litigants.
6. The Respondent also then sought to rely on s 165H of the National Law and argued that the Commission has acted in the "usual way" of doing things without recognition of the specific facts of the admissions in this case and the interplay with s 165H of the National Law.
7. It is argued that the Commission insisted on preparing a full brief, failed to recognise the evidential value of s 184 of the Evidence Act 1914 (Cth) admissions made by the Respondent, and his consent to the orders sought.
8. Further, it was argued that the costs argument has consumed by far the majority of the hearing. The failure to recognise the Respondent's efforts to assist the process has been ignored by the Commission and, it is submitted, amounts to further disentitling conduct.
9. The Respondent therefore argued that, in all the circumstances, an order for each party to bear their own costs is appropriate.
10. It was also then argued, in the alternative, that given the Admissions document, and in light of the Commission's failure to properly take into account the effect of s 165H of the National Law, it unreasonably caused the Respondent to incur costs and unnecessarily incurred its own costs. It is said that it was open to the Commission to seek the protective orders on the papers and an inquiry before the Tribunal was unnecessary.
11. It was argued that the Commission should not be "rewarded" with costs in circumstances where they were entirely avoidable, "morally and legislatively".
12. It was said that the Tribunal could consider the actions of the Commission to be so disentitling as to award the Respondent costs for the unnecessary preparation and appearance before the Tribunal in circumstances where he manifestly adhered to the objective of the Civil and Administrative Tribunal Act 2013.
13. The Respondent argued that the Commission failed to act as a model litigant, forced the Respondent to engage in a costs exercise, and that the cost incurred were morally wrong and that the amendment to the Complaints should attract a reduction in any costs order.

Applicant's Response to Respondent's Costs Submission

1. By leave of the Tribunal, and in order to give the Commission an opportunity to be heard on the submissions of the Respondent filed on 20 May 2024, the Commission filed a written submission on 5 July 2024.
2. In summary, the Applicant: 1. argues that the decision in Health Care Complaints Commission v Quan referred to above concerned a departure from the general rule that costs follow the event where the Commission had not been successful in establishing all elements of the complaint and was thus irrelevant; 2. takes issue with what was submitted to have occurred at the Directions Hearing before the Tribunal on 2 February 2024, and argues that what the Tribunal as currently constituted was advised at the hearing is not supported by the evidence, the Applicant being at the time "agreeable to an order for the parties to serve and file an agreed statement of facts in these proceedings" and this was, it is said, communicated to Judge Cole; 3. argues that "corrections" to the Agreed Facts Document do not warrant any reduction in costs; 4. says s 165H of the National Law does not support the Respondent as no application was made pursuant to that section to dispense with an inquiry, and no order to that effect was made; 5. submits the Commission was required to take steps to ensure the Tribunal had before it sufficient evidence to be independently satisfied that the facts relied on to establish the particulars in the complaint were proven, such steps including serving and filing evidence to find the particulars of the complaints proven, drafting the agreed facts document and reviewing and considering the materials served by the Respondent; 6. argues that the amendment to the complaint by the Commission does not lead to any reduction in the usual order for costs; 7. says the criticism that the Commission has not acted as a model litigant, has forced the Respondent to engage in a costs exercise, and that the costs incurred were "morally" avoidable are misguided and, in particular, it is argued that the submissions by the Respondent failed to appreciate the nature of the protective jurisdiction, the need for the Tribunal to be independently examining the complaints to determine appropriate protective orders and to provide reasons for any protective orders flowing from the admitted complaint with reference to what was held in Health Care Complaints Commission v Mortlok [2015] NSWCATOD 136 at [86]: "86. It does not follow that where a party admits to the whole of a complaint that the Tribunal must exercise its power not to conduct an inquiry. It simply means that precondition to the exercise of that power conferred by s 165H has been satisfied." 1. argues that it is "entitled to" compensation and the Respondent has failed to identify any factors that should mitigate against that outcome.

Applicable Principles

1. The power to award costs under clause 13 of Schedule 5D of the National Law is discretionary.
2. The underlying principle in relation to costs is that of justice and fairness (see, for example, Health Care Complaints Commission v Elliott [2018] NSWCATOD 47 at [79]) and bearing in mind also the guiding principle, namely, to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 36 of the Civil and Administrative Tribunal Act 2013.
3. The Tribunal's discretion is unfettered. However, the compensatory principle of an award of costs militates in favour of a successful party obtaining an order for costs. The Tribunal is, however, entitled to consider other factors which suggest a different conclusion (Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]).
4. The general rule is that costs follow the event (Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]). This is not a legal presumption but a guiding principle.
5. Conduct described as "disentitling conduct" may be a factor weighing in favour of not awarding a successful party its costs, or all of its costs.
6. In Philipiah, Emmett JA (at [42]) pointed to factors which might militate against the recovery by the Commission of all its costs in particular proceedings.
7. Impecuniosity was excluded as such a factor. His Honour then set out a number of factors, by way of example, which might result in departure from the general rule. One of those factors was the way in which the Commission prosecuted proceedings before the Tribunal, such as taking procedural steps that give rise to unnecessary expense in the preparation for the hearing (as identified in Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]).

Consideration

1. We do not regard the arguments in relation to s 165H of the National Law as assisting the Respondent. Section 165H provides that no inquiry need be conducted into a complaint if the practitioner admits the subject-matter of the complaint in writing to the Tribunal. However, the matter needs to be addressed before an inquiry is proceeded with. The issue was not raised or argued before the Tribunal that an inquiry by the Tribunal should not proceed.
2. We also do not accept that there was any unnecessary appearance before the Tribunal.
3. We also reject the Respondent's submission relying on paragraph [13] of the decision in Quan. The Tribunal was in that paragraph addressing the applicant's overall onus of providing a complaint and not conduct in preparing a full brief. We also accept that the outcome in that case is not applicable here.
4. Further, we do not regard the "corrections" of the Agreed Facts Document, or the amendment to the complaints as requiring an adjustment to the general rule. Matters such as that are best dealt with by agreement, or by a costs assessor, if required.
5. We reject the submissions that the Commission did not act as a model litigant.
6. In relation to the Commission's submission that the Tribunal is to independently examine the complaints to determine appropriate protective orders, and to provide reasons for any protective orders flowing from the admitted complaint, even where a party admits the whole of the complaint, it must be borne in mind that there is a distinction to be drawn between admitting the complaint, and an admission of each of the facts underpinning the complaints. In the latter case, the Tribunal is entitled to rely on the facts as so admitted for the purposes of determining what orders, if any, should be made in the exercise of its protective jurisdiction.
7. However, in our view, in this case, we are of the view that it is appropriate to depart from what is said to be the general rule.
8. We accept that the very early admissions of all the complaints, facts as particularised, and the agreement as to all facts which the Commission wished to rely upon saved the Respondent and the Commission costs and resulted in a very much shortened hearing, namely, half a day. The Respondent, therefore, minimised his costs (and costs which he might eventually be liable for).
9. The admissions he made at the earliest opportunity, therefore, significantly limited the scope of the proceedings.
10. There is, however, more to it.
11. The procedural history we refer to above is telling. Although there is now some dispute as to what occurred at the Directions Hearings on 2 February 2024, what is clear, however, is that the Commission as at that date had not engaged with the Respondent to try and reach an agreed position which it was invited to do without the need for the parties to prepare and file all the materials sought to be relied upon, and the orders on 2 February 2024 proposed by the Applicant reflect that position.
12. If, as asserted, the Commission was agreeable to an order that the parties file and serve an agreed statement of facts, there is no reason why that could not, or did not, occur before the parties had to incur the costs and time of having to prepare and file materials that were likely to be irrelevant in circumstances where the facts were agreed.
13. The Respondent has demonstrated, contrary to the submissions of the Commission, that after 15 February 2024 when the Admissions document was filed and served, it was not necessary or efficient to pursue the course of first gathering and compiling of evidence of over 800 pages, and then preparing agreed facts which had largely been admitted on 15 February 2024. It was also not necessary to analyse the source of Admissions or agreed facts, provide written submissions with such analysis and then, at the hearing, seeking to rely on less than half of the 800 pages of documentary evidence. In addition, at the hearing the Applicant could not justify the admission into evidence of any of that material, bar a medical report, in circumstances where all the facts had been admitted.
14. In addition, it appears that the Commission operated on the misconception that notwithstanding the admissions of each of the facts relied upon to support the Complaints, notwithstanding the agreed facts proving each complaint and the particulars, it was necessary to prove the underlying evidence which may (or may not have) independently supported the agreed facts. By that observation, we are not referring to the Tribunal's satisfaction as to whether the facts, as so established, give rise to unsatisfactory professional conduct or professional misconduct or of the protective orders required in the circumstances.
15. The Respondent has thus satisfied us that there is in this case a basis for a departure of what is described as the general rule by the Commission's disentitling conduct. The manner in which the Commission prosecuted the proceedings after 2 February 2024, and, more particularly, after 15 February 2024 requiring the filing of materials and not engaging with the Respondent, as it was repeatedly invited to do, to shorten the proceedings and expedite agreed facts upon which the Commission could, and eventually did, rely, gave rise to unnecessary expense in the preparation of the hearing and in fact to a degree, the disposition of the application with the cost arguments which followed the hearing itself. Those factors justify a departure from the general rule.
16. Having weighed all the issues, we consider that the Commission is entitled to its costs, as assessed or agreed, until 15 February 2024. The Respondent has properly acknowledged that there are costs up to that date which were properly incurred and should be taken into account in the Tribunal's consideration.
17. Thereafter the Commission should not be entitled to its costs on the usual basis for the reasons set out at [113] to [118] above but at a reduced level. The precise evaluation of the reduction is not possible. Doing our best, we assess that the Commission should be entitled to its costs up to an including 15 February 2024 and thereafter 50% of its costs as assessed and agreed.

Orders 1. The Respondent is guilty of unsatisfactory professional conduct. 2. The Respondent is guilty of professional misconduct. 3. Pursuant to s 149C(1) of the Health Practitioner Regulation National Law (NSW), the Respondent's registration is cancelled with a non-review period of two years. 4. Pursuant to s 149C(5) of the Health Practitioner Regulation National Law (NSW), the Respondent is prohibited from providing health services as defined in s 4 of the Health Care Complaints Act 1993 (NSW) for a period of two years. 5. The Respondent is to pay the costs of the Commission pursuant to clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) as agreed or assessed up to and including 15 February 2024, and thereafter is to pay 50% of its costs.

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

Amendments 15 August 2024 - Par 80 and Cases Cited: the name Shepperton changed to Shrimpton. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 August 2024