Health Care Complaints Commission v Sathiyapal

Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448

Gautam v Health Care Complaints Commission [2021] NSWCA 85

Health Care Complaints Commission v Aref [2018] NSWCATOD 133

Health Care Complaints Commission v Balasingham [2025] NSWCATOD 40

Health Care Complaints Commission v Do [2014] NSWCA 307

Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156

Health Care Complaints Commission v Dunstan [2018] NSWCATOD 102

Health Care Complaints Commission v Gazal [2023] NSWCATOD 92

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

Health Care Complaints Commission v Lord [2019] NSWCATOD 182

Health Care Complaints Commission v Marino (No 2) [2016] NSWCATOD 75

Health Care Complaints Commission v Perera [2018] NSWCATOD 112

Health Care Complaints Commission v Safi (No 4) [2017] NSWCATOD 102

Health Care Complaints Commission v Singh (No 2) [2024] NSWCATOD 46

Health Care Complaints Commission v Wong [2017] NSWCATOD 99

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Lee v Health Care Complaints Commission [2012] NSWCA 80

Manly Council v Byrne and Anor [2004] NSWCA 123

Medical Board of Australia v Liang Joo Leow [2019] VSC 532

NSW Bar Association v Meakes [2006] NSWCA 340

Peeke v Medical Board of Victoria (unreported, Supreme Court of Victoria, No 10170 of 1993, 19 January 1993

Psychologists Registration Board of Australia v Coleman (Review and Regulation) [2013] VCAT 738

Reimers v Medical Board of Australia [2024] NSWCA 164

Riley v Health Care Complaints Commission [2019] NSWCATOD 54

Tsolis v Health Care Complaints Commission [2024] NSWCA 284

Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting disclosure to any person or entity of the names of the patients set out in the schedule to the complaint.

1. On 5 February 2024 the Tribunal found Dr Kulanayagam Sathiyapal (the Practitioner) guilty of unsatisfactory professional conduct and professional misconduct (Stage 1 Decision) and directed that there be a further hearing to determine appropriate protective orders (Stage 2 hearing). The Stage 2 hearing was proceeded on 11 and 12 June 2025 before a differently constituted Tribunal to that which heard the Stage 1 proceedings. There is no suggestion that the Stage 2 hearing being before a differently constituted Tribunal created any jurisdictional or other impediment to the Tribunal as presently constituted conducting the Stage 2 hearing and determining the appropriate protective orders.
2. In submissions at the Stage 2 hearing the Health Care Complaints Commission (the Commission) sought that the Practitioner's registration be cancelled pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) 2009 (the National Law) and that, pursuant to s 149C(7) of the National Law, for a period of "2 or 3 years". The Practitioner opposed the grant of such relief, and sought that he be reprimanded and his registration be subject to appropriate conditions.

1. The Commission relied on the documents tendered by it at the Stage 1 hearing (HCCC 1). The Practitioner relied upon three volumes of documents which became Exhibit R1, and an additional bundle of documents which became Exhibit R2.
2. Contained in R1 was a statement by the Practitioner dated 5 May 2025 for the purpose of the Stage 2 hearing. The statement was not verified on oath or affirmation. Senior Counsel for the Practitioner informed the Tribunal that the Practitioner would not be entering the witness box and adopting his statement on oath or affirmation. Counsel for the Commission objected to the Tribunal receiving the Practitioner's statement as evidence in the proceedings, submitting that, to the extent that it raised matters which were not admitted, or established by other evidence, the statement could only be regarded as a submission (Reimers v Medical Board of Australia [2024] NSWCA 164 (Reimers).
3. No explanation for the Practitioner declining to give evidence at the Stage 2 hearing was proffered on his behalf, although it was emphasised that he had given evidence and been cross-examined during the Stage 1 hearing.
4. Largely for the reasons given by the Tribunal in Reimers, of which the Court of Appeal did not disapprove, as the Practitioner, having not adopted his statement on oath or affirmation, could not be cross-examined, the Tribunal ruled that, as a matter of procedural fairness, save to the extent indicated below, the Practitioner's statement would not be received as evidence in the proceedings. Although the Tribunal indicated the essential basis of its ruling orally, Senior Counsel for the Practitioner informed the Tribunal that, neither during the Stage 2 hearing, nor in these reasons, were more detailed reasons for the Tribunal's ruling required by the Practitioner.
5. Although the Tribunal rejected the tender of the Practitioner's statement as evidence in the proceedings, properly in the Tribunal's view, Counsel for the Commission accepted that matters which were not controversial referred to in the Practitioner's statement could be received in evidence, and that source documents to which the statement referred were admissible and spoke for themselves. The effect of the Commission's sensible approach was that the Tribunal has considerable undisputed background and historical evidence with respect to the Practitioner, and has a substantial volume of source documents, including supervision, training and continuing professional development reports. The Tribunal has unchallenged evidence from a number of medical practitioners who have had considerable professional contact with the Practitioner since 2022, but has not seen or heard the Practitioner give evidence with respect to his insight into his offending conduct and its consequences, for him, for patients, the medical profession and the community.
6. In the interests of clarity, a copy of the Practitioner's statement reflecting the rulings of the Tribunal identified above was prepared at the Tribunal's request and filed subsequent to the Stage 2 hearing (R3). The Practitioner relied (R4) on a number of documents produced by Avant Mutual Group Limited evidencing professional development courses conducted by that entity and completed by the Practitioner.
7. The Commission filed comprehensive and helpful opening written submissions dated 21 May 2025. The Practitioner filed comprehensive and helpful written submissions in answer dated 2 June 2025, to which the Commission responded briefly on 10 June 2025. Counsel for both parties spoke to their written submissions at the Stage 2 hearing.

1. The Commission tendered an Evidentiary Certificate issued by Ahpra and National Boards dated 11 March 2025. It records that the Practitioner was first registered in Australia on 19 February 2007. The Certificate only deals with the Practitioner's professional history since 1 July 2010. From 18 October 2010 to 15 February 2013, the Practitioner's provisional registration recorded that he had provided the Board with an undertaking that "I will be of good behaviour and will maintain a strictly professional relationship with all patients". How that came about is not apparent from the Certificate, but emerges from the decision of the Medical Council after the s 150 hearing on 16 March 2021. A copy of the decision is contained in HCCC 1, at Tab X.
2. On 20 July 2006, the Practitioner's name was removed from the register of Medical Practitioners by order of the State Administrative Tribunal of Western Australia. The Practitioner was found to have:

(1) Made comments to and sought contact with the patient, both while she was an involuntary patient and upon her discharge, which were inappropriate;

(2) Requested and obtained money and other financial benefits from a patient who was previously under his care as an involuntary patient;

(3) Interfered with or sought to interfere with the treatment provided by the patient's treating psychiatrist;

(4) Sought through his relationship with the patient, who was previously under his care as an involuntary patient, to benefit his personal interests, and;

(5) Abused his position of professional trust by his conduct particularised in the application.

1. On 19 February 2007, the Practitioner applied for registration in South Australia, the former Medical Board of that State finding that, in making his application, the Practitioner failed to disclose that he had previously been registered in Western Australia, and that his name had been removed from the Register of Medical Practitioners in that State. On 21 February 2008, the Practitioner was censured and fined $5,000 as a result of his failure to disclose his disciplinary history.
2. In December 2009, the Medical Board of Western Australia granted the Practitioner re-registration, subject to a number of conditions which do not differ materially for present purposes from those under which the Practitioner has practised since 2022. Dr Kulaendra was approved as the Practitioner's mentor on 2 March 2010.
3. From 18 October 2010 to 15 February 2013, the Practitioner's provisional registration was subject to a number of conditions with respect to appointing a mentor to be approved by the Board who would meet with the Practitioner on a regular monthly basis and report to the Board twice annually, the Practitioner working within a closely supervised clinical setting which included close supervision of his contact and dealings with patients, and the Practitioner providing all relevant information relating to the findings made against him by the State Administrative Tribunal in 2006 and by the Board in 2008 and to his current conditions of practice to his appointed approved mentors. Future employers of the Practitioner were to be made aware of the findings against the Practitioner by the State Administrative Tribunal, and by the Board. The Practitioner was not to work as a general practitioner in a practice comprising less than three medical practitioners. The Practitioner was not to attend on any patients in any setting other than in a formal medical practice or clinical hospital and could not attend on patients in their private homes. The Practitioner was to give an undertaking to be of good behaviour and maintain strictly professional relationships with all patients and to disclose to his employer and obtain his employer's approval before accepting any gifts of any nature whatsoever which may have been given or proffered to him by patients. From 27 August 2013 to 9 April 2015 the Practitioner's provisional registration was subject to essentially the same conditions.
4. On 16 March 2021 the Medical Council of New South Wales suspended the Practitioner's registration under s 150 of the National Law. On 7 December 2021, after a s 150A hearing, the suspension of the Practitioner's registration was lifted and conditions imposed requiring him:

(1) to obtain Medical Council of NSW approval prior to changing the nature or place of his practice;

(2) to practice only a group practice approved by the Council where there is at least one registered medical practitioner (other than the Practitioner):

(a) where the patients and patient records are shared between the medical practitioners;

(b) where there is always one other registered medical practitioner on site;

(3) to practice no more than 4 days a week;

(4) to treat no more than 4 patients per hour and no more than 30 patients in any one day:

(a) the Practitioner is to provide the Council with copies of records confirming compliance with that condition;

(5) to practice under Category B supervision in accordance with the Council's compliance policy - supervision:

(a) at each supervision meeting the Practitioner is to review and discuss his practice with his approved supervisor with particular focus on:

(i) management of challenging patients;

(ii) provision of medical records that contain appropriate detail of history and consent examination investigation of treatment plan;

(iii) appropriate use of mental health plans;

(iv) plans for people with chronic health issues;

(v) compliance with regulations on drug prescribing;

(vi) ethics and code of conduct;

(b) to authorise the Council to provide proposed and approved supervisors with a copy of the decision which imposed the conditions and any other decision or report as determined by the Council;

(c) not to practice until a supervisor has been approved by the Council;

(6) to submit to a medical practice audit by:

(a) random selection of the Practitioner's medical records by a person or persons nominated by the Council;

(b) auditor is to assess the Practitioner's compliance with:

(i) good medical record keeping standards and legislative requirements paying particular attention to prescribing of S8 and S4D medications, and adherence to the legislative requirements of prescribing these medications;

(ii) quality of medical records in accordance with expected standard for another doctor to take over patient care;

(iii) recording of consent for procedures particularly any intimate examinations;

(c) to authorise the auditors to provide the Council with a report on their findings;

(d) to meet all costs associated with the audits and any subsequent reports;

(7) to authorise and consent to any exchange of information between the Council and Medicare Australia for the purpose of monitoring compliance with these conditions.

1. On 30 January 2024 the Council imposed conditions in substantially similar terms to those then in existence. Those conditions have remained in place.

The findings of the Tribunal at the Stage 1 hearing

1. The Commission's opening submissions set out in detail the matters asserted to have been admitted in the Stage 1 decision, matters denied but then found to have been proved, and findings on the nature of the conduct which was admitted or proved at the Stage 1 hearing. Save in limited respects, the Practitioner did not dispute the Commission's outline of the findings of the Tribunal in its Stage 1 decision. It was agreed that, although the Tribunal determining the Stage 2 hearing is differently constituted to the Tribunal which heard the Stage 1 proceedings, the parties to the Stage 2 hearing are bound by the factual findings made by the Tribunal in the Stage 1 hearing (Tsolis v Health Care Complaints Commission [2024] NSWCA 284 at [37]- [38]). The Tribunal does not understand either party to assert that, had he given evidence at the Stage 2 hearing, the Tribunal would have been bound by findings made in the Stage 1 proceedings with respect to the credibility of the Practitioner. Had the Practitioner given evidence at the stage 2 hearing, the Tribunal would have evaluated the credibility of the Practitioner's evidence with respect to disputed issues for itself by reference to the evidence before it. Although, having elected not to give evidence, there is no occasion for that evaluation, the Tribunal would not have assumed that, his credibility having previously been found wanting meant that the Practitioner's credibility at the Stage 2 hearing was also wanting.
2. The complaints determined at the Stage 1 hearing involved two patients of the Practitioner, Patient A and Person B, who were, at the relevant time, in a relationship together. The Practitioner admitted a number of particulars of the complaints against him (Complaint 1, particulars 6-10) which were asserted to individually amount to unsatisfactory professional conduct. In essence, those particulars included:

(a) prescribing Alprazolam on 12 occasions in a 12 month period to Patient A without clinical indication, in inappropriate volume and dosage, without proper monitoring, without taking into account her history of codeine addiction and without an authority to do so under the regulatory regime;

(b) prescribing Alprazolam on 3 occasions in 2019 on the same basis as above but also in combination with Tramadol, an opioid;

(c) not maintaining adequate clinical records, including by falsely answering "yes" in the computer system of the medical practice to the question whether he had an in date authority to prescribe Alprazolam, and writing referrals for Person B that did not include reference to Alprazolam being a current medication; and

(d) inappropriately prescribing Alprazolam to Person B on 60 occasions between 10 February 2019 and 15 November 2020 without clinical indication, in a manner that was not within therapeutic guidelines for dosage, frequency and duration, without a proper assessment of the patient, without an authority and without making proper specialist referrals.

1. The Practitioner's admitted inappropriate prescribing was in part explained on the basis that he did not know the appropriate starting dose for Alprazolam when he commenced prescribing it, and that he prescribed the drug when knowing very little about it, which constituted poor medical practice as the Practitioner admitted.
2. The matters denied but found to have occurred in the Stage 1 hearing included:

(a) telling Patient A in January 2019 that he was going to Perth, that she should leave her partner and go with him, and that he would pay for her services;

(b) telling Patient A in a consultation on 10 February 2019 that she was all dressed up for him and he wanted to take a picture of her;

(c) during the consultation on 10 February 2019, placing his hand down the front of Patient A's shirt, inside her bra and grabbing her left breast, such conduct being found to have been without any clinical nature and being conduct of a sexual nature;

(d) offering to pay money for Person B (who confronted him regarding the above sexual misconduct) not to go to the police;

(e) transferring $5,000 to the bank account of Patient A so that neither Patient A nor Person B would report the Practitioner's sexual misconduct, on the same day the Practitioner gave Person B a prescription made out to Patient A for Alprazolam with 5 repeats; and

(f) providing misleading information to the Applicant regarding the transfer of funds to Patient A's bank account.

1. The Practitioner's denials with respect to the above matters and his alternate versions of those events were rejected by the Tribunal.
2. In rejecting the Practitioner's version of various events, the Tribunal found him to have been avoidant, evasive and discursive in his responses to questions during cross-examination, and to not answering questions in the manner of a witness who is doing his best to answer truthfully.
3. The Tribunal found in the Stage 1 hearing that the Practitioner's conduct amounted to unsatisfactory professional conduct. The Practitioner admitted that his conduct cumulatively constituted professional misconduct. The Tribunal made findings to that effect, and found that the additional matters proved by the Commission also amounted to professional misconduct.
4. The Commission did not call any witnesses during the Stage 2 hearing.

1. The Practitioner relied on a substantial number of documents evidencing the courses of training and continuing professional development which he has undertaken since returning to practice on 22 February 2022. These include courses to which he referred in his statement (pages 30-92 and Exhibit R4), and supervision reports prepared between February 2022 and May 2025. The latter comprised supervision reports from Dr Kiran Puttappa dated 6 October 2022, Dr Velupillay Kulaendra dated 30 April 2022 to 10 May 2025, a supervision report with respect to the period 1 to 17 May 2025, and supervision reports from Dr Gammanpila from 1 November 2024 to 30 April 2025. Neither Dr Puttappa nor Dr Gammanpila was required for cross-examination on the supervision reports which they prepared.
2. There is no issue that the Practitioner has complied with the conditions of his registration since 2022. There is no suggestion that any patient has made a complaint about him since that time. There is no suggestion that the Practitioner is not professionally competent to practice as a general practitioner, albeit, as he acknowledges, subject to appropriate conditions.
3. Dr Kulaendra gave evidence, by agreement by audio visual link from Western Australia. Before referring to matters emerging during the course of cross-examination of Dr Kulaendra, it is appropriate to refer to the contents of his supervision reports (R1, pages 111-452). In his supervision report of 30 April 2022, Dr Kulaendra reported that the Practitioner had been working with him under Category B supervision from 17 March 2022 and had been "performing satisfactorily since commencement". Dr Kulaendra confirmed that he was "always present" when the Practitioner was working at the Willetton Medical Centre in Western Australia, that the Practitioner was "punctual and courteous to staff and patients alike and in my view he is progressing well and clinically competent". Dr Kulaendra expressed an opinion that the Practitioner could be "considered for Category C supervision in the future".
4. In a letter written on 27 April 2024 (R1, page 855) Dr Kulaendra wrote that the Practitioner had "progressed very well complying with the terms and conditions for his monitoring program". Dr Kulaendra said that "We have been discussing clinical and medicolegal aspects of general practice using the Avant learning program and other relevant medical journals during our fortnightly discussion sessions over the past 2 years". Dr Kulaendra expressed his belief that the Practitioner could work 6 days a week and that the "restriction placed on his practice be removed". Dr Kulaendra was of the opinion that the Practitioner was suitable for Category C supervision. On 24 June 2024 (R1, page 856) Dr Kulaendra stated that the Practitioner had been "practising evidence based medicine well within his competence and had no issues with patient care during current monitored period since February 2022 to date". He further reported that the Practitioner had been "educating himself appropriately (self-learning - AJGP, Check, Medical form). He works with equal competence as any other FRACGP qualified general practitioner in our practice since 2016 had not (sic) issues with patient care". Dr Kulaendra expressed his opinion that the Practitioner was "fit to work under next level of supervision", and questioned why the Practitioner was "still under level B supervision". Dr Kulaendra concluded by stating that the Practitioner was "loved by his regular patients who visits (sic) him far away such as from Kalgoorlie, and he is a good team worker".
5. On 25 June 2024, Dr Kulaendra reported that, over the previous 2 years and 3 months the Practitioner had been going through the "Avant learning programs specifically customised for him" and was "fully aware of his medicolegal responsibilities as a medical practitioner in Australia". Dr Kulaendra stated that he had met fortnightly with the Practitioner "to discuss and review case notes of patients attended upon by him and management plans for these cases". Dr Kulaendra recorded the Practitioner as having completed a variety of education programs, including "Topics pertaining to Patient Boundary issues, Communication Skills, the Medical Board of Australia Code of Conduct, prescribing principles and effective communication". Dr Kulaendra added that "Prescription of Opioids and other drugs of dependence were discussed in considerable detail at each of our meeting sessions. Dr Kulaendra identified some particular topics which he "covered" in his sessions with the Practitioner, including "medicolegal case studies dealing with minors, difficult complex and challenging patients, handling patient complaints". Dr Kulaendra reported that the Practitioner's patients were "satisfied and happy to be under his care and I have received positive comments about him from them", adding that the Practitioner had "not encountered any patient complaints" and had been compliant with practice conditions placed upon him. Dr Kulaendra reiterated that the Practitioner was a "good team player".
6. On 25 February 2025 (R1, pages 860-862) Dr Kulaendra reiterated many of his earlier comments, relevantly adding his opinion that the Practitioner "has gained significant insight into his lapse of judgement with regards to inappropriate prescription of Schedule 8 medications, patient boundary issues, failure in keeping accurate and comprehensive medical records and his obligation to keep abreast of changes in the rules and regulations in general practice". Dr Kulaendra said that the Practitioner "has a sizeable following of Tamil speaking migrant and refugee Sri Lankan population in the 3 Practices he is currently working in. Some of this cohort have significant social and PTSD issues. He does Telehealth for those who live in rural WA, and Aboriginal patients of his from as far as Kalgoorlie". Dr Kulaendra added that, in his opinion, suspension of the Practitioner's registration would "disadvantage a significant patient base including Ethnic and Aboriginal patients in Western Australia who he has a rapport with for about 14 years", adding that the Practitioner had "indeed undergone a significant learning curve". Dr Kulaendra concluded that, in his view, continuation of the present conditions attaching to the Practitioner's registration was unnecessary.
7. In his letter of 10 May 2025 (R1 pages 863-865) Dr Kulaendra said that, after the Stage 1 decision, "more emphasis was placed on doctor patient boundary issues" and much time was spent discussing "medico legal implications of breaches in this area" in his fortnightly sessions with the Practitioner. Dr Kulaendra said that the Practitioner was "now very aware of the risk in Doctor patient communication", and gave examples of inappropriate communication. After some further general statements, Dr Kulaendra said that the Practitioner "now avoids intimate examinations of female patients". Dr Kulaendra referred in some detail to the Practitioner's learning with respect to drug prescribing, and current awareness of the "hazards of drug and the rules and regulations in its use". Dr Kulaendra reiterated other positive aspects of the Practitioner's training and experience since he began mentoring him in 2022.
8. On 17 May 2025 (R1, pages 866-868) Dr Kulaendra reiterated the substance of his February report. Dr Kulaendra recorded that "Sexual misconduct covers a broad spectrum of issues. Inappropriate hugging or holding a patient by the hand even to express solace may be misunderstood by a vulnerable patient. Intimate clinical examinations need prior consent and presence of a female professional chaperone (nurse) to avoid potential complaints". Dr Kulaendra said that the Practitioner "now avoids intimate examinations of female patients as there are 3 female doctors in the practice at any time whose services, the patient could be directed to, after seeking consent. A practice nurse is always available on site, if there is any need for a chaperone to perform examinations following patient consent. I have noted he is conscious of maintaining strict boundary issues with female patients. He now follows patient privacy and dignity by using visual and auditory privacy by adequate screens and gowns." Dr Kulaendra further stated that "Sexualised behaviour may include words or behaviour that might reasonably be interpreted as being sexually evocative. He is aware of this risk and prudently avoids such contact. He is very aware of the power imbalance in a Doctor/Patient interaction especially with a vulnerable female patient". Dr Kulaendra referred in detail to the Practitioner's education with respect to and knowledge of the prescribing of drugs, particularly S8 and S4D drugs.
9. Dr Kulaendra's contemporaneous supervision reports were consistent with the statements contained in the letters to which we have referred. Dr Kulaendra impressed in cross-examination as an honest, very experienced and competent medical practitioner. Dr Kulaendra confirmed that he had read the Stage 1 Decision of the Tribunal, in full, and said that he had discussed it with the Practitioner. Dr Kulaendra said that "most of the time" he addressed the issues considered by the Tribunal in the Stage 1 proceedings. Dr Kulaendra acknowledged, correctly, that he has no personal knowledge of whether the Practitioner committed the improper conduct he denied, which the Tribunal found proved. Dr Kulaendra said that, as the "ruling" the Practitioner accepted that he had to "go with it" or words to that effect. Dr Kulaendra did not suggest that he disagreed with the Tribunal's findings, or that he felt that the Practitioner had been hard done by. Although loyal to the Practitioner, Dr Kulaendra's evidence does not emerge as having been influenced by such loyalty.
10. Although the topics fell within the ambit of "boundary violations", Dr Kulaendra's evidence with respect to the topics which he discussed with the Practitioner did not reveal that any detailed discussion with him with respect to boundary violations focused on the touching of female patients' breasts, bribery of patients, or honesty when dealing with regulatory bodies. The Tribunal does not understand Dr Kulaendra to have suggested that he did expressly discuss those specific issues. The apparent generality of such discussions renders the Practitioner's election not to give evidence potentially more significant. As Dr Kulaendra had been appointed as the Practitioner's supervisor in 2009, it is likely that he was aware of the Practitioner's disciplinary history. With respect to Dr Kulaendra, in view of the similarity between the Practitioner's misconduct then, and some of the misconduct found at Stage 1 in the current proceedings, it is unfortunate that he did not engage closely with the latter during supervision meetings.
11. Dr Kulaendra's evidence was to the effect that the Practitioner indicated to him that he had no choice other than to accept the Tribunal's decision, although with respect to the conduct which the Practitioner denied which was found proven, he continued to maintain his innocence. In the absence of evidence from the Practitioner, why that was so could not be further explored. The Practitioner was entitled to maintain his innocence. However, not having given evidence the Practitioner has deprived the Tribunal of the opportunity to evaluate the basis and genuineness of his asserted acceptance of the serious findings made against him in the Stage 1 decision.
12. Dr Kulaendra expressed confidence that, after what the Practitioner had been through and was going through, he did not think that the Practitioner would again inappropriately physically touch a female patient. In the absence of evidence from the Practitioner, the Tribunal's knowledge of those matters is necessarily limited to the genuinely held beliefs of others and inferences which can be drawn from circumstantial and documentary evidence.
13. Dr Kulaendra agreed that, in February 2019, the Practitioner should not have needed to be told that his conduct with respect to Patient A was inappropriate, or that, in the absence of a clinical indication for doing so, and the patient consenting, the Practitioner's conduct was improper. Significantly, Dr Kulaendra said that he did not "delve into" the circumstances surrounding the Practitioner paying $5,000 into Patient A's bank account after he sexually assaulted her in February 2019. Dr Kulaendra said that, to the extent that it was discussed, the Practitioner maintained his version of events but said that "no-one believed him" and that he accepted the decision. In view of the nature and content of the Stage 1 findings, without evidence from him, the Tribunal is unable to make findings as to the meaning and effect of the Practitioner's asserted acceptance of the Tribunal's decision. That involves no criticism of Dr Kulaendra.
14. Dr Kulaendra was asked whether he suggested to the Practitioner that he see a psychologist or other health professional for advice or treatment in relation to the sexual assault and financial transaction for which the Practitioner had been found guilty, and said that he had not recommended such to him as he did not think that the Practitioner needed to obtain such advice. Although the Tribunal accepts that Dr Kulaendra genuinely, and not unreasonably holds those beliefs, in the absence of either evidence from the Practitioner or a psychologist or psychiatrist, the Tribunal is unable to make a finding in those terms.
15. The Tribunal accepts Dr Kulaendra's evidence, and accepts that the beliefs which he holds with respect to the Practitioner's capacity to practice medicine safely are genuine, and have a rational foundation having regard to the time during which Dr Kulaendra has supervised the Practitioner, the nature of the conditions attaching to the Practitioner's registration during that period and the detailed contemporaneous notes of discussions and supervision made by Dr Kulaendra over that period. The weight to be given to those beliefs or opinions is constrained by the absence, or limited extent to which Dr Kulaendra and the Practitioner engaged with respect to some of the most serious Stage 1 findings.
16. Having given no evidence about such matters himself, and calling no other witness capable of adducing evidence with respect to the issue, the Practitioner is necessarily significantly reliant upon Dr Kulaendra's expressions of confidence being accepted by the Tribunal as objectively well founded. As Dr Kulaendra's own evidence in cross-examination confirmed, although undoubtedly he has had many and extensive discussions with the Practitioner about prescribing of S8 and S4D drugs, boundary issues, in conjunction with the CPD and other training courses which the Practitioner has undertaken, and many aspects of medical practice, his limited engagement with the Practitioner in relation to the sexual assault of Patient A, the Practitioner's attempt to "buy silence" after he did so and misleading the regulator, limit the weight which can properly be given to Dr Kulaendra's expressions of confidence in the Practitioner having sufficient insight into his offending conduct as to preclude his continuing to practise medicine a risk to the health and safety of the public.
17. The supervision reports of Dr Mithila Jayatilake (R1, pages 657-776), Dr Gammanpila (R1, pages 453-656, 941-1089) and Dr Puttappa (R1, pages 1090-1206) are all consistent with Dr Kulaendra's reports and his opinion with respect to the Practitioner's capacity to practise medicine safely. For the reasons identified above, and with no criticism of their authors, those reports however provide only limited assistance to the Practitioner in terms of his insight into his offending conduct.

1. In opening submissions filed prior to it becoming apparent that the Practitioner was not going to give evidence at the Stage 2 hearing, Counsel for the Commission referred to the statement by the Practitioner of 5 May 2025 at [63] stating that "Whilst I do not agree with all of the findings within the Tribunal's decision, I respect the Tribunal's authority and accept its decision." It was submitted, correctly, that the statement did not identify with which of the findings the Practitioner disagreed, or just what his statement meant. Accurately, the Commission identified that as a "matter that will need to be addressed in oral evidence" and that it was "somewhat difficult to fully address the (Practitioner's) evidence without that context". The Practitioner's election not to give evidence was made in the knowledge of the Commission's contentions.
2. It was further submitted that, other than to the extent indicated at [63] "Nowhere does (the Practitioner) express remorse for what occurred either in respect of Patient A, or Person B, or in providing misleading information to the Applicant or in being untruthful in his evidence to the Tribunal." The absence of such expression was submitted to be "quite remarkable". The Tribunal has been vigilant to avoid drawing adverse inferences in reliance upon the Practitioner's continuing denials of guilt with respect to the Stage 1 findings identified above.
3. In the not unreasonable anticipation that the Practitioner would give evidence at the Stage 2 hearing, the Commission sought to supplement its submissions at the close of the evidence, but submitted that, on any view the cancellation of the Practitioner's registration for a period was necessary to protect the health and safety of the public. In support of its contentions the Commission relied on a number of particular matters. The first was that the nature of the Practitioner's offending conduct was "extremely serious", promoting addiction which could have had drastic or even fatal consequences, occurring with respect to two victims. The offending conduct was submitted to have been improper and unethical, rather than misconduct arising from knowledge that was substantially below the expected standard. The offending conduct occurred over a period of time and involved "grossly improper prescribing". The conduct included recording that the Practitioner had an authority to prescribe when he did not, and poor record keeping. The offending conduct included a sexual assault upon Patient A, an invitation to pay Patient A for sexual services and bribing Patient A and Person B to not report him. The Practitioner also provided misleading information to a regulatory authority. Each of those descriptions of the Practitioner's offending conduct is consistent with the findings recorded by the Tribunal in its Stage 1 Decision.
4. The Commission further relied on the Practitioner's persistence with "multiple untrue factual assertions through the investigative stage and in the witness box" and, it was submitted, seeking to essentially "victim blame". The Commission submitted that, whilst it was open to the Practitioner to put the Applicant to proof, it was open to the Tribunal to take into account the fact that the Practitioner gave a version of events which had been rejected as untrue, thereby evidencing a lack of candour. As discussed with Counsel during the Stage 2 hearing, the Tribunal is vigilant to distinguish between the Practitioner's assertions of innocence in the Stage 1 hearing and beyond on the one hand, and the reality that, the Tribunal having made the findings it did in the Stage 1 hearing, which he is said to have accepted, the Practitioner's insight into those findings, his insight into how he came to have offended and the likelihood that he would reoffend. The Tribunal draws no adverse inferences from the former. As the submissions of Counsel for both parties confirm, the Practitioner's failure to give evidence, and face cross-examination, with respect to matters relevant to the determination of appropriate protective measures raises potentially difficult issues.
5. It was submitted by the Commission that the Practitioner "has not apologised or expressed remorse for anything". The Practitioner has given no evidence to that effect. To the extent that others purport on his behalf to express confidence in the Practitioner not reoffending, they do not reveal his having expressed remorse or contrition to them over the course of their many and detailed exchanges with him. The Practitioner could have done so without resiling from his consistently asserted innocence. It was submitted by the Commission that the "importance of these matters is that the nature of the conduct and the (Practitioner's) actions since bespeak of a deficiency of character". The findings of the Tribunal in the Stage 1 decision "bespeak of a deficiency of character". In the absence of the Practitioner giving evidence with respect to those matters, and that evidence being tested, the Practitioner's ability to persuade the Tribunal that the deficiencies of character emerging from the Tribunal's Stage 1 findings no longer exist, or do not exist at a level which exposes a risk to the health and safety of the public if he is permitted to continue to practise medicine is problematic.
6. The Commission referred to the decision of the Court of Appeal in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 (Litchfield), at 637 in which it was said that a Court, or Tribunal, "should not assume that the doctor has become a reformed person". Their Honours referred to the Judgment of Walsh JA in Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461 in which his Honour said that reformations of character and behaviour "can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man". With respect to prescribing, the documentary evidence establishes that there has been rehabilitation. The Commission submitted that, in the absence of evidence of the Practitioner himself, and the opportunity to test it, the Tribunal could not be satisfied that there has been rehabilitation with respect to the other and very serious proven misconduct of the Practitioner.
7. The Commission submitted that the Practitioner has offered "no evidence to explain his conduct" or why the Tribunal would accept that he now understands his deficiencies and will not repeat them. There is force in that submission. As Counsel for the Commission clarified in oral submissions, the Commission does not suggest that the Practitioner's continued assertions of innocence, despite the Stage 1 findings, should be held against him, but rather that the absence of any evidence from him of his insight into the findings, or of his circumstances at the time of his offending conduct which might explain why it occurred, support finding that the health and safety of the public requires the Practitioner's registration to be cancelled.
8. The Commission reiterated, accurately, that the findings of the Tribunal in the Stage 1 hearing do reveal a "cavalier attitude towards his victims" which is "strongly suggestive of a fundamental character flaw". Compliance with the conditions of registration, supervision, mentoring and continuing and further education were admitted as going some distance towards, but not removing the concerns which the Tribunal was asserted to have arising from the findings at the Stage 1 hearing. It was submitted in summary that, in all the circumstances, the Practitioner's registration should be cancelled with a non-review period of 2 or 3 years, that being submitted to be necessary to prevent the risk of similar conduct in the future and to also "denounce the (Practitioner's) behaviour".
9. The Commission submitted that the Tribunal would be concerned as to how medical and allied health professionals of good repute and the public at large would perceive the Practitioner retaining his registration in circumstances where he has "engaged in such wide ranging professional misconduct, and then sought to defend it". Taken literally, we are unable to agree with the entirety of that contention. If the reference to seeking to defend the conduct does not invite the Tribunal to take into consideration to the detriment of the Practitioner that he steadfastly maintained his innocence at the Stage 1 hearing, the contention has considerable force.
10. The Commission made clear in its submissions in reply that it did not seek to advance orders with a punitive intention, and that the Tribunal would not proceed on that basis, albeit the effect of making protective orders for the health and safety of the public may have a punitive effect on the Practitioner.
11. The Commission reiterated its reliance upon the "disgraceful conduct" in which the Practitioner was found to have engaged. The Commission acknowledged, properly, that the "material filed" supported a finding that the Practitioner has progressed significantly in his knowledge and practice standards since his offending conduct and since the Stage 1 hearing, but continued to maintain that, in the absence of evidence with respect to the matters referred to in its primary submissions, the Tribunal would find that the Practitioner has a defect of character which renders appropriate the cancellation of the Practitioner's registration. The Commission reiterated its earlier contention that, as discussed by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 (Do), at [43]-[44] there was an absence of evidence from the Practitioner that he "understands the seriousness of the charges made against (him) and has taken steps to ensure that (he) does not engage in similar conduct again".
12. In oral submissions, by which time it was apparent that the Practitioner was not giving evidence, Counsel for the Commission emphasised the asserted significance of such failure. It was submitted, correctly, that there was no explanation for the Practitioner's failure to give evidence. The Practitioner was present throughout the hearing of the proceedings. The Practitioner had the opportunity, after the Tribunal rejected passages in his unverified statement which potentially addressed his asserted "deficiencies of character", to give evidence, but did not do so. It was submitted that in reliance on the decision in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 in the unexplained failure of the Practitioner to give evidence, the Commission submitted that the Tribunal could infer that any evidence which he may have given would not have assisted his case. The Tribunal could permissibly draw that inference, but does not need to. For whatever reason, and none has been suggested, the Tribunal just does not have evidence from the Practitioner with respect to any of the issues raised by his asserted deficiency of character. The Practitioner disputed that reliance upon any asserted "deficiencies of character" was misconceived. That contention, and its rejection in the circumstances of this case, are addressed later in these reasons.
13. It was submitted, correctly in our view, that giving all proper weight to the many and positive supervision reports relied upon by the Practitioner, the evidence of further structured training and education which he has undergone and his continuing professional development, the Tribunal could not find that the offending conduct which constituted the deficiency of character found by the Tribunal at Stage 1 had been addressed or ameliorated to the point where the health and safety of the public would not be at risk if the Practitioner was able to continue to practise medicine. It was bluntly, but in our view correctly asserted that, in a case such as this, only the individual concerned could give evidence about his insight into the Stage 1 findings, and their effect on him, the likely impact of his misconduct on the patient, his understanding of how, despite his assertions of innocence, the Practitioner could have come to commit such seriously offending conduct, what has changed in his personal life since that time and what professional help he has had in relation to what on any view was very serious misconduct. In view of his previous misconduct, evidence from the Practitioner about those matters would have considerably assisted the Tribunal's determination of appropriate protective orders. As we have earlier recorded, the misconduct proved at Stage 1 involved improper and unethical conduct and serious dishonesty with respect to his victims and the regulator.
14. The Commission submitted that there was no evidence that the Practitioner had consulted with any psychologist or psychiatrist since the Stage 1 findings. It is not uncommon in proceedings of this kind, where rehabilitation is asserted, for a practitioner to have attended upon a health professional to assist the practitioner gain insight into their offending conduct and thereby address the risk of the misconduct recurring. Dr Kulaendra said that he did not see any need to suggest to the Practitioner that he consult a psychologist or psychiatrist. Given Dr Kulaendra's candid evidence about the limits of the matters which he discussed with the Practitioner, that is unsurprising. It should have been evident to the Practitioner, without any suggestion from Dr Kulaendra, that it could only assist his rehabilitation to consult with a psychologist or a psychiatrist in order to gain insight into how he came to commit his offending conduct and how he might better avoid doing so in the future.
15. Having regard to the disciplinary procedures in which the Practitioner was involved in 2007 and the fact that he had practised for some years under conditions, Counsel for the Commission submitted that he ought to have been particularly vigilant about boundary violations and dishonesty in 2019. In the absence of evidence from him, the Practitioner could not be tested in relation to that matter.
16. The Commission placed considerable emphasis on both public and general deterrence and on the perception of ethical members of the medical and other health professions and the community if the Practitioner's registration was not to be suspended or cancelled having regard to the gravity of the Practitioner's offending conduct admitted or proved at the Stage 1 hearing, and the absence of evidence with respect to the matters referred to above. There is force in that submission. The Commission did not assert that to be the primary reason for granting the relief which it sought.

1. Under the heading "Evidence of the Respondent", a number of written submissions were made which were reliant upon the Practitioner's statement being received in evidence. As submitted by the Commission, rejection of the parts of the Practitioner's unverified statement which were capable of going to questions of remorse, contrition and insight removed the evidentiary foundation for those submissions. As Senior Counsel for the Practitioner properly acknowledged, having given no evidence himself, the Practitioner was reliant upon the Tribunal drawing inferences favourable to him in reliance upon the documentary evidence and opinions of supervising medical practitioners which were in evidence.
2. The Practitioner, correctly in our view, emphasised that in the Stage 2 hearing, the Tribunal could not effectively "punish" him for having maintained his innocence at the Stage 1 hearing and beyond. The Tribunal accepts that proposition. Indeed, as was suggested by the Tribunal during the course of oral submissions, if the Practitioner had recanted from his denials of guilt in the Stage 1 hearing during the Stage 2 hearing, his credibility would, properly, have been seriously questioned. The Tribunal approaches the matter on the basis that the findings in the Stage 1 hearing by their nature and extent established that the Practitioner then suffered from deficiencies of character. Given Dr Kulaendra's evidence that the Practitioner disagreed with but accepted the Tribunal's findings, the focus of enquiry is whether the Commission satisfies the Tribunal that those deficiencies of character persist, or persist to a degree which requires his registration to be cancelled to protect the health and safety of the public. As Senior Counsel for the Practitioner submitted, the Commission bears the onus of establishing that granting the relief it sought is necessary to protect the health and safety of the public. The onus of proof does not shift from the Commission to the Practitioner but, given the findings of the Tribunal at Stage 1, by which the parties are bound, if the Practitioner wishes to dispute that he does not continue to be beset by deficiencies of character, it is incumbent upon him to adduce evidence which, if accepted, would preclude the Commission from securing the findings necessary to found the relief it seeks. The Practitioner's understandable and reasonable reliance upon the many and detailed supervision and other reports confirms his acceptance of that evidentiary burden.
3. Under the heading "Remedial Action", the Practitioner emphasised his compliance with conditions attaching to his registration, to the education which he has undergone directed specifically to or dealing with the matters in respect of which he was found guilty at Stage 1. The Tribunal accepts that, for what is now a lengthy time, the Practitioner has complied faithfully with conditions attaching to his registration. No patient has made any complaint about him. His supervisors' comments have been consistently positive. The Tribunal does not find that the Practitioner's present clinical competence would provide a foundation for suspension or cancellation of his registration. It is correct to submit, as the Practitioner has, that his offending conduct now occurred more than six years ago.
4. Under the heading "Insight and Reflection", the Practitioner relied on the reports of his guidance and mentorship from Dr Dharmaratna, Dr Kulaendra, Dr Jayatilake, Dr Gammanpila, Dr Puttappa, Dr Chandrashekhar and Dr Obadimeji over a period of more than three years.
5. The Practitioner relied on the comments of Leeming JA in Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [11]- [12] in which his Honour said that "While there are similarities between criminal sentencing and the formulation of appropriate orders in matters of professional discipline, there is no precise analogy. Disciplinary proceedings are sui generis" and "[I]n particular, the power to impose orders is largely protective rather than punitive". His Honour referred to cases where Tribunals erred by treating an offending party "more severely because she disputed the charges". His Honour observed that there was "an obvious tension between the entitlement of a practitioner to insist that the HCCC proves its case, and the HCCC's submission that contesting its case will disentitle the Practitioner from establishing insight into the misconduct, and indeed will favour a more severe disciplinary order. I do not say that in no circumstances could that occur, although I would expect that to occur only in relatively exceptional circumstances (for example, a self-represented practitioner who conducted an extravagantly misguided defence). But I would also expect that if such a submission were made, then the HCCC would advise in advance of the hearing of the orders that it sought and the particulars on which it relied, or otherwise take steps to ensure that the hearing was fair".
6. We do not understand there to be any suggestion that, although the Practitioner has been critical of submissions made, assertedly in some instance in "emotive" terms, the Commission has prosecuted its case other than fairly. In any event the Tribunal does not consider that it has. The Tribunal will not make a decision which is more severe because the Practitioner disputed the charges brought against him by the HCCC. As Leeming JA's Judgment confirms, there is a difference between criminal sentencing and protective proceedings of this kind. However, where, as in this case, findings of grave misconduct have been made, in the absence of the Practitioner giving evidence and being cross-examined in relation to his insight into and actions to address his offending conduct rehabilitation could not lightly be found, and the Commission's assertions with respect to deficiencies of character could lightly be rejected.
7. The Practitioner referred to the decision of the Court of Appeal in Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82, in which any suggestion that confession was a necessary precondition to reinstatement was rejected. If the Commission fails to establish that the relief it seeks is necessary to protect the health and safety of the public, the Tribunal will not grant that relief. The Commission cannot advance its case in reliance upon the Practitioner maintaining his innocence, as submitted by Senior Counsel for the Practitioner [20]. Although the Practitioner's disagreement with the Tribunal's decision is irrelevant to our determination, his reported acceptance of it, and the implications of such acceptance are relevant.
8. Senior Counsel for the Practitioner submitted [21] that "Despite his denials to some aspects of the proven conduct" had "tendered a body of evidence of his insight and reflections into both the admitted and denied conduct. He has engaged in extensive education, retraining, supervision mentoring and full compliance with intensive supervision for more than three years". The last of those sentences is not in doubt. The Practitioner has tendered a "body of evidence" which is reliable, and provides some "insight and reflections into both the admitted and denied conduct". That insight and those reflections are however limited. Although the topics of the various courses involve issues related to the Practitioner's proven misconduct, they do not address, in the way that, for example, a report from a psychologist or psychiatrist might, how the Practitioner has engaged specifically with the sexual assault, attempted bribe and misleading statements to the regulator which were proved against him. There is a lacuna in the evidence with respect to the Practitioner's insight into his offending conduct, how it could have come about, and why he says that it will not recur. There is force in the submission of the Commission that the person best able to give evidence about those matters chose not to, thereby leaving the Tribunal without the benefit of hearing what the Practitioner says about his insight into his own conduct, its impact on his victims and, in the light of that evidence, the unlikelihood of his reoffending.
9. Senior Counsel for the Practitioner submitted, correctly in our view, that the Tribunal would impose the least restrictive conditions necessary to protect the health and safety of the public. It was submitted that suspension or cancellation of the Practitioner's registration, or the imposition of more onerous conditions than those to which the Practitioner is presently subjected would be excessive and inappropriate. In support of those contentions, Senior Counsel for the Practitioner referred to the statement in Health Care Complaints Commission v Aref [2018] NSWCATOD 133 (Aref) at [25] that "[I]mposition of restrictions on the practice of a health professional are only to be done in pursuit of this higher objective (protection). Such a determination of necessity and appropriateness is made considering what measures are needed to ensure future behaviour of the Practitioner, and others, is shaped in such a way that is consistent with these protective goals". The decision of the Court of Appeal in Lee v Health Care Complaints Commission [2012] NSWCA 80 (Lee) at [34] was relied upon in further support of that proposition. The Tribunal accepts that those contentions are correct. To impose more restrictive protective measures than are necessary to protect the health and safety of the public would be contrary to the objective and guiding principle articulated in s 3B of the National Law.
10. Also in reliance upon the Judgment of Basten JA in Lee at [31], Senior Counsel for the Practitioner submitted that elements of deterrence are "subsidiary to other protective elements in the exercise of a protective jurisdiction". The Tribunal accepts that, although relevant to the determination of these proceedings, specific and general deterrence are "subsidiary" to other "protective elements", particularly in view of the objects and purposes of the National Law, and the paramount consideration mandated by it. The Tribunal is conscious of the need in the particular circumstances of this case, to avoid allowing specific or general deterrence to assume a significance to which it is not properly entitled. That involves avoiding drawing inferences which are unfair to the Practitioner in reliance upon his failure to give evidence.
11. In support of her contentions that a reprimand, with conditions, appropriately protected the health and safety of the public, Senior Counsel for the Practitioner submitted that a reprimand may be all that is necessary to indicate that there is no further need for deterrence. In support of that contention Senior Counsel for the Practitioner referred to the decisions in Health Care Complaints Commission v Dunstan [2018] NSWCATOD 102 (Dunstan) , Health Care Complaints Commission v Lord [2019] NSWCATOD 182 (Lord) and the unreported decision of Peeke v Medical Board of Victoria (Supreme Court of Victoria, No 10170 of 1993, 19 January 1993). In the last mentioned case it was accepted that a reprimand does not "trivialise a serious lapse of professional standards". The Tribunal accepts that, in appropriate cases, a reprimand may encompass proper specific and general deterrence (see Health Care Complaints Commission v Gazal [2023] NSWCATOD 92). It remains to consider whether, in all the circumstances, this is such a case.
12. Senior Counsel for the Practitioner did not dispute the legal principles asserted on behalf of the Commission. Nor did Counsel for the Commission dispute the legal principles advanced on behalf of the Practitioner. The issue requiring careful consideration in this case does not involve determining what the law is, but making an appropriate evaluative determination in the light of agreed and well settled legal principles. That value judgment is fact specific.
13. Senior Counsel for the Practitioner submitted that the period of cancellation, two or three years, for which the Commission contended was "entirely arbitrary" and lacking an articulated basis with respect to protective principles. There is force in that contention although, having regard to the limited extent to which "ranges" or "comparable" protective orders in other cases may be relied upon, it is difficult to suggest how any period advanced could not, at least to some extent, be "arbitrary". If cancellation is necessary in order to protect the health and safety of the public, the Tribunal must then consider, in the light of the findings which lead it to order cancellation, whether, and if so within what period the Practitioner might rehabilitate himself in order to be able to make an application for re-registration which could be found to have merit. Any such period would necessarily be no longer than the evidence suggests might be necessary for the Practitioner to rehabilitate himself with respect to matters where rehabilitation, or further rehabilitation is required.
14. In view of the submissions by Senior Counsel for the Practitioner with respect to the duration of any non-review period, as a matter of procedural fairness, the Tribunal raised with Senior Counsel the possibility of a one year non-review period if the Practitioner's registration were cancelled. Although, properly, not resiling from the Practitioner's primary position, the Tribunal did not understand Senior Counsel to seriously dispute that a twelve month non-review period would be inappropriate in those circumstances.
15. Senior Counsel for the Practitioner referred to the decisions in Health Care Complaints Commission v Wong [2017] NSWCATOD 99, Health Care Complaints Commission v Singh (No 2) [2024] NSWCATOD 46, Health Care Complaints Commission v Safi (No 4) [2017] NSWCATOD 102 (Safi), Health Care Complaints Commission v Marino (No 2) [2016] NSWCATOD 75 (Marino) in support of her contention that, proven conduct assertedly more serious than that admitted or found in this case supported the Practitioner's contention that the relief sought by the Commission was excessive. As Counsel for both parties have reminded the Tribunal, and we accept, caution must be exercised when considering the impact of decisions in other cases on materially different facts. Not insignificantly, in Safi, the practitioner was submitted to have "failed to adduce evidence of insight and did not admit to the conduct", his registration being cancelled with a non-review of 18 months. The Tribunal accepts that the conduct in Marino appears to have been more serious than that admitted or found with respect to the Practitioner. Unlike in this case, in Marino, the practitioner gave sworn evidence in which, although maintaining his innocence with respect to certain matters proved against him, he gave evidence of insight and remorse. Unlike in this case, the practitioner was cross-examined on his sworn statement. We do not find the decision in Marino helpful to the Practitioner's case.
16. Senior Counsel for the Practitioner submitted, in reliance upon Do and Health Care Complaints Commission v Balasingham [2025] NSWCATOD 40 at [51] that the Commission's reliance upon the Practitioner's asserted "character flaw" was "entirely misplaced and should be disregarded". It was further submitted that if the Commission was alleging against the Practitioner that he possessed a "fundamental character flaw" precluding him from registration, the proper approach would have been to squarely allege that he was not a "suitable person" to hold registration and that, having failed to do so, raising the issue in these proceedings in the way in which the Commission has involved a denial of procedural fairness.
17. The Tribunal is unable to accept that, because the evidence relied upon by the Commission in support of its complaints pursuant to s 149C(1)(b) of the National Law might have been relied upon had it also sought findings under s 149C(1)(d), means that the Commission is now seeking protective orders on a basis which it has not previously raised and proved. There may be cases where that is attempted, but this is not such a case. The Tribunal has not been directed to any authority establishing that, in a case such as this, the Commission is estopped from relying on proven misconduct which can reasonably be described as evidence of deficiencies of character.
18. The Tribunal cannot accept that, on the facts of this case, the Commission could not rely on what were submitted to be "deficiencies of character" which were inherent in the Tribunal's Stage 1 findings. Cumulatively, if not individually, the sexual assault, attempted bribery and misleading of the regulator revealed "deficiencies" in the character of the Practitioner. The Practitioner having been found guilty of professional misconduct, the Commission was entitled to pursue the relief it seeks pursuant to s 149C(1)(b) of the National Law. The fate of the Practitioner in this case does not depend on finding that his offending conduct evidenced a "deficiency of character". If the Tribunal finds that there is an unacceptable risk that the serious offending conduct could recur, cancellation of registration would be appropriate, irrespective of whether evidenced a deficiency of character. In Bannister v Walton (1993) 30 NSWLR 699, Clarke JA said at 735A-B that it "may be, however, that he tribunal may reach conclusions on a number of factual issues which while not strictly relevant to the complaint may be considered to be of importance in determining what is the appropriate order to be made". The Tribunal reaches its conclusions on factual issues which were strictly relevant to the complaint.
19. Senior Counsel for the Practitioner asserted that it was "simply incorrect" to submit, as the Commission has, that the Practitioner has "offered no evidence upon which to base a finding that he does not understand the deficiencies as proven" in the Stage 1 hearing. The Tribunal agrees that there is evidence, which we accept, which does provide some support for the Practitioner's contention that he understands those deficiencies in his conduct as a medical practitioner. As submitted on behalf of the Commission however, the Tribunal has heard nothing about those important matters from the Practitioner. Thus there has been no opportunity for the Commission to test, and the Tribunal to evaluate, the nature and extent of the Practitioner's insight into and understanding of those deficiencies. The Commission submitted, and the Tribunal accepts that, having regard to the nature and gravity of the Practitioner's admitted and proven offending conduct, and particularly having regard to his disciplinary history, the absence of that evidence militates finding that there has been rehabilitation, or adequate rehabilitation. As was submitted on behalf of the Commission, and the Tribunal accepts, the parties are bound by the findings, including with respect to credit, in the Stage 1 hearing. The Practitioner having elected not to give evidence, and the Stage 1 findings not having been shown to be glaringly improbable, there is no reason to depart from those findings in any event.
20. Senior Counsel for the Practitioner submitted, correctly in the Tribunal's view, that the Practitioner's "three years practising under conditions cannot be ignored in circumstances where all three supervisors attest to his current competence, attest to the high regard in which he is held by his loyal patients, attest to his good character and attest to his full compliance and improvement under conditions". The Tribunal agrees with those contentions. Not only can those matters not be ignored, they are entitled to significant weight. In reality, if the Practitioner's offending conduct had been found to be referable to matters such as ignorance, personal circumstances, pressure of work, or possibly carelessness, cancellation of his registration might not be necessary to protect the health and safety of the public. As is not in doubt however, save with respect to the prescribing, none of those explanations, namely ignorance, or perhaps carelessness, has been asserted to apply to the Practitioner's offending conduct.
21. Senior Counsel for the Practitioner made a number of submissions in relation to the relevance of the Practitioner's failure to give evidence in the Stage 2 hearing. During the course of those submissions Senior Counsel provided references to the transcript of the evidence which the Practitioner gave in the Stage 1 hearing. We have read each of the passages of the transcript identified by Senior Counsel for the Practitioner. In the course of oral submissions Senior Counsel identified passages in the cross-examination of the Practitioner, which continued over a number of days, in which he expressed stress, not coping well and struggling with the stress of questioning. With respect to Senior Counsel for the Practitioner, we are unable to accept that anything said by the Practitioner at the Stage 1 hearing assists his case in these proceedings or provides a compelling explanation for his failure to give evidence in the Stage 2 hearing. The inescapable reality is that there is no explanation for the Practitioner's decision not to give evidence and be cross-examined.
22. Senior Counsel for the Practitioner referred to the report of the s 150A hearing (HCCC 1, Tab 32). We accept that circumstances have changed since that report, the most significant being the findings of misconduct recorded by the Tribunal in the Stage 1 hearing. As we have also earlier recorded, in an endeavour to address the issues raised by the Commission, Senior Counsel for the Practitioner relied significantly on the supervision, education and CPD reports with respect to the Practitioner now spanning more than three years. It was conceded, properly, that the sexual boundary violations against the Practitioner established in the Stage 1 hearing "largely fall in favour of cancellation".
23. It was submitted in response to the Commission's reliance on the Practitioner's 2006 and 2007 misconduct, that such misconduct was not relevant, in part because of the antiquity of those events, and in part because of the evidence of asserted rehabilitation emerging from the reports on which the Practitioner relied. We cannot agree with the Practitioner's contention. At the very least, as submitted by the Commission, the Practitioner should have been vigilant to avoid any repetition of that misconduct. For the reasons recorded below, the Tribunal does not consider that the significance of the Practitioner's prior misconduct is limited to that extent.
24. It was submitted, correctly, that the Practitioner's history demonstrated that he was capable of complying with strict practising audit and supervision conditions. Ultimately, it was submitted that the Commission had not established that it was necessary in the interests of the protection of public health and safety for the Practitioner's registration to be cancelled or for any period to be imposed with respect to any application for re-registration.

1. The parties do not disagree in substance as to the legal principles which govern or guide the present proceedings.
2. The disciplinary powers of the Tribunal in subdivision 5 of Division 3 of the National Law must be exercised in accordance with the objectives and guiding principles articulated in ss 3 and 3A, the paramount consideration being the protection of the health and safety of the public. The paramount consideration does not operate in a vacuum and a number of considerations inform the determination of appropriate protective orders.
3. The Commission acknowledged that the imposition of restrictions on the practice of a health professional are only to be done in pursuit of the paramount consideration and that such a determination of necessity and appropriateness are made considering what measures are needed to ensure future behaviour of the Practitioner, and others, is shaped in such a way that it is consistent with the protective objectives (Aref; Lee).
4. In Medical Board of Australia v Liang Joo Leow [2019] VSC 532, to which both Counsel referred in oral submissions, Niall J said that "In assessing how the public might view the facts, it is important that visceral responses, as prevalent or legitimate as they might be, do not dominate at the expense of a considered response, having regard to all the competing factors". To the extent that the Practitioner's offending conduct might provoke a "visceral" response, the Tribunal resists so doing and determines the proceedings by reference to the statutory provisions, the principles relating to their exercise and the evidence before it. The Tribunal's response is considered.
5. Basten JA said in Lee, at [31] that elements of general deterrence are "subsidiary to other protective elements in the exercise of a protective jurisdiction" and, as in this case, recorded that the Commission had "led no empirical evidence to support a submission that general deterrence is only met by the imposition of cancellation for a period of two or three years". The Tribunal accepts that, if cancellation of the Practitioner's registration is necessary in order to protect the health and safety of the public, there is no empirical evidence guiding its determination of the appropriate length of such period. The exercise involves consideration of the various factors to which Counsel for the parties have referred in their submissions. It is not in doubt that, before any consideration of the period of cancellation before which a re-registration application can be made is considered, the Tribunal must first be comfortably satisfied that cancellation of registration is necessary to ensure the health and safety of the public.
6. A reprimand, which the Practitioner sought, acts as a deterrent both directly and indirectly (NSW Bar Association v Meakes [2006] NSWCA 340) and upholds and reinforces the standards of and confidence in the profession (Riley v Health Care Complaints Commission [2019] NSWCATOD 54; Health Care Complaints Commission v Perera [2018] NSWCATOD 112; Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156). A reprimand may be all that is necessary to indicate there is no further need for deterrence (Dunstan; Lord). A reprimand does not trivialise a serious lapse of professional standards and although potentially inadequate in all the circumstances of a particular case does reflect denunciation (Psychologists Registration Board of Australia v Coleman (Review and Regulation) [2013] VCAT 738).
7. In Do, a practitioner prescribed drugs of addiction and restricted substances to his former de facto partner who was drug dependent, and failed to maintain records of prescriptions and consultations over a two year period. The practitioner's partner died of an overdose. Meagher JA, with whom Basten and Emmett JJA agreed, said, at [29] that the contention that "the absence of evidence as to the [practitioner's] "character" was a relevant consideration was misconceived" as "No complaint or finding was made that her conduct revealed defects of character incompatible with the standards and behaviour required of a member of the medical profession". That is not so in this case.
8. The primary function of the Tribunal exercising jurisdiction under the National Law is protective not punitive, although protective orders may have that effect (Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40). In Do, Meagher JA, with whom Basten and Emmett JJA agreed, said, at [35] that:

"The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar conduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practice, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practice."

1. The Practitioner in this case has undoubtedly been found guilty of serious misconduct. Specific and general deterrence are both relevant, for the reasons Meagher JA stated, and are to be given appropriate weight in determining the protective measures which should be ordered.
2. In Litchfield the Court of Appeal said that "The gravity of professional conduct is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal".
3. The offending conduct of the Practitioner departed from proper standards in four important respects: prescribing of drugs, sexually assaulting a patient, attempting to bribe the patient not to make a complaint about the sexual assault and misspeaking the truth to regulators. Each case must be considered on its own merits and an evaluative process relating to the facts will determine the result. In Chen v Health Care Complaints Commission [2017] NSWCA 186 Basten JA, with whom Leeming JA agreed, said, at [20]:

"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 practice medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgement to be made by the Tribunal as to the nature and seriousness of the conduct."

1. This is not a case in which the Practitioner's professional competence would enliven the discretion to cancel his registration in order to protect the health and safety of the public. The critical issue in this case relates to the deficiency of character which the findings of the Tribunal at Stage 1 necessarily involve and whether, on all the evidence before the Tribunal the Commission makes good its contention to the Tribunal that, at least in relation to three of the four areas in which the Practitioner exhibited deficiencies of character, those deficiencies have not been eliminated or alleviated and constitute an unacceptable risk to the health and safety of the public.
2. In Lee, the Court of Appeal cautioned against undue reliance on the outcomes of earlier cases. To the extent that either party has relied upon earlier decisions, with respect to the submissions of both Counsel, other than in a general sense, we do not gain significant assistance from those cases.
3. With respect to general deterrence, as Litchfield confirms, the power of a medical practitioner in relation to a patient is an important consideration, as is the patient's entitlement to rely upon not only the professional competence of a medical practitioner, but the practitioner's strict adherence to the well-established boundary limitations with which medical practitioners are or are expected to be familiar.

1. As the Tribunal's review of the submissions on behalf of the parties confirms, two issues require determination:

(1) whether cancellation or suspension of the Practitioner's registration is necessary to protect the health and safety of the public;

(2) if suspension or cancellation is required, the period of suspension or the period within which the Practitioner may not apply to renew his registration if cancellation is ordered.

1. If the Commission's case were based on the professional skills of the Practitioner, or his level of experience, training, or education, the Tribunal would not be satisfied that cancellation or suspension of the Practitioner's registration was necessary in order to protect the health and safety of the public and would permit the Practitioner to continue to practice subject to appropriate conditions. Similarly, although specific, and to a greater degree general deterrence are relevant considerations in this case, suspension or cancellation of the Practitioner's registration could not, without more, be justified on those grounds. That said, in the circumstances of this case, general deterrence is entitled to significant weight, and potentially more significant weight than it would in many other cases.
2. The Tribunal accepts the contention on behalf of the Commission that, having regard to the nature and gravity of the Practitioner's admitted or proven misconduct, reputable members of the medical profession, and fair minded members of the community would be concerned if, not having given evidence with respect to his insight into and present attitudes to his offending conduct, and its impact on his victims, he was nevertheless permitted to continue to practise. So doing would not only potentially undermine public confidence in the medical practitioner but, unfairly to reputable medical practitioners, cause disquiet in the profession and the community as to the vigilance of the Tribunal in relation to grave misconduct of the kind admitted by or proved against the present Practitioner.
3. The paramount consideration mandated by the National Law is the protection of the health and safety of the public. The documentary and opinion evidence relied upon by the Practitioner addresses most of the concerns the Tribunal has with respect to the health and safety of the public if the Practitioner is permitted to continue to practise medicine. With no disrespect to any of the reputable doctors who have given evidence in support of the Practitioner, they do not and cannot however address what Counsel for the Commission identified as the absence of evidence from the person best able to give it with respect to the Practitioner's rehabilitation.
4. Basten JA referred in Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102, at [74] to the potential significance of a finding that the "harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood may have opened the eyes of the individual concerned to the seriousness of his or her conduct, so as to diminish significantly the likelihood of its repetition", and produce a "level of insight" into character or misconduct which "did not previously exist". The Tribunal is unable to make those findings in this case. The Tribunal's acceptance of the evidence relied on by the Practitioner does not overcome the evidentiary lacuna resulting from the Practitioner's decision not to give evidence.
5. The Practitioner has clearly made significant and effective steps towards rehabilitation. Having not heard the Practitioner give evidence, and be tested in relation to such evidence, the Tribunal is unable to find that there is no risk of his reoffending or, that any such risk is so low as not to necessitate suspension or cancellation of his registration to protect the health and safety of the public. As recorded earlier, no part of the Tribunal's determination involves any criticism of the Practitioner for denying the serious allegations which he did in the Stage 1 hearing and continuing to maintain his innocence. Dr Kulaendra said, and the Tribunal accepts that the Practitioner told him that, notwithstanding that he continues to assert his innocence, the Practitioner "accepts" the Tribunal's decision in the Stage 1 hearing. As submitted on behalf of the Commission, in the absence of evidence from the Practitioner as to what he "accepts" and what insight he has into his admitted and proven misconduct the Tribunal is unable to reject the Commission's contentions that there is a risk of re-offending.
6. In the absence of evidence from the Practitioner with respect to the matters upon which the Commission ultimately principally relies, and there is no such evidence nor any explanation for its absence, the Tribunal can more comfortably find that there is an unacceptable risk of the Practitioner reoffending if he is permitted to continue to practice in reliance on the Tribunal's Stage 1 findings. That absence is the more significant in view of the Practitioner's prior misconduct and, in two respects, the similarity between that misconduct and the misconduct proved at the Stage 1 hearing. In Manly Council v Byrne and Anor [2004] NSWCA 123, after reviewing a number of decisions in which Jones v Dunkel inferences were considered Campbell J, with whom Beazley JA and Pearlman AJA agreed, said, at [51] that "if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should be drawn".
7. Importantly, Campbell J also said, at [54] that "though Jones v Dunkel licenses drawing more confidently, an inference available against the party who has failed to call the evidence, before that can happen there must first be available to be drawn, on the evidence which has been admitted, an inference against that party". The Tribunal is comfortably satisfied that the pre-condition to drawing inferences unfavourable to the Practitioner which his Honour identified at [51] are satisfied in this case.
8. Also importantly, Campbell J said, at [55] that "if the evidence which has been admitted is enough to prove the case of the party who has not called the witness, the tribunal of fact could be justified in not counting the failure of that party to call the witness as something that reduces the strength of that case". As the evidence which the Practitioner has called does not preclude the Commission from proving its case, the Tribunal is entitled to draw the second kind of inferences which his Honour identified.
9. In concluding that suspension or cancellation of the Practitioner's registration is required, the Tribunal takes into account in the Practitioner's favour the evidence of Dr Kulaendra as to the likely impact on patients of the Practitioner, particularly Tamil speaking and indigenous patients. Suspension or cancellation of the Practitioner's registration may have a financially punitive effect on him and his family. The Practitioner having given no evidence about them, such matters cannot be given any weight.
10. The Tribunal is comfortably satisfied, in the absence of evidence from the Practitioner enabling it to find otherwise, that, notwithstanding that the Practitioner has rehabilitated himself in many respects, he has not done so in critically important respects having regard to the nature and gravity of his offending conduct. The Tribunal is thus comfortably satisfied that suspension or cancellation of the Practitioner's registration is required to protect the health and safety of the public. Failing to do so would constitute an unacceptable risk to the health and safety of the public.
11. Having regard to the Tribunal's Stage 1 findings, to the extent that it may have seriously been in issue at the hearing, suspension of the Practitioner's registration would not be appropriate, for at least two reasons. The first is that the Tribunal's findings with respect to the risk to the health and safety of the public, without more, are counter indicative of suspension of the Practitioner's registration for a period, after which, the Practitioner could resume practice, albeit subject to conditions. The second is that, whilst any period of suspension is necessarily somewhat arbitrary, in the absence of any evidence from the Practitioner with respect to his rehabilitation in relation to insight into and correction of the deficiencies of character found at the Stage 1 hearing, the determination of any period of suspension would be necessarily unacceptably arbitrary.
12. The Tribunal being comfortably satisfied that cancellation of the Practitioner's registration is required to protect the health and safety of the public, it is necessary to determine the period during which the Practitioner may not apply for re-registration. Given the period which has passed since the Practitioner's offending conduct, and the extent of rehabilitation which he has achieved, particularly in the last three years, it is not unrealistic to suggest that, provided that, with or without the assistance of a psychologist or psychiatrist, he addresses the aspects of his rehabilitation which have not been addressed, the Practitioner could reasonably apply for re-registration. If he did so, it would be a matter for consideration in the light of the evidence of his further rehabilitation.
13. In all circumstances, and accepting that it is a necessarily less than empirical value judgment, the Tribunal considers a non-review period of twelve months to be appropriate. That determination is informed by the likelihood that, within that time the Practitioner could remedy the respects in which his rehabilitation has been found to be deficient. Whilst such a period is likely to create difficulties for the Practitioner's patients, and, presumably, financial difficulties for the Practitioner, the evidence does not suggest that those difficulties will have catastrophic or enduring consequences for patients or the Practitioner.

1. Although it is difficult to see why the costs of these proceedings should not follow the event, the Practitioner be ordered to pay the Commission's costs on the ordinary basis, the Tribunal will afford him the opportunity to file submissions in opposition to such order.

(1) That the registration of Kulanayagam Sathiyapal as a medical practitioner be cancelled pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law 2009 (NSW).

(2) That an application for review of order 1 may not be made until twelve months after the date of these orders.

(3) The Respondent pay the Applicant's costs as agreed or assessed on the ordinary basis unless, within 21 days, the Respondent files and serves written submissions not exceeding 7 pages in length seeking some other order.

(4) In the event that the Respondent files submissions pursuant to order 3, the Applicant file submissions in response within 42 days.

(5) Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) the Tribunal dispenses with a hearing of any application by the Respondent pursuant to order 3.

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.