(1992) 67 ALJR 170
Rao v R [2019] NSWCCA 290
R v Bauer (2018) 266 CLR 56
[2018] HCA 40
R v The War Pensions Entitlement Appeals Tribunal
Ex parte Bott (1933) 50 CLR 228
[1933] HCA 30
Seamez v McLaughlin [1999] NSWSC 9
Xie & Ors v Qin & Anor
Source
Original judgment source is linked above.
Catchwords
(1992) 67 ALJR 170
Rao v R [2019] NSWCCA 290
R v Bauer (2018) 266 CLR 56[2018] HCA 40
R v The War Pensions Entitlement Appeals TribunalEx parte Bott (1933) 50 CLR 228[1933] HCA 30
Seamez v McLaughlin [1999] NSWSC 9
Xie & Ors v Qin & Anor
Judgment (30 paragraphs)
[1]
Introduction
We have set out our findings as to the witnesses for the applicant, the respondent and the witnesses for the respondent who gave oral evidence. Having regard to the principles in Ghosh at [69]-[70], [137], we have largely accepted the unchallenged evidence of Dr Uren in the 26 May 2022 Uren report. We have also accepted the unchallenged evidence of the character witnesses for the respondent, and as set out above made findings as to the weight to be attached to their evidence.
[2]
Patient A
We are satisfied that Patient A was a materially credible and reliable witness for the following reasons:
1. there was an essential consistency in her versions relating to the substance of the Amended Complaint of the respondent on 22 June 2021 of removing her underwear and touching her vagina area or clitoris in the 22 June 2021 Patient A/Patient A's sister-in-law conversation notes, the 22 June 2021 Patient A notes, the 15 August 2021 Patient A complaint, the 10 December 2021 Patient A statement, the 10 March 2023 Patient A statement, and her oral evidence;
2. the telephone conversation between Patient A and Patient A's sister-in-law recorded in the 22 June 2021 Patient A/Patient A's sister-in-law conversation notes occurred about 20 minutes after the end of the appointment on 22 June 2021 and in which Patient A was crying, and was followed by Patient A making the 22 June 2021 Patient A notes less than two hours after the end of the appointment;
3. while there were inconsistencies in her evidence which have been referred to by the respondent in the Singh submissions, this is not an unexpected consequence of difficulties in recollection over time when Patient A had 19 consultations over a period of six months between 7 December 2020 and 22 June 2021 involving a number of different practitioners of Physical Health. As to these inconsistencies, which did not relate to the substance of the Amended Complaint, we make the following observations:
1. it is unsurprising that she would not have remembered the identity of the practitioners other than the respondent who treated her at her various appointments, and the time and durations of those appointments, and other matters unconnected to the Amended Complaint such as whether she had seen the 13 April 2021 Patient A progress report;
2. we accept that she received some treatment for her hamstrings, particularly as the respondent conceded that the Patient A Physical Health clinical records were not a complete record of her treatment;
3. we accept that she removed her underwear at the request of the respondent or the respondent removed her underwear more than once prior to 22 June 2021, but had no recollection of the number of times and at what appointments this happened. This is not surprising given she believed that this was necessary for her treatment and she trusted the respondent;
4. the incorrect recollection as to the treatment room in which she was treated at the appointment on 22 June 2021 is not material, particularly when she correctly recollected that it had a sink;
5. the differences in her accounts of the appointment on 22 June 2021 as to extent to which the door was open, the position of the respondent when rubbing her vagina area, the length of time of this touching and her conversation with the respondent are not unexpected when she was being sexually assaulted at that time;
6. the difference between the respondent opening the door adjacent to the reception area and unlocking the door was a matter of minor detail;
7. the request of Patient A at the conclusion of the appointment on 22 June 2021 for the respondent to make a further appointment does not demonstrate that she had not been sexually assaulted, particularly having regard to the different ways in which a person reacts to a sexual assault;
8. while we accept that she received treatment to her right knee at the appointments on 8, 15 and 30 March 2021 and 6 April 2021 as part of her treatment on those days as recorded in the Patient A Physical Health clinical records, it is not surprising that she did not recall this treatment in part of four appointments out of a total of 19 appointments;
9. we do not accept that she did not understand her anatomy and in particular the location of her clitoris and vagina;
1. she had no motive for making an untruthful complaint. We reject the submissions of the respondent that she owed him or Physical Health any monies as explained in [243] below, and had committed any fraud by receiving some treatment to her right knee as explained in [244] below;
2. she gave her oral evidence in a straight forward manner, made concessions that parts of her written evidence were incorrect, maintained the truthfulness of the substance of her complaint against the respondent, and accepted that she could not remember several matters. We do not consider there was a pattern in her response of not remembering matters such that it was a technique she used to avoid answering questions. Further, we do not regard to manner of giving evidence which the respondent described as with a "blank expression" as in any way indicative that she was not telling the truth;
3. it is inherently implausible that Patient A would have made such a serious complaint about the conduct of the respondent in her telephone conversation with Patient A's sister-in-law on 22 June 2021, the 22 June 2021 Patient A notes, the 15 August 2021 Patient A complaint, the 10 December 2021 Patient A statement, the 10 March 2023 Patient A statement, and her oral evidence, unless the respondent had engaged in that conduct.
[3]
Patient A's sister-in-law
We are satisfied that Patient A's sister-in-law was a credible and reliable witness and that her account of her telephone conversation with Patient A on 22 June 2021 recorded in the 22 June 2021 Patient A/Patient A's sister-in-law conversation notes and the demeanour of Patient A in that conversation was accurate.
[4]
The respondent
We are not satisfied that the respondent was a credible and reliable witness for the following reasons:
1. it is implausible that the respondent had the detailed recollection of the events involving Patient A recorded in the 28 April 2023 Singh affidavit to the extent that they expanded upon the record of events in the 27 August 2021 Singh response which had been prepared 20 months earlier. We do not accept that respondent's explanation that the reason was that the 27 August 2021 Singh response had been prepared within a short time to respond to the Council given its length, comprehensive nature and inclusion of statements of two patients who had been at the practice on 22 June 2021;
2. it is implausible that the respondent had the detailed recollection of the events involving Patient A recorded in the 28 April 2023 Singh affidavit when in cross-examination he was unable to remember whether he treated Patient A on particular days without access to the Patient A Physical Health clinical records;
3. the respondent's evidence about the doors of the treatment rooms being always open during treatment of a patient was contradicted not only by Patient A, but also Mr Vo, Dr Romero, Ms Romero and Mr Wilson;
4. we infer that he colluded with Mr Nies, Mr Salib and Mr Wilson in the preparation of the 9 May 2023 Nies statement, the 9 May 2023 Salib statement and the undated Wilson statement as explained in [251], [262(4)], [265(3)] and [266] below. This collusion casts doubt upon the credibility and reliability of his evidence generally on any controversial matter of importance;
5. his oral evidence was characterised by his failure to answer questions by asking questions in response and making assertions as to why the impugned conduct could not have happened. At times he was argumentative and evasive.
We do not accept as plausible the explanation of the respondent for his breach of the 21 September 2021 Council conditions. Ms Mclear and Ms Romero were patients of the respondent. The absence of appointment times, clinical notes and payment did not mean that they were not patients. There is no distinction between a patient and a client. However, we do not regard this breach as being relevant to his reliability and credibility in relation to the impugned conduct.
We do not accept the evidence of the respondent that Patient A owed any money to Physical Health for her treatment for the following reasons:
1. there was no evidence that Allianz approved physiotherapy for two treatment areas on 8 February 2021 as claimed for the period from 21 December 2020 to 8 March 2021 in the 8 March 2021 Physical Health invoice. We reject the evidence of the respondent that Patient A agreed to pay any difference between the fees charged and the amount recovered from Allianz, particularly in the absence of any invoice for the difference sent to Patient A;
2. the approval of Allianz for physiotherapy in the 7 April 2021 Allianz letter was for one treatment area for the period from 15 March 2021 to 6 May 2021 sought in AHRR1. We reject the evidence of the respondent that Patient A agreed to pay any difference between the fees charged for the period from 11 May 2021 to 22 July 2021 and the amount recovered from Allianz, particularly in the absence of any invoice for the difference sent to Patient A;
3. the approval of Allianz for physiotherapy in the 1 June 2021 Allianz letter was for two treatment areas for the period from 11 May 2021 to 22 July 2021 sought in AHRR2. We reject the evidence of the respondent that Patient A agreed to pay any difference between the fees charged for the period from 15 March 2021 and 11 May 2021 in the 11 May 2021 Physical Health invoice and the amount recovered from Allianz, particularly in the absence of any invoice for the difference sent to Patient A.
We do not accept the evidence of the respondent that Patient A was committing a fraud on WorkCover by not making a claim for the injury to her right knee on 7 March 2021 for the following reasons:
1. there was no obligation for Patient A to submit a claim to SIRA;
2. Mr Vo and then the respondent elected to treat the right knee of Patient A as recorded in the Patient A Physical Health clinical records.
For these reasons, we have decided to place no weight on the evidence of the respondent where it differs from the evidence of Patient A and is inconsistent with the contemporaneous documentary evidence.
[5]
Mr Nies
We are satisfied that Mr Nies had no memory of the events involving Patient A in addition to those recorded in the 26 August 2021 Nies statement at [3] to [5]. We are not satisfied that he was a credible and reliable witness in circumstances where in cross-examination he resiled from the detailed account of conversations and other events in the 9 May 2023 Nies statement. Having regard to the principles in Seamez at [36] and Xie at [72]-[73], we infer from the substantial similarity between the conversation recorded in the 28 April 2023 Singh affidavit at [39] and the 9 May 2023 Nies statement at [13] as well as their friendship that he and the respondent colluded in the preparation of the 26 August 2021 Nies statement, and that this conversation is untrue. Further, this collusion casts doubt upon the credibility and reliability of his evidence generally on any controversial matter of importance.
For these reasons, we have decided to place no weight on the evidence of Mr Nies other than his evidence that the respondent was treating Patient A as the last patient when he left on 22 June 2021 in treatment room 3, and otherwise where it is consistent with the evidence of Patient A.
[6]
Mr Vo
We are satisfied that Mr Vo had no memory of the events involving Patient A independent of the entries he made in the Patient A Physical Health clinical records between 7 December 2020 and 15 March 2021. He was a credible and reliable witness so far as his evidence of the treatment he provided to Patient A, his treatment of her with the door of the treatment room closed, and his advice to Patient A to inform the insurer of the injury to her right knee on 7 March 2021.
We do not accept Mr Vo's explanation of reliance on an earlier summary of the Patient A Physical Health clinical records when preparing the 9 May 2023 Vo statement. It is implausible he would have made a summary of the occasions he treated Patient A but not included reference to those occasions in the 23 August 2021 Vo statement. Mr Vo either had access to the Patient A Physical Health clinical records or was provided with information by the respondent when preparing the 9 May 2023 Vo statement.
We are not satisfied that Mr Vo was otherwise a credible and reliable witness because it is implausible that he remembered details of the attendances of Patient A and the specific conversations with Patient A and the respondent other than the conversation on 8 March 2021 when they were not mentioned in the 23 August 2021 Vo statement and over two years had elapsed since they had occurred.
For these reasons, we have decided to place no weight on the evidence of Mr Vo other than his evidence of the treatment he provided Patient A, his treatment of her with the door of the treatment room closed, and his advice to Patient A to inform the insurer of the injury to her right knee on 7 March 2021, and otherwise where it is consistent with the evidence of Patient A.
[7]
Dr Romero
We are satisfied that Dr Romero was a credible and reliable witness so far as his evidence that he attended the consultation of Patient A on 6 April 2021 and treated Patient A on 13 April 2021. Dr Romero's evidence as to the treatment Patient A on 13 April 2021 accords with the entry in the Patient A Physical Health clinical records for that date. We also accept his oral evidence that he sometimes closed the door of the treatment room when he was treating patients.
We are not satisfied that Dr Romero was otherwise a credible and reliable witness for the following reasons:
1. it is implausible that he prepared the 8 May 2023 Dr Romero statement over a period of several months commencing in 2022 in circumstances where the applicant did not commence the proceedings until 9 January 2023;
2. it is implausible that he remembered the precise conversation between Patient A and the respondent on 6 April 2021 as recorded in the 8 May 2023 Dr Romero statement when he had not referred to any such conversation in the 23 August 2021 Dr Romero statement and there was no relevant entry in the Patient A Physical Health clinical records for that date;
3. it is implausible that he remembered seeing Patient A at the clinic on 11 May 2021 as recorded in the 8 May 2023 Dr Romero statement when he had not referred to any sighting in the 23 August 2021 Dr Romero statement;
4. it is implausible that he remembered seeing Patient A at the clinic on 8 June 2021 as stated in his oral evidence when he had not referred to any sighting in the 23 August 2021 Dr Romero statement and the 8 May 2023 Dr Romero statement.
For these reasons, we have decided to place no weight on the evidence of Dr Romero other than his evidence that that he attended the consultation of Patient A on 6 April 2021 and treated Patient A on 13 April 2021 and sometimes closed the door of the treatment room when he was treating patients, and otherwise where it is consistent with the evidence of Patient A.
[8]
Ms Romero
Except for her evidence that when she was treating Patient A sometimes the door would be closed for a little bit more privacy, we are not satisfied that Ms Romero was a credible and reliable witness for the following reasons:
1. the 11 May 2023 Ms Romero statement was made without access to the Patient A Physical Health clinical records and in consultation with the respondent and Dr Romero;
2. in cross-examination she conceded that details in in the August 2021 Ms Romero statement and the 11 May 2023 Ms Romero statement were incorrect;
3. in cross-examination she resiled from her evidence that she observed Patient A hug the respondent on 1 February 2021.
For these reasons, we have decided to place no weight on the evidence of Ms Romero other than her evidence that when she was treating Patient A sometimes the door would be closed for a little bit more privacy, and otherwise where it is consistent with the evidence of Patient A.
[9]
Mr Salib
We are not satisfied that Mr Salib was a credible and reliable witness and had an actual recollection of his attendance at the clinic on 22 June 2021 for the following reasons:
1. it is implausible that he remembered the arrival time at the clinic when the 21 June 2021 Singh/Salib text messages did not refer to any time for collection of supplements on 22 June 2021 and the details of the visit on that day, including the words spoken by the respondent to him and by the respondent to a patient in circumstances where he had been attending the clinic on a twice weekly and then weekly basis for the previous two and a quarter years, and he had no occasion to recall his appointment on that day until two and half months later and then until 20 months later when he was requested by the respondent to provide a statement;
2. notwithstanding his precise recollection of events in the 9 May 2023 Salib statement, he had no recollection of other events such as what the patient who left and the female patient who was receiving treatment looked like, and whether he received a handwritten receipt on the evening of 22 June 2021 or the respondent may have emailed it to him;
3. contrary to his evidence, he and the respondent were friends as evidenced by their text communications about personal matters and as such he had a motive for assisting the respondent;
4. having regard to the principles in Seamez at [36], we infer from the substantial similarity between his evidence and that of the respondent in the 28 April 2023 Singh affidavit as well as their friendship that he and the respondent colluded together in the preparation of the 9 May 2023 Salib statement. This collusion casts doubt upon the credibility and reliability of his evidence generally on any controversial matter of importance.
For these reasons, we have decided to place no weight on the evidence of Mr Salib.
[10]
Ms Mclear
While we are satisfied that Ms Mclear was a credible and reliable witness, in circumstances where she did not commence working in the practice until January 2022 her evidence has no bearing on whether Complaints One and Two are made out.
[11]
Mr Wilson
We are not satisfied that Mr Wilson was a credible and reliable witness and had an actual recollection of his appointment on 22 June 2021 for the following reasons:
1. it is implausible that he remembered the commencement and finishing times of his appointment on 22 June 2021, the number of patients in the waiting area at those times, the words spoken by the respondent to him and by Mr Nies to the respondent in circumstances where he had been receiving treatment every three weeks at the practice for the previous 18 months, and he had no occasion to recall his appointment on that day until 18 months later when he was requested by the respondent to provide a statement;
2. there were significant inconsistencies between the undated Wilson statement and the oral evidence of Mr Wilson as to the following matters:
1. his recollection of the treatment he received. In the undated Wilson statement he gave a detailed description of the treatment, but was unable to remember the treatment in his oral evidence;
2. as to the door of the treatment room being open or closed when he was receiving treatment. In the undated Wilson statement he said the respondent closed the door to the treatment room, whereas in his oral evidence he said the doors to the treatment rooms were always open except when getting changed. He gave no explanation for this change of evidence;
1. his explanation that he did not think that it was relevant to mention when he left there was still one patient waiting at the practice was unbelievable in circumstances where he had specifically referred to the number of patients waiting when he arrived. We accept that he gave this oral evidence because of information he had received from the respondent.
Except in relation to his evidence that there was one patient waiting when he left the practice, we are not satisfied that the evidence of Mr Wilson was influenced by the respondent as this was never put to him in cross-examination. However, the fact that Mr Wilson received information from the respondent casts doubt upon the reliability of his evidence generally.
For these reasons, we have decided to place no weight on the evidence of Mr Wilson other than his evidence that the respondent closed the door to the treatment room when he was being treated.
[12]
Whether the respondent engaged in the conduct constituting Complaint One, and whether any such proved conduct constitutes unsatisfactory professional conduct
[13]
Introduction
In the HCCC submissions in chief, the applicant made submissions that the Tribunal should find that each of the particulars of Complaint One have been established and referred to the applicable evidence. It is unnecessary to summarise these submissions in view of our earlier summary of the evidence of the applicant.
In the Singh submissions, the respondent in conclusion submitted that he is not guilty of unsatisfactory professional conduct in any of the ways particularised in Complaint One.
We have set out below our findings as to the allegations in the particulars of Complaint One. We had then addressed the question of whether the conduct of the respondent as found constitutes unsatisfactory professional conduct.
[14]
Background
We are satisfied as to the facts in the Background to the Amended Complaint other than that Patient A was treated by the respondent on 13 April 2021. In view of our finding as to the reliability of the Patient A Physical Health clinical records we find that on 13 April 2021 Patient A was treated by Dr Romero.
[15]
Complaint One, Particulars 1 and 7
We are satisfied that on 22 June 2021 the respondent removed the underwear of Patient A, did not obtain her informed consent or provide any explanation to her for the removal, and failed to provide adequate privacy and draping for her.
While we are satisfied that more than once prior to 22 June 2021 Patient A removed her underwear at the request of the respondent or the respondent removed her underwear, we are not satisfied that the respondent removed the underwear on those occasions. Accordingly, we find that the applicant has not established the allegations in Particular 1 of Complaint One other than for 22 June 2021.
We agree with Dr Uren in the 26 May 2022 Uren report that the respondent by his conduct on 22 June 2021 breached clauses 9.2.a) and 3.5 a) of the code of conduct.
Accordingly, we find that the applicant has established the allegations in Particulars 7 and 1 so far as the treatment of Patient A on 22 June 2021 of Complaint One.
[16]
Complaint One, Particular 2
We are satisfied that more than once prior to 22 June 2021 the respondent said, "You need a boyfriend, so they can touch you instead of me", "Have you found a boyfriend yet?", "How's your love life man?" and "Are you touching yourself?", to Patient A.
Leaving aside the question "Are you touching yourself?", we agree with Dr Uren in the 26 May 2022 Uren report that the respondent by making this statement and asking these questions engaged in conduct that would be considered significantly below conduct expected of peers of good standing. There was no clinical significance to this statement and these questions.
We disagree with Dr Uren in the 26 May 2022 Uren report that there was no clinical significance to the question "Are you touching yourself?" We accept that self-massage by a patient can have a positive therapeutic impact and the question did not necessarily have a sexual connotation.
Accordingly, we find that the applicant has established the allegations in Particular 2 of Complaint One other than in respect of the question "Are you touching yourself?".
[17]
Complaint One, Particular 3
We are satisfied that on 22 June 2021 the respondent described a syndrome affecting horseriders to Patient A.
We disagree with Dr Uren in the 26 May 2022 Uren report that the respondent by this description engaged in conduct below the standard reasonably expected of a practitioner of equivalent level of training and experience. It would require a standard of perfection for practitioners not to give an insensitive description of a medical condition in the course of the treatment of patients.
Accordingly, we find that the applicant has not established the allegations in Particular 3 of Complaint One.
[18]
Complaint One, Particular 4
We are satisfied that prior to 22 June 2021 the respondent said to Patient A that he wanted to be the one "treating her at the Olympics".
We disagree with Dr Uren in the 26 May 2022 Uren report that the respondent by this description engaged in conduct below the standard reasonably expected of a practitioner of equivalent level of training and experience. It is not inappropriate for a practitioner to express the hope of an ongoing professional relationship with a patient.
Accordingly, we find that the applicant has not established the allegations in Particular 4 of Complaint One.
[19]
Complaint One, Particulars 5 and 6
We are satisfied that prior to 22 June 2021 the respondent offered to help Patient A move house and to help her put up a new fence at her home.
We agree with Dr Uren in the 26 May 2022 Uren report that the respondent by his offers of help engaged in conduct below the standard reasonably expected of a practitioner of equivalent level of training and experience. These offers of help were not relevant to the therapeutic relationship with Patient A. We accept that the respondent by this conduct breached clause 9.2.a) of the code of conduct.
Accordingly, we find that the applicant has established the allegations in Particulars 5 and 6 of Complaint One.
[20]
Complaint One, Particular 8
We are satisfied that on 22 June 2021 the respondent hugged Patient A at the end of the consultation.
We disagree with Dr Uren in the 26 May 2022 Uren report that the respondent by hugging Patient A engaged in conduct that would be considered significantly below conduct expected of peers of good standing. However, we accept that this conduct was below the standard reasonably expected of a practitioner of equivalent level of training and experience.
Accordingly, we find that the applicant has established the allegations in Particular 8 of Complaint One.
[21]
Complaint One, Particular 9
We are satisfied that on 22 June 2021 the respondent said, "you need a boyfriend so they can work on your own body" and "you should touch yourself before you get into the car and begin the commute home", to Patient A.
We agree with Dr Uren in the 26 May 2022 Uren report that these statements were significantly below conduct expected of peers of good standing. There was no clinical significance to these statements. As to the statement "you should touch yourself before you get into the car and begin the commute home", this was not warranted clinically when Patient A had just finished being treated by the respondent.
Accordingly, we find that the applicant has established the allegations in Particular 9 of Complaint One.
[22]
Complaint One, Particulars 10 to 14
Having regard to the evidence of Patient A, we understand the expression "vaginal area" in Particular 10 of Complaint One to refer to the area immediately adjacent to her clitoris.
We are satisfied that on 22 June 2021 the respondent:
1. rubbed Patient A's vaginal area and clitoris with his hand, and did not obtain her proper consent to the conduct beforehand;
2. took Patient A's left hand in his hand, directing it to her groin area and said words to the effect of "you need to be touching yourself".
We agree with Dr Uren in the 26 May 2022 Uren report that the respondent by his conduct of rubbing Patient A's vaginal area and clitoris with his hand without her proper consent breached clause 9.2.a) of the code of conduct. As the respondent did not have a proper clinical justification for this conduct, we infer that he engaged in it for his own sexual gratification.
Accordingly, we find that the applicant has established the allegations in Particulars 10 and 11 when read with Particulars 13 and 14 of Complaint One.
We disagree with Dr Uren in the 26 May 2022 Uren report that the conduct of the respondent of taking Patient A's left hand in his hand, directing it to her groin area and saying words to the effect of "you need to be touching yourself" was below the standard reasonably expected of a practitioner of equivalent level of training and experience. The description of the conduct of the respondent is consistent with the approach that a practitioner may follow in instructing a patient how to undertake self-massage.
Accordingly, we find that the applicant has not established the allegations in Particular 12 when read with Particulars 13 and 14 of Complaint One.
[23]
Conclusion
Having regard the principles in Aref at [18]-[20], we find that the respondent by his conduct specified in Particulars 1 so far as the treatment of Patient A on 22 June 2021, 2, 7, 9, and 10 and 11 when read with Particulars 13 and 14 of Complaint One engaged in unsatisfactory professional conduct within s 139B(1)(a) and (l) of the National Law.
[24]
Whether by reason of any such proved conduct for Complaint One, the respondent engaged in professional misconduct constituting Complaint Two
[25]
Introduction
In the HCCC submissions in chief, the applicant made submissions that the Tribunal should find that by reason of his conduct constituting Complaint One, the respondent engaged in professional misconduct constituting Complaint Two. It is unnecessary to summarise these submissions.
In the Singh submissions, the respondent relevantly submitted that the respondent is not guilty of professional misconduct in any of the ways particularised in Complaint Two.
We have set out below our findings as to whether the conduct of the respondent as found for Complaint One constitutes professional misconduct constituting Complaint Two.
[26]
Complaint Two
Having regard the principles in Chen at [19]-[20] and Litchfield at 638, we make the following findings:
1. the respondent by his conduct specified Particulars 1 so far as the treatment of Patient A on 22 June 2021, 7, and 10 and 11 when read with particulars 13 and 14 of Complaint One engaged in professional misconduct within s 139E(a) and (b) of the National Law;
2. the respondent by his conduct specified Particular 9 when considered with his conduct specified Particulars 1 so far as the treatment of Patient A on 22 June 2021, 7, and 10 and 11 when read with particulars 13 and 14 of Complaint One engaged in professional misconduct within s 139E(b) of the National Law;
3. the respondent by his conduct specified Particular 2 when considered on its own and with his conduct specified Particulars 1 so far as the treatment of Patient A on 22 June 2021, 7, 9, and 10 and 11 when read with particulars 13 and 14 of Complaint One did not engage in professional misconduct within s 139E(a) and (b) of the National Law.
[27]
The costs of the proceedings
In the HCCC submissions in reply, the applicant submitted that the issue of costs should be dealt with at the stage 2 hearing.
In the Singh submissions, the respondent sought an order that the respondent pay his costs.
During oral submissions, counsel for the respondent agreed that if there was to be a stage 2 hearing it would be appropriate for the issue of costs to be dealt with then.
In view of our findings in relation to Complaints One and Two it is unnecessary to deal with this issue in this decision.
[28]
The further course of the proceedings
Consequent upon our finding that the respondent is guilty of unsatisfactory professional conduct within s 139B(1)(a) and (l) of the National Law and of professional misconduct within s 139E(a) and (b) of the National Law there will need to be a stage 2 hearing to determine what protective orders should be made and the issue of costs.
[29]
Orders
We make the following orders:
1. the publication of the following names, together with any information or material which could identify these persons, whether by itself or with other information and material, is prohibited;
1. the 387 patients who attended Camden Healthcare Centre on 22 June 2021 (as recorded on pages 118 to 130 of exhibit R1);
2. Patient A's sister-in-law;
1. the applicant is to inform the respondent of what protective orders and costs orders it seeks within 14 days;
2. the respondent is to file and serve any further evidence, and an outline of submissions, on what protective orders and costs orders should be made within 28 days thereafter;
3. the applicant is to file and serve any further evidence, and an outline of submissions, on what protective orders and costs orders should be made within 28 days thereafter;
4. the proceedings are adjourned for the conduct of the stage 2 hearing to a date to be fixed by the Registrar.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
[30]
Amendments
12 September 2023 - No amendment made.
12 September 2023 - [11] number omitted.
08 November 2023 - para 56
08 November 2023 - paragraph 56
22 March 2024 - Para 2(2) - amended "s 139B(a)" to "s 139B(1)(a)"
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 22 March 2024
y Ltd [1992] HCA 66; (1992) 67 ALJR 170
Rao v R [2019] NSWCCA 290
R v Bauer (2018) 266 CLR 56; [2018] HCA 40
R v The War Pensions Entitlement Appeals Tribunal; Ex parte Bott (1933) 50 CLR 228; [1933] HCA 30
Seamez v McLaughlin [1999] NSWSC 9
Xie & Ors v Qin & Anor; Qin v Taylor International Investment Pty Ltd [2023] NSWSC 254
Xu v R [2019] NSWCCA 178
Texts Cited: Chiropractic Board of Australia, Code of Conduct for Chiropractors (March 2014)
Chiropractic Technique: Principles and Procedures by Thomas F Bergmann and David H Peterson (3rd edition, 2011, Elsevier)
Macquarie Dictionary (Macmillan Publishers Australia 2023)
Spinal Adjustment Technique: The Chiropractic Art by Stephen Esposito and Scott Philipson (2005, Aron Downie)
Category: Principal judgment
Parties: Health Care Complaints Commission (Applicant)
Atil Singh (Respondent)
Representation: Counsel:
A Petrie (Applicant)
V Hartstein (Respondent)
The principles applicable to the assessment of the credit of witnesses
The applicant made the following submissions as to the principles applicable to the assessment of the credit of witnesses:
1. the approach in Campbell v Campbell [2015] NSWSC 784 at [73]-[79] should be applied;
2. the application of decisions in the field of criminal law concerning sexual offences including King v Health Care Complaints Commission [2011] NSWCA 353 (King) at [65]-[68], Health Care Complaints Commission v Priyamanna [2015] NSWCATOD 138 (Priyamanna) at [179], and Maughan v R [2020] NSWCCA 51 (Maughan) at [2];
3. the principles in ss 292B, 292C, 292D, 293A, 294 and 294AA of the Criminal Procedure Act 1986 (NSW) (CP Act) as well criminal cases considering sexual assault victim behaviour should be considered by the Tribunal in addressing misconceptions of such behaviour;
4. the principles in R v Bauer (2018) 266 CLR 56; [2018] HCA 40 (Bauer) should be applied with respect to the collusion between witnesses.
The use which can be made of character evidence
In the Singh submissions, the respondent submitted that the Tribunal should consider the character evidence given in support of the respondent when considering both his credibility and whether he has committed the matters alleged in the complaint and in additionally in cross-examination, and referred to Khan v General Medical Council [2021] EWHC 374 (Admin) (Khan) at [84]-[97].
In his supplementary oral submissions, the respondent accepted that Khan at [84]-[97] was inapplicable, and referred to Health Care Complaints Commission v Gao [2022] NSWCATOD 73 (Gao) at [79]-[80]. He submitted that character evidence was of limited weight.
Character evidence
In the HCCC submissions in reply the applicant made the following submissions:
1. Khan is not relevant to the proceedings and relies on a very different statutory pathway and different considerations elsewhere. The Tribunal may fall into error by placing any weight on Khan and placing significant weight on the respondent's good character in the assessment of his credibility and propensity;
2. It referred to Health Care Complaints Commission v A Medical Practitioner [2001] NSWCA 158 (Medical Practitioner) at [47] and submitted the respondent's character maybe relevant to any future stage 2 hearing, but not the assessment of his credit on stage 1;
3. referred to Gao at [79] and submitted that a similar finding should be made in these proceedings.
The applicability of the CP Act and criminal law decisions concerning sexual offences
In the HCCC submissions in reply the applicant submitted that the principles set out in the CP Act are consistent with authorities of the New South Wales Court of Criminal Appeal such as Xu v R [2019] NSWCCA 178 (Xu) at [92] and Rao v R [2019] NSWCCA 290 (Rao) at [98] which have warned against stereotypical expectations about how a victim of sexual assault is "supposed" or "expected" to behave.
The proof of facts
In health practitioner disciplinary matters, the factual content of an allegation must be established on the balance of probabilities, and the question as to whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal: Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 at [52].
In Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw), Dixon J commented at 362:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ..."
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 171 (Neat Holdings), the majority of the High Court (Mason CJ, Brennan, Deane and Gaudron JJ) said:
"[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." (citations omitted)
Section 140 of the Evidence Act 1995 (NSW) provides that matters including the gravity of the matters alleged may be taken into account when making findings of fact.
In approaching this issue we have been conscious that, while the principle in Briginshaw supplemented by s 140 of the Evidence Act does not apply to fact finding in these proceedings to which the rules of evidence do not apply, what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to the Tribunal: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [126]-[127] (Leeming JA, with Basten JA at [1] and Gleeson JA at [37] agreeing); Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14]; see also Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [85]-[87] (Payne JA, with Leeming JA at [1] and Simpson AJA at [118] agreeing).
In Health Care Complaints Commission v Ng [2015] NSWCATOD 85 at [128]-[130] the Tribunal set out the following observations on assessing the credit of a witness:
"[128] We found the recent discussion by Sackar J in Campbell v Campbell [2015] NSWSC 784 at [73] to [79] to be of considerable assistance. To paraphrase his Honour:
(1) Where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties' testimony, the trial judge's assessment of the character of witnesses and the manner in which the witnesses give evidence is of primary importance: McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477.
(2) The rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation: Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 at [34] Keane JA; referred to with approval by Leeming JA in New South Wales v Hunt [2014] NSWCA 47 at [56].
(3) A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157].
[129] His Honour also referred at [75] to the dissenting speech of Lord Pearce in Onassis v Vergottis [1968] 2 Lloyd's Rep 403, who stated at 431:
a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."
[130] The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Lloyd's Rep 1 at [57]; In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7]."
The asserted criminal cases considering sexual assault victim behaviour
In Xu, the New South Wales Court of Criminal Appeal (Bathurst CJ, Harrison and N Adams JJ) allowed an appeal against conviction for the offences of indecent assault and sexual assault. N Adams J at [92] said:
"[92] Although I have serious doubts about many aspects of the Crown case, I am respectfully unable to agree with his Honour that the complainant's return to the appellant's home "defies common sense" in this case. It provided context to the second set of charges but I do not consider myself to be in a position to make any generalisations about how any particular alleged victim of a sexual assault, in this case a male, should behave in a particular situation. As stated above, my doubts arise in a different way."
In Rao, the New South Wales Court of Criminal Appeal (Gleeson JA, Harrison and Cavanagh JJ) dismissed an appeal against conviction for the offences of sexual intercourse without consent and indecent assault. Gleeson JA at [98] said (with Harrison J at [155] and Cavanagh J at [156] agreeing):
"[98] The implicit premise of the appellant's submission, that a victim of sexual assault is not supposed to return to the same bed as his or her assailant under any circumstances, should be rejected. It reflects the kind of stereotypical expectations about how a victim of sexual assault is "supposed" or "expected" to behave, which Button J cautioned against in Khamis v R; Hussain v R [2018] NSWCCA 131 at [533]. The significance of the complainant returning to the same bed and the credibility of her explanation of why she did so was, quintessentially, a matter for the jury: MFA v The Queen at [48]."
In Maughan, the New South Wales Court of Criminal Appeal (R A Hulme, Adamson and Ierace JJ) dismissed an appeal against conviction for the offence of indecent assault. The judgments contained the following observations:
1. R A Hulme J at [2] said:
"[2] I particularly endorse what their Honours have said about what I would describe as the futility of assessing the behaviour of sexual assault complainants by reference to stereotypical expectations. The criminal law has moved past the era in which this was often prominent in a defence to a sexual assault allegation. Jurors applying a sensible and mature understanding of human behaviour are far less likely now to be persuaded by such propositions."
1. Ierace J at [99] said (with R A Hulme J at [1] and Adamson J at [8] agreeing):
"[99] Caution must be exercised in gauging the parameters of the likely behaviour of a sexual assault victim vis-à-vis the perpetrator, during and following the assault. Behaviours that may not seem sensible, logical or otherwise plausible to those who have not endured that experience may not necessarily be indicative of implausibility or inconsistency with an allegation of sexual assault: see Rao v R [2019] NSWCCA 290 at [98]. In this case, the complainant explained that when she realised what was being done to her by the applicant, she experienced shock which rendered her unable to speak or move. The movements she eventually made were minimal, and even so, she had no recollection of how she made her way from the rug to the lounge chair. In the experience of criminal courts, those who work with sexual assault victims and as increasingly understood by the broader community, such a reaction is a common feature of the reaction of a victim to sexual assault, and therefore a claim of shock, immobility and silence by a sexual assault complainant is not necessarily indicative of implausibility."
Consideration
In R v The War Pensions Entitlement Appeals Tribunal; Ex parte Bott (1933) 50 CLR 228; [1933] HCA 30 (Bott) the High Court considered the legislation establishing the War Pensions Entitlement Appeal Tribunal which provided that the Tribunal was not bound by any rules of evidence. Evatt J at 256 made the following observation:
"Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, "bound by any rules of evidence." Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice."
These observations of Evatt J at 256 in Bott have been applied by the Tribunal in relation to s 38(2) of the NCAT Act which is substantially identical to Sch 5 cl 2 of the National Law: Chi Building Pty Ltd v Wedgwood [2016] NSWCATAP 64 at [40].
In King at [65]-[68], McFarlan JA noted that the parties implicitly accepted on the appeal that guidance as to what constitutes sexual conduct in the present context can be obtained from decisions in the field of criminal law concerning indecent assault, and then considered several authorities involving criminal offences.
In Priyamanna at [179]-[183], the Tribunal applied the reasoning in King at [65]-[68] to determine whether the practitioner had engaged in the impugned conduct.
Having regard to the observations of Evatt J at 256 in Bott and the approach in Priyamanna at [179]-[183], we consider that it is appropriate to have regard to the observations of the New South Wales Court of Criminal Appeal in Xu at [92], Rao at [98], and Maughan at [2] and [99] in assessing the credibility and reliability of Patient A. Further, given that the impugned conduct of the respondent included conduct that could constitute the offence of sexual touching within s 61KC when read with s 61HB of the Crimes Act we consider that it is appropriate to have regard to the directions in ss 292B, 292C, 292D, 293A, 294 and 294AA of the CP Act to the extent that they are relevant in assessing the credibility and reliability of Patient A. We do not accept the respondent's submissions that the principles contained within these directions are not relevant given the nature of particulars of the Amended Complaint to the extent that they involve sexual touching. Further, we do not accept the respondent's submissions that the principles of criminal law authorities such as Xu at [92], Rao at [98], and Maughan at [2] and [99] which have warned against stereotypical expectations about how a victim of sexual assault is "supposed" or "expected" to behave are not relevant to the assessment of the credibility and reliability of Patient A.
The collusion between witnesses
We do not accept that Bauer has any relevance to the assessment of the credibility and reliability of the respondent's witnesses. An issue in Bauer included the admission of tendency evidence in a criminal trial for sexual assault under s 97 of the Evidence Act 2008 (Vic). The High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ) at [70] held under the s 97 of the Evidence Act, provided evidence is rationally capable of acceptance, the possibility of contamination, concoction or collusion falls to be assessed by the jury as part of the ordinary process of assessment of all factors that may affect the credibility and reliability of the evidence.
In Seamez v McLaughlin [1999] NSWSC 9 (Seamez) there was an issue as to the credibility and reliability of the witnesses of the plaintiff. Sperling J at [36] made the following observations:
"36 The defendants challenged this account of the way the plaintiffs' affidavit evidence came into existence. Having regard to a high degree of similarity in content, detail, terminology and sequence (particularly in relation to conversations) between the affidavits of the three witnesses, I am satisfied that the affidavits cannot have come into existence without direct or indirect collaboration."
A finding of collusion is open to a court when confronted with otherwise unexplained identical evidence of conversations. Not only can a finding that the conversations are untrue be made, but the collusion casts doubt upon the reliability of the evidence of the colluding persons generally on any controversial matter of importance: Xie & Ors v Qin & Anor; Qin v Taylor International Investment Pty Ltd [2023] NSWSC 254 (Xie) at [72]-[73] (Kunc J).
The relevance of character evidence
In Medical Practitioner at [47] Stein JA made the following observations in an appeal from the Medical Tribunal (with Powell JA at [1] and Rolfe AJA at [54] agreeing):
"[47] Nonetheless, it is plain that the Tribunal is not entitled to take character into account in considering whether a practitioner is guilty of unsatisfactory professional conduct. It is difficult to see, given the admission of careless conduct by the respondent, (which was accepted by the Tribunal) what probative force such evidence would have. It had no relevance to the consequences which might flow from the inadvertent error. It could, of course, be relevant to credit. But the mistake made by the practitioner involved no issue of credibility. The character evidence was, by its very nature, relevant to penalty, should the Tribunal get to that issue."
In Gao at [73]-[79], the Tribunal enunciated the following principles with respect to character evidence:
"[73] The Respondent has raised character evidence in his defence. Although the Tribunal is not bound by the rules of evidence (s 2, Schedule 5D to the National Law, s 38(2) Civil and Administrative Tribunal Act 2013 (NSW)), the common law principles, and statutory provisions which govern character evidence are instructive for present purposes.
[74] There is no statutory definition of character evidence, but the description advanced by Kirby J in Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 (although in dissent with respect to the merits of the case) is cited in the Civil Trials Bench Book published by the NSW Judicial Commission, which states that "character refers to the aggregate of qualities which distinguish one person from another, or the moral constitution of a person: it embodies the permanent and unchanging pattern of the nature of the individual concerned".
[75] Evidence of "good character" includes evidence of the accused's general good reputation, and evidence of the accused's favourable disposition (Stirland v Director of Public Prosecutions [1944] AC 315), which may be proved in a number of ways, and does not simply consist of evidence that the accused has not previously been convicted of an offence (Melbourne v R [1999] HCA 32; (1999) 198 CLR 1).
[76] Evidence of good character is not merely evidence which may make it more likely that the accused's evidence is credible, but also whether it is unlikely that the accused committed the offences charged, or, in these proceedings, committed the acts alleged against him (TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, at [35] Gleeson CJ, and [94] McHugh J). The evidence can only make it unlikely, rather than improbable, that the accused is guilty of the conduct alleged against him (R v Stalder (1981) 2 NSWLR 9).
[77] We apprehend that the Respondent's reliance upon character evidence in these proceedings is for both those purposes. Thus, Counsel for the Respondent submitted that his good character makes it unlikely that the Respondent would be guilty of the conduct alleged by Patient A, and unlikely that he would not tell the truth about his conduct (Attwood v The Queen [1960] HCA 15; (1960) 102 CLR 353, at [359], Eastman v R (1997) FCR 9, at [147], TKWJ v The Queen [2002] HCA 46, at [94]).
[78] The raising of good character requires a conscious decision on the part of the accused (R v Bartle [2003] NSWCCA 329, at [129]-[136]), and is not raised when a witness simply volunteers the evidence (PGM v R (2006) 164 A Crim R 426, at [35]). We are satisfied that the Respondent has squarely raised character in these proceedings, and not merely made emphatic denials of guilt (R v Skaf [2004] NSWCCA 74, at [223]-[226], R v El-Kheir [2004] NSWCCA 461, at [50]).
[79] The significance of the evidence of character in the present proceedings is limited. Although the Applicant has not expressly raised Patient A's good character, or inferentially raised it in a manner which would be required if the Tribunal was bound by the rules of evidence, we do not consider that the character of Patient A, or that of the Respondent ultimately makes it more or less likely that the evidence of the Respondent should be preferred to that of Patient A, or that the converse should apply because each is a person of good character."
Unsatisfactory professional conduct
In Health Care Complaints Commission v Aref [2018] NSWCATOD 133 (Aref) at [18]-[20], the Tribunal considered the meaning of unsatisfactory professional conduct in s 139B(1)(a) and (l) of the National Law:
"[18] In making a finding of unsatisfactory professional conduct per (a), the Tribunal must compare the conduct of the practitioner with a standard 'reasonably expected'. In HCCC v Simonson [2017] NSWCATOD 87 the Tribunal noted at [9]:
'Obviously, there will be many cases where there is no one bright line which typifies the relevant knowledge, skill or judgement or care of such a practitioner. In most cases, the expected standard of relevant knowledge, skill or judgement or care of a practitioner will fall within a band, sometimes narrow and sometimes broader.'
[19] 'Improper' and 'unethical' are not defined in the National Law. The assessment of what constitutes improper or unethical conduct is based upon their ordinary meaning. In the professional disciplinary context there is necessarily some overlap between the two words.
[20] 'Improper' conduct does not need to be intentional and includes conduct not in conformity with standards of professional conduct: HCCC v Phung (No 1) [2012] 1 NSWDT 3 at [68]; HCCC v Fisher [2016] NSWCATOD 62 at [57]; HCCC v Flekser [2016] NSWCATOD 1 at [119]. Improper and unethical conduct may be dishonest, disreputable to the profession, in breach of explicit professional standards such as codes of conduct, guidelines and competencies, and may also be determined by reference to the views of reasonable members of the profession: Slezak, Dr Peter [2011] NSWMPSC 10 at [83] and [87]."
Professional misconduct
In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 (Chen) at [19]-[20], Basten JA (Leeming JA at [23] agreeing) relevantly said:
"[19] ... The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. …
[20] There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. …"
In Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264 (Litchfield), the New South Wales Court of Appeal (Gleeson CJ, Meagher and Handley JJA) at 638 said in relation to professional misconduct:
"The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards."
The second aspect of the rule in Browne v Dunn is concerned with the weight to be afforded to evidence which has not been the subject of cross-examination, and is to the effect that evidence upon which there has been no relevant cross-examination should not usually be rejected by the tribunal of fact. It might be legal error not to accept unchallenged and uncontradicted evidence which is not inherently implausible: Ghosh v Medical Council of New South Wales [2020] NSWCA 122 (Ghosh) at [69]-[70], [137].
As the credit of the respondent is a significant issue, then consistent with Medical Practitioner at [47] character evidence may be relevant to his credit. As the character evidence of Dr Pobbathi in the 2 May 2023 Pobbathi statement, Mr Mikulic in the 30 March 2023 Mikulic statement and Mr Joy in the 26 February 2023 Joy statement is directed to the competence of the respondent, we have not taken it into account as his competence is not an issue in these proceedings. While the character evidence of Ms Parlato in the 11 May 2023 Parlato statement, Ms Moronta in the 9 May 2023 Moronta statement, and Mr Adamski in the 11 May 2023 Adamski statement, who are members of the staff of Physical Health, is directed to the respondent's practice as to the consent and privacy of patients, we have given no weight to it as they commenced working at the practice after Patient A ceased being a patient. While the character evidence of Ms Pobbathi in the undated Pobbathi statement, Ms Hunt in the undated Hunt statement, Ms Barry in the 11 May 2023 Barry statement and Mr Furner in the 4 April 2023 Furner statement, who are patients of the respondent, is directed to his practice as to the consent and privacy of patients, we have given little weight to it, particularly as they provided no information as to the time of the their appointments and whether other practitioners were present, and additionally in the case of Mr Furner as he is a male.