Health Care Complaints Commission v Singh [2025] NSWCATOD 89;

The matter be remitted to the Occupational Division of NCAT for rehearing according to law.

1. The Commission applied for an order that the Tribunal should admit into evidence the original complaint lodged by Patient A to the Commission and her statements dated 10 December 2021 and 10 March 2023. The admissibility of that evidence is uncontroversial.
2. The Health Care Complaints Commission also applied for an order that, on the rehearing, the Tribunal admit into evidence the transcript and audio recording of the oral evidence previously given by Patient A on 26 and 27 June 2023 (Patient A's transcript evidence). The reason for that application is that Patient A is not prepared to give oral evidence again and the Commission does not intend to issue a summons for her to attend to give evidence. Ms Joan Lee, a solicitor employed by the Commission, provided an affidavit dated 16 June 2025 where she set out the content of a phone call she had with Patient A on 16 June 2025 and an email exchange between herself and Patient A after that phone call.
3. Mr Singh also provided an affidavit dated 26 March 2025 stating that this matter has had a significant impact on him professionally, personally, emotionally and mentally. He has been under the care of a psychologist since 31 May 2024. He says he is currently experiencing severe anxiety, depression, and people avoidance as well as dealing with suicidal thoughts. He has been prescribed anti-depressant and pain management medication. Mr Singh stated that he is "physically, mentally and financially unable to endure another hearing". Despite this evidence, Mr Singh indicated that he does intend to give oral evidence again.
4. Mr Singh submitted that if the transcript evidence is admitted, it not only tramples on his rights but adopts a different rule for this case compared to all other cases heard by the Tribunal involving health practitioners. If the Tribunal makes the order sought, he will have to give evidence twice whereas the evidence of Patient A will be taken in written form only from the first hearing.
5. The Commission indicated that they would not oppose Mr Singh also relying on the transcript and audio recording of all the respondent's evidence. Mr Singh did not agree to the rehearing being determined without oral evidence.
6. Before considering whether the Tribunal should make an advance ruling on the admissibility of Patient A's evidence, and what that ruling should be, I make some preliminary observations as to what is meant by a "rehearing according to law" in the circumstances of this case.

1. What is meant by a rehearing on remittal must be determined according to the statutory scheme in the Civil and Administrative Tribunal Act 2013 (NSW) (Tribunal Act) and the Health Practitioner Regulation National Law (NSW) (National Law). There is nothing specific in either of those acts as to the nature of a rehearing on remittal. The following objects, principles and provisions are relevant when determining the nature of a rehearing on remittal.
2. Under s 3A of the National Law:

(1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration.

(2) The other guiding principles of the national registration and accreditation scheme are as follows -

(a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way;

. . .

1. The object in s 3(d) and the provisions of s 36 of the Tribunal Act are also relevant:

The objects of this Act are -

. . .

(d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and

1. The "guiding principle to be applied to practice and procedure" is set out in s 36(1):

36 Guiding principle to be applied to practice and procedure

(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

1. Under s 165A of the National Law, the provisions of Division 10 (Constitution and proceedings of Tribunal) "are intended to apply despite anything to the contrary" in the Tribunal Act. Clause 2 of Sch 5D to the National Law provides that:

2 Proceedings generally [NSW]

In proceedings before it, a Committee or the Tribunal is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in the way it thinks fit.

1. That provision is not "to the contrary" of s 38(1) and (2) of the Tribunal Act which provide that:

38 Procedure of Tribunal generally

(1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

1. The key principles applicable to this case are that: the protection of the health and safety of the public is the paramount consideration; the Tribunal may determine its own procedure; it is not bound by the rules of evidence except for s 128 of the Evidence Act 1995 and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice; and procedural rulings should facilitate the just, quick and cheap resolution of the real issues in the proceedings. The rules of natural justice, otherwise known as procedural fairness, include giving each party a reasonable opportunity to be heard: Tribunal Act, 38(5)(c).
2. Even though the Tribunal is not bound by the rules of evidence, only material that tends logically to prove the existence or non-existence of a material fact should be "admitted" into evidence: Re Pochi v Minister for Immigration and Ethnic Affairs: [1979] AATA 64; (1979) 36 FLR 482 per Brennan J. At 492, Brennan J held that the Tribunal should not "resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party".
3. If evidence is admitted, the weight to be given to that evidence is a separate question.

1. A rehearing on appeal is also a creature of statute. In Fox v Percy (2003) 214 CLR 118 Gleeson CJ, Gummow and Kirby JJ identified three kinds of rehearing on appeal:

. . .(ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of a hearing de novo.

1. It is not in dispute that on a rehearing, the Tribunal must determine all the factual and legal issues again, according to law. The only issue is the nature and extent of the evidence that is before the Tribunal on a rehearing. Mr Singh submitted that the normal course when a matter is remitted is that there should be a new hearing. All the evidence should be tendered again as if it is the first time the proceedings have been determined. Mr Singh did not indicate to the Tribunal whether he proposes to adduce new or fresh evidence or the basis of any such application should it be made. New evidence is evidence that was available prior to the original hearing but was not used in the hearing. Fresh evidence is evidence that a party was not aware of before the hearing and which could not have been found with reasonable effort and attention.
2. Neither the Tribunal Act or the National Law specifies whether a rehearing on remittal is to be by way of the evidence that was before the Tribunal, that evidence and further evidence or a new hearing. In the absence of any statutory guidance on that question, the kind of rehearing on remittal will depend on the availability and appropriateness of the same Tribunal rehearing the matter; the reason the court has remitted the matter; and the principles outlined above including fairness and expedition.
3. The Supreme Court did not specify whether the rehearing should be before the same Tribunal or a differently constituted Tribunal. The Tribunal found that Mr Singh was not a credible and reliable witness: Health Care Complaints Commission v Singh [2023] NSWCATOD 124 at [246]. In my view, because the Tribunal made adverse findings as to Mr Singh's credibility, the Tribunal should be differently constituted.

1. The Supreme Court remitted the matter to the Tribunal because it had erred in its finding that Mr Singh colluded with three witnesses: Messrs Nies, Salib and Wilson: Singh v Health Care Complaints Commission [2024] NSWSC 1307 at [41]- [74]. At [45] the Supreme Court held that the Tribunal's findings "were largely based on NCAT's view that there were substantial similarities between Mr Singh's affidavit dated 28 April 2023 and the written statements of the three witnesses on particular issues. In the case of Mr Nies and Mr Salib, NCAT also relied on their friendship with Mr Singh as a factor in the collusion."
2. At [87] the Supreme Court held that:

Accepting as I do that there were several reasons given by NCAT at [246] for its adverse credit finding concerning Mr Singh, it is clear on the face of NCAT's Stage 1 reasons that the finding of collusion figured prominently in that reasoning. It is also significant that, while NCAT gave four reasons for that adverse credit finding, it was the specific finding of collusion which was singled out by NCAT at [246(4)] as underpinning its conclusion concerning Mr Singh's credibility and reliability generally on any controversial matter of importance. The substantive and procedural errors which I have identified above concerning NCAT's finding of collusion are plainly material errors in the sense described in Roads and Traffic Authority of New South Wales v Mosca [2006] NSWCA 159; (2006) 146 LGERA 335 at [22] per Handley JA, Mason P and Bryson JA agreeing and, by analogy, Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [46] and MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [27] ff per Kiefel CJ, Gageler, Keane and Gleeson JJ.

1. The Supreme Court also found that the Tribunal had denied Mr Singh procedural fairness: Singh v Health Care Complaints Commission [2024] NSWSC 1307 at [75]- [87]. The Commission's serious allegations of collusion between him and three of his witnesses were never squarely put to any of them: Singh v Health Care Complaints Commission [2024] NSWSC 1307 at [75].
2. Finally, the Supreme Court concluded that the Tribunal's finding that Mr Singh had colluded with the three witnesses infected its reasoning on the appropriate protective orders (the Stage 2 decision): Singh v Health Care Complaints Commission [2024] NSWSC 1307 at [110].
3. The Supreme Court held that there was an insufficient basis on the evidence for the Tribunal to make the findings of collusion. As I read the Supreme Court's judgment, the errors identified cannot be remedied merely by the Commission putting to the parties that they colluded when the evidentiary basis for those findings was insufficient.
4. Ultimately the newly constituted Tribunal will have to make a decision as to the kind of rehearing that is to take place. The only application before me is whether the Tribunal should make an advance ruling as to the admissibility of particular evidence and, if so, what that ruling should be.

Should the Tribunal make an advance ruling as to the admissibility of Patient A's transcript evidence?

1. In effect, the Commission is applying for an advance ruling on the admissibility of Patient A's transcript evidence. The Tribunal "may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision": Tribunal Act, s 38(1). There is no provision for making an advance ruling in the Tribunal Act or the procedural rules. I note that such a ruling is permitted under s 192A of the Evidence Act 1995.
2. The reason for requesting an advance ruling is to avoid delay at the commencement of the hearing if there is an objection to the tender of Patient A's transcript evidence. Ruling on this issue in advance is consistent with the "guiding principle" in these proceedings which is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": Tribunal Act, s 36(1). Neither party objected to the Tribunal making an advance ruling.
3. As this issue is an "evidential matter" my decision is an "interlocutory decision". Section 4 of the Tribunal Act defines "interlocutory decision" to include "an evidential matter".

Should Patient A's transcript evidence be admitted?

Legal principles relating to the admission of evidence in proceedings under the National Law

1. The legal principles are the same as I have set out above.
2. For the reasons I give below I have decided to admit into evidence Patient A's transcript evidence. On the rehearing of these proceedings the Tribunal will have to determine what other evidence to admit and the weight that should be given to that evidence.

Application of legal principles to the admissibility of Patient A's transcript evidence

1. The facts in issue in these proceedings include whether Mr Singh engaged in inappropriate sexual communication with Patient A and engaged in intimate physical touching of her during a treatment session. Patient A's transcript evidence is highly probative because it is the evidence she gave on oath and she was subject to cross-examination. The Tribunal heard Stage 1 of these proceedings over seven days between 26 June 2023 and 1 August 2023. Patient A was cross examined for a full day of Tribunal time - from approximately 10.57 am on 26 June 2023 until 4.11 pm that day (with the usual adjournments) and for a further brief period commencing just after 9.05 am the next day. A transcript of the evidence and an audio recording is available although Mr Singh has raised issues about the quality of the recording of some of Patient A's evidence.
2. Mr Singh did not specify how admission of Patient A's transcript evidence would "trample on his rights". I accept that if Patient A's transcript evidence is admitted, and Patient A does not give evidence for a second time, Mr Singh will be deprived of the opportunity to cross-examine her again. In circumstances where she has already been subject to cross-examination, that is not a significant disadvantage.
3. Mr Singh has not indicated the nature of any evidence he wishes to tender, which was not tendered in the first proceedings, and on which he would wish to cross-examine Patient A. Nor did Mr Singh suggest that it would be a disadvantage to him if the Tribunal was unable to assess Patient A's truthfulness on the basis of her demeanour.
4. Patient A's transcript evidence is admissible. It tends logically to prove the existence or non-existence of material facts and does not unnecessarily disadvantage Mr Singh. Admitting that evidence does not breach of the rules of procedural fairness because Mr Singh is being given an adequate opportunity to present his case. Admitting that evidence is also in accordance with the objects of the relevant legislation and the other provisions I have referred to above.
5. I make no finding as to the weight that the Tribunal should ultimately give to that evidence. That will depend on the other evidence and the submissions of the parties in those proceedings including the evidence as to why Patient A is not prepared to give evidence and why the Commission does not intend to issue a summons for her to attend.

(1) The transcript and audio recording of Patient A's oral evidence at first instance is admissible on the rehearing of this matter.

(2) The matter is listed for further directions on 30 July 2025 at 9:30am.

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

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