Health Care Complaints Commission v Solari [2025] NSWCATOD 119;

Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186

Gautam v Health Care Complaints Commission [2021] NSWCA 85

Ghosh v Medical Council of New South Wales [2020] NSWCA 122

Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173

Health Care Complaints Commission v A Medical Practitioner [2001] NSWCA 158

Health Care Complaints Commission v Bolton [2021] NSWCATOD 160

Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113

Health Care Complaints Commission v Chahoud [2022] NSWCATOD 36

Health Care Complaints Commission v Do [2014] NSWCA 307

Health Care Complaints Commission v Drakopoulos [2021] NSWCATOD 72

Health Care Complaints Commission v Duggan [2015] NSWCATOD 142

Health Care Complaints Commission v Gao [2022] NSWCATOD 73

Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39

Health Care Complaints Commission v Neale [2024] NSWCATOD 16

Health Care Complaints Commission v Philipiah [2013] NSWCA 342

Health Care Complaints Commission v Russ [2021] NSWCATOD 5

Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82

Health Care Complaints Commission v Wardman (No 2) [2021] NSWCATOD 67

Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10

Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323; [2007] NSWCA 32

King v Health Care Complaints Commission [2011] NSWCA 353

Lee v Health Care Complaints Commission [2012] NSWCA 80

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

Re Parajuli [2010] NSWMT 3

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of Persons A to F is prohibited.

1. In these proceedings the applicant, the Health Care Complaints Commission (who is also referred to as the Commission or the HCCC), is seeking findings of having been convicted of an offence and unsatisfactory professional conduct, and the making of consequential protective orders under the Health Practitioner Regulation National Law (NSW) (National Law) against the respondent, Michael Joseph Solari (Mr Solari) (who is also referred to as the practitioner), who was formerly a registered medical radiographer.
2. We have decided to make the following orders and findings:

(1) Mr Solari has been convicted of an offence within s 144(a) of the National Law;

(2) Mr Solari is guilty of unsatisfactory professional conduct within s 139B(b) of the National Law;

(3) if Mr Solari were still registered the Tribunal would have cancelled his registration;

(4) Mr Solari is disqualified from being registered in the medical radiation profession for a period of three years from the date of this decision;

(5) the National Board is required to record the fact that the Tribunal would have cancelled the registration of Mr Solari in the National Register kept by the Board;

(6) Mr Solari is to pay the Commission's costs of the proceedings;

(7) procedural orders to determine whether a gross sum costs order should be made if the parties are not in agreement as to the quantum of the costs of the proceedings.

1. Mr Solari was born in 1967, commenced employment as a trainee radiographer at Orange Base Hospital in 1986 and obtained an Associate Diploma of Radiography in 1988. He commenced employment with the radiology practice presently known as Lumus Imaging (Lumus) on 18 March 1996, and obtained a Bachelor of Applied Science (Medical Imaging) from Charles Sturt University in 1997.
2. Mr Solari was first registered as a medical radiographer on 1 July 2012, which was the date on which the medical radiation profession joined the National Registration and Accreditation Scheme.
3. On 14 April 2022, there was an incident involving Mr Solari and Person A at Mr Solari's workplace (the workplace incident).
4. On 12 May 2022, Mr Solari was charged with sexually touching Person A without consent under s 61KC(a) of the Crimes Act 1900 (NSW) (the charge).
5. On 18 May 2022, Mr Solari's employment was terminated.
6. On 24 May 2022, a representative of Mr Solari's employer sent a complaint in relation to Mr Solari to the Australian Health Practitioner Regulation Agency (AHPRA) advising of the workplace incident and of the charge (the complaint).
7. On 14 June 2022, the delegates of the Medical Radiation Practice Council of New South Wales (the Council) held a hearing under s 150 of the National Law in response to the complaint. Ms Noeleen Rafferty (Ms Rafferty) of the New South Wales Ministry of Health was in attendance at the hearing. The delegates decided to suspend the registration of Mr Solari pursuant to s 150(1)(a) of the National Law and to refer the matter for investigation by the Commission pursuant to s 150D of the National Law (the Council decision).
8. On 10 August 2022, the delegates of the Council held a hearing under s 150A of the National Law and varied the Council decision by ending Mr Solari's suspension and imposing conditions on his registration. Ms Rafferty was in attendance at the hearing.
9. On 14 July 2023, Magistrate D Day in the Local Court of New South Wales at Orange in proceedings 2022/00138080 found that the offence was proved.
10. On 24 November 2023, Magistrate D Day in the Local Court of New South Wales at Orange in proceedings 2022/00138080 convicted Mr Solari of the charge and sentenced him to a term of imprisonment of 12 months to be served by way of an Intensive Correction Order.
11. On 24 November 2023, Mr Solari appealed against his conviction and sentence pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act).
12. On 19 April 2024, Judge Musgrave in the District Court of New South Wales at Orange found the offence proven, dismissed Mr Solari's appeal against his conviction, allowed Mr Solari's appeal against his sentence and imposed a Community Correction Order for 18 months (the 19 April 2024 District Court judgment).
13. On 2 January 2025, Mr Solari's registration lapsed.

1. On 10 April 2025, the Commission commenced proceedings 2025/00137542 against Mr Solari by filing an application for disciplinary findings and orders and the attached Complaint comprising Complaints One to Three and a Schedule listing the name of Person A (the HCCC application), and which relevantly provides:

"3. ORDERS SOUGHT

The Applicant seeks the following orders:

1. An order prohibiting the disclosure of the name and address of the person listed in the Schedule to the attached Complaint under section 64 of the Civil and Administrative Tribunal Act 2013 and/or clause 7 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) ("National Law").

In the event the subject-matter of the complaint is proved or admitted, the Applicant seeks:

2. An order pursuant to s 149C(4)(a) of the National Law that if the practitioner were still registered the Tribunal would have cancelled his registration pursuant to section 149C(1)(c) of the National Law;

3. An order pursuant to section 149C(4)(b) of the National Law that the practitioner is disqualified from being registered in the medical radiation profession for 2 to 3 years from the date of the decision;

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

5. An order that the Respondent pay the Commission's costs, as agreed or assessed under clause 13 of Schedule 5D of the National Law.

In the event that only some of the particulars of the complaint are proved, the Applicant may seek alternative protective orders under section 149C(4) (would have suspended) of the National Law.

GROUNDS FOR APPLICATION (INCLUDING PARTICULARS)

The Acting Director of Proceedings of the Health Care Complaints Commission has determined to prosecute the attached Complaint against the Respondent pursuant to section 90B(1) of the Health Care Complaints Act 1993 alleging that the Respondent has been guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(b) and has been convicted or made the subject of a criminal finding under section 144(a) of the National Law."

1. On 7 May 2025, the Tribunal constituted by Judge R Seiden SC, Deputy President, made an order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) prohibiting the publication of the name of the person named in the schedule to the Complaint, and procedural orders for the lodging of a Reply by Mr Solari and of evidence and submissions by the parties and the hearing should be a combined stage 1 and stage 2 hearing.
2. On 15 July 2025, the Commission lodged the Health Care Complaints Commission Material (the HCCC documents).
3. On 16 July 2025, Mr Solari lodged the following documents:

(1) his response to the HCCC application (the Solari response);

(2) a bundle of documents comprising 175 pages (the Solari documents).

1. On 17 July 2025, the Commission lodged its Opening Submissions (the HCCC submissions).
2. On 29 July 2025, Mr Solari lodged his Opening Submissions (the Solari submissions) to which the following character references were attached:

(1) the reference of Dr Labuschagne dated 18 November 2023 (the Labuschagne reference);

(2) the reference of Emily Hawke dated 23 November 2023 (the Hawke reference);

(3) the reference of Anne Patteson dated 19 November 2023 (the Patteson reference);

(4) the undated reference of Ryan Fowler (the Fowler reference).

1. On 22 July 2025, the Commission lodged the evidentiary certificate dated 26 June 2025 of AHPRA (the 26 June 2025 AHPRA certificate).
2. On 22 July 2025, the Commission lodged the email of Hannah Panizzutti (Ms Panizzutti) of HCCC to AHPRA sent on 15 July 2025 and the reply sent on 18 July 2025 (the 15/18 HCCC/AHPRA email chain).

1. The Complaint attached to the HCCC application relevantly provides:

"COMPLAINT ONE

Pursuant to section 144(a) of the National Law, the practitioner has been convicted of a criminal offence in NSW.

PARTICULARS OF COMPLAINT ONE

On 24 November 2023 at the Local Court in Orange the practitioner was convicted of an offence of sexually touching another person without consent, contrary to s 61 KC(a) of the Crimes Act 1900 (H86600210).

COMPLAINT TWO

The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened a provision of the National Law.

PARTICULARS OF COMPLAINT TWO

1. The practitioner contravened section 130(1) of the National Law by failing to notify the National Board within 7 days of being charged with the offence on 12 May 2022.

2. The practitioner contravened section 130(1) of the National Law by failing to notify the National Board within 7 days of being convicted of the offence on 24 November 2023.

COMPLAINT THREE

The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened a provision of the National Law.

PARTICULARS OF COMPLAINT THREE

1. On 30 November 2022 the practitioner contravened section 109(1)(b) of the National Law by submitting a Renewal of Registration form to the National Board, and answering "No" to the question "Since your last declaration to Ahpra, has there been any change to your criminal history in Australia that you have not declared to Ahpra?"

2. On 21 November 2023 the practitioner contravened section 109(1)(b) of the National Law by submitting a Renewal of Registration form to the National Board, and answering "No" to the question "Since your last declaration to Ahpra, has there been any change to your criminal history in Australia that you have not declared to Ahpra?"

"RESPONSE TO COMPLAINT ONE

I acknowledge that pursuant to section 144(a) of the National Law, I was convicted of a criminal offence in NSW.

RESPONSE TO COMPLAINT TWO

1. In response to the complaint that I contravened section 130(1) of ther [sic] National Law by failing o[sic] notify the National Board within 7 days of being charged with the offence on 12 May 2022, I was not aware that I either had to do this or that the offence was punishable by 12 months imprisonment or more.

Please see page 258 or the Health Care Complaints Commission for these proceedings, in the transcript of proceedings of Health Care Complaints Commission, Medical Radiation Practice Council, Health Practitioner Regulation National Law (NSW) Proceedings under Section 150:

MS GILL: The other thing I just wondered, are you aware that section 130 of the National Law requires you to have notified AHPRA within seven days of the fact that you had been charged by the police?"

MR SOLARI: No

MS GILL: Were you aware of that? Have you done that? Okay. That something

MR SOLARI: No, no, Sorry no

MS GILL:--- Right. Okay. That's something

MR SOLARI ......

MS GILL.: --- that you might want to address fairly promptly, because. it is an obligation as a registered practitioner that if you were charged with an offence you have to notify AHPRA within seven days. So Mr Tancred might be able to assist you with that as well. It's section 130 of the law. There's a form - there's a particular form that you can download and fill in. So every -every registered practitioner has an obligation to notify AHPRA if there's any change to their criminal history record.

MR SOLARI: Yes. Okay.

I went to the AHPRA website immediately after the section 150 proceedings and found that AHPRA requires reporting of criminal charges that are punishable by 12 months imprisonment or more.

I then emailed my solicitor, Toby Tancred (copy attached) on the same day (10th August 2022) to ask, "is the offence I have been charged with punishable by 12 months or more imprisonment". When he replied, yes, I then posted the "Notice of Certain Events NOCE-00" form that I had downloaded and signed on 11/8/2022 (see email to Toby Tancred with attachment of scanned form for his information on 15/8/2022) to AHPRA.

I posted the signed form to AHPRA as directed on the form.

I emailed Noeleen Rafferty at the Ministry of Health on 26.8.22 (attached), also stating in this email that "I did send AHPRA the notification of the police charges against me after the meeting when you all told me I needed to do this" I also attached the signed declaration form to this email.

I also note that AHPRA, The Health Care Complaints Commission and the Medical Radiation Practice Council (NSW) were already aware of the charges and my registration had already been suspended. I had been notified of this via email. It was not my intent to deceive the Medical Radiation Practice Council (NSW) or AHPRA and I was not practicing at all at this time.

2. In response to the complaint that I contravened section 130(1) of the National Law by failing to notify the National Board within 7 days of being convicted of the offence on 24 November 2023:

On 24 November 2023, immediately following the proceedings at the Local Court in Orange, an appeal of conviction was lodged. The advice from my barrister, Mr Philip Boncardo, was that because the conviction had been stayed (see page 150 of attached documents) nothing had changed in relation to my criminal history/record.

I therefore believed that I did not need notify the National Board because there was no change. It was not my intent to deceive the Medical Radiation Practice Council (NSW) or AHPRA and I was not practicing at this time.

Please see multiple emails regarding HPCA- Medical Radiation Practice Council (NSW) Routine Compliance Check Monitoring, "Current Employment Declaration Form" (12/9/22, 22/6/23, 27/09/23, 27/6/24, 9/11/24).

RESPONSE TO COMPLAINT THREE

1. On 30 November 2022, I answered NO to the question "Since your last declaration to Ahpra, has there been any change to your criminal history in Australia that you have not declared to Ahpra?" because it was true. I had submitted the "Notice of Certain Events NOCE-00" form, signed and dated 11/8/22 (as per response to complaint two/i) I therefore did not contravene section 109(l)(b) of the National Law.

2. On 21 November 2023, answered NO to the question "Since your last declaration to Ahpra, has there been any change to your criminal history in Australia that you have not declared to Ahpra?" because it was true. I had submitted the "Notice of Certain Events NOCE-00" form, signed and dated 11/8/22 (as per response to complaint two/i) I therefore did not contravene section 109(1)(b) of the National Law."

1. On 4 August 2025, the hearing took place. Ms Panizzutti, a solicitor, represented the Commission. Mr Solari represented himself.
2. The Commission relied on the following documents which were admitted into evidence and marked as follows:

(1) the HCCC documents (exhibit A1);

(2) the 26 June 2025 AHPRA certificate (exhibit A2);

(3) the 15/18 July 2025 HCCC/AHPRA email chain (exhibit A3).

1. Mr Solari relied on the following documents which were admitted into evidence and marked as follows:

(1) the Solari response (exhibit R1);

(2) the Solari documents (exhibit R2);

(3) the Labuschagne reference (exhibit R3);

(4) the Hawke reference (exhibit R4);

(5) the Patteson reference (exhibit R5);

(6) the Fowler reference (exhibit R6).

1. Mr Solari gave brief oral evidence.
2. The Commission relied on the HCCC submissions and Ms Panizzutti made brief oral submissions.
3. Mr Solari relied on the Solari submissions and made brief oral submissions.
4. By consent, we made an order under s 64(1)(a) of the NCAT Act prohibiting the publication of the names of the persons in the HCCC submissions at [45]-[47] and specified that they were to be referred to as persons B to F respectively.

(1) whether Mr Solari has been convicted of a criminal offence in New South Wales;

(2) whether Mr Solari is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law;

(3) whether, and if so in what manner, the disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law should be exercised against Mr Solari;

(4) whether Mr Solari should pay the Commission's costs of the proceedings.

1. Before considering these issues, it is appropriate to set out the applicable provisions of the National Law, and the legal principles applicable to the determination of the Complaints.

1. Part 1 (ss 1-10) contains preliminary provisions. Section 3 specifies the objectives and guiding principles of the National Law, and relevantly provides:

3 Objectives and guiding principles

(1) The object of this Law is to establish a national registration and accreditation scheme for -

(a) the regulation of health practitioners; and

...

(2) The objectives of the national registration and accreditation scheme are -

(a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and

...

1. Section 3A specifies the objective and guiding principle to be observed in the exercise of functions under the National Law, and provides:

3A Objective and guiding principle [NSW]

In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.

1. Section 4 specifies how functions under the National Law are to be exercised, and provides:

4 How functions to be exercised

An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in sections 3 and 3A.

1. Section 5 contains definitions, and since the enactment of the National Law has relevantly provided:

5 Definitions

In this Law -

...

criminal history, of a person, means the following -

(a) every conviction of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law;

(b) every plea of guilty or finding of guilt by a court of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law and whether or not a conviction is recorded for the offence;

(c) every charge made against the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law.

...

1. Part 7 Division 9 Subdivision 1 (ss 107-112) contains provisions dealing with the renewal of registration of registered health practitioner. Section 109 deals with the annual statement of a practitioner, and relevantly provides:

109 Annual statement

(1) An application for renewal of registration must include or be accompanied by a statement that includes the following-

...

(b) details of any change in the applicant's criminal history that occurred during the applicant's preceding period of registration;

...

1. Part 7 Division 11 Subdivision 3 (ss 128-132) contains provisions dealing with the obligations of registered health practitioners and students. Section 130 deals with the obligation of a registered health practitioner or student to give the National Board notice of certain events, and relevantly provides:

130 Registered health practitioner or student to give National Board notice of certain events

(1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board established for the practitioner's or student's health profession written notice of the event.

...

(3) In this section -

relevant event, in relation to a registered health practitioner, means -

(a) the practitioner is charged with -

...

(ii) an offence punishable by 12 months imprisonment or more, whether in a participating jurisdiction or elsewhere; or

(b) the practitioner is convicted of or is the subject of a finding of guilt for -

...

(ii) an offence punishable by imprisonment, whether in a participating jurisdiction or elsewhere; or

1. Part 8 Division 1 (ss 138-139I) contains provisions dealing with preliminary matters in relation to health, performance and conduct. Section 139B contains a definition of unsatisfactory professional conduct of a registered health practitioner, and relevantly provides:

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

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

...

(b) Contravention of this Law or regulations

A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.

1. Part 8 Division 3 Subdivision 1 (ss 144-144G) contains provisions dealing with the making of complaints. Section 144 deals with the grounds for complaint about a registered health practitioner, and relevantly provides:

144 Grounds for complaint about registered health practitioner [NSW]

The following complaints may be made about a registered health practitioner -

(a) Criminal conviction or criminal finding

A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence.

...

1. Part 8 Division 3 Subdivision 6 (ss 149-149E) contains provisions dealing with the disciplinary powers of the Tribunal. Section 149 specifies the circumstances in which these disciplinary powers may be exercised, and relevantly provides:

149 Powers may be exercised if complaint proved or admitted [NSW]

The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner ... if -

(a) it finds the subject-matter of a complaint against the practitioner ... to have been proved; or

...

1. Section 149C specifies the powers of the Tribunal to suspend or cancel registration in certain cases, and relevantly provides:

149C Tribunal may suspend or cancel registration in certain cases [NSW]

(1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied -

(a) the practitioner is not competent to practise the practitioner's profession; or

(b) the practitioner is guilty of professional misconduct; or

(c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or

(d) the practitioner is not a suitable person for registration in the practitioner's profession.

...

(4) If the person is no longer registered, the Tribunal may -

(a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and

(b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and

(c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board.

...

(7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time.

1. Schedule 5D contains provisions relevantly dealing with proceedings before the Tribunal. CIause 5 deals with evidence of other proceedings, and relevantly provides:

5 Evidence of other proceedings [NSW]

(1) A Committee or the Tribunal may receive and admit on production any of the following, as evidence in any proceedings -

(a) the judgment and findings of a court (whether civil or criminal and whether or not of this jurisdiction);

...

(f) a certificate of the conviction of or the making of a criminal finding in respect of any person;

...

where the Committee or the Tribunal is of the opinion that the judgment, findings, verdict, certificate, decision, determination or evidence is relevant to the proceedings.

1. Clause 13 deals with the power of the Tribunal to award costs, and relevantly provides:

13 Tribunal may award costs [NSW]

(1) The Tribunal may order the complainant (if any), the registered health practitioner ... concerned, or ... to pay costs to another person as decided by the Tribunal.

...

(3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.

(4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.

The legal principles applicable to the determination of the Complaints

1. 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].
2. 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 ..."

1. 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)

1. 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.
2. In approaching the issue in these proceedings 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).
3. 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 at [69]- [70] (Brereton JA with Simpson AJA at [137] agreeing).

1. In Health Care Complaints Commission v A Medical Practitioner [2001] NSWCA 158 (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."

1. In Health Care Complaints Commission v Gao [2022] NSWCATOD 73 (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] NSWCCA 310; (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."

1. We have applied the principles in [46]-[51] above in making the necessary factual findings in deciding the issues arising for determination.
2. In the light of the nature of the Complaints and the principles in Medical Practitioner at [47] and Gao at [73]-[79], we have not taken the Labuschagne reference, the Hawke reference, the Patteson reference, and the Fowler reference into account in the determination of the Complaints. They are of no relevance as to whether the Mr Solari was convicted of the charge or otherwise engaged in the impugned conduct.

Whether Mr Solari has been convicted of a criminal offence in New South Wales

1. This issue involves the determination of Complaint One.

1. The HCCC documents relevantly include the following documents:

(1) the Certificate of Conviction dated 22 December 2023 for Mr Solari in respect of the charge (the 22 December 2023 certificate);

(2) the transcript of the conviction and severity appeals of Mr Solari before Judge Musgrave in the District Court of New South Wales at Orange on 19 April 2024.

1. Pursuant to cl 5(1)(a) and (f) of Sch 5D of the National Law we have been entitled to receive as evidence the 22 December 2023 certificate and the 19 April 2024 District Court judgment in relation to the charge.
2. We are satisfied on the basis of this evidence that Mr Solari has been convicted of a criminal offence in New South Wales within s 144(a) of the National Law.
3. It follows that we are satisfied that the Commission has established Complaint One.

Whether Mr Solari is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law

1. This issue involves the determination of Complaints Two and Three.

1. The HCCC documents relevantly include the email of an officer of AHPRA to an Investigation Officer of the Commission sent on 5 July 2024 (the 5 July 2024 AHPRA email) advising that:

(1) Mr Solari did not give the applicable National Board within the specified period of seven days written notice of the charge and his conviction of the charge under s 130(1) when read with the definition of relevant event in s 130(3)(a)(ii) and (b)(ii) of the National Law;

(2) AHPRA had not received any self-notification from Mr Solari or any other information regarding his criminal history.

1. Mr Solari in the Solari submissions agreed that he did not give the applicable National Board within the specified period of seven days written notice of the charge and his conviction of the charge under s 130(1) when read with the definition of relevant event in s 130(3)(a)(ii) and (b)(ii) of the National Law. He submitted that he did not do this deliberately and notified AHPRA as soon as he became aware of his responsibilities to do so.

1. In Health Care Complaints Commission v Drakopoulos [2021] NSWCATOD 72 (Drakopoulos) at [32], the Tribunal rejected the practitioner's submission that he was not obliged to give the applicable written notice under s 130(1) of the National Law because he thought that NSW Police would have made notifications on his behalf and he was not obliged to report these matters after he had been suspended:

"... We reject these submissions. It is incumbent upon health practitioners to inform themselves of the regulatory requirements under which they practice. A failure to do so does not excuse non-compliance. ..."

1. In Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 (Amalakumar) at [23]-[24], the Tribunal rejected the practitioner's submission that a contravention of the kind described in s 139B(1)(b) of the National Law did not automatically mean that the practitioner had necessarily committed unsatisfactory professional conduct.

1. We are satisfied on the basis of this evidence and the principles in Drakopoulos at [32] and Amalakumar at [23]-[24] that Mr Solari contravened s 130(1) of the National Law and thereby engaged in unsatisfactory professional conduct within s 139B(1)(b) of the National Law.
2. It follows that we are satisfied that the Commission has established Complaint Two.

1. The HCCC documents relevantly include the following documents:

(1) an online application for renewal of his registration for the period from 1 December 2022 to 30 November 2023 lodged by Mr Solari on 30 November 2022 (the 30 November 2022 Solari renewal application) in which he answered "no" to the question "Since your last declaration to Ahpra, has there been any change to your criminal history in Australia that you have not declared to Ahpra?";

(2) an online application for renewal of his registration for the period from 1 December 2023 to 30 November 2024 lodged by Mr Solari on 21 November 2023 (the 21 November 2023 Solari renewal application) in which he answered "no" to the question "Since your last declaration to Ahpra, has there been any change to your criminal history in Australia that you have not declared to Ahpra?".

1. In the 15/18 HCCC/AHPRA email chain, an officer of AHPRA relevantly stated in relation to the 5 July 2024 AHPRA email:

"It appears that we have not received the attached notification from the practitioner, as it is not saved in our database. Additionally, we have no record of any notifications from the practitioner regarding criminal history charges or convictions.

..."

1. The Solari documents relevantly include the email sent by Mr Solari on 26 August 2022 to Ms Rafferty, and copied to his solicitor, in which he relevantly stated "... I did send AHPRA the notification of the police charges against me after the meeting when you told me I needed to do this. ... I posted it as per the instructions on the form. ..." (the 26 August 2022 Solari email).

1. The Commission submitted in the HCCC submissions that Mr Solari's negative answer in each of the 30 November 2022 Solari renewal application and the 21 November 2023 Solari renewal application as to a change in his criminal history constituted "a lie".

1. Mr Solari in the Solari submissions relevantly submitted in relation to the 21 November 2023 Solari renewal application:

"a) I believed that there had been no change in my criminal history on advice from my legal team. No conviction had been determined at this point. I now see that the definition of a change in criminal history not only includes being charged with an offence punishable by 12 months imprisonment or more and being convicted of an offence punishable by imprisonment, but that it also includes being subject to a finding of guilt for an offence punishable by imprisonment.

b) It was not my intent to deceive and based on the advice of my legal team, I thought that I was answering the question honestly."

1. We are not satisfied that Mr Solari provided a false answer in the 30 November 2022 Solari renewal application by the reason of his negative answer to the question about any change in his criminal history. We accept that the 26 August 2022 Solari email provides cogent contemporaneous evidence that Mr Solari informed AHPRA of the charge shortly prior to that date. We do not accept that the 15/18 HCCC/AHPRA email chain establishes that AHPRA did not receive notification of the charge from Mr Solari. There was no evidence of the process of the recording of documents in AHPRA's database and the process for recording documents it received. On 30 November 2022, while there had been a change in Mr Solari's criminal history, this change had already been declared by him to AHPRA.
2. We are satisfied that Mr Solari provided a false answer in the 21 November 2023 Solari renewal application by the reason of his negative answer to the question about any change in his criminal history. There had been a change in his criminal history within paragraph (b) of the definition of "criminal history" in s 5 of the National Law arising from the finding of his guilt of the charge on 14 July 2023 by Magistrate D Day in the Local Court of New South Wales at Orange. While we accept that Mr Solari received legal advice that there was a stay of his conviction on 24 November 2023 when he appealed against his conviction and sentence, this legal advice was not directed to the finding of guilt on 14 July 2023. Further, the legal advice was incorrect as the lodgement of an appeal to the District Court only operates as a stay of execution of the sentence pursuant to s 63 of the CAR Act.
3. We are satisfied on the basis of this evidence that Mr Solari contravened s 109(1)(b) of the National Law in relation to the 21 November 2023 Solari renewal application and thereby engaged in unsatisfactory professional conduct within s 139B(1)(b) of the National Law.

Whether, and if so in what manner, the disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law should be exercised against Mr Solari

1. Before considering this issue, it is appropriate to set out the applicable legal principles and summarise the evidence and submissions of the Commission.

The exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law

1. In Lee v Health Care Complaints Commission [2012] NSWCA 80 at [19]- [21] Barrett JA (with Macfarlan JA at [1] and Tobias AJA at [80] agreeing) set out the principles for the exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law:

"[19] As Basten JA pointed out in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [85], the power of the Tribunal to make a disciplinary order is discretionary in nature. ...

[20] Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points:

1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual.

2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order.

3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual 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 to produce a level of insight into his or her own character or misconduct which did not previously exist.

[21] The task of the Tribunal ... centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards."

1. In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], Meagher JA (with Basten JA at [1] and Emmett JA at [60] agreeing) emphasised that protecting the health and safety of the public is not confined to protecting future patients from the risk of harm:

"[35] 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 misconduct 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 practise, 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 practise."

1. In Re Parajuli [2010] NSWMT 3 (Parajuli) the former Medical Tribunal determined that in exercising its functions under the former Medical Practice Act 1992 (NSW) (which similarly had an objects provision concerning the paramount purpose of protecting the health and safety of the public) that it "may consider five matters bearing on protection":

"(a) any need to protect the public against further misconduct by the practitioner;

(b) the need to protect the public through general deterrence (of other practitioners);

(c) the need to protect the public by reinforcing high professional standard and denouncing transgressions;

(d) the maintenance of public confidence in the profession;

(e) the desirability of making available to the public any special skills possessed by the practitioner."

1. The five matters in Parajuli have been approved by the Tribunal applying the National Law: see, for example, Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113 at [24]; Health Care Complaints Commission v Duggan [2015] NSWCATOD 142 at [43]; Health Care Complaints Commission v Chahoud [2022] NSWCATOD 36 at [195].
2. No order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose of the National Law: Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 at [88].

The significance of a finding of dishonesty against a practitioner

1. In Lee at [67], Barrett JA (with Macfarlan JA at [1] and Tobias AJA at [80] agreeing) made the following observation as to the significance of a finding of dishonesty against a practitioner:

"[67] ... Cases of dishonesty are very serious. Cases of recklessness are also serious. This is particularly so where the protection of the public is at stake and the default is one that leaves patients exposed to a risk against which the practitioner is required by law to provide protection."

1. In Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323; [2007] NSWCA 32 (Wingate) at [43], Basten JA (with McColl JA at [1] and Harrison J at [81] agreeing) referred to the duty of full and frank disclosure of misconduct which applies both to members and applicants for membership of professions such as law and medicine.

The exercise of the power of the Tribunal to cancel the registration of the practitioner and to specify a non-review period

1. In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 (Chen) at [21]-[22], Basten JA (with Leeming JA at [23] agreeing) considered the operation of s 149C of the National Law:

"[21] Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it.

[22] The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. ..."

1. In Chen at [88], Payne JA (with Basten JA at [1] and Leeming JA at [23] agreeing) considered the operation of s 149C(7) of the National Law:

"[88] ... a time fixed under s 149C(7) does not necessarily mean that the Tribunal has formed a view that things will have changed by the end of the period which has been fixed. The Tribunal is permitted by s 149C(7) to make clear in its orders the seriousness with which it views the conduct of the practitioner reflected in the complaints which have been proven. Such an order plays a part in the general deterrence reflected by the order."

1. In Health Care Complaints Commission v Morsingh (No 3) [2022] NSWCATOD 28 (Morsingh OD (No 3)) the Tribunal found that the practitioner engaged in inappropriate conduct which included sexual touching towards a female patient on a single occasion. The Tribunal relevantly decided to cancel the practitioner's registration, to fix a non-renewal period of two years, and to make a prohibition order against the practitioner.

Whether the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession within s 149C(1)(c) of the National Law

1. In Health Care Complaints Commission v Russ [2021] NSWCATOD 5 at [37]- [42], the Tribunal relevantly made the following observations as to whether the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession within s 149C(1)(c) of the National Law:

"[37] Section 149C(1)(c) requires the Tribunal to evaluate whether "the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession". We accept, as the Commission contends, that the term "public interest", which is not defined by the National Law, is a broader concept than the protection of the health or safety of the public and encompasses wider community interests such as the standards to which human conduct is to be held: see, for example, Pharmacy Council v Ibrahim [2020] NSWSC 708 at [35].

[38] Further, as Payne JA explained in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [67]- [69], s 149C(1)(c) is not subject to a requirement of "probable permanent unfitness", but rather requires an assessment of "the practitioner's current fitness to practise".

[39] The question posed by s 149C(1)(c) is whether the circumstances surrounding the relevant offence currently render the practitioner unfit to practise his or her profession in the public interest. The Tribunal must look back to the circumstances of 2018-19 and make that assessment in the present. Nonetheless, that evaluation has a narrow focus and is to be undertaken solely by reference to "the circumstances of the offence".

...

[41] Offences are committed by individuals with varying subjective characteristics and personal circumstances. In construing s 149C(1)(c) we need to take into account the objectives of the National Law which relevantly include "the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered": s 3(2)(a). Section 149C(1)(c) is concerned with the character and capacity of health practitioners and whether, as a result of having committed an offence they have behaved so egregiously as to render the subject practitioner "unfit in the public interest to practise the practitioner's profession".

[42] The circumstances of an offence include not only the actions and intentions of the practitioner constituting the physical and mental elements of the offence, but also the context in which those circumstances developed; the character of the practitioner; and his or her subjective circumstances."

1. The HCCC documents relevantly include the following documents:

(1) four email chains between each of Persons B to E and the Operations Manager of Lumus in May 2017 in which they made complaints about the following inappropriate behaviour of Mr Solari (the May 2017 email chains):

(a) sexually suggestive comments;

(b) comments about colleagues' physical appearance;

(c) comments about patients he found physically attractive;

(d) invading personal space/standing uncomfortably close;

(e) massaging a colleague's shoulders;

(f) snapping a colleague's bra strap;

(2) three email chains between each of Persons A, C and D and the Area Manager of Lumus in July 2019 in which they made complaints, and Person D included a complaint by Person F, about the following inappropriate behaviour of Mr Solari (the July 2019 email chains):

(a) he said to Person C, "it doesn't matter how tall they are, they are all the same when they are sitting on your face";

(b) he approached Person D while she was seated, and pushed his crotch against her arm while discussing a booking;

(c) Person F requested that she not be rostered onto certain shifts as she was not comfortable being alone with him, as he would often invade her personal space, touch her, and make inappropriate comments;

(d) Person A reported that he had said to her "I like it when you wear your hair down, it's yummy." She also noted that she had observed him to invade colleagues' personal space, touch them unnecessarily, and make inappropriate comments;

(3) the investigation report dated 12 May 2022 by the Senior HR Business Partner of Lumus into the workplace incident (the 12 May 2022 Lumus report);

(4) the email Mr Solari to an Investigation officer of the Commission sent on 22 October 2024 (the 22 October 2024 Solari email) in which he stated:

"I understand that I was convicted and sentenced in a court of law despite my protestations of innocence.

I was devastated with the allegation and charge and even more devastated with the conviction. I have no more energy or willpower left and no funds for legal representation, so I am at the mercy of the HCCC. I realise now that I should have contacted AHPRA upon the failure of my appeal. I have given up and don't care any more. I just want to tend to my garden and plants.

It saddens me that people are more obsessed with greed, power and glory and that these have infiltrated healthcare. People are more concerned with "climbing the ladder to more money and power" than they are with caring for patients and co-workers.

All I want is for this nightmare to end."

1. The Tribunal raised with Mr Solari the question of whether he wished to seek an adjournment of the hearing when the solicitor for the Commission advised that the Commission did not provide any information to Mr Solari prior to the HCCC submissions as to how it would be seeking to rely on the May 2017 email chains, the July 2019 email chains, and the 12 May 2022 Lumus report. Mr Solari indicated that he wished to proceed with the hearing and did not wish to adduce any evidence in response to this evidence of the Commission.
2. The Tribunal is concerned that the Commission provides self-represented practitioners with timely information as to how evidence, which is adduced to establish that the circumstances of the offence are such as to render the practitioner unfit in the public interest to practise the practitioner's profession within s 149C(1)(c) of the National Law, is intended to be relied on. If this information is contained in the complaint, then this will constitute the timely provision of information. If this information is not contained in the complaint, then the timely provision of information will ordinarily be required before the provision of opening submissions a short time prior to the hearing. If Mr Solari had sought an adjournment of the hearing to adduce evidence in response to this evidence, it is likely that we would have granted the adjournment. The Commission could have avoided such any such outcome by the provision of information to Mr Solari as to the intended use of this evidence.

1. The Solari documents relevantly include the following documents:

(1) a copy of the AHPRA standard form entitled "Notice of certain events" with a cross in the box adjacent to the words "you have been charged ... with an offence punishable by 12 months imprisonment or more" completed, dated 11 August 2022 and signed by Mr Solari (the 11 August 2022 AHPRA notice);

1. Mr Solari in cross-examination gave the following evidence:

(1) he sent the 11 August 2022 AHPRA notice by post;

(2) he agreed that he did not give AHPRA notice of the finding of guilt on 14 July 2023 and of his conviction on 24 November 2023. He received legal advice that nothing in his criminal history had changed because his conviction had been stayed;

(3) he maintained his innocence of the charge, but accepted that he had been found guilty;

(4) in response to the 22 October 2024 Solari email, said he was not a victim, this was a very bad mental health period, and he was trying to find employment out of healthcare;

(5) he said that the complaints in the May 2017 email chains and the July 2019 email chains were not brought to his attention at the time, or during the course of the investigation that resulted in the 12 May 2022 Lumus report;

(6) he denied that it was Lumus' responsibility to manage his workplace behaviour.

1. The Commission made the following submissions in the HCCC submissions:

(1) the incidents described the May 2017 email chains and the July 2019 email chains demonstrate a clear pattern of escalation, which ultimately culminated in the workplace incident;

(2) the fact that the offending and surrounding inappropriate sexual conduct occurred in the workplace is significant;

(3) in addition to creating an unsafe workplace for other healthcare practitioners and their support staff, Mr Solari has demonstrated a propensity for sexual harassment in the clinic environment, which the Tribunal would readily accept gives rise to legitimate concern as to the safety of patients. This is bolstered by the evidence of his having made inappropriate comments about patients;

(4) Mr Solari has continued to deny the conduct subject of the criminal conviction, despite overwhelming evidence, including CCTV footage. While it is of course his right to defend any criminal charge, when assessing his suitability for practice, the Tribunal is entitled to draw inferences as to his remorse and insight, which is entirely absent. Again, this supports an inference that he poses an ongoing risk;

(5) the Tribunal should have regard to the conduct the subject of Complaints Two and Three. Failures to notify are not administrative trivialities, but serious breaches of a practitioner's legal and ethical obligations as recognised in Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 (Bolton) at [100]. The false statement the subject of Complaint Three is more serious still, as it involves actively providing the regulator with false information;

(6) the making of false or misleading statements to the Council is inherently serious, and it is recognised that dishonesty in relation to a practitioner's criminal history is especially egregious. Mr Solari's dishonesty represents a significant departure from the ethical standards expected of a registered health care practitioner, and demonstrates that he lacks the requisite integrity to be trusted with the privilege of registration;

(7) the Commission's prayer for an order disqualifying Mr Solari from registration for a period of two to three years, is analogous to the setting of a non-review period, and the same considerations apply.

1. In her oral submissions the solicitor for the Commission submitted that the period for disqualification for Mr Solari should be three years.

1. Mr Solari in his oral submissions said that he had no problem with a disqualification for three years.

1. In view of our findings, we are satisfied that we are entitled pursuant to s 149(a) of the National Law to exercise the disciplinary powers under Pt 8 Div 3 Subdiv 6 of the National Law against Mr Solari.
2. Having regard to ss 3, 3A and 4 of the National Law, the legal principles in [78] to [82] above, and the matters set out in [57] to [61] above, we are satisfied that we should make the following findings:

(1) if Mr Solari were still registered, we would have cancelled his registration pursuant to s 149C(4)(a) of the National Law;

(2) the National Board is required to record the fact that the Tribunal would have cancelled the registration of Mr Solari in the National Register kept by the Board pursuant to s 149C(4)(c) of the National Law.

1. Having regard to ss 3, 3A and 4 of the National Law, the legal principles in [78] to [89] above, and the matters set out in [57] to [76] above, we are satisfied that Mr Solari should be disqualified from being registered in the medical radiation profession for a period of three years from the date of this decision pursuant to s 149C(4)(b) of the National Law. We have made the following findings:

(1) the most troubling matter is Mr Solari's continuing assertion of his innocence of the charge. He adduced no evidence to demonstrate that the finding of guilt should not have been made;

(2) we have not found the complaints in in the May 2017 email chains and the July 2019 email chains helpful in making findings as to the circumstances of the charge. They preceded the workplace incident by four years 11 months and two years and nine months respectively. We accept that the complaints were not brought to Mr Solari's attention. While the complaints occurred in the workplace, with three exceptions there was no conduct alleged against Mr Solari involving touching;

(3) we do not accept the submission of the Commission that Mr Solari's negative answer to the applicable question in the 21 November 2023 Solari renewal application was "a lie" in the sense of being a deliberately dishonest or reckless answer. We accept that he relied on incorrect legal advice;

(4) we accept the importance of compliance by practitioners with s 130 of the National Law providing for notification or disclosure of criminal charges and convictions to AHPRA as expressed in Bolton at [100]:

"Provisions requiring the notification of certain types of criminal charges to AHPRA are a significant tool in the regulatory framework. By not notifying a transgression, a practitioner in effect deprives regulatory bodies of the opportunity to assess risk and take appropriate action to protect the health and safety of the public at the earliest possible stage. Moreover by not notifying, a practitioner continues to hold the benefits of registration, and depending on the nature of the transgression, could potentially give themselves the opportunity to continue the same or similar conduct which brought them to the attention of the police and criminal justice system in the first place."

(5) while we have found that Mr Solari contravened s 130(1) of the National Law and s 109(1)(b) of the National Law in relation to the 21 November 2023 Solari renewal application, and thereby engaged in unsatisfactory professional conduct within s 139B(1)(b) of the National Law, we are not satisfied that he engaged in tis conduct deliberately in the sense of seeking to mislead AHPRA. Mr Solari was an unsophisticated witness and has been clearly overwhelmed by the outcome of the workplace incident.

Whether Mr Solari should pay the Commission's costs of the proceedings

1. Before considering this issue, it is appropriate to set out the applicable legal principles and summarise the submissions of the parties.

The exercise of the power of the Tribunal to award costs under cl 13 of Sch 5D of the National Law

1. In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) at [42]-[46], Emmett JA (with Meagher JA at [1] and Beech-Jones J at [50] agreeing) set out the principles relevant to the exercise of the power of the Tribunal to award costs under cl 13 of Sch 5D of the National Law:

"[42] As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]- [52]). It has not been suggested by the Doctor that any of those factors applied.

[43] As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95).

[44] It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made.

[45] The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner.

[46] The fact that the Doctor has made, and continues to make, an effort to overcome personal difficulties is not a rational basis for excusing him from the normal consequences of disputing allegations that are ultimately made out against him. ..."

1. In Health Care Complaints Commission v Neale [2024] NSWCATOD 16 (Neale) at [8]-[10], the Tribunal relevantly said:

"[8] In its submissions with respect to costs dated 4 August 2023 the Applicant identified the relevant statutory provisions with respect to costs and a number of the principles relevant in that regard. As is not in doubt, costs are awarded to compensate a successful party, rather than punish an unsuccessful party and, as a general rule, follow the event (HCCC v Philipiah [2013] NSWCA 342).

[9] The presumption that a successful party is entitled to receive its costs is generally only displaced where there has been some disentitling conduct by the successful party (Oshlack v Richmond River Council (1998) 193 CLR 72 [1998] HCA 11, Health Care Complaints Commission v CSM [2016] NSWCATOD 125, Health Care Complaints Commission v Brush (No. 2) [2015] NSWCATOD 154).

[10] A respondent bears the onus of establishing a basis for any departure from the general rule (Health Care Complaints Commission v Livermore [2021] NSWCATOD 115). If the successful party is found to have engaged in disentitling conduct the general rule may be departed from."23

1. In 203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAP 29 (203 Castlereagh Street) at [40]-[41], the Appeal Panel set out the principles with respect to the making of a gross sum costs order. The Tribunal has applied the principles in 203 Castlereagh Street at [40]-[41] in making a gross sum costs order in health practitioner disciplinary matters: Health Care Complaints Commission v Wardman (No 2) [2021] NSWCATOD 67 at [44].

1. The Commission in the HCCC submissions relevantly made the following submissions:

(1) it set out some relevant principles;

(2) it seeks an order that Mr Solari pays the Commission's costs, as agreed or assessed.

1. In her oral submissions the solicitor for the Commission submitted that, while Mr Solari could make an application in relation to costs under the Commission's hardship policy, the Tribunal should not make a gross sum costs order.

1. Mr Solari in his oral submissions said that he could not afford to pay the costs of the Commission. He submitted that the Tribunal should make a gross sum costs order.

1. Having regard to the principles in Philipiah at [42]-[46] and Neale at [8]-[10], we have decided pursuant to cl 13 of Sch 5D of the National Law to order Mr Solari to pay the Commission's costs of the proceedings.
2. Our provisional view is that we should make a gross sum costs order. To enable this issue to be determined we require:

(1) if the parties have reached agreement as to the quantum of the costs of the proceedings, the Commission to notify the Registry of the agreed amount within 7 days of this decision;

(2) if the parties have not reached agreement as to the quantum of the costs of the proceedings:

(a) the Commission is to lodge and serve within 14 days of this decision an itemised bill of costs, its submissions limited to two pages as to whether a gross sum costs order should be made and if made the amount of the gross sum including the discount to be applied, and a whether a hearing on this issue may be dispensed with;

(b) Mr Solari is to lodge and serve within 21 days of this decision his submissions limited to two pages as to whether a gross sum costs order should be made and if made the amount of the gross sum including the discount to be applied, and a whether a hearing on this issue may be dispensed with;

(c) the Commission is to lodge and serve within 28 days of this decision any submissions in reply limited to one page.

(1) An order that if the respondent were still registered the Tribunal would have cancelled his registration.

(2) An order that the respondent is disqualified from being registered in the medical radiation profession for a period of three years from the date of this decision.

(3) An order that the National Board is required to record the fact that the Tribunal would have cancelled the registration of the respondent in the National Register kept by the Board.

(4) An order that the respondent pay the applicant's costs of the proceedings.

(5) If the parties have reached agreement as to the quantum of the costs of the proceedings, the applicant is to notify the Registry of the agreed amount within 7 days of this decision.

(6) If the parties have not reached agreement as to the quantum of the costs of the proceedings:

(a) the applicant is to lodge and serve within 14 days of this decision an itemised bill of costs, its submissions limited to two pages as to whether a gross sum costs order should be made and if made the amount of the gross sum including the discount to be applied, and a whether a hearing on this issue may be dispensed with;

(b) the respondent is to lodge and serve within 21 days of this decision his submissions limited to two pages as to whether a gross sum costs order should be made and if made the amount of the gross sum including the discount to be applied, and a whether a hearing on this issue may be dispensed with;

(c) the applicant is to lodge and serve within 28 days of this decision any submissions in reply limited to one page.

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.