Kavieris v Health Care Complaints Commission

Supreme Court of NSW|2024-11-07

WCA 353 Medical Council of NSW v Mooney [2024] NSWCA 180 Texts Cited: Nil Category: Principal judgment Parties: Theodore Kavieris (Plaintiff) Health Care Complaints Commission (Defendant) Representation: Counsel: R Mathur SC / K Heath (Plaintiff) K Eastman SC / D Tang (Defendant)

Solicitors: Unsworth Legal Pty Limited (Plaintiff) Health Care Complaints Commission (Defendant) File Number(s): 2024/173426 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Occupational Division Citation: [2024] NSWCATOD 40 Date of Decision: 12 April 2024 Before: H J Dixon SC, Senior Member J Sulentic, Senior Member S Mackie, Senior Member J Houen, General Member File Number(s): 2022/00317602

JUDGMENT

By an amended summons filed on 31 October 2024, the plaintiff appeals against the decision dated 12 April 2024 of the Occupational Division of the NSW Civil and Administrative Tribunal (NCAT). NCAT's decision is reported as Health Care Complaints Commission v Kavieris [2024] NSWCATOD 40 (Decision). The amended summons identifies three grounds, in respect of which the plaintiff either appeals or seeks leave to appeal.
In brief, NCAT found that the plaintiff was guilty of unsatisfactory professional conduct and professional misconduct as defined in ss 139B and 139E respectively of the Health Practitioner Regulation National Law (NSW) (National Law). These findings related to the plaintiff's conduct as a physiotherapist in treating a woman who has the pseudonym B. The relevant conduct occurred at B's first consultation with the plaintiff, which occurred on 12 October 2020 when B sought treatment from the plaintiff about a back injury.
The plaintiff is an experienced physiotherapist, having commenced practising as a physiotherapist in 1994. In 2015, he commenced applying techniques developed by the Barral Institute in France. The Barral Method involves fascio-visceral manipulation as a treatment modality. The method involves using palpation skills to identify mechanical restrictions in the connective tissues which surround each structure of the body. This can involve palpation of the uterus and manipulation in and around the female reproductive system.
The Decision also related to another patient of the plaintiff (Patient A), who complained about the plaintiff's use of the Barral Method in treating her ankle injury. NCAT concluded that there were clinical indications for that treatment and dismissed the complaints of unsatisfactory professional conduct and professional misconduct in relation to that patient. In concluding that the treatment of this particular patient was clinically indicated, NCAT accepted Dr Panagopoulos' evidence to that effect and noted at [67] that Dr Panagopoulos "had sufficient learning, specialised knowledge based on his research and publications to express his opinions". Dr Panagopoulos has a Bachelor of Medical Science from Sydney University, a Bachelor of Applied Science in Physiotherapy from Sydney University and a PhD from Macquarie University titled "Innovative Diagnosis and Treatment of Low Back Pain". He has attended post-graduate workshops run by the Barral Institute and has learnt Visceral Manipulation techniques as discussed in his expert report.
The evidence before NCAT indicated that there had been no other complaints against the plaintiff over approximately 26 years of practice as a physiotherapist and during his use of the Barral Method for approximately five years.
NCAT provided lengthy and comprehensive reasons for the Decision. They total 67 pages. In the proceeding before the Court, the parties relied upon a Joint Court Book which comprised four volumes and exceeded 1500 pages.
These reasons for judgment are structured as follows: 1. Complaints 1 and 2 against the plaintiff relating to his treatment of B will be summarised. 2. NCAT's reasons for the Decision will be summarised insofar as they relate to the three grounds of appeal. 3. I will then explain why I consider that the plaintiff should succeed on two of the three grounds and the orders which should be made.

Complaints 1 and 2

Complaints 1 and 2 related to the allegations of unsatisfactory professional conduct and professional misconduct respectively. The particulars for both Complaints were materially identical in the further amended complaint. It is sufficient to focus on Particulars 7, 8 and 10 which are at the heart of NCAT's findings that the plaintiff had engaged in unsatisfactory professional conduct and professional misconduct in his treatment of B.
Particular 7 comprised nine sub-particulars concerning the plaintiff's conduct (noting that sub-particulars (d) and (h) are of particular significance in this proceeding). It was alleged that he: 1. failed to obtain an adequate and/or appropriate history about B's back injury before commencing assessment and/or treatment; 2. failed to conduct an adequate physical assessment of B's back injury; 3. inappropriately assessed B with her bra unclasped in circumstances where he did not offer that the assessment could be conducted with her bra clasped; 4. inappropriately and without prior explanation, lowered B's tights and/or underwear to expose her pubic bone; 5. inappropriately and without prior explanation, touched and/or manipulated B's pubic bone and/or pelvis in the purported assessment or treatment of her back injury and without prior explanation touched and/or manipulated B's pubic bone and/or pelvis in the purported assessment or treatment of her back injury without clinical indication to do so; 6. inappropriately and without adequate explanation palpated and/or massaged the following areas in the purported assessment or treatment of B's back injury, without clinical indication to do so: 1. abdominal area; 2. bladder; 3. uterus; 1. inappropriately and without adequate explanation palpated and/or massaged and/or manipulated B's left broad ligament of uterus in the purported assessment or treatment of her back injury, without clinical indication to do so; 2. inappropriately and without adequate explanation palpated and/or massaged on and/or around B's labia majora in circumstances where he flexed his fingers in different ways at the distal and proximal joint, and continued to flex or palpate his fingers with different pressure 2 or 3 times and with pause, without clinical indication to do so; 3. failed to have regard to B's modesty in that he: 1. left the cubicle curtain open by more than five centimetres; 2. did not provide adequate draping during assessment and/or treatment.
Particular 8 was in the following terms: 1. Having regard to matters including Particulars 7(d) to (h) above, the practitioner failed to obtain informed consent from B in relation to the assessment and/or treatment he provided.
Particular 10, to which ground 3 relates, was in the following terms: 1. By reason of any of the matters referred to in Particulars 7(c) to (i) above, individually or cumulatively, the practitioner: 1. engaged in inappropriate conduct of a sexual nature towards B; [or] 2. was reckless to the likelihood that B could consider the conduct to be sexually motivated.
During the course of the hearing below, the HCCC amended the document so as to add the word "or" between (i) and (ii) in Particular 10.
It is unnecessary to summarise the plaintiff's response to all those particulars other than to note the following. In response to Particular 7(d), the plaintiff admitted that he moved B's tights and underwear so they were lowered to the level of her pubic bone and that he palpated the area above the pubic bone and only after he was satisfied she appeared comfortable to proceed. He denied that the lowering of the tights and underwear to the level of the pubic bone was inappropriate in the circumstances.
As to Particular 7(h), which figured prominently in NCAT's findings, the plaintiff denied that he had palpated or massaged on or around B's labia majora. Given his absolute and unqualified denial of the alleged conduct, the plaintiff did not raise any defence of informed consent or that there was a clinical indication to support the alleged conduct.
As to Particular 8, which claimed that the plaintiff failed to obtain B's informed consent in relation to the assessment and/or treatment he provided, the plaintiff did not admit any such failure. He said that he had had a conversation with B about the treatment and had noted B's informed consent by writing the letters "IC" in his clinical records. He admitted that he: 1. may have underestimated B's vulnerability; and 2. accepted that he should have taken extra steps to ensure that B fully understood and consented to the treatment.
As noted above, Particular 10, which claimed that the plaintiff had engaged in conduct of a sexual nature towards B, had two limbs. The first limb claimed that by reason of the matters referred to in Particulars 7(c) to (i), individually or cumulatively, the plaintiff had engaged in inappropriate conduct of a sexual nature towards B. In his reply to the particulars, the Plaintiff denied this first limb. It is unnecessary to say anything further about the second limb because NCAT ultimately concluded that it was unnecessary to do so in circumstances where it upheld the first limb.

NCAT's reasons summarised

The hearing before NCAT occurred over five days. Relevantly, the plaintiff and B were both cross-examined at some length, as were the respective experts for the plaintiff and the HCCC, Dr Panagopoulos and Ms Powell. Consistently with some earlier NCAT decisions and despite the misgivings expressed in Health Care Complaints Commission v Robinson [2022] NSWCA 164 (Robinson CA), the NCAT Decision published on 12 April 2024 related only to Stage 1 of the proceeding. NCAT is still to determine the consequential orders flowing from its Decision that the plaintiff was guilty of both unsatisfactory professional conduct and professional misconduct.
NCAT did not accept many of the particulars of Complaints 1 and 2 against the plaintiff. It accepted that some of the plaintiff's treatment of B using the Barral Method was clinically indicated, including assessing B with her bra unclasped (Particular 7(c)); palpating or massaging B's pubic bone and/or pelvis (Particular 7(e)), abdominal area, bladder and uterus (Particular 7(f)); and the left broad ligament of the uterus (Particular 7(g)).
In contrast, NCAT found that the plaintiff's physical assessment of B's back injury was not adequate and was substantially below the requisite standard required, thus upholding Particular 7(b). Adverse findings were also made against the plaintiff with regard to (a) the sufficiency of the explanations of the treatment he provided to B; (b) the sufficiency of the steps taken to protect B's modesty, including not providing her with draping during the assessment and/or treatment (Particular 7(i)(i)(ii)); (c) the care exercised by the plaintiff in seeking to obtain and obtaining B's informed consent to the treatment, which was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience (Particular 8); and (d) the clinical notes recorded by the plaintiff, which were inadequate and significantly below the standard required (Particular 9). The plaintiff does not challenge any of these adverse findings.
The focus of the appeal is directed to the following additional adverse findings by NCAT: 1. the plaintiff inappropriately pulled down B's tights and/or underwear to expose not only her pubic bone but below that (Particular 7(d)); 2. he inappropriately and without adequate explanation palpated and/or massaged on and/or around B's labia majora in circumstances where he flexed his fingers in different ways at the distal and proximal joint, and continued to flex or palpate his fingers with different pressure two or three times and with pause, without a clinical indication for doing so (Particular 7(h)); and 3. by reason of Particular 7(h), he engaged in inappropriate conduct of a sexual nature towards B (Particular 10(i)), which amounted to both unsatisfactory professional conduct and professional misconduct.

Level of B's tights/underwear (Particular 7(d))

With regard to the plaintiff's conduct in pulling down B's tights and/or underwear to expose her pubic bone, this reflected an agreed fact about which the plaintiff does not complain. His complaint, as raised by ground 1, relates to NCAT's additional finding at [182] that B's tights and underwear "were lowered not simply to the level of her pubic bone, but below that" (emphasis added). This additional finding was based on B's oral evidence which was that her tights and underwear were lowered to a point where her pubic hair was exposed. Significantly, this additional finding was material to NCAT's assessment of the weight to be given to Dr Panagopoulos' evidence.
B's evidence on this subject, in both her written and oral evidence, may be summarised as follows. 1. In her written complaint to the HCCC, which was made three days after her consultation, B complained that the plaintiff pulled her tights and underwear "right down so that my pubic bone was exposed". 2. In a later signed statement dated 19 May 2021, B stated, "When I was lying on my back on the treatment table, the practitioner then pulled my tights and underwear right down so my pubic bone was exposed". 3. In a further signed statement dated 15 July 2022, B stated that there were other times during the consultation when she was lying on her stomach (i.e. not in the recovery position when the impugned conduct occurred), where "[t]he tights were pulled down to expose the majority of my buttock cheeks and it felt like where my tights were pulled to a point in line with where the widest part of my hips are". B annexed to that statement a diagram where she marked in red the position where her tights/ underwear were at that time (Exhibit A1). Exhibit A1 is as follows: 4. 5. Exhibit A1 was the only diagram marked by B depicting the level of her clothing during the consultation. B did not say that her clothing moved from that level. NCAT referred to this diagram in the Decision at [172] when describing B's evidence that her underwear "was pulled right down very close to her vagina". 6. B agreed with what was depicted in a photograph labelled as being similar to the technique used by the plaintiff when he checked her pelvis (see at [34] below), but said the difference was that "my tights and underwear were pulled down to expose my pubic hair" and "my tights and underwear were further down to expose more of myself". It was put to B that she thought her tights and underwear had been pulled further down than in the photo, when in fact they had not been. She rejected that suggestion.
NCAT made three findings regarding Particular 7(d). First, it found, consistently with the agreed facts, that B's clothing was lowered to her pubic bone. This finding is not challenged. Secondly, NCAT made a finding as to the level of explanation that was provided by the plaintiff to B. NCAT considered that the consultation proceeded on the basis of a "running commentary", and that this was not sufficient prior explanation to B, given that the exposure of her pubic bone would be "confronting". The plaintiff does not challenge this finding.
Those two findings provided a sufficient basis for NCAT to conclude that Particular 7(d) was proven because, in its terms, it related only to the alleged inappropriateness of lowering B's clothing, without adequate explanation, so as to expose her pubic bone.
However, the plaintiff does challenge NCAT's additional finding, that B's tights/underwear were in fact lowered below B's pubic bone and how that finding was applied to NCAT's assessment of Dr Panagopoulos' evidence. NCAT reasoned at [182] (emphasis added): In addition, we are satisfied and find that Patient B's tights and underwear were lowered not simply to the level of her pubic bone, but below that. Dr Panagopoulos accepted that if the tights and underwear were lowered to the level of the pubic bone then it was appropriate and in line with the Barral Method. In this case, as a result of the tights and underwear being lowered beyond the pubic bone so as to expose Patient B's pubic hair it appears that Dr Panagopoulos would say that it was not in line with the Barral Method and was inappropriate.
The level to which B's tights/underwear were lowered, and whether the positioning of the clothing to that level was clinically required to perform an assessment in line with the Barral Method, was relevant to NCAT's finding that the plaintiff's conduct was inappropriate, which the plaintiff challenges in ground 1. It was never alleged that the plaintiff placed his fingers under B's tights or underwear. The impugned touching was said to have occurred on B's bare skin. This highlights the importance of determining the level to which B's clothing was lowered and whether it was below the pubic bone.

Touching on or around B's labia majora (Particular 7(h))

Turning now to NCAT's reasons for upholding Particular 7(h), which raised the claim that the plaintiff inappropriately and without adequate explanation touched on and/or massaged around B's labia majora, NCAT was confronted with diametrically conflicting evidence of B and the plaintiff, who denied the alleged conduct. B's evidence may be summarised as follows.
In her original complaint to the HCCC, B described the touching the subject of Particular 7(h) as occurring while she was rolled on her side in the recovery position, with one of the plaintiff's hands "through the space between [her] legs". She stated that the plaintiff: was making some, what felt like inconsequential movements, with his hands/fingers, and I felt extremely uncomfortable… [M]y experience was that his hands and fingers were very close to my vagina, and that digital penetration was a real possibility, noting that my tights were pulled down to expose my pubic bone.
In her first statement dated 19 May 2021, B elaborated on this account, stating that she felt his fingers "move every couple of seconds." She described him making "exploratory movements" with "just his fingers, not his whole hand" by "adjust[ing] the placement of his fingers then paus[ing]." She said that his fingers "were what felt like on and around my vagina, to the point that I thought penetration was a real possibility".
In her second statement dated 15 July 2022, B said that as her legs were closed, the plaintiff's fingers were on what she would describe as "the dry part of the outside of my vagina", which she believed was called the labia majora. Annexures C and D to that statement marked with red crosses the location where she believed the plaintiff's fingers were placed at different times during the treatment.
The diagrams are very graphic and I will not reproduce them. What is notable, however, is that in Annexure C the red cross marked by B is directly on the vagina opening and not on the labia majora. The diagram at Annexure D has five red crosses, one of which is again marked directly on the vagina opening while the other four are at different parts of the labia majora. It is also notable that both these diagrams are of a female's genitals with the legs wide open and not closed, which is in contrast to the case with B who was in the recovery position. As the plaintiff contended below, it would be "extremely difficult" to find that the vagina opening was touched given that B was in the recovery position with her legs closed. But since this point is not pursued on the appeal, nothing more need be said about it and I place no reliance on it.
Significantly, in cross-examination, B accepted that her account was based on sensations that she felt, rather than what she saw. This evidence served to highlight the importance of Dr Panagopoulos' evidence on the possibility of B having experienced a perceived sensation, which will be developed further below.
In cross-examination, B denied that she was mistaken about the plaintiff's fingers touching her labia majora.
I shall now summarise the evidence of both the plaintiff and Dr Panagopoulos relating to the allegation that the plaintiff's fingers touched B's labia majora.
The plaintiff said in his written statement dated 3 July 2023 that B had been placed into the side recovery position for the purpose of releasing the broad ligament of the uterus. As noted above, this treatment was found by NCAT to be clinically indicated (see Decision at [216]), and the position demonstrated was in line with the Barral Method. The plaintiff demonstrated the position in the following photograph created with a model patient (i.e. not B), attached to his 10 November 2020 response (Photo p 198): Photo above: Position of release of broad ligament of uterus Barral Institute VM3 - Visceral manipulation of the pelvis. (Model used for photo)
In his statement dated 3 July 2023, the plaintiff described the treatment he performed in the following terms: I treated this restricted (or tight) structure by gently stretching it when Patient B was in left side lying. This was done by firstly anchoring both ends of the ligament where they attached, one attachment at the left uterine wall and the other at the left nominate (pelvic bone) via the iliac facia. With one hand on each end of the ligament I created a small amount of stretch of the ligament by moving my left hand away from the right, then added the extra tension required with the fingers of my left hand. This had the effect of changing the ligament's length and tension, balancing it with the corresponding ligament on the right. The force required to effect a change in tension is subtle, but the effect of the change in tension is significant.
In response to the allegation, the plaintiff said: I am distressed by the suggestion that I had any sexual interest in Patient B, and am deeply troubled that she might have misinterpreted my technique to think that might be the case… I deny that I attempted or considered sexual penetration and I deny that my finger touched or were close to her vagina.
The plaintiff explained in his written statement that, so he could assess the potential of organ-specific fascial restrictions of B's bladder and uterus, B's tights and underwear needed to be lowered to the level of the pubic bone. He said that "the assessment needed to be done by sensitive and advanced palpation and could not have been done through restrictive, elasticised activewear".
In his oral evidence, the plaintiff denied moving his fingers downwards and touching B near her vagina or on her labia majora.
Similarly, the plaintiff was asked whether he had any feelings of attraction towards B, which he denied. He maintained that the positioning of his fingers was for a clinical purpose.
Turning now to Dr Panagopoulos, the plaintiff's solicitor asked him to address the following question in his expert report (emphasis added): Assuming Mr Kavieris' version of events, including the manner in which he says he performed the treatment to the broad ligament of Patient B's uterus and his denial of palpating, massaging and/or touching on or around Patient B's labia majora at any time, please provide your opinion on any other reasons (if applicable) to explain why Patient B may have felt a sensation on and/or around her labia majora during her consultation.
In response to this question, in his report Dr Panagopoulos explained two mechanisms by which touching an area other than the labia majora could nonetheless have had the effect of causing B to feel a sensation in her labia majora. The first mechanism was via the ilioinguinal nerve, which was elaborated upon by Dr Panagopoulos as follows: [70]… The ilioinguinal nerve carries sensory (touch) information from the skin of the labia majora back to the brain. This nerve travels from the lumbar spine at L1 level and travels through the soft tissue of the antero-lateral abdominal wall, where it supplies motor (movement) information to some abdominal muscles. It then pokes out and heads inferiorly down to the genitalia [reference to Figure 12] [71] [Figure 13] is a photo of Mr Kavieris performing a broad ligament release on a model patient correctly, as per the Barral method. It is possible that, by applying pressure through the anterolateral abdominal wall to get deep enough to locate the broad ligament, that Mr Kavieris inadvertently stretched or pressed on the ilioinguinal nerve as it passed through the abdominal wall on the way down to the genitalia. Mr Kavieris' hands are very close to where the ilioinguinal nerve is located. If a stretch or compression of the ilioinguinal nerve occurred it is possible that this could have caused a neurological stimulation of the sensory part of the nerve, triggering a sensation in the labia majora of Patient B.
The second possible mechanism was through neurological stimulation or pressure on the round ligament of the uterus. In his expert report, Dr Panagopoulos wrote: [72] …The round ligament of the uterus is a fibro-muscular connective tissue and appears like a round band of rope. From the superior and lateral aspect of the uterus, the round ligament crosses the pelvis though [sic] the deep inguinal ring, traverses the inguinal canal and enters the labia majora, where it terminates in the soft tissue above the pubic bones (the mons pubis). The round ligament is covered by folded soft tissue and comprises the superior border of the broad ligament (Figure 6). [73] Again, with regards to the pressure required to get deep enough to reach the broad ligament in Patient B as per Figure 13, it is possible that Mr Kavieris inadvertently caused a pull on the round ligament and Patient B felt a sensation in her labia majora. In the presence of an irritable and sensitised neuromuscular environment (6 weeks of low back pain), these possible mechanisms cannot be discounted.
In his oral evidence in chief, Dr Panagopoulos further elaborated upon this topic in response to a request that he explain what he meant by "neurological stimulation or pressure resulting in a sensation": [W]e've got to look at this within the context of someone who's presenting with low back pain. I can tell you for a fact that, when a patient comes in with low back pain, they are very tight and tense around their low back and their tummy in general. That is because people are in pain and their muscles are guarding, and there's always a lot of muscle tightness in a lot of patients who've got back pain. Within the context of having very tight muscles, it is possible that, as a therapist is trying to delve into someone's abdomen to reach the depth of the broad ligament, that they are also impacting nerves that are sitting in the anterior abdominal wall. If the nerve is tight or the muscles are tight, again, it's possible that you're pulling on that nerve. If that nerve goes all the way down to the labia majora, it's possible that it stimulates a response. Now, the response is a response back to the brain of pressure. I can't discount that. That's possible and could happen.
Notably, Dr Panagopoulos' evidence on this topic was not challenged in cross-examination. Nor did the HCCC's expert, Ms Powell, address this topic in either her written or oral evidence. It is also important to note that the relevant passages from Dr Panagopoulos' report which are set out above dealing with perceived sensation and the possibility of the plaintiff having inadvertently caused the perceived sensation without actually touching B's labia majora were expressly referred to and relied upon in the plaintiff's written submissions before NCAT.
Returning now to summarise NCAT's reasons, NCAT noted at [222] that the plaintiff denied the conduct had occurred, but did not claim that there was any clinical indication for palpating and/or massaging on and/or around B's labia majora. In those circumstances, NCAT said that it was necessary for it to assess the matter by reference to the credit of B and the plaintiff.
After referring to various authorities which deal with the assessment of the credit of a witness, NCAT summarised B's evidence that the plaintiff had placed his fingers very close to her vagina. She explained in her oral evidence that this referred to her labia majora (at [234]).
NCAT said at [237] that it was satisfied that B was a materially credible and reliable witness, had no motive for manufacturing the critical evidence on the issue and that she strongly maintained the truthfulness of her evidence. NCAT also pointed to other matters which were supportive of B's account, including the near contemporaneous record of her complaint to the HCCC which, as noted above, was made three days after the consultation.
It is necessary to set out what NCAT then said at [247] concerning the plaintiff's credit because this statement figures prominently in the plaintiff's appeal (emphasis added): We accept that the Respondent sought to give his evidence truthfully and he made a number of admissions or concessions in relation to the standard of care delivered to Patient B on the day.
NCAT then proceeded, however, to describe what it said were "a number of shortcomings in the way in which Patient B was being treated". Those "shortcomings" were that: 1. The plaintiff had not adequately explained to B what was happening, he failed to provide adequate draping to protect her modesty, he did not obtain informed consent and his clinical notes were deficient. 2. To a degree, the plaintiff's recollection of what occurred at the consultation relied on his usual practice or his best recollection, in contrast with B's "very clear recollection….as to the extent of manipulation and touching of this area of her anatomy and recorded almost contemporaneously".
NCAT made reference to these factors in explaining why it preferred B's account of what had happened to the plaintiff's denial and explanation.
At [251], NCAT noted the plaintiff's submission that B's evidence that she had been touched on or near the labia majora was mistaken. It referred to the plaintiff's contention that B did not see where she was touched and also to his submission that there was no reason not to accept Dr Panagopoulos' evidence as to the possibility of B experiencing a "referred sensation".
At [253]ff, NCAT stated that it viewed B's evidence in relation to this aspect of the treatment as "compelling", and proceeded to explain why that was so. In brief, this included NCAT's view that, although there was some variations in B's accounts of what occurred, they were broadly consistent; the care with which B gave her evidence; the concessions she made when she could not remember particular matters; the detailed nature of her evidence regarding the movement of the plaintiff's hands and fingers; B's conduct immediately after the consultation and her repeated firm rejection of the suggestion put to her in cross-examination that she was mistaken.
At [272]ff, NCAT returned to address the emphasis placed by the plaintiff on Dr Panagopoulos' evidence regarding the possibility of perceived or referred sensation. It is well to set out what NCAT said at [273]-[276]: [273] Dr Panagopoulos expressed this view on the basis of his understanding that the tights and underwear had been lowered to the level "OF" Patient B's pubic bone which, as we have found, was not correct. [274] Dr Panagopoulos did not express a view that this perceived sensation was either likely or probable. He went no further than saying he could not discount the theory as it "could happen". [275] Further, we also attach limited weight to Dr Panagopoulos' speculation about perceived sensation in circumstances where the actual allegation is that the Respondent palpated or massaged on or around Patient B's labia majora and Dr Panagopoulos was expressly asked in his instructions to assume that it did not occur. He therefore based his theory on an assumption which denied an evaluation of the likelihood of the Respondent proceeding, during his treatment, to palpate or massage this area in contention and paid no regard for Patient B's evidence of what occurred in assessing the likelihood that it occurred. [276] The Respondent points to the fact that there was no challenge to the evidence of Dr Panagopoulos on this issue. We are, however, not obliged to accept his theory because of this. There is no rule that in all cases, or even ordinarily evidence which is not the subject of cross examination must be accepted (see Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303 at [71] per Brereton JA; Amaca Pty Ltd (Under NSW Administrative Winding Up) v Roseanne Cleary as the Legal Representative of the Estate of the Late Fortinato (aka Frank) Gatt [2022] NSWCA 151 at [34]-[37] per Beech-Jones JA with whom Brereton and Mitchelmore JJA agreed). Evidence which proceeds on a false assumption (the touching did not occur) readily falls into this category of evidence which we are not obliged to accept.
It is also necessary to set out what NCAT said at [283] and [284] (emphasis added): [283] We find that the Respondent did palpate around Patient B's labia majora as described by Patient B in her evidence and set out at paragraph 14 of her statement of 12 October 2020 as set out at paragraph [96] above and as particularised in Particular 7(h). [284] Dr Panagopoulos expressed the opinion in his oral evidence that there was no reason for a practitioner's fingers to manipulate, or feel, or touch, anything below the pubic bone in carrying out the technique applied by the Respondent. He would be very critical of a practitioner of the Barral technique whose fingers move down towards the vagina area of a patient.

Conduct of a sexual nature (Particular 10)

I turn now to summarise NCAT's reasons for upholding Particular 10, which claimed that by reason of the matters in Particulars 7(c) to (i) individually or cumulatively the plaintiff either engaged in inappropriate conduct of a sexual nature towards B or was reckless to the likelihood that B could consider the conduct to be sexually motivated. For reasons previously mentioned, it is sufficient to focus on the first limb of that complaint, noting again that the plaintiff denied that he engaged in any inappropriate conduct of a sexual nature towards B and that he had no intention to act towards her in an inappropriate or sexual manner. NCAT's findings and reasons concerning this matter give rise to ground 3 of the summons.
After noting that Particular 10, as formulated, raised "a number of separate issues for consideration and is not without complexity", NCAT referred to Robinson CA and NCAT's decision on the referral back in that litigation, which is reported as Health Care Complaints Commission v Robinson (No 2) [2022] NSWCATOD 151 (Robinson (No 2)).
NCAT noted at [351] that it was conceded in Robinson CA that the conduct by the practitioner in that case (which involved an ophthalmologist examining the complainant's breasts without a valid clinical indication for doing so, but where it was said there was no sexual motivation) included a concession that the conduct complained of was inappropriate.
NCAT then proceeded to summarise at considerable length the decision on remitter in Robinson (No 2), including NCAT's analysis in that decision of various authorities relating to whether conduct is sexual in nature.
After analysing Robinson (No 2), NCAT then explained at [354]-[361] why it upheld Particular 10 (emphasis added): [354] We have concluded above that the conduct the subject of Particulars 7(c), (d) and (e) insofar as it related to prior explanation, (f) and (g) insofar as it related to adequate explanation was inappropriate. [355] We have also concluded above that in respect of Particulars 7(e), (f) and (g) the Commission failed to establish that the particularised conduct was without clinical indication. [356] In relation to Particular 7(h) we note that we are satisfied that the conduct which the Respondent denied occurred, there was no suggestion by the Respondent that the palpating or massaging around Patient B's labia majora was clinically indicated, and there was also no argument that the conduct, if established, was the subject of informed consent. [357] We adopt the careful and detailed analysis of the Tribunal in Robinson (No 2) set out above. Insofar as the Respondent's conduct was inappropriate (Particulars 7(c), (d), (e), (f) and (g)) we find that it was not of a sexual nature towards Patient B. [358] As appears above we did, however, find that in respect of Particular 7(h) we concluded and found that the conduct complained of was established. [359] Accordingly, in relation to that conduct and in reliance of the analysis in Robinson (No 2), and the cases analysed in that decision, we hold that [our] finding in respect of Particular 7(h) compels a conclusion that the conduct engaged in was of a sexual nature towards Patient B. The conduct was not clinically indicated, denied and was without informed consent. [360] As was the position in the cases referred to in Robinson (No 2), the Respondent in this case did not admit that he had a good or sufficient belief at the time that the examination was warranted and required, and it certainly was never suggested that the conduct was inadvertent. There is therefore no other reasonable explanation proffered by the Respondent for the established conduct other than that it was sexual in nature. [361] We are also satisfied that in the absence of any acceptable explanation for the conduct the examination of Patient B's intimate parts of her body as set out in Particular 7(h) was an inappropriate examination and went beyond maintaining proper boundaries between practitioner and patient.
At [367] and [368], NCAT stated its ultimate findings regarding Complaint 1: [367] We are satisfied that Complaint 1 has been made out. The Respondent engaged in unsatisfactory professional conduct in a number of respects. In our view, each of Particulars 7(h), 8 and 10(i) individually demonstrates unsatisfactory professional conduct. [368] We also find that Particulars 7(b), (d), (i)(ii) and 9 in combination, and also in combination with Particulars 7(h), 8 and 10(i) amount to unsatisfactory professional conduct.
NCAT then turned its attention to Complaint 2, which alleged that the plaintiff was guilty of professional misconduct under s 139E of the National Law. That provision states (emphasis in original): 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
NCAT referred at [372] to Basten JA's observations in Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [20]. His Honour stated there that whether unsatisfactory professional conduct also gave rise to professional misconduct required in each case for NCAT to make an evaluative judgment as to the nature and seriousness of the conduct. NCAT said at [373] that the conduct the subject of Particulars 7(h), 8 and 10(i) was serious unsatisfactory professional conduct which had to be assessed in circumstances where the plaintiff was seeking to apply techniques "readily regarded as unusual for the particular symptoms presented by Patient B".
NCAT gave the following reasons for its ultimate finding at [379] that the plaintiff's unsatisfactory professional conduct was of a sufficiently serious nature to justify suspension or cancellation of his registration: [374] The techniques were clearly invasive. The Respondent was dealing with a patient who in the circumstances felt vulnerable, there was a power imbalance and an absence of full explanation as to what was to, or was occurring. [375] It should have been readily apparent to the Respondent that a practitioner with even a basic level of knowledge, judgment, or care would understand that particular care had to be exercised to avoid physical contact with a female patient's anatomy that the Barral Method advocates as a treating technique for palpating a patient's pubic bone or manipulation of her uterus. It is readily apparent that the techniques were invasive. Full and proper prior explanation was to be given to a patient as to what was to occur and the clinical reasons for the proposed treatment before embarking on the proposed treatment. This imperative extends to there being informed consent from the patient. [376] In our view, treatment advocated as part of the Barral Method, but which crosses the line by not adhering to those two imperatives cannot be excused by reason of it being taught as, or by reason of it being, "the Barral Method". [377] Informed consent in the circumstances is critical prior to embarking on this treatment. The Respondent was seriously lacking in that regard.

The proceeding in this Court

Under cl 29(4)(b) of Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), the plaintiff "may appeal as of right on any question of law, or with the leave of the court on any other ground".
The following three grounds were raised in the amended summons: 1. The Tribunal erred in fact in finding that the underwear of Patient B was pulled down below the pubic bone and to a level beyond that which was clinically required. 2. The Tribunal erred in law in finding that the conduct the subject of Particular 7(h) was proved, such finding being legally unreasonable, irrational and/or illogical in view of the finding that the plaintiff sought to give his evidence truthfully. 3. The Tribunal erred in law in finding that the conduct the subject of Particular 7(h) was "conduct of a sexual nature", such that Particular 10(i) was proved, 1. without considering or making a finding as to the intent or context of the conduct, or 2. reasoning in a way that was legally unreasonable, irrational and/or illogical.
The plaintiff accepted that he needed leave to pursue ground 1. He contended that ground 2 related to a question of law but, alternatively, sought leave. He submitted that ground 3 related to a question of law, thus it could be appealed as of right.
Following the Court's direction, the plaintiff filed a document dated 31 October 2024, which was said to identify the questions of law raised by the appeal. As noted, it was acknowledged that ground 1 did not raise a question of law and thus leave to appeal was required.
As to ground 2, the plaintiff said that the following question of law was raised by this ground: Did the Tribunal breach the implied condition of the statutory power in s 149 of the [National Law] that a finding that "the subject-matter of a complaint against the practitioner [is] proved" must be one made reasonably, rationally and logically?
As previously noted, the plaintiff sought leave to appeal in relation to ground 2 if the Court found that no question of law was raised.
As to ground 3, the plaintiff contended that the questions of law raised by both limbs of that ground are as follows: The question of law raised by Ground 3(a) is: Was the Tribunal required to consider the plaintiff's intention, or the context of the conduct, in determining that the conduct the subject of particular 7(h) was "conduct of a sexual nature"? The question of law raised by Ground 3(b) is: Did the Tribunal breach the implied condition of the statutory power in s 149 of the Health Practitioner Regulation National Law (NSW), that a finding that "the subject-matter of a complaint against the practitioner [is] proved" must be made reasonably, rationally and logically?
The plaintiff contended that the Court should grant leave to appeal in respect of ground 1, because of the "clear materiality" of NCAT's finding that the level of B's tights/underwear were lowered below the pubic bone to NCAT's following two conclusions: 1. The level to which B's pants were lowered, and whether that level was clinically required, is relevant to whether Particular 7(d) was established, and if so the extent to which the plaintiff's conduct fell below the relevant standard; and 2. The level to which B's pants were lowered was expressly relied upon as supporting B's account that her labia majora was touched, to establish both Particular 7(h) and 10(i).
The plaintiff contended that the factual error could be resolved by the Court on the material before it and did not require a revisiting of NCAT's findings on credibility.
The HCCC opposed the grant of leave to appeal on both grounds 1 and 2. It contended that ground 2 raised only a question of fact and not law. It contended that a tribunal's preference of one witness' evidence over another witness and the weight to be given to evidence is not a question of law, but a question of fact, citing Medical Council of NSW v Mooney [2024] NSWCA 180 at [90]-[100] per Leeming JA (Kirk JA and Price AJA agreeing).
The HCCC referred to the settled principles that leave generally will only be granted where the proposed appeal raises an issue of principle, a question of public importance, or seeks to address a reasonably clear injustice arising from a misapprehension which goes beyond something that is merely arguable. It added that the Court should exercise restraint having regard to the specialist nature of NCAT in determining whether a medical practitioner is guilty of unsatisfactory professional conduct or professional misconduct. It emphasised that NCAT exercised an inquisitorial function in this jurisdiction and that the specialist nature of its task is reflected in the fact that the Tribunal was constituted by a legal member, two medical practitioners and a community member (see Mooney at [109] and Robinson CA at [106] per Simpson AJA).
The HCCC also contended that where the plaintiff did not challenge NCAT's credibility findings, he had to establish that NCAT's findings of primary fact, which were based on its assessment of the evidence of the plaintiff and B as well as the contemporaneous or near contemporaneous material available, were wrong by "incontrovertible facts or uncontested testimony" or were "glaringly improbable or contrary to compelling inferences" citing inter alia Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29]. It contended that the plaintiff had failed to identify any reasonably arguable error in the findings of fact the subject of appeal grounds 1 or 2.
As to appeal ground 3, although in its outline of written submissions the HCCC appeared to accept that it raised a question of law with respect to the meaning of the phrase "inappropriate conduct of a sexual nature" raised by Particular 10, in oral submissions on the appeal it appeared to adopt a different and narrower position (see at [129]ff below).

Consideration and disposition

In view of the already lengthy nature of these reasons, I will not separately summarise the parties' submissions on substantive matters but will seek to address their primary contentions in my analysis of the three grounds.

Ground 1

Ground 1 claims that NCAT erred in its fact finding concerning Particular 7(d) and whether B's tights/underwear were lowered to a level which was below that which was clinically required. This ground is directed primarily to NCAT's findings and reasons in the Decision at [182] (see at [25] above).
As elaborated upon in oral address (which went further than the plaintiff's written submissions, about which the HCCC took no objection), the plaintiff contended that ground 1 raises several errors of fact.
Particular 7(d) involved three findings: (1) that the plaintiff pulled B's tights and underwear down to the level of her pubic bone; (2) that this was done without prior explanation; and (3) additionally, B's tights and underwear were lowered below her pubic bone. It is the third finding (i.e. that B's tights and underwear were lowered below her pubic bone) that informed NCAT's reasoning with respect to Particulars 7(h) and 10. The plaintiff challenges that reasoning. For the reasons that follow, I consider that NCAT fell into error. Although the third finding may not have been essential to NCAT's conclusion that Particular 7(d) was established (see at [24] above), this error infected NCAT's reasoning in respect of Particular 7(h), and consequently, Particular 10.
Noting that NCAT said at [182] (and see also at [244] and [284]) that it appeared that Dr Panagopoulos "would say" that the technique was inappropriate if B's tights and underwear were lowered beyond the pubic bone so as to expose her pubic hair, the plaintiff contended that this erroneously conflated two aspects of Dr Panagopoulos' evidence. His evidence was that if pubic hair was exposed, draping was essential, but the Barral technique was not inappropriately used in those circumstances. Dr Panagopoulos said that he would be critical of the use of the Barral technique below the pubic bone.
The plaintiff argued that the conflation was manifest in NCAT's acceptance that, if pubic hair was exposed, this necessarily meant that the Barral technique was being used in an area below the pubic bone, which would be inappropriate. Self-evidently this reasoning depends on the relative position between B's exposed pubic hair and the location of her pubic bone. NCAT appeared to assume that the exposed pubic hair was necessarily lower than the pubic bone but there was no evidence to that effect and the plaintiff contended that there is nothing in Dr Panagopoulos' evidence to suggest that he considered this to be the case when he opined on whether the Barral technique was clinically appropriate or not.
The plaintiff contended that it was significant that Dr Panagopoulos did not say that the Barral treatment is inappropriate if pubic hair is exposed, but that is how NCAT read his evidence. The conflation fed into other aspects of NCAT's reasoning. Thus, at [244], NCAT described one of the factors supportive of B's account as being that her tights were "pulled well down to expose her pubic hair, well below what Dr Panagopoulos accepted as the appropriate level" (emphasis added).
Another example given by the plaintiff of how NCAT used its conflated finding is at [250] of the Decision. There, in explaining why it found that Particular 7(h) was proven and why it did not accept the plaintiff's denial that his hand/fingers moved so that he palpated on an area around B's labia majora, it said that B's "tights were pulled well down facilitating the touching complained of".
At [273] of the Decision, NCAT said that Dr Panagopoulos' evidence regarding the possibility of a referred sensation to B's labia majora absent any actual touching was based on his understanding that the tights/underwear were at the level of B's pubic bone which NCAT found to be factually incorrect. This is clearly a reference to NCAT's earlier finding that since B's pubic hair was exposed, this necessarily meant that the tights/underwear were lowered to well below her pubic bone.
The plaintiff also pointed out that another example of NCAT finding that B's tights and underwear had been pulled down below her pubic bone is at [279].
The plaintiff emphasised that B did not claim that her pubic hair was exposed in any of her written statements prior to the NCAT hearing. This claim was only made by B in the course of her oral evidence under cross-examination, where upon being shown a copy of a photograph which the plaintiff provided to the HCCC in his response to B's complaint (which photograph shows a model lying on her back with her jeans and pants lowered to the top end of the pubic symphysis) the following exchange occurred: Peggy Dwyer: Is that a photograph of the manoeuvre that you were describing where Mr Kavieris has checked the pelvis? B: That is a similar photograph of what I had experienced. The difference being that my tights and underwear were further down. Pulled further down. Peggy Dwyer: Your pubic hair was not exposed though, was it? B: It would have been, yes.
The plaintiff also complained that NCAT's acceptance of that evidence was at odds with that part of the parties' agreed statement of facts, which simply stated that the tights and/or underwear were lowered to the level of the pubic bone. The plaintiff's senior counsel made the following submission in oral address: The point being the agreed statement of facts must stand. There is an incontrovertible fact there, that the tights and underwear were lowered to the level of the pubic bone. There is absolutely no evidence at all that the clothing was moved, after being located on the pubic bone that it was lowered at a subsequent point in time. There is no evidence at all that it was moved or lowered further between the patient lying on her back and lying in the recovery position and there is no evidence that it was lowered further when the patient moved from her recovery position to her stomach.
The HCCC opposed the grant of leave in relation to ground 1 on the basis that NCAT had given nine other reasons for concluding that Particular 7(d) was established. Those nine reasons are as follows: 1. it was the first time that B had had a consultation with the plaintiff (Decision at [165]); 2. B had very little understanding of the plaintiff's treatment methods (Decision at [165]); 3. B experienced the pulling down of her clothing while the plaintiff was attempting to provide some explanation about the need for him to touch intimate parts of her anatomy (Decision at [166]); 4. the plaintiff did not explain to B that he would lower her clothing so as to expose her pubic bone (Decision at [169]); 5. the plaintiff did not ask B for her consent before he lowered her tights (Decision at [169]); 6. B was not given an opportunity to lower her clothing to a level with which she was comfortable (Decision at [169]); 7. the plaintiff did not pause before lowering her clothing (Decision at [176]); 8. the plaintiff did not explain to B that the palpation could not be done through B's restrictive elastic-sized activewear (Decision at [173]); and 9. the plaintiff did not provide B with draping to protect her modesty (Decision at [169]).
Thus, the HCCC submitted that any error in the fact finding leading up to NCAT's additional finding that the tights/underwear were lowered to a level below the pubic bone would not be a material error.
That may well be true but the plaintiff's complaint is not directed to those earlier findings but relate to the additional finding that the clothing was lowered below B's pubic bone and how NCAT used that finding in assessing Dr Panagopoulos' evidence and in concluding that Particular 7(h) was proven.
One of the four reasons given by NCAT for not accepting Dr Panagopoulos' evidence concerning the possibility of B having felt a referred or perceived sensation was that Dr Panagopoulos' evidence on this subject was based on his understanding that the garments were lowered to the level of B's pubic bone, which was inconsistent with NCAT's acceptance of B's oral evidence that they were lowered below that level so as to expose her pubic hair.
I accept the plaintiff's contention that this involved an erroneous conflation of where the pubic hair was exposed and the level of the pubic bone. There was no evidence that the pubic hair which was exposed was in fact lower than the pubic bone but NCAT clearly proceeded on the basis that this was so. This then led NCAT to draw an indirect inference from Dr Panagopoulos' evidence, when it stated that Dr Panagopoulos would view palpation at that lower level as "not in line with the Barral method and [as] inappropriate" (see the Decision at [182] and [244(1)]). This path of reasoning was centrally material to NCAT's finding that Particular 7(h) was proven.
This reasoning not only reveals the erroneous conflation described above; it could also be described as inappropriately drawing an "indirect inference" in relation to Dr Panagopoulos' evidence, contrary to the Briginshaw standard which plainly applied in this case. In Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] HCA 34, Dixon J said that a tribunal's "reasonable satisfaction" that a serious allegation has been proved "should not be produced by inexact proofs, indefinite testimony, or indirect inferences".
I accept the plaintiff's submission that NCAT's finding that B's tights and underwear had been pulled down below her pubic bone "was significant with respect to the impact it had with respect to proof of 7(h)".
NCAT gave four reasons for discounting and not accepting Dr Panagopoulos' evidence about the possibility of B having experienced a perceived sensation that her labia majora had been touched. Those four reasons (see Decision at [273]-[276]) may be summarised as follows: 1. Dr Panagopoulos' evidence on this matter was based on his understanding that B's tights and underwear had been lowered to the level of her pubic bone when in fact NCAT found this to be incorrect; 2. Dr Panagopoulos did not say that the perceived sensation was either likely or probable but simply said that it "could happen"; 3. Dr Panagopoulos' evidence on this matter was based on an assumption which denied that the conduct as alleged by B had in fact conduct; and 4. Dr Panagopoulos was not cross-examined.
I have explained above why the first of those reasons is unpersuasive. The same may be said about the other three reasons given by NCAT in relation to Dr Panagopoulos' evidence.
The second reason was that Dr Panagopoulos did not say that any such sensation was "either likely or probable"; he "went no further than saying that he could not discount the theory as it could happen" (see the Decision at [274]). As previously mentioned, in response to the relevant part of his letter of instructions (see at [41] above) Dr Panagopoulos proffered his expert opinion as to any other reasons why B "may" have felt a sensation on or around her labia majora other than because that area had been touched in fact. Dr Panagopoulos then explained in some detail two anatomical mechanisms as to why B may have felt a referred sensation.
To marginalise this carefully reasoned evidence as a "theory" or "speculation" does not fairly or accurately reflect Dr Panagopoulos' evidence as a whole on the possibility of perceived sensation.
NCAT's finding at [274] that Dr Panagopoulos "went no further than saying that he could not discount the theory as it could happen" is a reference to Dr Panagopoulos' further oral evidence in chief which is set out at [44] above. Dr Panagopoulos did not describe his evidence as involving any "theory", nor can it accurately be described pejoratively as speculation given the detailed exposition he gave of the two possible mechanisms. And perhaps even more significantly, Dr Panagopoulos' statements that "I can't discount that…That's possible and could happen", to which NCAT's observations at [274] were directed, relate only to the first mechanism by which Dr Panagopoulos said B may have felt a perceived sensation, which related to pressure on the ilioinguinal nerve. Viewed in context, the statements were not directed to the second mechanism which was not nerve-related, but involved pressure on the round ligament of the uterus (see at [43] above).
The third reason given by NCAT was directed to the fact that Dr Panagopoulos' evidence was based on an assumption which he was asked to make in his instructions letter that the palpation/massaging complained of did not occur, which "paid no regard for Patient B's evidence of what occurred in assessing the likelihood that it occurred". It is difficult to follow the logic of this reasoning. Dr Panagopoulos' evidence regarding the possibility of B having experienced a referred sensation was directed to her complaint that she had been touched on or around her labia majora. Dr Panagopoulos opined that this was possibly because she had experienced a perceived or referred sensation from the plaintiff's palpation/ massaging of an area which was not on or around her labia majora. Thus Dr Panagopoulos did pay regard to B's evidence that she had felt touching on or around her labia majora but opined that this may not have been because she had in fact been touched in that region, but rather may have been a perceived sensation, the possible mechanisms of which Dr Panagopoulos fully explained. It is to be recalled that B's account of what occurred was based not on what she saw, but on what she felt.
NCAT's fourth reason (as stated at [276]) relates to NCAT's rejection of the emphasis which the plaintiff placed on the fact that there had been no challenge to Dr Panagopoulos' evidence on this issue. In my respectful opinion, for the following reasons I consider that NCAT's reasoning in relation to this matter is also highly questionable.
Paragraph [276] of the Decision is as follows: The Respondent points to the fact that there was no challenge to the evidence of Dr Panagopoulos on this issue. We are, however, not obliged to accept his theory because of this. There is no rule that in all cases, or even ordinarily evidence which is not the subject of cross examination must be accepted (see Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303 at [71] per Brereton JA; Amaca Pty Ltd (Under NSW Administrative Winding Up) v Roseanne Cleary as the Legal Representative of the Estate of the Late Fortinato (aka Frank) Gatt [2022] NSWCA 151 at [34]-[37] per Beech-Jones JA with whom Brereton and Mitchelmore JJA agreed). Evidence which proceeds on a false assumption (the touching did not occur) readily falls into this category of evidence which we are not obliged to accept.
This reasoning presents two difficulties. The first relates to the last sentence of that paragraph, which reiterates the error described at [102] above. The second is that the cases cited therein do not support NCAT's bald assertion that there is no universal rule that evidence must be accepted if there has been no cross-examination on it. The cases are more nuanced than that. Brereton JA's statement in Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 at [71] (Emmett AJA agreeing at [137]) does not posit an absolute rule. Indeed, that paragraph places a different emphasis to that given to it by the HCCC concerning the correct principles arising from the well-known decision in Browne v Dunn (1893) 6 R 37.
His Honour explained that the rule in Browne v Dunn has two limbs. The first is a rule of procedural fairness, which requires adequate notice to be given of the opponent's case. The second limb, which is the relevant limb here, relates to 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" as explained by Brereton JA (emphasis added). His Honour said at [71] (emphasis added): I accept that the first aspect of the rule was not offended, because Dr Ghosh was plainly on notice that the Council took issue with the opinions of the doctors upon whom she relied. However, the second aspect of the rule still had work to do. I nonetheless also accept that the second aspect of the rule did not mean that the Tribunal was legally bound to accept the uncross-examined evidence of the doctors relied upon by Dr Ghosh. However, the fact that they were not cross-examined, and that their opinions thus stood unchallenged, though not uncontradicted, should at the least have weighed in their favour - rather than, as the Tribunal appears to have thought, against them. In my judgment, the Tribunal erred in taking into account, as reasons for preferring Dr Newnham, that the professional witnesses whose reports were relied on by Dr Ghosh were not called, whereas Dr Newnham was cross-examined; and in failing to have regard to the circumstance that their evidence went unchallenged by cross-examination.
Dr Panagopoulos' evidence was not challenged in cross-examination nor was it contradicted in Ms Powell's expert evidence.
Ms Powell's first three expert reports all pre-dated Dr Panagopoulos' report dated 30 June 2023. Significantly, however, Ms Powell also provided a fourth report dated 10 July 2023 in response to a request from the HCCC dated 7 July 2023. The fourth report, which became Exhibit A4, post-dates Dr Panagopoulos' report. During her cross-examination, Ms Powell said that she had read his report. Ms Powell was also given an opportunity in her oral evidence in chief to clarify any parts of her four reports and she did so on some matters. Ms Powell said that she had no training in the Barrel methodology, had never heard of it prior to this case and had to conduct her own research about that methodology for the purposes of giving her expert evidence.
In these circumstances, it is perhaps unsurprising that Ms Powell was not asked any questions concerning Dr Panagopoulos' evidence on the topic in her oral evidence in chief, her cross-examination or her re-examination.
Beech-Jones JA discussed Ghosh in Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151 at [34]-[37]. After setting out and analysing what Brereton JA said in Ghosh at [71], Beech-Jones JA said the following at [36]: Nothing in Ghosh purports to lay down a rule of law that in all cases, or even "ordinarily", evidence which is not the subject of cross‑examination must be accepted. Such a proposition was expressly rejected by Brereton JA in Ghosh at [71]. ...
His Honour then said at [37] that the error of law identified in Ghosh was the Tribunal's failure there to give any significance to the fact that witnesses which gave evidence favourable to the appellant were not cross-examined. Instead, the fact that they had not been cross-examined was viewed as adverse. No such error was committed by the primary judge in Amaca. Beech-Jones JA said at [38]: During oral argument, Senior Counsel for Amaca, Mr Hooke, embraced the proposition that, in the absence of cross examination, the primary judge was obliged to accept the expert medical opinion unless there was some "glaring or obvious" defect. However, there is no support in the authorities for the proposition that any such obligation was imposed on the primary judge as a matter of law. In the end result, all the complaints made by Amaca only amount to complaints about the basis for the finding of fact that Mr Gatt had asbestosis or the content of the reasons for that finding. In relation to the former, those complaints are foreclosed by Azzopardi. In relation to the latter, this being an appeal restricted to an error or point of law, it is sufficient that the reasons "[reveal] the ground for, although not the detailed reasoning in support of, [the] finding of fact" (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 282 per McHugh JA; "Soulemezis"). Her Honour complied with that obligation.
This passage needs to be read in the context of the different jurisdiction being exercised by the Court in the present proceeding, which permits the appeal to extend beyond questions of law and, where there is a grant of leave in an appropriate case, to encompass questions of fact.
It should be accepted that there is no universal rule which obliged NCAT to accept this part of Dr Panagopoulos' evidence, which was neither challenged nor contradicted. But absent some good reason, his evidence on perceived sensation should have weighed in the plaintiff's favour, particularly having regard to the Briginshaw standard. NCAT gave no good or sufficient reason for not accepting that evidence. I have explained at [102] above why I consider that NCAT used illogical reasoning in discounting his evidence because of the assumption upon which it was based.
Finally, and less compellingly, it is not easy to reconcile NCAT's reasons for severely discounting Dr Panagopoulos' evidence on the possibility that B had experienced a perceived sensation with its unqualified acceptance of his expert evidence concerning the plaintiff's use of a different aspect of the Barral Method in treating the other patient referred to at [4] above. In the Decision at [67], NCAT explained why it rejected the HCCC's contention that it should place limited weight on Dr Panagopoulos' evidence concerning the clinical indication of the plaintiff's use of another technique under the Barral Method in treating Patient A's ankle: We do not accept that we should discount the evidence given by Dr Panagopoulos for the reasons put forward by the Commission. In our view, the limited material and assumptions provided to Dr Panagopoulos did not materially affect his evidence. The Commission did not explain how Patient A's versions would alter his evidence. If the conduct was clinically justified it is difficult to see how the absence of an opinion from Dr Panagopoulos as to the relevant standard is relevant. Acceptance that the Respondent was practising the Barral Method does not take the matter further when Ms Powell accepted that to be the case. We are also satisfied that Dr Panagopoulos had sufficient learning, specialised knowledge based on his research and publications to express his opinions. For these reasons we also reject the contention that the Respondent's techniques were not for a legitimate clinical purpose.
Of course, the technique used by the plaintiff on Patient A was different to the technique he used with B, but even allowing for that important point of distinction, it is not easy to reconcile NCAT's acceptance of Dr Panagopoulos' evidence regarding Patient A with its notably more critical analysis of Dr Panagopoulos' evidence concerning B.
While a misunderstanding or mistake as to evidence does not generally constitute an error of law (see, for example, Health Care Complaints Commission v Sultan [2018] NSWCA 303 at [104] per Beazley P (with whom Simpson AJA agreed)), it may appropriately be described as an error in fact finding. In a jurisdiction such as that under cl 29(4)(b) of Sch 5 of the CAT Act where the error in fact finding is sufficiently serious and causes a substantial injustice, leave to appeal may be granted and the error identified.

Ground 2

This ground claims that NCAT erred in law (or alternatively in fact) in concluding that the conduct complained of in Particular 7(h) was proven. The plaintiff claims that the finding is legally unreasonable, irrational and/or illogical on the basis of NCAT's separate finding at [247] (see at [49] above) that the plaintiff "sought to give his evidence truthfully".
As noted above, the HCCC contended that this ground does not relate to a question of law, that leave to appeal is required and should be refused for similar reasons relating to its opposition to the grant of leave to raise ground 1.
I find it unnecessary to delve into the complex distinction between questions of law and questions of fact in resolving ground 2. That is because whichever way the ground is characterised it should be dismissed for the following reasons.
First, as noted above, NCAT was faced with diametrically conflicting evidence from B and the plaintiff as to whether he had touched on or around her labia majora. NCAT summarised some of the relevant legal principles which guide a decision-maker in determining which evidence is to be preferred in such circumstances.
Secondly, the question is not simply one of credibility but also reliability (see the Decision at [237]). NCAT explained at some length why it preferred and accepted B's account. This included its findings that: 1. B gave her evidence thoughtfully and confidently, had no motive to lie, and frankly acknowledged when she could not recall certain things (see Decision at [237]-[239]). 2. B's conduct immediately after the consultation was consistent with her evidence in NCAT, including her relatively contemporaneous complaint to the HCCC and the concerns she raised with her regular physiotherapist the day after her consultation with the plaintiff (see Decision at [241]-[243]).
As previously mentioned, among the other matters identified by NCAT at [244] which supported B's account was NCAT's finding that her tights and/or underwear were pulled down to expose her pubic hair, which finding was used to discount Dr Panagopoulos' evidence. For the reasons I have given, I consider that NCAT's assessment of Dr Panagopoulos' evidence was flawed in the context of ground 1. This does not mean, however, that ground 2 should also succeed. This is because NCAT gave multiple additional reasons for preferring B's account concerning the level to which her clothing was lowered.
The terms in which NCAT described the plaintiff's credibility and/or reliability in [247] are also significant. In effect, NCAT considered and found that the plaintiff had tried to give his evidence truthfully, but it then explained at some length why it did not regard his evidence to be as reliable as that of B. Those reasons included: 1. Shortcomings in the treatment of B, including inadequate explanation by the plaintiff, not draping her, not obtaining informed consent and the deficiency in the plaintiff's clinical notes. 2. The contrast between the plaintiff's evidence which relied to some degree on his usual practice or best recollection, as opposed to B's "very clear recollection" as to the extent of manipulation and touching in this intimate area (at [249]).
NCAT then explained at some length at [252]ff why it rejected all nine reasons advanced by the plaintiff as to why it should find that Particular 7(h) was not established. This included NCAT's explanation for rejecting the plaintiff's contention that it should have accepted Dr Panagopoulos' evidence regarding the possibility of a perceived or referred sensation ([272]ff).
This part of ground 2 overlaps to some extent with ground 1, which I have upheld insofar as it relates to the topic of perceived sensation. Again, however, this does not mean that ground 2 must necessarily also succeed. I consider that NCAT gave adequate and logical other reasons for preferring B's evidence to that of the plaintiff on this matter. Dr Panagopoulos' expert evidence was not material to NCAT's preference for B's account over that given by the plaintiff as to the level of her clothing, which is a question of fact. As explained in relation to ground 1 above, different considerations relate to NCAT's conflation of the exposure of B's pubic hair and the level of her pubic bone and how that conflation was used to discount Dr Panagopoulos' evidence.
For these reasons, to the extent that the plaintiff requires leave to appeal to raise ground 2, leave will be refused. To the extent that ground 2 truly relates to a question of law, I do not accept that NCAT erred in any material way and the ground will be dismissed.

Ground 3

This ground challenges NCAT's conclusion with regard to the first limb of Particular 10, namely that having found that Particular 7(h) was proven, this inherently constituted conduct of a sexual nature without any need to consider or make a finding as to the intent or context of the conduct.
NCAT's finding that the conduct was of a sexual nature was very significant in the Stage 1 proceeding. It made it almost certain that NCAT would conclude, as it ultimately did, that the plaintiff's conduct was not only unsatisfactory professional conduct, but also professional misconduct. Conduct by a medical practitioner which is found to be of a sexual nature is likely to be viewed as justifying a cancellation or suspension of the practitioner's registration which, as noted above, is a central element of the definition in s 139E of the National Law.
To the extent that the HCCC ultimately contended that ground 3 did not relate to a question of law, I respectfully disagree. In my view the plaintiff adequately expressed the question of law as: "Was the Tribunal required to consider the Plaintiff's intention or the context of the conduct, in determining that the conduct the subject of Particular 7(h) was "conduct of a sexual nature".
In contending that this formulation did not properly identify a question of law, senior counsel for the HCCC acknowledged that whether or not the phrase "conduct of a sexual nature" requires there to be a finding of an intention to engage in such conduct could raise a question of law. That acknowledgment was properly given. But, having regard to relevant authorities to which I will return, I also consider that a question of law is raised in relation to the alternative proposition identified in the plaintiff's formulation, namely that the requirement for NCAT to consider the context in which the conduct occurred.
NCAT's reasons for concluding that the plaintiff had engaged in inappropriate conduct of a sexual nature are summarised at [56]-[60] above.
For reasons which I will now seek to explain, I consider that ground 3 should succeed.
The first point is that assuming ground 3 truly raises a question of law (which I believe to be the case), the plaintiff's success in challenging NCAT's finding that Particular 7(h) was proven will inevitably flow through and vitiate NCAT's finding that Particular 10 was established because the two findings are intertwined, as NCAT made clear in the Decision at [359].
Secondly, the inextricable link in NCAT's reasoning concerning Particular 7(h) and Particular 10 related to its adoption and application of the reasoning in Robinson (No 2) (see Decision at [357]). This is further highlighted by the fact that, in the Decision, NCAT stated at [359] that, given its finding that Particular 7(h) was proven and applying Robinson (No 2), it was compelled to conclude that the plaintiff's conduct in touching in or around B's labia majora was of a sexual nature in circumstances where the conduct was not clinically indicated, was denied by the plaintiff, and was without informed consent.
The significance of Robinson (No 2) to the Decision here is also reflected in what NCAT said at [360]: As was the position in the cases referred to in Robinson (No 2), the Respondent in this case did not admit that he had a good or sufficient belief at the time that the examination was warranted and required, and it certainly was never suggested that the conduct was inadvertent. There is therefore no other reasonable explanation proffered by the Respondent for the established conduct other than that it was sexual in nature.
The plaintiff described NCAT's reasoning in relation to Particular 10 as "formulaic" on the basis that NCAT considered it was compelled to conclude that the conduct was inherently of a sexual nature because of the presence of the following three factors: 1. there was no clinical indication for the conduct; 2. the conduct was denied; and 3. the conduct occurred without informed consent.
Given the central importance of the approach in Robinson (No 2) to NCAT's reasoning and conclusion regarding Particular 10, it is necessary to give close attention to that litigation.

The Robinson litigation summarised

In Robinson CA the Court held that NCAT had failed to deal with the HCCC's submission that it was not necessary for it to show that the practitioner had a sexual motive in engaging in conduct without any clinical indication for the conduct to be inappropriate conduct of a sexual nature. As Simpson AJA emphasised at [106] the ground of appeal on which the HCCC succeeded in that appeal was not that NCAT had wrongly decided the question whether the practitioner's conduct was of a sexual nature; rather, it succeeded on the basis that NCAT had failed to address or decide the HCCC's submission, which had been clearly articulated. Accordingly, the matter was referred back to NCAT for that particular submission to be considered and determined (notwithstanding Simpson AJA's doubts whether the HCCC's submission had substance: see Robinson CA at [104]).
Both Leeming and Kirk JJA agreed with Simpson AJA but each also gave separate reasons for judgment which addressed various matters, including whether a Stage 1 decision is an ancillary or interlocutory decision for the purposes of cl 29 of Sch 5 of the CAT Act.
Significantly, Kirk JA also made some important observations regarding the nature and purpose of a Stage 1 hearing which I consider to be relevant to the present proceeding. In brief, those observations are as follows: 1. The object of a Stage 1 hearing is to determine what conduct has occurred and whether or not any such conduct is not only unsatisfactory professional conduct but also falls into the more serious category of professional misconduct. 2. The characterisation of the seriousness of conduct in the context of determining at Stage 1 whether cancellation or suspension of registration is justified requires an evaluative judgement to be made as to the nature and seriousness of the conduct (at [34]). 3. The characterisation of the seriousness of conduct involves consideration not only of the acts or omissions in question, but also the circumstances in which they occurred. For example, conduct done for sexual gratification is likely to be more serious than where it occurs because of a misguided understanding of clinical indication (at [35]). 4. At [36], Kirk JA set out a list of other examples given by the HCCC in Robinson CA of the kinds of issues which might arise in characterising the seriousness of the nature of conduct. Significantly, that list included "the practitioner's state of mind at the time of the impugned conduct (e.g. whether conduct was deliberate or inadvertent)" (emphasis added). At [37] Kirk JA said that there was "force" in the HCCC's submissions on this matter. I respectfully agree.
There is nothing to indicate that the relevance of a practitioner's state of mind ceases to be a relevant consideration in assessing the seriousness of particular conduct where the practitioner denies that the conduct occurred. But, as noted above, NCAT's approach here was to deny the relevance of the plaintiff's state of mind because of the three factors identified at [133] above, as NCAT made clear in the Decision at [359]. One of those factors is the practitioner's denial that the impugned conduct occurred.
With respect, I consider that NCAT's approach was legally erroneous. In evaluating the seriousness of the plaintiff's impugned conduct NCAT should have considered and determined the plaintiff's state of mind. All the more so in circumstances where, contrary to NCAT's finding at [360] that "it certainly was never suggested that the conduct was inadvertent" that very possibility was raised by Dr Panagopoulos in his report at [71] and [73] (see at [42] above) and was specifically referred to in the plaintiff's written submissions below at [207]. The inadvertence described by Dr Panagopoulos in those parts of his report related to the possibility of the plaintiff having inadvertently stretched or pressed B's ilioinguinal nerve or inadvertently pulled on the round ligament of the uterus, which could have caused a perceived sensation, as opposed to an inadvertent direct touching of B's labia majora. Nevertheless, the possibility of this kind of inadvertent conduct should have been addressed by NCAT, particularly where its other reasons for discounting or disregarding Dr Panagopoulos' evidence are unpersuasive.
NCAT's approach, which is appropriately described as formulaic, is not supported by the meaning of "professional misconduct" as set out in s 139E of the National Law (at [62] above).
Both limbs of the definition refer to unsatisfactory professional conduct "of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration". As Kirk JA stated in Robinson CA (citing Chen at [20]), this requires an evaluative judgment to be made by the decision-maker as to the nature and seriousness of the conduct. Characterising the nature of conduct with a view to determining its seriousness may involve consideration of a wide range of matters. Each case will necessarily depend on its own facts, but I see no warrant in that statutory definition to adopt the kind of formulaic approach which NCAT did here. I consider that NCAT's approach erroneously limits the Tribunal's statutory task which is to consider all relevant aspects of the impugned conduct, including the context and circumstances in which it occurred. In my respectful view the correct approach is not only described by Kirk JA in Robinson CA, but also in cases such as Sultan and King v Health Care Complaints Commission [2011] NSWCA 353.
In Sultan, NCAT found the practitioner guilty of unsatisfactory professional conduct but declined to find that there was also professional misconduct. On a judicial review brought by the HCCC, the Court held that the HCCC had conducted its case in NCAT on the basis that the medical practitioner had intended to sexualise his examination of the female patient. Beazley P (Simpson AJA agreeing) held that given the HCCC's allegation of intentional sexual conduct, NCAT did not err in determining the case on that basis and in finding that the practitioner had no sexual intent. That finding was not shown to be illogical or unreasonable. The Court considered that the HCCC did not contend before NCAT that the impugned conduct was inherently sexual irrespective of any question of intention. (This is to be contrasted with the Robinson litigation, where the Court of Appeal held that NCAT had failed to address and determine the HCCC's submission that the impugned conduct was inherently sexual in nature and the issue of intention was irrelevant).
After referring to Chen at [156] in Sultan, Beazley P said that "whether conduct constitutes professional misconduct is an evaluative judgment" and the HCCC failed to demonstrate any judicial review error in NCAT's evaluation.
The need for there to be an objective determination of whether or not conduct has a sexual connotation was also emphasised by Meagher JA in Sultan at [172]: The method adopted by Dr Sultan for the examination (described at [36] of the reasons) included placing his right hand under Patient A's breast. The fact that this method was medically inappropriate or unnecessary might have supported an inference of sexual intention. But, having refused to draw such an inference, the Tribunal was not rationally compelled to assume that all contact with a woman's breast which, objectively assessed, is medically inappropriate or unnecessary is inherently sexual. As to Dr Sultan's arousal, the Tribunal accepted (at [45]) "that his erection was involuntary and spontaneous". That finding was taken to negate an assumption underlying Dr Golding's evidence that "[a] medical professional should not allow a situation to develop which results in sexual arousal while clinically interacting with a patient".
And to similar effect, in King, Macfarlan JA said at [67]: Of course care needs to be taken in applying the examples given in that passage to the case of a medical practitioner. It is often part of a medical practitioner's role to touch a person's genitals, breasts or anus. Whilst it may be able to be assumed in other contexts that such touching almost invariably has a sexual connotation, the same cannot be assumed in the case of a medical practitioner. In that case an objective determination of whether the conduct had a sexual connotation has to be made.
Although Macfarlan JA dissented in the outcome in King, the emphasis his Honour gave to the need for there to be "an objective determination of whether the conduct had a sexual connotation" is not at odds with the majority's reasoning. Moreover, the need for such an objective determination is consistent with what Kirk JA said in Robinson CA and what Meagher JA said in Sultan.
The making of the requisite objective determination should not be restricted merely because of the presence of the three factors identified by NCAT here.
In this Court, the HCCC sought to defend NCAT's approach in not enquiring into the plaintiff's state of mind by submitting that this was consistent with the approach in Chiropractic Board of Australia v Ebtash [2020] WASAT 86. There, at [1016] the Western Australian State Administrative Tribunal said: In the present case, Dr Ebtash denied the conduct alleged. There was, therefore, no basis to consider whether each of the relevant instances of his conduct in relation to the complainants might have been inadvertent or accidental. Furthermore, there was no other evidence from which an explanation for the conduct could be discerned, to contradict the conclusion that the touching was conduct of a sexual nature. In particular, because Dr Ebtash denied that the touching occurred at all, this was not a case in which his purpose or motive, for each instance of touching the complainants, arises for consideration.
For the following reasons I do not regard Ebtash as supporting NCAT's approach here. First, it is important to note that the Tribunal's observations there were directed to the task of determining whether or not there was professional misconduct as defined, not in s 139E of the National Law, but rather in s 5 of the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (repealed), where the definition is expressed in quite different terms. Section 5 provided that (emphasis in original): professional misconduct, of a registered health practitioner, includes - (a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and (b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and (c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession;
In contrast with the definition in s 139E of the National Law, the definition in s 5 is not exhaustive. Even more significantly, it contains no reference to conduct "of a sufficiently serious nature to justify suspension or cancellation of the practitioner's regulation". It is authoritatively established that this particular formulation requires a decision-maker to make an evaluative judgment, as described in Chen, by Kirk JA in Robinson CA and by Beazley P in Sultan regarding the nature and seriousness of the conduct.
Secondly, while it is true that in both Ebtash and here the practitioner denied that the impugned conduct had occurred, in preferring to accept the complainants' accounts of the conduct in Ebtash, the Tribunal gave detailed reasons why it had "serious reservations about the credibility of [Dr Ebtash's] evidence more broadly, and especially in relation to his denial of the allegations made by the complainants" (see at [964]). This is to be contrasted with NCAT's explicit finding that the plaintiff had sought to give his evidence truthfully.
The HCCC submitted that NCAT's approach was "entirely consistent" with the view taken in two other NCAT decisions (apart from Robinson (No 2)), where it was found that conduct may be self-evidently sexual in nature without any need to enquire into or speculate about the state of mind of the actor. Those two NCAT decisions are Health Care Complaints Commission v Yildirim [2021] NSWCATOD 146 and Health Care Complaints Commission v Jamnagarwalla [2022] NSWCATOD 61.
In Yildirim, NCAT found that a physiotherapist was guilty of professional misconduct in circumstances where he had tucked the female patient's underwear from the outside of her buttocks to the inside while massaging her lower back and gluteal regions with a Theragun. He had also on three occasions moved the patient's underwear leaving her pubic area exposed, where there was no clinical indication to do so. This conduct was denied by the physiotherapist.
The HCCC pointed to the following three paragraphs in Yildirim where it was concluded that the proven conduct was of a sexual nature: [174] In other words, some behaviour speaks very clearly for itself, if there is "nothing more", and if there is no contrary explanation or clarification, the prima facie interpretation will almost certainly stand. Punching a person in the face might be one such form of behaviour. Touching or exposing another person's sexual organs without their consent is another example. Inferences are drawn from circumstances. Touching or exposing another person's sexual organs undoubtedly may give rise, prima facie, to "sexual connotations" (as it was put in Harkin) but they can be neutralised or negatived by other factors, such as informed consent in a clinical setting. In Harkin, the circumstances implied, irresistibly, that the appellant's conduct was sexualised. There was no other explanation for it nor could there have been. … [176] In short, a person may behave in an apparently sexualised way towards another for a variety of reasons. That is the point made by Lee CJ in Harkin. The ulterior motive for doing so is irrelevant. If conduct is self-evidently sexualised due to the combination of the act and the circumstances, it adds nothing to probe or speculate about the inner workings of the mind of the actor. [177] Medical examinations or health treatments may, obviously, involve intentional touching or exposure of sexual organs. Whether such touching or exposure is lawful or appropriate depends on all the circumstances including, at least, the patient's condition, the objective of the investigations or treatment, the informed consent of the patient or client and the need for or desirability of the touching or exposure, and accepted methodologies for carrying out the treatment or investigation in question.
These passages need to be read in the context of the reasons as a whole and with close regard to the particular circumstances of that case. It is notable that in Yildirim NCAT acknowledged the need to look at all the circumstances of the case in determining whether or not touching or exposure is lawful or appropriate. As I have explained, the relevant circumstances here included Dr Panagopoulos' evidence of the possibility that the plaintiff had inadvertently caused B to perceive that she had been touched. For the reasons given above, this important evidence needed to be properly considered and assessed by NCAT, including its implications for the plaintiff's state of mind.
For completeness, it might also be noted that in Yildirim NCAT did proceed at [179] to consider whether or not the patient's underwear had been accidentally lifted. This is reflected in [179] of that decision: It is suggested that Mr Yildirim may have lifted the underwear accidentally. We reject that submission. Common sense suggests that an accidental movement of underwear would have been merely a momentary occurrence. Patient A was unable to specify exactly how long her underwear was lifted, but she gave a highly credible account that it was at least more than some seconds. If that evidence is accepted, as it is, it makes it very unlikely that the lifting was caused accidentally or inadvertently.
The HCCC's reliance on the decision in Jamnagarwalla does not advance its case. There professional misconduct was found proven where the medical practitioner touched a twelve-year old's bare upper thigh about twelve centimetres from her vagina for up to eight seconds with no clinical or innocent reason for doing so. It was found that he also inappropriately stared at the bare legs of the girl and attempted to look up the skirt of her seventeen-year old cousin who accompanied her to the consultation. Yildirim was referred to in Jamnagarwalla at [110] in support of the proposition "that the conduct was so self-evidently sexualised that it was unnecessary to enquire into the Doctor's state of mind".
I consider that the circumstances there are far removed from those here, having regard not only to NCAT's finding that the plaintiff sought to give his evidence truthfully (presumably also including his express denial that he had any sexual interest in B or was seeking sexual gratification), but also to the particular physical nature of the technique used by the plaintiff, as is reflected in the photograph at [35] above, and Dr Panagopoulos' evidence concerning two possible mechanisms by which B may have perceived a referred sensation. It should also be noted that the plaintiff expressly denied that he had any sexual interest in B, which stands in contrast to inferences which clearly arose from the nature of the impugned conduct in Jamnagarwalla.

Conclusion and the making of consequential orders

For all these reasons, the plaintiff should have leave to appeal in respect of that part of ground 1 which relates to NCAT's finding that Particular 7(h) was proven. Ground 1 should be upheld in relation to that matter.
Leave to appeal should be refused in respect of ground 2.
Ground 3 should be upheld.
As requested by the HCCC, I will hear the parties on matters relating to the terms of consequential orders. The matter will be relisted for hearing for that purpose after the parties have had an opportunity to consider these reasons.
The formal orders are as follows: 1. The plaintiff has leave to appeal in relation to that part of ground 1 which relates to NCAT's conflation of the exposure of B's pubic hair and the level of her pubic bone and how that conflation was applied by NCAT in assessing Dr Panagopoulos' evidence on perceived sensation. 2. Ground 1 is upheld in relation to that matter. 3. Refuse leave to appeal in respect of ground 2. 4. Ground 3 is upheld. 5. The parties have leave to contact the associate to Griffiths AJA with a view to having the matter relisted for hearing as to the terms of consequential orders, including the scope of the remitter to NCAT, the extent to which any particular order or finding should be set aside and costs.

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: 06 February 2025

(2020) 102 NSWLR 303

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