Health Practitioner Regulation National Law (Western Australia), s 196, s 196(4), s 196(4)(a), s 196(4)(b)

State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2)

The respondent is reprimanded and his medical registration suspended until 16 September 2028

The respondent is to pay to the applicant the sum of $175,000 as a contribution to its costs within 30 days or such other period as agreed by the parties

Chiropractic Board of Australia and Ebtash [2020] WASAT 86 (S)

Health Care Complaints Commission v Balafas (No 6) [2022] NSWCATOD 183

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

Health Care Complaints Commission v Skandaliaris (No 2) [2019] NSWCATOD 110

Khosa v Legal Profession Complaints Committee [2017] WASCA 192

Legal Profession Complaints Committee v Detata [2012] WASCA 214

Legal Profession Complaints Committee v in de Braekt [2013] WASC 124

Legal Services and Complaints Committee and Young [2023] WASAT 108

Legal Services Complaints Committee and Ginbey [2023] WASAT 113 (S)

Medical Board of Australia and Costley [2013] WASAT 2

Medical Board of Australia and Cuckier [2017] VCAT 109

Medical Board of Australia and Mullaley [2025] WASAT 99

Medical Board of Australia v Nguyen (Review and Regulation) [2025] VCAT 287

Medical Board of Australia v Panda [2019] WASAT 104 (S)

Medical Board of Australia v Singh [2017] WASAT 33 (S)

Medical Board of Australia v Tan [2022] WASAT 57 (S)

Nadkarni v Medical Board of Australia [2022] WASCA 109

Physiotherapy Board of Australia v Espedido (No 2) (Review and Regulation) [2023] VCAT 1056

Physiotherapy Board of Australia v Nasser (Review and Regulation) [2025] VCAT 334

Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82

Sawati v General Medical Council [2022] EWHC 283 (Admin)

Singh v Medical Board of Australia [2019] WASCA 51

DEPUTY PRESIDENT JACKSON & SENIOR MEMBER EVANS-BONNER

1. On 17 September 2025, we handed down our reasons Medical Board of Australia and Mullaley[1] (Primary Reasons) in this matter.
2. These reasons should be read together with the Primary Reasons.
3. On the same day we also made a single order that gave effect to the Primary Reasons as follows:

The Tribunal finds that the respondent, Dr Kim Mullaley, engaged in professional misconduct by touching the Complainant's vulva on 12 July 2016 during a physical examination of her when there was no clinical reason for doing so.

1. Orders were subsequently made to progress the matter through to a hearing on penalty and costs, which hearing occurred on 16 December 2025.
2. Having considered the evidence relied upon by Dr Mullaley and the submissions of each party, the following orders should be made:

(a) the respondent (Dr Mullaley) is publicly reprimanded;

(b) Dr Mullaley's registration as a medical practitioner is suspended until 16 September 2028; and

(c) Dr Mullaley is to pay the Medical Board of Australia the sum of $175,000 as a contribution towards its costs within 30 days or such other period as agreed by the parties.

1. As the Primary Reasons make clear, the Health Practitioner Regulation National Law (Western Australia) (National Law) provides the relevant statutory regime governing these proceedings.
2. Section 196 of the National Law relevantly provides as follows:

(1) After hearing a matter about a registered health professional, a responsible tribunal may decide -

(iii) The practitioner has behaved in a way that constitutes professional misconduct;

(2) If a responsible tribunal makes a decision referred to in subsection (1)(b), the tribunal may decide to do one or more of the following -

(b) impose a condition on the practitioner's registration, including, for example -

(c) require the practitioner to pay a fine of not more than $30 000 to the National Board ...

(d) suspend the practitioner's registration for a specified period;

(3) If the responsible tribunal decides to impose a condition on the practitioner's registration ...

(4) If the tribunal decides to cancel a person's registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to do one or more of the following -

(a) disqualify the person from applying for registration as a registered health practitioner for a specified period;

(b) prohibit the person, either permanently or for a stated period, from doing either or both of the following:

(i) providing any health service or a specified health service;

(c) impose restrictions, either permanently or for a stated period, on the provision of any health service or a specified health service by the person.

1. Both parties submitted[2] that the relevant legal principles to be applied in this case as to penalty are set out in Tan[3] and Singh.[4]
2. We agree. As Quinlan CJ and Pritchard JA said in an appeal from the Singh decision (Singh CA):[5]

The general principles in relation to the imposition of disciplinary sanctions are well known ... Those principles have been well settled for some time and it is not necessary to repeat them in full.

1. Although to do so is somewhat redundant given the above, we repeat the relevant passages from the Tribunal's reasons in Tan[6] for the reader's convenience:
   1. First, any penalty the Tribunal imposes under the National Law must be imposed by reference to the nature and seriousness of the practitioner's conduct.
   2. Secondly, the purpose of disciplinary proceedings is to protect the public and not to punish the practitioner, in the sense in which punishment is imposed under the criminal law. The public is protected by the making of orders which will prevent a person who is unfit to practise from practising, or by making orders which secure the maintenance of proper professional standards.
   3. Thirdly, the protection of the public has various dimensions. They may include the immediate need to protect the public from the practitioner's conduct, the need to bring home to the practitioner the seriousness of their conduct, and the need to deter the practitioner from future breaches. An order of that kind may be regarded as akin to personal deterrence. The protection of the public may also require an order which emphasises to other members of the profession, or which reassures the public, that a certain type of conduct is not acceptable professional conduct. An order of that kind may be regarded as akin to general deterrence.
   4. Fourthly, as the purpose of disciplinary proceedings is the protection of the public, the impact that an appropriate penalty will have on a practitioner guilty of misconduct, and any personal hardship to the practitioner, are necessarily secondary considerations.
   5. Fifthly, the appropriate sanction is to be considered at the time of the imposition of the sanction, and not by reference to the date of the unprofessional acts.
   6. Sixthly ...[7]
   7. Seventhly, in determining the appropriate penalty, the Tribunal engages in the exercise of a discretion. In order to reach a decision, the Tribunal must evaluate and weigh a broad range of factors, including the purpose of disciplinary proceedings, the relevant facts, the various penalty options available, sanctions or penalties imposed in previous cases bearing some similar features to the case in question, personal and general deterrence, the practitioner's personal circumstances and antecedents, and any mitigating factors.
   8. In Medical Board of Australia v Singh, the Tribunal identified twelve possible considerations in determining an appropriate penalty. These considerations assist in assessing the seriousness of the practitioner's conduct relevant to identifying an appropriate penalty. Those considerations are not exhaustive. They provide a useful framework for considering the circumstances of this case relevant to penalty, and the parties proceeded on that basis. We will do likewise.
   9. All of these matters are to be considered in the context of the Tribunal's findings as to liability; that is, its findings as to the seriousness of the practitioner's conduct and the practitioner's explanation for it.
2. The 12 factors to which the Tribunal at para [20] of Tan (above) referred as having been set out in Singh are as follows:[8]
   1. In determining an appropriate sanction, twelve matters may require consideration. Those matters are interrelated and are not mutually exclusive. The list of matters is not exhaustive. The twelve matters are:
      1. Any need to protect the public against further misconduct by the practitioner ...
      2. The need to protect the public through general deterrence of other practitioners from similar conduct ...
      3. The need to protect the public and maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions and thereby articulating the high standards expected of the profession ... such that, even where there may be no need to deter a practitioner from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval
      4. ...[9]
      5. Whether the practitioner has breached any [ ] Act; [ ] Regulations; [ ] Guidelines or Code of Conduct, issued by the relevant professional body; and [ ] whether the practitioner has done so knowingly.
      6. ...[10]
      7. Whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future
      8. The practitioner's disciplinary history ...
      9. Whether or not the practitioner understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by the practitioner, since a practitioner who fails to understand the significance and consequences of misconduct is a risk to the community
      10. The desirability of making available to the public any special skills possessed by the practitioner.
      11. The practitioner's personal circumstances at the time of the conduct and at the time of imposing the sanction. However, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of legal practitioners and in the maintenance of proper standards of legal practice
      12. The Tribunal may consider any other matters relevant to the practitioner's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness ... In general, mitigating factors such as no previous misconduct or service to the profession are of considerably less significance than in the criminal process because the jurisdiction is protective not punitive ...

1. As submitted by Ms Young SC, who appeared for the applicant, there were four issues for our determination:[11]

(a) Whether or not the appropriate penalty is suspension (which is pressed by Dr Mullaley) or cancellation and disqualification (for which the Board presses). In this regard, we note that the parties were agreed that the relevant penalty imposed should include a reprimand.

(b) The appropriate term of either suspension or cancellation and disqualification. In that regard, the Board presses for a period of disqualification of four to five years, while Dr Mullaley submits that the appropriate term is 18 months to 2 years.

(c) Whether a prohibition order (which is pressed by the Board and resisted by Dr Mullaley) should be made.

(d) The appropriate quantum of costs that Dr Mullaley should pay to the Board.

1. As noted above, the parties agree that Dr Mullaley should be reprimanded.
2. While a reprimand sits toward the bottom of the hierarchy of sanctions, it should not be seen as little or no consequence. Other medical practitioners 'and members of the community generally would properly regard the imposition of a reprimand as a significant admonition' of Dr Mullaley's misconduct.[12]

Suspension or Cancellation and Disqualification

1. Dr Mullaley accepts that the nature of the finding against him necessitates 'a period during which he cannot practice medicine, as well as a reprimand'.[13]
2. In our view that concession is properly made.
3. The conduct the subject of our finding of professional misconduct is unquestionably very serious indeed and any lesser sanction would not, without more, reflect that seriousness.
4. A sanction less than suspension would, without more, also fail to adequately respond to the need for the protection of the public. As noted above, the protection of the public has various dimensions.[14] In the present case, we are particularly conscious of the need to make clear to the profession generally that conduct of this nature is unacceptable and represents a very serious departure from acceptable standards, the need to deter members of the profession from engaging in such conduct, and the need to emphasise to the profession, and to reassure the public, that such conduct will be subject to significant sanction if it occurs.
5. In Khosa,[15] Beech and Murphy JJA provided some guidance as to when suspension, rather than cancellation, may be appropriate.
6. In effect, their Honours held that suspension may be appropriate where, although the practitioner is found unfit to practice at the time of the imposition of the penalty, the body determining the appropriate sanction is satisfied that he or she is not permanently or indefinitely unfit to practice, such that it is appropriate for them to re-commence practice upon the expiry of the term of suspension.
7. The practitioner in Khosa was a lawyer, and the regime for legal practitioners provides for suspension or striking off. By contrast, the National Law which governs the present proceeding provides for suspension or, alternatively, cancellation and, if cancellation is ordered, a period before which the practitioner may not seek re-registration (which period may be indefinite).
8. Notwithstanding those differences, amongst others, Quinlan CJ and Pritchard JA in Singh CA said that the analysis of Beech and Murphy JJA in Khosa was a 'useful guide' as to whether suspension or cancellation of registration of a medical practitioner is appropriate in a particular case. They went on to say that:[16]

Applying that approach, it may be said that where a medical practitioner is 'permanently or indefinitely unfit to practise, [cancellation of registration] rather than suspension will (at least ordinarily) be the appropriate response'.

1. However, it is important to note that their Honours went on to hold that while permanent or indefinite unfitness to practice will ordinarily be a sufficient basis for cancellation, it is not a necessary condition for the imposition of that sanction.[17]
2. More recently, the Court of Appeal in Nadkarni,[18] expressed the matter more emphatically when it said:

An order for suspension of a medical practitioner must be based upon a view that at the end of the period of suspension the practitioner will be fit to practice ...

1. Applying those principles, and for the following reasons, we are satisfied and we find that the appropriate form of the sanction in this case, so as to result in a period of non-practice for Dr Mullaley, is a suspension, rather than cancellation of his registration.
2. In so saying, we have also had regard to the various cases to which the parties referred us. They are described in a little more detail below in our consideration of the second issue - the duration of any period of non-practice. We have found the cases to be of limited assistance in relation to the second issue. That is also the case in relation to this first issue. In each of those cases, the practitioner was disqualified, rather than suspended. However, for the reasons which follow, we have reached a different view.
3. First, while the conduct in question is very serious indeed, the finding concerns a single occasion of inappropriate sexual touching, rather than multiple incidents of touching of one or more patients.
4. Secondly, as the Board properly acknowledges, the sexual touching occurred without any verbal propositioning or other sexualised behaviours.
5. Thirdly, as the Board also properly acknowledges, the conduct in question occurred approximately 9½ years ago, in June 2016.
6. On the material before us, Dr Mullaley has practised since June 2016 without engaging in conduct the subject of complaint or allegation.
7. Fourthly, and further to the third reason, Dr Mullaley has no disciplinary history that predates the conduct.
8. Accordingly, and subject to what follows, in our view the conduct can be properly described as an isolated incident.
9. The only cause for caution in making that finding is the Board's submission that Dr Mullaley has failed to demonstrate either insight or remorse.[19]
10. There is, of course, a difference between insight and remorse - insight represents an understanding that certain conduct is wrong.[20] It has also been held to include an understanding as to how seriously wrong it is and as to its consequences.[21] Remorse, on the other hand, is a genuine feeling of regret and contrition, for having engaged in the conduct.[22]
11. Accordingly, a practitioner who fails to demonstrate insight and remorse is one who remains a risk of reoffending.[23] That is because they do not understand that they have done wrong and they feel no real regret or contrition for what they have done.
12. We agree with Mr Yovich SC, who appeared for Dr Mullaley, who submitted that insight 'can be a protective factor' against reoffending.[24]
13. Dr Mullaley submits that, in fact, he has demonstrated insight but that he has not and cannot express remorse as he continues to insist (including by filing a Notice of Appeal) that he did not engage in the sexual touching.[25]
14. In support of his submission that he has insight; Dr Mullaley relies upon the following:[26]

(a) that he understands and accepts that the inevitable result of the finding is that there must be a period during which he cannot practice medicine;

(b) that after the allegation was made, he took steps which demonstrate that he appreciates its seriousness, including that he withdrew from fostering children and from coaching junior hockey;

(c) that he fully co-operated with AHPRA during its investigation and the Board during the proceedings; and

(d) that he voluntarily ceased practising medicine following the publication of Primary Reasons.

1. We do not accept that co-operation by a practitioner with their regulator demonstrates insight into the seriousness of the allegation; all practitioners should cooperate regardless of the nature of the allegation. However, we are satisfied that each of the other three matters can properly be said to demonstrate Dr Mullaley's insight into the gravity of both the allegation and of our finding.
2. As to the lack of remorse, we accept the logic in Dr Mullaley's submission and agree that, while his lack of remorse denies him any mitigatory benefit,[27] it should not be seen as indicative of a practitioner who risks reoffending.
3. Accordingly, we are satisfied that suspension is an appropriate sanction, rather than cancellation and a period of disqualification.

1. As noted above, the Board seeks a period of non-practice of four to five years, while Dr Mullaley submits that the appropriate period is 18 months to two years.
2. As also noted above, the parties have provided us with references to many cases which they relied upon for their respective positions.
3. As the principles quoted above in Tan[28] make clear, we must have regard to other cases that are sufficiently comparable for the purpose.
4. In giving effect to that principle, one must be alert to the question of sufficient comparability. As is often noted, while some cases will contain some features comparable to the case at hand, they will also frequently contain distinguishing features.[29]
5. The Board identified six cases which, it said, 'offer some useful comparison'. All involved findings of sexual touching without clinical justification.
6. Dr Mullaley submitted that those cases are 'materially distinguishable'. He relies upon a different seven cases.
7. As we will see, in at least one case there is a reference to the need for penalties to reflect 'prevailing community standards'.[30]
8. In that regard, we consider it unremarkable to note that community standards as to sexual misconduct have been the subject of considerable public debate over the last 10 or so years, particularly since the #MeToo movement that began in or about 2017. Mr Yovich SC, who appeared for Dr Mullaley, agreed with this proposition, although he submitted that there was no corresponding 'discernible trend upwards' in the relevant penalties.[31]
9. In any event, however, we consider it unlikely that cases from more than, say, about ten years ago will be particularly helpful in seeking to understand or reflect 'contemporary community standards'.
10. For those reasons, we provide a brief overview of those cases relied upon by the parties in chronological order (from oldest to most recent) but excluding those decisions which were determined prior to 2017.
11. In Cuckier,[32] the VCAT was concerned with allegations concerning inappropriate sexual behaviour towards two patients. It was alleged that Dr Cuckier hugged the first patient while he had an erection, which she could feel through her clothing. As to the second patient, he was alleged to have undone her belt, pulled down her pants and rubbed her mons pubis over her underwear. He also kissed her on the lips. Dr Cuckier was found guilty by a court of two counts of indecent assault and sentenced to five months imprisonment, wholly suspended for 12 months. Before the Tribunal he admitted the conduct. He was disqualified for 18 months.
12. In Safi,[33] while engaged in a vaginal examination, the doctor touched and rubbed the patient's clitoris with one or two fingers for one to two minutes and otherwise inappropriately moved his fingers to the entrance of her vagina and rubbed it in a similar manner for a similar period of time. At the end of the consultation, he hugged the patient, kissed her with an open mouth and 'sucked her lips'. He denied the conduct and said that, having reflected 'at length', he should have taken more time to explain the pap smear and bimanual examination, particularly in light of cultural and language issues. The Tribunal noted a lack of insight and remorse. It cancelled his registration and imposed a non-review period of 18 months.
13. In Skandaliaris,[34] a physiotherapist was found, following a hearing, to have engaged in several aspects of inappropriate sexualised behaviour towards a patient, including that he inappropriately exposed her breasts and buttocks, forcefully placed his hands between her thighs and reached around her placing his hands inside her underwear and touched her pubic hair. He also flouted a chaperone condition and provided false records. The Tribunal cancelled his registration and imposed a 12-month non-review period.
14. In Panda,[35] the Tribunal found the practitioner guilty of eight counts of professional misconduct, involving the inappropriate touching of the breasts and/or vagina of five patients. He did so by misrepresenting that he was providing a medical service. He also repeatedly breached a condition of his registration by examining female patients without a chaperone. A substantial period of many[36] years had elapsed between the conduct in question and the imposition of the penalty. Dr Panda was found to lack both any insight and remorse. The Tribunal disqualified Dr Panda for 10 years.
15. In Ebtash, a chiropractor touched, without clinical justification, the breasts and genitals of several clients through their clothing, and also pulled down the pants of a patient to expose her mons pubis. The Tribunal held that the appropriate penalty was disqualification from applying for registration for five years, although he was given credit for the period of suspension, such that the ultimate period was four and a half years.
16. In Balafas,[37] having conducted a pelvic examination of a young woman while she lay on her back, Dr Balafas asked her to lie on her front after which he inserted his fingers into her vagina 'for a few minutes' and rubbed her clitoris twice. Other misconduct was found. His registration was cancelled and he was disqualified for three years.
17. In Espedido, a physiotherapist was found to have touched a patient on her vulva without clinical justification, having first asked her to remove her underwear. He had previously been reprimanded for a similar incident and had been counselled in that regard. The misconduct before the VCAT occurred after the period of counselling had been completed and the counsellor had advised that she 'was confident' Mr Espedido 'had a far better understanding of both informed consent and his ethical obligations'.
18. At the 'immediate action' stage, Mr Espedido undertook not to practice. He later surrendered his registration. He did not participate in the VCAT proceedings.
19. The VCAT found that the 'headline' penalty was a period of disqualification of eight years but reduced it to six years, having regard to the 'significant period' (four and half years) he had been out of practice.
20. In imposing that penalty, regard was had to the penalty imposed in Ebtash, which the VCAT found may be considered to be 'inadequate' having regard to 'prevailing community standards'.[38]
21. In Nasser,[39] a physiotherapist was accused of, amongst other things, sexual touching of the patient's breasts and her crotch including areas 'close to' her vulva and anus under the guise of physiotherapy treatment. Other than 'vehemently' denying the allegations, Mr Nasser took no role in proceedings. He had previously been disqualified for eight years for other, similar, conduct. The VCAT did not agree that a further six-year disqualification should be imposed, saying that the total would be disproportionate. Rather, he was disqualified for a further period of four years.
22. In Nguyen,[40] the Board alleged that, in purporting to treat a patient's sore back, Dr Nguyen had straddled the patient and, over her objection, pulled down her pants and massaged her thighs and buttocks, including areas 'close to' her anus and vulva. Dr Nguyen admitted the allegations just prior to the commencement of the hearing. He was disqualified for two years. In calculating that period, the VCAT expressly took into account that he had already been suspended for three years and nine months by way of Immediate Action.
23. As we have previously noted, we have not found any of these cases to be 'sufficiently comparable' to provide strong guidance, on its own, as to the appropriate duration of a period of non-practice.
24. Further, when considered collectively, it is difficult to discern a commonality of approach which assists in guiding the exercise of discretion, save that findings of sexual misconduct which involve the touching of a patient's genitals without clinical justification warrant a period of non-practice that should, ordinarily, extend for more than a couple of years.
25. In our view, the critical aspects of this case which inform our decision as to duration are as follows. We note that there is a degree of overlap with the factors relevant to the question of suspension or cancellation.
26. First, as we have already found, the conduct in question is very serious indeed. It involves a gross breach of trust by a doctor whose task it was to physically examine a young woman who was, on her presentation, very vulnerable. The period of suspension must both reflect the seriousness of that breach and the need for the public to be protected.
27. Secondly, as to the protection of the public, we are particularly concerned with the need for general deterrence - the need to emphasise to other members of the profession, and to reassure the public, that sexual misconduct by medical professionals is utterly unacceptable and very serious sanctions will be imposed where such misconduct is found.
28. In our view, there is less need in this case for the protection of the public to reflect personal deterrence. That is because, as we have previously noted, Dr Mullaley has no disciplinary history that predates the misconduct and nothing is put before us as to further allegations or findings made against him in the approximately 9½ years since it occurred.
29. In this regard, we also give some weight to the various character references provided on his behalf. Critically, all of them state that they are, at least, aware of our findings, and several state or demonstrate awareness of the nature or character of our findings. All of them state, in effect, that the conduct is 'out of character'.
30. Consistent with those references, we are satisfied that by ceasing to foster children, and by ceasing to coach underage hockey, Dr Mullaley has demonstrated a degree of insight into the seriousness of the findings.
31. Thirdly, having previously described the conduct as very serious, it is fraught to then seek to identify or isolate aspects of it which might be said to diminish its seriousness. We ought not to be understood to be doing so. Rather, we note the following aspects of the conduct so as to allow a degree of contrast with some other cases.
32. In contrast to cases such as Panda and Ebtash, this case concerns only one occasion, rather than multiple instances, of inappropriate sexual touching.
33. Further, in contrast to cases such as Cuckier and Safi, there was no other sexualised behaviour associated with the conduct and neither was there any physical force used, in contrast to, for example, Skandaliaris.
34. Fourthly, it is also necessary that we give some weight to Dr Mullaley's skills as a consultant emergency doctor.[41]
35. Society has a need for and has invested heavily in the education and training of, doctors with such important and specialised skills. As a doctor with such skills, Dr Mullaley should not be suspended for any longer than is necessary to protect the public in the various ways in which that term is understood.
36. In that regard, Dr Mullaley referred to materials produced by the Australasian College for Emergency Medicine (ACEM) and its Policy on re-entry to practice following a period of absence (ACEM Policy) That document imposes requirements, in addition to those of the Board, that must be met before an emergency physician may return to clinical practice.
37. Relevantly, for an absence of 36 months or more, a formal 're-entry program' must be submitted to, and approved by, the ACEM which must then be satisfied that the re-entry program has been completed before the emergency physician can return to work. Any such 're-entry program' must include supervision. By contrast, an absence of between 12 and 36 months, requires merely the completion of continuing professional development (CPD) activities.
38. Dr Mullaley's written submissions include that a penalty of three years or more will cause him to 'face challenges on resuming practice over and above those faced by practitioners in other disciplines, and that the practical effect of a sanction of that duration will be greater, both on Dr Mullaley, and on the public, than would otherwise be the case'.[42]
39. Although there is no material from other colleges against which we may compare ACEM's requirements, we are prepared to accept that the latter set a higher bar. Nonetheless, we are not satisfied that we should give much weight to the issue. In particular, we are not satisfied that the burden imposed by the ACEM Policy is so great as to warrant reducing any period of suspension to fewer than 36 months so as to avoid the need for a re-entry program.
40. Taking all of these factors into account, we are satisfied that the appropriate period of suspension is three years. The period should be calculated from the date on which we delivered our Primary Reasons as it was on that date, we are told, that Dr Mullaley ceased practising. The period of suspension should, therefore, end on 16 September 2028.

1. The Board seeks a prohibition order under s 196(4) of the National Law.
2. That section is set out above at [7]. It provides that the powers provided under s 196(4)(a), (b) and (c) may only be exercised if one of two criteria are met: if 'the tribunal decides to cancel a person's registration under this Law, or the person does not hold registration under this Law'.
3. For the reasons we have set out above, we have determined it would not be appropriate to cancel Dr Mullaley's registration. Rather, we will suspend it.
4. In our view, suspension of Dr Mullaley's registration will not satisfy the second of the two criteria. That is, suspension will not mean that he does not 'hold registration' under the National Law.
5. In so finding, we note that neither of the parties addressed us on this issue and neither have we been able to identify any consideration of this issue by this or any other tribunal or Court.
6. However, our finding in this regard follows necessarily from the inclusion of s 196(4)(a) as one of the powers that follow from the satisfaction of either of the two criteria in the chapeau.
7. The power to disqualify the person in question from applying for registration as a registered health practitioner in that paragraph strongly suggests that the language of the second criteria in the chapeau ('the person does not hold registration under this Law') is not a reference to a person whose registration has been suspended.
8. That is because, as we have found (above), the law is clear that at the end of a period of suspension, the practitioner need not apply for registration - that is the difference between cancellation and suspension.
9. That means, we find, that a practitioner whose registration is suspended continues to 'hold' registration throughout the period of suspension.
10. Further, we find it unlikely that Parliament would have used the words 'or the person does not hold registration under this Law' to refer to an order for suspension, in circumstances where the language used for the first criteria expressly refers to a decision of the tribunal to cancel the person's registration. If Parliament had intended to include a tribunal's suspension of the practitioner's registration, it would have been sensible and logical to use that language.
11. In our view, therefore, the second criteria provided by the chapeau to s 196(4) covers circumstances where the 'person' (the language used is in stark contrast to that of the other sub-sections - 'the practitioner') does not hold registration for other reasons, such as they have allowed it to lapse.
12. As a result, neither of the criteria to s 196(4) are satisfied in relation to Dr Mullaley. We therefore lack the power to impose an order under s 196(4)(b) to prohibit him from providing a health service.
13. However, in any event, we are not satisfied that to do so would have been appropriate.
14. In our view, such an order is suited to cases where there is a particular need for specific deterrence or a need for the protection of the public from the particular practitioner.
15. We have previously held that, on the evidence before us, Dr Mullaley's misconduct would appear to represent an isolated case - he has no prior disciplinary history and no findings have been made against him for conduct in the approximately 9½ year period since the misconduct.
16. The Board submitted that it would be incongruous for a practitioner who is suspended for sexual misconduct to be allowed to administer to other health professionals. We accept that there is some strength to that. That is equally so in the context of teaching. However, in our view, an assessment of that incongruity is best left to those who might employ or engage Dr Mullaley in such roles. They can assess all of the facts and circumstances at the time whereas we are being asked to forecast and anticipate what those facts and circumstances might be.
17. For these reasons we find that, having determined to order the suspension of Dr Mullaley's registration, we lack the power to impose a prohibition order under s 196(4)(b) but, even if we had the power, we would not do so.

1. The Board has incurred costs (legal fees and disbursements) of about $277,353.48 (inc GST) broken down as follows:[43]

(b) Counsel's fees of $100,138.50 ($85,596.50); and

(c) Other disbursements of $17,990.84 ($15,084.70).

1. The sums in brackets represent the relevant sum adjusted to reflect the relevant 'scale'. The 'scale' total is $256,250.90.[44]
2. The Board seeks half its costs (at scale) to 16 July 2024 and its costs at scale thereafter.[45] It was on that date that the Board amended its case to withdraw certain other allegations against Dr Mullaley. The Board estimates that half of its costs to that time concerned those other allegations and it therefore accepts that a 50% reduction is appropriate. It seeks a total of $189,585.40.[46]
3. It submits that an order requiring Dr Mullaley to pay that amount is reasonable. In addition to the above, its reasons include that:

(a) The matter included a mediation and a five-day hearing with a two-volume book of documents;

(b) The Board ran the matter so as to avoid substantial or excessive costs; and

(c) The matter required more than the usual amount of work due, in part, to the interim hearings for applications brought by Dr Mullaley, and the need for the work to be done in the context of very serious allegations and a vulnerable complainant.

1. Dr Mullaley accepts that the Board is entitled to be paid a contribution to its costs, but submits that an order requiring him to contribute no more than around $100,000 towards the Board's costs should be made.[47]
2. He says that he is not insured against any order which requires him to pay the Board's costs and neither will his insurer advance any costs related to the proceedings. He makes those submissions despite acknowledging that 'impecuniosity alone is not a bar to making a costs order...' but says that, in effect, an order must not be made that would be 'excessive and crushing ... beyond what a practitioner might reasonably expect to have to meet ...'.[48]
3. He further raises several matters as to particular types of fees incurred by the Board for which he says he ought not to be responsible in whole or in part.
4. We deal with them in turn below. However, before we do we note our agreement with the submission of Ms Young SC, who appeared for the Board at the hearing, to the effect that the sum of the costs the subject of Dr Mullaley's submissions is well short of the roughly $85,000 difference in the costs claimed by the Board and the quantum for which Dr Mullaley accepts he is responsible.
5. Before turning to those competing submissions, we provide a brief outline of the relevant legal principles concerning the question of costs in disciplinary proceedings. They were not in issue between the parties and are, in any event, well known.

1. The Tribunal's power to award costs is provided by s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), whereby s 87(1) of that Act, the 'starting point' is that each party bear their own costs.
2. In Young,[49] the Tribunal explained that, despite that starting point, it is 'common (if not ordinarily the case)' that a successful regulator will recover 'all or some' of its costs and explained that such an approach:

reflects the public policy that regulatory bodies perform functions which promote the public interest, usually with limited resources, and the concern that the financial burden of bringing disciplinary action, if the regulatory body has no capacity to recover some or all of its costs, might act as a disincentive to bring such disciplinary action, or to ensure that all allegations against a practitioner are properly and thoroughly presented.

1. In Young, the Tribunal explained, however, that the relevant question in each case 'is whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred'.[50]
2. As we have said, Dr Mullaley accepts that it is appropriate for him to contribute to the Board's costs. The issue in dispute is the quantum of that contribution. As to the assessment of quantum, the Tribunal in Ginbey[51] held:

Having determined that it is appropriate to make an order that one party pay some or all of another party's costs, the Tribunal must make an assessment of the costs to be paid. An assessment of costs should be approached in a broad fashion and should not descend into an inquiry into small items of expenditure. Although the assessment of costs involves a relatively broad and robust approach, the Tribunal must be satisfied that the costs claimed are reasonable and necessary. The Tribunal must also be satisfied that the costs claimed are not excessive. Furthermore, the Tribunal must explain why an award of costs is reasonable, and if so, in what amount. (Footnotes omitted).

1. Dr Mullaley first submits that he ought not pay for the Board's legal fees incurred prior to the filing of its application, 'save for time directly related to the preparation of that application'. He estimates the amount claimed is a little over $5,000, being half that which was incurred.[52]
2. We disagree. It is reasonable for the Board to recover the costs of obtaining legal advice as to whether the evidence it (the Board) has collected provides a sufficient basis for the commencement of proceedings.
3. Secondly, Dr Mullaley notes that the Board's solicitors 'had numerous practitioners working under supervision' being a Special Counsel, three lawyers and a law clerk all under the supervision of a Principal. Dr Mullaley submits that the more practitioners working on a matter, the more likely duplication of work will occur.[53]
4. However, save for a short period in early 2024, it would appear that there was no more than one junior practitioner working on the matter at a time.
5. Third, Dr Mullaley notes 'numerous entries' in the solicitor's invoices for 'supervision and delegation' by the Principal solicitor and 'internal conferences' between solicitors.[54]
6. In our view, such entries do not necessarily represent a duplication of effort, such that Dr Mullaley ought not to be responsible for some or all of the relevant time. If the system works as it should, the client should pay no more, and may pay less, for work done by a junior solicitor supervised by a senior/partner/principal than if all of the work was done by a single, senior, practitioner.
7. Of course, there is a risk that the system does not work as it should and we take Dr Mullaley's submissions as a reminder of that risk.
8. Fourthly, Dr Mullaley also submits that there are 'numerous' entries for apparently administrative tasks completed by solicitors, the costs of which ought not to be borne by Dr Mullaley'.[55] A brief review of the solicitor's invoices does allow some entries so described to be identified but the sums involved do not appear to be significant and, moreover, appear to be ancillary or incidental to other tasks described in the relevant time-entry.
9. Similarly, Dr Mullaley refers to time spent by the Board's solicitors on calls to the complainant that went unanswered, and scheduled meetings at which she did not attend.[56] The Board submitted that preparation for such meetings was time spent for which Dr Mullaley should be liable and submitted that time was not double billed when calls or meetings were rescheduled. Having considered the time entries the Board referred to in support of that submission, we are not satisfied that Dr Mullaley's complaint is made out.
10. Finally, Dr Mullaley submits that he should not be required to pay for the Board's costs in relation to his successful application for the production of documents, which the Board resisted. Deputy President Glancy, as the President then was, heard that application and reserved the question of costs.
11. We agree with Dr Mullaley that he should not be required to pay the Board's costs in that regard. He estimates those costs to be about $13,500.[57] In the absence of anything said to the contrary for the Board, we agree.
12. In short, the Board seeks $189,585.40.
13. For the preceding reasons, it is appropriate to deduct $13,500 being half the costs the Board incurred for Dr Mullaley's application for the production of documents. That leaves a total of $176,085.40, which might be rounded to $175,000.
14. While that remains a very considerable sum of money, we are satisfied that the fees and disbursements which were incurred by the Board to make up that sum were necessary and reasonable.
15. Further, while we accept Dr Mullaley's submission (notwithstanding its lack of an evidentiary basis) that any costs will be paid by him personally, without assistance from his insurer, we lack any evidence from him as to his own financial circumstances that might provide a basis to reduce the quantum claimed so as to avoid an order that will be 'crushing'.
16. Accordingly, we are satisfied that it is fair and reasonable for Dr Mullaley to pay that sum to the Board by way of a contribution towards its costs.

1. The respondent is reprimanded and his medical registration is suspended until 16 September 2028.
2. The respondent is to pay the applicant the sum of $175,000 as a contribution to its costs within 30 days or such other period as agreed by the parties.

1. I have read, and largely agree with, the reasons for decision as to penalty and costs of the Deputy President and Senior Member Evans-Bonner.
2. To be more precise, I agree with their reasons and their proposed order as to costs; that Dr Mullaley should pay a contribution to the Board's costs in the sum of $175,000.
3. I also largely agree with their reasons as to penalty.
4. In particular, I agree with their reasons and their proposed order as to the appropriate form of the penalty that Dr Mullaley should serve; that of suspension of his registration, rather than its cancellation. I also agree with their reasons that it is not appropriate for a prohibition order to be made.
5. I am also unable to find anything in particular with which I disagree in the reasons they give for imposing a period of suspension of three years, commencing from September last year.
6. However, I respectfully disagree with that term of suspension. Rather than a period of three years, I am of the view that the appropriate term of suspension is two years.
7. In reaching that view, I give considerable weight, and perhaps greater weight than that given by the Deputy President and Senior Member Evans-Bonner, to the lengthy period of time that has elapsed since the misconduct, during which Dr Mullaley has practiced without any further complaint or allegation.
8. I am also concerned with the period of time that it has taken to bring this matter to a conclusion, although I note that that was not a matter raised on Dr Mullaley's behalf.
9. In short, while I am unable to pinpoint any particular part of the reasons of the Deputy President and Senior Member Evans-Bonner with which I disagree, I respectfully am of the view that, in light of all of the facts and circumstances, the appropriate period of suspension of Dr Mullaley's registration is two years, commencing on 16 September 2025, so that he would be entitled to practice from 17 September 2027.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

[1] Medical Board of Australia and Mullaley [2025] WASAT 99 (Primary Reasons).

[2] Board's Submissions on Penalty and Costs, 24 October 2025 (Board's Submissions), para 4. Respondent's Submissions on Penalty and Costs, 21 November 2025 (Respondent's Submissions), para 4.

[3] Medical Board of Australia v Tan [2022] WASAT 57 (S), [13] - [21].

[4] Medical Board of Australia v Singh [2017] WASAT 33 (S), [23] - [30].

[5] Singh v Medical Board of Australia [2019] WASCA 51, [26].

[6] Tan, [13] - [21]. Internal footnotes omitted. See, also Nadkarni v Medical Board of Australia [2022] WASCA 109 (Nadkarni), [82].

[7] The paragraph is irrelevant to the present proceedings as it deals with penalty options where there are multiple findings of misconduct, in contrast to the present proceedings which concern one finding of misconduct.

[8] Singh, [30]. Internal citations omitted.

[9] The paragraph concerns misleading conduct, which is not relevant here.

[10] The paragraph concerns incompetence, which is not relevant here.

[12] Legal Profession Complaints Committee v Detata [2012] WASCA 214, [42].

[13] Respondent's Submissions, para 10.

[14] Tan, [15]; Singh CA, [32].

[15] Khosa v Legal Profession Complaints Committee [2017] WASCA 192, [191] - [192].

[20] Legal Profession Complaints Committee v in de Braekt [2013] WASC 124, [35].

[21] Sawati v General Medical Council [2022] EWHC 283 (Admin), [76].

[25] Respondent's Submissions, para 19.

[26] Respondent's Submissions, paras 20 - 21.

[28] Tan, [19]. Also, Nadkarni, [82].

[29] See, for example, Nadkarni, [77]. More generally, see Chiropractic Board of Australia and Ebtash [2020] WASAT 86 (S) (Ebtash), [99].

[30] Physiotherapy Board of Australia v Espedido (No 2) (Review and Regulation) [2023] VCAT 1056 (Espedido), [22] - [25], referring to Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82.

[32] Medical Board of Australia and Cuckier [2017] VCAT 109.

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

[34] Health Care Complaints Commission v Skandaliaris (No 2) [2019] NSWCATOD 110.

[35] Medical Board of Australia v Panda [2019] WASAT 104 (S).

[36] Panda, [29] and [43]. These paragraphs inconsistently state that a period of 9 and 12 years had elapsed. Our own calculations suggest a period of 7 years and 7 months.

[37] Health Care Complaints Commission v Balafas (No 6) [2022] NSWCATOD 183.

[39] Physiotherapy Board of Australia v Nasser (Review and Regulation) [2025] VCAT 334.

[40] Medical Board of Australia v Nguyen (Review and Regulation) [2025] VCAT 287.

[41] See the 10th of the 12 matters that 'may require consideration' identified in Singh, at [11] above.

[42] Respondent's Submissions, para 24.

[43] Affidavit of Kylie Walsh of 24 October 2025 (Walsh Affidavit), para 20.

[46] Walsh Affidavit, para 36. Board's Submissions, paras 40 - 41.

[47] Respondent's Submissions, paras 45 and 49.

[48] Respondent's Submissions, para 47, citing Medical Board of Australia and Costley [2013] WASAT 2 (Costley), [66].

[49] Legal Services and Complaints Committee and Young [2023] WASAT 108 (Young), [41].

[51] Legal Services Complaints Committee and Ginbey [2023] WASAT 113 (S) (Ginbey), [51].

[52] Respondent's Submissions, para 48(a).

[53] Respondent's Submissions, para 48(b).

[54] Respondent's Submissions, para 48(c).

[55] Respondent's Submissions, para 48(d).

[56] Respondent's Submissions, paras 48(g) and 48(h).

[57] Respondent's Submissions, paras 48(e) and 48(f).