Z870/2015: allegations in respect of patient A

1. The conduct the subject of Allegation 1 constitutes professional misconduct pursuant to sub-paragraphs (a) and (c) of the definition of professional misconduct in s 5 of the Health Practitioner Regulation (National Law) Act 2009 (Vic) (National Law).
2. The conduct the subject of Allegation 2 constitutes professional misconduct pursuant to sub-paragraphs (a) and (c) of the definition of professional misconduct in s 5 of the National Law.
3. In respect of Allegations 1 and 2, a finding of professional misconduct pursuant to s 196(1)(b)(iii) of the National Law is made.

Z520/2016: allegations in respect of patient B

1. The conduct the subject of Allegation 1 constitutes professional misconduct pursuant to sub-paragraphs (a) and (c) of the definition of professional misconduct in s 5 of the National Law.
2. The conduct the subject of Allegation 2 constitutes professional misconduct pursuant to sub-paragraphs (a) and (c) of the definition of professional misconduct in s 5 of the National Law.
3. The conduct the subject of Allegation 3 constitutes unprofessional conduct pursuant to the definition in s 5 of the National Law.
4. In respect of Allegations 1 and 2, a finding of professional misconduct pursuant to s 196(1)(b)(iii) of the National Law is made.
5. In respect of Allegation 3, a finding of unprofessional conduct pursuant to s 196(1)(b)(ii) is made.

1. Dr Gershon Cukier is reprimanded.
2. Dr Gershon Cukier's registration is cancelled with effect from 7 March 2017 and he is disqualified from re-applying for registration before 7 September 2018.

Note: Orders under section 17 of the Open Courts Act 2013 made on 29 November 2016

1. The publication of a report of this proceeding to the extent that it would disclose the name and address of the patients and/or notifiers related to this proceeding and witnesses called by the applicant in this proceeding and the publication of any information derived from this proceeding which could reasonably be expected to enable such identification, is prohibited.
2. These orders apply throughout Australia. VCAT's reasons for decisions are published on the AustLII website, which is accessible throughout Australia.
3. These orders operate until further order of the Tribunal or until the death of the last surviving of the persons referred to in Order 1 above.

1. These are proceedings under the Health Practitioner Regulation (National Law) Act 2009 (Vic) (National Law).
2. Dr Gershon Cukier is a registered medical practitioner carrying on practice as a general practitioner at his clinic in North Dandenong.
3. These proceedings are about Dr Cukier's conduct in relation to two female patients, over the course of three years, and the professional consequences of that conduct. We refer to them here as patient A and patient B.
4. In the case of patient A, Dr Cukier's conduct was the subject of criminal proceedings in March 2014 in the Magistrates Court at Melbourne. He was found guilty and convicted of two counts of indecent assault, and sentenced to five months imprisonment, wholly suspended for 12 months.
5. As a result of immediate action taken by the Board in November 2013, after notification in relation to patient A, Dr Cukier has also been working under a chaperonage condition since that time.
6. In 2015 and 2016 respectively, the Medical Board of Australia (the Board) referred allegations of professional misconduct and/or unprofessional conduct to the Tribunal concerning patient A and patient B.
7. Both referrals were heard together. By the time of the hearing before us, the parties had provided a statement of agreed facts and joint proposed findings. Dr Cukier admits the allegations and agrees to the proposed findings of four counts of professional misconduct and one count of unprofessional conduct.
8. The admitted allegations in relation to patient A are:
   • On about 31 October 2013, Dr Cukier engaged in inappropriate behaviour, including physical conduct of a sexual nature, in relation to A, during a medical consultation at Dr Cukier's place of practice, (Allegation 1 and the subject of the two counts of indecent assault).
   • Between 31 October 2013 and 1 November 2013, Dr Cukier misused his position to access A's personal information, including her telephone number and home address rang and spoke to her including asking her not to tell anyone what happened and went to her home (Allegation 2).
9. The allegations in relation to patient B are:
   • In January 2012 at his clinic in North Dandenong, Dr Cukier engaged in conduct that was inappropriate in that it was unwanted physical contact and of a sexual nature (Allegation 1).
   • On about 11 November 2014, Dr Cukier engaged in conduct that was inappropriate which involved accessing and misusing B's personal information, and placing pressure on her not to complain about his conduct (Allegation 2).
   • Between October 2011 and November 2014, Dr Cukier prescribed controlled medications to B without the necessary permits, namely buprenorphine, morphine and oxycodone (Allegation 3).
10. The parties jointly proposed that the Tribunal find the conduct in Allegations 1 and 2 (patient A) and Allegations 1 and 2 (patient B) to be professional misconduct within paragraph (a) of the definition in s 5 of the National Law.[1] They jointly propose that Tribunal find the conduct in Allegation 3 (patient B) to be unprofessional conduct.[2] We made those findings at the hearing.
11. There were then two outstanding issues:
    • Whether, as the Board submitted, some or all of the conduct falls within paragraph (c) of the definition of professional misconduct in s 5 of the National Law (paragraph (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.

• What determinations should be made under the National Law out of the available orders which include a reprimand, fine, further education, conditions on practice, suspension and cancellation.

1. We reserved our decision in relation to whether any of the conduct fell within paragraph (c). Both parties preferred and agreed to proceed with submissions on determinations, including submissions on the basis of findings either way in relation to paragraph (c).
2. The Board submits that whether or not any conduct is found to fall within paragraph (c), in all the circumstances here cancellation of Dr Cukier's registration and a two-year period of disqualification is warranted, together with a reprimand.
3. Counsel on behalf of Dr Cukier submitted that, whether or not any conduct is found to fall within paragraph (c), having regard to a number of matters including his years in practice, his level of remorse and insight, his cooperation and other matters, the appropriate determination would be a reprimand, a condition that he undertake further education and continue to be treated by his psychiatrist, but not suspension or cancellation of his registration, and that any period of suspension be either short, or itself be suspended for a period of time.
4. Both parties made written and oral submissions. Dr Cukier did not give evidence. He relied upon two reports of Dr David Leonard, his psychiatrist, who has been seeing Dr Cukier since January 2014; and a number of character references from five colleagues and friends. Other evidence before us included the patients' statements to AHPRA, the statements of patient B's husband and son, who went to speak with Dr Cukier after patient B told them of the incidents, the police brief of evidence and the transcript of the Magistrates Court proceeding.

Patient A (Z870/2015): admitted allegations and agreed facts

On or around 31 October 2013, Dr Gershon Cukier, a registered medical practitioner, engaged in professional misconduct and/or unprofessional conduct within the meaning of section 5 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (the National Law) by transgressing the professional boundaries that should, and ordinarily do, exist between a doctor and his or her patient, by engaging in inappropriate behaviour, including physical contact of a sexual nature, in relation to [A], during a medical consultation at Dr Cukier's place of practice.

1. The agreed facts in relation to Allegation 1 are:

1. Dr Cukier admits Allegation 1 in the Amended Notice of Allegations, and the particulars contained therein (Notice of Allegations). Dr Cukier admits the following facts: * 4.1. On 31 October 2013, [A] attended Dr Cukier's practice, Dr G Cukier and Associates, at Suite A, 62 Gladstone Road, Dandenong North, Victoria for a medical consultation with Dr Cukier for follow-up treatment for cracked ribs. * 4.2. At or about 9.20 am, [A] entered Dr Cukier's examination room. During the consultation with [A] on 31 October 2013, Dr Cukier: * (i) requested [A] lie on the consultation table; * (ii) locked the door to the consultation room without prior notice to [A]; * (iii) undid [A]'s belt and pulled down [A]'s pants; * (iv) placed his hand on [A]'s mons pubis region, above her underwear, and rubbed hard several times without warning; * (v) hugged [A]; * (vi) placed his hands underneath [A]'s top and rubbed her back; * (vii) exhaled deeply; and * (viii) while he was holding her, kissed [A] on the lips and said 'I've been wanting to do this for a long time.' * 4.3. Dr Cukier's conduct as described at paragraph 4.2 was sexual in nature and motivated by his sexual attraction to [A], which he failed to appropriately manage. Dr Cukier knew [A] was visually impaired and he was aware, prior to 31 October 2013, that she had a history of depression, and was a victim of domestic and sexual violence.

• 5.2 On 21 March 2014, Dr Cukier pleaded guilty to two counts of indecent assault under s 39 of the Crimes Act 1958 as in force at the relevant time, in connection with the events described at paragraph 4.2 above.

Between 31 October 2013 and 1 November 2013 Dr Cukier engaged in professional misconduct and/or unprofessional conduct within the meaning of section 5 of the National Law by transgressing the professional boundaries that should, and ordinarily do, exist between a doctor and his or her patient, by engaging in inappropriate behaviour in relation to [A], who at the time was a patient under his care.

1. The agreed facts in relation to Allegation 2 are:
   1. Dr Cukier admits Allegation 2 in the Notice of Allegations, and the particulars contained therein. Dr Cukier admits the following facts:
      • 5.1. Following the conduct described at paragraph 4.2 above, between 31 October and 1 November 2013, Dr Cukier repeatedly telephoned [A]. On the second and third occasions, [A] answered the telephone. Dr Cukier asked [A] whether she was alright and told her that she was attractive and that she made him feel comfortable. He repeated a number of times that there was 'no penetration' during his examination of her and requested she not tell anyone.
      • 5.2. On 1 November 2013, [A] rang Dr Cukier from Dandenong Police Station. The telephone call was recorded by [A]. During the call, Dr Cukier said he found [A] attractive and 'went a bit nuts and it wasn't right'. Dr Cukier apologised to [A] for scaring her and arranged to meet her later that day.
      • 5.3. On or around 1 November 2013, Dr Cukier attended at [A]'s home for non-medical purposes.
      • 5.4. In contacting [A] for non-medical purposes, Dr Cukier misused personal information to which he had access by virtue of being [A]'s treating practitioner.
      • 5.5. That in acting in the way described at paragraphs 5.1 to 5.4, Dr Cukier transgressed the professional boundaries that should, and ordinarily do, exist between a doctor and his or her patient, by engaging in inappropriate behaviour, in relation to [A], who at the time was a patient under his care.

Patient B (Z520/2016): admitted allegations and agreed facts

On or about January 2012 at his clinic in North Dandenong, Dr Gershon Cukier engaged in:

• professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b)[3] of section 5 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (the National Law); and/or
• unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law, meaning professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers,

by engaging in conduct with his patient, [B], that was inappropriate in that:

(a) it was unwanted physical contact; and/or

(b) it was of a sexual nature; and/or

(c) it was inconsistent with him being a fit and proper person to hold a registration in the profession.

1. The agreed facts in relation to Allegation 1 are:
   1. Dr Cukier admits Allegation 1 in the Notice of Allegations filed and served by the Board on 8 July 2016 (Notice of Allegations). Dr Cukier admits the following facts, namely that:
      1. [B] was a patient of Dr Cukier between 1986 and 2014.
      2. In late 2011 and early 2012, [B] attended Dr Cukier's practice for medical consultations in relation to injuries sustained at work and a related Work Cover claim.
      3. On or around 4 January 2012, Dr Cukier hugged [B] at the end of a medical consultation and called her a 'good kid'.
      4. On or around 6 January 2012, Dr Cukier again hugged [B] at the end of a medical consultation and called her a 'good kid'. The hug in this instance was tight and restricted [B]'s movement. During this hug, [B] could feel Dr Cukier's erection on her leg. [B] was fearful of Dr Cukier's behaviour.
      5. On or around 7 January 2012, [B] telephoned Dr Cukier's practice and spoke to him about the two occasions on which he had hugged her at the end of a medical consultation. Dr Cukier, during the conversation, told [B] that he had feelings for her. [B] requested Dr Cukier not to repeat his behaviour.
      6. On 19 January 2012, Dr Cukier hugged [B] for a third time. On this occasion [B] was holding her medical files to her chest. It was clear to Dr Cukier that this hug was unwanted by [B].
      7. As [B] left Dr Cukier's practice, he said 'I am so sorry [B]'.
      8. Dr Cukier's conduct as described above was sexual in nature and motivated by his sexual attraction to [B], which he failed to appropriately manage.
      9. Dr Cukier's conduct was committed in the context of his knowledge that [B] had developed major depression due to chronic pain.

On or about 11 November 2014, Dr Cukier engaged in:

• professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) of section 5 of the National Law; and/or
• unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law, meaning professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers,

by engaging in conduct with his patient, [B] that was inappropriate in that:

(a) it was for a non-medical purpose; and/or

(b) it involved accessing and misusing [B]'s personal information; and/or

(c) it placed pressure on [B] not to complain about Dr Cukier's conduct; and/or

(d) it was dishonest; and/or

(e) it was inconsistent with him being a fit and proper person to hold a registration in the profession.

1. The agreed facts in relation to Allegation 2 are:
   1. Dr Cukier admits Allegation 2 in the Notice of Allegations and the particulars contained therein, namely that:
      1. Following the conduct described above, on or about 11 November 2014, [B] telephoned the receptionist to inquire as to why Dr Cukier was required to have a chaperone present during consultations with female patients.
      2. Upon learning of this telephone call, Dr Cukier telephoned [B], having used his clinical records to access her private telephone number, and requested that [B] not make a complaint to the Police or the Board about his conduct.
      3. During the telephone call, Dr Cukier told [B] that the reason for the chaperone condition was that he had hugged a different patient. This was incorrect; the chaperone condition had in fact been imposed by the Board as a result of notification from Victoria Police that Dr Cukier had been charged with three counts of indecent assault in relation to another patient.
      4. In contacting [B] for non-medical purposes, Dr Cukier misused personal information to which he had access by virtue of being [B]'s treating practitioner.
      5. In acting in the way described at (i) - (iii) above, Dr Cukier transgressed the professional boundaries that should, and ordinarily do, exists between a doctor and his or her patient, by engaging in inappropriate behaviour, in relation to [B], who at the time was a patient under his care.

Between October 2011 and November 2014, Dr Cukier engaged in:

• professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) of section 5 of the National Law; and/or
• unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law, meaning professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers,

by prescribing controlled medications to [B] without the necessary permit.

1. The agreed facts in relation to Allegation 3 are:
   1. Dr Cukier admits Allegation 3 in the Notice of Allegations and the particulars contained therein, namely that:
      1. Between October 2011 and November 2014, Dr Cukier prescribed controlled medications (buprenorphine, morphine and oxycodone) to [B] without the necessary permit.

1. The joint proposed findings in relation to patient A are:
   1. The Board and Dr Cukier jointly submit for the Tribunal's consideration that appropriate findings in this matter are as follows:
      1. The conduct the subject of Allegation 1 constitutes professional misconduct pursuant to sub-paragraph (a) of the definition of professional misconduct in s 5 of the National Law.
         1. The conduct the subject of Allegation 2 constitutes professional misconduct pursuant to sub-paragraph (a) of the definition of professional misconduct in s 5 of the National Law.
         2. In respect of the Allegations 1 and 2, the parties jointly submit a finding of professional misconduct pursuant to s 196(1)(b)(iii) of the National Law is appropriate.

1. The joint proposed findings in relation to patient B are:
   1. The Board and Dr Cukier jointly submit for the Tribunal's consideration that appropriate findings in this matter are:
      1. The conduct the subject of Allegation 1 constitutes professional misconduct pursuant to sub-paragraph (a) of the definition of professional misconduct in s 5 of the National Law.
         1. The conduct the subject of Allegation 2 constitutes professional misconduct pursuant to sub-paragraph (a) of the definition of professional misconduct in s 5 of the National Law.
         2. The conduct the subject of Allegation 3 constitutes unprofessional conduct pursuant to the definition of s 5 of the National Law, in that he engaged in conduct that is of a lesser standard that [sic] that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers.
         3. In respect of the Allegations 1 and 2, a finding of professional misconduct pursuant to s 196(1)(b)(iii) of the National Law is appropriate.
         4. In respect of Allegation 3, a finding of unprofessional conduct pursuant to s 196(1)(b)(ii) is appropriate.
2. We agree that the proposed findings are appropriate and make them in the terms proposed.

1. The following chronology gives the sequence of the events relating to the two patients and some other matters and is relevant to our discussion in relation to the further findings sought by the Board and to determinations.

Prescribing without a permit to patient B commenced: Patient B allegation 3

Inappropriate physical conduct of a sexual nature: hugged patient B × 3: Patient B allegation 1

Indecent assault of patient A: Patient A allegation 1

Dr Cukier contacted patient A and attended at her house: Patient A allegation 2

AHPRA write to Dr Cukier regarding immediate action

Immediate Action Committee (IAC) hearing. IAC imposes conditions including chaperone condition.

Magistrates Court plea. Plea of guilty to two charges of indecent assault. Sentenced to five months imprisonment wholly suspended for 12 months.

Dr Cukier rings patient B and begs her not to report him (after patient B had telephoned the receptionist to ask why Dr Cukier was required to have a chaperone present during consultations with female patients): Patient B allegation 2.

Prescribing without a permit to patient B ends: Patient B allegation 3

Further findings: professional misconduct within paragraph (c) of s 5 of the National Law?

1. The Board submitted that appropriate further findings in this matter are:

1. The conduct the subject of Allegation 1 constitutes professional misconduct pursuant to sub-paragraph (c) of the definition of professional misconduct in s 5 of the National Law.
2. The conduct the subject of Allegation 2 constitutes professional misconduct pursuant to sub-paragraph (c) of the definition of professional misconduct in s 5 of the National Law.

1. The conduct the subject of Allegation 1 constitutes professional misconduct pursuant to sub-paragraph (c) of the definition of professional misconduct in s 5 of the National Law.
2. The conduct the subject of Allegation 2 constitutes professional misconduct pursuant to sub-paragraph (c) of the definition of professional misconduct in s 5 of the National Law.

1. Counsel on behalf of Dr Cukier submitted that the findings were not appropriate. While the allegations are undoubtedly serious, that of itself is not enough for the conduct to fall within paragraph (c). Counsel also submitted that when the whole of the circumstances were taken into account, including Dr Cukier's insight, remorse, character and cooperation, this is not conduct inconsistent with him being a fit and proper person to hold registration in the profession.
2. An issue at the hearing concerned the matters to be taken into consideration when deciding whether conduct falls within paragraph (c).
3. The issue arises from the wording of paragraph (c), which is in the present tense:

Conduct ... that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession

1. Is the conduct to be considered objectively, without regard to the practitioner's personal circumstances? Is the question to be answered by looking at the conduct at the time it occurred or is it a present time decision taking into account matters which have become evident since that time, including insight and remorse? Is it the same or different to the considerations taken into account when deciding whether the practitioner is or is not fit and proper to practice for the purpose of determinations? To what extent is there any overlap between the two inquiries?
2. Counsel for the Board submitted that insight and remorse are not relevant to a finding under paragraph (c): the focus is on the conduct - the behaviour that is the subject of the referral; while there may be some crossover and the subjective as well as objective circumstances of the behaviour may be taken into account, nevertheless the focus is still on the conduct at the time.
3. Counsel for Dr Cukier submitted that the decision as to whether conduct is professional misconduct within paragraph (c) is one that has to be made at the present time, taking into account matters that have happened since and who the practitioner is now, including the practitioner's insight, remorse, character and cooperation.
4. While the matter is not free from doubt, we decided, at the hearing, to approach the matter in the way submitted by Counsel for Dr Cukier, although we have approached the evidence about character with caution for the reasons we discuss in more detail in relation to determinations.
5. In our view, while the focus is, clearly, on the conduct, it is appropriate to take into account objective and subjective circumstances, including any understanding of those circumstances which has become available. While other decision-makers may of course take a different approach, in this case we allowed submissions in relation to matters such as insight and remorse.
6. We give more detailed reasons for our view here.
7. A finding of professional misconduct under paragraph (c) is clearly a serious matter - on its face it is the most serious of the three limbs of the definition - and is likely to concern conduct that goes to the heart of whether a person is fit and proper to practise or which might be regarded as likely to disqualify a person from holding registration.
8. As observed in Medical Board of Australia v Wong [2015] QCAT 439 (Wong), at [84], if such a finding is made, cancellation of registration will be almost inevitable, although not, we add, automatic. There is a distinction between a finding of professional misconduct under paragraph (c) and a finding for the purpose of determinations that a person is not at the time of hearing fit and proper to practise.
9. As submitted on behalf of the Board, a Tribunal may find that the conduct is inconsistent with the person being a fit and proper person to hold registration but may decide not to cancel or suspend, where, for example, there has been a period of substantial delay in bringing the proceedings and no re-offending, or there were exceptional circumstances explaining the conduct.
10. In Wong for example, Dr Wong had long-standing mental illness and had been declared mentally unsound at the time of a series of alleged sexual assaults. In Medical Board of Australia v Black,[4] the conduct, possessing child exploitation material, was found to be conduct falling within the paragraphs (a), (b), and (c) but, in the circumstances set out in the decision the Tribunal did not cancel Dr Black's registration.
11. While, clearly, the focus of the definitions in the three paragraphs is on the conduct, the language of paragraph (c) - 'the conduct is [present tense] inconsistent with the practitioner being [present participle)...' - strongly suggests that while the conduct itself is the focus, a present-time assessment is carried out in order to determine whether the conduct falls within paragraph (c).
12. We include for completeness the discussion of the requirements of paragraph (c) by the Queensland Civil and Administrative Tribunal in Wong.
13. In Wong, QCAT considered what is required in order to find professional misconduct within paragraph (c), and at [84]-[86] made the following observations:
    • [84] In this matter, the Tribunal's focus must remain firmly fixed on the statutory definition of professional misconduct in the third limb. That definition requires, in order for the Tribunal to find professional misconduct, that Dr Wong's conduct is inconsistent with him being a fit and proper person to hold registration. If the Tribunal were to find professional misconduct on that basis, then the cancellation of his registration would be almost inevitable. Not cancelling a practitioner's registration would seem inconsistent with having found his or her conduct to be inconsistent with him or her being a fit and proper person to hold registration. This may be contrasted with cases in which there is a finding of professional misconduct on some basis, and the question then arises whether the practitioner is fit and proper to be or remain registered.
    • [85] A Solicitor v Council of the Law Society NSW,[5] although a case of the latter kind, emphasised in assessing fitness for practice 'the importance that may attach to a consideration of the detailed subjective and objective circumstances of the offending behaviour'.[6] In my view, applying that observation to this case and the third limb of the definition of professional misconduct in the National Law, requires consideration of whether Mr Wong's offending conduct, when the detailed subjective and objective circumstances of it are taken into account, is inconsistent with him being a fit and proper person to hold registration.
    • [86] Approached in this way, I am of the opinion that his conduct is not inconsistent with him being a fit and proper person to hold registration. Even if viewed at the time at which the offending conduct occurred, but with the benefit of an understanding of the circumstances which is now available, I would not conclude that his conduct was inconsistent with him being a fit and proper person to hold registration. I would conclude that he was not then a fit and proper person to be engaged in practice; but that is not the test.[7]
14. In disciplinary proceedings in which the allegations are serious, which these are, the Tribunal's approach to the making of findings follows that set out in Briginshaw v Briginshaw.[8]
15. The following passages from Briginshaw[9] articulate the relevant principles:

The truth is that, when the law requires the proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.

No doubt an opinion that a state of facts exists may be held according to infinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal.

But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal.

In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

1. It is well accepted that Briginshaw did not create a different standard of proof for serious allegations in civil cases.[10] But a finding that a person has engaged in fraudulent, criminal or other serious conduct should not be made lightly - it should not be based on 'inexact proofs, indefinite testimony or indirect inferences'. As Rich J observed at p 350:

The nature of the allegation requires as a matter of commonsense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the Tribunal has reached both a correct and just conclusion.

1. We have carefully considered the objective and subjective circumstances in this case, with Briginshaw[11] in mind.

1. In relation to patient A allegation 1, we find that the conduct falls within paragraph (c) for the following reasons.
2. Objectively, indecent assault of a patient during a consultation is of itself conduct inconsistent with being a fit and proper person to hold registration as a medical practitioner. As submitted by the Board, apart from being a criminal offence, it is a gross breach of trust and a serious and substantial boundary violation. Further, it is a physical violation of the patient.
3. The Board's Code of Conduct for doctors (version retired March 2014) reinforces the need for doctors to conduct themselves with integrity. Principle 3.2 states:

A good doctor-patient partnership requires high standards of professional conduct. This involves:

3.2.6 Recognising that there is a power imbalance in the doctor-patient relationship, and not exploiting patients physically, emotionally, sexually or financially.

1. The particular circumstances in this case strengthen the matter, in our view. Patient A was particularly vulnerable. Not only was she vision-impaired, probably as a result of a stroke,[12] but she had also suffered domestic and sexual violence, which Dr Cukier knew. She was receiving follow up treatment for cracked ribs. He locked the door to the consultation room without prior notice. Details of what he did then are in the agreed facts. In her sentencing remarks[13] the Magistrate accepted that after standing up patient A indicated she wished to leave and that it was at that point Dr Cukier hugged and kissed her.
2. It is apparent from the statements to police of patient A and her friend who took her to the police station that patient A was distressed and terrified. It is clear that the conduct had a serious impact on her, particularly in the context of her past experience of sexual violence.
3. We know very little of what was in Dr Cukier's mind at the time. In his first report, in March 2014, Dr Leonard stated:

Dr Cukier does not suffer from a psychiatric illness which might explain his behaviour but he has for some time been operating in a stressful situation. Without going into any details he has had a difficult marital and relationship situation for some time and had recently experienced a relationship breakup. Despite a rather difficult marriage which effectively ended ten years ago he has maintained support for his former wife and for his daughters.

1. The bare information that Dr Cukier had had marital difficulties and a relationship breakup does not provide any meaningful explanation for the conduct in our view. Many medical practitioners operate in stressful environments. There is evidence that Dr Cukier felt attracted to patient A but again, putting aside the fact that practitioners are expected to manage any such feelings appropriately, that would not explain an indecent assault.
2. The circumstances include that Dr Cukier was in his late 60s and had been in practice for over forty years. He is not inexperienced and there is no suggestion that he was immature.
3. There is evidence that Dr Cukier was remorseful after the incident. He gave a full and frank response to police and expressed contrition and embarrassment. As his Counsel submitted, he expressed remorse to patient A when he made contact with her and asked her if she was alright, which indicates some concern for her, although his actions in the consultation room indicate the opposite. On the other hand he also asked her not to tell anyone, which indicates self-interest.
4. We do not agree with the submission on Dr Cukier's behalf that his payment to patient A in (confidential) settlement of the civil proceedings she brought indicates remorse. It might equally indicate self-interest.
5. As we discuss later, we were troubled by the evidence of remorse in this case. Dr Cukier had made similar apologies to patient B 18 months earlier, appeared remorseful when she asked him to stop, and then repeated the conduct. Despite being confronted with the impact on patient B, he engaged in even more serious conduct in relation to patient A.
6. Similarly with the evidence of insight, discussed later. In short, despite statements on his behalf that he has insight into the conduct and the impact on patient A, we were not persuaded that Dr Cukier understands how or why this conduct occurred.
7. Apart from expressing the conclusion that Dr Cukier has insight, none of the statements provide any meaningful detail of Dr Cukier's own understanding of why it happened. Nor is there sufficient other evidence for us to reach any view that might mitigate the seriousness of the conduct.

1. Transgressions of professional boundaries cover a spectrum of conduct. Making contact with a patient by calling her at home for personal rather than professional reasons might well be misconduct but it is unlikely, of itself, to be conduct inconsistent with being fit and proper. Much will depend on the circumstances.
2. In the particular objective and subjective circumstances of this case, and in the context of the conduct the subject of allegation 1, we consider that the conduct in allegation 2 falls within paragraph (c) for the following reasons.
3. After indecently assaulting her, Dr Cukier repeatedly telephoned A. He went to her home. Whatever his purpose, it was distressing to her and there is strong evidence that she was frightened by it. The statements he made to her, as set out in the agreed facts [5.1] are bizarre including insisting that there was no penetration. Whether or not he was concerned that she was alright, it is significant in our view and relevant to the finding that he asked her not to tell anyone. To do so was directly contrary to her well-being and interests, and can only be seen as self-interest on his part.
4. His actions show a lack of insight at the time. As discussed above, we were not able to be satisfied that he has insight now.
5. As discussed above we were troubled by the evidence of remorse. In her sentencing remarks, the Magistrate stated that:

there was an aggravation where [Dr Cukier] then sought to ring [patient A] and attend at her home even for the purpose of seeing she was alright, it was yet another example of professional boundaries being breached.

1. The fact that making contact with patient A was a transgression of boundaries and an aggravation was squarely raised in the criminal proceedings in March 2014. And yet Dr Cukier repeated the conduct in November of that year when he inappropriately made contact with patient B. These matters suggest that Dr Cukier's remorse has more to do with the personal consequences to him.

1. The conduct in question is unwanted physical contact of a sexual nature which was repeated despite patient B asking after the second occasion that it stop.
2. As submitted by the Board, the conduct involved a gross breach of trust. Dr Cukier misused his position and the power imbalance to exploit his patient. We refer again to principle 3.2 of the Code of Conduct.
3. To Dr Cukier's knowledge, his patient was suffering chronic pain and depression. She was vulnerable physically and psychologically. To engage in the conduct at all is serious. To then repeat it after being asked, clearly, not to do it again brings the conduct squarely within paragraph (c) in our view.
4. There is no doubt that the conduct had a profound impact on her.
5. We were not satisfied that Dr Cukier's expressions of remorse in relation to patient B were meaningful, nor were we persuaded about insight. Despite his apologies to B and to her husband and son at the time, 18 months later he engaged in even more serious conduct in relation to another patient. This weighs against a conclusion in his favour about these matters. His conduct in November 2014 strengthens our view in this respect.
6. We find the conduct to be within paragraph (c).

1. The relevant circumstances, objective and subjective, include the following.
2. At the time of the conduct, in November 2014, Dr Cukier had been subject to immediate action following the notification to AHPRA by Victoria Police in relation to patient A, had been convicted and sentenced in the Magistrates Court, and was serving a suspended sentence.
3. We refer above to the Magistrate's remarks about the aggravation involved in his contact with patient A after the assault. Dr Cukier can have been in no doubt that contact with patient B would be wholly inappropriate. He misused personal information in patient records to make the contact.
4. Further, as the Board submitted, he put unfair pressure on her not to report him to the Board. Making the contact at all showed, in our view, an astonishing lack of insight into the impact it might have on her. Attempting to persuade her not to report him to the police or to the Board aggravates the conduct. It is not the conduct of a person fit and proper to hold registration as a medical practitioner.
5. Further he was dishonest with her in telling her that the reason for the chaperone condition was that he hugged another patient. As the agreed facts state, it was imposed by the Board as a result of notification from Victoria Police that Dr Cukier had been charged with three counts of indecent assault in relation to another patient.
6. We had no evidence from Dr Cukier that might have provided a more favourable explanation for his conduct than pure self-interest. We note that, although Dr Leonard was by then aware of the allegations in relation to patient B, including allegation 2, he does not refer specifically to this conduct in his second report in September 2016, although it occurred after the criminal proceedings, is a repetition of previous conduct and is clearly significant.
7. The weight of any statements about remorse and insight are greatly reduced in the circumstances.
8. We find that the conduct is professional misconduct within paragraph (c).

1. Both parties agreed that a global penalty should be imposed across all findings arising from the two referrals which were heard and determined together, including the finding of unprofessional conduct in relation to prescribing without a permit.
2. We agree with the Board's submission that Dr Cukier's behaviour in the two cases has many common features, including unwanted physical contact with female patients, which was sexual in nature and apparently motivated by sexual attraction. In both cases Dr Cukier used his trusted position to access their personal information and contact them.
3. As in the case of Nursing and Midwifery Board of Australia v Singh [2014] VCAT 1627, 'it would be artificial to impose separate penalties in relation to the conduct relating to each of the... Complainants, particularly given the focus in this jurisdiction on the protection of the public'.

In Pharmacy Board of Australia v Dougherty[14] at [9], the Tribunal stated the following principles as relevant to the imposition of a determination:

• The imposition of discipline may serve any or all of the following purposes:
  • preventing practitioners who are unfit to practise from practising
  • securing the maintenance of professional standards
  • assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct (or unprofessional conduct) will not be tolerated
  • bringing home to the practitioner the seriousness of their conduct
  • deterring the practitioner from any future departure from appropriate standards
  • deterring other members of the profession who might be minded to act in a similar way
  • imposing restrictions on the practitioner's right to practice so as to ensure that the public is protected.

1. It is well established that the Tribunal's power to make an order with respect to penalty is primarily protective although it will, necessarily, have a punitive effect. The available sanctions are by their nature punitive, and the objectives of special and general deterrence - which serve the protection of the public - depend upon the sanctions having punitive effect.[15]
2. As submitted on behalf of Dr Cukier, in relation to specific deterrence regard is had to the extent to which the practitioner displayed insight into his wrongdoing,[16] which is relevant to the continuing risk posed by practitioner. In relation to general deterrence, regard is had to the extent to which it is important to send a clear signal to other practitioners that engaging in such conduct will have serious consequences.
3. In Honey v Medical Practitioners Board of Victoria [2007] VCAT 526 at [41]-[61], the Tribunal discussed the difference between the determinations of suspension and cancellation and stated as follows:

The major difference between a suspension and cancellation is that once the doctor's registration is cancelled, he must reapply after the period specified. It is not guaranteed that he will be so re-registered. He must satisfy the Board that registration is appropriate and that he fulfils the qualifications for general registration...

Cancellation of registration sends a clear message of unsuitability to practice. Suspension may be thought to indicate confidence in the doctor's future ability to practise once the period of suspension is served.

There are some cases in which it is abundantly clear that deregistration is the only option available to protect the public from a miscreant doctor.

This is apparent in situations in which the practitioner does not accept the inappropriateness of his conduct or has been shown to be a serial offender.

1. As submitted on behalf of Dr Cukier, he has cooperated with the Board in respect to these proceedings including by entering into an agreed statement of facts and a joint submission as to proposed finding. By doing so he has avoided the need for either patient to attend the hearing or give evidence. We give him credit for doing so.
2. It was also submitted on his behalf that Dr Cukier has shown considerable remorse and insight in relation to these events by the following:
   • He apologised to patient B immediately after the third incident in January 2012, and apologised for the incidents to B's husband and son.
   • On 1 November 2013, the day after the incident with patient A, he called her and apologised telling her that his conduct "wasn't right".
   • On 2 November 2013, when first confronted by police with patient A's allegations, Dr Cukier admitted all the alleged actions and admitted that "it was completely inappropriate for me to have done that".
   • Consistently with these admissions, Dr Cukier pleaded guilty on 21 March 2014 to two counts of indecent assault, which meant that patient A was not required to attend court or give evidence.
   • When provided by the AHPRA investigator with the allegations by patient B, Dr Cukier wrote to AHPRA on 22 June 2015 and among other things stated that his action was completely inappropriate and he took full responsibility for what he had done, and that he had realised how inappropriate and foolish his actions were, that he profoundly regretted what he did, could only apologise for his action, had full insight into it and has learnt of the disastrous consequences that can occur after such a lapse of judgement.
   • Since January 2014, Dr Cukier has been attending upon Dr David Leonard, psychiatrist, who has seen him in excess of 30 occasions and will continue to see him. The purpose of the sessions has been to discuss the transgressions of Dr Cukier and to build an understanding as to how they have arisen and their impact, and to ensure that such behaviours never occur again.
3. We agree that Dr Cukier has repeatedly admitted that his conduct is wrong and has taken responsibility for it in the criminal proceedings and in these disciplinary proceedings. What remains unexplained however is why it happened and, most importantly in this case, why it was repeated. In patient B's case, it was repeated despite her asking that it stop. Despite apologies to patient B and her family, the conduct was repeated in relation to patient A. In other words, Dr Cukier appears to know that the conduct is wrong but does not appear to be able to stop himself from doing it. If, as Dr Leonard opines, Dr Cukier does not have a psychiatric illness that might explain his conduct then why did it happen?
4. Dr Leonard's reports do not sufficiently enlighten us about these matters. Nor do the character statements provided. We discuss Dr Leonard's reports first.
5. As submitted on Dr Cukier's behalf, there are two reports from Dr Leonard and in both Dr Leonard expresses the opinion that Dr Cukier has shown a very good appreciation and insight into his actions; has recognised that what he did was totally unacceptable; has a full understanding of the impact he has had upon the two patients concerned; is horrified by what he has done; and does not seek to justify his behaviour or explain it away in any fashion. As submitted, Dr Leonard's opinion is that these episodes are quite at odds with Dr Cukier's usual behaviour.
6. In his first report of 12 March 2014 Dr Leonard wrote that Dr Cukier had shown a 'good appreciation and insight of the impact of his actions upon the person concerned', and that the behaviour was 'totally out of keeping with his normal high standards', and 'I believe it is highly unlikely that Dr Cukier will offend again. His behaviour was quite out of character with his previous behaviour...'
7. We agree with the submission on behalf of the Board that the weight of Dr Leonard's opinion as expressed in the first report is reduced because at the time Dr Leonard was unaware of the earlier inappropriate behaviour in respect of another patient, as Dr Cukier had not disclosed it.
8. An isolated one-off incident may well be described as out of character. Where the conduct is repeated, and the repetition is unexplained, it begins to look more like a pattern of behaviour that arises out of a person's character. In other words, the fact that such conduct has been repeated despite expressions of remorse along the way is suggestive of a character that is deeply flawed.
9. Dr Leonard's second report dated 21 September 2016 indicates that by the time he had read it he was aware of the second notification but, apart from using the plural - 'transgressions', 'these episodes' - expresses essentially the same opinion.
10. As submitted on behalf of the Board, Dr Leonard does not explain in any detail why learning of the allegations of inappropriate physical contact of a sexual nature with patient B, which were earlier in time, has not altered his opinion. Nor does his report provide any evaluation of the significance of the conduct being repeated; or any specific mention of the fact that Dr Cukier reoffended in November 2014 in that he contacted patient B and tried to dissuade her from reporting him.
11. Further, while the reports express the conclusion that Dr Cukier has insight into his own actions, no account is provided of what that insight comprises.
12. We also observe that, as submitted on behalf of the Board, the usual protective effect of continuing treatment was absent here: the fact that Dr Cukier had been seeing Dr Leonard since January 2014 did not prevent him engaging in serious conduct in November 2014.
13. We are mindful that the Board did not seek to cross-examine Dr Leonard, and we give his opinion some weight, but it is our responsibility to make an assessment of the relevant matters on the whole of the evidence before us: we cannot delegate our role in this respect. In circumstances where Dr Cukier has elected not to give evidence, we are left with the evidence before us, in respect of which there remain important, unanswered questions.
14. We have approached the character references in this case with some caution. As submitted on behalf of Dr Cukier, the referees have had an opportunity to assess Dr Cukier's level of remorse and insight, and in most cases state they have had detailed discussions with him about his conduct. They uniformly express the opinion that he has insight and remorse and that his conduct was out of character and will not be repeated.
15. We appreciate that the referees, who include senior members of the profession, have given their opinions based on their own experience of Dr Cukier and that their opinions are genuinely held, based on that experience. The reasons for our caution include that four of the referees provided references before the 2014 criminal proceedings, in which they refer to only one patient, and again more recently, in which they refer to two patients; and the references are very much in the same terms, without any evaluation of the significance of the conduct being repeated.
16. The weight of the earlier references is reduced, in our view, by the fact that it is apparent that the referees were not aware that Dr Cukier had engaged in similar conduct with another patient; and it was not apparently disclosed by him, even to those who had a longstanding personal friendship with him as well as professional association. The weight of the later references is reduced, in our view, by the fact that the referees make no mention of what might be the significance of the conduct being repeated: the references give the impression that they have been updated but not re-thought in light of the new information.
17. Further, as submitted by the Board, while some weight can be given to the opinions of those who have knowledge and experience of Dr Cukier, it is for the Tribunal to make its own assessment of such matters as insight, remorse and the risk of reoffending.
18. In this case, the fact that the conduct - inappropriate physical conduct of a sexual nature and inappropriate contact with the patient afterwards - has been repeated raises the level of risk of reoffending.
19. Further, the fact that there has been repetition of inappropriate contact with patient B after disciplinary action and criminal proceedings in relation to patient A, and while Dr Cukier was serving a suspended sentence of imprisonment, raises a real concern that insight is absent and expressions of remorse are not genuine. We refer to and repeat the observations about insight and remorse made above in relation to characterisation of the conduct.
20. We accept that Dr Cukier has not since October 2013 repeated the conduct of inappropriate physical and sexual contact with patients. As the Board submitted, however, the fact that he has been chaperoned since immediate action was taken in November 2013 means that it is not possible to assess what his conduct might have been had he not been chaperoned.
21. We accept the evidence that Dr Cukier is a very experienced GP, with highly developed clinical skills, and that he has earned a reputation of being professional and caring. But he has engaged in serious conduct that is the opposite of professional and caring in respect of two patients in his care, with profound impact on them in each case.
22. We appreciate that any sanction that removes him from practice will have an impact on his other patients but protection of the public, including his female patients, is a more important factor. We accept that he has been of value to the Dandenong community. Ultimately however, it is to the longer term benefit of patients in that community that they are protected from conduct which has the potential to do great harm to them.
23. The fact that Dr Cukier has considerable financial commitments is not a factor that weighs in a consideration of what is required to protect the public.
24. Apart from the importance of specific deterrence, general deterrence is important in this case. Medical practitioners are in a position of considerable trust. It is essential that other members of the profession clearly understand that conduct such as this cannot be condoned or excused.
25. Further, public confidence in the regulatory system must be maintained. Public confidence is ensured by the maintenance of proper professional standards, and the denunciation of serious breaches of those standards
26. We were referred to a number of other cases for comparison purposes which, although not identical, have some similar features:
    • Health Care Complaints Commission v Priyamanna No 2 [2016] NSWCATOD 3. In that case the practitioner engaged in inappropriate conduct of a sexual nature during an examination of a patient, and was found to lack any significant insight. There had been an earlier finding in Queensland of unprofessional conduct concerning his examination of four female patients, but no findings of inappropriate behaviour of a sexual nature. The practitioner's registration was cancelled and the practitioner disqualified for a period of two years.
    • Nursing and Midwifery Board of Australia v Singh [2014] VCAT 1627. In that case, a psychiatric nurse inappropriately touched, hugged and kissed three female patients, and made inappropriate comments of a sexual nature. Positive references were tendered and three and a half years had passed with no further complaints. The practitioner's registration was cancelled and the practitioner disqualified for 20 months.
    • Medical Board of Australia v Veettill [2015] WASAT 124 (S). The practitioner breached professional boundaries when, after a visit as a locum, he telephoned a patient and attended at her home, on the final occasion he sexually assaulted her while conducting an examination, which was found to be professional misconduct. There was no separate allegation of using his privileges to access her personal information. The practitioner had limited insight, but had been under significant stress of the time, and the incident of professional misconduct was isolated. At the time of the determination, in February 2016, the practitioner had been effectively suspended since June 2014. The Tribunal imposed an additional 12 months suspension with conditions.
27. While every case is different, we found the above to provide useful comparison.
28. Other cases referred to, such as Medical Board of Australia v Dr ZOF (No 2) [2015] VCAT 379, and Medical Board of Australia v Smith [2016] VCAT 243, concerned practitioners who had entered into personal and sexual relationships with patients (in the case of Smith, with a patient's mother). While the conduct in those cases was serious, and found to be professional misconduct, those cases were less analogous to Dr Cukier's case, where the conduct was not in any sense mutual and more in the nature of an assault.

1. Taking into account the above matters, in all the circumstances we consider that cancellation of Dr Cukier's registration and a period of disqualification is required. We are unable to feel the confidence in his future ability to practise that a suspension would indicate: we do not have confidence in his level of insight into his offending, and we retain concerns about remorse given that past expressions of remorse have not prevented him from reoffending - we have been left with the strong impression that any remorse is based more on the consequences for himself. We consider that his contact with patient B in November 2014 and his attempts to pressure her into not reporting him indicate that he has no appreciation of the impact of his conduct on the victims of it.
2. Rather than being conduct that is out of character, the repetition both of inappropriate conduct of a sexual nature and inappropriate contact with the victim afterwards indicates to us that there is in fact something in his character that led to the conduct occurring. We are not able to assess the risk of reoffending as low in circumstances where the repetition is unexplained.
3. We agree with the submission on behalf of the Board that continued registration with conditions, such as a chaperone condition, would not be appropriate. As submitted, if a practitioner is unfit to see half the population unsupervised, he or she is not fit to hold registration. We note in this respect the remarks of the New South Wales Court of Appeal in HCCC v Litchfield [17] (referring to an earlier decision):

The majority thus found that the appellants could not be trusted to observe the proper professional standards in his conduct towards female patients unless a female chaperone was present throughout. With the greatest of respect the necessity for imposing such conditions on the appellant's registration demonstrated that he was unfit to practice medicine...

1. Nor were we satisfied that other conditions, such as further education and/or further treatment were appropriate in the circumstances, and they would not in any event meet the need for general deterrence and maintaining professional standards and public confidence in those standards.
2. In our view, a period of 18 months disqualification from re-applying for registration is appropriate and warranted. In fixing that period, we have taken into account Dr Cukier's cooperation with the Board in this matter and given him credit for having saved the complainants from attending; those matters reduce the period of disqualification which would otherwise have been imposed.
3. We also consider that, as agreed, a reprimand is appropriate to signal that the conduct is denounced.
4. As noted above we are imposing a global penalty in this case. The determination of cancellation arises from the conduct in allegations 1 and 2 in respect of each patient. The reprimand is also the appropriate determination in respect of allegation 3 in respect of patient B, which is unprofessional conduct. As submitted on his behalf, Dr Cukier has admitted that he overlooked the need to get a permit for the prescription of the controlled medications; it is not suggested the prescriptions were otherwise inappropriate; these offences have not been repeated and proper attention has been given to ensuring permits have been obtained. Nonetheless a reprimand is appropriate.
5. We make it clear that our orders in respect of determinations would have been the same whether or not the conduct was found to be professional misconduct under paragraph (c) or limited to the findings to professional misconduct under paragraph (a) of the definition of professional misconduct in s 5 of the National Law.
6. As discussed at the hearing, the orders will not take effect immediately to enable Dr Cukier to make orderly arrangements for his patients.

[1] '(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.'

[2] 'professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers.'

[3] Clarified and confirmed in the hearing to be (c), not (b).

[4] [2016] VCAT 892.

[5] [2004] HCA 1; [2004] 216 CLR 253.

[6] [Fn 29] [2004] HCA 1; (2004) 216 CLR 253 at [22].

[7] Medical Board of Australia v Wong [2015] QCAT 439, [84]-[86].

[8] [1938] HCA 34; (1938) 60 CLR 336.

[9] [1938] HCA 34; (1938) 60 CLR 336, 361-2 (Dixon J) [spacing inserted for emphasis].

[10] See Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; see also Karakatsanis & Anor v Racing Victoria Ltd (2013) VSCA 305 (29 December 2013), [29] and [37].

[11] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[12] TB 17 Submissions to IAC on behalf of Dr Cukier.

[14] [2014] SAHPT 6.

[15] Stirling v Legal Services Commissioner [2013] VSCA 374, [57].

[16] Stirling v Legal Services Commissioner [2013] VSCA 374, [60].

[17][1997] NSWSC 297; (1997) 41 NSWLR 630 at 639. See also HCCC v Priyamanna No 2 [2016] NSWCATOD 3 [36(5)]