Health Practitioner Regulation National Law (Victoria) Act 2009 - in operation from 1 July 2010 - National scheme for the registration of health practitioners - transitional provisions - whether notification given pursuant to section 42 (1) of the Health Professions Registration Act 2005 a notification for the purposes of section 289 (2)(a) of the Health Practitioner Regulation National Law (Victoria) Act 2009 - whether the applicant had started but not completed dealing with a notification pursuant to section 289(1) of the Health Practitioner Regulation National Law (Victoria) Act 2009 - if so whether the applicant was the correct party to maintain the proceeding - provisions of the Health Practitioner Regulation National Law (Victoria) Act 2009 not stated to be retrospective - intention of the legislature to create a transitional interregnum permitting the applicant to bring the proceeding as the correct party where it had started but not completed dealing with the notification - proceeding before the VCAT consistent with non-completion

Medical Practitioners Board of Victoria v Hafizullah (Occupational and Business Regulation) (Correction) [2010] VCAT 2126

1. The further hearing is adjourned to a date to be fixed.

1. Before the Tribunal is a referral made by the applicant pursuant to section 59 (2) (g) of the Health Professions Registration Act 2005 alleging that the conduct of the respondent amounted to unprofessional conduct and/or professional misconduct pursuant to the provisions of the Medical Practice Act 1994 and the Health Professions Registration Act 2005.
2. Mr Maidment SC appeared for the applicant. Mr Richardson of counsel appeared for the respondent. Dr Freckleton SC was given leave to make submissions to the Tribunal on behalf of the Australian Health Practitioner Regulation Agency.
3. The following evidence was adduced before the tribunal:
   • Mr Rayment, chief executive officer of the hospital gave evidence and was cross-examined.[1]
   • Nurse M, nurse gave evidence and was cross-examined.
   • Nurse D, nurse gave evidence and was cross-examined.
   • Mr H, nurse gave evidence and was cross-examined.
   • Dr Christie, medical administrator gave evidence and was cross-examined.
   • The applicant tendered the following evidence:
     • the Tribunal Book ("TB") comprising two volumes of material: Exhibit A
     • a summary of the evidence of Dr Christie: Exhibit B
     • a floor plan of the accident and emergency Department: Exhibit C

1. The respondent is a legally qualified medical practitioner. He was employed at the Swanhill District Hospital ("the hospital") from 12 October 2004 until 14 April 2008 when his employment was terminated.
2. The termination stemmed from allegations made against the respondent that he engaged in conduct which the hospital considered was prolonged, very serious and wilful misconduct principally based upon allegations made by two nurses employed by the hospital.[2]
3. Dr John Christie, medical administrator of the hospital informed the applicant by letter dated 21 April 2008 that the respondent's employment had been terminated, and the basis for the termination.[3] The relevant part of that letter is as follows:

"Dr Hafizullah's employment was terminated as a consequence of allegations of sexual harassment made against him. An investigation by a Principal Legal Practitioner from the Victorian Hospitals' Industrial Association (VHIA) resulted in a finding of serious and wilful misconduct."

1. Ms Kelsey, manager of the professional conduct department of the applicant replied to Dr Christie advising him of the applicant's role in investigating complaints into medical practitioners. She requested information relevant to the allegations of sexual harassment and the findings and recommendations which arose out of the investigation into the respondent's conduct.[4]
2. Dr Christie complied with the request for information by forwarding a copy of the investigation report to Ms Kelsey.[5]
3. Following the receipt of that information the applicant wrote to the respondent by letter dated 18 June 2008 advising him that it intended to conduct an "own motion" investigation into his professional conduct pursuant to section 47 of the Health Professions Registration Act 2005,[6] which is in the following terms:

notification if the responsible board believes that

there is evidence of any of the matters referred to

relating to a student without a notification if the

of any of the matters referred to in section 42(2).

1. Dr Christie's letter dated 21 April 2008 was the commencing point of an investigation into the respondent which also involved the applicant taking the following steps - firstly, writing a letter to the respondent dated 18 June 2008, and writing letters to Mr H, nurse dated 5 August 2008; Nurse M, dated 5 August 2008 and Nurse D,[7] dated 5 August 2008.[8]
2. Nurse D and Nurse M were the nurses employed by the hospital who allege that they suffered unwarranted attention by the respondent which resulted in the investigation which led to the termination of the respondent's employment.
3. Although the applicant appears not to have treated Dr Christie's letter dated 21 April 2008 as a "notification" pursuant to section 42 (1) alleging unprofessional conduct and/or professional misconduct there is no doubt that it was the trigger to the own motion investigation by the applicant.
4. The relevant parts of section 42 (1) are in the following terms:

"(1) A person may notify a responsible board about any matter relating to a registered health practitioner if the person believes it indicates that -

(a) the health practitioner's ability to practise as a health practitioner may be affected because -

(i) of the physical or mental health of the health practitioner; or

(iii) the health practitioner is an alcoholic or drug-dependent person; or

(b) the health practitioner may have engaged in unprofessional conduct; or

(c) the health practitioner may have engaged in professional misconduct; or

(d) the professional performance of the health practitioner may be unsatisfactory; or

(e) the health practitioner is not of good character."

1. One of the preliminary issues which the Tribunal is required to determine is whether the hospital gave a notification pursuant to section 42 (1).
2. It is convenient to deal with that issue at this point. The word "notification" referred to in sections 42(1) and 47(1) is not defined in the Health Professions Registration Act 2005.
3. To be a notification there must be an intention on the part of the notifier to make a notification pursuant to section 42 (1), consistent with the subject matter dealt with by section 42 (1).
4. The Tribunal considers that Dr Christie's letter dated 21 April 2001 was a notification for the following reasons:
   • Dr Christie knew that the investigation commissioned by the hospital into the respondent's conduct concluded that he was guilty of serious and wilful misconduct.
   • Dr Christie must have known that the Health Professions Registration Act 2005 contained a notification provision (section 42 (1)) which permitted notification in the discretion of the notifier where the notifier considered that the medical practitioner had engaged in unprofessional conduct or professional misconduct.
   • Dr Christie must also have known that giving a notification would trigger an investigation by the applicant to determine whether there was any merit in the notification, and if so, would result in the applicant undertaking an investigation as it was obliged to do pursuant to section 46 (1).
5. The applicant could have been in no doubt that Dr Christie's letter of 21 April 2008 was a notification pursuant to section 42 (1). The mere fact that it decided to conduct an own motion investigation pursuant to section 47 (1) rather than an obligatory investigation pursuant to section 46 (1) cannot derogate from the fact that the step taken by Dr Christie in writing the relevant letter amounted to a notification, which thereafter remained a notification.
6. Mr Freckleton referred the Tribunal to a number of authorities which are relevant and which dealt with whether a notification continues to be dealt with under legislation which the notification was made or under successor legislation.[9]
7. The submissions made by Mr Freckleton that the notification continues to be dealt with under the legislation applying to the notification is a correct statement of the law binding upon the Tribunal. Eames J arrived at a different conclusion in McGrath v The Medical Practitioners Board of Victoria, however, the subsequent authorities which Mr Freckleton referred to reveal that the same issue was ventilated before the other Judges seized of the same issue who consistently reached a conclusion consistent with the submission made by Mr Freckleton.
8. The Tribunal considers that the weight of authority in favour of that submission is the law which the Tribunal is obliged to apply.

Section 289 of the Health Practitioner Regulation National Law (Victoria)

1. The fact that the Tribunal considers that Dr Christie's letter of 21 April 2008 was a notification is of importance in this proceeding because of the provisions of the Health Practitioner Regulation National Law (Victoria) Act 2009, and in particular, section 289 which is the relevant transitional provision.[10]
2. Something needs to be said about the Health Practitioner Regulation National Law (Victoria) Act 2009 before the Tribunal proceeds any further.
3. The Health Practitioner Regulation National Law (Victoria) Act 2009 came into operation on 1 July 2010. Section 1 provides that the purpose of the Act is to provide for the adoption of a national law to establish a national registration and accreditation scheme for health practitioners.
4. Section 289 is in the following terms:

" (1) This section applies if, immediately before the participation day for a participating jurisdiction, a local registration authority for the jurisdiction had started but not completed dealing with a complaint or notification about a person registered in a health profession by the authority.

(a) the complaint or notification is taken to be a notification made under this Law and is to be dealt with by the National Board for the health profession; and

(b) the notification is to continue to be dealt with under the Act of the participating jurisdiction under which it was made, and any proceedings or appeal relating to the notification may be dealt with, as if that Act had not been repealed.

(3) For the purposes of this section, the Act of the participating jurisdiction applies -

(a) as if a reference to the local registration authority were a reference to the National Board; and

(b) with any other changes that are necessary or convenient.

(4) The National Board must give effect to a decision made on an inquiry, investigation, proceeding or appeal completed under the Act of the participating jurisdiction as if it were a decision under this Law.

(5) This section does not apply to a co-regulatory jurisdiction."

1. Logically and sensibly the notification referred to in that section must be a reference to a notification under the Health Professions Registration Act 2005. That is the only conclusion which is capable of being drawn from the context of the use of the word "notification" in subsections (1) and (2) (b), which anticipates that an event has occurred consistent with a "notification" prior to the participation day under an Act of a participating jurisdiction, and then it is anticipated that the "notification" will continue to be dealt with by the relevant Act in accordance with subsection (1).
2. The first question that arises for consideration is the interpretation of subsection (1), and more particularly, whether the applicant, in its role as the local registration authority, had started but not completed dealing with the notification before the participation day, that is, before 1 July 2010.
3. The meaning of the expression "had started but not completed" requires consideration in the light of Nursing and Midwifery Board of Australia v Scott.[11] Mr Freckleton justifiably criticised the construction given to that expression by the Tribunal.
4. The Tribunal wrongly concluded that the expression should be restricted to a hearing, that is, that a hearing had started before 1 July 2010, but had not been completed before that date, and in those circumstances the Health Practitioner Regulation National Law (Victoria) Act 2009 applied, and not the Health Professions Registration Act 2005.
5. The Tribunal considers the submissions made by Mr Freckleton that the expression should be given a wide meaning is more consistent the intention of the legislature. He submitted that there is no warrant for limiting the meaning of the word "started" to the commencement of a hearing. He submitted that it should be interpreted to mean when the applicant became seized of the notification and acted upon it.
6. Furthermore, the merit in the submission made by Mr Freckleton is to be seen by the fact that the terminology used by the draughtsman is broad language which is of a non-technical nature. There is no warrant to give the relevant the words "started", "not completed" and "completed dealing" a narrow interpretation.
7. In the end the Tribunal is persuaded that the interpretation given to those words in Nursing and Midwifery Board of Australia v Scott is wrong.[12]
8. However, Mr Freckleton submitted that the word "started" could be given a far broader interpretation and could mean when a process of thought on the part of the applicant commenced and before it became manifested in a concrete step in dealing with the notification.
9. Whilst the Tribunal can see the merit in the latter submission from a practical point of view there needs to be a point at which one can say confidently that the applicant had started dealing with the notification. The most obvious evidence of that is action taken on the notification as was the case when Ms Kelsey acted upon Dr Christie's letter of 21 April 2008 by writing to him by letter dated 1 May 2008 requesting more information about the allegations made against the respondent.
10. In any event the Tribunal does not want to be seen to be creating some hard and fast rule because inevitably whether the applicant had started dealing with the notification is a matter of fact to be determined by the peculiar facts in any given case.
11. Quite obviously the applicant had not completed dealing with the notification which is evidenced by the fact that after giving due consideration to the notification it considered that it was appropriate in all the circumstances to refer the matter for hearing to the VCAT pursuant to section 59 (2) (g) of the Health Professions Registration Act 2005.
12. Mr Freckleton submitted that there is another very good reason why the interpretation he submitted should be preferred, and that is because of the well accepted principle that a subsequent enactment should not be construed so as to apply retrospectively unless the legislature expressly provides for retrospectivity in the successor legislation.[13]
13. There is nothing revealed from close examination of the Practitioner Regulation National Law (Victoria) Act 2009 to suggest that the relevant provisions of it should apply retrospectively.
14. The Tribunal considers that it was the intention of the legislature to create a transitional interregnum where the respondent should continue to be dealt with under the legislation applying to the notification given by Dr Christie.
15. The importance of section 289 to this proceeding is if Dr Christie's letter dated 21 April 2008 is indeed a notification, then subsection 2(a) applies which results in the notification being one under the Health Practitioner Regulation National Law (Victoria) Act 2009, but for the purpose of transition is to be dealt with under the Health Professions Registration Act 2005 by reason of subsection (2) (b) because the Health Professions Registration Act 2005 is an Act of a participating jurisdiction, and therefore, the notification is to continue to be dealt with under the Health Professions Registration Act 2005.
16. The Tribunal has concluded that there was a notification made by Dr Christie to the applicant. It was a notification pursuant to section 42 (1) of the Health Professions Registration Act 2005.
17. That being so the Tribunal has also concluded that the steps subsequently taken by the applicant after receipt of the notification was when it started dealing with the notification. The Tribunal has also concluded that it had not concluded dealing with the notification before the participation day, that is, 1 July 2010, and therefore, the notification continues to be dealt with under the legislation applying to the notification.

1. The respondent qualified as a medical practitioner in Bangladesh. He migrated to New Zealand arriving there in March 1996. He eventually obtained employment in non-medical work, and also as a PSA in a hospital. He undertook that work for about five years.
2. In 2001 the respondent undertook a bridging course in order to qualify for registration as a medical practitioner in New Zealand. He passed the first stage in 2002, but failed the second stage. He did not sit the second stage again because he could not meet the expense associated with repeating that stage.
3. The respondent sat similar examinations in Australia. He passed the first stage in 2003, but failed the second stage. However, he became entitled to practise medicine under supervision. The first employment he obtained as a medical practitioner in Australia was with the hospital.
4. The hospital deployed the respondent in its Accident and Emergency section. He often worked night shift.

1. Nurse M is an associate charge nurse working full time at the hospital. She commenced working there in about 1986.
2. In 2007 she was rostered on night shift approximately twice a fortnight. On those occasions she worked with the respondent.
3. Nurse M made five specific complaints concerning the conduct of the respondent which the applicant relies upon to establish that the respondent's conduct amounted to unprofessional conduct and/or professional misconduct. The complaints are as follows:[14]

"1. On one occasion, what I asked Dr Hafizullah to write up a chart to me, he said, 'I'll do anything for you'.

1. Once, I commented on how warm it was inside the ward, and Dr Hafizullah said something along the lines of 'yes, you are very hot'.
2. I remember specifically that Dr Hafizullah once asked me, 'do you have the sex?', referring to my sex life with my boyfriend.
3. When I handed Dr Hafizullah a job chart on one occasion, he rubbed my upper arm up my sleeve.
4. On another occasion, I was standing in the doorway when Dr Hafizullah tried to grab my hand and lead me into the office. I said, 'no way' and pulled my arm away, to which he replied, 'oh sorry'."[15]
5. Nurse M made a statement dated 24 July 2009; [16] a statement dated 4 October 2008 as exhibit "JM-1" to her statement,[17] and a statement dated 17 March 2008.[18] At the commencement of her evidence she said that the contents of the statements were true and correct.
6. In her oral evidence Nurse M elaborated on the content of her statements:
   • She first worked with the respondent in about 2005.
   • The incident (No. 1) when the respondent asked her "do you have the sex?" occurred in early 2005 at a desk in the Accident and Emergency department. A porter might have been present. She could not remember whether he apologised to her. She remembered thinking "what the hell do I say." The respondent did not ask that question or a similar question again.
   • Incident (No. 2) - when she asked the respondent to write up a chart for her he said "I'll do anything for you." It occurred in 2006.
   • Incident (No. 3) - when the respondent said "Yes, you are very hot." She considered it contained sexual innuendo.
   • Incident (No. 4) - when the respondent rubbed her upper arm under the sleeve of her shirt. She was wearing a loose fitting shirt. She demonstrated how the respondent rubbed her upper arm. The incident occurred at a time when she had just put a chart on a table. The respondent was standing to her right hand side. She did not consider that that his purpose in rubbing her upper arm was to attract her attention.
   • Incident (No. 5) - occurred in the doorway leading to a room which she and Nurse D described as a treatment room available for the use of medical practitioners on duty in the Accident and Emergency Department. She said she was standing in the doorway of the room. The respondent grabbed her by the hand. He said he wanted to tell her something. She resisted. He said he was sorry, and added that he had a present for her, but she said he did not have a present in his possession nor could she see one. She said the respondent's conduct on this occasion made her feel uncomfortable. It occurred at the end of 2007 or into an early 2008.
7. In her first statement Nurse M described the respondent as being fine to work with as long as boundaries were established with him.[19] In her oral evidence she added that she would not let him get away with inappropriate approaches to her, for example, she had told him to "cut it out" when she thought he was making an inappropriate approach.
8. Nurse M made number of relevant general observations about the respondent's behaviour. A summary of them is as follows:
   • The respondent was "more up front" than other staff in asking about personal relationships, and was more familiar than other medical practitioners with staff.
   • The respondent was forthcoming about details of his own life, including his marriage and his romantic life before he was married.
   • The conversations she had with the respondent occurred when they were on their own. She said "he seemed to pick his times". She was not sure whether the respondent knew that such conversations were inappropriate. He did not ask similar questions when there were others around.
   • She found him a bit "sleazy" because of the conversations he had with her when on their own. She did not feel threatened by him.[20]
9. The respondent admitted that incident No. 3 occurred in early 2005. He was on the left side of Nurse M. A porter named Neville was nearby. He admitted asking a question consistent with "Do you have the sex?" He said that Neville was smiling at the time when the question was asked.
10. The respondent did not describe the reaction of Nurse M save that he saw Nurse M turn to Neville and say "Did you hear that?" The respondent said he was embarrassed by the incident. He apologised to her on two occasions.
11. The respondent said that incident No. 1 was entirely innocent. He said it was merely an enquiry by him indicating that he was happy to help Nurse M in any way.
12. The respondent admitted that he said something consistent with the words spoken when incident No. 2 occurred. He said he did not recall saying to Nurse M that she was hot, but was commenting on the fact that the weather conditions were very hot. However, he did concede that what he said could be taken to be sexual innuendo.
13. The respondent admitted that he had touched nurses on the arm as a sign of friendship. He did not necessarily deny that he had rubbed Nurse M's arm as she alleges occurred in incident No. 4.
14. The respondent denied that any incident consistent with incident No. 5 occurred.
15. Mr Maidment cross examined the respondent by reference to the investigation report prepared by Mr David Wenban. Mr Wenban was engaged by the hospital to investigate the complaints against the respondent. He provided a report to Mr Ted Rayment, chief executive officer of the hospital on 14 April 2008.
16. The cross examination concentrated on the product of an interview conducted by Mr Wenban with the respondent. A summary of the cross-examination and the respondent's answers is as follows:
    • He admitted that he had put his arm around Nurse D on two or three occasions while she was at a desk in the accident and emergency section. He admitted that on the second occasion he did that she said "don't". He said he did not do it again. He said she did not appear to be upset.[21]
    • He admitted that he had patted Nurse D on the hand on two occasions. He admitted that she told him not to do it again. He admitted that both occasions when he patted her hand it had occurred after the last occasion when he had put his arm around her, referred to in the preceding paragraph.[22]
    • He said that the complaints made against him by Nurse M were vexatious and were motivated by some ill feeling engendered by Nurse M as a result of some prior issue between the respondent and Nurse M and another nurse. The Tribunal inferred that the respondent held the same opinion with respect to the complaints made against him by Nurse D.

1. Nurse D is a nurse. She commenced working at the hospital in January 2007.
2. From January 2007 she was rostered on night shift. On those occasion she worked with the respondent.
3. Nurse D made six specific complaints of the conduct of the respondent which the applicant relies upon to establish that the respondent's conduct amounted to unprofessional conduct and/or professional misconduct. The complaints are as follows:

"1. On more than one occasion between 15 January 2007 and about June 2007 Dr Hafizullah picked up Nurse D's resting hand and rubbed or stroked it.

1. On or about 12 June 2007, in the hallway in or near the A and E , Dr Hafizullah grabbed Nurse D by other hand, restraining or attempting to restrain her movement, forced or attempted to force her into an alcove or against a wall by pushing her, introduced his hand under and up the inside of her shirt and placed it on her breast, put his face into Nurse D's neck in an apparent attempt to kiss her and said words to the effect 'I like you so much'. Later, on the same shift, Dr Hafizullah held Nurse D's hand whilst apologising to her for his conduct.
2. On more than one occasion between 15 January 2007 and 10 January 2008, in the staff tea room, Dr Hafizullah moved close to Nurse D and said words to the effect ' I like you so much [nurse]'.
3. On a date unknown between 15 January 2007 and 10 January 2008, in the Resus room, Dr Hafizullah held Nurse D by the hand and placed his other hand behind her back in an apparent attempt to hug her. Dr Hafizullah then asked her if he could hold her hand. When Nurse D said 'no' Dr Hafizullah said words to the effect 'what is wrong, why can't I hold your hand'.
4. On more than one occasion between 15 January 2007 and 10 January 2008, Dr Hafizullah asked Nurse D if it was 'ok' to hold her hand or to touch her.
5. On 10 January 2008, whilst Nurse D was seated at the front desk in the A and E doing paperwork, Dr Hafizullah sat down beside her and said words to the effect ' I like you so much... why don't you stop writing so much?' He then picked up her resting hand and said words to the effect 'I don't feel like this about anyone else'. He then moved behind Nurse D, leant over behind her, put one of his hands up the inside of her shirt and cupped her breast."
6. Nurse D made a statement dated 28 February 2008:[23]
   • She did not remember hugging the respondent on any occasion. However, she conceded that if Nurse M[24] and Mr H said she had then it must have occurred.
   • She denied that she spoke to the respondent about her family; her father's illness; any financial strain that she and her husband were labouring under; difficulties in conducting their farming business due to drought, or having to sell the sheep on their farm because of financial problems and the drought.[25]
   • She said that the reason why she had not reported the incidents was because she felt her job was in jeopardy if she complained and because she was the junior member of staff.
   • She was unable to identify dates upon which the incidents occurred. She said incident No. 2 occurred in about June/July 2007 and after incident No. 1. She said that incident No. 5 occurred on 9 January 2008. Therefore, incidents No. 3 and No. 4 must have occurred between June/July 2007 and January 2008.
7. Mr Richardson cross-examined Nurse D on her reasons for not reporting the respondent's conduct particularly in a setting where she was advised to do so by Mr H;[26] by Nurse M,[27] and Ms Rhode, charge nurse to whom she reported the incident involving the respondent putting his hand near or below her blouse area.[28]
8. Ms Rhode said that she was not informed by Nurse D on the occasion just mentioned that the respondent had put his hand up her blouse or touched her breast. [29]
9. The respondent denied all the allegations made by Nurse D save for an the admissions he made of his general conduct in relation to some nurses referred to in paragraph 58 above.

1. Mr H is a nurse. He commenced working at the hospital in about 1997.
2. Mr H made a statement dated 27 July 2009;[30] a statement dated 18 August 2008 as exhibit "DH-1" to his statement,[31] and a statement dated 17 March 2008.[32]
3. Mr Richardson cross-examined Mr H for the purpose of establishing that:
   • When Nurse D informed him that the respondent had attempted to kiss her (No. 2) his observation of her did not suggest to him that she was emotionally disturbed by the incident.
   • He denied that upon being told that the respondent had attempted to kiss her that her he immediately went to the respondent and reprimanded him.[33]

1. Dr Christie is the medical administrator of the hospital. He composed a letter dated 18 March 2008 addressed to the respondent to which was attached a document referring to details of the allegations made against the respondent.
2. Subsequently, Dr Christie attended at the respondent's home where he spoke with the respondent and his wife. A discussion ensued regarding what steps the respondent should take in response to the allegations. Dr Christie advised the respondent to write a letter outlining his response.
3. The respondent wrote a letter dated 19 March 2008[34] which is in the following terms:

"I am very sorry that this has happened. I wish it had never happened. I admit some of those incidents did happen. I am very remorseful about the incidents that took place. I beg apology from the nurses involved. I have great respect for them. I also beg apology from hospital authority to involve them in this matter. I really ask for forgiveness from the nurses involved and the hospital authority. I promise this will never happen again. My whole family is remorseful about the incident. I feel like not showing my face to anyone.

1. In the course of cross examining the respondent from a report of Mr Wenban, Mr Maidment put to the respondent that he had replied directly to allegations made in Dr Christie's letter and the attachment and had not qualified his admission in the letter that some of the incidents did not occur.
2. However, the respondent said that he was in a state of shock after receiving Dr Christie's letter. He was, at that time, in the course of studying for an exam. He was under the impression, derived from conversations he had with Dr Christie, that some form of admission and apology would be adequate to deal with the matter in whole. He said his state of mind and what he understood from Dr Christie was the reason why he wrote the letter in that form.
3. Mr Maidment submitted that the letter was a damning admission by the respondent, and his later denials when interviewed by Mr Wenban, and before the Tribunal is recent invention.

1. None of the witnesses who were asked about the respondent's general conduct, demeanour, and his capacity to undertake and discharge his duties as a medical practitioner at the hospital sought to impugn him in any or all of those respects.
2. Nurse M and Nurse D did not hesitate to describe the respondent as polite and considerate.
3. The applicant submitted that the conduct of the respondent described by Nurse M and Nurse D amounted to predatory conduct by someone with a clear intention to impose himself upon female nursing staff for the purpose of obtaining sexual favours from them working on night shift often alone with Nurse M and Nurse D, and certainly alone on the occasions when they allege he engaged in the conduct which they have described.
4. The allegations made against the respondent are serious allegations which, if proven, may have serious consequences for him in terms of his reputation and standing as a medical practitioner.
5. Therefore, it is necessary to observe that the Tribunal must be satisfied on the balance of probabilities by clear and cogent evidence that the conduct alleged did in fact occur. The most often quoted reasons on the subject of the standard of proof in such a case was dealt with in Briginshaw v Briginshaw[35] by Dixon J:

"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 indefinite 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. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency...This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues...But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected."[36]

1. In Neat Domestic Trading Pty Limited v Karajan Holdings Pty Ltd[37] the majority of the High Court reviewed a number of authorities relevant to the standard of proof and observed:

"When an issue falls for determination on the balance of probabilities and the determination depends on a choice between competing and mutually inconsistent allegations of fraudulent conduct, generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worst misleading. If such generalisations were to affect the proof required of the party bearing the onus of proving the issue, the issue would be determined not on the balance of probabilities but by an unbalanced standard. The most that can validly be said in such a case is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities."[38]

1. The incidents described by Nurse M occurred between early 2005 and probably before the respondent's employment was terminated in April 2008. Naturally enough the effluxion of time has affected Nurse M's ability to identify precisely when the incidents occurred.
2. However, the Tribunal accepts the evidence of Nurse M that the incidents not only occurred, but also that they occurred in the manner described by her.
3. Nurse M was an impressive witness. She was very careful to give her evidence as accurately as she could, and with care not to overstate what she observed of the respondent's conduct. Indeed, it was the Tribunal's very strong impression that Nurse M was rather inclined to understate the nature of each incident in order to avoid causing any unnecessary harm to the respondent. She appeared to us to give her evidence affected by embarrassment when speaking of the respondent in a way which was critical of him.
4. As Nurse M's evidence progressed and she was asked clarify what actually occurred on the occasion of each incident, and how she interpreted the conduct of the respondent, that the real gravity of the respondent's conduct became clear.
5. The Tribunal has no hesitation in accepting Nurse M's evidence that each of the incidents occurred as summarised in paragraph 48 and following.
6. It appears to the Tribunal that the respondent developed an unfortunate attitude to Nurse M. It would appear that he considered that she might be someone who would treat his approaches favourably.
7. It commenced with the prurient enquiry "do you have the sex?" It was said in the presence a porter. The incident was clearly one which embarrassed Nurse M because she said that she thought to herself "what the hell do I say" in a setting where a medical practitioner in a senior position at the hospital was prepared to ask such a prurient question in the presence of another male. It is obvious that the respondent then thought better of what he had done when he approached Nurse M and apologised to her on two occasions.
8. Unhappily, the respondent did not learn from that incident because he then engaged in conduct which Nurse M interpreted as being motivated by the respondent's desire to have her respond favourably to meet his purpose in developing a sexual relationship with her.
9. The Tribunal does not accept the respondent's evidence that incident No. 1 was an entirely innocent remark. We consider that it was a remark made by the respondent intended to convey to Nurse M that he had an interest in her of a sexual nature.
10. The Tribunal does not accept the respondent's evidence that incident No. 2 was a misunderstanding and that it was a remark about the weather conditions rather than a remark made by him intended to convey to Nurse M that he had an interest in her of a sexual nature.
11. The Tribunal does not accept the respondent's evidence that he saw a culture of tactile contact amongst the staff at the hospital which led him to rub Nurse M's upper arm under the sleeve of her shirt, and to consider it as acceptable conduct.
12. Rubbing Nurse M's upper arm in that way was something which the Tribunal considers to be particularly provocative. The Tribunal does not accept that it was consistent with tapping someone on the shoulder or arm to gain that person's attention. It was unnecessary to go that far if it was his intention to gain Nurse M's attention.
13. The Tribunal does not accept the respondent's denial that incident No. 5 did not occur. The evidence given by Nurse M is very specific about the place it occurred; the physical contact the respondent made by grabbing her hand, and attempting to lead her into his office, all of which were undertaken on the pretext of having a present for her.
14. It was a brazen attempt on the part of the respondent to remove Nurse M into the privacy of the office where what he would not be observed by any other persons.
15. The respondent referred to what he perceived to be the cultural aspects of life at the hospital where the persons he was working with welcomed tactile contact, and indeed, contact which was coloured by some degree of intimacy, such as, putting his arm around nurses; tapping them on the arm and on one occasion engaging in a mutual hug with Nurse D.
16. The Tribunal was at first led to understand that the cultural differences were a contrast between acceptable conduct in Bangladesh when compared with Australia.
17. However, the respondent said that the degree of tactile contact he admitted to would not be acceptable in Bangladesh. It was a level of contact which he had experienced in his employment in New Zealand. He referred to his work as a PSA in his employment at a hospital in New Zealand where fellow employees engaged in that degree of tactile contact which he considered was equally acceptable in Australia.
18. Whatever level of tactile contact the plaintiff was accustomed to in New Zealand is a far cry from what is expected from a medical practitioner in a tolerably senior position in a hospital in relationship with nursing staff. It is curious that having left employment as a PSA and having re-entered the world of medical practice that the respondent did not recognize that the relationship between a medical practitioner and a nurse demanded clear borders to be established regarding their behaviour toward one another.

1. Mr Richardson attacked Nurse D's credit based on the evidence of Nurse M, Mr H and Ms Rhode. The following is a summary of that attack:
   • Nurse D ignored firmly worded advice from Nurse M, Ms H and Ms Rhode to report the conduct of the respondent.
   • Her reaction, or the lack of it, when reporting to Mr H that the respondent had attempted to kiss her.[39]
   • Mr H observation of Nurse D hugging the respondent at some time subsequent to the occasion when she reported the respondent's attempt to kiss her. Nurse M[40] and Ms Rhode[41] observed the same event.
   • She did not tell Ms Rhode that the respondent had put his hand up her shirt and onto her breast.
   • Her evidence that after reporting the incident of the respondent attempting to kiss her that Mr H immediately went to the respondent and reprimanded him.
2. Essentially, Mr Richardson submitted that if the incidents had occurred then the failure on the part of Nurse D to report them demonstrated that they did not occur or were of little significance. Furthermore, the paucity of detail given to Mr H and Ms Rhode of the incidents, and her evidence that Mr H immediately went to the respondent and reprimanded him is also evidence going to whether the incidents occurred or were of any real significance.
3. The impression the Tribunal obtained from the evidence of those witnesses is that Nurse D had a tendency to be more relaxed about tactile contact with staff, including the respondent. However, it was Mr H experience that it was quite unusual for staff members to greet each other in that way. He had never seen a medical practitioner hug a member of staff before.[42]
4. Nurse M described Nurse D as:

"Quite a touchy person, for example she would often touch your hand or arm when she was talking".[43]

1. Ms Rhode said that she had observed Nurse D to put her arm around the respondent's shoulders and speak to him in a friendly way on more than one occasion.[44]
2. It was also the Tribunal's impression that the tendency of Nurse D and the respondent to engage in tactile contact with staff was not the norm at the hospital.
3. The Tribunal has examined Nurse D's evidence critically. It is clear to the Tribunal that Nurse D was a person given to tactile contact with the respondent and other staff. Whilst others were less effusive physically it was obviously in Nurse D's personality that she was given to behaving in that way.
4. However, the fact that Nurse D behaved in that way with the respondent, and that her evidence of this is potentially less persuasive given the evidence of Nurse M, Mr H and Ms Rhode cannot be looked at in isolation, but must be looked at in the context of the whole of the evidence.
5. During the cross examination conducted by Mr Maidment the respondent conceded, that he put his arm around Nurse D on occasions. On some of those occasions she responded by saying "don't" and on occasions when he patted her hand she told him not to do that again.
6. He conceded that he persisted in making tactile contact with Nurse D by subsequently patting her on the hand which was met with the same reaction, that is, she told him that she did not want him to do that.
7. The Tribunal does not accept that the evidence which Mr Richardson submitted goes to the credit of Nurse D irreconcilable with the complaints she made about the conduct of the respondent. There is a clear distinction between tactile contact which is necessary to attract another person's attention or as a sign of friendship, as opposed to tactile contact which is motivated by the perpetrator to send a message. The characteristics of the tactile contact which the respondent had with Nurse D obviously troubled her because they were neither motivated by a desire to attract her attention or as a sign of friendship, but were undertaken by the respondent in an attempt to have her respond favourably to meet his purpose in developing a sexual relationship with her.
8. The tribunal accepts the evidence of Nurse D that each of the incidents referred to in paragraphs 64 and following did occur.

1. The Tribunal is not persuaded that it should accept the submission made by Mr Maidment that the respondent made full admissions in his letter dated 19 March 2008.
2. The Tribunal considers that the alleged admissions contained in the letter are somewhat equivocal. The admission by the respondent that some of the incidents occurred is of doubtful weight because the respondent does not define which of the incidents he admits occurred.
3. In any event the Tribunal considers that the admissions are more likely to be consistent with the admissions which the respondent made when he was cross-examined by Mr Maidment from the interview he had with Mr Wenban. It is to be noted that the respondent repeated some of those admissions during his evidence.
4. The Tribunal was more concerned to make its findings based upon the primary evidence of the witnesses rather than what it considered to be the equivocal admissions made in the letter, and also by having regard to the motivation of the respondent in making the admissions.
5. It must be remembered that the respondent has been described by Nurse M and Nurse D as polite and considerate. The Tribunal accepts the respondent's evidence that he was in a state of shock when he was first exposed to the complaints made against him, and wrote the letter as more of a conciliatory step rather than as a full admissions of the conduct alleged against him.

1. On the basis of the foregoing the Tribunal is satisfied that there is clear and cogent evidence that the respondent engaged in the conduct alleged.
2. It is now a matter to determine which Act applies to the conduct of the respondent.
3. The Medical Practice Act 1994 applied until 1 July 2007 when it was repealed and was replaced by the Health Professions Registration Act 2005.
4. Mr Richardson submitted that whether the Tribunal found that the respondent was guilty of the alleged conduct, or part of it, the applicant had to prove when each incident occurred and which Act applied for the purpose of determining what order to make against the respondent.
5. On the basis of the findings the Tribunal has made the following incidents occurred prior to 1 July 2007:
   • Nurse M:
     • Incident No. 1.
     • Incident No. 2.
   • Nurse D:
     • Incident No. 1.
6. On the basis of the findings the tribunal has made the following incidents occurred post 1 July 2007:
   • Nurse M:
     • incident No. 5.
   • Nurse D:
     • incident No. 5.
7. Whilst the Tribunal is satisfied that the other incidents occurred, the approximate times of their occurrence has not been identified with any certainty by Nurse M and Nurse D
8. In the Medical Practice Act 1994 "professional misconduct" is not separately defined from the definition of "unprofessional conduct" in section 3(1), which is in the following terms:

" 'unprofessional conduct' means all or any of the following -

(a) professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered medical practitioner; or

(b) professional conduct which is of a lesser standard than that which might reasonably be expected of a medical practitioner by her or his peers; or

(d) infamous conduct in a professional respect; or...

1. In the Health Professions Registration Act 2005 "unprofessional conduct", is defined in section 3 (1) in the following terms:

(a) conduct of a health practitioner occurring in connection with the practice of the practitioner's health profession that is of a lesser standard than a member of the public or the health practitioner's peers are entitled to expect of a reasonably competent health practitioner of that kind;

(b) professional performance which is of a lesser standard than that which the registered health practitioner's peers might reasonably expect of a registered health practitioner..."

1. Unlike its predecessor, the Health Professions Registration Act 2005 also defines "professional misconduct" in section 3 (1) in the following terms:

(a) unprofessional conduct of a health practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct that violates or falls short of, to a substantial degree, the standard of professional conduct observed by members of the profession of good repute or competency; and

(c) conduct of a health practitioner, whether occurring in connection with the practice of the health practitioner's health profession or occurring otherwise than in connection with the practice of a health profession, that would, if established, justify a finding that the practitioner is not of good character or is otherwise not a fit and proper person to engage in the practice of that health profession..."

1. In relation to the incidents which occurred prior to 1 July 2007 the Tribunal finds that they amount to "unprofessional conduct" with respect to both Nurse M and Nurse D, but more fitting that these amount to "professional misconduct" referred to in paragraph (c).
2. The basis for that finding is that the question asked of Nurse M when the incident No. 1 occurred, "do you have the sex? " is a particularly prurient question to be asked by a medical practitioner in a senior position of a young nurse. Furthermore, the sexual innuendo present when incident No. 2 occurred in combination with incident No. 1 amounts not only to an inappropriate communication with Nurse M, but also to sexual harassment.
3. The Tribunal does not accept that the combination of these incidents can be categorised otherwise than as professional misconduct.
4. The basis for the finding in relation to Nurse D is that although the tribunal has found that only incident No. 1 occurred prior to 1 July 2007 it was certainly inappropriate for the respondent to pick up Nurse D's hand and rub and stroke it. It was consistent with sexual harassment.
5. The tribunal is satisfied that incident No. 5 in relation to Nurse M and incident No. 5 in relation to Nurse D occurred after 1 July 2007. The Tribunal is unable to find when the other incidents occurred save to say that they occurred somewhere between June/July 2007 and January 2008.
6. However, incident No. 5 in relation to Nurse M when looked at alone is a particularly serious incident. The respondent physically restrained Nurse M and attempted to draw her into his room where he intended to engage in a more significant level of physical confrontation with her.
7. Incident No. 5 in relation to Nurse D when looked at alone is likewise a particularly serious incident. It not only involved inappropriate communication with a heavy sexual innuendo about it, but also involved a sexual assault when the respondent put one of his hands up the inside of Nurse D's shirt and cupped her breast in his hand.

1. The Tribunal is keen to hear further submissions from counsel on the following:
   • The extent to which the incidents where the tribunal is unable to find a time when they occurred are to be used when considering the respondent's conduct in an overall sense.
   • What penalty the Tribunal should consider imposing upon the respondent.
2. The further hearing of the proceeding will be limited to these two issues.

[1] Mr Richardson cross-examined Mr Rayment, however, the Tribunal has not summarised his evidence because it was restricted to the processes undertaken to terminate the respondents employment rather than evidence going directly to be allegations made against the respondent

[7] Ms Dillon is later referred to as Nurse D. They are the same person

[8] The letters are at TB 72, 75 and 78 respectively.

[9] McGrath v The Medical Practitioners Board of Victoria (unreported, Supreme Court of Victoria, 1 November 1996 per Eames J); QX v The Medical Practitioners Board of Victoria (unreported, Supreme Court of Victoria, 11 June 1997 per McDonald J); Chen v Chiropractors Registration Board of Victoria [2000] VSC 480, and Kennedy v Medical Practitioners Board of Victoria [2008] VSC 507

[10] The Health Practitioner Regulation National Law Act 2009 of the State of Queensland was adopted in the whole by section 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009 and which may be referred to as the Health Practitioner Regulation National Law (Victoria)

[11] [2010] VCAT 1268. The judgement of the Judge Misso

[12] The issue which arose which led the Tribunal to consider that a narrow interpretation was warranted was driven by a submission made by the applicant that the Practitioner Regulation National Law (Victoria) Act 2009 was the successor to the relevant State legislation. The issue was not argued as comprehensively as it has been in this proceeding

[13] Mr Freckleton referred the Tribunal to the following authorities are George Hudson Ltd v Australian Timber Workers Union [1923] HCA 38; (1923) 32 CLR 413; Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261; Fisher v Hepburn Ltd [1960] HCA 80; (1960) 105 CLR 188; Doro v Victoria Railways Commissioner [1960] VicRp 12; [1960] VR 84 at 86; Lohdi v R [2006] NSWCCA 121 at paragraph 23-56

[14] The particulars of the complaints made by Nurse M and Nurse D have been numbered for the purpose of ease of identification

[18] TB 645. The statement dated 4 October 2008 and 17 March 2008 are identical

[25] We assumed that this cross-examination was an attempt to establish that the respondent and Nurse D had a tolerably close relationship which enabled them to talk on such private matters

[32] TB 646. The statement dated 18 August 2008 and 17 March 2008 are identical

[33] TB 84 to be compared with Mr H's statement at TB 101

[35] [1938] HCA 34; [1938] 60 CLR 336

[37] [1992] HCA 66; (1992) 110 ALR 449

[39] The Tribunal infers that the incident she reported to Mr H was incident No. 2