Ng v Health Care Complaints Commission

Supreme Court of NSW|2016-09-09|Before: Davies J, Investments P

Solicitors: Meridian Lawyers (Plaintiff) Director of Proceedings, Health Care Complaints Commission (Defendant) File Number(s): 2015/360103

Judgment

This is an appeal against the judgment of the Occupational Division of the Civil and Administrative Tribunal NSW on 19 August 2015: Health Care Complaints Commission v Ng [2015] NSWCATOD 85.
Two complaints were made by the Defendant against the Plaintiff as follows: Dr Ng being an osteopath registered under the Health Practitioner Regulation National Law (NSW) ("The National Law") 1. is guilty of unsatisfactory professional conduct under s 139B of the National Law in that Dr Ng has: (i) engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by Dr Ng in the practice of osteopathy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or (ii) engaged in improper or unethical conduct relating to the practice or purported practice of osteopathy. Particulars (1) On 16 August 2011 during a professional consultation with Patient A at his practice, the practitioner carried out assessment and treatment in relation to the Patient's groin and failed to provide appropriate osteopathic services in that he: (a) failed to provide adequate information or explanation to Patient A in relation to the assessment and/or treatment in relation to the groin complaint; (b) failed to obtain consent from Patient A prior to commencing assessment and/or treatment in relation to the groin complaint. (2) On 16 August 2011, the practitioner inappropriately placed his finger under the patient's underwear and inserted his finger into Patient A's vagina for about 30 seconds which was: (a) without clinical indication or justification; (b) behaviour that amounted to inappropriate conduct of a sexual nature towards Patient A. 2. is guilty of professional conduct under s 139E of the National Law in that the practitioner has: (i) engaged in unsatisfactory professional conduct of a sufficient (sic) serious nature to justify suspension or cancellation of the practitioner's registration, or (ii) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. Particulars Complaint 1 and the particulars thereof are repeated and relied upon individually and cumulatively.

Legislative provisions

The appeal is governed by the provisions of Pt 6 of Schedule 5 to the Civil and Administrative Tribunal Act 2013 (NSW). Under cl 29 of Pt 6 a decision for the purposes of the Health Practitioner Regulation National Law (NSW) is a profession decision. Sub-clause 29(1) says that such a profession decision is not an internally appealable (sic) decision for the purposes of an internal appeal. Clause 29 then goes on to provide: (2) Right to appeal to Supreme Court or Land and Environment Court However, a party to proceedings in which a profession decision is made may appeal against the decision in accordance with this clause to: (a) in the case of an order for the purposes of Division 3 of Part 5 or Division 4 of Part 7 of the Aboriginal Land Rights Act 1983 declaring a vacancy in an office - the Land and Environment Court, and (b) in the case of any other decision - the Supreme Court. … (4) Basis or grounds for appeal An appeal to a court under this clause: (a) in the case of an appeal against a decision for the purposes of the Legal Profession Uniform Law (NSW) - is an appeal to which section 75A of the Supreme Court Act 1970 applies and, accordingly, is by way of a rehearing rather than a new (de novo) hearing, and (b) in the case of any other appeal (a non-lawyer appeal) - may be made as of right on any question of law, or with the leave of the court, on any other grounds. Note. See also section 84 (Practice and procedure for appeals to courts under this Act). … (7) Non-lawyer appeals The court in a non-lawyer appeal may: (a) decide to deal with the appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. (8) In determining a non-lawyer appeal, the court may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the decision under appeal to be confirmed, affirmed or varied, (b) the decision under appeal to be quashed or set aside, (c) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (d) the whole or any part of the case to be reconsidered by the Tribunal at first instance, either with or without further evidence, in accordance with the directions of the court.
In short, therefore, the Plaintiff needs to show an error of law to appeal as of right. Otherwise leave is required from this Court. The Defendant in its written submissions argued that all of the grounds of appeal raised only questions of fact. The issue was debated between the Bench and Mr Windsor SC for the Plaintiff during Mr Windsor's address. Mr Windsor indicated that he would obtain instructions about whether he would ask the Court in its discretion to consider issues which were not based on error of law. He subsequently said he would not make such an application. The appeal must, therefore, be decided on the basis of grounds 1 to 5 set out in [5] above. Nor was any application made that the matter proceed by way of a new hearing or that fresh evidence be received. Given that credit findings were at the heart of the Tribunal's decision I did not consider that the matter should proceed other than on the basis of an appeal on a question of law.

The consultation and its aftermath

The consultation complained of took place on 16 August 2011. On 26 September 2011 the patient (described as Patient A) signed a complaint form which set out what she said happened as follows: [Patient A] visited [Dr] Ng for her usual appointment regarding lower back, hip, neck concerns. [Patient A] then mentioned she had problems around the groin region. He examined & massaged the area (quite close to the genitals) and the pain subsided. He then said "I just need to see if the damage is anywhere else and as he did so he put his index finger inside the right wall of [Patient A]'s vagina. There was no warning or explanation of why he needed to do this and gloves were not worn. This continued for about 30 seconds. He then removed his finger and proceeded to the back of her right groin in the buttock crease. [Patient A] was distressed, uncomfortable, and anxious. There was no dialogue. [Dr Ng] then leaned forward closer to her face and said "I don't mean to be rude & I'm not talking about the yoga, but be more careful when you do other things in the bedroom with your legs out to the side with your husband". To which [Patient A] replied defensively "No, I think it's the yoga". And he said "You know what I mean". [Patient A] was so shocked and embarrassed and all she could say was "ok, ok we don't need to talk about this". Then he said "ok" and asked her to stand up and check if her groin felt okay. He left the room to allow her to get changed but then knocked on the door only 30 seconds afterwards to which [Patient A] said "just another minute". [Dr Ng] seemed very short & nervous as they arranged a follow up appointment & [Patient A] payed (sic). She was charged more than usual (I guess the appointment went longer). [Patient A] tried to be pleasant although feeling anxious & stressed and left the premises as quickly as possible. She was shaking during the drive home and felt nausea throughout the day as she questioned whether what had happened was normal osteopathic procedure. Being so distressed about the situation we went to Waverley police who took [Patient A] to RPA Hospital in Newtown to complete a forensic swab kit. [Patient A] also received counselling. Background [Patient A] has been seeing [Dr Ng] for osteopathy treatment since December 2010. He had been recommended by her sister.
The delay in making the complaint was explained by the fact that Patient A had, at the time of the consultation, arranged an overseas holiday with her husband. She had, however, written four pages of handwritten notes on 19 or 20 August 2011. In relation to the consultation those notes said this: I was wearing only underpants and the hospital gown as had always been for my appointments. [Dr Ng] examined all the same areas - lower back, hip alignment, spine, ribs, neck and skull area and told me I was doing well, that I was fitter than previous visits and looked very happy. [Dr Ng] asked if I had any other pain or issues I said the same groin pain in my right side was back as per my initial consultation in [December] 2011. So he said he would examine it "more deeply" when he was finished with my usual check up. At about 8:20am this closer examination began. … I was instructed to bend my right knee and leave my left leg straight. [Dr Ng] then wrapped a towel around my bent right leg and proceeded to examine the groin area. He identified an area that was exactly where the pain was and asked if that was what I meant and I confirmed that it was, so he massaged that spot (which was quite painful) for about a minute and seemed to fix the problem - the pain subsided almost immediately. [He said that I had some torn ligament damage, although he had never examined this area in this way when I complained of the same pain]. It did seem to me a bit close to my genital area as he was applying pressure but he stayed just on the skin and my groin so it seemed to be appropriate. He then said "I just need to see if the damage is anywhere else" and as he did so he put his index finger on the inside right wall of my vagina. There was no warning or explanation of why he needed to do this and was not wearing gloves. This continued for about 30 seconds as he felt towards the groin area in massaging fashion. I could feel his fingernail digging into the skin which is obviously very sensitive in this area. He then removed his finger and proceeded to the back of my right groin in the buttock crease with the same massaging. During this time I had my head on the side with my eyes closed my teeth clenched as I felt very anxious, uncomfortable and distressed about the situation. There is no dialogue during these last stages of the procedure.
Patient A says that following the consultation she was anxious and stressed, and wanted to leave the premises as soon as possible. She was anxious while driving home and felt nauseous.
Patient A called her husband during his lunchtime break. She was very disturbed and distressed about the experience. She also spoke to Bronwyn Winley, a work colleague. On Ms Winley's advice she left work early at about 2:30pm. Her husband arrived home at 3:30pm and she told him in greater detail what had happened.
She decided to seek the advice of her sister-in-law, who was a police officer. Her sister-in-law's advice was to go to the police station.
When she first attended the police station, she was so distressed she was not sure if she was prepared to start the process of opening an official police case, so she told the police she would like to think about it. However, after discussions with the police officer assigned to the case she decided to give an official statement. She subsequently attended the Royal Prince Alfred sexual assault unit for examination and counselling.
On 22 November 2011 Patient A provided a statement to Mascot Police.

The evidence before the Tribunal

The Tribunal had before it written statements from Patient A's husband, Ms Bronwyn Winley and Patient A's sister-in-law (the police officer). None of those persons was required for cross-examination.
The only witnesses of fact at the hearing were Patient A and the Plaintiff. In addition a number of expert witnesses gave evidence. These were: (a) Dr Robinson, a sports and exercise consultant physician who was retained by the Plaintiff; (b) Dr Korda, a consultant gynaecologist retained by the Plaintiff's lawyers; (c) Dr Ford, a consultant obstetrician and gynaecologist retained by the HCCC; and (d) Dr Andrew Paul, a chiropractor and osteopath retained by the HCCC.
The Plaintiff's account of what happened at the consultation was conveniently summarised by the Tribunal as follows: [60] (1) Prior to the consultation he had treated Patient A on 11 occasions. On 16 August 2011 she had complained of pain in "the right groin region". (2) Patient A was wearing a full length gown, and underwear. He covered her with a towel from her chest down to her legs. (3) He described the procedure to Patient A. "Firstly, I described the anatomy of the groin muscles (in general) and then the technique I intended to use. I also communicated that the treatment area was sensitive and that she may experience some discomfort during the treatment". (4) As he is "very aware that contact in the thigh and groin region can be sensitive and uncomfortable for any patient", he asked Patient A for her consent before any palpation and/or treatment proceeded. He says that her consent was verbally given to proceed. (5) Ensuring that the towel was still covering her groin and thigh region, then: 17. … I exerted a gentle lateral force on the right knee and she was asked to resist this force. (This was to illicit [scil. elicit] a contraction in the adductor muscles so that I could locate it accurately). 18. With my right middle fingers, I traced and palpated the adductor muscles, initially in the middle of the muscle belly. I identified some fibrotic or scar tissues in this region and used inhibition and friction therapy technique to reduce these tissues. The inhibition and friction therapy breaks apart the adhesive scar tissue that has formed in the injured tissues. 19. I consistently asked how [Patient A] was feeling, making sure that not too much pressure or friction was applied but sufficient enough to carry out the treatment effectively. 20. When I was satisfied with the texture of the treated fibrotic tissue, I solicited [Patient A's] response to the efficacy of the treatment and obtained a positive response from her. 21. As described above, the groin muscles cover a large area and are located between the thigh bone and the pelvic region. Consequently, I had to establish whether there were any more injured tissues beyond the muscle belly further towards the tendon attachment in the pelvic region. I can explain (sic) to [Patient A] what I was going to do and obtained her verbal consent to proceed. 22. I proceeded to palpate proximally towards the proximal attachment of the adductor muscles. This is done along the linear direction of these muscles, making sure not to stray away from the medial surface of the right thigh. I was cognisant of any adverse reaction from Patient A and verbally sought her reaction to the treatment, however, she did not verbalise or display any visual discomfort or stress during this time. 23. During the entire treatment, I use my fingers for palpation and treatment and always over the draped towel. I ensured that no skin to skin contact in the groin region was made. 24. As no further fibrotic tissue was found, I terminated the treatment and asked her to tell me how she felt when she stood up. She stated that she felt much better. There was no indication verbally or visually that she was distressed, upset or uncomfortable with the nature of the treatment itself or the outcome.
The Tribunal summarised its conclusions early in its judgment as follows: [9] Patient A gave evidence, both written and oral, consistent with the particulars to the complaints of the HCCC. Dr Ng denied Patient A's version of events. It was not submitted by Dr Ng that Patient A was lying or otherwise embellishing her evidence due to some unknown or improper motive. Nor was it disputed that Patient A felt sensations in her vagina that she likened to the feeling of a finger moving in it. Dr Ng does however submit that there were "holes and inconsistencies" in Patient A's evidence. [10] However, Dr Ng submitted that there was "a jumping to the conclusion" that the sensations were in fact produced by a finger in her vagina. It was submitted that the explanation for the sensations felt by Patient A were sensations of referred pain and referral sensations from the palpation of the trigger points within her adductor muscles. [11] The Tribunal has considered the criticisms made of inconsistencies in Patient A's account of events. In our view, Patient A was a credible witness, whose evidence should be accepted. She has no motive to be untruthful, and none was put. We find her behaviour following the consultation supports our conclusion. That behaviour includes numerous contemporaneous complaints about the alleged incident including to her husband, to a work colleague, to her sister-in-law, to the police and during her examination at the sexual assault unit of Royal Prince Hospital on the day the consultation took place. We also note that that the examination conducted at Royal Price Alfred Hospital records Patient A's labia minora as having redness and tenderness. [12] We accept that the expert evidence and the medical literature establishes that sensations of referred pain and referral sensations may be experienced from the palpation of the trigger points within her adductor muscles. Having accepted Patient A's version of events we do not need to consider this hypothesis. We note that Dr Ford, an obstetrician and gynaecologist relied on by the HCCC, agreed with Dr Ng's expert, Dr Korda, that palpation of a trigger point in the adductor magnus muscle can result in a referred sensation of "fullness" in the vagina. However, we accept his conclusion that that sensation was very different to the sensation described by Patient A, and that "a woman would be very aware of how a 'foreign object' would come to be in her vagina" (Exhibit 8), and that a "finger in the vagina is a different modality" (oral evidence, 3 February 2015). [13] In the circumstances, the Tribunal finds the complaints against Dr Ng established.

Submissions

The Defendant raised as a preliminary matter the submission that although all of the grounds of appeal were framed as appeals on questions of law, when properly analysed none of the grounds raised a question of law with the result that they should all be dismissed. The Defendant submitted in writing that it was evident from the drafting of the grounds that each raised as an issue a complaint about the weight or lack thereof given to one or more pieces of evidence by the Tribunal in its fact finding process. In that way each of the grounds of appeal amounted to an attempt to re-agitate findings of fact.
The Defendant submitted that the ultimate finding of fact by the Tribunal that Dr Ng digitally penetrated Patient A in the manner stated in her evidence was clearly open on all the evidence before the Tribunal, reached through a sound, logical and reasonable consideration of all the evidence of the Tribunal, and established to the required standard of proof set out in Briginshaw. In oral submissions the Defendant accepted that the question of whether the Briginshaw standard was applied could be regarded as a question of law.
The Plaintiff, in his submissions in reply, accepted the legal principles concerning what amount to errors of law but maintained that the grounds all involved questions of law. The Plaintiff submitted that a reviewable error of law includes circumstances where the Tribunal has made a finding in the absence of evidence or if the evidence adduced does not support an inference being made. Additionally, an error of law occurs where a tribunal misleads itself in law including asking the wrong questions for determination.
Because the parties have grouped the grounds of appeal differently I will first summarise the submissions of the Plaintiff and then those of the Defendant.

Ground 1: Insufficient weight given to evidence of the Plaintiff and incorrect application of the Briginshaw test

The Plaintiff submitted that although the Tribunal accepted the relevant standard of proof as the civil standard with the Briginshaw considerations the Tribunal incorrectly applied that test. The Plaintiff submitted that the Tribunal proceeded upon a "reasonable satisfaction" of Patient A's evidence without properly taking into account the seriousness of the allegations against the Plaintiff, and relied upon indirect proofs, indefinite testimony or indirect references. Although the Tribunal identified and relied upon factors said to enhance the likelihood that Patient A's account was true, the Plaintiff submitted that the Tribunal ignored equally compelling factors supporting the Applicant's evidence. In that regard the Plaintiff pointed to particular uncertainties in the evidence of Patient A and contrasted what was said to be consistency and an unwavering denial of the allegations.
The Plaintiff submitted that the Tribunal appeared to accept that Patient A's version was suspicion or surmise but overlooked that matter including in circumstances where the Briginshaw standard applied and required the Tribunal to make findings in the absence of suspicion or surmise. The Plaintiff submitted that the Tribunal erroneously decided not to reach conclusions about the expert evidence on the basis that it had accepted that Patient A was a witness of credit. In particular the Tribunal overlooked Dr Paul's evidence, as the only expert who performed the osteopathic palpation treatments, in deference to the erroneous conclusion that Patient A was a witness of credit.

Grounds 2 and 3: Failing to consider properly, give appropriate weight to and make findings in relation to the independent expert evidence and finding that it was unnecessary to do so because Patient A was a witness of credit

The Plaintiff submitted that in concluding that it was not necessary to reach a conclusion about the expert evidence because Patient A was a witness of credit the Tribunal failed to consider properly and address the central point of his denial of the allegations. The Plaintiff submitted that there was a credible and plausible medical explanation for the sensation felt by Patient A and that corresponded to the Plaintiff's own evidence. The Plaintiff submitted that it was unreasonable to reject or fail to consider the expert evidence.
The Plaintiff submitted that a central issue in the dispute was the vaginal sensation alleged to have been experienced by Patient A. All of the experts supported the conclusion that a referred sensation was capable of explaining what Patient A felt and that such referred sensation could be caused through palpation or manipulation of trigger points.

Ground 4: Taking into account the hospital record but failing to acknowledge Dr Korda's evidence about that record

This ground concerned the record of an examination conducted on Patient A at Royal Prince Alfred Hospital where it was recorded that Patient A's labia minora had redness and tenderness. The Plaintiff drew attention to Dr Korda's report where he provided a number of possible causes for such a finding.
The Plaintiff submitted that the Tribunal failed to weigh up and deal with Dr Korda's evidence that the area of redness was of no significance. The Plaintiff submitted that the Tribunal did not invite the parties to make submissions on this aspect of the evidence and it was therefore unfair for the Tribunal to have made a finding with respect to it.

Ground 5: Giving undue weight to factors favourable to Patient A and too little weight to factors favourable to the Plaintiff

The Plaintiff submitted that there were a number of unfavourable factors which the Tribunal did not identify including inconsistencies and assumptions in Patient A's evidence. The Plaintiff submitted that, on the other hand, the Tribunal identified matters unfavourable to him and did not emphasise favourable aspects of his evidence. Although the Plaintiff's case was always that Patient A was mistaken rather than lying or dishonest, he submitted that the Tribunal gave inadequate weight to that point and emphasised the fact against the Plaintiff that he had not made submissions that Patient A was lying nor had a motive to be untruthful. The Plaintiff submitted that the Tribunal did not give any weight to the references attesting to the Plaintiff's good character and professional conduct nor even to positive remarks that Patient A had made about him at previous consultations.

Defendant's submissions

The Defendant's principal submission was that none of the grounds of appeal raised a question of law. In particular, a submission that insufficient weight was given to some evidence cannot amount to an error of law. For an error of law to occur it would have to be demonstrated that that there was no evidence to support a finding or that there was no basis for an inference to be drawn. The Defendant submitted that the grounds of appeal simply attempted to re-agitate findings of fact.
The Defendant addressed grounds 1, 2, 3 and 5 together. The Defendant noted that the Plaintiff accepted that the Tribunal correctly identified the relevant onus and standard of proof. The Defendant submitted that the Plaintiff had quoted selective passages from the Tribunal's decision ([136], [119] and [143]) whereas the Tribunal's decision when read in full showed that the Briginshaw test was correctly applied. The Defendant submitted that the Tribunal comprehensively analysed the evidence of Patient A, the witnesses to whom she made complaints, the Plaintiff and the expert witnesses. The Defendant submitted that a proper analysis of the Tribunal's decision showed that it did not rely on indirect proofs, indefinite testimony or indirect references. The Defendant submitted that Patient A's evidence was not seriously challenged or damaged under extensive cross-examination and was strongly supported by the contemporaneous complaints. By contrast the evidence of the Plaintiff lacked credibility on the key issue.
The Defendant submitted that the statement of the Tribunal that Patient A's evidence was based on suspicion and surmise was not a reference to any weakness in that testimony but to the obvious fact that she was lying on her back during the treatment and did not see the digital penetration of her vagina occurring.
The Defendant submitted that the Tribunal acting reasonably was entitled to conclude that Patient A was a witness of credit without reaching conclusions on the expert evidence. Such an approach was consistent with the authorities referred to in the Tribunal's decision at [128]-[130]. In any event, the Defendant submitted that the Tribunal gave extensive consideration and appropriate weight to the evidence of all four experts and, acting reasonably, found support within that evidence for the conclusion that the sensation experienced by Patient A was the result of digital penetration rather than referred sensation.

Ground 4

The Defendant submitted that the Tribunal was entitled to act on all of the evidence before it in making its findings, was not bound by the rules of evidence and was able to enquire into and inform itself on any matter in such manner as it thinks fit subject to the rules of natural justice. Reliance was placed on s 38(2) of the CAT Act.
The Defendant submitted that the records from the hospital were tendered without objection by the Plaintiff and it was open to the Plaintiff through his legal representatives either to object to the evidence or to make submissions about it including submissions challenging it based on the evidence of Dr Korda. No such submissions were made.
In any event, the Defendant submitted that Dr Korda's evidence did not preclude a conclusion that the observation made at the hospital was consistent with Patient A's account. Dr Korda himself did not make the observations of redness or tenderness and he referred to a number of possible alternative causes. Simply because the parties did not address on those notes did not preclude the Tribunal from taking them into account and acting on them. There was no unfairness in that way and no denial of procedural fairness.

Errors of law and fact finding - principles

In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Mason CJ said (at 355-356): [87] The question whether there is any evidence of a particular fact is a question of law: McPhee v. S. Bennett Ltd. (1934) 52 WN (N.S.W.) 8, at p 9; The Australian Gas Light Co. v. The Valuer-General [1940] NSWStRp 9; (1940) 40 SR (NSW) 126, at pp 137-138. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light, at pp 137-138; Hope v. Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1, at pp 8-9. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v. Broken Hill South Ltd. [1941] HCA 33; (1941) 65 CLR 150, at pp 155, 157, 160. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v. Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473, at pp 481, 483. [88] But it is said that "(t)here is no error of law simply in making a wrong finding of fact": Waterford v. The Commonwealth [1987] HCA 25; (1987) 163 CLR 54, per Brennan J. at p 77. Similarly, Menzies J. observed in Reg. v. The District Court; Ex parte White [1966] HCA 69; (1966) 116 CLR 644, at p 654: "Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law." [89] Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
In R L & D Investments P/L v Bisby [2002] NSWSC 1082 Kirby J said at [13]: The issue has been considered in a number of cases since that time, including Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Mahoney v Industrial Registrar of NSW & Anor (1986) 8 NSWLR 1; Haines v Leves & Anor (1987) 8 NSWLR 442; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Gangemi Holdings Pty Ltd v Salter & Ors [1999] NSWSC 1004; Carr v Neill [1999] NSWSC 1263; SRA v Smith [2000] NSWSC 334. Arising from these authorities, a number of broad propositions can be stated: First, there is no error of law in simply making a wrong finding of fact (Australian Broadcasting Tribunal v Bond (supra) per Mason CJ at 341), unless there is no evidence to support that finding. Secondly, it does not amount to an error of law if the finding of fact, or the inference (or the refusal to make a finding of fact or draw an inference) is perverse, in the sense that it is contrary to the overwhelming weight of evidence (Glass JA in Azzopardi v Tasman UEB Industries Ltd (supra) at 155). Thirdly, it is not an error of law even if the reasoning process by which the Court reaches its conclusion of fact is demonstrably unsound or illogical (Menzies J in R v District Court: Ex Parte White (1966) 116 CLR 644, at 654). Fourthly, there is limited exception (which has no application in this case) in relation to decisions of fact in the context of a statutory description. In such a case there may be an error of law if the decision on the facts is one which could not be reasonably entertained, or supported, if the tribunal had properly understood the true construction of the relevant enactment (Mahoney v Industrial Registrar of NSW & Anor (supra) per Hope JA at 1 and Samuels JA at 5).
In Hill v Repatriation Commission [2005] FCAFC 23 the Court (Wilcox, French and Weinberg JJ) said at [93]: A court should not disturb a finding of fact by a tribunal based upon its assessment of the credit or credibility of a witness unless it is satisfied that the tribunal did not take advantage of its opportunity to see and hear the witness, or that the conclusions that it reached were inconsistent with an overwhelming body of evidence, or were glaringly improbable: Nguyen Do Vinh v Minister for Immigration and Ethnic Affairs (1997) 46 ALD 528 at 532 . In any event, given that "appeals" from AAT decisions are confined to errors of law, there will rarely be any scope for this court to embark upon a consideration of issues of this kind.
In Fraser v Health Care Complaints Commission [2015] NSWCA 421 Basten JA said: [48] In oral argument, counsel for the appellant disclaimed reliance upon this ground of challenge except in relation to what were, in effect, attempts to reagitate findings of fact. This exercise should be rejected. While it is an error of law to make findings of fact where there is no supportive evidence, it is generally not open to an appellant, limited to grounds involving error of law, to challenge a finding of fact, which is supported by evidence, on the ground that one should infer that the Tribunal did not reach a comfortable satisfaction, although it said that it applied that standard. There may be cases in which it can be said that, on the primary facts as found, the material inference drawn by the tribunal was not reasonably open, but that was not this case; it could not be said that the findings identified were not reasonably open to the Tribunal.

Ground 1

Section 38 of the Civil and Administrative Tribunal Act relevantly provides: 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. … (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
Section 38 is also to be seen in terms of what is contained in s 36 which relevantly provides: 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules.
In Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; [2014] FCAFC 93 the Civil Aviation Safety Authority decided to cancel Mr Sullivan's helicopter pilot license as a result of a crash on take-off and a subsequent investigation into that crash. Mr Sullivan sought a review of that decision by the Administrative Appeals Tribunal but the Tribunal affirmed the decision of the Authority. Mr Sullivan appealed to a single judge of the Federal Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) which created a right of appeal on a question of law. That appeal was dismissed and he then appealed to the Full Court of the Federal Court. A number of the grounds of appeal alleged an error in law on the basis that the Tribunal had failed to apply the Briginshaw principle when applying the standard of proof on material questions of fact.
Section 33(1) of the AAT Act provided: (c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. It may be observed how closely worded that provision is to s 38(2) of the Civil and Administrative Tribunal Act. Although the latter Act adds the words "subject to the rules of natural justice" it could not be suggested that the Administrative Appeals Tribunal was not bound by the rules of natural justice. The joint judgment of Flick and Perry JJ (with which Logan J substantially agreed but provided some reasons of his own) noted that the appellant's submission concerning the principle in Briginshaw in an attempt to avoid s 33(1)(c) of the AAT Act was to argue that the requirement of the Tribunal to apply the "rule" set forth in Briginshaw was not a rule of evidence at all but rather was a "principle of law" that the Tribunal was bound to apply - see at [101].
The joint judgment went on to say: [106] In respect to these submissions advanced by senior counsel, it is concluded that: the general "principle of law" espoused on behalf of Mr Sullivan is rejected; but that: the tribunal when engaged in its process of fact-finding may inform itself - and in some circumstances should inform itself - by reference to evidence or other materials which properly supports the seriousness of the findings being made and the seriousness of those findings upon a party. [107] Albeit expressed as a general "principle of law" - as opposed to a rule of evidence - the submissions, with respect, seek impermissibly to achieve the result whereby "the rules of evidence which have been excluded expressly by statute creep back through a domestic procedural rule": Pochi at ALR 256 ; ALD 41; FLR 492 . It is also further concluded that: the reasons of the Tribunal expose a proper and adequate factual basis upon which it made its findings in respect to Ex 3 and its finding that Mr Sullivan acted in order "to avoid an investigation and subsequent consideration of his conduct by CASA"; 141 ALD 540 at 565 and that: the reasons of the Tribunal sufficiently expose a consciousness of the seriousness of the findings being made and sufficiently expose the basis upon which it proceeded such that there has been no failure to comply with s 43(2B). Given the latter conclusions, it is strictly unnecessary to express any concluded view as to the correctness of the general "principle of law" espouses (sic) on behalf of Mr Sullivan. But the submission was made and should be resolved. … [116] What procedure the tribunal decides to follow in any particular case, and whether the tribunal decides to either apply or inform itself by reference to the common law rules of evidence, is a matter which has been left by the legislature to the tribunal itself to determine. The manner in which the tribunal proceeds cannot, with respect, be pre-determined by any generally expressed "principle of law" which is to be applied to some indeterminate fact-findings which may be characterised as "grave" or "serious". [117] To endorse the general "principle of law", it is respectfully concluded, would only serve to confuse the fundamental division of functions between the tribunal as a body vested with administrative power and the function of this court when entertaining an "appeal" from a decision of the tribunal. This division is respected in the statutory limitation upon the subject matter of an "appeal" from a tribunal decision to a "question of law": s 44(1) of the Administrative Appeals Tribunal Act. An appeal purportedly on a "mixed question of fact and law" is not sufficient: Comcare v Etheridge (2006) 149 FCR 522; 227 ALR 75; 90 ALD 31; [2006] FCAFC 27 at [16] per Branson J (with whose reasons Spender J agreed). Assertions that a decision is against the weight of the evidence will, therefore, be given "short shrift": Husband v Repatriation Commission (2000) 171 ALR 69; 60 ALD 717; [2000] FCA 356 at [41] per French J (as his Honour was then). See also: Lamers v Repartriation Commission [2001] FCA 24 at [20] per Goldberg J. But this does not permit the tribunal to make a finding of fact for which there is "no evidence", being a case which falls on the other side of the line between these different functions: Kostas at [90]-[91] per Hayne, Heydon, Crennan and Kiefel JJ. Nor does it mean that the reach of s 44 of the Administrative Appeals Tribunal Act is limited to questions of law divorced from the need to look at facts: Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 ; 96 ALD 536 ; [2007] FCAFC 111 at [55] per Allsop J (Lindgren and Emmett JJ agreeing). … [120] Within these already accepted principles, the tribunal is otherwise free to make findings of fact which cannot be set aside by this court. When making findings of fact which have "serious" consequences to a party, or "grave" consequences, the tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached. The absence of any cross-examination on the evidence and the absence of any indication being given to a party that such evidence is under challenge, may well be factors taken into account initially by the tribunal and thereafter this court on "appeal". [121] Cases may be found where the tribunal has applied the decision in Briginshaw. But these cases are nothing more than the tribunal proceeding, perhaps, in a manner which applies the common law rules of evidence. The provisions of s 33(1)(c), it will be recalled, simply provided that the tribunal is not "bound" to apply those rules; it is not a prohibition upon the tribunal applying those rules if it sees fit. [122] The imposition of the requirement now sought to be imposed by the appellant's general "principle of law", it is concluded, would be an unnecessary constraint upon the freedom of the tribunal to employ such procedures as it sees fit in undertaking its fact-finding role. It is a "principle of law" unsupported by authority and, indeed, contrary to authority.
The joint judgment concluded by suggesting that the issue raised, as to the need to apply the Briginshaw principle, was not a question of law as s 44 of the AAT Act required. The joint judgment said: [167] Notwithstanding the considerable ingenuity with which the notice of appeal was drafted, and the written and oral submissions advanced on behalf of Mr Sullivan, the appeal at the end of the day was but an attempt to cavil with the findings of fact made by the Administrative Appeals Tribunal. Although the notice of appeal identified "questions of law" in need of resolution, as required by s 44(1) of the Administrative Appeals Tribunal Act, those questions were ultimately answered by an examination of the reasoning process employed by the tribunal and the findings of fact it made. Each of those findings of fact was open to the tribunal. And its reasoning from those findings exposed no error of law.
Although on the face of it one might have thought that a question concerned with whether something like the Briginshaw principle was applicable in proceedings where the rules of evidence did not apply was a question of law, that was not the Full Court's view. The reason for that, as can best be discerned from the joint judgment of the Full Court is that, even accepting that the Briginshaw principle is engaged, discerning whether the Tribunal has determined the matter to the required standard is an issue of fact. As the joint judgment said, the questions were ultimately answered by an examination of the reasoning process employed by the Tribunal and the findings of fact it made. The same is true in the present case and, following the decisions earlier referred to, unless it can be said that there was no evidence to justify the finding of the ultimate fact in the present case, no error of law is demonstrated.
The decision in Sullivan is consistent with the approach of Basten JA (with whom Ward and Leeming JJA agreed) in Fraser. The passage set out at [41] above was a consideration of a submission that the tribunal in that case had not applied the Briginshaw standard - see Fraser at [46]. Basten JA's conclusion was that where the appeal was confined to a question of law it was not open to challenge a finding of fact supported by the evidence on the basis that the tribunal did not reach a comfortable satisfaction.
The Plaintiff focussed upon two statements in the judgment of the Tribunal to suggest that the Briginshaw standard was not correctly applied. The first appears at 135 where the Tribunal said: Patient A's evidence is based on suspicion or surmise as to what occurred. While literally true, we do not consider that this is determinative whether or not Patient A's account of the consultation should be accepted.
The second passage is found at [136] where the Tribunal said: As the Court of Appeal stated in Forster, no matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied. We are so reasonably satisfied for the following reasons.
The reference at [135] to "suspicion or surmise" derives from the fact that Patient A was not able to say that she saw the Plaintiff insert his finger into her vagina. She said that she felt his finger in her vagina where it remained for perhaps 20 - 30 seconds against the wall of the vagina. The Plaintiff's approach appeared to be one of elevating the sense of sight over other senses. The mere fact that a person does not see something occurring does not make the experience any less reliable if they merely heard or felt or perhaps even tasted or smelt something, if the other senses are relevantly involved in the experience. I consider that the Tribunal unnecessarily diminished the force of the Plaintiff's evidence by concluding that her evidence was literally suspicion or surmise when that evidence was that she felt the Plaintiff's finger in her vagina. In that regard, Dr Robinson gave this evidence (T 37.14, 9/10/14): Q. Do you accept that a woman could accurately describe, without looking at it, she's lying on her back, the sensation of a finger going inside her vagina and perceive that as in fact would occurred (sic)? A. Yes, if a woman is lying on her back and an obstetrician or gynaecologist inserts their finger or whatever into their vagina a woman would certainly, should be able to perceive that.
Further, Dr Ford said in his report of 24 September 2014: However, I would say that the sensation of "fullness" in the vagina is very different from the precise sensation described by [Patient A] of a finger being inserted into the vagina, with the description of "a fingernail rubbing against the inside" of her vagina. [Patient A] is a married, sexually active woman, and I would say that it is reasonable to assume that the sensation of vaginal penetration of various kinds is not one that is unknown to her. Like most women her age, she has probably been a user of vaginal tampons, which again would provide her with what would be a familiar sensation of non-penile vaginal penetration.
In the concurrent evidence of Dr Ford and Dr Korda the following appears (T 19.23, 3/2/15): O'DONNELL: I would like to ask you whether both of you accept this proposition, which is this, if a woman is lying on her back and an obstetrician or gynaecologist inserts their finger or whatever into their (sic) vagina a woman could certainly should be able to perceive that firstly do you accept that Dr Ford? WITNESS FORD: I do. O'DONNELL: Do you accept that Dr Korda? WITNESS KORDA: Yes.
I do not consider the reference to Patient A's evidence being based on suspicion or surmise as being of any significance on the question of the application of the Briginshaw principle. There was clear evidence to support the finding the Tribunal made. Following Sullivan and Fraser no error of law is, therefore, demonstrated.
As to [136] of the Tribunal's judgment, I do not consider, in the light of Sullivan, that the Tribunal was obliged in any event to apply the Briginshaw principle. However, it is apparent that the Tribunal did so in any event. They set out passages from Forster v Hunter New England Area Health Service [2010] NSWCA 106, Rejfek v McElroy (1965) 112 CLR 517 at 521-522 and Warner (in his capacity as joint and several liquidator of Bellpac Pty Ltd (recs and mgrs apptd) (ACN 101 713 017) (in liq)) v Hung (No 2) - [2011] FCA 1123; (2011) 297 ALR 56 at [48]. The Tribunal thereafter correctly applied Forster at [136]. There would have been little point in the Tribunal setting out those passages if their conclusions expressed shortly thereafter did not bear those principles in mind.

Grounds 2 and 3

These grounds concern the expert evidence in the matter. Although the grounds purport to assert errors of law in truth, they challenge the way the Tribunal went about assessing the various witnesses, and they concern the weight given to various aspects of the evidence. The complaints concerning the expert evidence raise only issues of fact. The very terms of ground 2 put that beyond doubt, "failing to properly consider, give appropriate weight to". It is also made particularly clear by both the written and oral submissions of the Plaintiff that detail the evidence of the experts which is said to cast doubt on the evidence of the Plaintiff that was ultimately accepted by the Tribunal. The bulk of those submissions were submissions that one might expect to have been made to the Tribunal in the first instance to persuade it that the Plaintiff's evidence ought not to be accepted. That course is not, however, available to the Plaintiff on an appeal where only errors of law can be considered. As was said in Sullivan at [117]: Assertions that a decision is against the weight of evidence will, therefore be given "short shrift", where only an appeal on a question of law is available. The way this ground is framed is no different.
At its highest, the complaints in these grounds were put on the basis that the Tribunal failed to have regard to relevant matters, one of the errors identified in House v The King (1936) 55 CLR 499 as pointing to error in a discretionary decision. This articulation of the grounds relies on what the Tribunal said at [143] of the judgment and repeated in its summary at [12]. The Tribunal said at [143]: Having accepted that Patient A is a witness of credit, we do not consider that it is necessary to reach conclusions about the expert evidence.
In its summary of conclusions at [12] the Tribunal said: We accept that the expert evidence and the medical literature establishes that sensations of referred pain and referral sensations may be experienced from the palpation of the trigger points within her adductor muscles. Having accepted Patient A's version of events we do not need to consider this hypothesis.
The starting point, again, is s 38 of the Civil and Administrative Tribunal Act. On one view, and subject to the rules of natural justice, the Tribunal was not obliged to consider the expert evidence. I am prepared to assume, however, that in accordance with those rules, the Tribunal was not entitled to ignore the evidence of the experts without taking account of what those doctors said. The evidence was led to support and corroborate the Plaintiff's assertion that the sensation experienced by the Plaintiff was explicable otherwise than by what the Plaintiff regarded as an assumption on Patient A's part about what happened. It may be accepted that the evidence to some extent supported the Plaintiff's assertion that Patient A's experience might have been brought about by means other than the insertion of a finger in the vagina.
Ultimately, however, a determination in the matter depended on the acceptance of either Patient A or the Plaintiff as to what occurred. The expert evidence, to some extent, had the effect of showing that the Plaintiff's explanation for what occurred was not farfetched or fanciful but even with that support, the Tribunal had to decide which of the evidence of Patient A and the Plaintiff was more reliable about the event. It cannot be said that there was any error in law in their conclusion that Patient A's evidence was to be preferred. There was evidence to justify the finding.
Further, what emerges very clearly from the judgment is that the Tribunal did not simply put aside the expert evidence without any consideration of it. Paragraphs [90] to [116] contain a detailed description of the evidence of the experts. Further, in assessing the evidence of the Plaintiff the Tribunal had regard to the evidence given by the experts - see at [124] to [126]. Moreover, the statement at the commencement of [143] must be read in the light of what follows that statement. Those paragraphs read: [143] Having accepted that Patient A is a witness of credit, we do not consider that it is necessary to reach conclusions about the expert evidence. On the whole, the experts were in agreement, and we accept that Dr Ford said, this was a case of he said/she said. Our role is to determine, on the balance of probabilities, whether or not what Patient A states occurred, did occur. For the reasons set out above, we do. [144] However, we do think it appropriate to consider Dr Ng's submission that Dr Paul, the only chiropractor called to give expert evidence, "completely revised" his opinion as set out above. It is to be recalled that Dr Paul is a chiropractor, clearly an experienced and distinguished practitioner. He was asked to give his opinion on six questions in relation to the appropriateness of Dr Ng's clinical treatment of Patient A during the consultation, and, in responding to each question, to advise whether Dr Ng's conduct fell below the standard reasonably expected of a practitioner of an equivalent level or training. The fifth question he was asked to answer asked "whether it was possible for Patient A to have felt 'referred sensation' to the perineum and external genitalia, even if no physical contact was made in this region". However, the answer sought was to be given in the context of the standard of care expected of a practitioner. We are not certain that, with all due respect to Dr Paul', that he is qualified to answer the question from any other perspective. That is to say, as Dr Ford responded when asked whether the sensation of palpation be sensed concurrently with referred pain, he stated that he was "not a neurophysiologist". He considered that an "actual concurrent sensation of a finger in the vagina is a different modality"- To similar effect was Dr Robinson in a different context when she said "it's completely out my area of expertise. So I understand that I was brought here from the musculo-skeletal point of view trigger points but not gynaecology". [145] We also note that, in our view, the feeling of "fullness" in the vagina, described by Dr Korda, is quite different to the sensations described by [Patient A], which descriptions included: He put his index finger on the inside right wall of my vagina. This continued for about 30 seconds as he felt towards the groin area in massaging fashion. I could feel his fingernail digging into the skin which is obviously very sensitive in this area. He continued to examine on the bone of my groin, but from inside my vagina. This went on for a good 30 seconds. I had my eyes shut. I was feeling very uneasy about what was happening. I could feel his finger now rubbing against the inside of my vagina. I felt it [that is, the finger].
Further, the conclusion in [12] was followed immediately by a reference to two of the expert witnesses relevantly as follows: [12] We accept that the expert evidence and the medical literature establishes that sensations of referred pain and referral sensations may be experienced from the palpation of the trigger points within her adductor muscles. Having accepted Patient A's version of events we do not need to consider this hypothesis. We note that Dr Ford, an obstetrician and gynaecologist relied on by the HCCC, agreed with Dr Ng's expert, Dr Korda, that palpation of a trigger point in the adductor magnus muscle can result in a referred sensation of "fullness" in the vagina. However, we accept his conclusion that that sensation was very different to the sensation described by Patient A, and that "a woman would be very aware of how a 'foreign object' would come to be in her vagina" (Exhibit 8), and that a "finger in the vagina is a different modality" (oral evidence, 3 February 2015).
In all of those circumstances it cannot be said that the Tribunal failed to have regard to relevant evidence being the expert evidence. These grounds should be rejected.

Ground 4 - the hospital record

The basis for this ground is the statement at the end of [11] by the Tribunal when dealing with evidence corroborative of Patient A's evidence, it said: We also note that bat (sic) the examination conducted at Royal Prince Alfred Hospital records Patient A's labia minora as having redness and tenderness.
The record of that examination at RPAH went into evidence without objection by the Plaintiff. Dr Korda commented on possible alternative causes for the observations although he did not observe them himself. Dr Korda had been asked by the Plaintiff's lawyers for the possible causes of the two centimetre area of redness on Patient A's labia minora.
Contrary to what appears in this ground of appeal, Dr Korda did not give evidence either in his report nor in his oral evidence that the area of redness was of no significance. The very premise on which the ground is posited is not made out. It is significant that no questions were asked of him about that matter when he gave concurrent evidence with Dr Ford as Senior Counsel for the Plaintiff accepted in his oral submissions.
There is no obligation on a court or a tribunal to invite the parties to make a submission about a particular aspect of the evidence. In the present case it was the Plaintiff who led the evidence from Dr Korda to answer the tender of the RPAH record. There was nothing improper or procedurally defective in the Tribunal making reference to the unchallenged evidence of the hospital record. While Dr Korda provided a number of other possible causes of the reddened area he did not suggest that the redness might not have been brought about by the insertion of the Plaintiff's finger into Patient A's vagina. Any conclusion by Dr Korda about the cause of the redness, when he had not examined Patient A nor seen photographs of it, was speculative and carried little weight. In any event, Dr Korda's view was only one aspect of the matter that the Tribunal needed to take into account. That highlights in respect of this ground that no error of law is demonstrated.

Ground 5 - the weight given to the evidence

This ground has only to be stated to be rejected as demonstrating any error of law. The authorities earlier quoted demonstrate clearly that the weight to be given to evidence is a matter of fact for the Tribunal itself. Indeed, the Plaintiff accepts in its written submissions in reply that the weight given to facts does not involve a question of law with reference being made to Brennan J in Repatriation Commission v O'Brien (1985) 155 CLR 422.

Conclusion

For the reasons given, none of the grounds of appeal raises an error of law. Accordingly, I make the following orders: (1) The Summons is dismissed. (2) The Plaintiff is to pay the Defendant's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 February 2017

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (19 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (41)

Cited By (12)