Plaintiff v Defendant

Health Practitioners Regulation National Law (Victoria) Act 2009 ss 3, 6, 193 and 196.

1 Harpreet Singh seeks leave to appeal on a question of law from decisions and orders of the Victorian Civil and Administrative Tribunal ('the Tribunal') which upheld allegations of professional misconduct against him resulting in the cancellation of his registration as a psychiatric nurse.[1] The Tribunal's decision upholding the allegations of professional misconduct is comprehensive, comprising 430 single spaced paragraphs. Despite the voluminous nature of the decision, the application for leave focused primarily upon one sentence at [386]:

Third, there is a natural hesitancy to conclude that a person would fabricate such a serious allegation...[2]

It was contended on behalf of Mr Singh that the statement set out above, albeit in the context of the Tribunal's consideration of an allegation by Mr Singh that a complainant ('C3') had fabricated complaints against him, involved a misapplication of the standard and burden of proof in disciplinary proceedings. It was further submitted that this error, although related to an allegation by one of three complainants, infected the entire decision of the Tribunal.

2 I have concluded that [386] does give rise to a question of law regarding the application of the principles in Briginshaw v Briginshaw[3] in disciplinary proceedings. However, when viewed in the context of the Tribunal's consideration of an allegation which Mr Singh made against C3, the statement involved no error of law. Alternatively, if the statement does constitute an error of law, it is not a vitiating error which warrants the granting of leave to appeal. Mr Singh's application for leave to appeal is dismissed.

History of proceedings and legislative framework

3 Having regard to the issues raised in the current proceedings it is necessary to set out in some detail its history and the legislative framework which is relevant to the proceedings. The factual matters which are set out below are not controversial. They are drawn largely from the Tribunal's decision of 16 September 2014.

4 Throughout the period of August 2010 to January 2011, Mr Singh was employed by Eastern Health as a psychiatric nurse at Maroondah Hospital Mental Health In-patient Unit No 2 ('IPU 2'). IPU 2 is a 25 bed unlocked unit which provides intensive psychiatric care for adult patients experiencing acute episodes of mental illness.

5 Three patients who resided at IPU 2 throughout the period of August 2010 to January 2011, made allegations of inappropriate behaviour, including physical contact of a sexual nature against Mr Singh.

6 On 29 March 2011, Eastern Health notified the Australian Health Practitioner Regulation Agency ('AHPRA') of allegations made by two of the patients. At the time a police investigation into the allegations by C3 were ongoing. Mr Singh was subsequently notified by police that no criminal charges would be laid against him.

7 A report in respect of three sets of allegations was provided by AHPRA to the Nursing and Midwifery Board of Australia ('the Board') in August 2012. On 20 September 2012 the Board decided to refer the allegations to the Tribunal. The referral was made by the Victorian Government Solicitor's Office on behalf of the Board pursuant to s 193 of the Health Practitioner Regulation National Law (Victoria) Act 2009 ('the Health Practitioner Act'). Section 6 of this Act provides that the Tribunal is a 'responsible tribunal' for the purposes of the Health Practitioner Act.

8 The Board's referral to the Tribunal included a 'notice of allegations' which listed 11 allegations of professional misconduct and/or unprofessional conduct. The 11 allegations consisted of 40 separate particularised acts allegedly engaged in by Mr Singh in respect of the three complainants. The notice of allegations is 'Annexure A' to this judgment.

9 The Board's application was heard by the Tribunal over nine days between 19 February and 3 April 2014. On 16 September 2014 the Tribunal delivered a comprehensive decision of 430 paragraphs. The Tribunal concluded at [426] of its decision that Mr Singh had engaged in the following conduct:

• Referred to contacting Complainants 1 and 3 outside the Unit;
• Attempted to touch Complainants 1 and 3 while they were talking on the phone;
• Told patients 1 and 2 he liked their tongue ring and was thinking of telling his girlfriend or someone to get one;
• Hugged Complainants 1 and 3;
• Made reference to leg shaving, bra and tattoos in relation to Complainant 2;
• Placed his hands on Complainant 2's waist;
• Kissed Complainants 2 and 3 on the lips;
• Kissed Complainants 2 and 3 on the neck;
• Touched the breasts of Complainants 2 and 3;
• Requested Complainant 2 to go to her room with him;
• Pinched Complainant 3's cheeks and asked to see her tattoos; [and]
• Entered Complainant 3's room without knocking, sat on her bed, grabbed and squeezed her hand, and called her a 'naughty girl'.[4]

10 The Tribunal concluded at [428] that in relation to each of the three complainants, Mr Singh was guilty of a single charge of professional misconduct, as defined in s 5 of the Health Practitioner Act, namely:

1. Unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
2. More than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

1. Conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.[5]

11 Following a further hearing on penalty, the Tribunal made orders on 16 December 2014 cancelling Mr Singh's registration as a psychiatric nurse and disqualifying him from applying for registration for a period of 20 months from 16 December 2014.[6]

12 By an originating motion dated 22 January 2015, Mr Singh seeks leave to appeal on a question of law in respect of the orders of 16 December 2014 and the three findings of professional misconduct made on 16 September 2014 by the Tribunal.

The nature of the jurisdiction exercised by the Tribunal

13 The Board's application pursuant s 193(1) of the Health Practitioner Act was a matter within the Tribunal's original jurisdiction. Section 43(b) of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act') provides that the original jurisdiction of the Tribunal is invoked where a matter is referred to the Tribunal under an enabling enactment. Section 193(1) in conjunction with s 6 of the Health Practitioner Act conferred upon the Board the power to refer to the Tribunal for hearing and determination the allegations of professional misconduct.

14 Section 44 of the VCAT Act provides that in exercising its original jurisdiction the Tribunal has the functions conferred on it by or under the enabling enactment, as well as any functions conferred upon it by the VCAT Act.

15 Section 196(1) of the Health Practitioner Act provides that after the hearing of a matter in respect of a registered health practitioner, a responsible tribunal may decide:

1. The practitioner has no case to answer and no further action is to be taken in relation to the matter; or
2. One or more of the following -
   1. the practitioner has behaved in a way that constitutes unsatisfactory professional performance;
   2. the practitioner has behaved in a way that constitutes unprofessional conduct;
   3. the practitioner has behaved in a way that constitutes professional misconduct;
   4. the practitioner has an impairment;
   5. the practitioner's registration was improperly obtained because the practitioner or someone else gave the National Board that registered the practitioner information or a document that was false or misleading in a material particular; ...

16 If a responsible tribunal makes a decision referred to in s 196(1)(b), then pursuant to s 196(2) of the Health Practitioner Act, the Tribunal may decide to do one or more of the following:

1. caution or reprimand the practitioner;
2. impose a condition on the practitioner's registration, including, for example -
   1. a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or
   2. a condition requiring the practitioner to undertake a specified period of supervised practice; or
   3. a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or
   4. a condition requiring the practitioner to manage the practitioner's practice in a specified way; or
   5. a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or
   6. a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;

1. require the practitioner to pay a fine of not more than $30,000 to the National Board that registers the practitioner;

1. suspend the practitioner's registration for a specified period;
2. cancel the practitioner's registration.

17 By virtue of s 44 of the VCAT Act, in addition to the powers conferred upon the Tribunal by s 196 as set out above, the Tribunal had all the functions conferred upon it by the VCAT Act. In the hearing of the Board's application, the Tribunal was subject to both ss 97 and 98 of the VCAT Act. Section 97 provides:

The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.

(a) is bound by the rules of natural justice;

(b) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;

(c) may inform itself on any matter as it sees fit;

(d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.

18 Section 3(2)(a) of the Health Practitioner Act provides that the objectives of the National Registration and Accreditation Scheme established under the Act are:

to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered;

19 The objective of the Act as set out above, coupled with the powers conferred upon the Tribunal under s 196(2) of the Health Practitioner Act, strongly supports the conclusion that the Tribunal proceedings were disciplinary proceedings. The Victorian Court of Appeal has held that disciplinary proceedings involving allegations of professional misconduct are neither civil nor criminal, but sui generis. In Matthew Stirling v Legal Services Commissioner[7] the Court of Appeal stated:

Courts often use criminal language and authorities when imposing penalties in disciplinary proceedings. In Burgess, Nettle and Neave JJA noted the importance of denunciation, specific deterrence and community protection in assessing the severity of a 12 month suspension of a solicitor for failing to use his best endeavours to complete work and communicate effectively. The Court even used the principles in R v Verdins when analysing the mental impairment issues relating to the appellant.

However, this analogy is not perfect. As urged by the respondent, these proceedings are sui generis, and are within the inherent jurisdiction of the Court. While there are common elements, as noted in Hanneberry, it is clear that these types of proceedings are not criminal:

The first is that disciplinary proceedings under the Act are not criminal proceedings but are proceedings sui generis ... This proposition is reflected in the circumstance that unfitness to practise based on misconduct need be proved only according to the civil standard, subject of course to the necessity to bear in mind the seriousness of the conduct charged.[8]

20 In Hanneberry v Legal Ombudsman,[9] Tadgell JA (Phillips and Chernov JJA concurring) stated at [22]:

...There are two principal reasons. The first is that disciplinary proceedings under the Act are not criminal proceedings but are proceedings sui generis: cf. Weaver v. Law Society of New South Wales [1979] HCA 35; (1979) 142 C.L.R 201, at 207, per Mason J.; Wentworth v. New South Wales Bar Association [1992] HCA 24; (1992) 176 C.L.R 239, at 250-1, and the authorities there cited. This proposition is reflected in the circumstance that unfitness to practise based on misconduct need be proved only according to the civil standard, subject of course to the necessity to bear in mind the seriousness of the conduct charged: McCarthy v. Law Society of New South Wales (1997) 43 N.S.W.L.R 42, at 59 ...

21 Both Hanneberry and Stirling involved allegations of professional misconduct against legal practitioners. Nevertheless, the proposition for which those cases are authority, namely, that unfitness to practise based on misconduct need only be proved according to the civil standard subject to the necessity of bearing in mind the seriousness of the conduct charged, applied equally to proceedings before the Tribunal. Neither party submitted to the contrary. Indeed, both parties submitted that the Tribunal had correctly articulated the standard of proof at [94] and [95] of its decision:

Although the civil standard of proof applies (namely the balance of probabilities, not the criminal standard of beyond reasonable doubt) the degree of persuasion required is affected by the seriousness of the allegations made. Here, the allegations of inappropriate behaviour and in particular, of a physical contact of a sexual nature, are serious. The tribunal must feel an 'actual persuasion' of the correctness of the matters alleged.

The classic statement of the common law is that of Sir Owen Dixon in Briginshaw:

The truth is that, when the law requires 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 mere mechanical comparison of probabilities independently of any belief in its reality ... 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 consequences 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.[10]

22 The Tribunal cited with approval the Victorian Court of Appeal decision in Con Karakatsanis and Tony Karakatsanis[11] as authority for the proposition that in the context of disciplinary proceedings, it was entirely proper for the Tribunal to adopt the approach of requiring that it be 'comfortably satisfied' of the facts in issue.[12]

Did the Tribunal err in failing to apply the Briginshaw standard to the allegations made by C3 against Mr Singh?

23 Mr Holdenson QC, who appeared with Ms Riddell for Mr Singh, submitted that the opening sentence of [386] constituted a failure by the Tribunal to properly apply both the burden of proof and the standard of proof in a disciplinary proceeding involving serious allegations of misconduct. There are four strands to this submission:

(i) the Tribunal did not approach the determination of whether or not it was satisfied that the serious allegation made by C3 had been proved by the Board on the fundamental basis that the more serious the allegation, the greater the strictness of proof required in order to prove the allegation. Both the standard of proof and its application were thereby undermined;[13]

(ii) the reasoning in [386] reversed, or tended to reverse, the burden of proof, there being no burden imposed upon Mr Singh to prove that C3 had fabricated the complaint against him;[14]

(iii) the reasoning in [386] meant that the Tribunal misdirected itself by excluding from its consideration the possibility that it could neither accept nor reject the allegation, with the consequence that the Tribunal would not be satisfied that the allegations were true;[15]

(iv) the reasoning contained in [386] suggested that:

(a) the allegations made by C3 were enhanced or gained credibility because they involved 'such a serious allegation'; and

(b) the credibility of C3 was strengthened by the fact that her allegation was 'such a serious allegation'. This was an error, because the seriousness or gravity of an allegation has no bearing upon the likelihood that the allegation is true:[16] R v G [1993] QCA 267; [1994] 1 Qd R 540 at 542, 544 and 545; Palmer v R [1998] HCA 2; (1998) 193 CLR 1 at [9].

24 During the course of the hearing on 10 August 2015, Mr Holdenson further refined the grounds of challenge set out above. His primary contention was that the proper application of Briginshaw in disciplinary proceedings does not permit a tribunal to have any regard to the seriousness of an allegation made by the accused against a complainant.[17] Hence, even though Mr Singh had challenged the credit of C3 by contending that she had a motive to fabricate misconduct allegations against him, it was impermissible for the Tribunal to have taken into consideration a 'natural hesitancy to conclude' that C3 would fabricate a serious allegation of misconduct in order to be discharged and gain access to heroin.

25 Mr Holdenson took no issue with the Tribunal's findings that:

(i) the Board was subject to the onus of proving the allegations against Mr Singh; and

(ii) in so doing, the civil standard of balance of probabilities was applicable.

Nevertheless, he submitted that principles applicable to the assessment of credit of a complainant alleging criminal conduct were apposite in disciplinary proceedings.

26 Mr Holdenson relied upon the judgment of the High Court in Palmer v R[18] as authority for the propositions that:

(i) in a trial for sexual offences, a complainant's account gains no legitimate credibility from the absence of evidence of motive for a complainant to lie; and

(ii) if credibility which the jury would otherwise attribute to a complainant's account is strengthened by an accused's inability to furnish evidence for a motive for the complainant to lie, the standard of proof is diminished.[19]

27 In the context of a criminal trial, the proposition set out above cannot be gainsaid. However, the current proceedings are not criminal proceedings. The Court of Appeal judgments in Stirling and Hanneberry are authority for the proposition that disciplinary proceedings are not criminal proceedings. As such, caution must be exercised in applying principles relating to the criminal jurisdiction and burden of proof, to the hearing and determination of allegations of misconduct in disciplinary proceedings. This is particularly so where the principles relate to jury directions. Plainly, the proceedings before the Tribunal bore none of the hallmarks of a criminal trial before a jury. This conclusion is reinforced by the fact that in conducting the proceedings the Tribunal was not bound by the rules of evidence.

28 Mr Hanks QC who appeared with Ms Gardner for the Board, submitted that Palmer was not relevant because the proceedings before the Tribunal did not involve a jury. I accept this submission.

29 The judgment of the Full Court of the Federal Court of Australia in J McPhee & Son (Australia) & Ors v Australian Competition and Consumer Commission[20] is an example of the limitations in applying principles derived from authorities concerned with jury directions, to proceedings which are subject to the Briginshaw standard.

30 McPhee involved an appeal from findings of contravention of s 45 of the Trade Practices Act 1974 (Cth). The proceedings at first instance were penal proceedings to which the Briginshaw standard applied.[21]

The executives, in criticising his Honour's consideration of whether there was any sufficient motive for DFE witnesses to give false evidence, referred to authorities which, it was said, stood for the proposition that it was impermissible for a trial judge to give a direction along the lines of "Why should the complainant lie?" as a reason for bolstering the probative value of the complainant in the prosecution: R v Jovanovic (1997) 42 NSWLR; R v E (1996) 39 NSWLR 450; R v F (1995) 83 A Crim R 502. These authorities were concerned with directions to juries and are not relevant to the present consideration.[22]

32 The 'present consideration' to which the Full Court referred was the weight which the trial judge attached to the evidence of employees of the transport company DFE who gave evidence of an arrangement or understanding entered into with another company, J McPhee & Son. The evidence had been led by the Australian Competition and Consumer Commission ('ACCC') in support of its contention that J McPhee & Son had contravened s 45 of the Trade Practices Act 1974 (Cth). Part of the reasoning of the trial judge in concluding that J McPhee & Son had breached s 45 included his finding that there was not sufficient motive for the DFE witnesses to give deliberately false evidence against J McPhee & Son. This was in circumstances where J McPhee & Son had challenged the credit of the witnesses, pointing to the conditional immunity from suit which the ACCC had granted to DFE witnesses.[23]

33 The proceedings in McPhee were not disciplinary proceedings. However, they have the following characteristics in common with the proceedings before the Tribunal. First, the proceedings involved very serious allegations to which penal consequences attached. Second, J McPhee & Son challenged the credit of the evidence led against it by pointing to a motive for witnesses to fabricate evidence. Third, in rejecting that challenge, the trial judge was not satisfied that the witnesses had a sufficient motive to give deliberately false evidence. Fourth, in circumstances where there was a conflict between the evidence of witnesses, it was necessary for the trial judge to address and make findings as to the credibility of the relevant witnesses.

34 The matters set out above support the conclusion that the Full Court's conclusion that 'authorities concerned with directions to juries are not relevant' applies equally to the proceedings before the Tribunal.

35 Further, unlike the position in Palmer, Mr Singh did contend that C3 had a motive to lie. The allegations by C3 are set out on the final 2 pages of Annexure A to this judgment. All of the alleged conduct which C3 complains occurred on 22 January 2011. All of the allegations were denied by Mr Singh and upheld by the Tribunal. However, Mr Singh did not simply deny C3'S allegations of misconduct. He attributed to C3 a motive for fabricating allegations of misconduct. The Tribunal summarised Mr Singh's submission as follows:

In summary, the respondent contended that Complainant 3's evidence was not reliable because she understated her heroin use, falsely stated she was suicidal in order to gain admission to the Unit, and then, two days later, she had become desperate to be discharged from the Unit to obtain heroin, and so had a compelling reason to fabricate a complaint about Mr Singh. At the time she made the allegation, she was upset because she had just been told she was not going to be discharged...[24] (emphasis added)

36 The Tribunal dealt with Mr Singh's contention that C3 fabricated a complaint against him in order to be discharged from the Unit to obtain heroin, at [384] to [387] and [404] to [408]:

1. In determining how much emphasis to place on Complainant 3's craving for heroin as a reason for making up allegations against Mr Singh, in order to obtain a discharge, there are a number of matters to consider. First, while she was not an involuntary patient, she did agree in cross-examination with the proposition that her impression was she had to get permission to leave the Unit. It does appear she was persuaded by the view of her father and of the staff that she should remain in the Unit.
2. Second, how realistic was it for her to believe that making such an allegation would have led to discharge? Ms Michael-Xavier's [the nurse's] note of her complaint about Mr Singh records her as saying she was scared of Mr Singh, and wanted to leave the ward now with her father. Objectively, it would not seem to follow that because sexual abuse by a staff member has occurred in the Unit, or been alleged, the response would be to discharge the patient.
3. Third, there is a natural hesitancy to conclude that a person would fabricate such a serious allegation. The respondent suggested this was a thing which a desperate heroin addict would do, however.
4. Fourth, we also note the Progress Notes show that she had substantial periods of day leave on the two days following the alleged incidents: 23 and 24 January 2011 (in excess of three hours on both days). So she was in fact able to leave the Unit, temporarily, without being discharged.

1. Weighing up all the evidence in relation to Complainant 3, we are comfortably satisfied that the events alleged did occur.
2. On close analysis, we have concluded that none of the issues raised by the respondent creates doubts sufficient to undermine this comfortable satisfaction.
3. The theory postulated by the respondent is that Complainant 3 was craving heroin, and when she was refused discharge, she responded by fabricating an allegation of sexual abuse (that idea having been planted in her mind by another patient that morning) in order to obtain discharge. While at first blush, this theory has some attraction, on analysis it does not seem viable.
4. It is not logical to suggest that because sexual abuse has occurred, the hospital's response would be immediately to discharge the patient. So the theory depends on the patient, a heroin user suffering from Post Traumatic Stress Disorder and other conditions, acting irrationally (as well as dishonestly) to that extent.
5. It also depends on a patient being prepared to make and maintain a false allegation over a three year period, and go through the traumatic process of giving evidence about it in the Tribunal. While Complainant 3 was 'dishonest' in falsely claiming to be suicidal in order to obtain admission, and exhibited some apparently manipulative behaviour as described above, that is quite a different thing to making and maintaining allegations of sexual abuse. She promptly recanted on her statements that she was suicidal. In contrast, she has adhered to her allegations against Mr Singh, long after she has ceased to have any motive for maintaining a false complaint. The theory postulated by the respondent relies on the notorious propensity for heroin users to do whatever it takes to get a hit. Here, however, it was far from clear that making an allegation of sexual abuse would achieve that outcome at that time. And now, over three years later, with Complainant 3 being heroin free, and having moved on in her life, it is significantly less probable that she would continue to maintain a false compliant.[25]

37 In the proceedings before the Tribunal, the allegations of inappropriate behaviour and in particular physical contact of a sexual nature, were serious. The Tribunal was required to take the seriousness of those allegations into account in determining whether the Board had discharged its onus of proof. Plainly, it did so. This is borne out by the reasoning of the Tribunal when concluding that, taking account of the seriousness of the allegations made, it was not satisfied to the requisite standard that a number of the allegations made by complainant 1 and 2 were made out.[26]

38 Contrary to Mr Holdenson's submissions, the Tribunal's statement that there is a natural hesitancy to conclude that a person would fabricate such a serious allegation, did not constitute an undermining of the standard of proof or a reversal of the burden of proof. First, the statement of the Tribunal at [386] does not constitute a finding by the Tribunal that the seriousness of the allegation made by C3 was a factor weighing in favour of the conclusion that the allegation was made out. The Tribunal's reasons must be read as a whole and must be considered fairly. As Kirby J observed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang:[27]

It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.[28]

39 In light of Mr Holdenson's submissions that the Tribunal's comprehensive decision is brought down by one sentence in [386], the analogy of a fine tooth comb is apt.

40 The Tribunal's findings in respect of the fabrication allegation are set out at [404] to [408] above. The preamble to that reasoning is provided in [402], where the Tribunal stated:

...She reported the matter promptly and for the reasons below, we do not believe that it is plausible that she made up the allegations in order to obtain discharge in order to obtain heroin. We accept her evidence.[29]

The 'reasons below' are those set out at [404] to [408]. As a matter of plain English, these reasons do not contain the reasoning in the opening sentence of [386] upon which Mr Holdenson places such reliance.

41 The statement in [386] must be read in context, namely, that the Tribunal was considering an allegation which Mr Singh had made against C3 that 'she had become desperate to be discharged from the Unit to obtain heroin and so had a compelling reason to fabricate a complaint about Mr Singh'. The statement in [386] was one of four matters identified by the Tribunal when considering what weight could be placed upon C3's craving for heroin as a motive for her to fabricate allegations against Mr Singh.

42 The allegation which Mr Singh levelled against C3 was very serious. The question of whether that allegation was made out was, itself, subject to the Briginshaw standard of proof. As Mr Singh made the allegation against C3, he bore the requisite standard of proof.

43 In State Trustees Ltd v Bedford (as representative of Estate of Whitehead, decd),[30] Neave JA (Tate JA and Davies AJA agreeing) accepted that an allegation of fabrication in civil proceedings is subject to the principles in Briginshaw:

On appeal, counsel for State Trustees did not argue that his Honour should have held that the diary entries were fraudulently fabricated after Barry died, although Kim was cross-examined on this issue at the trial. Any such accusation would have been a serious one, to which the principle in Briginshaw v Briginshaw applied. His Honour was entitled to reject it, in light of Kim's denial that this had occurred, and the failure of State Trustees to call the expert they had commissioned to examine the original diaries.[31]

44 In New South Wales v Hunt,[32] Leeming JA (Barrett JA and Tobias AJA agreeing) relevantly held:

The primary judge expressly found that Senior Constable Ochs, for whose tortious conduct the State admitted it was vicariously liable, had fabricated key aspects of his evidence, including the terms of the initial conversation between him and Mr Hunt in which he had said that Mr Hunt threatened him. The evidence found to be fabricated was central to the defence, which was that Senior Constable Ochs had lawfully arrested Mr Hunt.

...

... However, the findings that the initial conversation and the threats had been fabricated were very serious, and there is no analysis in the reasons as to why a positive finding of fabrication, as opposed to a rejection of the evidence, was made. Section 140(2)(c) of the Evidence Act 1995 applied, although it was not mentioned by her Honour, nor is there anything to suggest that her Honour attended to the Briginshaw requirement of clear and cogent proof of the findings made: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170.[33]

45 In Kelly v Australia and New Zealand Banking Group Limited,[34] ANZ was a defendant and filed a cross-claim in respect of alleged defaults under various loan agreements and mortgages. ANZ submitted that a particular document had been fabricated. Hall J relevantly held:

The making of a finding of fabrication requires very cogent evidence that satisfies the requisite standard, having regard to the seriousness of the allegations made by ANZ. I have, in making findings in relation to DJK-5, of course, had in mind the applicable principles: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 171.

On the evidence, in particular on the evidence as to Mr Ghosh's examinations, findings and conclusions, and taking into account the evidence of Mr Kelly and the evidence of Mr Towers, I am satisfied to the required standard that:

(1) the purported email DJK-5 was not made on 12 April 2005; and

(2) that the alleged email DJK-5 was fabricated by Mr Kelly for the purpose of creating evidence to support his case based upon an alleged promise having been made by Mr Asher and through him, ANZ.[35]

46 The authorities referred to above support the proposition that where, in the context of civil litigation, one party makes an allegation of fabrication against another party, the party making the allegation is subject to the Briginshaw standard of proof. In circumstances where Mr Singh made an allegation against C3 that she had a motive for fabricating complaints against him, he was subject to the Briginshaw standard of proof. In considering whether Mr Singh had discharged that standard, it was legitimate for the Tribunal to refer to the natural hesitancy to conclude that C3 would fabricate allegations of sexual misconduct against Mr Singh in order to be discharged from the Unit and to obtain heroin. This is particularly so having regard to the matters referred to by the Tribunal in [386] and [387].

47 The 'inherent unlikelihood of an occurrence of a given description' is a matter legitimately taken into account in the application of Briginshaw. The Tribunal was doing no more than referring to this element of the Briginshaw standard in making the observations which it did in the opening sentence of [386].

Did the Tribunal err by 'by-passing' or disregarding the possibility that the Tribunal could reject Mr Singh's allegation against C3 and not accept C3's allegation against Mr Singh?

48 Mr Holdenson submitted that the Tribunal erred by automatically accepting C3's account when rejecting the fabrication hypothesis advanced on behalf of Mr Singh.[36] In support of this proposition, he relied upon the judgment of the Queensland Court of Appeal in R v G.[37]

49 In R v G, the accused was found guilty of having sodomised and engaged in other sexual activities with his son, then aged seven or eight years of age. The trial judge told the jury that the different accounts presented in evidence were:

... poles apart. They cannot possibly be explained away by mistake. One side is untruthful. One side is lies. In your fact-finding task, difficult as it may be, you have to face that head on.[38]

50 The appeal against conviction was allowed. Macrossan CJ stated:

The effect of the judge's direction in this respect was to induce the jury to choose between the two versions and bring in their verdict in accordance with that choice. He did not, in presenting them with that choice, draw to their attention the fact that their task was to decide whether, on a consideration of all of the evidence, they were satisfied beyond reasonable doubt that the prosecution case was true, whether or not they were persuaded by the defence evidence. In short, there was the further possibility that on the whole of the evidence they may have been left in doubt.[39]

51 Davies JA similarly stated in R v G that the trial judge's comments:

... could have lead the jury to think that, unless they were satisfied that the complainant was a liar, they should convict. The learned trial judge did not, in either context, indicate that there was a third possibility; that they could not be satisfied beyond reasonable doubt that the complainant's story was true. His failure to present this third possibility to the jury in the context of either of these passages amounted, in my view, to a misdirection.[40]

52 However, the Tribunal did not engage in such reasoning. The Tribunal's decision clearly demonstrates that it was aware that the Board bore the ultimate onus of proof to the Briginshaw standard in respect of the serious allegations made against Mr Singh.[41] After rejecting the hypothesis advanced on behalf of Mr Singh against C3,[42] the Tribunal did not jump to the conclusion that her account was therefore true. Rather it proceeded to consider other reasons advanced by the Board for accepting her account.[43] One of those reasons advanced by the Board and accepted by the Tribunal, was that Mr Singh's denial that he had been in C3's room should be rejected based on the evidence given.[44] The Tribunal concluded that it was 'comfortably satisfied that the events alleged [by C3] did occur',[45] and stated 'that none of the issues raised by the respondent creates doubts sufficient to undermine this comfortable satisfaction.'[46]

53 Thus the Tribunal did not overlook the third possibility of neither accepting Mr Singh's allegation against C3 nor accepting C3's account of events.

54 It should be noted that the amended proposed notice of appeal does not raise the issue of whether the Tribunal erred by considering C3's persistence in her allegations against Mr Singh. Mr Holdenson did not submit that the Tribunal erred by taking her perseverance into account.[47]

55 In order for leave to appeal to be granted under s 148(2) of the VCAT Act, the person seeking leave must identify a question of law which is important to the appeal succeeding or failing. An error of law which would not have made any difference to the outcome of the decision of the Tribunal does not satisfy that requirement and does not warrant an appeal being allowed.[48]

56 If contrary to the matters set out above, I had concluded that the statement in [386] did disclose error, I would still not grant leave to appeal. If [386] discloses error, it is not a vitiating error. Such an error would not detract from the Tribunal's conclusion that the Board had proved the allegations to the requisite standard. Absent [386], the balance of the Tribunal's findings of fact in respect of C3 are not undermined.

57 Any finding that the opening sentence of [386] discloses error is confined to an error by the Tribunal in the application of the Briginshaw standard in respect of the fabrication allegation which Mr Singh made against C3. If the Tribunal was wrong to have regard to a natural hesitancy to conclude that C3 would fabricate allegations against Mr Singh to be discharged and obtain heroin, it does not follow that the Tribunal's application of the Briginshaw standard to the Board's allegation against Mr Singh is tainted by error. The opening sentence of [386] forms no part of the Tribunal's conclusion that the Board discharged the onus of proof to the requisite standard.

58 Mr Singh's application for leave to appeal is dismissed. The parties indicated that they wished to have the opportunity to file submissions on costs once they had an opportunity to read this judgment. Those submissions are to be filed and served within 7 days of the date of this judgment and are not to exceed 10 pages in length.

1. Between on or about 20 August 2010 and on or about 26 August 2010, Mr Singh engaged in unprofessional conduct and/or professional misconduct in that he transgressed the professional boundaries that should, and ordinarily do, exist between a nurse and his or her patient, by engaging in inappropriate behaviour, including physical conduct of a sexual nature, in relation to ... during her admission as a mental health patient at the Maroondah Hospital Mental Health Unit (Unit).

1.1. ... was admitted to the Unit on or about 20 August 2010 and was discharged on or about 26 August 2010.

(b) sat closely down on the bed with ... face to face, to 'have a talk'; and

(b) hugged ... for a prolonged period of time; and

1.4 On or about 26 August 2010, during ... exit interview, Mr Singh:

(a) stated that he had ... mobile telephone number, and that he would take it home with him so that he could contact her;

(b) attempted to touch ... tongue piecing, requesting, repeatedly, that she stick her tongue out so that he could touch the piercing;

(c) told her that he was going to tell his girlfriend to pierce her tongue because 'he loved it so much'; and

2. Between on or about 16 September 2010 and on or about 17 September 2010, Mr Singh engaged in unprofessional conduct and/or professional misconduct in that he transgressed the professional boundaries that should, and ordinarily do, exist between a nurse and his or her patient, by engaging in inappropriate behaviour, including physical conduct of a sexual nature, in relation to ... during her admission as a mental health patient at the Unit.

2.1. ... was admitted to the Unit on or about 14 September 2010 and was discharged on or about 23 September 2010.

2.2. On 16 September 2010, whilst conducting an 'ECG' procedure on ... in her room, Mr Singh:

(a) asked ... if she wished to shave her legs, which she recalls were hairy;

(c) asked ... whether she had any tattoos and, when she responded that she had a dragonfly tattoo on her back, asked to see it; and

(d) mentioned to ... that he liked her tongue ring.

2.3 On 16 September 2010, at approximately 6:00pm, after taking .... blood pressure, Mr Singh:

(a) asked ... to poke out her tongue because she had a tongue ring;

(c) kissed ... on the lips and put his tongue inside her mouth;

(e) put ... hand inside his pants to touch his penis and kept her hand there when she tried to remove it; and

(f) asked ... for her telephone number and, when she gave him the number, entered it into his iPhone.

2.4 On 16 September 2010, at approximately 7.00 or 7.30pm, Mr Singh entered ... room and attempted to kiss her on the lips and touch her breasts.

2.5 On 16 September 2010, between approximately 8.00pm and 10.00pm Mr Singh entered ... room and went with her into the bathroom where:

(b) he pulled down his pants and asked ... to kiss his penis; and

(c) he forced ... face down towards his penis saying words to the effect of 'just kiss him once and I'll leave you alone'.

2.6 On 17 September 2010, at approximately 7.00am, while ... was sitting in the lounge room of the Unit, Mr Singh made repeated requests that she go to her room with him, in circumstances where he had previously engaged in inappropriate physical contact of a sexual nature with ... in her room.

2.7 On 17 September 2010, at approximately midday or shortly thereafter, while ... was sleeping, Mr Singh woke her by feeling her breasts under her bra and t-shirt.

3. On or about 22 January 2011, Mr Singh engaged in unprofessional conduct and/or professional misconduct in that he transgressed the professional boundaries that should, and ordinarily do, exist between a nurse and his or her patient, by engaging in inappropriate behaviour, including physical conduct of a sexual nature, in relation to ... during her admission as a mental health patient at the Unit.

3.1 ... was admitted to the Unit on or about 20 January 2011 and was discharged on or about 25 January 2011.

3.2 On 22 January 2011, in the early afternoon, Mr Singh:

(a) approached ... in a common area of the Unit and pinched her cheeks; and

3.3 On 22 January 2011, in the afternoon, Mr Singh;

(c) asked ... whether she would like to see him 'on the outside';

[1] Nursing & Midwifery Board of Australia v Singh (Review and Regulation) [2014] VCAT 1171; Nursing & Midwifery Board of Australia v Singh (Review and Regulation) [2014] VCAT 1627.

[2] Nursing & Midwifery Board of Australia v Singh (Review and Regulation) [2014] VCAT 1171.

[3] [1938] HCA 34; (1938) 60 CLR 336, 361-362 (Dixon J) ('Briginshaw').

[4] Nursing & Midwifery Board of Australia v Singh (Review and Regulation) [2014] VCAT 1171.

[6] Nursing & Midwifery Board of Australia v Singh (Review and Regulation) [2014] VCAT 1627, [24].

[7] [2013] VSC 374 ('Stirling').

[8] Ibid [66]-[67] (citation omitted).

[9] [1998] VSCA 142 ('Hanneberry').

[10] Nursing & Midwifery Board of Australia v Singh (Review and Regulation) [2014] VCAT 1171 (citation omitted).

[11] Con Karakatsanis and Tony Karakatsanis v Racing Victoria Limited (2013) 42 VR 176.

[13] Harpreet Singh, 'Outline of Submissions on behalf of the Plaintiff', 1 April 2015, [37] - [40].

[17] Transcript of proceedings, Harpreet Singh v Nursing and Midwifery Board of Australia (Supreme Court of Victoria, S CI 2015 00122, McDonald J, 10 August 2015) T91 L28 - T92 L12.

[18] [1998] HCA 2; (1998) 193 CLR 1 ('Palmer').

[20] [2000] FCA 365; (1998) 172 ALR 532 ('McPhee').

[21] J McPhee & Son (Australia) & Ors v Australian Competition and Consumer Commission [2000] FCA 365; (1998) 172 ALR 532, [130].

[24] Nursing & Midwifery Board of Australia v Singh (Review and Regulation) [2014] VCAT 1171, [378].

[25] Nursing & Midwifery Board of Australia v Singh (Review and Regulation) [2014] VCAT 1171 (citation omitted).

[26] Ibid [207], [273], [335], [349] and [351].

[27] (1996) 185 CLR 259 (citation omitted).

[29] Nursing & Midwifery Board of Australia v Singh (Review and Regulation) [2014] VCAT 1171.

[30] [2012] VSCA 274.

[32] [2014] NSWCA 47; (2014) 86 NSWLR 226.

[34] [2014] NSWSC 426.

[36] Transcript of proceedings, Harpreet Singh v Nursing and Midwifery Board of Australia (Supreme Court of Victoria, S CI 2015 00122, McDonald J, 10 August 2015) T38 LL13-28. See also Harpreet Singh, 'Outline of Submissions on behalf of the Plaintiff', 1 April 2015, [46].

[37] [1993] QCA 267; [1994] 1 Qd R 540 ('R v G').

[41] Nursing & Midwifery Board of Australia v Singh (Review and Regulation) [2014] VCAT 1171, [94]-[99], [144]-[145], [335] and [349].

[47] Transcript of proceedings, Harpreet Singh v Nursing and Midwifery Board of Australia (Supreme Court of Victoria, S CI 2015 00122, McDonald J, 10 August 2015) T103 L31 ― T104 L15.

[48] Forster v Legal Services Board (2013) 40 VR 587, [137] (Kyrou AJA, Weinberg and Harper JJA agreeing).