Tan v Xenos

Tan v Xenos - [2008] VCAT 584 - VCAT 2008 case summary — Zoe

[22]

This complaint has been investigated several times before this hearing. A complaint was made by the Complainant to the Human Resources Department of the Hospital in early 2006. The complaint was investigated by the Human Resources Manager, Kathleen Fisher, over a period of several months.
During the course of that investigation, Kathleen Fisher interviewed the Complainant, the Respondent, and many other employees of the Hospital. She ultimately found the complaint to be not established, and so no disciplinary action was commenced by the Hospital against the Respondent and, as far as I know, no other further action was taken by the Hospital in respect of this complaint.
Many of the statements and documents generated by the Hospital investigation have become exhibits in this case, and have been referred to extensively in the evidence and in submissions. I shall refer to this investigation as the "Fisher" investigation; and statements and documents generated during the course of this investigation shall be referred to as "Fisher" documents.
On the tenth hearing day before me, counsel for the Respondent applied for leave to rely on the statements generated by the Fisher enquiry and the Fisher report as evidence in this case. Counsel submitted that the Respondent could rely on these documents to prove the happening of the events described in those statements and the report. I ruled that I would accept the contents of the Fisher report into evidence without the need to call Kathleen Fisher to give evidence. However, I ruled that I would accept the contents of the report and the statements referred to in the report for a limited purpose. I would accept them as evidence that those statements had been made to Fisher by the persons identified by Fisher as having made them. I ruled that I would not accept them as truth of the matters contained in those statements.
Prior to this Complaint being lodged at VCAT, the Complainant, as required by the Equal Opportunity Act, lodged a complaint with the Equal Opportunity Commission. Although the Act requires that the proceedings before the Commission are confidential, the Complainant's statement of complaint to the Commission and the Respondent's statement in response are in evidence before me. I shall refer to these statements as the EOC complaint and the EOC response.

[23]

The Complainant described the alleged harassment in her witness statements and in giving evidence before me as detailed below.
She had been employed as a neurosurgical registrar at Monash since February of 2004. She was training to be a neurosurgeon. Her training conditions required her to be assigned to a surgical team for six months, and then be rotated into a different team for the next six months. For the first half of 2004 she was assigned to a surgical team headed by Andrew Danks, the supervisor of neurosurgical training at the Hospital. She finished her rotation with the Danks team in early August 2004 and then was swapped to a team headed by the Respondent, although Danks still retained the overall responsibility for supervision of her training.
From about December of 2004 she came to develop a supportive professional relationship with Xenos and to discuss her progress with him. Over the period from January 2005, Xenos commenced inviting her to his private rooms which were adjacent to the Hospital, for extra tuition. She refused these requests as they were made at times inconvenient to her. However, she did not perceive those requests as anything else than professionally based.
However, on 15 February 2005, she accepted an invitation from the Respondent to meet him at his rooms. She had telephoned him whilst she was still on duty at the Hospital to update him on the status of a patient. She said she made the call after 7pm. She said he asked her if she would soon be finished her shift. She said she would. He said he was still finishing some paperwork at his rooms and asked her if she could come over to his rooms when she had finished, so he could go over some neurosurgery topics as part of her training. She was reluctant to turn down another invitation for extra tuition as she thought it might give the impression she was not appreciative of his help, so she agreed.
She said this was the first time she had been to the Respondent's rooms, although she already knew where they were. She said Xenos suggested he would meet her in the car park behind his rooms, so he could show her in. So she drove her car to the car park and he was waiting there. She estimated the time of her arrival to be about 8pm. She followed him into the consulting suites and into his room.
She said that, after small talk about artwork on the walls, he led her into his room by the hand, and when she turned her back to look at the material on his desk, he suddenly approached her from behind, spun her around and embraced her. He kissed her on the lips, put his hand down her breast, pinning her against the desk, and as she twisted around to get out of his grasp, she saw his erect penis out of his fly.
She said Xenos then said to her -"do you want to go down on this", referring to his penis, as she escaped his grasp. Blurting out "how could you," she ran out of the premises to her car. She said Xenos followed her, and asked to drive her home. She refused his offer, and drove off.
The Complainant gave detailed evidence of the inside of the consulting rooms. She asked me to accept her evidence that she had never been inside Xenos' consulting rooms other than on that occasion, and to use her evidence that she knew the layout so well as confirmatory of her evidence that she had been there on that night in the circumstances she described.
She said that she was distraught after the incident, and spent the night crying. However, she determined not to make any complaint to her employer about the incident, as she was concerned that it would be her word against that of a senior and respected consultant in the very area in which she was working. Further, the Respondent was involved in her training assessment. She did not want to be seen as a troublemaker and thought her accreditation as a neurosurgeon, and her future career, might well suffer if she made a complaint.
She said that Xenos went about his usual work in the days that followed, and pretended nothing had happened. She tried to confront him about the incident, but he told her she needed to "move on" and it was clear to her he was going to pretend that the incident had not happened. She was in a quandary as to what to do. She was deeply embarrassed by the incident. She subsequently determined not to make any official complaint in respect of the incident, but said that it profoundly affected her capacity to work in the same environment with the Respondent and that, despite her initial resolve, she did make private complaints to various people in the weeks and months that followed.
The Complainant was extensively cross-examined about the incident. She was asked about her version of the layout of the consulting room. She was asked if there was a chair in the room. She agreed that there must have been. In giving her evidence-in-chief, and in her statement, she had not mentioned a chair. It was put to her that it would have been impossible for her to have been pushed back against the desk in the manner she described if there was a chair in the way. She agreed, and said she did not know exactly where the chair was, but thought it must have been away from the desk against the wall.
It was put to her that, if that was the case, she would not have had room to break free for the Respondent's embrace as she had described and run out of the room without touching the Respondent. It was said that the room was extremely small. She could not describe exactly how she did so, saying she was concentrating on getting away rather than the position of the chairs.
The Respondent says that the account given by the Complainant of the incident is internally inconsistent. Counsel for the Respondent suggested it was most improbable that she could have been grasped from behind, leaving her trapped between the Respondent's pelvis and legs, without also feeling his penis against her body - a sensation she did not describe and said she could not recall. It was said that the action she described would not have given the Respondent the opportunity to undo his fly and pull out his penis. It was said that the detail of when she had seen the penis had differed in her Fisher statement, in that she said she saw his penis when she was trapped against the desk, whereas, in her witness statement and in giving evidence, she said it was when she spun around out of his grasp.
It was suggested by counsel for the Respondent that there was no feasible explanation as to how she would have got out of the room after the event, with the Respondent and a door and a chair also in the way. It was suggested that the Respondent, being bigger and stronger, would have grabbed her had she attempted to do so. It was pointed out that various aspects of her description in giving her evidence - such as the playing of music in the background, and the presence of a chair, were missing from her earlier descriptions of the event to the Fisher investigation and to the Equal Opportunity Commission.
It was said that her inability to give evidence about the physical characteristics of the Respondent's penis, when she could recall some aspects of the night clearly - for instance, the textbook open on the desk and the precise chapter at which it was opened, pointed up the improbability of the Complainant's account. It was suggested by counsel for the Respondent that I should disbelieve the Complainant's account, as she had not given evidence about the colour, size or shape of the penis, and whether or not it was circumcised.
Counsel for the Respondent suggested I should attend the premises for a view to observe the layout of the room. I record that, in my view, there was little to be gained from such a course. The Respondent produced a plan of the premises. He gave evidence he had measured it himself. Both the Complainant and Respondent drew representations of the layout and these drawings were preserved as exhibits. There was much cross-examination of the Complainant on this issue. I suggested counsel for the Respondent consider tendering photos if she were concerned to establish matters not ascertainable by the above means. In the event, no photos were tendered.
It was suggested that the account was implausible as it was alleged to have commenced and ended so suddenly - without a lead-up and with no satisfactory conclusion. The Complainant gave no evidence of being frightened or unable to drive away in her car. Counsel for the Respondent suggested it further implausible that the Respondent would have invited her to his rooms for a nefarious purpose, well-knowing that at any time some other person, colleague or cleaner, may have entered the unlocked door. The rooms were said to be close to the Hospital, a scene of activity at all times of the night. It was most unlikely that he would not recognise that she might have told someone that she was going to his rooms.
Lastly, it was said that it was inconceivable that she would have attended for a tutorial without bringing pens and paper. Tan's evidence was that she was not in the habit of taking notes during a tutorial.
I have assessed the criticisms made of Dr Tan's account of the events on 15 February. In my view, the differences in her accounts are not of consequence. I think it unlikely that she would have recalled absolutely all details every time she described the incident, especially since she gave evidence of being highly perturbed by it. A rote recitation of the same facts on every occasion is not required to show truthfulness. In fact, minor variations may point to lack of rehearsal. Counsel made much of her not having mentioned being touched on the nipple. However, she gave plain evidence of having been touched on the breast.
Many of the fine distinctions sought to be made by counsel for the Respondent were unrealistic in the extreme. Some of those criticisms were not put to the Complainant in cross-examination. Where they were put, in my view they were dealt with credibly by the Complainant, who maintained a very precise and unwavering account over many days of cross-examination.

[25]

Xenos relied on nursing notes of patient X to show that it was highly unlikely that the incident could have occurred as Tan had described it. Those notes indicate that, at various times throughout the night of 15 February 2005, Xenos was contacted by nursing staff about this patient. Xenos said that the times recorded on the nursing notes, when he had been contacted by the nursing staff, render it quite improbable that he would have been free to meet with Dr Tan in the manner that she had suggested on the night of 15 February 2005, or to have sexually harassed her as she has suggested.
He said he was greatly concerned for the recovery of this patient as his post-operative recovery was compromised by hypertension. He could recall this night for this reason. Having been forewarned by nursing staff at 7.10 pm about a low blood pressure problem with this patient, a sign of possible bleeding, he said that he had finished his consulting work, urgent paperwork and ward rounds, and then decided to go home to await further calls, in case he was required to return to the Hospital urgently.
I have considered whether the evidence of the patient notes provides support to the Respondent's account of his whereabouts on the night of 15 February 2005. In my view, the notes do not assist me one way or the other in evaluating the truth of the Respondent's evidence.
Counsel for the Respondent asked me to take judicial notice of the fact that busy surgeons will have more than one patient to attend to at any given time. However, there was no evidence that, on this night, he had to be concerned about more than this one patient, and there is no suggestion in the notes that he would be called to look at patient X, if called at all, for at least two hours from 7.45pm - although, of course, one must take into account that a patient's condition might deteriorate at any time. The Complainant's account places the Respondent in premises adjacent to the Hospital at 8pm. There is no record of any phone call to him from the Hospital at about the time of the alleged incident.
The nursing notes do not therefore make it less likely that the incident occurred in the manner suggested by the Complainant.
I add also, for completeness, that I have not heard any confirmatory evidence that the Respondent was in fact at home by the time of the alleged incident. It is understandable that this evidence has not been led. Given the passage of time from the occurrence of the event, to the time of making a public complaint about it, I would not have expected that the Respondent would be able to provide alibi evidence for the night in question. I do not view the lack of such alibi evidence as detracting from the evidence of the Respondent.

[27]

Xenos gave evidence that, by the end of 2004, Tan would often seek him out for advice. He said she spoke to him of problems she had in Adelaide and problems she was having with her PhD. He described her as emotional, teary and stressed in late 2004. He said he had frequent counselling sessions with her over that time. He specifically referred to tension between her and Craig Timms, another neurosurgery registrar in the department, and to difficulties in communication with staff at the time of hand-over of patients.
He said he had discussed these issues with Tan in a "relaxed manner" and that she appeared jealous and resentful of Timms and non-accepting of his explanation and reassurance.
I heard other evidence in this case that Tan had told other staff that Timms had attempted to sexually assault her when they were together at a conference. It was not clear to me from the evidence I heard as to whether or not Xenos knew of this allegation. He did, however, give evidence that he realised there was tension between the two.
He said Tan had attended his consulting rooms in late 2004 for general teaching or counselling sessions on three or four occasions during daylight hours. He said he also conducted tutorials at his private rooms for Sarah Olsen, another neurosurgical registrar, including a mock-up with a private patient to help her in her forthcoming exams.
He recalled giving Tan feedback by SMS occasionally, sending text messages such as "well done", in relation to various procedures carried out well and also leaving phone messages for her. He described this as giving her "positive feedback".
He said he had got into the habit of giving Tan one-on-one tutorials, rather than joint tutorials, because she had refused to participate in tutorials with Timms. He said that this habit of giving her one-on-one tutorials continued into 2005 after Timms had left.
Tan emphatically denied that she had ever been to the Respondent's private consulting rooms before the night of the alleged harassment. Several other registrars gave evidence in this proceeding. None of them was asked, and none volunteered, whether or not they had ever been invited by the Respondent to a private tutorial in his rooms, or known of the Respondent having undertaken this course with the Complainant.
Craig Timms said positively that though he had held the position of neurosurgical registrar at the same time as Tan, he had never been invited to the Respondent's consulting rooms for a private tutorial. Olsen does not refer to having had a private tutorial with Xenos in her witness statement and was not asked about it when she gave evidence before me. However, in her witness statement, Tan recounts one occasion on which she observed Xenos gave a tutorial for Sarah Olsen in his consulting rooms.
None of Xenos' secretarial or surgical staff gave evidence on this issue. None of the specialists who had rooms in the same suite as the Respondent gave evidence of him holding private tutorials in daylight hours, or after dark.
The Respondent did not produce evidence throwing doubt on the Complainant's evidence that the first occasion she had been in his rooms was 15 February 2005, apart from his denial on oath that she had done so.

[29]

Both parties introduced evidence of events that had occurred at a dinner arranged for the staff of the Department of Neurosurgery on 9 February 2005, shortly before the alleged harassment. The dinner was arranged by the Complainant to welcome the new Registrar, Sarah Olsen, to the unit. Sarah Olsen had initially been friendly with the Complainant, but the relationship soon soured, and Olsen was called to give evidence on behalf of the Respondent. She said she had noticed Tan "flirting" with the Respondent at the dinner. Contrary evidence was led by Tan from Juan Prinsloo, a nurse in the unit who was also at the dinner. Prinsloo said Xenos "could not keep his eyes off" the Complainant throughout the dinner.
However, neither the Complainant nor the Respondent noticed any untoward behaviour from the other at the dinner, except that the Respondent said that, after the dinner had ended, Tan had suggested socialising elsewhere and he had noticed she appeared a little unsteady, so he offered to drive her home. He said she had refused and become irate, stating he was the only one who understood her and she was disappointed in his recent lack of support. From then onwards he said her attitude to him changed and his advice was no longer sought.
Tan denied having been affected by alcohol at the event, or having had the conversation described after the dinner. She said she would not have suggested socialising elsewhere, as she was due home after the dinner to celebrate the Chinese New Year with her mother. She said her attitude towards the Respondent changed shortly after the dinner as a result of the sexual harassment, which occurred six days afterwards.
I have formed the view that the conflicting evidence of the independent witnesses at the dinner does not assist me to decide between these two versions of the events after the dinner. It is also of no assistance in establishing that either party had a romantic interest in the other.
Juan Prinsloo also gave evidence that Xenos had commented to her, well after the date of the alleged harassment, that the Complainant "needs a good fuck".
Xenos denied making such a comment. The context in which this comment was alleged to have been said does not support a sexual interest. It appears to me, if made at all, to have been made as a disparaging comment rather than any indication of sexual interest.
Counsel for the Respondent points out that, apart from the evidence of Juan Prinsloo, there is no evidence that the Respondent had engaged in conduct suggestive of a sexual interest in the Complainant prior to or after the events which are the subject of this proceeding.
In my view, none of the evidence of the behaviour of the Respondent or Complainant at the dinner is of any assistance in assessing whether or not the incident occurred as alleged. There is no evidence of either party having displayed or expressed a romantic or sexual interest in the other prior to or subsequent to the night of the alleged sexual harassment.

[31]

Much evidence was given by the witnesses called by the Respondent of the esteem in which he is held professionally and personally. Many witnesses commented that an act of the kind described by the Complainant seemed to them to be completely out of character, and that they had observed him to be an exemplary role model and devoted to his wife and children.
That evidence of good character came from very eminent colleagues and support staff within the Hospital. Indeed, many witnesses have compared their assessment of his character as compared to their assessment of the character of the Complainant, with unfavourable outcome for the Complainant.
I am aware that there is real doubt as to the circumstances in which evidence of good character may be used in a civil case. I have taken the view that this is a case of a very serious nature, in which the activity complained of may come within the purview of the criminal law.
But there are many differences between the task before me and the task of a jury in a criminal trial. Such a jury would be instructed that evidence of good character, if accepted, renders it less likely that the accused has committed the crime under consideration and enhances the credibility of the accused in giving his evidence. I have decided to use the evidence of good character in this case as enhancing the credibility of the Respondent in giving his evidence, but not as independent evidence supporting his account of events. None of these witnesses can give positive evidence that the event did not occur. Evidence of previous good character cannot prevail against convincing evidence of guilt.
I need to distinguish the use to be made of good character, generally, and evidence of the Respondent's interaction with the Complainant both before and after the date of the alleged harassment. Insofar as evidence was given of the latter, I must take into account the context of this evidence, and the persons who gave this evidence, to make sure that it does in fact assist me to assess the credibility of the Respondent's evidence. It is not suggested by the Complainant that this harassment was anything other than a single impetuous act. There is no suggestion by Tan that there was a course of lecherous conduct either before or after the event. It is unlikely therefore that the Respondent's fellow colleagues would have noticed anything untoward about his behaviour. If her version of events is true, there was nothing for anyone to have noticed out of the ordinary in his treatment of her, leading up to the incident, or in its aftermath (except as detailed further in these Reasons).

[57]

I find that there is no evidence, from either of the above statements, from which I can conclude that the Complainant lived with her mother. Further, there is no evidence in this case from which I can conclude that even if the complainant did not live with her mother, she would have been expected to discuss the case with her mother at the first opportunity. The passage from her witness statement, reproduced above, provides an explanation as to why she decided not to speak to her mother about the harassment.
I also note that there was absolutely no cross-examination of the Complainant directed to challenging her account in relation to her mother, as set out above. It was never suggested to her that she lived with her mother, or that she should have discussed the incident with her mother. There was no other evidence at all that she lived with her mother.
The rule in Jones v Dunkel has no application unless there is an unexplained failure to call a witness who would otherwise be expected to give evidence. Given the above, I find there are no facts from which I should infer that the Complainant lived with her mother or that her mother could have witnessed her distress shortly after the occurrence of the incident alleged. There is therefore no reason why failure to call the mother should attract the rule in Jones v Dunkel.
The Respondent referred to a comment in the witness statement of Tan that staff were "unsurprised" on hearing of her sexual assault allegation against Xenos. I ruled (without objection from counsel for the Complainant) that this comment should be deleted from the witness statement. It did not therefore form part of the Complainant's case at trial. Nonetheless, counsel for the Respondent says that I should use the fact that it was made without a foundation for it being established at trial as further evidence of the Complainant's untrustworthiness. It was further put that failure to call evidence to back up this comment in some way attracted the rule in Jones v Dunkel.
I do not propose to put weight on this deleted comment. It seems peripheral to the facts of this case. It should not have been in the witness statement and no reliance was placed upon it by the Complainant. It is of little assistance to me in determining the veracity of the Complainant.

[68]

Overall, I was impressed with the veracity and consistency of the Complainant in giving her evidence. Counsel for the Respondent submitted to me that she was an "unresponsive" witness and that she presented in a very unsatisfactory manner. I did not find her so. Clearly, she was a witness of rigid views and displayed a tendency to be combative. But she was subjected to a rigorous cross-examination. The cross-examiner would move back and forth through topics without regard for chronological order, and pressed her vigorously, going over the same material many times. However, the responses from Tan appeared to me internally consistent. She certainly did not appear evasive or inconsistent in the evidence she gave.
Xenos also gave evidence in an impressive manner, subject to criticisms which I will explore further later. It is to be noted that he produced evidence of Tan's working capacity and professional standards, which is to some extent at odds with other evidence in this case. I will return to this issue.
I am very much aware that there is little that a person, wrongfully accused of sexual harassment, can do in his own defence except to emphatically deny that the event took place. There is no evidence that Xenos was told that the Complainant would be pursuing her claim of sexual harassment until he was telephoned by Danks at home on a night in late January 2006. There is no evidence that he knew the detail of what was alleged until early February 2006, almost a year after the date on which the event was alleged to have occurred. I accept that it would have been difficult for him to retrace his steps on the night claimed, or produce any witnesses as to his activities on that night, given the passage of time.
As is the nature of many allegations of sexual assault, there are no witnesses who can support the Complainant's description of the event or the Respondent's evidence that it did not occur. Were I to be faced with two equally compelling versions of events given by the Complainant and the Respondent, then the Complainant's case must fail.
Counsel for the Respondent has submitted that the Complainant's allegation, standing alone with the Respondent's denial, could not, as a matter of law, satisfy me on the balance of probabilities that the event described by the Complainant did in fact occur. In my view this is not a correct statement of the law. I would be entitled to accept the Complainant's evidence, even if it was not supported in any way, if I were satisfied that it was more probable than not that her version of events was true. However, in this case there has been evidence advanced by both parties to support the accounts each has given, and which they say throws doubt on the evidence of their adversary.

[69]

The Respondent has urged me to find that the Complainant has made up this allegation. He has identified evidence which he says I should use to support his case and to discredit the Complainant's case.
Principally, he says that she has done so because her performance as a neurosurgeon was unsatisfactory, and she knew that she was likely to fail her neurosurgical training. He says she made up the story to use as an excuse to Dr Danks and the Board of Neurosurgery so that she could get special consideration in her final assessment at Monash.
In support of the Respondent's case I have therefore heard a great deal of evidence as to the Complainant's standard of training and progress in neurosurgical training both before and after the incident alleged.
In order to rebut the Respondent's allegation that she has concocted this story, the Complainant has introduced into evidence several witnesses who say she complained to them of this incident during the course of 2005. She relies on this evidence to rebut the suggestion that she invented the claim of harassment in 2006 when she failed her assessment.
She has also provided evidence which she says refutes the claim that her overall standard of work was poor, and known by her to be poor. She also says the evidence will show that her work performance and mood deteriorated shortly after the date of the harassment, and as a direct result of the harassment.
She says that the evidence she has introduced in this way neutralises the suggestion of the Respondent that she has recently invented the story as leverage during her assessment period.
However, the Complainant asks me to go further and use this evidence of complaint and evidence of distress and change of mood as adding consistency and credibility to the Complainant's version, and also as independent items of circumstantial evidence buttressing her account and rendering it more likely to be true.
The findings of fact as to these subsidiary matters, and making a decision as to how they can be used in this case, has proved extremely time-consuming and difficult.

[82]

I have previously ruled on the admissibility of this and other statements purporting to be statements of fact in the Fisher report. I ruled that I would accept the contents of the report without the need to call the maker of the report. However, I ruled that I would accept the statements contained in the report only for a limited purpose. I would accept them as evidence that those statements had been made to the maker of the report. I ruled that I would not accept them as truth of the matters contained in those statements.
On hearing that ruling, counsel for the Respondent sought leave to call Kylie Fryer to give evidence in this hearing. I made procedural orders for the hearing of any application by the Respondent to call Fryer, or certain other witnesses. Such application was ordered to be made by 28 September 2007. The Respondent made no such application within the time stipulated.
The Respondent made an extremely late application to call Fryer in February 2008, well after the hearing of this case had concluded. I have separately ruled against this application.
These then are the circumstances against which the Jones v Dunkel application needs to be considered.
I have sworn evidence from the Complainant that she told Fryer on 4 March 2007 that she had been sexually assaulted by the Respondent. It was not suggested to her in cross-examination that she did not do so, or that her calculation of the date on which the conversation took place was incorrect, although I note that the Respondent sought to challenge these matters in the unsuccessful application to re-open his case.
It was suggested to Tan in cross-examination that she had mis-described the incident as a "rape" when, on her evidence, it was much lesser in seriousness than that.
In my view, the circumstances I have described do not permit me to draw an unfavourable inference against the Complainant by her failure to call Fryer as a witness. The Complainant has given sworn evidence about the conversation with Fryer, which has not been challenged by any other evidence before me. It is the Respondent who should have pursued the application to call Fryer if he wished to lead evidence of the matters raised in the Fisher extract.
I am, however, not persuaded that it would be appropriate to use the Complainant's evidence that she complained to Fryer as supportive of the Complainant's case, or adding to her credibility.
It is plain from the principles, as I have outlined them, that there is a discretion to admit complaint evidence where the person to whom the complaint has been made has not been called to give evidence. I may do so, but I am not required to. It is my view that it is not appropriate for me to rely on this evidence in this case.
Although the timing of the complaint has not been challenged, and the Fisher document put to the Complainant in cross-examination did not suggest that no complaint had been made, there was very little of detail in the conversation as described by Tan.
I have not had the opportunity to hear from Fryer. I have ruled that it is not now appropriate for her to give evidence, for reasons set out in my ruling. But given that controversy surrounds the circumstances in which the complaint was made to her, it is my view that I should regard the evidence of complaint to Fryer as a neutral fact, not throwing doubt on the Complainant's case, but not supportive of it.

[83]

Professor Kaye is an eminent neurosurgeon at the Royal Melbourne Hospital. He had worked with the Complainant prior to her commencing her neurosurgery training and, at the time of these events, was her mentor.
The Complainant gave evidence of having told Professor Kaye of the incident in March 2005. The Complainant's evidence was that she was very upset and crying throughout the whole meeting, and her evidence is supported by Professor Kaye, who described her as very upset, and having left the meeting in tears. The Complainant says she told him she had been sexually harassed at work by a consultant, and that he told her she must speak to Dr Danks, the Head of the Monash Neurosurgery Unit, about it. She said she did not want to do this because she feared what might happen when she raised the allegation, but he was insistent that she should.
Professor Kaye said this conversation occurred on 22 March 2005 during an interview in his office. He said in his witness statement that he was very concerned about her during the meeting as she looked very upset, and it appeared she had difficulty raising the matter with him. He said he was concerned about her, as she appeared to be very "fragile".
He said he told her to report it to Dr Danks or to the Human Resources Department of the Hospital. He said she expressed reluctance about doing so, saying that her reluctance was because some of the consultants at Monash were unsympathetic, and a complaint of this sort might make matters worse for her. Notwithstanding this, Professor Kaye reiterated that she should speak to Dr Danks.
Professor Kaye was called for cross-examination. However, he was not cross-examined at all in any way which suggested that this meeting had not occurred, or that the contents of his witness statement were not correct. The Complainant was not cross-examined at all as to her account of this meeting.
I find that the Complainant complained to Professor Kaye on 22 March 2005, approximately five weeks after the occurrence of the alleged harassment, that she had been sexually harassed at work.
The evidence of complaint is, in my view, much more significant than the evidence of complaint to Fryer. Professor Kaye was a very impressive witness of unchallenged integrity . His evidence of the complaint contains a great deal of detail, which is completely consistent with the Complainant's account of the meeting. The detail explains the timeframes for the later complaint to Danks, and it confirms the Complainant's expressed reasons for hesitating before making a complaint to him.

[88]

Dr Wallace was cross-examined. It was suggested to him that his recollection might not be reliable, in that Tan had not given evidence of two conversations with him about this matter, only one. It was suggested to him that Tan had not spoken of Xenos having "exposed" himself to her.
He was unable to be precise on exactly when each conversation occurred, describing himself as "dreadful on dates".
The Respondent, in written submissions, suggested that Wallace's evidence should in some way be discounted, as it was asserted that Wallace was a "long time friend" of the Complainant. Those written submissions refer to and adopt the matters contained in the affidavits of the Respondent's instructing solicitor. In brief, the allegation in those two affidavits were, firstly, that Wallace had refused to co-operate in giving a witness statement on behalf of the Respondent in this matter, and a suggestion that he had refused to do so because he was the "personal partner" of the Complainant.
Although counsel for the Respondent refused to agree that the phrase "personal partner" carried any connotations of a sexual or romantic relationship, my view is that the use of that term in the affidavit was meant to give me that impression.
I record that no question was put to Wallace in cross-examination about his relationship with the Complainant, and there is no evidence before me that Wallace was anything other than a professional associate of the Complainant. There was certainly no evidence of him being a "personal partner" of, or having a romantic attachment with, the Respondent.
In my view, Dr Wallace was an impressive, impartial and truthful witness and I accept the evidence that he gave.
Dr Tan was not challenged in cross-examination about the content of this conversation with Wallace. She was challenged about when this conversation with Wallace had taken place. In her Fisher statement, she had referred to it prior to referring to the complaint to Professor Kaye. In her witness statement, filed in this proceeding, she had referred to it after referring to the meeting with Professor Kaye.
Tan said, in giving evidence before me, that the chronology in the witness statement was wrong and that she had spoken to Wallace first in time. She said she could be sure of this, because it had been Wallace who suggested that she talk to Professor Kaye, and she had done this on his advice.
Counsel for the Respondent invited me to find that the conversation with Wallace took place after the conversation with Kaye, because of the wording of Tan's witness statement as I have quoted it above. She suggested that words such as "the conversation went along similar lines to that I had had with Kaye" point to this conclusion. She pointed out that this was consistent with the order in which the complaints are described in the Complainant's witness statement.
I have sworn evidence from the Complainant that the conversation with Wallace took place after the complaint to Fryer, which occurred on 5 March 2005, but before Tan spoke to Professor Kaye on 22 March 2005. This order of events is followed in the Complainant's statement to the Equal Opportunity Commission.
Further, in Wallace's statement filed in this Tribunal he notes that Tan asked him whether or not she should speak to Professor Kaye about the harassment, and he told her it was essential that she do so. Professor Wallace was not cross-examined about this.
I accept the above evidence as establishing that the first conversation with Wallace took place before the first meeting with Kaye and, therefore, shortly before 22 March 2005. I do not regard the matters submitted by counsel for the Respondent as determinative.
The Respondent sought to argue that Wallace's evidence to this Tribunal indicated that he possibly did not believe her story. This suggestion is made because, during the course of giving evidence, he started a sentence with the words "Even if there were no truth in the matter". In my view, there is no substance in this submission. Wallace was not cross-examined as to whether or not he doubted the truth of the complaint. These words do not suggest that he did.
The evidence of complaint to Wallace is intrinsically interconnected with the evidence of complaint to Professor Kaye and to Dr Danks (I will discuss the complaint to Danks shortly). It puts those complaints in context, and makes sense of their timing. It also illustrates the reason behind the lack of complaint at the time of the incident to the Hospital authorities, and her cautious use of language in her subsequent conversation with Danks - that is, because the Complainant was very concerned not to take any step which might adversely affect the outcome of her assessment as a neurosurgical registrar.

[91]

As I have said, Dr Danks was the Head of the Neurosurgery Unit at the Hospital and was Tan's supervisor. He is also an eminent neurosurgeon.
Dr Danks gave evidence of Tan having made a complaint to him in April or May of 2005. He said she told him she had been sexually harassed, both in the privacy of an office and in the operating theatre. He understood from her conversation that it was the one neurosurgeon who had harassed her on both occasions. No detail was provided by Tan to him of the form of harassment. He was not told the name of the person concerned or the physical details of what had happened, but understood it to have been a consultant neurosurgeon.
He said Tan asked him to respect her confidentiality and not do anything about the matter. He asked what her purpose was then in speaking to him. She said that she thought he should be aware of it so he would understand why she had been tense and unhappy and in case relationships with the consultant deteriorated further. He recalled discussing the possibility with her of swapping with Sarah Olsen, so Tan could be on the other operating team (and thus away from the operating team headed by Xenos).
I deal later with general issues to do with the credibility of Dr Danks generally, particularly in relation to his evidence of Tan's poor performance as a neurosurgical registrar. In dealing with the question of complaint, I note that even though Danks was called to give evidence by the Respondent, his evidence of this first complaint to him was confirmatory of the essential elements of Tan's own account of the conversation.
He agreed that she had made a complaint to him in April or May of 2005 about sexual harassment by a neurosurgeon at the Hospital in the privacy of his office. He agreed she had told him to keep the complaint confidential. He agreed there was no physical detail given to him at that stage, and that Tan had said she had told him about it to explain why she appeared unhappy at work and because she was concerned about the effect her state of mind would have on her work.
His evidence also confirms some of the surrounding, less crucial, parts of her evidence. For instance, he agrees he spoke to her in this conversation about moderating her style of clothing.
Tan gave evidence that she had told Danks that she had a complaint of sexual harassment against two consultants - one in theatre and another in the privacy of an office. Danks' evidence was that he had understood that the two instances related to the same consultant. Tan says her comments about the other consultant were just by way of background introduction to the subject matter she wanted to raise, which was the incident involving Xenos.
In my view, the differences between them on this issue is most likely to have been a misunderstanding. Both gave credible evidence on this issue. There is no reason for me to find either of them to have deliberately given false evidence.
The other major difference between the evidence of Danks and Tan as to this conversation was that she said that although she had not named Xenos, she had given enough information or "clues" for Danks to understand who the person was. Those clues were that he had young children, that he had rooms next to the Hospital, and that he was young. When I asked her to explain these clues, she said that Dr X was the second youngest consultant, and the only consultant with young children who had rooms near the Hospital. She said she was certain that, by giving these clues, Dr Danks would have known exactly who she meant.
She was asked in cross-examination, many times, to explain why she did not give Dr Xenos' name to Danks. It was suggested to her that it was because, at that time, she had not finally decided which consultant she would allege sexual harassment against.
Her evidence was that when she approached Dr Danks she was in a quandary. She had been urged by Professor Kaye to tell Danks. However, she wanted to be:-

[96]

She was asked how a major motivation could have been fear of Xenos' influence on her assessment, if she had not told Danks that it was Xenos who harassed her. She said she thought she had made it clear to Danks that it was Xenos. She had been operating under the belief that, by not making a formal identifiable complaint, she would keep Danks on-side, as she did not want him to think of her as a trouble-maker. Above all, she wanted there to be no negative implications on her future career.
It was suggested to Tan that when speaking to Dr Danks she had spoken in vague terms about harassment in general in the operating theatre towards nursing staff, rather than making a complaint against Xenos. She agreed that she had spoken about sexual harassment of nursing staff in the operating theatre. She said she had done this as a prelude to telling him about the incident with Xenos, not instead of telling him about the incident with Xenos. She agreed she did not give actual examples of the theatre harassment, but spoke in general terms. She said she told Danks that she had told Xenos about this harassment, and so it was doubly insulting to her that he should have sexually assaulted her.
Danks' evidence was that he had no idea whom she was talking to him about. However, he gave evidence that when he saw her walk into the room at a fundraising dinner in July or August of 2005, and then walk out when she saw Xenos, he wondered if Xenos was the one to whom she had referred. There was other evidence, to which I will refer later, that he had told another consultant, Dr Pullar, that the Respondent was the alleged perpetrator by about September of 2005.
I am satisfied from the evidence I have heard that the Complainant complained to Dr Danks, in April or May of 2005, that she had been sexually harassed in the privacy of an office, by a neurosurgeon in the unit whose name she did not provide. I further find, from the evidence I detail below as to the Complainant's second meeting with Professor Kaye, that this complaint to Danks occurred before 18 May 2005.

[107]

The Complainant gave evidence that, in August 2005, she spoke to a nurse called Valerie Brilliant (also known as Valentina Ferguson). Brilliant was a clinical nurse specialist working in the post anaesthesia ward.
Brilliant described a conversation which took place after Tan had come to the ward to check on a particular patient. She said she noticed Tan seemed upset and so asked her how she was. Tan said she was feeling very stressed and unhappy ever since she had been sexually assaulted by Xenos. In her witness statement, Brilliant recounted that Tan had appeared reluctant to talk about the incident at first, but, after some conversation, had told her that she agreed to meet Xenos so he could help her out with exam preparation, but that he behaved inappropriately and opened his fly in front of her.
Brilliant could not recall when the conversation she described took place, but said it was some time in 2005. Tan's evidence was that she could place the conversation as having taken place in August of 2005.
Brilliant was called for cross-examination. However, it was not suggested to her in cross-examination that this account of Tan's complaint was inaccurate. It was also not suggested to her that Tan's estimate of the conversation having occurred in August 2005 was incorrect.
It was suggested to Brilliant that there was a discrepancy between describing an open fly and describing an erect penis. I accept Brilliant's evidence as to what occurred. In my view, the suggested discrepancy does not detract from her evidence as to the making of this complaint.
Brilliant's evidence is also important, as she says she asked Tan whether she had spoken to anyone about the incident, and she said she had spoken to Danks. She said that Tan had described the conversation she had had with Danks, and that Danks had commented "men are men and she always dresses nicely so what could she expect". She also says Tan told her she had told Jhooman and Prinsloo. Tan confirmed this in her evidence. She was not cross-examined as to these issues.
Therefore, Brilliant's evidence is consistent with Tan's evidence that she had spoken to Danks, and what Danks' response had been.
Her evidence is however not in any other sense buttressing of the Complainant's evidence of harassment. By the time Tan spoke to Ferguson, she had already spoken to Danks. By repeating the complaint to Ferguson, Tan does not add credibility to her evidence.

[108]

The final evidence of complaint was to Dr Pullar. The Complainant gave evidence that she spoke to Dr Pullar in August of 2005. She said she did so on a Saturday morning, after assisting Dr Pullar in theatre. After being shown the theatre records, which do not reveal an occasion on Saturday in August that she was on theatre with Pullar, she said she thought this conversation must have occurred on 3 September 2005.
She said she had been unhappy at Danks' reaction when she had told him of the assault, and thought Pullar might show more sympathy and understanding. She said she told him that some time ago she had been sexually harassed by one of the younger consultants in his rooms close to the Hospital. She said he laughed and said, "What do you want me to do about it?". She said she told him she just wanted him to be aware of it. She said to Pullar that she had told Danks. She said Pullar showed no interest in discussing her allegation further.
Dr Pullar filed a witness statement and gave evidence before me. His evidence substantially confirms that of Tan, even though in his witness statement he describes her account of this complaint as a "distortion" of what occurred, he agreed he may have reacted awkwardly and in an embarrassed manner, when told of the alleged assault, as he was "taken aback" by it, although he denies having been amused or dismissive.
He does not deny that he was told of the complaint of assault by Tan and that he suggested she tell Danks. He agrees she told him she had already done so. He agrees he asked her what she wanted him to do, and that she said she did not wish him to do anything, but that she was telling him because she thought the situation might prejudice her future assessment.
He also said that he recalled speaking to Danks after this conversation, and that Danks confirmed that he already had been told of the allegation by Tan, and had also been asked by her not to take it any further.
He gives no evidence in his witness statement as to exactly when he had this conversation with Tan, or the subsequent conversation with Danks. However, in his Fisher statement, he says the complaint was made to him by Tan "in mid 2005, going into the second quarter, on a weekend". The Fisher statement also reads:-

[112]

There are very many instances recorded on which the Complainant has made a complaint to others that she had been sexually harassed. Almost none of this evidence was challenged. The Respondent did not suggest that the Complainant had not in fact made any of these complaints. Several of the witnesses of complaint were not even called for cross-examination. Other witnesses of complaint were witnesses called by the Respondent, but who verified the Complainant's own evidence that she had complained to them. I have indicated, in examining each instance of complaint, that I accept that the Complainant did in fact make the complaint, and that it was made substantially in the terms she says she made it.
There is a striking amount of complaint evidence which is interlocking. The Complainant says that the dovetailing of the complaint evidence reinforces her overall credibility. It is apparent that several of the instances of complaint are linked in a credible way. It is clear that she complained to Wallace, Fryer, Feldman and Kaye in March 2005, that Wallace told her to speak to Kaye, that Kaye told her to speak to Danks, that she complained to Danks in April or May of 2005, that she spoke again to Kaye and to Wallace in late May 2005, describing the conversation she had with Danks, and that she spoke thereafter to Drnda and Pullar, describing the complaint she had made to Danks, and that Pullar and Danks spoke together about the complaint she had made to them.
To some extent, the Respondent relies on this evidence of multiple complaints to cast doubt on the Complainant's credit. The Respondent says that the Complainant made up complaints of sexual harassment indiscriminately throughout 2005 in response to her increasing awareness that her standard of performance was unacceptable and that it was likely that she would fail her training assessments for that year.
The Respondent asks me to find that the Complainant used this scattergun method - making a series of complaints of a general sexual nature - just in case she needed an excuse in the event that she failed her training assessment at Monash. The Respondent says that the discrepancies in the individual complaints make it clear that the Complainant was making up these complaints as she went along.
To prove this scattergun approach, the Respondent relies on the evidence of the Complainant herself that she complained to Danks about two surgeons - only one of whom was the Respondent. The Respondent asks me to look at the different descriptions -"rape" to Fryer, "grope" to White, descriptions such as "sexually harassed", "sexually molested", a claim of attempted rape of her by Craig Timms, a claim of "the most extreme form of sexual assault", the naming of Xenos to some witnesses and not to others. The Respondent says this shows there was nothing that had occurred at all, and Tan was just making these complaints up as she went along.
I reject the Respondent's suggestion that the claims of harassment are not consistent with each other. In fact, my view is that they are striking in their consistency. The only aspect in which there is inconsistency is the description to Kylie Fryer in the email of rape. I have dealt with this email earlier. In my view, the use of this word is consistent with the overall reaction of the Complainant to the incident, and is not persuasive evidence of lack of consistency.
The complaint of sexual assault against Timms is in a different category. This incident was introduced into evidence by the Respondent. The Complainant gave evidence in response that Timms had inappropriately attempted to seduce her whilst they were both staying at a conference hotel. The Respondent did not go as far as to suggest that this evidence could be used to suggest that she was the sort of person who would fabricate complaints of sexual assault. In any event, I record my view that the evidence is not capable of supporting this assertion. I note, in particular, that even though Timms gave evidence and filed a witness statement, he did not directly deny that the event described by Tan occurred. Further, there is no suggestion that Tan had made, or ever intended to make, a formal complaint about Timms for his behaviour.
In my view, the incident between Timms and Tan does not assist me to come to a conclusion as to the veracity of the Complainant. There being no evidence that it was a false complaint, it does not throw doubt on the truthfulness of the Complainant.
The Respondent says that when you look carefully at the two principal complaints to the Head of the Unit, Dr Danks, in April and August, you can see that they each follow an incident in which the Complainant was stressed, as having been criticised over her performance. Thus, her awareness, as a result of each incident, that she is in danger of failing her assessment the complaint is made up as insurance against failing her assessment. I will deal with each of these incidents shortly when I analyse the evidence of the Complainant's work history and performance.
However, in my view this proposition has no support from the dates of each complaint. The only way that the complaints can be viewed consistently with the Respondent's position, is that by late March 2005 ( the date she spoke to Professors Wallace and Kaye), the Complainant had embarked upon a calculated course of laying a trail of complaints which each interlocked in a mutually supportive way. She did so at a time where there was not very much evidence of concern about her performance. She did so on the off-chance that she might be in danger of failing her assessments at Monash, as she had come close to doing in Adelaide.
I note that this proposition also involves accepting that she continued to make false complaints of harassment over the next months, even after receiving a very favourable assessment in July of 2005, which mentioned no concerns, described her as making "steady progress" and rated her highly on clinical skills, technical skills, and attitude.
Further, the March incident was not mentioned to Danks by anyone until it was reported by the Respondent in February 2006, after the Respondent had been told that the Complainant had lodged a formal complaint of sexual harassment. It seems unlikely that it would have therefore have assumed such a place in the mind of the Complainant that she would immediately fabricate a complaint of sexual harassment because of it. She had another more credible reason to speak to Danks - she had been told to do so by Professor Kaye and Professor Wallace.
Counsel for the Complainant urged me to use the evidence of complaint to the first five witnesses in time - which he identified as in order, White, Wallace, Fryer, Kaye, and Feldman - as evidence of vital importance to buttress her account of the precise timing of the assault.
He submitted that I should use the evidence of these first five complaints in the same way as if they were proximate complaints in a criminal trial. In other words, I should recognise them as consistent with the account given by Tan that she had been the subject of sexual harassment by Xenos on 15 February 2005, as she described, and as buttressing her credit in giving evidence of that harassment and rebutting the attack on her credit made by the Respondent.
In relation to the later complaints, counsel for the Complainant recognised that these complaints were too remote in time to be characterised as proximate complaints if this were a criminal trial, and of less importance in placing the exact date of the incident, but said I should use this evidence of complaint as confirming a consistent pattern of hesitancy to complain to authorities and hesitancy to publicly identify the Respondent.
However, Counsel for the Complainant went further than this. He submitted that I could use the fact that these complaints had been made as independently corroborative of the Complainant's evidence. That is, he submitted that it was evidence which tended to prove the truth of the allegation.
Counsel drew my attention to the fact that this Tribunal is not bound by the rules of evidence. He also provided a folder of decisions of various Australian anti-discrimination tribunals in which evidence of complaint has been used, to varying extents, to corroborate the evidence of a Complainant in a sexual harassment case, rather than just buttressing the Complainant's credit.

[114]

This Tribunal is not bound by the rules of evidence. (section 98 of the Victorian Civil and Administrative Tribunal Act), but it is bound by the rules of natural justice. It is required by section 97 of the VCAT Act to act fairly and according to the substantial merits of the case in all proceedings.
Section 98 of the Act requires the Tribunal to dispose of a case quickly. It also requires me to conduct the proceeding with as little formality and technicality as possible.
There are very many different types of proceedings before this Tribunal. Some are very simple. Some deal with a single issue. In many cases litigants are not represented by lawyers. In some cases part of the evidence must be kept confidential. Some involve repeat litigants in which the rules of procedure have been developed to suit the resolution of particular technical issues. The rules of evidence sometimes provide an expensive and unwieldy barrier to the prompt effective resolution of such disputes.
However, there are also some very long and complex cases heard by this Tribunal. Many of these cases involve large sums of money, for in many of its jurisdictions the monetary limit of this Tribunal is unlimited.
Some cases do not involve a large amount of money, but a principle important to a litigant or to the community generally.
In my assessment, the issues involved in this case are of the gravest importance to the parties. For each of them, their professional standing is in doubt by reason of these allegations.
Therefore, it is my view that I should not take up counsel's invitation to use this evidence of complaint as independent evidence tending to prove the truth of the harassment. I take into account that the allegations in this case are very serious. I take the view that I should take a rigorous approach to the analysis of evidence presented to me. I must be very careful not to conclude that just because a complaint of sexual harassment was made many times it is more likely to be true. I am conscious that I may fall into error if I allow evidence of complaint such as this to let the Complainant "pull herself up by her own bootstraps" to give the impression that the complaints are additional evidence to confirm her story of assault.
In a criminal trial evidence would rarely be admitted of multiple complaints. In order for evidence of a complaint to be put before a jury, it would need to be consistent with the allegation made, and made at the first reasonable opportunity. I have outlined my view that all of the evidence of complaint I have heard is consistent with the allegation made by the Complainant. I record my view that the complaints made to Wallace and Kaye were made at the first reasonable opportunity, given the circumstances of this case - that is, taking into account the professional relationships between Tan and the Respondent, and her professional relationships with those to whom she complained. I accept that her reasons to hesitate about complaining at all were genuine, and that in that context a relatively short time elapsed between the incident of harassment and these two complaints.
A jury would be told that evidence of complaint could be used to buttress the credibility of the Complainant. In my view the complaints to Wallace and Kaye do enhance the credibility of the Complainant in giving her evidence.
But the evidence of Kaye and Wallace, taken together with the evidence several of the complaints to other persons is relevant in another way. The interlocking nature of the complaints, to Kaye, Wallace, Danks, Pullar and Feldman, buttresses the Complainant's evidence that she did in fact make the complaints concerned during the timeframe she says she did. The words she says she used, or others used, when she made those complaints are in some instances independently verified.
The sequence of complaints gives credence to her explanation that she was extremely worried about the effect on her career of making such a complaint against one of the consultants involved in her assessment. Her hesitation is evident in the description given by all the witnesses of her complaints. It is evident in her first approaching those she thought would be sympathetic and asking for advice as to how to proceed. This evidence enhances the Complainants credibility, not because there are many occasions of complaint, but because each of these parts of the evidence logically fit together.
I do not take into account the complaint to Fryer as buttressing her credibility.
The various complaints to Prinsloo, Jhooman and Brilliant are of marginal value in finding of the facts in this case. I accept them as consistent with the Complainant's account, but not confirmatory of it.
I have decided to disregard the complaints to White and Pattavilakom, as I am unable to determine when they were made and the subject matter of the complaint is sparse in each case.

[116]

The Complainant commenced training to be a neurosurgeon at the Royal Adelaide Hospital. Neurosurgical training requires the rotation of a neurosurgical registrar through different hospitals for a total of six years, so as to gain broad experience. It is not permitted for all the six years of training to be done at one hospital.
The first two years of training were spent at the Royal Adelaide Hospital. The Respondent says that her performance at Adelaide was so bad that she was credited with only one of the two years she spent there. The Respondent relied on evidence from her examiners at Adelaide, and particularly two neurosurgeons, to show that her performance was so bad at Adelaide that she was in danger of failing the entire course.
The Respondent asks me to find that a pattern was established from Adelaide that the Complainant would escape rejection by a tirade of complaints about standards of teaching, and personal complaints against other medical staff.
The Respondent says Tan came to Monash Medical Centre to be given another chance. She was taken on a provisional basis at Monash, meaning that she was required by the Board to submit training assessments each three months, rather than each six months. She would have been quite well aware that her future was on the line if she did not measure up at Monash. The Respondent asked me to find that the Adelaide experience had shown her to be unable to handle increased levels of stress and that she had a very poor capacity to communicate.
The Respondent asks me to find that, once again, at Monash, she realised she was in danger of being failed from the course. She realised that to do the same as she had at Adelaide - that is, complaining about standards and people - would not work on its own. So, she added the fabricated complaint of sexual harassment against Dr Xenos as a ruthless and calculated tactic to protect her against failure.
The Respondent asks me to look at the evidence of her term at Royal Melbourne Hospital after this incident as further proof that she had inadequate skills and continued in her inability to interact with other staff. Thus, the Respondent says that throughout her whole training she must have known that her training position was in jeopardy. Further, the Respondent says that any suggestion by the Complainant that her decline in performance was due to an incident of harassment is unsustainable, given her ongoing poor performance during the whole of her training period, both before and after the alleged incident.

[140]

Dr Jones and Dr Reilly prepared witness statements in this proceeding. The witness statements contain evidence of her having been counselled about various concerns about her lack of knowledge, clinical skills and interactions with staff members during her time at the Royal Adelaide Hospital.
The witness statement of Reilly described instances of his dissatisfaction with her standards at Adelaide. He seems to have been most concerned with her resistance to taking advice, poor interpersonal relations, and her tendency to vigorously and emotionally defend herself when criticized.
In his view, her performance by the end of her time at Adelaide was "borderline".
He wrote a letter to Dr Weidman about her after she had finished at the Royal Adelaide Hospital. Reilly referred in that letter to her last assessment report for 2003 which had pointed up dissatisfaction in her work-relations and stress response. He outlined three aspects to this problem - her inability to communicate effectively with other registrar, consultant staff and nursing staff, her lack of participation in clinical meetings, and her inability to accept criticism. He said these matters had been the source of "tension, dissatisfaction and friction within the department and with staff and services outside the department".
The main focus of his letter appeared to be to suggest to Weidman that the Board's Appointments Committee had not taken into account issues of personality and behaviour when accepting the Complainant as a trainee, and suggesting that, in future, there should be greater emphasis on the ability of applicants to function in a clinical team. It is to be recalled that Tan had commenced training without having had a clinical background.
I note also that this letter appears to have been sent to Weidman addressed to his rooms, rather than addressed to the College. There is no evidence in this case that Tan saw this letter.
A further letter from Professor Jones was introduced into evidence. It was dated 28 July 2002. It appears that a copy of this letter was sent to Dr Tan.
This letter discussed the Complainant's performance, following on from a meeting with her and Reilly on 22 July 2002. Jones commented, "many of the problems seem to relate to her lack of experience", but that even allowing for that "her knowledge base was lacking", and she lacked confidence and did not contribute to clinical interaction. However, his concluding words were:-

[143]

I conclude that, overall, the evidence thus far shows Tan to have made steady progress in her two years at Adelaide, although clearly both Jones and Reilly had concerns about some aspects of her abilities and personal interactions. The negative comments made by both Jones and Reilly in their private letters to Weidman contrast with the satisfactory assessments provided by Jones to the Board of Neurosurgeons over her time at Adelaide.
Dr Weidman told me that, even before Tan commenced the course at the Royal Adelaide Hospital, he had been approached by unnamed people suggesting she not be allowed to train, for reasons which he did not elaborate on in giving his evidence.
He said he regarded it as most unusual that he would receive letters such as he had received from Jones and Reilly. He said he had also had conversations with Reilly and Jones regarding their concerns about Tan. These concerns had been expressed casually to him and had not been passed on to Tan.
During 2002, Tan's progress had been discussed at Board level. Weidman was shown minutes of a Board meeting on 16 August 2002 in which this discussion occurred. He said it was "usual and common" for a trainee to be discussed at Board meetings and for supervisors to sometimes talk to him casually about a particular trainee's progress.
He was shown a letter Tan had sent to the Board, dated 30 March 2003, in which Tan had complained about various aspects of her traineeship. He said that he could not recall the Board getting a letter like this from a trainee before. He described it as "dissecting everything we said".
He described three occasions on which he met with Tan to discuss her progress. The first was a meeting at Melbourne Airport in November 2002. This was a meeting of Tan and the Full Board. Prior to this meeting, she had prepared written submissions. He thought this meeting had gone quite satisfactorily.
He recalled reprimanding her for not having purchased suitable textbooks, and not properly preparing for a compulsory seminar. He also recalled an incident with her moving from one theatre to another with blood on her gown. He was asked what he made of this incident. He said he did not believe this was a major sign of a serious problem.
The second meeting between Tan and Weidman was at a trainee seminar in April 2003. He said that he made a habit of attending such seminars, and would use it as an opportunity to talk to underperforming trainees. He recalls attempting to talk to Tan about her performance at this seminar, and described her response as being rigid and "not accepting of anything that I had said". He thought that he had been reasonable and gentle in his approach to her, but she burst into tears and said she was distressed as her aunt had recently died.
He said that Tan had contacted the Board again in late 2003 to give criticisms of the training program at Adelaide.
Counsel for the Respondent made much of the fact that the Complainant had criticised the Adelaide training program in this way. She suggested this showed her nature to be highly critical and very difficult to get on with. However, Dr Weidman did not appear to share these views. He gave evidence that the Board regularly requested trainees to give feedback about course content and the Board welcomed this process. He said Tan had done this in response to the Board's request. He explained that Adelaide was undergoing its accreditation procedure and that during this process feedback from trainees is encouraged and commonly happens.
Weidman said he still had some reservation about Tan's standard of performance at the end of her traineeship at Adelaide, but that her standard was satisfactory overall, so the Board had no option but to allow her to progress. He expressed it in his evidence as her being "marginally satisfactory". Even so, she was classified as provisional for the next year - her third in the program and first at Monash, because of the Board's ongoing concerns.
He was shown a letter he had written to Dr Danks, Tan's supervisor at Monash and Head of the Monash Neurosurgery Unit, dated 31 May 2004, describing difficulties with Tan during her traineeship at Adelaide. He described the purpose of this letter as "pre-emptive". He said it was meant to be a positive exchange of information in order to help Tan as a trainee.
He said, as there were still concerns after Adelaide, the Board had considered it would be good for her to go to a hospital with a large neurosurgery unit, so there would be people to support her. It would also be an advantage to have another trainee with her. He said the Royal Melbourne Hospital had been approached to take her in her first year, but had been reluctant. This reluctance had been very strongly expressed. Melbourne would have been "most unhappy to take her on as a trainee" in 2002.
He therefore asked Professor Danks if he would take her at Monash. Monash was a highly regarded unit with highly regarded staff. Weidman thought a different environment might improve her level of performance. Monash was thought suitable, as it was a large busy Hospital with a good teaching infrastructure. Danks expressed misgivings. The Board had previously sent Danks a "marginal" trainee. Weidman joked to Danks that he apologised for turning the unit into a "rehabilitation unit" and promised the next trainee after Tan would be a "high-level" trainee.
Dr Weidman produced extracts of minutes of Board meetings at which Tan's progress at Adelaide had been discussed. Extracts from 16 August 2002 and 29 November 2002 referred to concerns raised by her supervisor at Adelaide regarding her " knowledge base, experience, self-motivation, reliability and ability to cooperate with staff".
It is interesting to note that the criticisms of the Complainant, which appear in the board minutes, during her time in Adelaide are far more trenchant than the record of her progress on the training assessments would have indicated.
At the November 2002 meeting, it was decided that, because of deficiencies in the logbook statistics and supervisor reports in 2002, she would need to complete an additional year on the training program, and be permitted to continue on a provisional basis with three monthly reporting required.
Extracts from the minutes of the board meetings on 7 February 2003, 6 May 2003 and 8 August 2003 were tendered. The 6 May extract noted that the Board had reviewed her current progress report and noted improvement, and that the report noted she satisfied the minimum requirements. However, the same minutes noted a difficulty in identifying a hospital position for her for the next year "given the reluctance expressed by many of the supervisors".
The 8 August meeting noted "verbal feedback" that she had continued to make satisfactory progress, but that concern remained relating to interpersonal behaviour, which was of a poor standard.
The Board reviewed a progress report again on 21 Feb. 2004. The Board noted that the report "continued to identify areas of deficiency, particularly relating to stress response and attitude". It also noted correspondence received from an unidentified surgeon who worked with her which "expressed serious concerns relating to her behaviour and suitability for training".
The Board noted:-

[145]

The minutes indicate that the Board agreed to allow Dr Tan a final opportunity to rectify all deficiencies during the first three months of 2004 as a provisional trainee at Monash. It noted that, in order to continue on the training program, she would need to achieve a minimum standard of "satisfactory" in all areas on the three month assessment rating, and also undertake a personal development course, participate in all ward rounds and keep the consultants fully informed of the status of her patients, participate actively in clinical meetings without prompting, and satisfactorily complete the trainee seminar.
So, it is clear from these entries in the Board minutes, that there was a great deal of discussion at Board level of Tan's progress in 2002 and 2003.
It is less clear whether or not Tan was told of the depth of concern expressed in these entries.
My conclusion is that, while there was certainly argumentative correspondence between Tan and the Board during, and in respect of, the Complainant's time at the Royal Adelaide Hospital, there is relatively sparse concrete evidence of her being advised of the reasons for this concern, notwithstanding the Board minutes of 21 February 2004.
Of all the documents I have been shown from the Adelaide period, the only documents which Tan appears to have been shown were the assessment reports (with attached letter from Jones) and the Board's own correspondence to her. The private letters to Weidman from Jones and Reilly were not shown to her. There is no suggestion she would have known of the concerns expressed in the Board minutes, or the private conversations Dr Weidman had with various persons, or the suggestion that the Royal Melbourne Hospital had refused to take her for her next training period, or that she was viewed by some as being unsuitable for the training program even before she commenced it.
Tan's evidence was that she was asked by the College to undertake a communication skills course, but she pointed out to the Board she had already done so, and the Board was satisfied with that, and asked no more of her.
She described her opinion of her time at Adelaide quite differently than Weidman did. She said her problems arose as she had come into the training program from laboratory work, and thus lacked some practical skills. She said most trainee registrars had first done an unaccredited year, before doing the accredited year. Thus, although she did two accredited years at Adelaide, she was only credited with one. She thought this equated with the usual practice of one unaccredited and one accredited year. She agreed that, in some training assessments at Adelaide, she had been rated less than satisfactory and said she was aware at that time that she had to improve.
She said she knew she was rated "provisional", or "probationary", at the commencement of her training at Monash, but was unsure as to whether that category applied to all trainees.
In relation to each comment at Adelaide about communication problems, she did not agree that she had significant communications problems. She thought she had a good rapport with other staff and disagreed her poor communication skills had a severe impact on her work. She emphatically disagreed with the criticisms of her in the Adelaide reports and accompanying letters to the Board.
Professor Jones made a significant comment to Dr Danks about her in late 2003. Danks, who was to become her supervisor at Monash in 2004, gave evidence that he had spoken to Professor Jones in late 2003 when he had been told by Weidman of the identity of his new trainee. He said he had been given the impression from conversations with other neurosurgeons that she might present some difficulties. However, Danks' evidence was that Jones said to him that she had made a difficult beginning but was now back on track, and he was satisfied from the conversation with Jones that this was the case.

[150]

This report is consistent with the evidence of the Complainant as to her progress during that time. She gave evidence that she believed she had settled well into Monash and was progressing well in her training.
The second report for Monash covers the period May to July 2004. Once again, taking into account Dr Weidman's evidence that anything above 4 is outstanding, there can have been nothing to have worried Tan about the contents of that report, for it contains assessments of 4 for use of investigations, post-operative care, case presentation, learning, self-motivation and organisation, and contains no adverse comments about her at all. All other ratings given in that report are 3. Once again, this assessment is consistent with Tan's evidence that she thought she was doing well and the problems she had at Adelaide were behind her.
The next report, for the period July 2004 to 12 January 2005, continues this excellent standard. This report was also prepared by Dr Danks. It rates her as 4 for diagnosis, assessment history and use of investigations, diagnosis, knowledge of the subject, case presentation, learning, and significantly co-operating with staff. Dr Danks describes her as having had a "steady term with satisfactory progress in operative experience". This form was signed by Chris Xenos, not by Danks. I accept, from the evidence, that these assessments were made by Danks, but the form signed by Xenos, as Danks was not available at the time.
I pause here to note that this report was the last before the date of the alleged incident of sexual harassment. It covers the period up until 12 January 2005. The incident is alleged to have occurred on 15 February 2005, a month later.
The training assessment report which covers the period of the incident - February to July 2005 - continues to show Tan's satisfactory progress. In fact, the assessment she is given for this period appears extraordinarily good. She is assessed at 5 for use of investigations - a level I was told by Dr Weidman was almost never awarded, and at level 4 for thirteen separate categories of assessment. I take this to be an extremely high level of performance. I note that she received a 4 in the categories which relate to attitudes, not just clinical and technical skills and, in particular, a 4 in stress response. Dr Danks notes on the assessment "steady progress, more independent operating".
The next training assessment report, which covers the period July 2005 to 5 February 2006, appears to me to be completely different in its findings from those that preceded it. In some respects it continues the past record of achievement. Tan is assessed by Danks as at level 4 for use of investigations and diagnosis. She receives many assessments of 3, but significantly, she receives assessments of 2-3 in relation to learning, and 1 -the lowest possible score - in relation to co-operation with staff. So the assessments of co-operation with staff, which have on the last two occasions earned her the extremely high assessment of 4, and before that have hovered from 2 to 3, have now plummeted.
Dr Danks wrote a long explanatory comment on this assessment report. I will not reproduce it in full. He referred to major problems in her interaction with her peers, residents and nursing staff. He referred to a personality clash with another registrar (identified by other evidence as Dr Olsen). He referred to problems with progress because of the time she needed to devote to her PhD thesis. He describes her as "hardworking conscientious and clever", but suggests she put the thesis aside to concentrate on her work, and notes, in addition, "Dr Tan needs to address the interpersonal difficulties which have arisen in this and previous posts".
There are two versions of this assessment report of July 2005 to February 2006. One version downgrades her surgical skills from 3 to 2-3 and adds the comment "very (crossed out) good work at time but poor performance at other times, when she has not been happy. Operating rights were curtailed this term as documented below". Another note appears on the bottom of the second page of one version next to stress response:-

[153]

Dr Danks was the head of the Neurosurgery Department at the Monash Medical Centre, and was the supervisor of the Complainant at Monash. He describes her as making "gradual progress" in 2004, and says that, although her surgical expertise was below average, her ward assessments were "generally good". He said "everything seemed to go reasonably well during her first year".
He said he became concerned with her performance in the second quarter of 2005. He said her performance was "severely inadequate" from July 2005 onwards.
He said he was so concerned about her performance by September of 2005, that in October 2005 he drafted a formal letter warning her of her possible impending dismissal from the program. He ultimately did not send it to her, as he was satisfied that her performance had improved. Although Tan challenges Danks' overall assessment of her performance at Monash, she does not dispute that her performance fell off over this time.
There was remarkably little concrete evidence given by Dr Danks of Tan's professional shortcomings. He made some general comments such as, "in particular, she has struggled to maintain good relationships with her peers, the other neurosurgical registrars". But whilst she was working with him in the first half of 2004, his observation of her was that, although her level of surgical expertise was below expectations, her ward assessments were "generally very good", and that she had been "nursed along" for the year and had made "gradual progress".
She returned again to his operating unit in late July or early August of 2005, by which time he had already become concerned with her performance "during the second quarter of 2005", and he found her performance during this rotation "severely inadequate", so much so, that he discussed her performance and what to do about it with several other members of the unit in this period, contemplating what steps would be required to dismiss her from the program.
However, he did not assert that he had notified Tan of the depth of his concern at that time. He did not give evidence of any particular examples of bad operating practices or inappropriate interaction with staff, speaking in very general terms of her inadequacies.
He did give evidence of having reduced her operating privileges in September of 2005 to the level of a junior registrar, because he believed it was not safe for her to carry a greater operative responsibility.
I was not impressed with the manner in which Dr Danks gave his evidence. Much of his witness statement contained hearsay material about her performance at Adelaide, and the refusal of Royal Melbourne Hospital to have her as a trainee. He appeared to me to be very defensive of the procedures of the Monash Unit, and quick to relay second-hand criticisms of the Complainant about which he had no personal knowledge.
He gave absolutely no credible explanation as to how the issues raised in his witness statement and evidence could be reconciled with the very favourable assessments of Tan which he had provided to the Board up to July of 2005.
He was clearly a partial witness. He appeared very offended that the Complainant had challenged his decision to ignore her claims of harassment in preparing her final assessment. He appeared anxious to contrast the personality of Tan to that of Xenos. In my view, much of Danks' evidence of Tan's poor work performance was given with the benefit of hindsight, in response to this claim of harassment.
The Respondent said in evidence that Danks had rung him at the end of the first week of this trial (before Danks had given his evidence) to wish him well. In taking sides so clearly in this hearing, Danks has diminished his credibility. In his statement to the Fisher inquiry in March 2006, Danks observed that he genuinely did not know whether or not the claim of harassment was true. He clearly changed his mind by the time of this trial. I think he did so because he took into account matters such as are detailed in paragraph 9 of his witness statement - matters about which he had no first-hand knowledge at all. He appeared not to understand his responsibility to deal with a claim such as this in an impartial and fair manner.
His partiality in this hearing was, in my view, inconsistent with his position as Head of the Unit, charged with the responsibility of dealing with complaints of sexual harassment such as the complaint in this case, and lends credence to the Complainant's stated fear of making the complaint of harassment, as she thought it might prejudice her position and that she would not be believed.
I also find it likely that, contrary to his evidence, he did come to understand, during the latter part of 2005, that Xenos was the alleged perpetrator. As I have detailed, Pullar gave evidence that he was told by Danks that it was Xenos in August or September of that year. Further, Danks agreed in evidence that he had considered Xenos' name when observing Tan's behaviour at a dinner in August. His refusal to acknowledge the extent of his state of knowledge is a factor to be taken into account in assessing his credibility overall.
Further, although Danks gave evidence on oath before me that the first time he knew that Tan's complaint was against Danks was at a meeting on 2 February 2006, it is apparent from the evidence of the Respondent himself, which I shall detail shortly, that Danks did know before that date, as it was the Respondent's evidence that Danks had telephoned him to tell him of that fact in late January 2006. I conclude that Dr Danks' evidence is not to be relied on where it conflicts with the evidence of other witnesses in this case.
However, even having come to that conclusion, I observe that in fact there is very little of Danks' evidence as to Tan's performance or behaviour that conflicts with the essential elements of the Complainant's case. He agrees that she complained to him of being harassed in April or May of 2005. He agrees with the essential details of her evidence as to that conversation. He agrees that her performance fell off during the second half of 2005, and he agrees with most of her evidence of what occurred in the lead up to and during the meeting of 2 February 2006. He agreed that he had received no feedback contrary to what he had written in any of the assessment reports, and could point to no evidence that the Complainant was on notice that her performance, even in the second half of 2005, was so unsatisfactory that she was in danger of failing her course.

[159]

She described the Chinese Dinner - at which she did not observe anything untoward - and said that Tan's performance and communication did not deteriorate around the time of the Chinese Dinner but, in about May 2005, when Olsen returned to the unit having passed her exams.
Her main complaint appeared to be that Tan would not participate in morning hand-overs between night and morning staff. She would conduct a separate morning round so as to avoid being with Olsen. The nursing staff found this frustrating as they could not be in two places at the one time, and so they missed out on having a hand-over of Tan's patients.
It was not clear from Wallace's evidence as to when she noticed Tan's unsatisfactory behaviour and attitude. In her witness statement she said her work varied greatly over the time from January 2004 to February 2006. She described Tan as being "more confident and outgoing" from May 2004 until a new Registrar, Dr Olsen, joined the unit in January 2005. She described the personality conflict between Tan and Olsen in 2005. She said her behaviour and performance deteriorated from about May 2005 onwards, and she herself fell out with Tan in about October of 2005.
She attempted to vary this timeframe when she gave evidence before me, saying she thought Tan's performance did deteriorate at the end of 2004, but agreed she could not be sure - it was only an impression.
She gave details of conflict between Tan and Olsen, and could recall several occasions in which Tan's work was below the expected standard. Her view was that Tan was "burning herself out" because of her PhD research. She fluctuated between good to bad moods. She at times dressed inappropriately, exposing her cleavage.
In her Fisher statement, Wallace had observed that Tan was "quiet and fairly reserved" prior to Olsen commencing, following which she appeared more confident and stronger in her demeanour and that during the "remaining 8 months of 2004 Tan rose to the top and performed well".
She said in her Fisher statement that her relationship with Tan "did deteriorate in early 2005". In re-examination, she put the start of the deterioration as the end of 2004. Both these dates were at odds with the estimate in her witness statement that the deterioration commenced in about May 2005. But she agreed it was only her "impression" that this was the correct timeframe.
It was my view that Wallace had no clear recollection of when it was that Tan's performance began to cause concern.

[161]

Sarah Olsen commenced as a trainee neurosurgeon at the Monash Medical Centre in early 2005, at which time Tan had been working as a trainee at the Hospital for almost a year. She provided a witness statement and gave evidence of her observations of the professional skills and behaviour of Tan during the course of 2005. Clearly there was strong antagonism between Olsen and Tan during the course of 2005. The time at which this antagonism surfaced is not clear. Olsen agreed that the Chinese restaurant meal in February of 2005 was arranged by Tan to welcome her to the unit. However, she said that from the start of her time at Monash she found Tan very difficult to work with. She set out three specific instances of unprofessional behaviour by Tan in her witness statement. She was not able to pinpoint when those incidents occurred.
The first incident involved an elderly lady who was distressed and trying to get out of bed. She said this lady was a patient of Dr Pullar, but that Tan had not notified Pullar of her admission, and had underestimated the seriousness of her injury. Olsen took over and treated the patient.
The next incident described by Olsen was one in which a man with a cerebral tumour suffered a haemorrhage. Olsen said that Dr Tan had performed the biopsy notwithstanding that her operating privileges had been reduced, and so she was not supposed to have performed such an operation. She said Tan had done the operation herself, instead of referring it to her as she had been asked to do by Dr Pullar. She said Tan had wrongly ordered a MRI for this patient in life threatening circumstances.
The third incident was in respect of a man admitted with a haematoma. Olsen thought the haematoma should have been evacuated on admission, but was unclear as to whether Dr Pullar, whose patient he was, had given instructions to do so. In any event, her accusation against Dr Tan was that Dr Tan did not check on the man as a first priority at the commencement of the ward round. When he was checked on, 30 minutes into the ward round, it was clear that he was dying. She believed Dr Tan should have stayed to clear his airway, as Dr Tan was in charge of the patient, but instead Dr Tan "disappeared" and Dr Olsen cleared his airway instead.
It was clear that, in giving her evidence, Dr Olsen was very angry about these incidents and her perceived incompetence of Dr Tan as disclosed by those incidents.
She was also very scathing in her general criticism of Dr Tan and her inability to communicate with other people. She described her as having great difficulty coping with stress and had frequent episodes of sulkiness, defensiveness and deflection of blame. She described her as frequently disregarding the instructions of consultants.
Tan gave contrary evidence about these incidents, and about her general interaction with Olsen.
It is clear from Olsen's evidence that there was a substantial personality clash between Tan and Olsen. I do not take the view that the fault was all on one side. In Olsen's own view, "Caroline had the habit of bringing out the worst in me". Dr Danks described the interaction between Olsen and Tan as "fighting between adolescent siblings." He did not suggest Tan was solely to blame for their interaction.
Olsen regarded giving her evidence as part of a crusade. She said she had come to give evidence "on behalf of the Australian public". She spoke as if this was a disciplinary proceeding in which Tan was the Respondent. She expressed dismay at what she perceived as lack of action by the College of Neurosurgeons. She said the College had "run scared", and she wanted to place on record what she knew of Tan's professional incompetence.
However, the most important issue about Olsen's evidence for the determination of the issues in this case was the time period to which it related. Dr Tan gave evidence that the second and third incident occurred in the second half of 2005, and the first in March 2005. Olsen could not contradict this evidence.
Further, Olsen gave evidence that she was absent on maternity leave for a month from August 2005. She said that, before August 2005, Tan was very "well-behaved" and seemed to get on well with other staff. In her words, when describing Tan during this time period, "She did what she was told most of the time".
Olsen said she noticed a change in Tan's behaviour after she returned from maternity leave in September of 2005. She thought Tan seemed to get on well with Xenos before she went on maternity leave, and noticed a big change in the relationship between them when she returned. She said she had not noticed any problems in the relationship between Xenos and Tan before September 2005.
Tan takes issue with the detail of the allegations of bad practice and difficulties described by Olsen. However, she acknowledges that she had great difficulty with her work, and particularly in working with Xenos, in the latter half of 2005. She says this was because of her trauma at having been sexually assaulted by him, having complained to Dr Danks and Dr Pullar and receiving no appropriate response, and being thrust into daily close contact with Xenos, knowing that he would be influential in her training assessment.
I have deliberately not detailed each of the allegations of malpractice made by Olsen and rebutted by Tan. My conclusion is that they occurred during the second half of 2005, except for the one incident identified by Tan as having occurred in March 2005.

[164]

As I have previously detailed, Dr Tan was still classified as provisional in her third year of training when she commenced at Monash Medical Centre. Dr Weidman said he had spoken to her about her progress several times during her training at Monash. He described her response to criticism as different to what he had encountered in other trainees. Other trainees took criticism as constructive and used it to improve their skills. By way of contrast, Tan was rigid and uncompromising. It appeared very difficult for her to take criticism. She had a tendency to burst into tears when things did not go right for her.
He had known that, in September 2005, Tan was told by Danks that her surgical privileges would be downgraded. He said he would have been told of this by Danks. He said such a thing would be unusual to occur. It would be a blow to the self-esteem of a trainee to get such a rating, but the principal concern for the hospital would be patient safety, and it would be a "wake-up call" to the trainee concerned. He said compliance with the downgrading, and the types of operations it applied to, would be an internal hospital matter. There were no generally circulated guidelines on such matters.
Weidman said the Board once again considered Dr Tan's progress on 7 May 2004. It was agreed she be allowed to continue on the training program in a provisional capacity, and that a further assessment report would be sought at the conclusion of the first six months of 2004, to bring her into line with all other accredited trainees.
In July 2004, the Board received some (unidentified) correspondence regarding Dr Tan. It noted that her assessment schedule had now returned to the standard assessment schedule, with her most recent assessment identifying her performance as satisfactory. There is then no reference in the Board minutes to Dr Tan until 17 February 2006.
Dr Weidman agreed, in his evidence, that this gap means that in that time there were no issues raised for the Board's consideration regarding the performance of Dr Tan. He also agreed that this omission showed that, for the second half of 2004 and the first half of 2005, her performance was thought to be satisfactory.
The Board meeting of 17 February 2006 took place shortly after Dr Tan had made a complaint of sexual harassment against Xenos. She had sent a letter of complaint to Southern Health, and a second letter to Dr Weidman, as Chairman of the Board. In that letter (Exhibit 27), dated 3 February 2006, she describes the incident, her reluctance to report it at the time "because I had reason to fear that it would adversely affect my standing among the consultants on my unit", her distress at having to work with Xenos, and the breakdown of the working relationship with Xenos.
The Board minutes for the 17 February 2006, note as follows:-

[168]

I have come to the Respondent's evidence about Tan's work performance at Monash last, because I wish to analyse the contrast between his description of her performance and that of the training assessments, and the witnesses produced by him in this case.
Xenos' evidence was that there were difficulties with the Complainant throughout all the time she was at Monash. He said there were difficulties with her conduct from late 2004, although he described them as "minor". In his statement to the Equal Opportunity Commission, he said, "the whole team had concerns" about Tan throughout 2004, and that her performance from mid to late 2004 was "erratic and unreliable".
In giving his evidence before me, the Respondent described the bad working relationship between Tan and Olsen and Tan's jealousy that Olsen was ahead of her. He described increasing aloofness and difficulties throughout 2005, and what he described as dangerous and unprofessional operating practices.
This evidence does not appear to correlate with either the assessment reports for that period, the minutes of the Board, or the recollections of other witnesses.
It was suggested to Xenos that he had deliberately misstated the performance of Tan in 2004, and early 2005, in order to make it credible that she had made up the false allegation.
In cross-examination, the Respondent agreed that, for the assessment period to 12 January 2005, because of her good assessments, with lots of 4's, she should not have felt at risk, but should have thought her place on the traineeship was secure.
He was asked the same question about the next assessment period - from February 2005 to the end of July 2005, in which she had obtained several 4's and 5's, and agreed that no impression was given to her by him in that period that her position was anything but secure, and that this impression would have been fortified by the form. However, he said that he spoke to her about clinical issues constantly over that time.
He agreed she got the best training evaluation assessment she had ever got, between February and July 2005.
Xenos does not appear to have made any written record of any concerns with Tan's performance until 1 February of 2006, when he wrote a long and detailed letter to Danks, specifying several instances of unsatisfactory behaviour and lack of skills. I note also the evidence of Danks, that in preparing Tan's assessment reports for 2004, and for the first half of 2005, he would have taken into account observations about her performance from all neurosurgeons, including Xenos, and yet several of the very serious matters referred to in Xenos' letter are said to have taken place within that time period.
Xenos stated in evidence that the first he heard of the sexual harassment allegations was from Danks, in late January 2006, although he said that no details of the allegation were provided to him at that time. In his letter to Kathleen Fisher he says this:-

[170]

I will later detail evidence that the informal meeting attended by other consultants in the unit, described above, took place on 2 February 2006. Tan gave evidence that she had met with Danks on 31 January 2006, when he gave her the assessment report, and that, in the course of receiving it and being told that she had failed, she had protested and challenged him that he had not taken into account the fact that she had been sexually harassed by Xenos, and that he had allowed Xenos to participate in the assessment process.
Danks denies that Xenos was mentioned in this conversation. However, it is clear from the passage from Xenos' letter, reproduced above, that this conversation must have occurred, as it was relayed by Danks to Xenos during the phone conversation described in that letter.
The sequence of events is very important in analysing Xenos' evidence. If the phone call took place on 31 January 2006, the day on which Tan had received the assessment report, it is clear that, in compiling the letter to Danks dated 1 February 2006, Xenos was doing so against a background of knowing that she had made a sexual harassment complaint against him.
In my view, the sequence is as I have described it. This makes sense of why Xenos refers, in his letter, to incidents going back to February 2005. Of the ten incidents described in that letter, five refer to the assessment period of July to February 2006. There would be no reason to detail the earlier events at this particular time, except to throw doubt on the Complainant's veracity in making her complaint against him.
None of the specific events, during the period July 2005 to February 2006, appear to be referred to in Danks' assessment for that period. I conclude that the letter of 1 February 2006 was the first time Xenos had notified Danks of the detail contained in this letter.
I find, as a fact, that the letter he composed to Danks, setting out the instances of bad behaviour, was composed after he had been warned by Danks that Tan had made a sexual harassment allegation against him, and its content was influenced by Xenos' desire to portray the Complainant as having had a reason to manufacture the allegation against him. That reason is the one suggested by Xenos in his later letter to Kathleen Fisher - to "justify an unsatisfactory training tenure at the Monash Neurosurgery Unit".
I conclude that the Respondent's evidence significantly overstated the extent of behavioural difficulties and professional shortcomings of Tan at Monash prior to and after the date of the alleged harassment.

[180]

Tan had refused to sign this report, as she did not agree with its contents. When asked about this report and, in particular the above passage, she said that she did not consider that Laidlaw thought her to be unsatisfactory. She regarded the passage as constructive and positive feedback. She did not agree that all seven or eight consultants at Royal Melbourne Hospital thought her performance at Royal Melbourne Hospital unsatisfactory. She thought her problems were as a result of her lack of exposure and experience in operating. She agreed she had some difficulties in technical ability, but she denied that, at all times during this period and at Monash, she had difficulties in stress response and lack of communication.
She thought Laidlaw's comments in his report were positive, and had given her something that she had to aspire to. She said she agreed with his recommendations, whilst saying, in very strong terms, that she rejected the suggestion that her performance had been unsatisfactory in those respects, and challenging his statement that this was the opinion of all consultants at Royal Melbourne Hospital. She said many of his comments were made to assist her to prepare properly for her upcoming examination.
She was shown an earlier report of Laidlaw, for the period May to 31 July 2006 - that is, the period after the Monash experience. In that report, he refers to unit members being concerned about her lack of communication, that she did not keep others adequately informed, and of her "surly attitude". She said she thought there may have been some instances in which her performance was "sub-optimal", but that she had worked to the best of her abilities, and could not recall any particular incident being raised as a criticism of her performance during this time. She could not recall ever having been criticised for having a surly attitude in her time at Royal Melbourne Hospital. She said Laidlaw had told her that the document raised areas of positive criticism for her information, and that her performance overall had been satisfactory.
The Respondent sought to rely on the evidence of Tan's work performance at the Royal Melbourne as confirmation of a continuing inadequate pattern of performance. Certainly, the evidence of the training assessments, Dr Weidman, and the Complainant herself, had a consistent theme - she had run into personality conflicts at the Royal Melbourne. I note, however, that Wallace and Kaye, both distinguished surgeons at the Royal Melbourne Hospital, and both of whom gave evidence before me, were strongly supportive of her professional and interpersonal skills as demonstrated in that period.
My conclusion is that she attracted supporters and detractors at the Royal Melbourne Hospital, as she had at Monash.

[181]

As I earlier indicated, Dr Weidman is the Chairman of the Board of Neurosurgeons. His evidence, in my view, has a particular significance. It provides an explanation as to why it was that the Complainant engaged in acrimonious correspondence with the Board, and why it was that she appears to have been viewed as a troublemaker.
It was apparent from his evidence that in dealing with Tan, the Board ignored its own regulations for the assessment of trainees, and relied on a great deal of information which was not made available to her.
Firstly, the regulations required that a supervisor speak to a trainee before an unsatisfactory report was recorded. If an assessment was to show a trainee marginal or deficient in any assessable area, the regulations provided that this must be reported orally to the trainee and the oral report recorded, together with the deficiencies identified and the content of remedial work to be undertaken.
The regulations give several options to the Board, once marginal or deficient work is found in an assessable area. Those options include extending the period of training and having formal assessments every three-month period, rather than six-monthly.
The Board is given power by the regulations to dismiss a trainee from the program. However, prior to dismissal, the regulations require the trainee to be given two warnings.
In an extraordinary admission, Dr Weidman agreed that none of these regulations had been followed in Dr Tan's case. All of her assessments for the years 2003 and 2004 had been satisfactory. There had been no suggestion of marginal or deficient work in any of the assessments. There was no evidence she had been warned, as required under the regulations, of any marginal or deficient work, and yet she had still been rated provisional for the year.
This provisional rating continued during her first year at Monash, despite her successful fulfilment of the Board's requirements in the first half of 2004.
Weidman was clearly discomforted when these errors were put to him in cross-examination. His explanation was that, although the Board recognised the regulations needed to be followed, he had spoken to Professor Nigel Jones, and that Jones had made criticisms of her which were not contained in the written assessments and of which the Board had not advised her.
When asked to justify this procedure, which appeared clearly to contravene the Board's own regulations, Weidman said that he acknowledged that, legally, this might have been a serious failure, but that, from the Board's perspective, they did not feel this unreasonable. He said the Board took a "vigilant" approach. He said that whilst the Complainant was at Monash, he was getting feedback from Danks, similar to that he had received from Jones in Adelaide. Various people were "voicing concerns" to the Board in this period. The Board took into account "general statements and rumours and things people were saying" about Tan. He said the "back room" discussions he had were very important to the Board's deliberations on her progress.
In his words:-

[183]

In his view, the Board's approach had been justified. He said that, if you look at the overall picture, the outcome for Tan has been good. He said he had looked for "pragmatic" solutions. He said the Board had tried to take a benevolent approach.
The evidence of Dr Weidman therefore explained Dr Tan's acrimonious correspondence with the Board produced in evidence. This correspondence was relied on by the Respondent to support his description of the Complainant as a person who was not prepared to acknowledge authority, and who would complain continuously without good reason.
However, it appears from Weidman's evidence, that Tan certainly had something to complain about. The Board was not following its own rules. It had required her to complete a second provisional year in Adelaide, even though her training assessments had been satisfactory, because of informal discussions held between the Chairman and her supervisors, and the Chairman and other unnamed sources, the content of which was not known to Tan.
Secondly, the evidence of Weidman was relevant to the question of whether Tan is likely to have concocted the assault story because she knew she was in danger of being failed. The written assessments showed her in no danger at all of being failed. Dr Weidman said that no-one had ever failed the course. When a trainee had completed three or more years of this demanding course, Weidman said the Board would bend over backwards to make sure that a person did not fail.
But, in any event, if one were to look only at the assessments, Tan had not come anywhere near failing the course, until she received the assessment in February of 2006. On any view, she had not been notified of being marginal, and she had received no warnings as required by the regulations.
Weidman could recall no events at all, either in the written material of Danks, or in conversation with him, which might have justified her dismissal from the program during 2005. He agreed that Tan had passed her entry exam into the traineeship on the first occasion, and had also passed the "most stressful and difficult" final exam on her first time.
It is clear that it was the private opinions of Reilly, Jones and others, which were communicated to the Board, and which formed the foundation for the Board's characterisation of her as a "marginal" trainee, with her traineeship on the line, when she moved from Adelaide to Monash.
It is equally clear that there is no written record of the foundations of that concern having been communicated to Tan before she commenced at Monash.
Clearly there was considerable concern at Board level about Tan's abilities. Weidman was asked why this was.
He said the most crucial attribute in neurosurgery was insight. He said he had observed that neurosurgeons who ran into trouble, generally had a lack of insight and lack of self-judgment. They did not have trouble because of lack of intelligence or lack of technical skills. He said if a surgeon had a tendency to blame others, rather than themselves, and had no capacity for self-criticism, this would concern him very much.
Although he did not specifically say this, my conclusion from his evidence was that this insight was something which could not be taught. It would not necessarily be reflected in a candidate's academic work or operational skills. It would show up in a candidate's interaction with other staff.
I think this is the key to understanding how it came about that the Complainant was provided with assessments which she saw as showing satisfactory progress, but which did not effectively address the real concerns of those who supervised her at Adelaide.
Although Dr Weidman provided a great deal of information as to Tan's entire training period at all three Hospitals, it was difficult to reconcile the underlying theme of his evidence - that Tan was an unsatisfactory trainee at each Hospital and had always been so - with the training assessments I have analysed above. He said that some persons had approached him to attempt to persuade him not to enable her to enter the course. There is nothing in the 2003 assessments which points to why that might be, unless it was that applicants with a research background were not as well regarded, generally, because of their lack of practical experience. The notes of the Board minutes also contain statements which are difficult to reconcile with the training assessments. For instance, the note of 21 February. 2004 that "considerable concern that this has been a continual problem throughout her clinical training, well documented in regular assessment reports, and that deficiencies had been discussed with Tan on numerous occasions throughout 2003 and 2004"is at odds with the content of the assessment reports for that period.
It is true that the correspondence shows Tan to be argumentative. I dare say Board members thought her tiresome in her detailed responses to their letters. However, there seems to me to be a sensible explanation for her argumentativeness. It was because she had not been given a satisfactory explanation about the matters of which she had complained. It was clear from Tan's correspondence with the Board that she was aware of the content of those regulations and did not hesitate to complain at what she saw as the Board's failure to follow them.
Although Weidman said it was very unusual in his experience to receive letters such as the Board received from Jones and Reilly, there is no suggestion that Tan would have known this to be the case. The letters contain positive elements, as well as criticisms. They do not suggest that she should be dismissed from the training program. She responded vigorously to many of the criticisms made of her performance, arguing her case. She gave evidence that she accepted much of what was sent to her by the Board as constructive criticism.
Her letters demonstrate that she could not understand why her performance was in question and she was still rated provisional in her third year. Dr Weidman explained that the assessments might say one thing, but he and other members of the Board had private conversations with other persons detailing her failings. He had even joked to Danks in a conversation, which must have taken place in late 2003, on asking him to take Tan for continuation of her training that, in taking her, Monash was acting as a "rehabilitation unit" for unsatisfactory trainees. There is nothing in the assessment reports to show that Tan was aware that this was the way she was regarded by the Board.
Weidman regarded the issues raised by Laidlaw in early 2007 as "the same old story resurfacing every time". Yet, whatever the story was, it is not clearly shown in the assessments I have referred to. Weidman explained that this was the way the Board worked. They took into account "general statements and rumours and things people were saying" about Tan. He said "back room" discussions or verbal communications from other people, to which Tan was not privy, was very important to the Board's deliberations on trainees.
Dr Weidman gave evidence that there were approximately 140 neurosurgeons and 50 accredited trainees in Australia at any one time. It is one of the smallest medical specialities. He said the Board presumes that supervisors will constantly discuss issues amongst themselves and with trainees. He said trainees would often be aware of Board decisions regarding their progress before the Board minutes were written up and circulated. Letters from the Board sometimes took frustratingly long to arrive, and verbal information was very quick. He said neurosurgeons mixed often, it was a small community and information spread quickly.
He said further that he and the Board felt under pressure at various occasions from other surgeons who felt the Board should have acted more decisively regarding Dr Tan. Although he did not say so, I took him to mean it was thought, by those others, that she should have been dismissed from the training program. He spoke of others being "scathing and critical" of her. He said he was urged by some of his peers to act "more aggressively" in dealing with her.
It is pertinent to note that the Board's own minutes show that, from July 2004, when the Board received correspondence regarding Tan, noting her recent performance assessment, which had identified her performance was satisfactory - until 17 February 2006, after she had made a complaint to the Board against the Respondent, there were no issues raised for the consideration of the Board, either in correspondence to the Board, or in the Board minutes, as to Tan's performance or competence.
Having regard to all of the above matters, it is my view that the evidence of Dr Weidman does not support the Respondent's contention that the Complainant knew that she was in danger of failing the traineeship and thus had a motive to fabricate the report of sexual harassment.
Overall, the flavour of all of the evidence about work performance is that she had some difficulties at Adelaide, but had resolved those issues at Monash in 2004, so that she was proceeding in a satisfactory way with her training at Monash by the end of 2004. There are no recorded incidents of difficulty at Monash until well into the second half of 2005. The record of her performance at Royal Melbourne Hospital is equivocal, but, in any event is far removed in time from the events surrounding the complaint of sexual harassment.

[185]

The Complainant called some evidence of her work performance and the esteem with which she was held by nursing and medical staff. This evidence was called to rebut the suggestion of the Respondent that her performance and attitudes at Monash were unsatisfactory. The Complainant called four witnesses who gave evidence of her work standards during the relevant period - Tanya Jhooman, Bruce Dearness, Lien Tong and Juan Prinsloo. Each of those witnesses noticed a change in her relationship with Xenos in about March 2005. None of them were asked in cross-examination whether she had been unsatisfactory in her work in any way prior to March of 2005.
The witness, Tanya Jhooman, describes her as having "conducted herself professionally toward the nursing staff at all times".
Bruce Dearness, a Theatre Technician and Support Staff Manager in the operating theatre at Monash, found her "pleasant and professional" and a "good operator to work with". He thought her relationship with Drnda, amicable and supportive, her relationship with Pullar, appropriate and professional, and noticed a change in her relationship with Xenos and Danks after March of 2005.
Lien Tong, a fourth year resident at the Hospital, described her as "reliable, responsive, attentive and conscientious", and said she "communicated effectively and patiently" with both nurses and doctors. Prinsloo was a theatre nurse, not a ward nurse. She could give no evidence of Tan's relationships with nurses on the ward. Her observation of Tan was confined to work in the operating theatre, with surgeons and nursing staff, and interaction with the families of patients, if they were present in the theatre waiting area.
The Complainant produced a letter from a nurse named Christine George, attaching a testimonial signed by twelve of the nursing staff at the Hospital, attesting to Dr Tan's good reputation amongst the nursing staff. None of the signatories to the letter gave evidence.
Lyn Wallace, the Nurse Unit Manager, expressed the view that the views expressed by the signatories were not representative of the views of senior nursing staff. She identified the nurses as mostly night nurses or part-time nurses. She agreed that Tan had a good relationship with many nurses, but generally not with the higher levels of the "senior decision-making team", and noted that none of those nurses, who were in positions of authority, had signed the form. She agreed Tan was very friendly to junior staff, but said that was not what was required. She said it was vital there was trust between nurses and theatre staff.
I have decided not to attach any weight to the contents of the letter and attachment from Christine George. None of the signatories has been called to give sworn evidence. I do not think it assists me to assess the value of the sworn evidence I have heard.

[188]

So, how should I use this evidence of the Complainant's work performance? The Respondent says I should see in this evidence the same pattern emerging at Monash, as had been evident at Adelaide, and that the pattern persisted even into her time at the Royal Melbourne Hospital. I am asked to conclude that, as the pressure built up on her, particularly in the early part of 2005, by reason of her doing more demanding operations, that she came to realise that she was lacking in the necessary skills, and so unlikely to pass her traineeship. Therefore, the stage was set and an explanation provided for the false allegation.
The Complainant seeks to convince me that after the teething trouble at Adelaide, she had performed well at Monash until after the sexual assault. Thus, there was no reason for her to be fabricating a claim of sexual assault in the first or second part of 2005.
Dr Tan made her official complaint to a meeting with Danks, Pullar and Drnda on 2 February 2006, in confrontational circumstances. I will detail those circumstances shortly. However, it would only be possible to use the adverse assessment report of July 2005 to February 2006, as providing her with a motive to complain against Xenos, if I was satisfied that February 2006 was the first complaint of the exact sexual harassment that is alleged in this case against Xenos.
If I was satisfied that complaints about exactly that harassment by Xenos had been made to various people throughout the first half of 2005, the significance of the receipt of the unfavourable assessment in February 2006 would be much less. Her receipt of this assessment may have galvanised her into making her complaint official, but that would be its only real significance.
Thus, the Respondent has suggested to me that the complaints made in 2005 were vague, and of a completely different character to the complaint before me, and not directed principally against Xenos. The Respondent says that the earlier complaints should be completely discounted, and that I should find that it was only in February of 2006 that the explicit (and false) complaint of harassment was made.
I have made findings as to the evidence of complaint and, in particular, the times at which each complaint was made. In particular, I note the evidence of Professor Kaye that he was told by Tan that she had been sexually harassed at work by a consultant. Professor Kaye says this conversation took place on 22 March 2005. Sandra Feldman gave evidence of also being told by Tan of a drama between herself and Xenos, involving sexual harassment. Feldman said this conversation occurred in March 2005. Dr Wallace gave evidence of a complaint having been made to him "early in 2005". Dr Danks gave evidence of a less specific complaint to him in April or May of 2005.
Thus, accepting as I do, the evidence that these complaints were made, as I have outlined above, the assessment covering the period February to July 2005, describes the Complainant's work performance at the very time she made these complaints.
Dr Danks gave evidence that Tan, along with all other trainees, would be receiving very regular reports about her progress during each assessment period and the matters contained in each assessment report would have come as no surprise to her. Thus, it appears to me that the assessment for the period February to July 2005 cannot provide support to the suggestion that she fabricated the complaints I have described above to Dr Danks, Professor Kaye, or Mrs Feldman, because she was in danger, or may have been in danger, of failing her next assessment.
I have found the Complainant's evidence as to the incident of harassment credible. I have noted that the Respondent's evidence of her poor performance, prior to the date of the alleged harassment, was not supported in the documentary evidence of her training assessments, nor the evidence of the witnesses he called.
Evidence that she may have been considered an inadequate trainee is of little forensic value in itself. I am not hearing an inquiry into Dr Tan's competence as a doctor or neurosurgeon. This evidence can only assist the Respondent's case if the Respondent can show that it is more probable than not that the Complainant knew that she was considered, or might be considered, an inadequate trainee, in danger of being excluded from the training program, and that knowledge informed her behaviour in making a complaint of having been harassed by the Respondent.
Firstly, the Respondent invites me to find that this evidence establishes that, at the time of making the various complaints of sexual harassment, the Complainant was in jeopardy of failing or performing badly in her training assessments. It is suggested that she, knowing she was in jeopardy of failing, and seeking an excuse to use as leverage in the event that she did fail, fabricated the various complaints of sexual harassment in case she required an excuse for bad performance at Monash. As it is the Respondent who makes this assertion, it is for the Respondent to prove it.
The second way in which this evidence of performance is to be used is to rebut the Complainant's argument that the marking down of the Complainant in the assessment, dated 31 January 2006, corroborates the Complainant's evidence. The Complainant invites me to consider that she was marked down in areas of co-operation and relationships and that this marking down, and the evidence of her interaction, particularly with Xenos, during the period after 15 February 2005, are consistent with an incident of sexual assault having occurred after that time. Where the evidence of performance is used in this way, the burden of proof of the matters relied on is on the Complainant, as it is the Complainant who is seeking to use this evidence to corroborate her case.
The way in which the Respondent relied on this evidence of work performance changed during the course of the hearing. By the time of final submissions, it was put that this evidence will therefore establish that the Complainant must have been aware throughout 2005, taking into account her experience at Royal Adelaide, that there was a possibility that she would receive the same unsatisfactory assessments at Monash, as she had at Adelaide in 2002 and 2003. Although she could not have categorically have known that the assessments, due to be produced for the first half of 2005 and then the second half of 2005, would be negative, she would have been sufficiently apprehensive of failure and knew well the dire consequences to her if she should fail in this second rotation.
The Respondent says that the evidence shows a consistent pattern of Dr Tan having failed dismally in personal and professional areas, through from Royal Adelaide, at Monash, and after this incident at Royal Melbourne Hospital. Thus, the February 2006 results, and the evidence of relationship difficulties with Dr Xenos, continue a well-established pattern, which continued on past these events and into the rotation at the Royal Melbourne Hospital in 2006 and 2007. The Respondent says this pattern does not support the Complainant's evidence in any way, and adds corroboration to the Respondent's case.
I have found that Tan's professional skills and interpersonal skills were the subject of some concern in 2002 and 2003 at Adelaide. She was warned that she would be in danger of failing the course if her performance did not improve. But her performance did improve, and she was advised that she had met the required standard by the end of her tenure at Adelaide. I have found that there is no evidence that she understood, or could reasonably have deduced, that her continuation of training was under threat by the time she arrived at Monash by reason of those concerns.
I have further found that she progressed well in her first year of training at Monash, and that there is no credible evidence of any major concern about her professional skills or attitudes at Monash until at least July of 2005, with this concern culminating in the unsatisfactory assessment for the period July 2005 to February 2006, which assessment was handed to her for the first time on January 2006.
Further, I have found that she complained about the incident alleged in these proceedings as early as March of 2005, and that her complaints were consistently made.
Given those findings, it is my view that the evidence about Tan's professional shortcomings does not throw doubt on the veracity of her complaint. Further, it does not provide a motive for her to falsely allege sexual harassment against Xenos, either in the meeting of 2nd February 2006, or in her earlier conversations with Dr Danks, or in her conversations with the other witnesses who gave evidence that she had complained to them during the course of 2005 about the incident of sexual harassment.
I have indicated that I found the Complainant an honest witness. The Respondent asks me to conclude that she is not honest and, on the contrary, is a schemer of bad character.
The Respondent claimed that I should find that the Complainant's general dishonesty was demonstrated by the fact that she continued to operate on patients after her operating privileges had been withdrawn by Danks. To undertake operations which she had been specifically banned from performing was said to demonstrate her general untrustworthiness and lack of concern for the safety of patients and for harmonious interactions within the unit.
In fact, there was disconcertingly little evidence produced by the Respondent of the extent to which the Complainant's operating privileges had been reduced, or that the Complainant had undertaken operations which she knew she was not allowed to do.
The Complainant's evidence was that she was told by Danks, in a casual conversation in the operating theatre, that her operating privileges would be reduced. However, she did not know the types of operations to which this applied, and was never told.
Dr Danks said the conversation with Tan about her operating privileges was an hour in length. However, he could point to no document setting out the types of operations to which this conversation applied. Witnesses such as Olsen gave evidence that they believed Tan to have conducted operations which she was not entitled to do, but they were unable to give satisfactory evidence of how they would have known what restrictions applied at the time to Tan's operating capacities. I suspect that much of this evidence was given with the benefit of hindsight, and that the scope of Tan's operating rights would have been much less clear at the time.
It was suggested to her that she had known that her performance was on the line as her operating privileges were reduced. She said she was told perfunctorily in theatre by Dr Danks that her operating privileges were to be reduced, but not told any details about what that meant. In her observation she was not aware of any guidelines as to types of operations. She said she was performing operations of increasing complexity up to February/March 2005, but that the "levels " of complexity were never discussed.
In my view, there is nothing in this evidence of her performance at Adelaide, Monash, or the Royal Melbourne Hospitals which causes me to change my view of the Complainant as an honest and reliable witness in giving her evidence about the sexual harassment.
Does this evidence of bad performance positively support the Complainant's version of events? Many witnesses realised that Tan was not performing well in the months after February 2005. There is not unanimity as to when this bad performance was first observed. In my view, it is most likely that it commenced shortly after the event, and I accept the Complainant's explanation that it occurred because she could no longer work closely with Respondent, and had lost faith in the other surgeons in the unit, as she did not believe they would support her against him. It is logical that this change in relationship with Xenos would have been observed, firstly, by the theatre nurses who worked closely with her, and then later by other of the unit staff.
This view is reinforced by the terms of her inconclusive conversations with Danks in April or May 2005 and Pullar in August of 2005. It may be that her brittle character and previous interpersonal difficulties were to blame for the failure of either of these two men to take up her concerns. It may be that she expressed herself in such an elliptical manner, that neither really understood the gravity of what she was attempting to communicate.
However, the fact that these conversations took place, and the hesitant manner in which they took place is, in my view, consistent with the Complainant finding more and more difficulty with her work as a result of her emotional reaction to the incident of harassment, but not being prepared make a formal complaint of harassment, or acknowledge her difficulty in coping as a result, because of her position as a trainee.

[189]

Having analysed the evidence of the history of the Complainant's work standards, and having analysed the evidence given of complaints made by the Complainant during 2005 of sexual harassment, I now come to the meeting of 2 February 2006. At this meeting issues of prior complaints of sexual harassment and the difficulties with the Complainant's work standards coalesce.
The meeting was called by Tan to discuss the contents of her last assessment report for Monash. The assessment covers the period from 1 July 2005 to 5 February 2006. Tan gave uncontradicted evidence that this assessment was required to be shown to her by Danks, discussed with her, and then filed with the Board of Neurosurgery by 5pm on 31 January 2006.
She said that she became concerned, throughout most of January, that she had not received the assessment, and tried to pin down Danks as to when she would receive it. She said she could not fathom why he was delaying giving her the assessment.
Danks' evidence was that he knew Tan would be unhappy with this assessment, and so he wanted to ensure that it was given to her at an appropriate time, when it could be discussed in the presence of witnesses.
Ultimately, the report was given to her in less than optimal circumstances, at the end of a long working day, at about 8pm on 31 January 2006. It was handed to her by Danks alone, and without detailed discussion. Danks had arranged for Xenos to be present with him on this occasion when he handed over the report, but Xenos was not available. When Tan learned that he had arranged for Xenos to be present, she became extremely upset. She says she confronted Danks about this, saying - "how could you when I have told you what he did to me". Danks denies that this conversation occurred. His evidence was that, at this late stage, he still had no idea that Xenos was the alleged perpetrator.
It was suggested to Tan that her account of receiving this document on 31 January was wrong. She had said elsewhere that she had been given it by Danks when they were both in the operating theatre. In other evidence, she spoke of having received it in the tearoom. She was asked to explain the discrepancy. She said that she meant the tearoom which was part of the operating theatre precinct - the whole area being customarily referred to as the operating room. In my view, her explanation was credible.
In any event, the only controversial issue about the meeting of 31 January was that Danks denied Tan's assertion that she had had a sense that Xenos had been involved in the performance assessment, and so asked him how he could disregard the impact of her having suffered a sexual assault by Xenos on her result, and how he could contemplate having him involved in the assessment discussion, given the harassment she had suffered at his hands.
She gave evidence that, on hearing this, Danks just looked at her and did not deny what she had said. Danks does not directly say in his witness statement whether she used those words. He says, however, that nothing was raised in the tearoom discussion about the harassment allegations.
Tan insisted on having a meeting to discuss the contents of the report, and insisted that Danks, Pullar and Drnda be present. The meeting took place on 2 February 2006 in an atmosphere of confrontation.
In my view, the evidence shows that each of those present at the meeting had fundamentally different views as to its purpose. For Tan, the purpose of the meeting was to challenge each of the conclusions of the assessment, with a view to convincing Danks that his conclusions as to her performance were wrong. The others present, I find, also understood that to be the purpose of the meeting. However, Tan also wanted to use the meeting to express her view that some of the difficulties in her performance had come about as a result of her reaction to having been sexually harassed by Xenos, and to express her outrage that Danks had made the previous arrangements for Xenos to have been present when she received the report.
She gave evidence that, as well as challenging the detailed content of the report at the 2 February meeting, she also said to Danks, Pullar and Drnda at the meeting that she could not understand why Xenos had been permitted to participate in the assessment, and had been asked to attend the assessment meeting, given that Danks knew of her complaint about Xenos.
She said Danks responded "I've spoken to him and he denies it", and added "you must have misconstrued something he did that was innocent". Tan's evidence was that, at that point, overcome by the realisation that the incident was being treated as of no consequence, and that she would receive no allowance for the effect of that harassment on her work performance, she blurted out "How can you misconstrue someone who has his penis out and asks you whether you want to get down on it?".
It should be remembered that the evidence is that Tan had complained that she had been sexually harassed to all three of the neurosurgeons present, well prior to the date of this meeting. Danks says that he knew of the complaint, but did not know Xenos was the perpetrator. Pullar gave evidence that she had complained to him in August of 2005 - some five months previously. Although Tan did not mention Xenos name, Pullar's evidence is that he came to know it was Xenos after a conversation with Danks in August or September of 2005. So, by the time of this meeting, he would well have known that Tan had made an extremely serious allegation about Xenos.
Tan gave evidence that she complained to Drnda in July of 2005 and identified Xenos as the perpetrator. Drnda did not give evidence before me. I accept the Complainant's unchallenged evidence that she did so. Dr Danks expressed the view that, from the expression on Drnda's face when Tan described that alleged sexual harassment, Danks formed the view that this was the first time Drnda had heard of these allegations. However, this is inconsistent with the evidence of Tan that she told Drnda of the allegation in July 2005. Accordingly, I do not propose to give weight to this observation, particularly in the light of the fact that Drnda was not called to give evidence.
I have previously examined Danks evidence of what Tan had previously told him of her complaint. It is clear from his evidence that he knew of the details of the complaint, if not the perpetrator, for quite some time before the meeting. I have expressed the view elsewhere in these reasons that from the evidence that by the time of this meeting he would have known, or understood that Xenos was the subject of the complaint.
So, at this meeting of 2 February 2006, Tan appears to have been making the clear point that sexual harassment of the type she had described, by a superior whose views were to be taken into account in her assessment, was a very serious matter, and should have been taken into account in ameliorating the harshness of the assessment she had received.
Tan does appear to have been successful in making her point understood. It is clear from Dank's evidence that he understood that this was the point she was making as, in his own evidence, he identified this as an issue he had considered. He gave evidence that he expressed his own view at the meeting, which was that any issue of sexual harassment by Xenos should be treated in isolation from an assessment of her work performance.
Pullar also describes the meeting on 2 February 2006. He says he "differs in emphasis" from her account. He describes her as "combative" during the meeting. He said she made an "unequivocal threat" to "take things further" regarding Xenos. He said she gave explicit details at the meeting about the alleged incident. Of significance, he said he was dismayed that the issue of the alleged sexual harassment by Xenos had been raised by Tan as he thought this was not the forum at which such a matter should be discussed. So, clearly he understood the point she was making.
To a great extent then, Tan's evidence as to what was actually said was supported by the evidence of the specialists who were present. The divergence is in what she meant by what she said, and whether I should see her allegations, made at that meeting, as a desperate and fabricated attempt to shore-up her training position by lashing out with wild accusations, or a desperate plea for past allegations to be taken seriously.
The main issue of factual disagreement arising out of this meeting is the contrasting evidence of Tan and Danks as to whether this meeting was the first occasion on which Danks had understood Xenos was the perpetrator. His evidence about this meeting was that he knew it would be unpleasant and it was. He said that Tan said clearly at that meeting what the alleged sexual assault was, and that he was "flabbergasted" by her description. He said it was the first time that he had heard the details of what occurred. Tan agrees that this was the case.
It was suggested to Tan, in cross-examination, that it was only on realising, during the course of that meeting, that she would be failed in her assessment no matter how hard she tried to talk her way out of it, that she decided to make an untrue complaint of sexual harassment against Xenos. Although it was not directly put to her in cross-examination, I take the suggestion to be that she attempted to blackmail the consultants in that meeting to pass her, or else she would make the complaint. Danks says, in his statement, she then attempted to blackmail him by saying that, unless the report was amended, she would be forced to make this allegation public.
The different accounts of the meeting of 2 February can be reconciled if one looks closely at each account of what the Complainant actually said at the meeting. She said that it was in response to Danks' refusal to accept that the harassment could have had anything to do with her performance, that her outburst took place.
Tan's position was that the sexual harassment which she had experienced had so affected her that she could not function normally as a trainee for the relevant period, and that this lack of function should be taken into account in her assessment.
In contrast, Dank's view at the meeting was that issues of her poor performance should be kept completely separate from her complaint of sexual harassment. Even when he gave evidence before me in this trial, he said that it was still his view that the allegation of harassment should not have been allowed to influence his assessment of Tan's performance.
Dr Weidman said he had originally also taken the view that the complaint of sexual harassment should not be taken into account when assessing Tan's performance at Board level. He said, when the Board received it, they decided the issue of her assessment and the assault should be kept separate. They asked the Chief Censor to look into the sexual assault and did not take it into account in assessing her performance.
Weidman agreed that the allegation, if true, would represent a serious allegation of breach of trust by a superior. He also agreed that if true, such an incident could have a dramatic effect on a trainee's ability to perform her job. He gave evidence that he had changed his initial view that the issues of assessment and harassment should be dealt with separately and now accepted that if harassment did in fact occur, it could have influenced performance and working relationships in the period of Tan's last assessment.
In my view, it was this point of view that Tan was trying to express at the meeting, albeit in a confrontational way.
Therefore, in my view, the behaviour of Tan at the meeting is entirely consistent with her evidence, and is not evidence of "blackmail" in the way it has been portrayed in this case.
I find that none of the accounts of that meeting is consistent with any suggestion of the claim of sexual harassment being made up at the meeting by Tan, as a bargaining counter in the face of the prospect of failing the assessment.
Tan said that that meeting strengthened her resolve to make a formal complaint. She said that she thought that having been subjected to what she saw as such a deeply traumatic experience should be taken into account by Danks and the other surgeons as a mitigating factor. She was concerned that the assessment was unfair if this was not taken into account, and possibly prejudiced. She determined that they should have all the facts before making a final determination on her future.
I accept her account as accurate.

[190]

I have found the Complainant to be a credible witness. I have found her complaint of sexual harassment, by the Respondent on 15 February 2005, to be consistent with all of the evidence I have heard in this case. I have found the Respondent's claim that she fabricated the story, either as a result of receiving the final assessment from Monash in February 2006, or before that time, because she realised that she was in danger of failing, to be unsustainable.
I have found that the Respondent deliberately exaggerated the timeframe during which she demonstrated substandard work, to make it more closely fit his suggestion that she had fabricated the claim. I find that he exaggerated his evidence in respect of the dimensions of his room to make it seem less likely that the harassment took place in the manner she described it.
I have found that he deliberately compiled a list of exaggerated performance complaints for Dr Danks, in order to make it appear more likely that she had fabricated this claim.
Overall, it was my view that Dr Tan presented very credibly in giving her evidence. It was clear to me that she has great difficulty accepting criticism of her professional performance, and she was forthright in responding to criticisms of her performance. I suspect that, in this regard, she is not much different from many highly intelligent, extremely driven professionals. It is not my task to determine whether or not she has the skills necessary for neurosurgery. But the criticisms levelled at her were always met with a well-reasoned answer.
The cross-examination of her was far ranging and repetitive. Throughout it her evidence remained consistent and credible. She remained courteous, even when asked the same question many times over. She showed extraordinary poise and composure under pressure.
I was persuaded by the evidence of the Complainant. Her evidence had a ring of truth about it. I have found that there were concerns about the standard of her working relationships at Adelaide and Monash. But it does not follow that, because she is a difficult person to work with, that it is more likely that she would have fabricated an allegation of sexual assault. Indeed, those aspects of her character that appear to create the most difficulty in interpersonal relationships - her refusal to accept that she may have made mistakes, her pedantic insistence on debating every point, seem to me to make it less likely that she would do so.
It was suggested by the Respondent that, as she had shown herself to be vocal in defending herself in regard to issues of training, and to complaining where she felt she had received inadequate treatment or training, she would have had no difficulty in making complaint of sexual harassment at the time, had such an event occurred. She said she did not realise that there was a Human Resources Department at the Hospital which could deal with such a complaint. It was suggested that it was fanciful to suggest that, as a woman thirty-four years of age with twelve years of experience in employment at hospitals, she would not have known that the Hospital had a Public Relations Department or that this department could be contacted in relation to sexual harassment.
She said she had never had any occasion to deal with human resources, either in Adelaide or at Monash, as her appointments had never been via human resources recruitment, and she had never been in a management position in hospital. She had never attended a hospital orientation session or been aware that one existed, and had never heard of what was described as a medical practitioner's manual.
I agree with the submission of counsel for the Complainant, that there is a world of difference between having the confidence to argue with her superiors about issues of work performance, and making a complaint of sexual harassment.
She was referred to a letter she wrote to Danks in October 2005, complaining about the number of operations she was getting. She was asked why she did not refer to the allegation of sexual assault in that letter. She said she wrote the letter, not in an aggressive tone, but as a supplicant, respectfully requesting consideration of the points made, but not demanding them. She agreed the letter showed she had no reticence about approaching her supervisor about aspects of her training that she thought were unfair.
I found the Complainant's evidence as to these issues credible and convincing. I have no doubt that she also finds it difficult to take criticism, even if well meant, and has difficulties in some professional relationships. However, Respondent's counsel submitted that this evidence established her "evident subterfuge". I do not agree.
By way of contrast, the Respondent's evidence as to her professional standards was not supported by the supporting evidence he produced.
He made no written complaint at all as to the Complainant's working behaviour until the day after he had been advised by Dr Danks of her intention to proceed with this complaint of harassment. On that day, 1 February 2006, he wrote the long letter to Danks, which I have previously discussed. The contents of that letter are completely contrary to the contents of the Danks' assessment handed to the Complainant the previous day and, in my view, represent an attempt by the Respondent to manufacture reasons for the Complainant to have made the Complaint.
My conclusion is that these incidents were not viewed by Xenos in such a negative light at the time they occurred, but were accepted by him to be normal mistakes to have been made by a trainee. Had he really been "terrified" by Tan's refusal to assist to press the pedal in the incident he describes as occurring in March 2005, I have no doubt that he would have reported it to Danks and that it would have been referred to in her assessment report covering this period.
It is my conclusion, on all the evidence I have heard, that it is more probable than not that the incident of sexual harassment occurred and that it occurred in the manner deposed to by the Complainant.
Because so much of this hearing was taken up with issues to do with her overall performance, and interaction with professional and nursing staff, it is appropriate to emphasise that this is not a hearing into whether or not Dr Tan is of sufficient professional skill to practise as a neurosurgeon.
It is clear from the evidence that certain of the neurosurgeons, and other staff with whom Tan came into contact, had significant concerns about her performance. I accept that she may well have been a very difficult person to deal with. I accept the evidence given by various witnesses of instances in which her conduct during operations and towards other staff was of professional concern. But I am not here to decide whether or not Dr Tan is unable to get along with other people. I am not here to decide whether or not she is technically qualified to be a good neurosurgeon.
Many of the witnesses, called by the Respondent had clearly formed a negative view of her capabilities and character. I have formed the view that it was precisely because of Tan's reputation as being difficult - or in Professor Weidman's ungracious terms as being deserving of time in a "rehabilitation unit" - that the Respondent thought he could deny the incident without being found out.
Many of the witnesses he called seemed to presume the incident was fabricated, simply because of a comparison of the personalities of Complainant and Respondent. Dr Sarah Olsen knew absolutely nothing about the incident, yet she told me she desired to give evidence against the Complainant to "save the Australian people" from Dr Tan. Dr Helen Maroulis flew from Queensland to give evidence "on behalf of the cause of feminism".
But the resolution of her capacity to practise as a neurosurgeon should be decided in another forum. It is disappointing that none of the witnesses called by the Respondent appear to have taken her claim of harassment seriously. It is disappointing that the Board never considered the claims to be sufficiently grave to warrant consideration of the need to reassess of her capacity in the last assessment period. It reflects badly on the profession of neurosurgery that only two neurosurgeons who gave evidence in this case - Wallace and Kaye, were prepared to take a serious view of an allegation made by a trainee about a surgeon in a position of power over her.

[191]

The Complainant originally sought an order that the Respondent apologise to her for the conduct which I have found proven. She withdrew this request in final submissions, recognising that, given the way in which this case has been fought, any apology ordered by me would not be genuinely given.
In my view, the ordering of an apology should be done only in rare circumstances. I do not believe that such an order is appropriate in this case. In my view, the appropriate course is to make an award of damages.
I do not have any evidence to support an award of special damages or loss of earnings. The Complainant has now completed her training and is qualified as a neurosurgeon. Her period of training has been delayed. However, there is little real evidence linking the delay in training with the harassment. She made her official complaint at the end of her term of training at Monash. The Board acted quickly in finding her an alternative venue to complete her training. It appears from the reports of Dr Laidlaw that her training, subsequent to these events, may have been extended because of difficulties in her work at the Royal Melbourne Hospital. I have adverted to this issue in ruling that the most recent assessment reports from the Royal Melbourne Hospital not be admitted into evidence.
Given the uncertainty surrounding the evidence on this issue, I am not prepared to find that her training was extended as a direct or indirect result of the harassment. I am therefore considering only an award of general damages and, in assessing those damages, I do not treat the Complainant as being now a fully qualified neurosurgeon. I have not heard any evidence, one way or another, as to whether she is now so qualified.
This is not to say that I regard the question of general damages as minor or inconsequential. In my view, there should not be a perception that awards of damages in this jurisdiction should be set at some lower rate than awards for comparable cases in the Courts. The purpose of the award of damages is to attempt to measure, in monetary terms, the hurt that has been done to the Complainant by the Respondent's act of harassment. My approach should mirror the approach that would be taken if this case were to be heard in a Court, instead of a Tribunal.
The Complainant has suffered acutely as a result of this harassment. Indeed, my observation of her in the witness box was that she has been terribly affected by the incident. I even venture to say that her reaction has been unusually severe and, to some extent, out of proportion with the incident itself. She has reacted to it as a gross violation of her body and her trust.
I have no medical evidence before me as to how this incident has affected her. She gave evidence that her philosophy is that she can cope by herself. She appears a very private person, and revealing the details of what she genuinely regards as an outrageous event, appeared to me to be very gruelling to her.
Counsel for the Complainant submitted that the minimum figure for damages in this case would be $50,000. Counsel for the Respondent made no submission as to damages.
It is my view that the award of damages in this case must be substantial. It is true that the incident itself is not the worst one can imagine of sexual interference with another person. But the Respondent was in a position of power over the Complainant. It was not just that he was senior to her in the hospital. He was in a position of great influence as to her qualification and her future career. Her training assessments were compiled from the observations of all senior neurosurgeons. He was held in great esteem by all of the other surgeons. This is apparent from the evidence led by the Respondent.
But, even worse, his evidence is that he knew that her performance had been under a cloud at Adelaide. He must have realised that she was vulnerable by reason of that fact. He must have known that her account of events would have had no credibility, compared to his, at least in the eyes of their peers.
I have found that he deliberately and falsely denied the harassment. In conducting this case, he has attempted to completely smear her character. He has explored every possible aspect of her professional competence, and has produced very little of relevance to this trial. He has brought, as witnesses, the most powerful men in her professional life - the Chairman of the Board of Neurosurgery and several other senior professors and doctors of neurosurgery, as well as various other doctors and nurses, all of whom work in her area of speciality.
Neurosurgery is a very small speciality. Dr Weidman told me that there were only about 150 neurosurgeons in Australia. He said they meet each other regularly at conferences. I have no hesitation in finding that the great majority of them would know of this case already.
Caroline Tan graduated as a doctor approximately twelve years ago. Her undergraduate study would have taken six years. She has worked as a doctor, since graduating, for several further years. She has undergone training in neurosurgery for a further five years. Thus, she has already spent many years training to become qualified in her chosen profession. In my view, the enjoyment of her profession (even without considering attainment of specialist qualifications) will now be significantly tarnished by the sexual harassment which I have found proved.
I have been advised by counsel for the Respondent that there is evidence that she has failed her last assessment at the Royal Melbourne Hospital and therefore will not be allowed to become fully qualified as a neurosurgeon. I previously ruled that I would not allow the Respondent to reopen its case to prove this fact. However, I take it into account, in the sense that I note that there is no evidence that she is now a fully qualified neurosurgeon. Thus, I must leave open the possibility in assessing damages that she may not have qualified, and that her lack of qualification may be due to factors other than those identified in this proceeding. I will therefore exclude from consideration any damages that might otherwise have flown from the delay in achieving her qualification.
In all the circumstances, it is my view that an appropriate figure for general damages, given all of the above factors, is $100,000.00, and I so order.

At a glance

Court

Decision date

Source

Judgment (191 paragraphs)

Parties

Cases Cited (6)

Tan v Xenos (No 3) (Anti-Discrimination) [2008] VCAT 584 (11 April 2008)