Gautam v Health Care Complaints Commission

LEEMING JA: I agree with Payne JA, and wish to add the following on three matters.

The first concerns ground 2 of the HCCC’s cross-appeal. This ground complained that the Tribunal had committed appellable error by not accepting the submission that by denying the conduct alleged by the complainant, Dr Gautam had failed to display insight, thereby warranting a more severe order. The submission (confirmed during an adjournment in the hearing when this Court expressed concern about it), and the circumstances in which it came to be made, suggests that it may be desirable to restate some basic matters.

The onus rests on the HCCC to establish a case of unsatisfactory professional conduct or professional misconduct. The practitioner is entitled to require the HCCC to prove its case. This is fundamental.

Both Dr Gautam and the HCCC had proceeded on the basis that there should be a single hearing on all issues, including the appropriate orders if unsatisfactory professional conduct or professional misconduct were established. That hearing took place over parts of three days.

There were no written openings. On Monday 30 November, counsel for the HCCC opened, very briefly, advising that there were two competing narratives, one of which the Tribunal would have to reject. It was put, concerning the versions of events, that “one is fictional, and one isn’t”. No submission was made about the appropriate orders in the event that the HCCC’s allegations were made out. The HCCC’s originating process was similarly unilluminating. It stated that it sought:

The complainant, her sister, her mother, and Dr Gautam were cross-examined on the first day. On Tuesday 1 December, Dr Gautam’s practice manager was cross-examined briefly, and the hearing was adjourned until the following day, with the parties undertaking to supply written submissions. On Wednesday 2 December, the parties addressed, each speaking to their written submissions. Those of Dr Gautam were dated 1 December, and stated that the HCCC was “yet to articulate the merits of one order over another”. So far as I can see, that submission was accurate.

The HCCC’s submissions were dated 2 December, but were received by the Tribunal prior to the commencement of the hearing on that day. So far as I can see, that was the first time the HCCC submitted, specifically, that Dr Gautam’s registration should be cancelled. Paragraphs 59 and 60 stated:

The presiding member of the Tribunal asked counsel then appealing for Dr Gautam, concerning orders, “what do you say to that, given that you now know what they’re asking for”. He responded:

Thus, so far as the appeal materials disclose, it was only on the last day of the three day hearing that the HCCC (a) nominated the particular order which it sought, and (b) relied on Dr Gautam’s denial of the complainant’s allegations as a reason for his being deregistered.

Far from the rejection of the HCCC’s submission being an error, as the HCCC contends in ground 2 of its cross-appeal, I think that the course adopted by the HCCC is apt to invite the Tribunal into error.

It is of course axiomatic that an accused person is entitled to plead not guilty, and defend himself or herself at trial, without thereby attracting the risk of a more serious penalty: Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 at [22]. That does not entail that the submission advanced by the HCCC in these disciplinary proceedings is necessarily wrong. While there are similarities between criminal sentencing and the formulation of appropriate orders in matters of professional discipline, there is no precise analogy. Disciplinary proceedings are sui generis, as Mason J explained in Weaver v Law Society of New South Wales (1979) 142 CLR 201 at 207; [1979] HCA 35, and, in particular, the power to impose orders is largely protective rather than punitive: Healthcare Complaints Commission v Wingate (2007) 70 NSWLR 323; [2007] NSWCA 326 at [55]. Nevertheless, there are cases where submissions akin to that advanced by the HCCC have led to error. Recent examples are Thompson v Racing Victoria Ltd [2020] VSC 574 at [47] (“VCAT plainly erred in law in punishing Ms Thompson more severely because she disputed the charges”) and Secretary to the Department of Education and Training v Paul [2020] VSCA 280 at [132] (“the Secretary was wrong to treat the fact that Paul did not admit to his wrongdoing, and that he affirmatively denied it, as aggravating his misconduct”). Those examples suggest that a degree of caution is warranted, to say the least.

There is an obvious tension between the entitlement of a practitioner to insist that the HCCC proves its case, and the HCCC’s submission that contesting its case will disentitle the practitioner from establishing insight into the misconduct, and indeed will favour a more severe disciplinary order. I do not say that in no circumstances could that occur, although I would expect that to occur only in relatively exceptional circumstances (for example, a self-represented practitioner who conducted an extravagantly misguided defence). But I would also expect that if such a submission were made, then the HCCC would advise in advance of the hearing of the orders that it sought and the particulars on which it relied, or otherwise take steps to ensure that the hearing was fair.

The essential point is that the procedure adopted must be fair, in a practical and not merely theoretical, way (see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]). I have real doubt that it could be fair to acquiesce in a single hearing on all aspects of a disciplinary complaint (ie liability and orders), and only at the conclusion of the hearing state that the appropriate order was deregistration, and then contend that because the practitioner had defended the proceedings, that would be relied on as a basis for deregistration; cf Smith v New South Wales Bar Association (1992) 176 CLR 256 in the joint judgment at 269 and, more elaborately, by Deane J at 272-274. I agree with Payne JA’s observation that the course initiated and maintained in the HCCC’s cross-appeal is regrettable.

I do not accept the HCCC’s one-size-fits-all submission that the test for the adequacy of reasons is that applicable to a tribunal from which an appeal lies confined to questions of law. That is so for a number of reasons. One is that the same standard of reasoning is not applicable to all tribunals, irrespective of constitution or subject matter, from which appeals lie confined to questions of law. Where (as here) the tribunal is required to include a judge amongst its members, and is required to resolve factual disputes of the utmost seriousness to complainants and practitioners, that suggests a heightened standard of reasons in contrast with, say, the decision of the same tribunal, differently constituted, on a dispute under the Home Building Act 1989 (NSW).

A second is that the starting point is the nature of the statutory regime. In the present case, the Tribunal was subject to the express obligations in s 165M of the Health Practitioner Regulation National Law (NSW) (this provision is a modification, contained in Schedule 1 of the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW), of Queensland legislation made applicable by s 4 of the latter statute.) That regime incorporates an important public aspect in s 165M(4), which provides as a default position that the written statement of the decision be made publicly available wherever a complaint has been proved or admitted in whole or in part. That reflects a legislative determination that there should be a transparent process in the case of the most serious complaints.

A third, which is cognate with the second, is that much may turn upon the significance of the issues determined by the tribunal, both for the parties and for the broader public. In the present case, as Mr Windsor SC, who appeared in this Court but not in the Tribunal, correctly submitted, they were of the utmost seriousness to the practitioner (involving a reprimand and a suspension of his right to practise his profession), to the complainant and to the wider public. The content of the judicial duty to give adequate reasons depends on the circumstances of the matter being considered: Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 at [61]. The position with tribunals is a fortiori, bearing in mind the range of matters determined by tribunals and the absence of any free-standing common law duty to give reasons: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [43].

The fourth point is that pursuant to s 29(4)(b) of Schedule 5 of the Civil and Administrative Tribunal Act 2013 (NSW), both sides enjoy not merely a right of appeal confined to questions of law, but a right of appeal, subject to leave, on any other ground. It is well recognised that a necessary consequence of the existence and extent of a right of appeal is that it will affect the obligation to give reasons; the latter must at the least extend to sufficient reasons so as to permit the full enjoyment of the former: see Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [23]-[24] and [105] and New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [29]. A dissatisfied litigant in NCAT enjoys substantially the same right of appeal as is enjoyed by a dissatisfied litigant in an action in the District Court involving an amount less than $100,000, namely an appeal on any grounds, subject to the grant of leave.

Most commonly, the issues in contested proceedings in the Occupational Division will involve questions of fact. Not uncommonly, they will include questions of the credibility and reliability of the evidence of complainants as well as of practitioners. It will, generally speaking, be necessary for the Tribunal to apprehend the gravamen of each side’s case, to attend to the central aspects of those cases, and the evidence bearing upon them, and to give reasons for the critical findings of fact and the evidence upon which they turn. It is difficult to speak in terms of inflexible rules. Very much will turn upon the nature of the case and, in particular, the nature of the parties’ submissions in support of the findings each seeks to be made.

By way of example, although there is superficial force in the submission that two factual aspects involving inconsistencies in the complainant’s case (the position of the sliding door and the physical location in the consultation room when the kissing alleged by the complainant took place) were not addressed in any detail in the Tribunal’s reasons, it is important to observe that in proceedings where Dr Gautam’s counsel identified a range of inconsistencies, neither of those two was the subject of any submission to the Tribunal. Had they been given the emphasis they were given in this Court, the submission that the Tribunal’s reasons were deficient would have had greater force. This well illustrates the proposition that the minimal content of a tribunal’s reasons is informed by the submissions that have been made to it.

Dr Gautam maintained, relying on Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 at [29], that NCAT “did not resolve the resultant facts in issue, nor issues of credibility, as it was required to”. The thrust of the submission was that there were “sub-issues” concerning how many times the door was locked, and whether Dr Gautam kissed the complainant on the top of her head, that these “sub-issues” had not been addressed in the reasons, and therefore the reasons were inadequate. That submission does not reflect Ipp JA’s reasoning in Goodrich.

Ipp JA was at pains to point to the limitations of testimonial evidence, including both the fragility and malleability of human memory. His Honour was far from the first to make the observation, and academic literature in the succeeding 15 years has not diminished its force. It is helpful to reiterate what was said in Coote v Kelly [2013] NSWCA 357 at [51]:

See also, without being exhaustive, Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [77]-[80] and Nominal Defendant v Smith [2015] NSWCA 339 at [82].

After summarising a deal of material to similar effect, Ipp JA said at [27]:

Ipp JA then denied that it was sufficient merely to set out the competing evidence, and conclude that the judge favoured one side. His Honour continued at [29]:

Ipp JA was saying that analysis should in such cases commence with objectively established matters, against which the credibility and reliability of testimonial evidence can be assessed. That is the usual course, as has regularly been observed. Usually, the resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation: Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34]; State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47 at [56]. That approach reflects the acknowledged limits upon judges’ ability to distinguish truth from falsehood accurately on the basis of the witnesses’ appearance, and the appropriateness of reasoning, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31]. Ipp JA was not suggesting that there was a rule that required identification and resolution of all “sub-issues”.

I agree with the orders proposed by Payne JA.

PAYNE JA: Dr Gautam (the appellant and the cross-respondent) appeals against a decision of the NSW Civil and Administrative Tribunal (‘the Tribunal’) sitting in its Occupational Division which found him guilty of professional misconduct and imposed a penalty comprising a reprimand together with a three month suspension of his registration: Health Care Complaints Commission v Gautam [2020] NSWCATOD 146 (Balla ADCJ, Gillis SM, Haikal-Mukhtar SM, Houen GM).

The primary complaint made by the appellant concerns the adequacy of reasons provided by the Tribunal for finding him guilty of professional misconduct. There is also a complaint about the application by the Tribunal of the Briginshaw standard of proof. The appellant also seeks leave to challenge numerous factual findings.

The Health Care Complaints Commission (‘the HCCC’) (the respondent and the cross-appellant) cross-appeals with respect to the orders imposed on the appellant and seeks in lieu of the penalty imposed an order cancelling the appellant’s registration as a medical practitioner for at least two years.

The appellant is a paediatrician practising in Campbelltown. The complaint before the Tribunal concerned the conduct of the appellant towards the complainant (the mother of one of the appellant’s patients (‘Patient A’)) during the course of a consultation at the appellant’s rooms on 21 December 2017. The following background facts were not in dispute:

The essential factual contest before the Tribunal was what had happened between the appellant and the complainant at a consultation on 21 December 2017. On the complainant’s evidence the following occurred:

The appellant “categorically denied” the complainant’s account of the consultation. On the appellant’s version of events, the only physical contact between the appellant and the complainant took place at the end of the consultation when he shook her hand to say good-bye and patted her right shoulder or upper back to comfort her. The complainant and the appellant gave oral evidence and were cross-examined before the Tribunal.

The Complaint relied upon by the HCCC provided:

The Tribunal addressed the competing narratives given by the complainant and the appellant under the heading “[r]esolving the conflict in the evidence”. The Tribunal was satisfied that the evidence given by the complainant and the appellant could not be reconciled. That finding was not challenged on the appeal and was clearly correct. The Tribunal recorded that the issue before it was whether the HCCC had established that one or more of the events pleaded in the complaint occurred. The Tribunal recorded that in approaching that question it was applying the balance of probabilities standard as explained in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.

The Tribunal made a specific finding that the complainant attempted honestly to answer all questions put to her. The Tribunal also made a specific finding about the complainant’s reliability:

The essence of the Tribunal’s approach in resolving the conflict in the evidence was to address each of the challenges made to the complainant’s account in turn, before considering her credibility and reliability on the whole of the evidence. In so doing, the Tribunal accepted that the complainant resiled from some aspects of the accounts which she had set out in her statements and her original complaint. Counsel for the appellant before the Tribunal submitted that the complainant’s evidence ought to be rejected because of inconsistencies in her own evidence, inconsistencies between her evidence and a police electronic record (‘COPS electronic record’) and inconsistencies with the evidence of the complainant’s sister and mother. The Tribunal concluded that the differences in the complainant’s accounts about which the appellant complained did not affect her credibility or reliability: see at [30], [37].

The Tribunal addressed each of the appellant’s complaints about the credibility and reliability of the complainant’s evidence. I will return to that aspect of the reasons when addressing the principal ground of appeal.

The Tribunal accepted the complainant’s evidence and found all of the grounds of both the first and second complaint proven.

The Tribunal concluded that the proved conduct amounted to professional misconduct. The Tribunal said that:

The Tribunal accepted the submission made by the HCCC that the appellant’s conduct demonstrated a departure from accepted standards: at [56]. In concluding that the proved conduct amounted to professional misconduct, the Tribunal took into account the following matters as indicators of the serious nature of the conduct underlying Complaint One:

In determining the appropriate protective order, the Tribunal took the following matters into account:

After taking those matters into account, the Tribunal was satisfied that the appropriate orders were a reprimand and suspension from practice for three months: at [67].

Clause 29(4) of Sch 5 to the Civil and Administrative Tribunal Act 2013 (NSW) provides that an appeal in a case such as the present “may be made as of right on any question of law, or with the leave of the court, on any other grounds.”

The further amended notice of appeal identified the following grounds of appeal:

The appellant also sought leave to challenge the following factual findings:

On a contingent basis, the HCCC submitted that if challenges to factual findings were to be entertained it should be granted leave to challenge facts found and to submit that:

The Court heard full argument about the challenges to factual findings on the hypothesis leave would be granted and indicated it would deliver its reasons about leave in this judgment.

I would refuse both parties leave to appeal on factual findings in this case.

This case essentially involved a contest between two diametrically opposed accounts of alleged sexual impropriety. By its nature there are unlikely to have been any witnesses to the conduct. It has not been the law for many years that an account of alleged sexual impropriety needs be corroborated before it may be accepted in a criminal case, much less in addressing an allegation made under the Health Practitioner Regulation National Law (NSW) (‘the National Law’). The Tribunal observed the two critical witnesses give evidence. The Tribunal paid close attention to the credibility and reliability of the complainant’s account. The Tribunal tested the credibility and reliability of that account thoroughly, including by reference to the evidence of contemporaneous complaints.

No meaningful submission was advanced in support of the suggestion that without seeing the witnesses give evidence this Court was in a position itself to make factual findings about any of the issues in respect of which leave was sought. None of the circumstances of the kind described in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 and Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 permitting an appellate court conducting a rehearing pursuant to s 75A of the Supreme Court Act 1970 (NSW) to depart from a demeanour-based credit finding were identified. No reasonably arguable error of fact was identified by either party.

In those circumstances, leave to appeal on factual matters should be refused.

The principal issue on the appeal is the appellant’s complaint about the absence of reasons or inadequacy of reasons on the part of the Tribunal. This was the subject matter of ground 1, ground 2 particulars (a) and (b) and ground 4. To the extent that ground 2 particular (b) raised factual issues, I would refuse leave to appeal for the reasons I have given. In effect, the complaint as framed in particular (b) was addressed in the oral and written submissions as being an aspect of failing properly to give adequate reasons.

Section 165M of the National Law provides:

Section 165M is in addition to the provision applying more generally to reasons for Tribunal decisions. Section 62(3) of the Civil and Administrative Tribunal Act also provides that a written statement of reasons provided to any party on request must set out the following:

Section 165M of the National Law is mandatory in cases to which it applies. Section 62 applies only on request. This case is a long way removed from those cases to which only s 62 of the Civil and Administrative Tribunal Act applies which may involve non-legally qualified Tribunal members dealing with a high volume of cases that do not require much by way of reasons. Although the Tribunal is not a court, I do not discern any difference of substance between the requirements imposed on the Tribunal to give reasons by s 165M of the National Law and the duty upon a court to give reasons. The relevant context supports such a conclusion. Section 165B(2) of the National Law provides that if an appeal is made to the Tribunal under the National Law, in the case of medical practitioner proceedings, the Tribunal must be constituted by one Division member who is a “senior judicial officer”, two health practitioners and one lay person. Section 165 defines “senior judicial officer” as a judge of the Supreme Court, a judge of the District Court, or a judge or other person having the same status as a judge of the Supreme Court. The issues to be determined are serious and have potentially very serious consequences for the medical practitioner. In the present case, the Tribunal was presided over by a very experienced District Court judge.

In exercising the statutory functions under the National Law, the Tribunal is obliged to provide reasons of sufficient cogency for its conclusions. The HCCC’s reliance upon the passages in Alexandria Landfill Pty Ltd [2020] NSWCA 165; (2020) 243 LGERA 102 dealing with reasons for appeals limited to a question of law and appeals from discretionary decisions is misplaced. Appeals in the present context may, with leave, be allowed on a question of fact. They are, in that regard, similar to appeals from the District Court under s 127 of the District Court Act 1973 (NSW) where the amount in issue is less than $100,000. Whilst the characterisation of conduct as unsatisfactory professional conduct or professional misconduct may involve principles of evaluative decision making, the question of whether conduct of the kind described in Complaint One occurred involves findings of fact, not an evaluative or discretionary decision.

It remains the case, however, that the function of an appellate court is not to determine the optimal level of detail required in reasons for a decision but rather to determine the minimum acceptable standard. The standard required of reasons is not one of perfection: New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [66] per Bell P (with whom Ward JA agreed).

In Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816, Kirby and Heydon JJ observed at [86]:

Hayne J (with whom McHugh and Gummow JJ agreed) noted at [129]-[130]:

The appellant relied heavily upon Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187, where Ipp JA (with whom Mason P and Tobias JA agreed) noted at [29]:

The formulation of the obligation to give reasons explained in Goodrich Aerospace has been described as a manifestation of the “tendency for the intensity of scrutiny of the adequacy of reasons to increase over time”: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [55] per Basten JA, with whom Beazley JA agreed. It may be, however, that Ipp JA was not stating a new principle in Goodrich Aerospace. I respectfully agree with Basten JA in Ziliotto v Hakim [2013] NSWCA 359 that [29] of Goodrich Aerospace should not be understood as requiring identification of “sub-issues” and findings in respect of sub-issues, with necessary reasons. As his Honour said, with the agreement of Macfarlan JA:

The ultimate question remains whether the failure to explain the basis of a crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done. The “minimum acceptable standard” for reasons under s 165M of the National Law depends on the nature of the case, the nature of the submissions made by the parties and the nature of the issues engaged.

For the purposes of providing reasons for fact finding in compliance with s 165M of the National Law, it is not sufficient for the Tribunal simply to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses the members constituting the Tribunal prefer or believe the evidence of the one and not the other.

Section 165M of the National Law requires the Tribunal to resolve issues of fact tendered for resolution by the parties and to explain, by reference to the relevant facts, the conclusions to which they have come. This having been done, the Tribunal should then turn to the ultimate facts in issue and explain how their decisions on the issues identified by the parties have assisted them in reaching a conclusion on the ultimate issue. In performing this task, I respectfully agree with the observation of Keane JA in Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34] that “[u]sually, the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation”.

The Tribunal in the present case was required to resolve issues of fact tendered for resolution by the parties. Senior Counsel for the appellant accepted that the Tribunal addressed each of the factual issues tendered for decision by the parties. I have concluded that the Tribunal gave adequate reasons for reaching each of the factual conclusions that it did. The Tribunal gave adequate reasons for its ultimate decision.

Specific factual issues presented by the appellant below which were said adversely to affect the complainant’s credibility were each addressed. Adequate reasons were given for reaching conclusions about all of those issues. The Tribunal ultimately concluded, as I have said, that the inconsistencies between the complainant’s evidence and her prior statements did not “[impact] on the reliability of her account of the issues which caused her concern at the time and led to the Complaint”.

As to specific contentions raised by the appellant below and pressed again on appeal, the first issue was the number of times the appellant locked the consultation room door. The Tribunal made a clear finding:

The Tribunal accepted that there were differences in the accounts given by the complainant about how many times the appellant had locked the door during the events she described. The Tribunal concluded that the differences in account did not significantly affect the complainant’s credibility or reliability. The Tribunal explained its reasoning process; that the evidence illustrated the complainant’s “attempts to clarify the order in which a series of events occurred in a chaotic environment”. This was an adequate explanation or reason provided by the Tribunal for its conclusion about this issue.

The next issue raised related to conflicting evidence about whether Patient A was in the consultation room at any time during the events described and whether the appellant was sitting or standing when he kissed the complainant on the top of her head.

The Tribunal characterised these discrepancies as “relatively minor matters”. The Tribunal’s characterisation of these issues was correct. In assessing the credibility and reliability of the complainant’s evidence about sexually inappropriate conduct, the location of Patient A and whether the appellant was sitting or standing at the time he kissed the complainant on the head was of little moment. Relevantly to the appellant’s complaint, to the extent that inconsistencies in the complainant’s account were shown about these matters, the Tribunal gave adequate reasons for treating the differences as having little bearing on their assessment of the complainant’s credibility or reliability:

The appellant’s principal attack upon the complainant’s credibility was made on the basis that the complainant had, when making the complaints, allegedly omitted to complain about the kiss to the top of her head and in various contemporaneous complaints had described the appellant’s conduct as having “tried” to kiss her when in fact he had. As to the kiss on the head, the Tribunal found that, outside the complainant’s evidence, there was no specific reference in the evidence of any other person or in any other document to the kiss on the top of the head:

In context, however, the Tribunal did not consider that omission to be materially adverse to the appellant’s credibility or reliability. The kiss on the head was first specifically identified by the complainant no later than in a statement made within weeks of the relevant events in January 2018. The complainant’s evidence prior to that time was replete with references to inappropriate conduct alleged to have been committed by the appellant. The Tribunal did not err in failing to give adequate reasons for its credit and reliability findings about the complainant on this basis.

The principal attack by the appellant upon the credibility and reliability of the complainant was the reference in prior complaints to the appellant having “tried” to kiss her when, in fact, she alleged that he had.

The Tribunal considered the whole of the evidence on this subject and concluded that the complainant’s various accounts were not materially inconsistent. The Tribunal gave reasons for this conclusion:

The Tribunal’s close examination of the evidence, the identification of the relevant facts about the kiss on the cheek which had been intended for the lips and the Tribunal’s explanation of its reasons for the conclusions it reached was sufficient.

The appellant’s conduct could be fairly described as either that he had “tried” to kiss her or that he had in fact kissed her. As a summary descriptor of the event, provided on the day in circumstances where the Tribunal found the complainant “was significantly emotionally affected … from the trauma caused by Dr Gautam’s conduct”, the Tribunal was correct to conclude that this report was materially consistent with her ultimate (and considerably more detailed) evidence. There was no failure by the Tribunal to expose its reasoning process.

The Tribunal’s finding that the prior complaints were “generally consistent [with] the matters underlying the Complaint” was correct on the evidence before the Tribunal. All of the principal elements of the complainant’s allegations were identified almost immediately after the incident and relayed to her mother, her sister, the appellant’s practice manager, and the police. I reject the appellant’s approach which was to criticise the Tribunal for failing to examine the complainant’s prior statements minutely and with an over-emphasis upon slight variances. The Tribunal conducted a careful examination of all of the evidence to discern any material differences. It gave reasons for its conclusions about the differences identified by the appellant. To the extent that the appellant pointed to alleged inconsistencies between the complainant’s evidence and the COPS electronic record, that record was not made by the complainant or ever adopted by her. As I have said, it is not inconsistent in any event to describe the appellant’s conduct as having “made advances towards” her such as “leaning in for a kiss”.

Tellingly, in oral submissions made on appeal, Senior Counsel for the appellant, who was not counsel for the appellant at the trial, submitted that there were two matters which were partially important in the appellant’s case about which the Tribunal made no finding. The first was whether a sliding door between the consultation room and a filing area leading to a staff kitchen was open or closed during the events the complainant described. The second was whether there was equipment in the room as part of a play area which was submitted to be inconsistent with the complainant’s account of where in the room the appellant kissed her. Given the importance to the appellant of these issues said not to be the subject of reasons by the Tribunal, despite their being raised, the Court sought assistance in locating the references where this issue was raised by the appellant before the Tribunal:

After the luncheon adjournment the following submission was made by Senior Counsel for the appellant:

No complaint can properly be made by the appellant about a failure to give reasons for determining these two factual issues where the Tribunal was simply not asked by either party to make a finding about either issue.

In preferring the complainant’s account to that given by the appellant, the Tribunal gave reasons. It explained that it had particular regard to the forthright and thoughtful evidence of the complainant, who it found to be a credible and reliable witness, the immediacy of the complaints, the essential consistency in the multiplicity of contemporaneous complaints and the content of those complaints.

There was powerful and essentially consistent evidence of contemporaneous complaint. Whilst some of the details differed, immediately after the consultation with the appellant the evidence is clear that the complainant was very upset about what she said was sexually inappropriate behaviour by the appellant. The Tribunal, having given reasons for accepting the complainant’s diametrically opposed account, did not have to give separate reasons for rejecting the appellant’s account. In a different context, Bell P’s remarks in White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277 about a challenge based on the absence of reasons for preferring one account of diametrically opposed accounts are apposite:

The Tribunal in the present case was faced with starkly conflicting narrative accounts. This will often be the case in sexual harassment or sexual misconduct complaints. It is not necessary, as the appellant submitted, that the complainant’s account be “corroborated” or that, having addressed the relevant factual issues and accepted the complainant’s account, separate reasons be given for rejecting the appellant’s account. The Tribunal had before it two diametrically opposed accounts of events and came to a clear view, preferring one over the other, after extensive cross-examination of both the appellant and the complainant. The Tribunal was entitled to express itself as it did.

There was no failure to give reasons. Grounds 1, 2 and 4, to the extent they addressed the alleged absence or inadequacy of the Tribunal’s reasons, should be rejected.

As to ground 2, in particular ground 2(c), that the Briginshaw principle applied, the Tribunal cited Briginshaw, and expressly noted that it had to be “comfortably satisfied” that the complaint had been established on the balance of probabilities having regard to the potential seriousness of the consequences for the appellant. I do not accept, as was submitted, that the Tribunal merely gave “lip service” to the Briginshaw standard.

In written submissions before the Tribunal counsel for the appellant himself asserted that “comfortably satisfied” was an acceptable shorthand for the applicable test. He described the test in the following way:

In any event, that phrase correctly encapsulates the test and is commonly used in the context of proceedings such as the present: Kumar v Legal Services Commissioner [2015] NSWCA 161 per Leeming JA at [60] (with whom Basten JA agreed):

The Tribunal made express findings about the seriousness of the conduct which were not only open but hardly surprising. It was conduct that amounted to sexual impropriety directed to a vulnerable and emotionally dependent parent of a young patient with a complex and difficult condition. To quote Leeming JA in Kumar (a case where the Tribunal did not specifically refer to Briginshaw):

The same conclusion follows here, with even more force. The test was specifically referred to by the Tribunal and it is clear in its reasons that the correct test was applied.

Ground 2, particularly ground 2(c), should be rejected.

The remaining grounds of appeal were not referred to in any detail in oral submissions and were touched on only lightly in written submissions. Ground 3 of the further amended notice of appeal complained that the Tribunal erred in law and in fact in finding the appellant’s conduct amounted to professional misconduct. I have already dealt with leave to appeal on factual grounds and would refuse leave. The Tribunal referred to the Medical Board of Australia guideline, “Sexual Boundaries: Guidelines for Doctors”. That publication was relevant to the assessment of the appropriateness of the appellant’s conduct. It covers a range of conduct including “sexualised behaviour” and “sexual harassment”. The appellant’s conduct fell within the behaviour described by the guidelines. The Tribunal correctly referred to that portion of the guidelines that concerned a breach of sexual boundaries between a doctor and a person who is closely related to a person under the doctor’s care. No arguable question of law was identified by the appellant about the Tribunal’s reference to these materials. I would reject ground 3 of the appeal.

To the extent ground 4 of the further amended notice of appeal raised anything beyond a complaint about the absence of reasons or the application of the Briginshaw standard, no written or oral submission was advanced about that matter. Ground 4 of the notice of appeal should be rejected.

It follows that the appeal should be dismissed with costs.

The amended notice of cross-appeal raised the following grounds:

The HCCC sought the cancellation of the cross-respondent’s registration for a period of at least two years.

Ground 4 of the notice of cross-appeal addressed factual matters. For the same reasons as given above in relation to the application for leave to appeal on factual matters set out at [48]-[51], I would refuse leave to cross-appeal on this ground.

I would reject the HCCC’s remaining grounds of the cross-appeal.

Ground 1 of the cross-appeal alleged that the Tribunal had failed to take into account “the risk of the cross-respondent re-engaging in conduct the subject of the complaint” which was said to amount to a mandatory relevant consideration. I rather doubt that “the risk of the cross-respondent re-engaging in conduct the subject of the complaint” is a mandatory relevant consideration in the sense explained by Brennan J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40.

In any event, the risk of the cross-respondent re-engaging in conduct the subject of the complaint was a matter plainly taken into account by the Tribunal. The Tribunal’s findings about the matters the appellant had put in place to prevent any recurrence, including not initiating handshakes, not disclosing personal details, removing the lock on the door, and installing a CCTV system used with the consent of patients, would be inexplicable unless the Tribunal was taking into account the very matter the HCCC alleges that it failed to consider. The Tribunal in these passages can be referring to nothing other than the risk of recurrence.

I would reject ground 1 of the cross-appeal.

Ground 2 of the cross-appeal is that there has been a constructive failure to exercise jurisdiction by failing to address the HCCC’s submission about the “cross-respondent’s lack of insight into the offending conduct” and the Tribunal’s alleged failure “to have regard to [the] cross-respondent’s denial that the conduct had occurred.”

In circumstances where the HCCC acquiesced to the hearing in this case being held in one stage rather than two, its submission about alleged failure by the Tribunal to consider the absence of insight, based on the appellant’s denial of the conduct, is a regrettable one for a regulator and model litigant to advance. In a hearing held in one stage, comprising liability and penalty, the appellant could not reasonably be expected to have accepted that the conduct had occurred. Mr Chatterjee, who appeared for the HCCC, very properly sought and obtained an adjournment to obtain instructions about the course suggested by the HCCC. It is a matter of considerable regret that the HCCC chose nevertheless to persist in this complaint.

The phrase “constructive failure to exercise jurisdiction” has been used by the courts in different contexts. As explained by Dixon J at 360 in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; [1949] HCA 26, in a case where reasons were not provided:

A failure expressly to address an argument or to consider some material does not, without more, constitute legal error. But a failure to address a “substantial, clearly articulated argument” may amount to a failure to afford procedural fairness or, as the applicant formulated the error in this Court, in some circumstances to a constructive failure to exercise jurisdiction: see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24]-[25]. In Day v SAS Trustee Corporation [2021] NSWCA 71, Meagher JA re-iterated what is involved in a “constructive failure to exercise jurisdiction” in the Dranichnikov sense. In Dranichnikov the question was whether the Refugee Review Tribunal had failed to discharge the function conferred upon it by the Migration Act 1958 (Cth), of reviewing the refusal of a protection visa, by reason of its misunderstanding of the group or class of which Mr Dranichnikov claimed to be a member (per Gummow and Callinan JJ at [26]-[27]). The consequence of the Tribunal’s mistake was that it failed to identify, much less determine, the first question it was required to decide, namely whether the group of which the applicant claimed membership constituted a social group for the purposes of the refugee Convention. As Kirby J explained at [88], that mistake was “essentially definitional, and amounts to a basic misunderstanding of the case brought by [the] applicant”.

A constructive failure to exercise jurisdiction (or a purported exercise, in the sense that there is an appearance of an exercise of jurisdiction) as alleged by the appellant is not a mere failure to consider evidence or to address an argument or submission, which may be contingent or otherwise insignificant, but a failure to understand and determine a case or claim. The ultimate question is whether a failure to consider and address certain issues or arguments involved a failure to address central or critical elements of the case or claim. In the present case, what the HCCC must show is that it raised “substantial” (in the sense of clearly material) arguments or questions which the primary judge in substance failed to address in determining the cross-appellant’s claim.

There was no constructive failure to exercise jurisdiction here. The Tribunal plainly knew that the practitioner did not admit the conduct. The practitioner nevertheless led considerable evidence about the appropriate penalty, in the event that his primary case was rejected. At the risk of repetition, the Tribunal found that the appellant had put measures in place to prevent any recurrence, including not initiating handshakes, not disclosing personal details, removing the lock on the door, and installing a CCTV system used with the consent of patients. All of the findings addressed the substance of the HCCC’s case.

I reject the HCCC’s submission that in every case in which a practitioner does not concede an application that it brings, and puts the HCCC to proof (involving cross-examination of a complainant), a proved contravention is necessarily made more serious because of a lack of insight, remorse and understanding and the appropriate sanction more severe. The appellant’s conduct was not “exacerbated by the denial” as was submitted by the HCCC. A fair reading of the Tribunal’s reasons with respect to the protective order makes clear that the Tribunal has considered and dealt with all of the HCCC’s arguments of substance.

There was no failure to address a “substantial, clearly articulated argument” made by the HCCC.

Ground 2 of the cross-appeal should be rejected.

Ground 3 raises the same point but under the guise of an error in the exercise of discretion by failing to take into account the cross-respondent’s denial of the offending conduct and his apparent lack of insight into the same. As Mr Chatterjee ultimately accepted:

The Tribunal correctly had regard to the principles underlying the proper exercise of its discretion, namely that its discretion to suspend or cancel the appellant’s registration was to be used to protect the community and not to punish the appellant. The Tribunal had regard to, and made findings about, matters which went to the appellant’s character, the out of character nature of the conduct, the unlikelihood of further conduct and the considerable steps taken by the appellant to ensure that conduct of the kind the subject of these proceedings never occurs again.

The Tribunal’s factual findings about penalty (none of which was sought to be challenged by the cross-appellant) about the steps taken by the appellant since the complaint was made, including altering his procedures where contact with patients was required, undertaking relevant courses and reading materials relevant to those courses and communicating openly with his colleagues about the complaint for the purpose of obtaining the series of references, were powerful indications of the appellant posing a low risk of re-engaging in further, similar conduct.

The HCCC’s criticisms of the Tribunal’s reasons in this regard were without foundation. Without attacking any one of the numerous factual findings which made the Tribunal’s ultimate conclusion about penalty one that was plainly open to it, the HCCC chose to engage in an impermissible attack on the quality of the Tribunal’s reasons; the very thing that the HCCC has successfully resisted the appellant doing in his case. The Tribunal had regard to the applicable legislation and relevant principles. The cumulative value of evidentiary findings made by the Tribunal, and not challenged by the HCCC, provided overwhelming proof of the ultimate conclusion that the appellant’s conduct was isolated and out of character.

Ground 3 of the cross-appeal should be rejected.

It was common ground between the parties that the stay of order 2 of the Tribunal’s orders made on 15 December 2020 granted by Basten JA on 13 January 2021 (see Gautam v Health Care Complaints Commission (No 1) [2021] NSWCA 1) expires upon determination of this appeal and no further order setting aside the stay is necessary. Order 2 of the Tribunal’s orders dated 15 December 2020 provided that the suspension of the appellant’s registration would commence 30 days after the date of those orders. Accordingly, the suspension of the appellant’s registration will now commence 30 days following the date of publication of these orders.

Since writing these reasons I have read the judgment of Leeming JA in draft. I agree with his Honour’s additional observations.

For the foregoing reasons I propose the following orders:

SIMPSON AJA: I agree with the orders proposed by Payne JA, and with his Honour's reasons therefor. I also agree with the additional observations of Leeming JA.